Does the CSA offer anything substantially different?

The Digital Security Act 2018 (DSA) is set to be replaced with a new (and arguably, different) statute— the Cyber Security Act 2023 (CSA). This write-up attempts to find out whether the most controversial aspects of the DSA have been adequately addressed by the proposed bill.

Firstly, section 8 of the DSA says that the Director General may request BTRC to remove or block data that creates a threat to digital security, without providing a clear definition of what constitutes a threat. This vagueness is unfortunately present in section 8(1) of the proposed bill as well.

Secondly, both the DSA and the CSA have a controversial approach towards the right to privacy. On one hand, both of them sanction illegal access to computers, digital devices, or computer systems under section 18 to protect this right. On the other hand, they also provide the authority with unrestricted powers under chapter VII for investigative purposes. In this light, it is important to mention that article 43 of the Constitution of Bangladesh has guaranteed the right to privacy of correspondence and other means of communication, subject to 'reasonable restrictions imposed by law.' Article 17 of the International Covenant on Civil and Political Rights (ICCPR) too enunciates the right and does also mention reasonable restrictions. Whether the restrictions as envisaged by the DSA and CSA indeed are 'reasonable' is something to ponder.

Thirdly, section 29 of the DSA criminalises online defamation and imposes a substantially different punishment from that of the Penal Code 1860, raising a vital question of jurisprudence— whether the same act can be differently criminalised by two different laws on the basis of its commission on two different platforms. The CSA also similarly criminalises the act under section 29 with different punishment.

Lastly, experts criticised the DSA for a long time for having adverse effects on freedom of expression. This right is guaranteed by both article 39 of our constitution and article 19 of the ICCPR. For instance, section 21 of the DSA and CSA provides punishment for making any kind of propaganda or campaign against the liberation war, among others; section 28 penalises hurting of religious sentiments; section 25 penalises tarnishing of the image and honour of the state. All of these may rightfully be considered by some as fair grounds for punishment. However, on the flip side of it, the wide scope of all these provisions can potentially create scopes for misinterpretation and abuse.

Therefore, it seems like some of the controversial provisions of the DSA have been retained in the CSA. While several offences which were non-bailable before, have been made bailable— and punishment for several offences have been reduced too— we cannot really say that the CSA does a job better than that done by the DSA.