The Digital Security Act is currently one of the most widely criticized laws in the country mostly because of its severe restrictions on the freedom of the press, freedom of speech, and citizens’ freedom to express themselves in general.
Despite receiving widespread criticism, notably from the press and civil society, the Parliament went ahead and enacted the Digital Security Act 2018 on September 18, 2018. The act’s sections 8, 21, 25, 28, 29, 31, 32, and 43, in particular, have been questioned by numerous journalist unions, human rights bodies, and non-governmental organizations (NGOs). Even though our lawmakers and politicians have agreed that some of the objections were reasonable and have vowed to rectify them, the legislation was passed by voice vote in parliament with next to no changes.
According to Article 39 of our Constitution, every citizen's right to freedom of speech and expression alongside the freedom of the press shall be guaranteed. The Digital Security Act is then a roadblock to protecting those very freedoms. Journalists and human rights advocates have voiced concerns over section 32 the most, which was among the most heavily criticized provisions.
According to section 32, anyone who illegally enters government, semi-government, or autonomous organizations and surreptitiously captures any data with any electronic device commits espionage -- which is punishable with 14 years in prison, a fine of Tk25 lakh, or both. The law was later shortened and altered under the Official Secrets Act of 1923, but the penalties remained in force. Regrettably, the Official Secrets Act is a comprehensive colonial regulatory law meant to shield the British administration from all sorts of accountability, and comparable legislation -- as implemented into the Digital Security Act -- puts the state of our democracy into question.
Moreover, many sections of the Digital Security Act 2018 are incompatible with national and international human rights principles, ethics, and standards and contain ambiguities that can be exploited for potential harassment -- to that end, sections 17 (illegal access to critical information infrastructure), 18 (unlawful access to computers, digital devices, computer systems, etc.), 19 (damage to computers, computer systems, etc.), 20 (Changing computer source code offenses), 33 (illegal possession and transfer of data), and 34 (hacking-related offenses) are all questionable.
First, these sections make no distinction between ethical hacking and unethical hacking. Second, our cybercrime laws identify many of these crimes already, but not all of them are stated clearly, and the law defines many of the offenses narrowly and does not effectively spell out what constitutes criminal intent. Finally, many of the offenses listed under the Digital Security Act have already been criminalized under the Information and Communication Technology Act 2006. As a result, numerous provisions of the Digital Security Act can be exploited to treat ordinary internet users as criminals.
In addition, section 57 of the Information and Communication Technology Act 2006, was declared invalid and altered after journalists and the general public were harassed due to the law's misapplication. Similarly, just as the ambiguous sections of the Digital Security Act free the administration of accountability, they can also be used to harass journalists and the general public with impunity. Unfortunately, the concerns raised by section 57 of the Information Technology Act have been preserved mainly in section 19 of the new Digital Security Act by increasing penalties.
Also Read
- What is Digital Security Act?
- Digital content regulation: Tech giants may limit user-experience in Bangladesh
Additionally, Article 28 (1) of this act states that, if a person voluntarily publishes in a website or any other electronic format to hurt the religious feelings of a person, they are liable to imprisonment for a term not exceeding five years or a fine of not more than Tk10 lakh, or both. Any law that makes it a crime to hurt “feelings” is entirely up for abuse, as seen in the Information Communication Technology Act, 2006.
Essentially, what hurts someone's feelings depends on the individual reading that information, and it is entirely possible for someone to weaponize that. Therefore, in the landmark case in India of Shreya Singhal vs the Union of India, on March 24, 2015, section 66 (a) of India’s own ICT Act 2000 was pronounced “unconstitutional” since it questioned Article 19 of the Indian Constitution's provision of freedom of speech.
One of the more frightening prospects of the Digital Security Act is how much unfettered power it gives to our law enforcement, to the extent that a journalist can only be arrested just for doing their job as it gives police officers the authority to make arrests without a warrant. In the vast majority of cases, these are not bailable.
The terms "freedom of expression" and "freedom of speech" do not refer only to constitutional or legal notions. There can be no effective and vigorous political action without freedom of thought, conscience, and expression. Various studies and international events testify that suppressing the people’s opinions, conscience, or speech fosters political intolerance and violence. Freedom of expression encompasses not just the right to speak but also the right to express oneself in various ways.
Over and above, the right to freedom of speech is guaranteed under Article 19 of the Universal Declaration of Human Rights. Freedom of expression is also enshrined under Article 19 of the International Covenant on Civil and Political Rights (ICCPR) -- an international charter that has been signed and ratified by Bangladesh. As a result, Bangladesh has an international and national obligation to follow the rules of international human rights. Of course, our Constitution itself specifies that no law can be made that is incompatible with these fundamental rights and that the state must repeal any laws that stand in contrast to these basic freedoms.
To conclude, in the interest of freedom of speech and expression, our lawmakers should reassess these controversial sections of the Digital Security Act and renew them to conform to the Constitution.
Apurba Mogumder is a freelance contributor.
