Cyber Security Act and the fear of history repeating itself
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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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.
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?
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.
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