On the afternoon of June 3, 2018 — with the general elections only a month away — many users on Twitter took to the microblogging platform to express their inability to access a website operated by the Awami Workers Party (AWP). Once accessible to several users on various internet providers of the country, it now directed visitors to a message stating that the website was “not accessible” because “it contains content that is prohibited for viewership from within Pakistan”. The website, however, was accessible to users outside the country.

The “Surf Safely” alert indicated that the website was blocked by the Pakistan Telecommunication Authority (PTA), which under Section 37 of the Pakistan Electronic Crimes Act-2016 (Peca), is empowered to remove, block or restrict access to online content it deems unlawful.

However, in an official application submitted by the AWP workers to the Election Commission of Pakistan, the party stated that despite technical evidence suggesting that the block-out on the website was directed by the PTA, “at no point did AWP receive any information from any government authority, including the PTA, informing us of any reason for the block-out, thereby denying us a chance to resolve the matter amicably.”

The AWP said the blocking of the website of a legally registered political party violated the fundamental rights to association and expression as protected by the Constitution. A similar complaint was also sent to the PTA, but to no avail. The party workers then temporarily launched a new website for election campaigning.

Efforts to control internet content seem to be picking up in the past few months. But murky procedures and guidelines mean that the regulation can easily tip over into censorship of ideas and political dissent

Following the AWP’s appeal, the website became accessible after three days of censorship. However, the reason behind the arbitrary block remains unclear.

This is not the first instance of political content being blocked — and that too without transparency — in Pakistan, where internet clampdown has intensified in the last few years.

According to an internet freedom report by global watchdog Freedom House, Pakistan ranked “not free” for the sixth consecutive year in 2017.

The report noted that the internet freedom status for the year 2017 had in fact worsened for Pakistan as compared to the previous year. The overall ranking for Pakistan closed at 71 out of 100 (100 being the worst) for the year, two points down from 2016’s ranking. Identifying obstacles to access, limits on content and violations of user rights, the watchdog observed that political and social content was being increasingly blocked by the state without transparency as internet freedom was undermined on ‘national security’ grounds.

In January 2017, a countrywide blanket ban was cast on satire website Khabaristan Times which is inaccessible to date. As with the AWP, the editors of the website were not notified by the PTA regarding the decision.

The last post made on the website’s Facebook page on Jan 30, 2017, reads: “Dear readers, Khabaristan Times’ website has been blocked in Pakistan since Wednesday January 25, 2017. There hasn’t been any official notification from any regulatory authority regarding the website being banned, but it can’t be accessed anywhere in Pakistan. We’ll keep you posted, if there are any updates.”

“It’s been a year to the ban, but we still don’t know under what clause of the law the website was blocked,” says Kunwar Khuldune Shahid, editor and co-founder of Khabaristan Times.

Section 37 of Peca defining unlawful content, however, does not include state institutions. “The problem is with the phrasing. ‘Integrity, security or defence of Pakistan’ is open to interpretation and is often [unjustifiably] extended to individuals as well,” says a senior lawyer.

While most readers, including the website editors, agree that the move was imminent given the nature of [satirical] content — mainly targeted at criticism of establishment and religious extremism — the realisation that it would be eventually blocked, that too without an official explanation, is reflective of the state of freedom of expression in the country.

“It is troubling that a satire website was blocked for being offensive and, hence, unlawful,” regrets Shahid. “Even more troubling is the arbitrariness of the method.”

Exacerbating this issue are the vaguely phrased provisions of the Peca.

“There is a difference between false reporting, spoofing and satire. The law emphasises on ‘dishonest intention’ which does not apply on satire — that too with a disclaimer,” Shahid says, adding that internationally-acclaimed satire publication The Onion used actual pictures without disclaimers, but in Pakistan, the content was scrutinised despite placement of multiple satire labels (referring to the new satire publication The Dependent).

Interestingly, Section 37 pertaining to unlawful online content, allows aggrieved parties to file an application with the authority to challenge the order [barring access to content] within 30 days from the date of passing of the order. The appeal against the PTA’s decision shall lie before the high court within 30 days of the order in review.

Despite the understanding that the case for Khabaristan Times could be challenged on legal grounds, Shahid and his team decided not to pursue the matter.

“We thought its better to wait for the [repressive] circumstances to get better,” he laments. “But for now, they’ve only gotten worse.”

THE OBJECTIONABLE CONTENT CONUNDRUM

Digital rights experts owe the escalating internet crackdown to the draconian Peca, the country’s first comprehensive cybercrime act passed in 2016. Prior to the enactment of the law, requesting the blocking of a website would require complainants to go through an inter-ministerial committee which would then direct the PTA to order the internet service providers to block the relevant website. However, with the passage of Peca, the PTA now has complete authority to directly block what it consideres to be ‘objectionable content’ — a broadly-defined term under the law.

Section 37 of the cyber crimes law chalks out restrictions allowing for the PTA to block, remove and/or issue directions to censor online content through an information system if it considers necessary to do so in the interest of the glory of Islam, or the integrity, security or defence of Pakistan or any part thereof, public order, decency or morality, or in relation to contempt of court.

Despite repeated criticism of the PTA for exercising discretionary powers and clamping down on free speech, moderators at the authority maintain the PTA mainly acts upon complaints it receives from external sources.

“There are three sources of complaints,” explains an official, requesting anonymity. “One is through a list of 30 stakeholders with access to the monitoring portal. Second is the public. And the third source is the authority’s proactive search that monitors specific content only.”

When asked who these stakeholders are, the official shares that agencies including intelligence, counter-terrorism departments, Frontier Corps, ministries, home departments from all provinces bring various complaints to the PTA requesting content removal.

According to official figures, there are at least 831,002 sites blocked in Pakistan at present. Of the blocked sites and URL links, 769,947 are inaccessible due to pornographic content and 34,762 over blasphemy. As many as 11,544 links/web pages are blocked for anti-state, anti-judiciary and sectarian/hate speech content. The authority has also blocked over 800 web pages over defamation/impersonation — a rising trend observed this election year.

“Complaints related to anti-state and anti-army content come from law-enforcement agencies mostly,” the official explains. “As for contempt of court cases, the PTA monitors related content as part of its proactive search. Blasphemous, pornographic and anti-judiciary content is blocked forthwith.”

The official offers solace to aggrieved parties saying that the authority unblocks websites once the unlawful content is taken down.

Earlier this year, the regulatory body had started a short messaging service (SMS) through mobile networks and published newspaper advertisements to provide guidelines for social media users on the suitability of content — a move that digital and civil rights activists condemned, terming it an effort to restrict speech online. The message sent by the authority to people read: “Uploading and sharing of any blasphemous content on Internet is a punishable offence under the law. Instead of taking law in hand, such content should be reported to PTA on info@pta.gov.pk for legal action.”

Given the increasing surveillance by the state authorities coupled with Peca’s broad definition of unlawful content, the digital sphere has developed an atmosphere of deterrence. When asked what is the ‘legally safe’ approach to constructive criticism for democratic discourse, the PTA official agreed that there was a need to define the boundaries. “Simply blocking content is not the solution,” he concedes.

PAKISTAN’S TRANSPARENCY RECORD

Pakistan’s request to social media companies for information and content removal swelled at an unprecedented rate. The trend was reflected in Twitter’s transparency report for 2017, which shows more than a twofold increase in requests in the first half of the year.

Just within the period of July-Dec 2017, there were 75 removal requests from the government, 24 information requests, and 674 accounts were reported to Twitter. However, interestingly, Twitter declined all requests for account information and removal, as opposed to a global trend which saw the microblogging website suspending more accounts as ever as part of its efforts to combat online propaganda and hate speech. The authorities have even threatened Twitter against a shutdown over its non-compliance to requests.

In a report titled Content Regulation in Pakistan’s Digital Spaces submitted to the Human Rights Council in June 2018 by the Digital Rights Foundation, the rights group observed that the nature of requests made by the government were unclear. It noted that it was unspecified if the requests made were legal requests or government requests. “This shows that the lack of transparency by the Government of Pakistan in relation to the process and selection criteria of requests demonstrated by the absence of judicial oversight could have potentially led to Twitter’s refusal.”

Facebook, on the other hand, restricts legal requests based on prohibitions under local laws. According to the Facebook Transparency Report 2017, it received 1,320 requests from the government between July and December and 59 percent of the time Facebook shared data with the authorities. It does not specify if the requests were formal or informal.

Unlike other platforms, Google lists the nature of requests it receives by governments. According to Google’s transparency record, it has received 96 removal requests from Pakistan since 2009 and over 1,000 items have been named for removal up till 2017 — 52 percent of which were objected over religious offence.

Among the many complaints, Google also received a request from the Government of Pakistan’s Ministry of Information Technology (year unspecified) to remove six YouTube videos that satirised the Pakistan Army and senior politicians. It did not remove the content in response to this request.

Besides attempts to restrict content on social media platforms, the country has a history of blocking access to various international publications over reports that conflict with the state narrative. Following the publication of an Amnesty International report which highlighted threats to activists — who, it said, were being subjected to intimidation, violent attacks and enforced disappearances — there were reports of the website being temporarily inaccessible on various internet providers. Similarly, there is also a growing number of Indian news websites being temporarily blocked/inaccessible in Pakistan.

Efforts to stifle political speech are also concerted within Pakistan and are not limited to social media platforms but news websites as well.

According to a network measurement test carried by Bytes For All in July 2018 — the election month — Geo News website (www.live.geo.tv) was found blocked on Pakistan Telecom Company Limited on July 1, 2018, six times out of the 299 times it was tested.

Similarly, News One website (www.live.newsone.tv) was also found blocked once on July 1, 2018 on Pakistan Telecom Company Limited IP out of the 293 times it was tested. The website for Daily News (www.nydailynews.com) was also inaccessible 171 times tested between July 1, 2018 and July 23, 2018. The 694 tests were run on Pakistan Telecom Company Limited, CM Pak Company Limited, Cyber Internet Services Pvt. Ltd. Pakistan and Nayatel.

FIA’S QUEST FOR ENHANCED CONTROL

While the telecommunication authority is swamped with complaints and external pressures to crackdown on the internet, the Federal Investigation Agency (FIA) has its own set of challenges.

Under Peca — specifically sections 22 and 37 — the role of monitoring content and blocking rests with the PTA, but the FIA is the designated authority to investigate the cases.

According to an FIA official — since Peca was passed two years ago — the numbers of reported complaints rose from 18,000 to 20,000 in 2018. The agency has so far conducted 2,295 inquiries, registered 255 cases and made 209 arrests in 2018 — the highest since Peca was enforced.

The FIA, which has been pressing the government to enhance its powers to effectively fight the swelling number of cyber offences, has cited insufficient technical and labour capacity, inability to take down content and requirement to obtain legal warrants from designated courts as reasons behind slow prosecution.

During a Senate committee meeting in June, FIA Cyber Crimes Director (Retd) Capt Mohammad Shoaib had said that the agency had only 10 experts to investigate cybercrimes across the country. The official said that the agency was not inducting more staff since the rules related to FIA’s operations under Peca and procedures pertaining to online scrutiny were yet to be finalised after two years since the law was passed.

“There are 15 cybercrime police stations and reporting centres in the country. Given the high number of internet users and increasing cybercrimes, there should be reporting centres at district level,” says Aun Bukhari, former deputy director of FIA’s National Response Centre for Cyber Crime (NR3C). However, he adds that only 20 percent complaints are reported to these centres and the prosecution rate is equally low since FIA can only act upon cases with evidence.

In October, the interior ministry allowed FIA to establish 15 more cybercrime reporting centres in the country. The decision was taken in accordance with Section 51 of Peca which grants the government powers to take all the necessary measures for the prevention of cybercrime. According to officials, the step was taken keeping in view a sharp increase in cybercrime in the country.

Chairman of the Senate Committee on Information Technology, Rubina Khalid, says that the Senate panel has been urging both the PTA and the FIA to formulate a mutual mechanism to tackle cybercrimes. Terming it in the best interest of the public, she adds: “We have assured FIA of support for enhanced powers and increased funding to fight cybercrime since there is an alarming rise in cases of child pornography and defamation of politicians online.”

To rights campaigners, the mere idea of giving FIA more powers is troubling because of the agency’s arbitrariness in its treatment of cybercrime cases.

As per Peca (that has 28 sections), bail cannot be obtained for blasphemy, child pornography and cyberterrorism. In terms of the remaining 25 offences, the accused person can, under the law in its current form, obtain bail before arrest.

“Phone calls were made, people detained, summons issued and investigations conducted without any communication regarding what the inquiry pertained to or a formal charge, which is a violation of Article 10-A rights," says Farieha Aziz of advocacy group Bolo Bhi. What was termed as an innocuous and procedurally less dangerous section of the law, i.e. Section 20 — because it is non-congisable and therefore requires a warrant for arrest — was the primary charge in the FIR lodged during this period when the crackdown was in full swing."

In June 2017, Aziz along with other civil rights campaigners, filed a constitutional petition against the agency’s crackdown on social media activists. The petition cited the case of activist Adnan Afzal Qureshi, who was arrested by FIA on 31 May 2017 in Lahore, and charged under Sections 20 and 24 of Peca and Section 419 and Section 500 of the Pakistan Penal Code.

The FIA claimed that the activist had been arrested for “anti-military tweets” and “abusive language against military personnel and political leaders.” The petitioners, however, said that the arrest was an example and sign of the authorities intended to misuse Peca to quell freedom of speech, pointing that Section 20 of Peca pertained to “Offense against dignity of a natural person” while Section 24 of Peca pertained to “cyber stalking”. “Even if it is assumed that the arrested activist published comments on Twitter and Facebook that were critical of the armed forces, he cannot conceivably be considered to have violated Sections 20 and 24 of Peca. Indeed, Peca does not prohibit criticism of the armed forces and, therefore, provides no basis for the arrest whatsoever,” they contended.

The FIA, it added, had also sent inquiry notices to several political and social activists.

The inquiry notices direct the addressees to appear at the FIA Counter Terrorism wing police station by a specified time and date. However, the petition pointed out, the inquiry notices were entirely vague in nature and did not specify any alleged offence in respect of which the inquiry was initiated nor the name of the accused nor the nature of information being sought.

“Indeed, the said notices are clearly nothing more than a malafide attempt to create a chilling effect on the freedom of speech and to harass and intimidate people engaging in the exercise of free speech,” the petitioners noted.

Filing comments in response to the petition, the FIA contended that the entire action was in accordance with the law and the FIR was registered based on enquiry against some individuals involved in a campaign of vilification and character assassination on internet by disseminating/uploading defamatory/objectionable and disgraceful material against the Government of Pakistan, the Armed Forces of Pakistan and the top brass of the army.

“Such illegal activities are causing disharmony and unrest among different government institutions as well as inciting hatred and contempt against government and state institutions,” the agency stated.

Maintaining that an investigation was under way and technical experts were “analysing” and “profiling” social media users suspected of involvement in the vilification campaign, the FIA said that the practice was in accordance with Peca Section 20(1) pertaining to offences against dignity of a person.

According to Barrister Salahuddin Ahmed, who represented the petitioners in the case, there has been no progress on the proceedings since last year.

Bukhari, who has worked on drafting Peca for eight years, feels that separate provisions to define and tackle unlawful content, including that against dignity of a natural person, blasphemy and hate speech, were included in the law for effective regulation. “People need to be made aware of what the law entails. The constitution, as well as the law, clearly states that publishing of hateful/misleading content against state institutions [which includes all governmental organisations/departments and armed forces] is punishable.”

However, Section 37 of Peca defining unlawful content does not include state institutions. “The problem is with the phrasing. ‘Integrity, security or defence of Pakistan’ is open to interpretation and is often [unjustifiably] extended to individuals as well,” says a senior lawyer specialising in the law.

EFFORTS TO STIFLE DISSENT

On July 5, social media activist Hayat Preghal was arrested for posting ‘anti-state’ content online. During his detention, Preghal’s mobile phone, laptop and USB were accessed by the FIA’s Cyber Crime Unit. Following his post-arrest bail, the court directed the interior ministry to place Preghal on the exit control list and instructed the FIA to monitor his social media activities and, if it found him doing anything against national interest, it may move a petition for cancellation of his bail.

His is not an isolated case of intimidation and surveillance.

Since the past two years, Pakistani journalists and activists face an increasingly hostile climate due to harassment, threats and violence. Earlier in June, Director General of Inter-Services Public Relations (ISPR) Maj Gen Asif Ghafoor, in a chilling message to journalists, had said that social media was being used against the country and its institutions and that there had been an increase in troll social media accounts which were spewing anti-Pakistan and anti-army content against the facts. Pointing at a slideshow of accounts [including of journalists], he said users propagating conspiracies were using social media to create “ripples” among the masses.

“We have the capability to monitor social media as to who is doing what,” the DG ISPR had said, adding that the army had reported many ‘pro-army’ accounts to the FIA for political posts “with a heavy heart”.

The newly-formed PTI government, too, has hinted at strict regulation of social media. Insistent on curbing the spread of fake news, the information ministry established a ‘fake news buster’ account on Twitter — which is also used to regularly warn users that the use of fake accounts to spread misinformation is punishable under the law.

However, with Pakistan’s widening digital sphere, there is also an increase in concerted vilification campaigns propagated by a network of fake accounts — against journalists, news organisations as well as individuals critical of the government — that are going unchecked by the authorities.

“What has now become really common on social media is the weaponisation of the idea of nationalism and patriotism,” says journalist Abid Hussain, who has been a frequent target of troll accounts on Twitter. “Any opinion which challenges the mainstream narrative earns you the title of a traitor and a foreign-funded agent, killing whatever little space there is to present an alternative view, let alone a dissenting one.”

In addition to heightened backlash, another form of fake news is now doing the rounds. Doctored images of news grabs are being circulated showing news that draws criticism for the news organisation it represents.

The prospects for effective content regulation, though, seem to be thin. With the government’s announcement of its plans to regulate social media with other mediums, its escalating control of online speech is becoming a haunting reality.

THE LEGAL WAY OUT

“The application of the law is very problematic,” says Nighat Dad of the Digital Rights Foundation. Regretting that the regulation and legal process is very ambiguous and unorganised, the rights expert said that the law was being used as a tool of threat.

“Given the growing internet crackdown and efforts by authorities to warn users to exercise caution online, there persists an environment of self-censorship in the country,” she says, adding that even the citizens were now abusing the law to avenge personal disputes. “People are scared to post their views online fearing what if someone reports them to the authorities for being unlawful.”

Stressing that the need for transparency in pursuing cyber crime cases, the lawyer said that the FIA summoned people for investigation, but the practice was mostly followed by an arrest. She also regretted that the agency was very cryptic in the way it approached people for interrogation. “This is why I urge people to consult a lawyer as soon as you receive a notice from the FIA.”

The concern is not limited to the investigation process. “At the early stages when a FIR is registered, charges that don’t really apply are added," Aziz points out. "Cognisable sections of the PPC or ATA [Anti-Terrorism Act] are added to circumvent the need for warrants to gain powers to directly investigate and arrest. Often the sections of the law are not applicable to the alleged offence and carry higher punishments. This is becoming fairly standard in Peca cases.”

To simplify the rather complex process, a lawyer who has contributed to the drafting of Peca and requested anonymity, explains there are two types of offences under the law: cognisable (cyberterrorism and treason where anyone can be a complainant) and non-cognisable (private cases where only the aggrieved party can file the case and not the investigation agency).

Under usual circumstances, an arrest cannot be made for non-cognisable offence without the magistrate’s approval, he adds. However, this is the reason why other provisions of the ATA or penal code are combined to aid issuance of arrests against non-cognisable arrests.

“This overlapping of laws is what contributes to abuse of law for personal interests by the authorities,” he argues. “Peca offers counsel to people to appeal to the high court within 30 days.”

The writer is a member of staff.

She tweets @ramshajahangir

Published in Dawn, EOS, October 28th, 2018

This version of the article has been slightly amended to more faithfully represent the words of Ms. Farieha Aziz

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