the internet policymaking landscape in...

The Internet Policymaking

Landscape in Pakistan

Usama Khilji & Saleha Zahid

An Internet Policy Observatory Publication

About the Authors

Usama Khilji is Director of Bolo Bhi. He holds an MSc in Comparative Politics from the

London School of Economics and Political Science (LSE) where he was a Chevening

Scholar. He is an activist and researcher with a focus on fundamental rights, democracy,

and civic education. He has consulted for the UN, British Council, Reprieve UK, and The

Asia Foundation, and writes in the LSE Review of Books, LSE South Asia blog, Al Jazeera

English, Daily Times, Herald, and The Nation. His blog can be found on

www.usamakhilji.com.

Saleha Zahid is a research associate at Bolo Bhi, with a focus on cyber surveillance and

censorship. She studied Sociology and Anthropology at the Lahore University of

Management Sciences (LUMS) and is interested in qualitative research for the

promotion of participatory policies and development endeavors. Saleha established and

managed a female mentoring program for Pakistan Alliance for Girls Education in 2016.

She has remained one of the top debaters of Pakistan, and often directs her

intercommunication and public speaking skills towards advocacy campaigns for human

rights, the most recent of these being a 16 days of activism campaign against gender

based violence.

Bolo Bhi, meaning ‘Speak up’ in Urdu, is a not-for-profit geared towards advocacy, policy

and research in the areas of gender rights, government transparency, internet access,

freedom of expression, digital security, and privacy. We are a team of individuals with

diverse backgrounds who are passionate about the same causes and believe it is crucial

to bridge the gap between rights advocates, policy makers, media and citizens. Bolo Bhi

can be found on the web on www.bolobhi.org.

The Internet Policy Observatory (IPO) is a project at the Annenberg School for

Communication at the University of Pennsylvania. The overarching goal of the program

is to deepen the reservoir of researchers and advocates in regions where Internet

freedom is threatened or curtailed and to support the production of innovative,

high-quality, and impactful internet policy research. The IPO facilitates collaboration

between research and advocacy communities, builds research mentorships between

emerging and established scholars, and engages in trainings to build capacity for more

impactful digital rights research and advocacy.

For more information on the IPO, please visit globalnetpolicy.org

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Annenberg School for Communication

University of Pennsylvania

3620 Walnut St.

Philadelphia, PA 19104

www.asc.upenn.edu

215-898-7041

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The Internet Policymaking Landscape in Pakistan JULY 2017

Table of Contents Introduction ................................................................................................................................ 4

Key Findings of the Report ................................................................................................................ 5 Methodology .............................................................................................................................. 5 The History of IT & Telecom Industry in Pakistan .................................................................... 6 Who makes the policies? .......................................................................................................... 8

Ministry of Information Technology and Telecommunications .......................................................... 9 The Pakistan Telecommunications Authority .................................................................................... 9 Senate and National Assembly Standing Committees on Information Technology and Telecommunication ............................................................................................................................ 9 Other Ministries and Authorities....................................................................................................... 10

The Legal Jungle of Pakistan’s Telecommunications ............................................................ 10 Cybercrime Legislation .................................................................................................................... 12 Data privacy laws ............................................................................................................................. 13 VOIP and Grey Traffic Blocking ....................................................................................................... 13 Legislation Blocking VPN Services and Encryption ........................................................................ 15

Reactionary decision making benefitting from vague legal frameworks ............................... 15 Censorship ....................................................................................................................................... 16 Content Filtration .............................................................................................................................. 18 URL Blocking ................................................................................................................................... 19 Court Cases ..................................................................................................................................... 19 IMCEW ............................................................................................................................................. 21 The International Clearing House Controversy ............................................................................... 22

Lack of Transparency and of Input ......................................................................................... 22 Prevention of Electronic Crimes Bill (PECB) 2015 .......................................................................... 23 Prevention of Electronic Crimes Act (PECA) 2016 ......................................................................... 24 Multistakeholder Internet Governance............................................................................................. 25

Conclusion ............................................................................................................................... 25 References .............................................................................................................................. 27

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Introduction The tempo of technological change in Pakistan is constantly escalating. Millions of users are getting online for the first time, using an ever-expanding array of new services and devices, and governments and policy-making bodies are struggling to respond to this influx of users and new technologies. This research study attempts to provide a mapping of the policymaking process in the information technology sector in Pakistan during this critical time. The report analyzes the way this process has impacted and continues to impact individuals, businesses, and society, as more and more social, political, and economic interactions occur online. It seeks to better understand the decision- and policy-making processes and the type of policies, primarily censorship and blocking, that have, in the past and present, been implemented in response to various socio-political issues and events. Using interviews with policy makers and stakeholders involved in the process of developing online regulations, it reviews critical issues related to quality of access, and levels of user satisfaction. It also examines the average user’s level of awareness of internet regulation and policies. The report presents for the first time a complete picture of Pakistan’s Cyber policymaking landscape and the actors and process that fuel these policy decisions. It seeks to analyze the patterns and attributes of internet policymaking in Pakistan in order to better and more clearly understand the complicated, reactionary and ever-changing nature of ICT policymaking in the country. It seeks to provide readers with a deeper understanding of the challenges this country faces, and offers glimpses of valuable insights into the future direction of the policy making process. The report is written at a time when policy making for the online world is rapidly evolving to meet the demands of an increasingly internet-enabled global population. Since the advent of the Internet, regulators across the world have grappled with questions related to its governance including the challenge of bringing offline laws online, and whether to enact new policies for the online world. It also comes at a time when more and more governments are choosing to restrict access to content and information, not always via a clear and transparent legal process. Further, the report analyzes the policy-making process at a time when Pakistani laws pertaining to the Internet are still in many ways outdated and inadequate, and are enacted without a comprehensive understanding of the ways in which citizens are now using online technologies. Many policies are reactionary in nature and have been created without strategic vision, transparent legal processes, or clear paths towards implementation. Further, within the country, there is a constant push and pull between government, civil society, the private sector, and other actors over censorship and content restrictions, as was demonstrated by the 2008 three-year ban on the website YouTube.

Keeping in mind this disconnect between policymakers and other stakeholders such as technology companies, civil society, media, and academia, this report attempts to fill the gap in research by mapping all stakeholders involved and collecting perspectives on the problems in internet policymaking in Pakistan. As part of this research on the internet policymaking landscape in Pakistan, our team at Bolo Bhi interviewed key stakeholders in both public and private spheres in order to identify the main drivers of Pakistan’s internet policies. Additionally, the paper explores civil society’s role in the policy making process and considers whether input from users is received and taken into account by policymakers. It

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has been reported that Pakistan lacks a strong multi-stakeholder forum that brings together industry, civil society, and the government in a manner where various actors can collectively and conclusively discuss a future policy roadmap. The lack of clear directionality is further highlighted by the fact that the Pakistan Telecommunications Authority (PTA), the regulatory body that is primarily concerned with the governance of the internet, has not formulated a new five-year policy since the previous cycle concluded in 2009. This report examines whether the PTA has brought stakeholders into the discussion, and whether a clear long-term framework has been proposed.

Following a review of all the key elements in the policymaking process, and interviews with a range of stakeholders involved, this paper seeks to explore and propose policy suggestions and recommendations based on the findings. These recommendations borrow from international best practices and take into account the ways that other jurisdictions are developing internet policies that follow methodological and transparent processes, and provide for the incorporation of input from all relevant stakeholders.

Key Findings of the Report

1. There is an absence of trust in the Ministry of IT & Telecom among key critical stakeholders. Particularly, entrepreneurs complain of the misuse of power and ad hoc investigations of their companies by the government.

2. Legislators and politicians report the Ministry of IT & Telecom creates policies that enable censorship; these same legislators and politicians are wary of wider content controls, but at the same time support bans on material deemed objectionable from a religious perspective, such as blasphemy and pornography.

3. There is sparse discussion amongst legislators and policymakers about creating a renewed five-year policy, which would represent a continuation of the PTA Act, enacted in 2002 and lapsed since 2007. Interviews with experts highlighted a need for medium and long-term strategic plans.

4. ICT policy-making in Pakistan is characterized by a lack of transparency, as well as a lack of Ministerial expertise regarding the impact of regulations on Internet users in the country.

5. There was consensus amongst interviewees that non-governmental stakeholders (such as ICT businesses and civil society) are not consulted, and should be more involved in internet policymaking.

Methodology Face-to-face interviews were conducted with IT industry experts, including senior management of the Internet Service Providers association, CEOs of ICT companies, and activists. Interviews were also conducted with policymakers, including the Chairperson of the Senate Committee on Information Technology and Telecom, the Chairman of the Pakistan Telecommunication Agency, Members of the National Assembly Standing Committee on IT and Telecom, past and present members of the National Assembly, and former employees at the PTA. The purpose of these interviews was to obtain information

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regarding existing legislation in Pakistan, procedures regarding internet policy, as well as changes, and perceived future developments. A research phase was also conducted, in which secondary sources such as news sources, reports by international and local organizations, and government documents were analyzed for context and comparison with interview data.

The History of IT & Telecom Industry in Pakistan This section explores the history of the telecommunications and information technology sectors in Pakistan in order to provide context for the current internet policymaking landscape in the country. On January 1 1995, Pakistan agreed to liberalize its market by joining the World Trade Organization (World Trade Organization 2016) Under the first Nawaz Sharif government between 1990 and 1993, the government actively pursued the liberalization of Pakistan’s economy. Measures undertaken for this purpose included the deregulation of the PTA. However, it was not until 2003, after the fall of the second Sharif government and during the early years of President General (retd) Pervez Musharraf’s rule that comprehensive telecommunications deregulation policy was prepared and enforced (Ministry of IT and Telecom 2003). During its five-year run between 2003 and 2008, this deregulation policy was structured as a comprehensive set of strategic reforms and fully implemented by the regulator — the PTA. At this time cellular penetration in Pakistan was growing at a rapid pace and it became clear that regulatory changes were needed to enable Pakistan to socially and economically capitalize on the global ICT revolution. Experts agreed that mobile growth was inhibited by the lack of competition in the industry, and the policy changes of 2003 and 2004 were viewed as vital to fostering competition in the ICT markets. The Trade Policy Review submitted to the World Trade Organisation (WTO) by the Government of Pakistan in December of 2007 mentioned that “the telecom sector has been totally transformed” and that “In 2003, the new Telecom Deregulation Policy and in 2004 the Cellular Mobile Policy were announced to liberalize this sector”. The government further reported an increase of mobile subscribers “from 8 million in 2003 to over 70 million in 2007” and boasted the “creation of 80,000 jobs directly and 500,000 jobs indirectly” in the telecom sector (Government of Pakistan 2007). According to an interview with Aamir Mateen, who served as advisor to the IT minister in 2003, the government aimed to encourage the use of, and access to, telecommunications, the internet, and the electromagnetic spectrum, as well as to privatize the state-owned Pakistan Telecommunications Company Limited (PTCL). The GSM Association (GSMA), a trade body that represents the interests of mobile operators around the word, defines spectrum in the following words: “Spectrum relates to the radio frequencies allocated to the mobile industry and other sectors for communication over the airwaves”, adding that “additional spectrum, including both coverage and capacity bands, means mobile operators can connect more people and offer faster speeds.” (GSMA 2017) During this five-year policy cycle, the government implemented broadband and telecommunications policies to encourage growth within the industry.

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During this policy cycle, policy-makers also acknowledged that spectrum was a valuable public good, and began a transparent and successful auction of spectrum. i.e. a process whereby licenses were sold to companies so they could transmit signals over specific bands of the electromagnetic spectrum. Mateen described how these policies “energized the PTA”, brought in a large amount of money to the regulator through the revenue generated by auctioning spectrum, and led to Pakistan’s current status as the country with the cheapest call and bandwidth rates in the world. This first five-year policy also established three important IT and telecom related organizations: The Pakistan Software Export Board (PSEB), which had a mandate to promote the Pakistani IT industry; The Universal Service Fund (USF), which had a mandate to extend access of internet and telecom services to underserved areas of Pakistan; and the National ICT Research and Development (R&D) Fund, which was tasked to work with academia to generate innovation and research in the ICT sector. According to Mateen's interview, these three organizations were meant to feed into the policy-making process, with each body balancing the others by representing diverse interests, making policy requests, and competing over policy impact. The PSEB was intended to represent IT sector interests, while the R&D Fund was intended to represent academia, and the USF was intended to represent the telecom sector. However, according to an interview with Saad Saleem, current member of the ICT R&D Fund and Director of Nayatel, a company that pioneered high speed broadband internet in the country, as of 2015 these three organizations had little to do with policy-making, and only focused on their respective narrow mandates. Under their license agreements, telecom operators contribute 0.5% of their total revenue to the R&D Fund, and 1.5% of their total revenue to the USF. Throughout the deregulation policy period, the research and requirements of these funds, and those of the PSEB, often guided policy. Saad Saleem said that the R&D fund currently held around Rs. 60 billion, and is under-utilized by the government. Rather than being utilized for ICT-specific activities, he notes that these funds are often used in other projects ranging from the Prime Minister’s Youth Loan scheme to road construction. Further, he alleges that the board of directors is often bypassed in decision-making related to the utilization of this fund. This 2003-2009 deregulation period was “a golden age for the PTA” according to Wahaj Siraj, Convener of the Internet Service Providers Association Pakistan (ISPAK). This period had a lasting impact on Pakistan, with outcomes such as nation-wide verification of mobile SIMs, the use of technology in several governance processes, and the growth of Pakistan’s telecommunications sector with the entrance of telecom giants such as Warid and Ufone into the market. Despite these successes, the PTA’s deregulation policy expired in 2009 and the policies were not extended. As Siraj notes, there have been no new policies to fill the void, and this failure to enact subsequent policy to capitalize on the period’s successes has had severe and detrimental effects on the technology industry. Since that time, Siraj explains that policy directives are issued regularly by the Ministry of Information Technology & Telecommunications (MoITT) to address specific issues only, as compared to the development of a wider and more strategic set of policy directives that could act as a roadmap for the ICT and technology sector for the next five to ten years.

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Naveed Haq, who worked with the PTA as Assistant Director for Information and Communication Technology until 2012, echoed Siraj’s sentiment in an interview, adding that after the lapse of the first deregulation policy in 2009 there was little long-term direction. Haq notes that Pakistan could have built on the momentum of those policies in order to support the development of technologies, following the model of other countries in the region, such as India. The absence of a coherent policy framework has had a clear impact on Pakistan’s telecommunications and IT sectors. For example, the government of Pakistan auctioned 3G and 4G licenses in 2014, much later than India’s launch of 3G services in late 2008 (International Businesses Publication 2013). The much earlier launch of 3G services in India can be attributed at least partially to India’s effective and consistent IT policy, the New Telecommunications Policy (NPT), formulated in 1999 and continued by the Information Technology Act of 2000. India has also regularly reviewed its policies, with the latest review being the National Policy on Information Technology (NPIT) in 2012. In contrast, Pakistan relies on the Pakistan Telecommunications Act of 1996 with amendments from 2006 coupled with the Electronic Transactions Ordinance (ETO) of 2002. At this point, there is no coherent policy regulating important aspects of technology such as e-commerce gateways. At present, the ICT industry has been operating in a suspended state, with little interaction between the government and the technology sector. In addition, there are policy areas where there is no governing policy at all, and areas where policy is vague, unclear, and outdated. These conditions have resulted in the current status quo, in which policy decisions are made on an ad-hoc, rather than a strategic, basis. With the current ICT policy vacuum in Pakistan as the backdrop, the technology sector has been facing significant obstacles to growth and innovation.

Who makes the policies? This section provides an overview and in depth analysis of the decision-making processes and regulatory bodies in charge of policies that are related to information technology and the telecommunication sector, in order to provide a clear picture of the actors and institutions involved in the ICT regulatory process. While the central decision-making authorities are the MoITT, and the PTA, the section includes reference to other important bodies in the legislative and policy making process, including the Senate and National Assembly Standing Committees on Information Technology and Telecommunication and the Inter-Ministerial Committee for Evaluation of websites (IMCEW). According to Chairman of the PTA Syed Ismail Shah in an interview, the Ministry of Information Technology and Telecom’s (MoIIT) mandate is to issue policy, and the PTA’s role is to implement those policies, as well as come up with the best procedures for those implementations. Shah cited the example of the mobile phone SIM verification process, in which the Ministry declared that there was a need to verify SIM cards, and the PTA came up with the procedure and plan to implement the directive. However, Shah points out that the PTA operates autonomously in its secondary role, the regulation of telecom companies. This means that when it comes to regulation of the sector, telecommunication companies are bound by their licenses to answer exclusively to the PTA.

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Ministry of Information Technology and Telecommunications The MoITT is a sub-unit of the executive arm of the Government of Pakistan, and is responsible for planning, coordinating and directing efforts to initiate and launch IT and telecommunications programmes and projects aimed at economic development of the country. The vision of the ministry, according to its official website, is to empower “the people of Pakistan through seamless access to accurate information and reliable services by means of ICT applications & telecom platforms, and establishing a knowledge-based economy” (Ministry of Information Technology 2014). The Ministry’s primary role is to “create an enabling environment through formulation and implementation of policies and legal framework; providing ICT infrastructure for enhancing productivity; facilitating good governance; improving delivery of public services and contributing towards the overall socioeconomic growth of the country” (Ministry of IT and Telecom 2014). The MoITT is headed by the State Minister for Information Technology and Telecom, who is an elected Member of the National Assembly, and belongs to the cabinet of the Prime Minister of Pakistan. As of 2017, the current Minister of State for IT and Telecom is Anusha Rahman Khan from the ruling Pakistan Muslim League Nawaz (PML-N) party. The Ministry was the body that made the decision to auction 3G and 4G licenses to telecom operators in 2014, and has prepared several drafts of a cybercrime bill called the Prevention of Electronic Crimes Bill 2015, legislation that is still being debated due to pushback and criticism from civil society and opposition political parties in the Parliament.

The Pakistan Telecommunications Authority Established under the Pakistan Telecommunications Ordinance of 1994, the PTA is the primary regulatory body for the technology and telecommunications sector. Section 3 of the Pakistan Telecommunication (Re-organization) Act of 1996 provides for the establishment of the PTA. Through this Act, the PTA is the regulator for all companies in the telecommunications sector, and it derives administrative powers through policy directives issued by the MoITT. Among its other functions, which include the promotion of accessible and high speed telecommunication services (Section 4d of the Telecommunications Act), the PTA is also tasked with protecting the interests of users of telecommunications services (Section 4c) and performing investigative and adjudicative functions in the case of complaints by consumers and by other license holders (Section 4f) (National Assembly Secretariat 2015). The PTA is headed by a Chairman who is an independent expert appointed by the Federal Government (Section 3 (3) of PTA) based on merit and expertise in the area (National Assembly Secretariat 2015). As of 2017, the current Chairman of the PTA is Dr. Syed Ismail Shah, who is also an elected Vice-President of the General Assembly of the Asia Pacific Telecommunity (APT) (Asia-Pacific Telecommunity 2016).

Senate and National Assembly Standing Committees on Information Technology and Telecommunication The National Assembly and the Senate both have a Standing Committee on Information Technology & Telecom. The National Assembly Standing Committee on Information Technology and Telecommunication comprises 18 elected Members of National Assembly (MNAs), with a majority – 10 – being from the ruling party Pakistan Muslim league-Nawaz

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(PML-N), three from the Pakistan Peoples Party–Parliamentarians (PPPP), two from Muthidda Qaumi Movement (MQM), one from Pakistan Teheek-e-Insaf, and one Independent MNA. The job of this committee is to draft and debate laws before sending them to the Parliament for floor debate and vote (Government of Pakistan 2016). The Senate Committee on Information Technology and Telecommunication comprises 12 members. Five of these belong to the PPP, two to the PML-N, and one each to PTI, JUI-F, BNP-A, and Independent. The job of this committee is to draft and debate laws before sending them to the Parliament for floor debate and final vote (Senate of Pakistan 2016).

Other Ministries and Authorities The now defunct Inter-Ministerial Committee for Evaluation of websites (IMCEW) consisted of a Member from the Ministry of Information and Broadcasting, Ministry of Interior, Cabinet Division, Telecom Expert for MoITT, and the Inter Services Intelligence (ISI). The IMCEW was disbanded by court order in 2014, following a legal petition filed by Bolo Bhi (Bolo Bhi 2014). Interviews with stakeholders confirmed that the interest in blocking websites extended to other ministries as well as the Pakistani Army’s intelligence wing, the ISI. The Pakistan Software Export Board (PSEB) continues its mandate of promoting the Pakistani IT industry and does not get involved in the policy making process; neither does the Universal Service Fund (USF), which has a mandate to extend access to internet and telecom services to underserved areas of Pakistan by increasing the level of telecom penetration significantly in the rural areas through effective and fair utilization of the fund; nor does the National ICT Research and Development (R&D) Fund, tasked to work with academia on innovation and research in the ICT sector.

The Legal Jungle of Pakistan’s Telecommunications In addition to a failure to create a new strategic telecommunications regulatory framework after the lapse of the deregulation policies in 2009, there exist several lacunas when it comes to laws, policies and implementation on important internet issues. This section draws from interviews with experts who describe laws and policies that are either non-existent, in the shape of inadequate drafts, or in their view counter-productive. These include data protection laws, e-commerce gateways policies, and content management practices. There are some cases (such as VOIP and VPN blocking) where there is no legislation at all, and in others, such as cybercrime and data privacy, where legislation exists but is inadequate for various reasons. This section then analyses how companies and individuals operate in this environment that lacks clear legislation.

According to Karachi Institute of Technology and Entrepreneurship (KITE) Chairperson Afaque Ahmed, “There is a serious lack of capability of drafting and understanding internet policy matters and legislation as far as the government of Pakistan is concerned” (Ahmed 2015). He noted that sections 36 and 37 of the Electronic Transactions Ordinance (ETO), the articles that deal with the violation of privacy of information and damage to information systems, respectively, lack specificity and are currently used for all cybercrime matters. Additionally, the police largely misunderstand these regulations and officers have the tendency to use them for any issue related to the internet. Ahmed also describes how both sections are problematically used in conjunction with one another much of the time, even

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though one policy is concerned with violation of privacy and the other concerns damage to information systems. In March 2011, the Daily Express Tribune reported on the woes of investigative officers working on cybercrimes without any updates since 2009 to legislation specific to ICTs. The news report quotes a Federal Investigation Agency (FIA) officer saying that sections 36 and 37 of the ETO are inadequate for charging cybercrime suspects because “trials start at the Judicial Magistrate level. The trial drags on for ages because the case grade is low and people often get away with the crime” (Zeeshan 2011). Because the trial starts at a lower level, lawyers have an easier time applying for and receiving relief for their clients, resulting in serious delays and difficulties in prosecution. The officer interviewed in the article cited a case of a major foreign exchange scam where the accused were granted bail as the ordinance had lapsed and case was deferred to a Lower Magistrate and prolonged. According to Ahmed, there is dire need for the training of judiciary and investigating officers on IT-related matters as well, as many judges and officers (especially at lower levels) have little understanding of ICT policy and frequently need to consult with outside experts. For instance, in the case challenging the blocking of YouTube, presiding judge Justice Mansoor Ali Shah sought the help of amici curiae to assist him on the various aspects of law, including the technical and civil liberties aspects of the ban. There have been several efforts to train members of the judiciary and acquaint them with upcoming international developments in cybercrime and technology, such as the Budapest convention. Dr. Ali Qazilbash, Chair, Shaikh Ahmad Hassan School of Law (SAHSOL) has also been conducting trainings for the member of judiciary (LUMS 2016). In an interview, Journalist Azam Khan of the Express Tribune, who regularly reports on IT-related issues, agreed that legislators and law-enforcement personnel need to be trained to deal with IT-related crimes, testifying that he has observed a lack of understanding when covering IT committee meetings at the National Assembly and the Senate of Pakistan. From our interviews, it is also clear that this lack of expertise extends into the Parliament, and many politicians are cognizant of the issue. Senator Shahi Syed, the Chairperson of the Senate Standing Committee on Information technology, acknowledged that there is a clear need for legislators to be briefed and trained about matters relating to technology, as most are not privy to how technology functions. Very few people are aware of the Federal Investigation Agency (FIA) cybercrime wing, called the National Response Center for Cyber Crime (NR3C), which was set up in 2007 “to identify and curb the phenomenon of technological abuse in society” (Federal Investigation Agency, 2015). According to Azam, the cybercrime wing needs to be made more accessible and better known to citizens, who often do not report internet crime to the police because of both mistrust of and assumptions that that the police are not capable of understanding or solving these issues. He added that citizens should be able to complain anonymously as well. As a regular reporter on cybercrime bill related news, Azam Khan stated that the process is highly politicized and lacks transparency. Additionally, in an interview Ahmed noted that academia in Pakistan has been largely disconnected from policy-making. Rarely have those within academia ever proposed or attempted to lobby for any kind of law, he said, as compared to other countries where academics are core stakeholders in the ICT policy and advocacy process. Ahmed does not

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only blame the government for this failure, but also a lack of initiative and interest in affecting policy on the part of academics in Pakistan, who he termed ‘conservative’.

Cybercrime Legislation The PECO (Pakistan Electronic Crimes Ordinance) was promulgated by then President Pervez Musharraf in 2007, and lapsed in 2009. PECO was criticized for its overly broad language and was opposed by both industry and members of opposition in parliament alike. Collective pressure resulted in the withdrawal of the proposed legislation from the floor of the assembly by then Prime Minister, Yusuf Raza Gilani. Following its withdrawal from the floor of the assembly, the industry associations ISPAK (Internet Service Providers Association) and P@SHA (Pakistan Software Houses Association), along with a committee of parliamentarians, began to draft a new bill. After consultations in 2014, ISPAK, P@SHA and the MOITT agreed to an industry stakeholder draft, with participation from private stakeholders but not from representatives of civil society. This draft was then sent to the Cabinet Division and in February 2015, emerging with modifications and then presented before the National Assembly’s Standing Committee on Information Technology and Telecommunications for approval. Senator Syed commented in an interview, that there is a governance vacuum as far as issues relating to the internet are concerned. According to Syed, there is a need for a comprehensive cybercrime law that spells out fines and punishments for crimes according to the seriousness of the offence, as crimes such as fraud and identity theft are currently unchecked and negatively affecting citizens. In an interview Asif Bhatti, senior correspondent for Geo News, who often reports on IT-related matters, claimed that while the need for legislation is great, these issues are not resolved through the proposed Prevention of Electronic Crimes Bill 2015, which only criminalizes spamming. He noted that the negative reputation of technology and internet needs to be combated by the government. Despite criticism of the bill, a final version of the law was passed by the Senate in August 2016. The bill provides sweeping powers to authorities to censor content online and criminalizes the acts of whistleblowing and journalism. The prohibitions against whistleblowing include restrictions on making public information on overreaching power by governments, organizations and others. The law in its current form lacks clarity on whether reporters will be protected under this provision, let alone whistleblowers. Reporters regularly work with anonymous sources, and the new law would provide law enforcement with excess power to curb media freedom, regardless of the fact that information published is of legitimate public interest. The law calls for up to three years imprisonment, an Rs1 million fine, or both, for unauthorized access to critical infrastructure information systems or data, without providing clear definition of what “unauthorized access” means. There are no exceptions for whistleblowers. The law also expands the government’s surveillance programme by adding a provision by which the government may cooperate with any foreign government, foreign or international agency, organization or 24x7 network on investigations or proceedings relating to specific offences or the collection of evidence. Without a data protection law there are no limitations on how long the data collected by state agencies for surveillance purposes would be stored. Moreover, the government may forward any information obtained from its own investigation if the disclosure assists the investigations of any foreign government, 24x7 network, foreign or international agency or organization any information.

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One of the most worrying provisions of the bill is its call for seven years of imprisonment, Rs10 million fine, or both, for any person convicted of glorifying an offence relating to terrorism, a person convicted of a crime relating to terrorism, or proscribed individuals or groups. Glorification is explained as “depiction of any form of praise or celebration in a desirable manner”. Since the clause is loosely worded it could be applied to journalists, as Pakistani authorities routinely book activists under anti-terrorism laws. For example, Okara farmers who were booked under the country’s anti-terrorism laws for demanding their lands back from military control would be considered terrorists, and any attempt to depict them or their goals in a positive light could result in repressive repercussions under this law. In the wake of their arrests, multiple activists took to Twitter to praise their efforts. Under this new law, these actions would now be prosecutable.

Data privacy laws In 2005, the MoITT made a strong push for data protection legislation. However, when it arrived at a draft Electronic Data Protection Act in 2005, it faced tough opposition from members of the IT industry. Zahid Jamil, a barrister who has dealt with IT-related cases and drafted legislation relating to IT, prepared a document summarizing the main criticism of the draft Electronic Data Protection Act 2005 by the IT industry. Jamil points out that the Act as it was written would have caused an increase in the cost of outsourcing businesses to Pakistan. Further, Jamil highlights that the act also covered corporate data, making Pakistan unattractive to investors and businesses looking to work in Pakistan. The draft was also criticized by many for imposing very harsh punishments for those breaching any section of the act, with sections 19 and 21 stating that fines could be levied for up to 3 million rupees as well as for imprisonment of up to 5 years (Jamil 2010). Asif Bhatti also reported in an interview that the only law that was used for cyber-related offences until the enactment of PECA – the 2002 Electronic Transactions Ordinance (ETO) — is now obsolete and often abused. The senior correspondent adds that there is a dire need for updated cyber laws due to the evolving nature of both technology and the social infrastructure of Pakistan. To date, Pakistan remains without a data protection law and with little progress on amending the 2005 draft.

VOIP and Grey Traffic Blocking While there are many cases (such as those outlined above) in which a vacuum exists with absolutely no legislation or regulation to guide a particular set of issues, there are also many cases where legislation or regulation does exist but is flawed with regard to both the content and implementation of the law or regulation. As an example, there is a set of regulations, called the Monitoring & Reconciliation of International Telephone Traffic Regulations (MRITT) 2010 (Pakistan Telecommunication Authority 2010), guiding the blocking of VOIP and grey traffic. Grey traffic is defined as “the use of illegal exchanges for making international calls, bypassing legal routes and exchanges” (Pakistan Telecommunication Authority 2010). The MRITT is both unclear and problematic due to the tenuous claims that are made to justify blocking, infringement of rights through censorship, and the impromptu and opaque manner in which these decisions are made. For example, for the past few years, the government has consistently blocked cellular services on specific days and events, citing security concerns as the reason. This seemingly arbitrary blockage of communication is contrary to Article 19 of the Pakistan Constitution, which provides:

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Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, [commission of] or incitement to an offence. (Parliament of Pakistan 1973)

By following these protocols, the Pakistani government threatens this provision and the fundamental rights of Pakistani citizens through their decisions to place blanket restrictions on information sharing citing vague ‘security’ threats. Many have argued that these actions are violations of citizens’ right to communicate, as well as other human rights. A report by the Institute for Human Rights in 2015 warned these acts endanger the right to life, a key provision of the Pakistan Constitution (Article 9). The report states:

As more and more people become connected to and rely on mobile and Internet services, and telecommunications become an indispensable cornerstone of the economy, government-ordered network shutdowns become increasingly disruptive, even endangering the right to life which the government is likely trying to protect. (Institute for Human Rights and Business 2015)

In 2013, the Sindh government decided to implement a three-month ban on VOIP services such as Whatsapp, Viber, and Skype, again for security purposes. Such efforts to create counter-terrorism policy at the expense of restrictions on citizens’ rights to communicate were criticized by citizens on social media as well as in the print and electronic media (Dawn 2013) In 2010, the PTA implemented the Monitoring & Reconciliation of Telephony Traffic Regulations 2010 (MRITT) act to “detect and control grey traffic,” and to ensure the prohibition of any mechanisms which would allow users to conceal their communication (Pakistan Telecommunication Authority 2010). These illegal exchanges include VOIP (Voice-Over internet Protocol) that uses a computer; GSM (Global System for Mobile) gateways; WLL (Wireless Local Loop) phones or mobile SIMs. Under the MRITT, VOIP services like Viber could legally be blocked and citizens would no longer be able to communicate over these secure networks online. Within this legislation, it remains unclear which bodies have the final authority and decision-making power with regard to managing the grey traffic problem. In December 2013, instead of the PTA, the ISI was given control over the filters managing grey traffic, despite the fact that it had no legal mandate to do so (Abbasi 2013). Abbasi also claims that this intelligence agency was completely unequipped to deal with the needs and requirements of industry and citizens accessing the internet in general. The Internet Services Providers Association Pakistan (ISPAK), has complained formally to the MoITT that IP addresses were automatically being blocked in a strategic attempt to control grey traffic (Siraj 2013). As a result, multiple legal call centers had their IP addresses blocked. International companies and websites found their IPs blocked and servers inaccessible. Legitimate businesses had to re-register their IPs and connections would work sporadically, which impacted legitimate companies and their ability to do business in the country. The hassle of attempting to get IPs whitelisted in a timely fashion was likewise a hindrance. Many internet service providers had IPs and DNS servers blocked, making them unreachable and impacting services for

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their customers. These disruptions continued for a matter of weeks, and impacted ordinary citizens as well as businesses across the country.

Legislation Blocking VPN Services and Encryption Another case in which the government has implemented legislation with negative consequences for citizens and businesses alike is that of legislation surrounding virtual private networks and encryption services. In 2014, virtual private network (VPN) services such as Spotflux were banned in Pakistan. Under the MRITT regulations, the use of VPNs was banned, but the directive had not been implemented in any way. As reported by the Express Tribune in August 2011, this move came after repeated attempts by the government to block the use of VPNs. The article cited a PTA spokesperson, who stated that one of the reasons to block VPNs was “to stop militants from using secure internet connections to communicate with each other.” The PTA felt that that the only way to accomplish this goal was to block VPN access for every single citizen in Pakistan. According to some, this move was a violation to a citizen’s right to privacy, as it impacted the public’s ability to connect through an encrypted network and protect their information (Hassan 2011). Previous attempts to legalize the blocking of encryption and monitoring of grey traffic had also been part of anti-terrorism efforts. It is pertinent to note browser add-ons such as HTTPS Everywhere and NoScript are tools for encrypting communications on browsers, ensuring users are not susceptible to hacking attempts and their privacy is protected. The ban on encryption also applies to these users, who would no longer be able to ensure that their internet activity is safe and secure. Moreover, banning encryption and VPNs had an impact on legitimate businesses as well, especially the banking sector. The banking sector, and online banking services specifically, require a secure network and encrypted communications with consumers in order to protect sensitive information such as customer accounts, passwords and other bank information. Businesses that require secure networks to conduct e-commerce also require online encryption. In addition, many companies and organizations use VPNs for secure internal communications as well. All of these legitimate VPN usages were banned under this legislation.

Eventually, in 2014, the PTA published a notification in newspapers announcing that unregistered VPNs would be banned in the country (Pakistan Telecommunication Authority 2014). This meant that businesses could register their VPNs and be able to utilize them legally. However, the ban on encryption continues, essentially meaning that, as long as the state mandates that it has the right to monitor online communicaations, most online transactions will not be secure or private.

Reactionary decision making benefitting from vague legal frameworks This section looks at the implications of these legal lacunas and policy inconsistencies relating to the internet, which include ad-hoc and reactionary measures such as blocking of entire domains without notification, censorship of political dissent, calls for filtering systems, and setting up unconstitutional bodies for censorship. This section also covers relevant court cases that are challenging these measures.

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Censorship The Pakistani government has a historical legacy of censorship, beginning with blacked out opinion pieces and news reports of the military dictatorship era under General Zia-ul-Haq in the 1970s, and extending to the present day. Censorship on the internet, therefore, is an extension of the same ‘mind-set of control’, as ex-Member of National Assembly and Senior Vice President of the Awami National Party (ANP) Bushra Gohar calls it (Aziz 2014). As mentioned above, Article 19 of the Constitution of Pakistan states:

Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defense of Pakistan or any part thereof friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, [commission of] or incitement to an offence. (Parliament of Pakistan 1973)

Oftentimes, these exceptions have been used to censor speech or prevent access, - sometimes unilaterally, by state actors and sometimes at the behest of public opinion. In most cases, the authorities have responded with blanket bans (Dawn 2006). In March 2006, the popular blogging site Blogspot was banned in Pakistan, purportedly in response to the publishing of blasphemous cartoons, resulting in a blanket ban. In response, citizens and activists initiated the Don’t Block The Blog! campaign to overturn the blanket ban (Awab Alvi 2006). The ban was eventually lifted and access to Blogspot was restored on May 2, 2006. However, there were frequent disruptions, and the website was blocked several times up until 2007, in spite of a rapidly growing campaign against such measures (Reporters Without Borders 2007). Under various government tenures, content that is deemed anti-state or against the sovereignty of Pakistan has been effectively censored, with the government rarely citing specific legislation to justify its acts, instead pointing to the presence of vague ‘security’ threats. These acts of censorship also included websites on Balochistan and Baloch separatism. The bans resulted in the blocking of many Baloch news websites, whether they fall under the anti-state category or not (O'Brien 2012). In 2010, the music and pop culture of website Rolling Stone was blocked after it carried an article that discussed Pakistan’s military budget for the current fiscal year and made comparisons with the US military budget. This block that remained in place for the next two years (York 2011). In addition, political satire has been frequently targeted by the government and blocked online. The PTA has regularly issued guidelines for the policing of such content. As early as 2010, PTA guidelines included analyzing for content which “promotes or supports sedition, terrorism, anarchy or violence in the country or brings contempt to the defense forces, police, air force or other institution of government” in order to determine if it should be blocked or not. This vague language has enabled authorities to remove content they deem to be unsuitable for the general public, based on the political sensibilities of the day. This has resulted in a process lacking transparency and understanding. There is little in terms of legal instruments to support the removal of content from the internet. In 2012, directive No 5-1/2005-DFU was issued to the PTA allowing for the “effective monitoring and control of obnoxious content” online, a regulation meant to control content that is blasphemous and pornographic in nature. (Ministry of IT and Telecom 2006). According to the directive, this

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content violates Articles 19 of the Pakistani constitution that pertains to freedom of speech – but deems anything that hurts the glory of Islam to be objectionable – and Article 31 of the Constitution of Pakistan, which explicitly protects the Islamic way of life. The solution, according to the federal government, was to direct the PTA to establish a “unit” specifically to take measures against websites containing such content. The PTA was to appropriate monetary and human resources for this unit, and this unit was mandated to objectively block websites displaying “obnoxious” content. The Inter Ministerial Committee for Evaluation of Websites (IMCEW), discussed below, was also mentioned in this directive, which highlighted the fact that a body already existed for the evaluation of websites, and would continue to do so, even after the creation of this new “unit” (Ministry of IT 2012). The vague language used in policies drastically impacts implementation, as subjective terms like “anarchy” or “immorality” are open to interpretation and used frequently to stifle political speech. The most recent example was the blocking of the song Dhinak Dhinak by Pakistani band Beyghairat Brigade. The song, which was satire directed at the country’s military establishment, was blocked online briefly after its release (Iqbal 2013). Government sources in Pakistan deny the existence of any targeted censorship policies. They maintain that only immoral, blasphemous, and content contrary to the interests of Pakistan is removed from the internet. However, the Electronic Frontier Foundation has released reports detailing the blocking of websites carrying audio and video conversations exposing corrupt parliamentarians and government officials (York 2012). In spite of these efforts, censorship has remained rampant with the government continuing to cite as justification the vague language used in laws and policies pertaining to content. The PTA has continued to block entire platforms as a result of specific content on the platform that was deemed “objectionable”. Social media websites Facebook and Twitter have been blanket blocked multiple times, and blogging platforms blocked as early as in the year 2006. Other cases in which the government has blocked entire content hosting platforms due to specific smaller offenses include the blocking of websites acting as watchdogs on minority killings; websites for various Islamic sects; self-help and healthcare websites for teenagers; the entire YouTube platform, secular websites like Roshni, music and pop culture websites like Rolling Stone and Internet Movie Database (IMDB), progressive Facebook pages such as Laal, anti-Taliban secular Facebook pages like Pakistani Meems and Taliban Are Zaliman, Instagram and WordPress (Dad 2014; AFP 2014; Velayanikal 2015). These are just a few websites on a long list that have been censored through the “obnoxious” content clause. Exacerbating this issue is the fact that no intermediary liability protections for internet platforms dealing with content exist in Pakistan, allowing for these arbitrary takedowns and blanket bans of entire websites. With a lack of legal and operational transparency, erratic and discretionary measures taken by the government to control access to content on the internet results in losses to IT businesses in the country, according to Jawwad Farid. Farid, who runs Alchemy Technologies and financetradingcourse.com and has also authored books on e-education, adds that the government frequently takes single action measures that have repercussions beyond the original intent. For example, the government’s move to block YouTube affected other Google tools necessary for business causing clients abroad who use these tools to be less likely to do business with Pakistani companies (Business Recorder 2012). Farid further laments that many Pakistani IT business owners who have clients abroad also suffer when

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their clients cannot reach them over the phone when the government blocks mobile phone signals as a security measure. With the passage of the Prevention of Electronic Crimes Act 2016 (PECA), the power that authorities have been granted over online content has risen exponentially. Farieha Aziz from Bolo Bhi has lamented that while before the enactment of the law, “to block a website, [complainants] would have to go through an inter-ministerial committee which would then direct the PTA, which would tell internet service providers (ISPs) and they would then block website”, now the PTA has the complete authority to directly block what it deems to be 'objectionable content’. Khabaristan Times, a satire website was blocked under the new law in January 2017, and its CEO, Luavut Zahid claimed that this was done without any official notification. This is indicative of the weak and opaque procedural processes that have been established by PECA. Mr Shahid, the editor of the website, stated that the ban must be linked to two aspects of the publication’s satire — “criticism of the establishment and candid and sometimes blatant critique of religious extremism” (Masood 2017). There has also been an alarming increase in content requests made to Facebook. The July - December 2016 Government Request Report for Pakistan indicates that 1,002 total requests were made by the government. According to the Interior Ministry, Facebook has complied with 85 percent of requests for the removal of blasphemous material (Jami 2017). Negotiations between the Pakistan Government and Facebook are intensifying and Facebook management has also decided to send a delegation to Pakistan for investigating content which the government considers to be blasphemous. Despite this, petitions continue to be filed against the social network for the prevalence of blasphemous material and in April 2017 the Lahore High Court issued a directive which gave the PTA the power to completely block information systems or social media websites if it is unable to rid them of blasphemous content (Sheikh, 2017). Given the power of arbitration, the PTA is able to block access to platforms that criticise the government and military under the garb of an anti-blasphemy drive.

Content Filtration In another move to regulate content online, in March 2012 the National ICT Research and Development Fund announced a request for proposals for a national URL filtering system. This move hinted at the Government’s plans for a centralized content filtration system, essentially Pakistan’s own firewall. Plans for a centralized filtration system date as far back as 2010, based on a set of recommendations from the PTA. This centralized filtration system would move away from the ISP-level blocking of Uniform Resource Locators (URL) to a single method of blocking URLs (Dad 2012). Furthermore, the PTA also recommended industry experts and operators be added to the IMCEW to decide whether a website should be blocked or not. However, there was no clarity over who these experts would be, how they would be nominated, where they will derive their powers and how they would make their decisions. The inter-ministerial committee (IMCEW), set up in 2006 to oversee URL filtration and blocking, is an opaque body operating with little transparency and clarity and is described in more detail later in this report.

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An RFP issued by the government for the development of a filtering system stated, “Each [filtering] box should be able to handle a block list of up to 50 million URLs (concurrent unidirectional filtering capacity) with processing delay of not more than 1 milliseconds.” The request for proposals mentioned the need to block access to “harmful” content, without a definition whatsoever of what qualifies as harmful, leaving it at risk for abuse (Sutton 2012). A mass level URL filtering system would not only affect citizens, but also impact academia, businesses, internet speed, and online privacy and security (Dad 2014). While these plans were shelved by the government in favour of prioritizing e-crime legislation, there are many ways in which content filtration is facilitated by proposed legislation. In 2013, a report by Citizen Lab revealed that the filtration software Netsweeper had been detected in Pakistan on PTCL servers (Citizen Lab 2013). In 2014, the PTA denied conducting surveillance, in response to a Right to Information (RTI) request filed by Bolo Bhi. However, later in a freedom of information (FOI) hearing, the PTA officials verbally admitted to the presence and use of Netsweeper on PTCL servers in Pakistan (Bolo Bhi 2014). Prior to these reports, the fact that Netsweeper was being used in Pakistan wasn’t public knowledge. Despite the release of the report and the media coverage that followed, there is no transparency on how these filters are operated and who has the authority to work on them. There is also the very crucial issue of lack of legislation that determines a clear framework for content take down and outlines possible redress mechanisms. As of 2017, the filters are being used without care of public disclosure or judicial oversight.

URL Blocking In 2006, the PTA set up a complaint cell for the specific blocking of URLs in Pakistan, and in 2009 implemented a complaint management system. However, in 2010, newspapers reported the PTA was developing an online complaint system for the management of blocking online content, and was guided in this endeavour by MoITT. In this manner, the PTA had consistently made blocking URLs a focus over the course of several years. In 2013, the PTA published an advertisement in newspapers informing the public that it was regularly directed by the inter-ministerial committee to block content, and encouraged citizens to email objectionable URLs to PTA for blocking (Saleem 2013). However, reports in 2013 stated that, “Taking decisions on blocking of content does not fall under the jurisdiction of PTA, as it is the domain of IMC (inter-ministerial committee) which comprises different stakeholders including the intelligence agencies under the chairmanship of federal secretary MoITT” (Haider 2013).

Court Cases In 2010, a Facebook page called “Everybody Draw Mohammed Day” caused anger in Muslim countries globally. In response to this Facebook page, The Islamic Lawyers Movement filed a constitutional petition with the Lahore High Court (LHC), which mandated a ban on Facebook. As a result, the courts passed a stay order on May 19, 2010, and instructions were passed on to PTA to block the website (Crilly 2010). This set a precedent for courts to order the banning of an entire platform to block access to one particular page that was considered objectionable. Following this ban, the PTA went on to block approximately 800 websites on the grounds there was un-Islamic material present, going above and beyond the court order. The PTA submitted a report to the LHC, stating that the authority was just and acting in accordance with the courts’ and federal government’s

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orders. The ban was temporarily lifted on May 31 2010, but was reaffirmed in June 2010 (Haider 2010). The aforementioned cases are illustrative of the arbitrary and reactionary procedures and actions that have been taken against ‘objectionable material’ online. Directives are issued targeting one subject, but action is taken against many. The PTA took matters into their own hands, albeit using powers given by the federal government, when they proactively searched for and banned over 800 websites. No reasons were stated, and no legal justification was provided. The question also remained as to where the PTA derived the legal authority to ban websites on their own accord. This will be discussed further in the section below focused on the IMCEW. A 2012 Supreme Court order, in response to Constitution Petition No.104 of 2012, stipulated that the PTA was under a “legal obligation” to control blasphemous and related content online. The petition was filed against an un-Islamic film, Innocence of Muslims, available on YouTube, with the order mentioning the availability of this film online illustrated the PTA’s failure to perform its legal duty. The courts instructed that this material, and this material only, be blocked online. What unfolded, however, was a blanket ban of YouTube (AFP 2015). In 2013, two petitions were filed against the YouTube Ban, in the Peshawar High Court (PHC) and the Lahore High Court, respectively. Mian Mohibullah Kakakhel, a senior advocate, filed a petition in the PHC challenging the ban on YouTube, stating the ban was illegal and that banning an entire website was not a solution. In 2014, the court directed the PTA to file to the Peshawar High Court all important and relevant documents pertaining the case (Dawn 2013). Bytes for All (B4A), a human rights organization and think tank, filed a petition in the LHC challenging this blanket ban on YouTube. Bolo Bhi Director Farieha Aziz was appointed amicus curiae in the case (Jajja 2013). During the course of hearings on this petition, the government submitted before the LHC that blanket bans in the form of IP-level/URL blocking were the only available option, as it lacked the capability to block specific pages, says Farieha Aziz. Therefore, despite the court order not instructing a blanket ban, the government argued there are few alternative options available to the authorities. Extensive additional hearings took place between 2013 and 2014; Bolo Bhi submitted a report to the LHC summarizing multiple solutions to the ban on YouTube. Technology experts also submitted a report to the LHC, which contained evidence of consensus towards the placement of interstitials before offending content as it is almost impossible to block anything completely on the internet. Judgement for this case is still pending, but the YouTube ban was lifted on January 18, 2016 after the introduction of a localized version “that gives the government power to demand material is withdrawn” (Reuters 2016). The course of action taken by the courts, the federal government, and the PTA in the Facebook and YouTube cases formed a precedent for the future, and Pakistan subsequently saw stricter regulations as well as continued ad hoc blocks and bans on websites (York 2012). In 2014, a group of students filed a petition against the arbitrary banning of websites, demanding the government be ordered to cease this policy. These students argued that people nationwide should have access to blocked sites. The courts asked to be presented with a list of blocked websites during the second hearing of the case. Further hearings in this case are still pending (Warraich 2015).

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Court cases pertaining to cybercrimes have plummeted since the enactment of PECA. In March, Islamabad High Court (IHC) directed the government to remove blasphemous content from local social media platforms, even if it means blocking the social media entirely. IHC judge Justice Shaukat Aziz Sidiqqui went on to say that “blasphemers are no less than terrorists” and ordered the authorities to place names of all alleged blasphemers on the Exit Control List so they cannot escape criminal proceedings (Zehra 2017). In April, Lahore High Court (LHC) echoed the IHC verdict and directed the federal government to introduce necessary amendments to the Prevention of Electronic Crime Act (PECA) in order to empower the Pakistan Telecommunication Authority (PTA) to block information systems or social media websites if service providers do not remove blasphemous content on them. The verdict was handed down by Justice Muhammad Qasim Khan on a petition demanding action against people involved in uploading blasphemous material on Facebook and other social media websites. The court also directed the government to incorporate punishments in Section 295-B and 295-C of the Pakistan Penal Code, pertaining to blasphemy, in Section 9 of the PECA which lists punishments for offences relating to terrorism, proscribed organisations, etc. In response, the PTA Director General assured the court that if, within a period of two months, decisive steps were not taken by the relevant information system providers/administrators, “as a last and final resort, the authority would block all such sites at once without any space” (Sheikh 2017).

IMCEW

In 2010, a confidential document was acquired by the NGO Bytes for All (B4A), which laid out several policy guidelines on the control and monitoring of online content in Pakistan. This document was submitted to the LHC in the Facebook case and makes reference to “an existing inter-ministerial committee, which is currently monitoring internet content. However, the terms of reference and scope of work of this committee were never made public, and was suspected to be operating covertly” (Jajja 2013). The IMCEW was formed in 2006 through an executive order issued by the (then) prime minister. As per its constituting document, it was supposed to issue directions pertaining only to “blasphemous and pornographic” content. It was also required to formulate terms of reference for it to function. However, to date, there is no public record of the committee’s meetings, nor any information regarding procedures - if they were ever developed. And, as previous examples illustrate, the committee went well beyond the scope of issuing directions limited to blasphemous and pornographic material (Bolo Bhi 2014). Moreover, there has been very little transparency with regard to public communication on the roles and responsibilities of the IMCEW. In December 2014, Bolo Bhi challenged the constitutionality and legality of the IMCEW and the content regulating powers of the committee and the PTA in Islamabad High Court. Bolo Bhi was successful in obtaining a stay order against the IMCEW and PTA, restraining them from issuing directives and blocking websites pending judgment. Furthermore, the court instructed the Federation to answer as to where the IMCEW derived the authority to exercise such powers, given that they impacted the fundamental rights of citizens (Abbasi 2014). On March 13 2014, the MoITT issued a notification officially dissolving the Inter-Ministerial Committee for Evaluation of Websites with immediate effect. According to media reports,

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the task of content regulation was given to the PTA due to a surge in complaints asking for removal of “obnoxious content” (Khan 2015).

The International Clearing House Controversy Another case that illustrates the pattern and impact of a poorly developed policy making process is the International Clearing House controversy, which made evident the absence of any legal framework for managing this type of issue. According to Saad Saleem, Managing Director Nayatel and Vice President of ISPAK, the PTA had granted 16 companies LDI (Long Distance and International) licenses on the conditions that they provide a certain amount of investment, circuits, and voice switches. This policy started in 1996 with the state owned PTCL and NTC. Most of the other licenses were granted in the years 2004 and 2005 (Pakistan Telecommunication Authority 2015). This was done as per the Telecom Act of 1996 to ensure that the public had high quality service at an affordable rate through the creation of a competitive environment, says Saleem. In 2012, due to alleged lobbying by LDI operators, the MoITT issued a notification asking all LDI operators to suspend their interconnection circuit and announcing that all incoming international voice traffic would come through a single clearinghouse managed by PTCL. This was known as the International Clearing House (ICH). Under this model, all licensees would get a share of the revenue, by virtue of being licensees, without any effort; whereas the PTCL would get 50% of all revenue. The ICH was formed through the IT secretary at the time, Farooq Awan, who became chairman of PTA after issuing the directive forming the ICH. In an interview, Saleem said that Awan went immediately from the ministry to head the regulator and implement the ICH. Saleem alleged several government officials got kickbacks through this process. There were many problems with the ICH, Saleem said, including alleged embezzlements of $30 million. The LDIs were told to stop using their equipment, and as of 2015 are reported to earn between $50,000 and 400,000 just by holding a license. The high rates charged to those overseas calling Pakistan led to a significant reduction in voice traffic. According to estimates from ISPAK, after ICH was introduced, international voice traffic dropped to 400 million minutes per month from 2 billion minutes. Grey traffic simultaneously increased by up to 10 times. After petitions in the Sindh and Lahore High Courts and notices from the Competition Commission Pakistan (CCP), the Supreme Court finally directed PTA to overturn its ICH directives in February 2015 (Attaa 2015). This example represents an example of the ways that abuse of power can be enabled by a poor legislative framework.

Lack of Transparency and of Input With this backdrop of censorship and reactionary decision-making catering to the changing positions of the government, there is insufficient dialogue between the government and other stakeholders such as citizens, civil society organizations, and the IT industry. This leads to a lack of understanding of how and why decisions are being made. To illustrate this, the 2015 draft process of the Prevention of Electronic Crimes Bill (PECB) 2015 and the debate around this legislation are used as a case study. Next, we consider international examples of functional multi-stakeholder bodies, and the potential of Pakistan’s democratic institutions for holding successful multi-stakeholder consultations.

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Prevention of Electronic Crimes Bill (PECB) 2015 The first ever law governing electronic spaces was created as an ordinance by President Musharraf in 2007. It lapsed in 2009 and was withdrawn from the parliament by then Prime Minister Yousuf Raza Gilani amidst opposition from parliamentarians, the IT industry, and civil society. This was followed by a new draft bill prepared by the IT industry, represented by Pakistan Software Houses Association (P@SHA), the Internet Service Providers Association Pakistan (ISPAK), and a committee of parliamentarians. After consultations of this group with MoITT, the consensus draft was sent to the cabinet Division of the Government of Pakistan in 2014. In February 2015, a modified version of the stakeholder draft emerged and was reported to be under consideration for passage by the National Assembly Standing Committee on Information Technology and Telecom. Bolo Bhi obtained the draft and argued that while there was a clear need for a law relating to cybercrime, the current draft was not acceptable due to sweeping powers given to investigative and law-enforcement agencies. After facing opposition to the new draft, the standing committee constituted a subcommittee to revise the bill in light of the concerns (Khan 2015). After obtaining a leaked draft of the revised bill, Bolo Bhi initiated a campaign to raise awareness about the flaws of the bill and their potential impact on society, freedom of expression, and the IT industry. A Joint Action Committee (JAC) was formed in mid-April which was composed of human rights organizations, civil society organizations working on freedom of expression, IT industry organizations, and journalist unions (Aziz 2015). The main concerns of the JAC were the clauses relating to censorship provisions, cyber stalking, spamming, spoofing, data retention, powers authorized to manage intelligence, and cyber terrorism. Several public discussions were held in various cities that suggested changes to the bill, and on May 3, 2015, the Standing Committee on IT invited public input in writing on the bill (Junaidi 2015). On May 7, 2015, the JAC submitted consolidated comments on the bill (Joint Action Committee 2015). Despite the fact that IT Minister Anusha Rehman alleged that “some elements” were trying to sabotage the law, and cited legal loopholes to justify not calling for a public hearing, a hearing was finally called on short notice on May 22, 2015 to which JAC was invited (Shahid 2015). However, the JAC was not contacted by the subcommittee, and one member announced on a TV show on August 5, 2015 that the Standing Committee would pass the bill the next day. Amidst tough criticism from the opposition MNAs the passage of the bill was stalled until April 13, 2016, when it was passed by the National Assembly in the presence of only 9% of the total members (30 out of the total 342 members) (Abbasi 2016).

Raza Rabbani, Chairman of the Senate, had expressed reservations over the content as well as the non-inclusive drafting process of the PECB 2015. He had “asked the government to initiate fresh consultations while calling for the formation of a parliamentary committee to develop consensus” (Khan 2016). Despite this potential opposition, the bill was passed in August 2016.

This case is illustrative of a larger issue, the clear lack of transparency and public disclosure when it comes to policy making. Echoing the same sentiment, Senator Shahi Syed, the Chairman of the Standing Committee on Information Technology and Telecommunication, said that the government should have taken on board all stakeholders before introducing the

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bill, but unfortunately PECB 2016 was passed by the National Assembly in haste, without consulting any non-governmental stakeholders and experts. He said he will not pass the bill when it comes to the Senate (Express Tribune 2016).

Prevention of Electronic Crimes Act (PECA) 2016 Since the passing of the new Cyber Crime law, several agencies have been empowered to crackdown on individuals or organizations that are committing ‘cybercrimes.’ The Ministry of Interior has sought input from the Intelligence Agency (IB), ISI and the PTA and is in the process of determining their respective roles in terms of law enforcement (Gishkori 2016). Furthermore, under PECA, the FIA has been given a prime role in governing behavior in cyber space. The government has decided to allocate over Rs2 billion for the establishment of 10 cybercrime police stations and as many forensic laboratories in the country to empower the Federal Investigation Agency (FIA) to fight ‘cybercrime.’ The FIA is also looking for “funds to acquire the latest software and hardware technology for extraction of data and its analysis,” stated head of FIA’s Cyber Crime Wing in Lahore, Shahid Hassan (Dawn 2016). The impact that such an allotment of jurisdiction and capacity building varies at the individual level and that of the state. At an individual level, the act empowers internet users to seek justice for crimes committed against them such as data and identity theft. For instance, a female teacher in Karachi University was able to file a complaint against an assistant professor who harassed her online; the assistant professor was duly arrested by the FIA and is undergoing investigation (Afzal 2016). However, upon considering this law at the level of the state, it becomes problematic because it often functions to protect the “integrity of the state” or the “glory of Islam”. In essence, PECA has empowered various agencies to arbitrarily crack down on behavior that they deem inappropriate; often this results in restriction of criticism against the state or military, under the garb of blasphemy or obscenity. Political workers, journalists and social activists are facing the brunt of the new cybercrime laws, and there has been a surge in detention and arrests, often without FIRs and warrants. This includes Taha Siddiqui to whom the Federal Investigation Agency (FIA) issued a notice, asking him to appear before its counterterrorism wing on May 26, 2017 (Dawn 2017). The FIA is also currently carrying out an investigation against five bloggers, including Professor Salman Haider, after Hafiz Ahtasham Ahmed submitted an application with the FIA Station in Iqbal Town, stating that the FIA should act against the bloggers for allegedly spreading blasphemous content on social media under Section 295 C and Anti-Terrorism Act (The Nation 2017). Recently, Nasir Khanjan, a ‘social media sensation’ was arrested and taken from his home in Lower Dir, handcuffed and detained without an official explanation (Ullah, 2017). This incident is indicative of the loose processes that have come in to play with the new cybercrime law. Mechanisms to verify complaints of blasphemy are weak, forensic measures appear to be opaque, and there are no clauses that deal with repercussions for false accusers. Following the IHC’s ruling on blasphemous content on social media, the Federal Investigative Agency (FIA) released a public message asking people to keep an eye on ‘blasphemers’ on Facebook and other social networking sites and report them to the agency. The PTA has also sent out mass text messages asking people to report blasphemy online (Human Rights Watch, 2017). Legal analyst and lawyer Asad Jamal says “Fair trial in blasphemy cases in Pakistan is not possible under the present form of law and by giving people the right to monitor activities on social media for blasphemy, we are digging our own grave” (Zehra 2017).

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Multistakeholder Internet Governance The first largely accepted definition of internet governance was set at the World Summit on the Information Society in Tunis in November 2015, defined in Section 34 of the Tunis Agenda for the Information Society:

A working definition of Internet governance is the development and application by governments, the private sector and civil society, in their respective roles, of shared principles, norms, rules, decision-making procedures, and programmes that shape the evolution and use of the Internet. (World Summit on the Information Society, 2005)

Based on the discussion in this paper, it is evident that the main stakeholders in the internet policymaking landscape in Pakistan are the Ministry of IT & Telecom, the Pakistan Telecommunications Authority, the intelligence agency (ISI), IT-related businesses, educational institutions, organizations and activists within civil society, law enforcement agencies that implement the laws, and the general internet user. It is important that all the stakeholders be involved in the internet policymaking process, as has been reiterated by those interviewed for this report. In the process of engaging authorities on methods for improving the policy making process over the past number of years, those interviewed strongly recommended the involvement of civil society, ICT businesses, and internet policy experts at each stage of the policy making process. During the development of the cybercrime law, for example, policy makers have sought to move forward without engaging with and considering the views of civil society, who largely represent internet users in Pakistan. In the absence of a robust feedback loop, policymakers will be able to continue putting in place broad and reactionary measures with sparse legal basis. We discuss these recommendations, and the future of policy in Pakistan further in the conclusion of the report.

Conclusion To conclude, several lessons can be drawn from this study. This section draws from the views of policymakers as well experts in the technology industry on internet policy-making in Pakistan and what can be done to improve the policy-making process. It includes a number of recommendations to be considered to improve policy making for the internet in Pakistan.

1. An end to overly broad censorship

a. Many of those interviewed noted that blocking websites as a policy does npt work because blocking actually brings more attention to the offending website as people clamour to get access to it, defeating the purpose of the ban in the first place. Additionally, these bans have largely been considered failures in controlling the message of terrorists, while at the same time restricting access to information for regular citizens. According to Dr. Shireen Mazari, a Member of Parliament belonging to the Pakistan Tehreek-e-Insaf (PTI), the government can work to expose the source of propaganda it finds problematic, and effectively counter it rather than trying to hide it. Additionally, some argue that blanket bans are neither necessary nor proportionate responses to specific

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content hosted by individual users and that there is a need for legislation that addresses intermediary liability.

2. Avoiding the use of vague terms in policy and legislations:

a. Existing law in Pakistan that seeks to govern the usage of the internet uses vague language that makes it difficult to implement legislation, and leaves room for overly broad interpretation. For instance, terms like “glory of Islam” or “objectionable content” are subjective and yet they have been used to ban websites, stifle political speech, and even restrict cell phone signals, impacting the personal, economic, and cultural lives of Pakistani citizens in a multitude of ways. According to Jawwad Farid, the government should not be making moral decisions for citizens, as Pakistan is a large country with a population with varying backgrounds who are able to make value judgments on an individual level.

3. Content and URL filtration systems can acutely impact the private sector and retard ICT industry growth in the country due to its impact on the productivity of businesses. These losses have been documented in the past when the PTA has blocked domains and engaged in other reactionary policies (Farid 2015).

4. Apart from amending the cybercrime bill, data protection and privacy laws should also be created by the Parliament in order to secure data of both citizens and companies from undue surveillance, and to ensure privacy of citizens in line with Article 14 of the Pakistani Constitution that deals with the personal dignity.

5. Create and maintain an inclusive and transparent policy-making process:

a. The public should be involved in the policy-making processes related to the internet because they are the main stakeholders and hence their wishes should be well-represented in the policies that are made, according to Asif Bhatti, senior journalist. Further, Pakistan needs clear long-term policies for internet governance, which it currently lacks.

b. These policies need to be formulated in a transparent manner so that there are clear rationales given for decisions and a system for redress for those who feel that decisions were made illegally or in error.

6. Education and awareness:

a. Internet censorship and regulation of content in Pakistan is currently being done without an understanding of how technology works. As Jawwad Farid describes, censorship divides society unfairly between two groups: those who have the technology and know-how to circumvent the ban, and those who do not. This pertains to bans such as the blocking of YouTube for instance.

b. There is a need to introduce regular and detailed training for current and future members of the judiciary, members of parliament, law enforcement, and other bodies listed in this report. Legal experts and policymakers have been found to

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have inadequate understanding of technology and the impact of decisions they are making as they grapple with new and unique cases.

This study has demonstrated that policymakers need to start functioning in a consistent and transparent manner, and avoid taking steps that harm ICT-related businesses, education, and the general internet usage experience in the country.

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