Think Awami League will finally bring reforms in the Digital Security Act (DSA) to restore public trust in the democratic process in the lead-up to the general election? Think again.

Recently, two ministers, within the space of two weeks, talked in rather glowing terms about the law. On June 15, the foreign minister, perhaps bolstered by the "satisfaction" expressed by a top US official about the "tremendous progress" achieved in reducing extrajudicial killings in Bangladesh, categorically said, "The DSA is a very good law."

Then, on January 28, the law minister underscored its importance again, saying it was needed in the "present context", rejecting complaints that the law was being abused to curtail free speech and press freedom. Rather than initiate the process of amending or rectifying the law, as promised by key members of the ruling class in the past, the government appears to be in no hurry to do so. On the contrary, it wants us to accept DSA as it is, identify with it, and maybe develop Stockholm syndrome if even it doesn't want to appear as abusive!

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Is the Data Protection Act an extension of DSA?

While the manner in which the DSA is being defended – short on logic, long on rhetoric – is nothing new, the timing of the defence, in an election year, bears significance. It signals that Awami League is unwilling to lose its prized possession at this critical juncture. At the very least, it will try to hold off any amendment as long as possible.

The law, after all, has been tremendously beneficial. It has been like a political bonfire on which critics and rivals could be roasted, without a bitter aftertaste. As a recent review of the four years of DSA has shown, on an average, one case has been filed every week by ruling party activists during this period. It proves – if any proof were needed – that the DSA has been every bit the tool of repression that it was feared all along to be.

There are more insights to be drawn from this review based on data collected by the Centre for Governance Studies (CGS), which logged cases filed under the DSA between October 2018 and August 2022. Overall, it recorded 1,109 cases, of which around 60 percent were over Facebook activities. Predictably, politicians and journalists formed the majority of those accused. Politicians – or ruling party affiliates, to be more specific – were also the largest group of people prosecuting journalists, mostly on charges of defamation.

However, those complainants were not the "victims" of said defamation, as they were filing cases on behalf of someone else. A point to be noted in this regard is that as many as 140 cases – mind the number – were filed for allegedly defaming Prime Minister Sheikh Hasina, who recently invited the opposition to "point out my failures." One wonders how encouraged the latter will feel given how previous attempts at criticism often ended up.

What's equally alarming, of the 2,889 individuals accused in all cases, only 52 – or two percent – saw their cases disposed of by the court. This means that the vast majority of the accused have been kept hanging. Also, at least 725 of the cases being investigated by police are from before 2022 – which indicates a clear violation of the legal time limit given to wrap up investigations.

This, as well as the extremely cumbersome and unfriendly justice process, can expose the accused to pre-trial horrors – including prolonged stay in police custody, struggle to secure bail, prolonged uncertainty over their fate, etc. This is harassment, plain and simple, with one out of every three people accused being arrested.

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Why are our digital laws so troublesome?

All this is just for exercising their constitutionally guaranteed freedom of speech. This is where the "beauty" of repressive laws lies, which perhaps explains why the ruling party wouldn't let go of the DSA yet. It can be defended without looking monstrous on paper – because, as the law minister claimed, "misuse of any law is not unusual," right? It offers an illusion of justice, pinning any "misuse" on the system. It also doesn't draw as much scrutiny as physical violence or extralegal excesses – recall the US sanctions on Rab imposed in December 2021 – but still has the same intimidating effect.

It may be hard to believe now but before the trauma of DSA began to unfold fully, there was actually an expectation that Awami League, as the party accused of introducing the law as a tool of political repression, would err on the side of restraint – rather than of excess – when using it, even if merely to prove the critics wrong. It was a fleeting hope of a people desperate to turn the page on the infamous Section 57. But the DSA was not meant to be just a replacement. It was brought on to serve a purpose. And serve it did.

Unfortunately, Bangladesh seems to be increasingly turning into ground zero for the experiment of "one nation, one version," with one law to rule them all. Everyone must speak the same, think the same, see the same. Hence the attempt to Right-wash school textbooks and curricula. Hence the attempt to monopolise historic narratives. Hence the ban on dissident publishers from participating in Ekushey Boi Mela. Hence the shrinking of civic and political spaces under various pretexts. The wolves are always at the door. Any challenge to the status quo or failure to accommodate it will be frowned upon and punished.

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World Press Freedom Day: Speak now or forever hold your tongue

But in such a culture of fear, even prolonged silence can be deceptive. It can be prolonged calm before the storm. The authorities would be wise to remember that, if played wrong, the Stockholm syndrome may give way to the Streisand effect. Silencing tactics like the DSA can only take them so far. After four years, there should be enough sobriety on the part of all concerned to understand that this law, regardless of whatever legal vacuum it had filled, has since been nothing but a tool of repression, and it's too late to change public opinion about it now.

Bangladesh can and should be able to contain multitudes of opinions. This is the only way forward.

Badiuzzaman Bay is assistant editor at The Daily Star.

The draft Cyber Security Act (CSA), 2023, which is supposed to replace the controversial Digital Security Act (DSA), 2018, has been termed by many as "old wine in a new bottle." A quick review of the draft law, made available on the website of the Digital Security Agency, suggests that this law can in fact be called "old wine in the same old bottle" with slightly reduced alcohol and a new label!

Let me explain. The nine sections of the DSA identified as a threat to independent journalism and freedom of expression are sections 8, 21, 25, 28, 29, 31, 32, 43 and 53. The draft CSA contains all these sections, through which the new law criminalises certain kinds of information and news publication and expression of certain thoughts and opinions in the same way that the DSA does. The definitions of crimes under this law are also as vague as ever. The only difference is that some offences that are non-bailable under the DSA have been made bailable, punishments have been reduced for some offences, and the provision of additional punishment for repeated offences has been omitted. Out of the nine sections that curb freedom of expression, seven sections have been amended in terms of punishment and bail, while no changes have been made in two sections.

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Cyber Security Act will not stop criminalising freedom of expression

For example: Section 8 of the DSA, which empowered the director-general of Digital Security Agency and law enforcement agencies to remove or block digital content through Bangladesh Telecommunication Regulatory Commission (BTRC), has been retained in the CSA. Similarly, police's authority to search and arrest without warrant under Section 43 of the DSA has been kept intact under Section 42 of the CSA.

There is a 10-year jail sentence under Section 21 of DSA for propaganda against the spirit of the Liberation War, father of the nation, national anthem or national flag, which has been reduced to seven years in the CSA. Punishment for "hurting" religious sentiments under Section 28 has been reduced from five years to two years and the offence has become bailable.

Five years' jail term for defamation under Section 29 of DSA has been replaced with a maximum fine of Tk 25 lakh. However, according to the law minister, if the accused fails to pay the fine, he or she will face a jail sentence of three to six months. Section 31 of CSA proposes a five-year imprisonment instead of seven years for destroying communal harmony. Under Section 32, the punishment for breaching official secrets has been reduced from 14 years to seven years. While the proposed CSA will replace the DSA, the proceedings and trials of all existing cases under the DSA will continue.

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We don’t want more people in jail for their posts on the internet

In this situation, how will it be assured that the experience of repealing Section 57 of the Information and Communication Technology (ICT) Act, 2006 will not be repeated? In the face of criticism, the government repealed Section 57 in 2018, but all its provisions were included in four separate sections (25, 28, 29 and 31) of the DSA with reduced punishment. Punishment under Section 57 was 14 years maximum, which was reduced to 3-10 years under different sections of the DSA. At that time, Law Minister Anisul Huq had reassured us that Section 57 would not be retained in the DSA.

The reality is that, despite this reassurance from the law minister, cases under the DSA increased significantly. According to the Centre for Governance Studies (CGS), from 2012 to June 2017, there were 1,417 cases under the ICT Act, of which 65 percent were under Section 57. However, within just two years of DSA coming into effect, the number of cases under this law exceeded 1,000, most of which were filed under sections 25 and 29, mainly for defamation. Before the DSA, such cases were filed under Section 57 of the ICT Act. Till December 31, 2022, the total number of cases filed under the DSA stood at 7,664, of which 5,512 are currently under trial.

As harassment and oppression begins with the filing of cases, reducing the punishment in the CSA or making certain offences bailable will not solve the core problem. A fundamental flaw of the DSA was criminalising defamation, spreading false information, hurting religious sentiments, etc – acts that are not criminalised in any civilised democratic country. If any article or statement seems objectionable to someone, it is dealt with by counter-argument, not by putting the writer or orator in jail.

Like the previous laws, the CSA also may not reduce the number of lawsuits as any person can sue anybody for defamation, spreading false information, hurting religious sentiments, etc. Harassment and oppression under the DSA began before trial as the accused would have to spend day after day in jail before trial. So, what benefit will the CSA bring an accused charged under this law? Even if the offence is bailable, will there be any guarantee of getting bail? In the draft CSA, six sections are still non-bailable. If any non-bailable section is added at the time of filing the case, the accused will have to suffer in jail.

Writer Mushtaq Ahmed, arrested in May 2020 on charges of spreading rumours and carrying out anti-government activities, was denied bail six times. He died in jail after nine months of being locked up. Khadijatul Kubra, a student of Jagannath University who was arrested in August 2022 on charge of spreading anti-government statements online and tarnishing the country's image, has been in jail for almost a year, also without any trial. Although the High Court granted her bail, it was stayed in the Supreme Court, and her bail hearing has been adjourned for four months. What benefit will the CSA bring detainees like Khadija?

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A repackaged DSA brings renewed worries

As harassment and oppression begins with the filing of cases, reducing the punishment in the CSA or making certain offences bailable will not solve the core problem. A fundamental flaw of the DSA was criminalising defamation, spreading false information, hurting religious sentiments, etc – acts that are not criminalised in any civilised democratic country. If any article or statement seems objectionable to someone, it is dealt with by counter-argument, not by putting the writer or orator in jail.

No one would have any objection if a cybersecurity law was enacted to deal with cybercrimes without infringing freedom of speech, such as illegal access and hacking of computers and digital devices, digital or electronic fraud and deception, theft of personal information, etc.

Therefore, the DSA should be completely repealed and a new law should be enacted only to combat specifically defined cybercrimes. The sections that threaten independent journalism and people's freedom of expression should not be included in the new law. Also, all pending cases under the DSA should be quashed and the accused suffering in jail should be released unconditionally.

Kallol Mustafa is an engineer and writer who focuses on power, energy, environment and development economics.