'Toothless' regulator PTA taking bytes out of cyberspace? -Pakistan Press Foundation (PPF)

Paksitan Press Foundtion

‘Toothless’ regulator PTA taking bytes out of cyberspace?

Pakistan Press Foundation

ISLAMABAD: If the Pakistan Telecommunication Authority (PTA) is known for anything, it is Internet content management. For around eight years, the PTA has been blocking content on the directives of the now-defunct Inter-Ministerial Committee for the Evaluation of Websites (IMCEW). Formed in August 2006, the committee was dissolved by the Islamabad High Court after a digital rights group argued that the committee was unconstitutional. Following its disbanding, the power to regulate internet content was transferred to PTA, whose authority to do so is contentious at best.

Since 2006, the PTA has blocked websites containing pornographic and/or blasphemous content, as well as blogs and social media websites such as Facebook and Twitter. Its actions have led to criticism and ridicule from Pakistani citizens, but its authority to block access to certain web pages has gone largely unquestioned. Farieha Aziz, who heads Bolo Bhi – the NGO that took IMCEW to court – said this was because everybody assumed that it was the PTA’s job. “But on paper, it was the IMCEW taking each decision.” The IMCEW would pass directives to PTA, which would instruct ISPs to block content.

Legal lacuna In fact, the Pakistan Telecommunication (Reorganisation) Act 1996 – under which the PTA was formed and from which it derives its authority – does not expressly empower the authority to regulate, manage or block Internet content.

The Ministry of Information Technology’s (MoIT) Telecommunications Policy 2015 clearly mentions content management as a power of the PTA. Section 9.8.2 states, “PTA is required to manage content over the Internet through integrated licences or Internet service providers (ISPs) as per their licensing conditions under the act.” After dissolution of inter-ministerial committee, PTA took over content regulation despite not being empowered to do so under the law

But when asked what part of the PTA act allowed the authority to manage content, MoIT Member (Legal) Ameena Sohail stated that the power to manage whatever flows through a telecommunication system is an area partly addressed under Section 31(1)(d) of the Pakistan Telecommunication (Reorganisation) Act 1996, where it is mentioned as an offence. “If someone is unauthorisedly (sic) engaged in transmission of an intelligence which includes information etc. as defined in the telecom act as well, which he knows or has reason to believe to be false, fabricated, indecent or obscene,” she said.

She also added that this provision was “over and above” the general powers and functions of the authority, granted under sections four and five of the PTA act. When asked about the inclusion of content management powers in the Prevention of Electronic Crimes Bill (PECB) 2015, Ms Sohail said the bill was meant to fully empower the PTA to carry out its regulatory functions.

Waqqas Mir, a lawyer who specialises in constitutional law, told Dawn the authority usually exercises its powers through policy directives under section 8 of the PTA act, or by making it a condition in the licence granted by the authority. But since the power given to an authority cannot be expanded by secondary legislation – such as the formation of rules – anything that is not given in the act cannot be incorporated by the PTA.

“Since there is no express stipulation in the law, every time the government tries to come up with a policy directive about content management, it’s illegal, in my opinion,” he said. “Section 31(1)(d) [deals with] an offence. It’s not a power to tell people what to run or what not to run, it’s the power to prosecute somebody for something that they’ve already done,” he said, contradicting the stance of the MoIT member.

Ambiguous laws This lack of clarity leads to conflicting accounts. For example, while government officials insist that licences issued by PTA bind ISPs and other companies to regulate content under the laws of the land, telecom professionals aren’t quite convinced. A marketing professional from a leading telecom company claimed that licences do not contain explicit provisions regarding the requirement of content management by ISPs. He said the process of blocking content was a ‘rudimentary’ one. “The PTA identifies websites that they want blocked… Those IPs are shared with different ISPs and telcos and voila!” When asked how many websites have been blocked on PTA orders, he could not offer an exact figure. “I think it would run in the thousands or hundreds of thousands.”

Admitting that licensees were aware the PTA did not, on paper, have the authority to block content through them, the telecom official pointed out that “because they are the regulator, there is very little chance ISPs can say no to them. In addition, their requests are usually underlined as either issues of morality or related to the state security. Hence, we are bound to comply.” Wahajus Siraj, convenor of the Internet Service Providers Association of Pakistan (ISPak), said the legality of content management under the current PTA act was a matter of different interpretations. “Some experts say they can, some say they can’t. I think there are already a few cases in the high courts, but a definitive outcome is yet to emerge,” he said.

“However, there have been isolated incidences where successive governments have blocked voices of political dissent,” he conceded, adding that in case service providers wanted to defy a PTA order, they could go to court. Nighat Dad, an activist with the Digital Rights Foundation, argued that the PTA act gave it sweeping powers to manage content and conduct surveillance, through sections 31 and 54 of the act, without much in the way of oversight.

“In developed countries there are oversight committees that look into what [is being banned]. There isn’t an appeals system for addressing grievances, so, if someone’s website or online portal or Facebook page has been blocked, where do they turn?”

Life after IMCEW But Bolo Bhi’s celebrations have been short-lived. Soon after the court granted them a stay, “an official from MoIT went to court, arguing that terrorist material needed to be blocked online.” The court then modified its order allowing PTA to block content provided they gave a justification to the court. Bolo Bhi has also filed a petition questioning the PTA’s power to manage Internet content.

“An executive directive – something that the government institutes as a policy – is not necessarily a law. A law is something parliament passes: a public authority can only be endowed with certain functions, especially where fundamental rights are concerned, with parliament’s assent. The government can’t do it unilaterally,” she maintained. And even though the IMCEW was dissolved, the websites blocked by the body since 2006 are still inaccessible today.

When asked how many websites had been blocked on the PTA’s directives over the year following the committee’s dissolution, Mr Siraj said, “One order that came had around 400,000 sites, but those were all pornographic websites that were to be blocked on Supreme Court orders. Other than this, PTA blocked under 100 sites this year, most of which were said to be blasphemous or anti-Pakistan.” PTA Director Ismail Shah was asked to comment on the matter, but his office referred Dawn to the authority’s public relations (PR) department. The assistant PR director was emailed a set of detailed queries on May 17, 2016, but despite repeated follow-ups, no response was received until the filing of this report.