(Aug. 16, 2017) On June 20, 2017, Afghanistan President Mohammad Ashraf Ghani signed into law the Cyber Crime Code, which forms part of the country’s new Penal Code. (Walasmashar Da Internete Jarmono Qanon Tawshih Karry [President Signed the Law of Cybercrimes], PAJHWAK Pashto (June 20, 2017).) The Penal Code is being drafted by the Law Enforcement and Academic-Legal Research Institute of the Ministry of Justice. (Copy of formal letter from the Institute to the Ministry of Communications and Information Technology [MCIT] (Jawza 24, 1396 [June 14, 2017], received by author from MCIT spokesperson Najeeb Nangial.)
There are 11 different codes and 63 miscellaneous provisions on crime that will be merged into the Penal Code. An advisor to the Ministry of Justice, Mohammad Ashraf Rasoli, says “the new Penal Code of Afghanistan addresses the needs of today’s social and economic environment of Afghanistan, and makes the penalty commensurate with the crime.” (Jazaee Kod Aw Da Afghanistan Par Jazaee Qanon EE Agheeza [The Penal Code for Cybercrimes and Its Impact on Afghanistan’s Penal Code], AZADI RADIO [RADIO LIBERTY] (Sawr 12, 1395 [May 1, 2016]); Tariq Ahmad, Afghanistan: Government Announces New Draft Penal Code, GLOBAL LEGAL MONITOR (July 1, 2016).)
Currently there are more than four million Internet users in Afghanistan, whose population is 34 million. (Afghanistan: Internet Usage, Broadband and Telecommunications Reports, INTERNET WORLD STATS (last visited July 21, 2017).) According to Motherboard, a website that reports on advances in information technology, “[t]he telecom sector has substantially grown over the last decade to become one of the largest revenue generating sectors in Afghanistan with annual average revenue of $139.6 million—accounting for more than 12 percent—of total government revenues.” (Ruchi Kumar, As Afghanistan Comes Online, It Grapples with Its First Cybersecurity Law, MOTHERBOARD (Jan. 7, 2017); Javid Hamdard, The State of Telecommunications and Internet in Afghanistan Six Years Later (2006-2012) (Mar. 2012), United States Agency for International Development (USAID).)
Features of the Cyber Crime Code
The hacking of webpages and online defaming of people, especially public figures, are common cyber crimes in Afghanistan and heretofore there has not been a law to regulate Internet use and prosecute cyber criminals. (Da Internete Jarmono Da Makhnewe Qanon Jorrige [A Law Is Enacted to Prevent Cyber-Crimes], SHAMSHAD TV Pashto (Hamal 20, 1396 [Apr. 9, 2017]).)
Section 12 of the Penal Code of Afghanistan comprises provisions on cybercrimes, along with crimes related to health and agriculture. Cyber crimes are defined as crimes that occur in cyberspace through the use of modern technology, information, and electronic communication. (Letter on Reading the Draft Copy of the Cybercrime Code, Articles 363 and 855- 881, as Part of the New Penal Code of Afghanistan (Draft Cyber Crime Code) (June 21, 2017), art. 855 (author’s copy).) Crimes of disrupting a computer network, using of illegal means to access a computer system, programs, and computerized information, changing or destroying a computer system or the password and security code of the system, or installing viruses in the system may incur a penalty ranging from a fine of AFG600 (about US$9) to short-term , long-term, and even life imprisonment. (Id. arts. 856, 857, & 858.) Short-term imprisonment is imprisonment for more than six months up to one year; medium-term imprisonment, one year up to five years; and long-term imprisonment, from five years up to 16 years. (Penal Code (May 15, 2017), art. 166, Ministry of Justice website (in Pashto & Dari).) The Penal Code also provides for “continued” imprisonment for a term of 16 years up to 20 years and life imprisonment for from 20 years up to 30 years. (Id.)
The Cyber Crime Code also includes as crimes, punishable with a fine ranging from AFG6,000 to AFG300,000 (about US$89-$4,431) or medium-term imprisonment, the following actions:
- disclosing the password or security code of an information system (Draft Cyber Crime Code, art. 859);
- preventing others from having access to an information system (id. art. 860);
- creating, preparing, and using an information system to commit crimes (id. art. 861);
- electronic counterfeiting (id. art. 862); and
- electronic fraud (id. art. 863).
Theft of another person’s Internet service is punishable upon conviction by a fine of twice the amount of the cost of the stolen service. (Id. art. 865).
Cyber terrorism (id. art. 866), cyber espionage and cyber warfare (id. art. 868), and cyber gambling (id. art. 875) are punishable by the penalties imposed in the other relevant chapters of the Penal Code now being drafted.
Cyber crimes involving personal offenses against individuals include misuse of another person’s identity for committing a crime is punishable with a sentence of medium-term imprisonment (id. art. 869); disclosure of another person’s personal or privacy-related information, punishable with imprisonment for a term of one to three years or a fine of from AFG60,000 to AFG180,000 AFG (id. art. 871); and blackmail, punishable with short-term imprisonment or a fine of AFG30,000 to AFG60,000 (id. art. 872).
For crimes against public morality and chastity, the punishment is a fine of from AFG5,000 to AFG20,000 (about US$74-$295) (id. art. 870), while using cyberspace to broadcast discriminatory remarks and to defame religion are both punishable with a fine of from AFG5,000 to AFG60,000 (id. arts. 873 & 874, respectively). One of the stiffest fines imposed in connection with offenses against social mores is that for disseminating child pornography: medium-term imprisonment of up to two years or a fine of from AFG60,000 toAFG120,000 (id. art. 877).
The new Code protects the online activities of Afghans in general, but has no special provisions to protect the rights of Afghan women, who for the most part cannot use their real names on social media for fear of incurring insulting messages and comments that might harm their own and their family’s reputation.
New Anti-Cyber Attack Unit
To protect official websites and social media pages from cyber attacks by “insurgents” and others, the Ministry of Communications and Information Technology (MCIT) is working on setting up a Cyber Emergency Response Team (CERT) based on consultation with its international counterparts, including U.S. government security agencies. To this end, the Ministry will build a forensics laboratory and provide support to Afghanistan’s Ministry of Information, the National Directorate of Security, and other security agencies. (Kumar, supra.)
A former deputy minister of the MCIT, Aimal Marjan, says that, to better enforce the new cybercrime code, the government needs to recruit cyber police and prosecutors and judges who are well-versed in cybercrime law. He added that the government also needs to create a cyber lab equipped with high technology to enhance investigation of the crimes. In Marjan’s view, if the cybercrime code is properly enforced, the misuse of cyber technology, especially social media, would decrease. (Walasmashar Da Internete Jarmono Qanon Tawshih Karry, supra.)
Political activist Naweed Afghan is of the view that the cyber crime law can better protect against harm caused to the national interest by the Internet, especially through the misuse of social media. He stated that the law would ban youths from access to “unethical and non-Islamic websites” and the government would thereby be able to prevent social harm. (Per Internet the Control and Saar Qanon Somra Mohim Ganny? [How Important Is the Law on Monitoring and Controlling Use of the Internet?], TATOBAY NEWS (Sawr 3, 1396) [Apr. 4, 2017]).) Rozi Mohammad, a civil society activist in Helmand province, asserts that the new provisions are a highly valuable addition to the legislation of Afghanistan that frames the use of the Internet. (Id.)
Prepared by Hijratullah Ekhtyar, Law Library intern, under the supervision of Tariq Ahmad, Foreign Law Specialist.