Constitutionality and Viability of the Digital Security Act 2018

1. z
Constitutionality and
Viability of the Digital
SecurityAct 2018
Nilima Tariq
ID:16323501

2. z
Purpose of theResearch
 Understand the controversies
 Examine constitutional rights affected by the Act &
justification of the controversies
 Evaluate constitutionality of the Act
 Evaluate viability of the Act based on:
- international guidelines on cybersecurity
- universally acknowledged principles for governance

3. z
Chapters in the Monograph
 Chapter-1: An overview of
Cybersecurity & the Digital
Security Act 2018
 Chapter-2: Controversies &
consequences of the
Digital Security Act 2018
 Chapter-3: Constitutionality
of the Digital Security Act
 Chapter-4: Analysis of
viability of the Digital
Security Act 2018

4. z
Cybersecurity & its importance in
Bangladesh
• Government’s priority of digitization – Digital
Bangladesh manifesto – leading to rapid
growth in use of internet and IT in all sectors
• Potential cyberthreats within and beyond
national borders:
- Bangladesh Bank cyber heist
in February 2016
- growing incidents of cyberbullying, fake
news, hacking of important websites,
content piracy, etc.
• Increased complexity of cybercrimes and
cyber breaches including extortion, privacy
violations and so on.

5. z
Emergence of the Digital Security Act 2018
ICT Act 2006
National Cybersecurity
Strategy 2014
Controversies BGD e-GOV CIRT
(Computer Incident Response Team)
BB heist incident
Necessity of a legal framework to keep pace with global development and need for IT governance

6. z
Main Contentions of the Controversies
• Broadly defined offences exposed to abuses by authorities with wide
discretionary powers
• Harsh sentencing disproportionate to the crimes/offences
• Intimidates public and press from free speech, obstructing constructive
criticism
• Provision for arrest without warrant, posing threats of undue harassment
• Contravenes multiple civil rights guaranteed by Constitution and
universally recognized principles of democracy

7. z
Practical Applications of the Act
Positive Outcomes
 Arrests for sale of fake question
papers to medical college admission
seekers using fake IDs of Facebook
 Potential positive outcomes:
remedies for illegal access to
private & unauthorized
information/data, digital
forgery/fraud, malware, service
disruption, illegal transactions,
hacking.
Negative/Questionable
Outcomes
 Barrister Mainul Hossain – defamation
charges under DSA added to list of
previous accusations
 Arrests of journalists, FORUM-ASIA
member, reporter for publishing a report
on the looting of relief materials, and for
mocking political figures
 Potential negative outcomes: severe
aggravation of justice in many ways
including imposition of penalty for
raising voice against corruption.

8. z
Constitutionality of the Act:Sections
• Sections 21 - propaganda or campaign against liberation war, Cognition of liberation war,
Father of the nation, National Anthem or National Flag
- Definitions for these crimes not specific, hence possibility of distortion to fit agenda
and result in harassment even if there is no final conviction.
- Up to life imprisonment and/or 3 crore taka fine, if convicted
• Section 25 - Publishing, sending of offensive, false or fear inducing data-information, etc. &
• Section 28 - Publication, Broadcast, etc. of such information in any website or in any
electronic format that hampers the religious sentiment or values
- Definitions for these crimes not specific, hence obstructing freedom of expression of
thoughts and conscience and press.
• Section 29 - To publish, broadcast, etc., defamation information
- Incrimination may be justified but may be subject to violation if applied with malicious
intent, and punishment for offense is more than twice the prescribed term in Penal Code.

9. z
Constitutionality of the Act:Sections
• Section 31 - Deterioration of Act-order, etc. and Punishment
- Extremely generalized definition of offence:
“intentionally publish or broadcast any kind of file in any website or digital format
which will create hostility, hatred or adversity among people or destroy any communal
harmony or create unrest or disorder or deteriorates or threatens to deteriorate the
law and order”
- Sentencing of up to 5/7 years, intimidating the public and press from openly holding an
opinion
• Section 32 - Breaching Government Secret Offence and Punishment
- creates hostile environment for any journalists attempting to investigate any
crimes, corruption or corporate misappropriation, threatening their life, liberty
and career.

10. z
Constitutionality of the Act:Sections apart from Chapter
Six
• Sections 43 - Police can search, seize and arrest anyone out of mere assumption of
committing any offence under the Act while taking any arbitrary actions if interrupted
with no accountability whatsoever.
• Section 53 - Unlimited time to continue trial while the detainee is confined in jail.
When taken in conjunction with Section 43, it can cause gross infringement of basic
human rights and unpredictable consequences resulting in loss of confidence in the
justice system. A detainee, arrested out of mere suspicion or accusations of
committing an offence under this Act may be kept in indefinite confinement.
• Section 8 - Government agencies and even law enforcement agencies given power
to compel BTRC to remove data from the face of the internet, grossly hampering
access to information.

11. z
Constitutionality of the Act:Articles Violated
• 32. Protection of right to life and personal liberty
• 33. Safeguards as to arrest and detention
• 35. Protection in respect of trial and punishment
• 36. Freedom of movement
• 37. Freedom of assembly
• 38. Freedom of association
• 39. Freedom of thought and conscience, and of speech
• 43. Protection of home and correspondence
• 44. Enforcement of fundamental rights

12. z
Viability of the Act
• International Chamber of Commerce Business Action to Support the
Information Society (ICC BASIS) –
“Cybersecurity standards must be globally accepted, industry-led and
recognised by the broadest community possible”
• Article 9 of The International Covenant on Civil and Political Rights
(ICCPR) –
4. Anyone who is deprived of his liberty by arrest or detention shall be
entitled to take proceedings before a court, in order that that court
may decide without delay on the lawfulness of his detention and order
his release if the detention is not lawful.
5. Anyone who has been the victim of unlawful arrest or detention
shall have an enforceable right to compensation.

13. z
Viability of the Act
• The Commonwealth Latimer House
principles highlight the importance of the
separation of powers between the
Legislature, the Executive and the Judiciary
to ensure effective governance and
democracy. For cyber governance also, it is
imperative to ensure the separation of
powers to prevent arbitrary exercise of
powers and safeguard freedom for all.
• The Rule of Law pyramid:

14. z
Conclusion
• Government has shown commendable initiative to sustain the dream of
Digital Bangladesh that inspired its election amidst the chaos of the post
caretaker government era. However, many areas remain subject to
justified criticism in the field of digital transformation and cyber
governance.
• The new statute is just the beginning of a long journey that will only
have greater challenges moving forward with ever-growing& rapid
technological advancement. Thus it is indispensable to make sure the
fundamentals of the legal frameworks create a solid base to address
and boldly face the future issues.

15. z
Recommendations: Short Term
• Add explanations and exceptions to Sections 21 and 28, and reduce sentencing for
Section 21;
• Repeal or amend Sections 25 and 31;
• Add a subsection to Section 29 or an additional section 29A to impose punishment
for false claims of defamation when corruption or illegal activity is exposed;
• Repeal Section 32 to prevent attacks on whistle blowers, RTI, activists, writers and
the press;
• Rephrase Section 8 to specify and clearly define what kinds of information may be
blocked;
• Add provisions to the Act for compensating people who are wrongly accused with
the offences under the Act maliciously and without reasonable ground;
• Ensure policymakers’ participation in international conferences on cybersecurity to
catch up on latest developments and trends in the area;

16. z
Recommendations: Short Term
• People are not always aware of the necessity for maintaining certain
restrictions in digital interactions and channels to prevent cyber breaches
and crimes committed by real cyber criminals leveraging our dependence on
the electronics ecosystem. The government can lead initiatives to make the
masses understand the nuances of various provisions of the Act and the
genuine intent behind them by running mass media campaigns so that
ignorance does not lead to incrimination. This will also help all stakeholders
to effectively engage in ensuring digital security instead of feeling unduly
suppressed by the Act’s provisions.

17. z
Recommendations: Long Term
• Strengthen data protection laws and establish data rights at individual,
professional, social and corporate levels;
• AI is becoming increasingly prominent in the digital horizon, which will
have an enormous impact on cybersecurity. To stay ahead of future
issues that may arise, Bangladesh needs to form an expert panel
specialized in AI and formulate legal provisions for enabling its use and
governing security issues relating to it.
• Other emerging matters of crucial importance in the digital space such as
cryptocurrencies and IoT must also be taken under legal frameworks for
digital security in order to be proactive, rather than reactive to the rapidly
changing world of digital technologies.