The parliament has finally passed the Cyber Security Act 2023, about a week after the bill was sent to the parliamentary committee for examination. What that "examination" had taken into consideration is hard to tell, as even when the first draft was published in early August, it was clear how little had changed from the controversial Digital Security Act 2018.
The CSA draft was proposed as a replacement for DSA, with Law Minister Anisul Huq saying once the new act is approved in parliament, all the existing DSA cases will automatically go under the new law.
It immediately spurred protests and calls for changes from national and international human rights organisations and the civil society. Later in August, a slightly amended draft was proposed, that went on to become the approved CSA draft by the Cabinet.
Why the outrage?
Human rights organisation Amnesty International said Section 25 (publication of false or offensive information), Section 29 (publication of defamatory information) and Section 31 (punishment for worsening law and order situation) of the Digital Security Act remain intact in the draft Cyber Security Act. As Article 25 does not contain any explanation regarding 'damaging the image and reputation of the State,' there is a risk of its misuse.
The objections and concerns of almost all quarters, including journalists and the United Nations, have not been addressed in the bill, Gonoforum lawmaker Mukabbir Khan said in parliament, adding that at least nine DSA sections were severely hampering the freedom of expression and independent journalism.
'The bill has amended seven of the nine sections that stipulate punishment and bail. However, the definition of offences is not clarified. It remains the same. No changes have been made in the rest two sections although the UN Human Rights Office called for the repeal of the two sections," said Mukabbir.
Mukabbir added, "I can easily imagine how much this law is a threat to free journalism."
This law is one of the most effective tools to suppress dissent, criticism and free thoughts, he said.
Another lawmaker, Pir Fazlur Rahman from the opposition Jatiya Party, said that the DSA was controversial to everyone. The Cyber Security Act also retains the same DSA provisions with some changes though, but this law too will stand in the way of free journalism and freedom of expression, he said.
Section 42 of the bill still empowers police officers to search or arrest anyone without a warrant or special protection for journalists.
Not only has the CSA been described as old wine in a new bottle, but the passing of the bill in the parliament is a reason for grave concern. It continues to put people at risk, continues to infringe on the rights of freedom and expression, and continues to give the state the scope to harass, intimidate and charge journalists.
Since 2018, some 1,150 cases have been filed under the DSA and 115 of these were lodged against journalists. Some 229 journalists were accused in these cases. Article-19, a UK-based international agency working on freedom of expression, came up with these figures analysing different media reports published from January 2020 to March 2023.
The US State Department in a press briefing in April this year called the DSA "one of the world's most draconian laws for journalists."
Moreover, the passed bill added a new section on the offence and punishment for filing false cases and complaints under any section of this Act with intent to cause injury to another person, without knowing just or lawful cause for filing a case.
Meanwhile, Section 42 of the bill empowers the police to search and arrest without a warrant. This section replaced the sub-inspector level officer with the power to search and arrest without a warrant with the officer of the police inspector (inspector) level.
Section 8 of the Act allows law enforcement agencies to remove and block data from digital media. This section states that if law enforcement agencies "subject to data analysis, have reason to believe" that any data published or disseminated through digital or electronic media may affect the integrity, economic activity, security, defence, and religious values of the country or any part of the country or disturb public order or promote racial hatred, the law enforcement agencies may request BTRC through the director general to remove or block such data."
Primarily, the new Act says defamation cases will be met with only a fine instead of jail time. The fine, however, can go as high as Tk25 lakh. The amount will be up to the court.
Moreover, the accused will end up in jail if they fail to pay the fine. But that will be limited to only three to six months, depending on the fine.
In the DSA, repeated offences would have led to more punishment. But under the reformed law, the punishment for the second offence will remain the same as the first one.
And many non-bailable offences under the DSA will become bailable under the Cyber Security Act 2023. For instance, Section 21 and Section 30 were made bailable. In total, four sections remain non-bailable in the approved CSA draft.
A new section on hacking had been added to the CSA. Section 33 of the DSA, focusing on punishment for holding and transferring data information illegally, will be scrapped, and a section on hacking offences will be introduced in the new law.
However, going through the "Authentic English Text of the Act" available on the BGD e-GOV CIRT website, an earlier TBS report found the same hacking offences in Section 34 of DSA with similar punishments.
This is by far the one with the most punishment as the maximum cap for prison time under hacking offences will be set at 14 years or a maximum fine of Tk1 crore or both.
Under Section 33 of DSA, the jail sentence was up to seven years or up to Tk15 lakh fine, or both.
The authorities have highlighted the reduced punishment in the CSA. For instance, Section 21 — punishment for making any kind of propaganda or campaign against liberation war, the spirit of the Liberation War, the Father of the Nation, the national anthem or the national flag — earlier carried the provision of imprisonment for a term not exceeding 10 years, or a fine not exceeding Tk1 crore or both.
For a second offence, it was imprisonment for life or a fine of Tk3 crore, or both.
In the new law, the maximum jail time for the violation of Section 21 will be seven years.
Ignoring the call for change
Once the proposed CSA draft was published, several organisations, members of civil society and international human rights organisations demanded reviews and amendments.
On 9 August, the CSA draft was published on the website of the Information and Communication Technology (ICT) Department, seeking the views of stakeholders with a two-week deadline. This time period was unrealistic, according to the civil rights platform Nagorik.
Another platform, Forum for Freedom of Expression Bangladesh, said that 11 sections of the proposed act are inconsistent with the constitution, fundamental human rights and the rule of law.
Before the CSA draft was approved by the cabinet, reportedly 500-900 recommendations were submitted to the ICT ministry, according to Abu Sayed Md Kamruzzaman, director general of the Digital Security Agency.
"None of the human rights organisations I spoke to today sent any recommendations. The recommendations received are from the government loyalists," Saleem Samad, general secretary at Forum for Freedom of Expression Bangladesh, told TBS in an earlier interview.
He further explained how the recommendations received in August by the said ministry are basically praises. "But [the approved CSA draft] still remains a threat to the freedom of expression."
"The call for feedback on the CSA draft was a mere tick box exercise if substantial inputs by civil society were not taken into consideration. The CSA, like the DSA, would empower the authorities to police permissible expression online and can be used to intimidate, harass and arbitrarily arrest journalists and human rights defenders, stifle peaceful dissent and silence critical opinions. Laws should be centred around protecting human rights, not clamping down on criticism," Nadia Rahman, Amnesty International's interim deputy regional director for South Asia, said in a statement.
On Tuesday (5 September), there was a meeting of the parliamentary Standing Committee on Post, Telecommunication, and Information Technology.
Representatives of some journalist organisations joined the meeting, which was also attended by Law Minister Ansul Huq, on special invitation.
The committee accepted a few amendment proposals made by journalists while ignoring the most pressing one: Section 42, which gives police the power to arrest without a warrant, is not much different from Section 43 of the DSA.
It is worth noting that before the DSA was passed in 2018, journalists were also called in to voice their concerns. However, the approved bill in the parliament did not reflect those concerns.
Lest we forget
In case we forget, what vague language and unclear provisions such as that in the DSA can result in.
Author and social activist Mushtaq Ahmed died in a Bangladeshi jail on 25 February 2021, after being detained and allegedly tortured for social media posts critical of the government.
On 8 November 2021, a tribunal framed charges against journalist Shafiqul Islam Kajol for circulating "objectionable" information about ruling party leaders.
Jagannath University's political science student Khadijatul Kubra completed one year in prison in August this year. She was arrested under the Digital Security Act (DSA) for hosting a Facebook webinar where a guest speaker made contentious remarks. She was 17 years old at the time.
In October 2020, police filed two cases against Khadija under the DSA.
These are only three needles from a haystack of cases.