Will free media be harassed in the name of data protection?

While Bangladesh is facing all sorts of challenges and our prime minister is regularly warning us about the food crisis that lies ahead, our government's relentless pursuit of putting impediments on the functioning of the free media continues unabated. Nothing appears to either slow the pace or dim the enthusiasm among a section of bureaucrats and policymakers, who appear to see nothing good in free media and miss no opportunity to shackle them under this pretext or another.

The hugely restrictive and controversial Digital Security Act (DSA), which has already caused havoc to the free media in Bangladesh, has suddenly re-emerged with another set of restrictive initiatives that has us all in the media extremely worried. In a gazette published on October 2 by the ICT Division, 29 institutions have been declared as "critical information infrastructure"(CII) under Article 15 of DSA.

Protecting critical information infrastructure is the government's duty, and we are fine with it. From the media, we will be happy to raise public awareness in the area of cybersecurity. Here, the government and the media are on the same page, and we would be happy to work together.

However, the problems start when we see the vague formulations and lack of clarity of the CII notification and the names of the institutions covered by it. Of the 29 listed bodies – the whole rationale remains unclear – the ones whose inclusion are most likely to hamper the work of journalism include the Bangladesh Bank and state-owned banks such as Sonali, Janata, Agrani and Rupali, the National Board of Revenue (NBR), Bridges Division, Biman Bangladesh Airlines, Bangladesh Power Development Board (BPDB), Dhaka and Chittagong stock exchanges, and the Department of Immigration and Passports, just to mention a few.

When an institution like Bangladesh Bank is designated as a CII without clearly mentioning whether the whole building is a "critical information infrastructure" or only its digitalised operating system, then of course journalists are left confused and worried. So when the next time a journalist enters the Bangladesh Bank, does he or she risk being accused of "illegally" entering a CII facility? Will that journalist then be prosecuted? The question is obviously of access to cover these institutions. Can a journalist now enter the premises of Biman, or the BPDB or even the two stock exchanges to carry out his or her duties?

Let's examine the case of one institution: our national airlines. We can understand that the digital network that controls air traffic, the ticketing system, security for the planes, etc needs to be protected. But what about stories that deal with passenger services, Biman's profitability, its staff qualifications and performance, its commercial operations, its inflight services, etc? To cover these and similar stories, journalists need and must be given access to these institutions and the relevant officials. Being listed as a CII installation and without any clarification as to what is covered by it will definitely result in limiting our access, which may even be denied if sought frequently.

Equally of concern is the dire possibility that the concerned officials will become more and more reluctant to share their insights with the media as the whole environment will be driven by restrictions. In time, we will be told that we can only deal with the public relations officer (PRO) of these institutions, and access to other officials will be denied. We might as well stop sending reporters and wait for the press releases from these bodies. We are afraid this new gazette will reduce journalism to "public relations" and prevent us from doing "public service," which is why we exist.

Then there is the issue of punishment that ranges from seven to 14 years in prison and a fine of up to Tk 5 crore. This high level of punishment together with the vagueness of the provisions makes it almost forbidding for journalists to carry out their professional tasks out of fear. Even life imprisonment is on the table for a crime whose mere definition we do not know.

Supervising the whole process is a director-general whose power is enormous. The DSA states, "If the director-general has reason to believe that any activity of an individual regarding any matter within his jurisdiction is threatening or detrimental to any critical information infrastructure, then he may, suo moto, or upon a complaint of any other person, inquire into the matter." His conclusions may entail anything and, being a government servant, is not likely to reflect the media's point of view. Hence punishment can well be the result.

As if to mock freedom of expression and all of us who demand it, on Wednesday, the government finalised the draft regulation for digital social media and OTT platforms that empowers the Bangladesh Telecommunication Regulatory Commission (BTRC) to block, take down or remove any content that "threatens the secrecy of the government." So, are we to understand that everything that a government does has to be considered a secret? It is the old "official secrets act" in a new bottle. What about the media's primary role of keeping the government accountable by revealing to the public the workings of their elected executive? Will any government voluntarily reveal that their projects are riddled with corruption or that they have failed to provide good governance? Such a provision will directly work against independent media, especially investigative reporting. The final draft clearly states that all the restrictive provisions will apply to "publishers of news and current affairs content or a publisher of an online curated content." The law may be vague in other aspects, but in restricting the media, it is amply clear.

Over the last few days, with the gazette notification of "critical information infrastructure" and the final draft of the OTT rules, we have two new legal formulations meant to restrict the working of the free media.

Are these in preparation for the coming election? We don't want to draw conclusions yet, but are finding it increasingly difficult not to. Pablo Neruda wrote, "You may cut all the flowers, but you cannot keep spring from coming." We say, "You may prevent us from saying what we think to be right, but can you prevent us from thinking what is right?"

Mahfuz Anam is the editor and publisher of The Daily Star.