CY B E R L AW I N CR I M INAL AND C IVIL C ONT E X TS Digital Security Act, 2018 and Rules, 2020 S UMMARY Provides for measures to prevent digital crimes and to arrest, try, and punish those involved in the commission of digital crimes. Sets out a number of procedures, including for arrest without warrant, investigation and trial by the Cyber Tribunal, and conditions for grant of bail. A PPL ICAB IL IT Y TO RO H I NGYA This Act applies to the whole of Bangladesh without reference to citizenship, as well as exterritorialy. Therefore, Rohingya accused of committing any of the following offences in Bangladesh (and outside) are covered by this Act: • illegal entrance into critical information infrastructure; • illegal entrance into a computer, digital device, computer system; • damage to a computer, computer system; • digital or electronic forgery or fraud; • digital identity fraud; • publishing/sending of offensive, false, or fear-inducing messages/information; • unauthorized collection of personal data; • publication/broadcast of information in any electronic format that “hampers the religious sentiment or values”; • publication/broadcast of defamatory information; • deterioration of law and order; • hacking. PROTECTIO N NOT ES Sections 42 and 43 of this Act grant police officers broad authority to investigate, search, and seize evidence, including without a warrant. As per Section 53, most offences under this Act are considered cognizable (i.e., police can arrest without a warrant) and non-bailable. Offences under the Digital Security Act are exclusively triable by Cyber Tribunals (Section 49), established under the provisions of Section 68 of the Information and Communication Technology Act, 2006. As a result, the bail and appeals procedures applicable to the Cyber Tribunals as stipulated in that Act will apply to offences defined in the Digital Security Act. If charged under this Act, Rohingya who are eligible should be provided legal assistance under the Legal Aid Services Act and be afforded legal and constitutional guarantees of presumption of innocence, prompt notification of charges, and the right to appeal as per Articles 31, 32, 33, 35, and 44 of the Constitution, and in accordance with the provisions of the CrPC. Any Rohingya individual convicted of an offence under this Act has the right to appeal the Cyber Tribunal’s judgment to the Appeal Tribunal. Furthermore, although Section 61 of this Act repealed Section 57 of the ICT Act, 2006, which defined the crime of “publishing fake, obscene or defamatory information in electronic form,” the Digital Security Act in Sections 27, 28 and 31 has in effect reincarnated Section 57 of the ICT Act. According to commentators, Section 57 “was widely used to silence online activists and the media mostly in the name of regulating ‘defamatory’ comments against political high-ups and anti-religious writing,”48 which raises several human rights and freedom of expression concerns that bring into question the constitutionality of Sections 27, 28, and 31 of the Digital Security Act.49 56 BE YOND REFU GE: ADVANCING LEG AL PROTECTIONS FOR ROHINGYA C OMMUNITIES IN BANGL ADESH