Introduction
In today’s world, we are in the age of digital interconnectedness, where the digital world has taken over communication, trade, and governance, and it is involved in every aspect of human life. Mass surveillance, particularly state-initiated digital surveillance, has become one of the most immediate challenges in global human rights law because of its ubiquity, obscurity, and profound influence on individual liberty, democracy, and dissent. There is a major concern of everyone regarding their privacy but the right to privacy is continuously being narrowed dramatically in Pakistan, even though it is recognized as a fundamental right in article 14(1) of the Constitution of Pakistan 1973: “The dignity of man and, subject to law, the privacy of home shall be inviolable.”
Data Protection Laws in Pakistan
The Prevention of Electronic Crimes Act (PECA) serves as Pakistan’s main legislative framework for addressing data protection issues. Section 38 states that any person, including service providers, who discloses someone’s personal or sensitive data without consent, unless allowed by law, may result in up to three years of imprisonment, a fine of up to PKR 1 million, or both. These offenses are investigated by the Federal Investigation Agency (FIA) under PECA. Under the Pakistan Telecommunication (Re-organization) Act, 1996, the PTA issued the 2009 Regulations to protect telecom consumers from spam and unsolicited, fraudulent, and obnoxious communication. These rules apply to all telecom operators.
The Pakistan Ministry of Information Technology and Telecommunication (MITT) has introduced a Personal Data Protection bill (PDPB). The primary objective of this bill is to regulate the collection, processing, use, disclosure, and transfer of personal data while also imposing penalties for violating privacy rights. Additionally, Section 54 of the Pakistan Telecommunication (Re-organization) Act, 1996, empowers the federal government to authorize the interception of calls and messages on grounds of national security, raising concerns about unchecked surveillance.
Relevant Case Laws
The courts have emphasized the importance of one’s right to privacy by mentioning that phone tapping, surveillance, and hacking not only infringe privacy but also violate the constitutional right to life. In the Mohtarma Benazir Bhutto case, the court underscored the significance of the fundamental right to privacy and emphasized that any illegal intrusion into one’s personal life not only violates privacy but also obstructs their freedom of expression. This right plays a crucial role in protecting individuals from arbitrary surveillance and undue interference, ensuring the free exercise of personal autonomy and communication in a democratic society.
In Taufiq Bajwa v. CDGK, the Court affirmed that the right to privacy includes protection from public scrutiny, so long as the individual is not engaging in unlawful conduct. The judiciary has consistently held that any intrusion into a person’s privacy inherently infringes upon the sanctity of the home and, by extension, violates the dignity of the individual. Such a fundamental right can only be curtailed by the state under exceptional circumstances, such as matters concerning national security. Notably, the privacy of the home is explicitly safeguarded under the constitution, reinforcing its status as a core component of the right to privacy.
Legal Gaps and Digital Surveillance Challenges in Pakistan
In Pakistan, there is a lack of a single comprehensive and consolidated law that could govern all other laws under its provisions. Due to this loophole in the legal system, it’s difficult to hold entities accountable for any data breach or misuse of personal data. The Prevention of Electronic Crimes Act (PECA) has been used to suppress free speech and has targeted journalists, activists, and critics of the state, raising concerns regarding the freedom of speech and expression. Both government and private actors harvest personal data without adequate transparency or protection, which raises the risk of abuse.
Journalists and human rights defenders are often put under surveillance, giving rise to self-censorship. Internet shutdowns and restrictions of content during politically sensitive periods reveal the vulnerability of digital rights. In addition, the state’s surveillance under national security cover creates apprehension over incursions and basic rights abuses. Without a formal AI policy or data protection law, independent digital media platforms in Pakistan remain vulnerable to risks and unable to fully benefit from AI advancements or seek legal protection. This gap in regulation exposes unchecked deployment of AI tools like facial recognition and predictive surveillance, posing grave threats to user privacy. Without checks, AI can become an instrument of control and not of progress.
Recommendations
- Enact a strong and comprehensive data protection law to supervise all other acts and align with global standards like GDPR, addressing key issues such as informed consent, user control, and accountability of those who control data. The current draft of the Personal Data Protection Bill 2021 must be revised to fill the practical gaps.
- Establish an independent National Commission for Personal Data Protection with clearly defined appointments and removal criteria to ensure autonomy; also, the members should not be public servants to ensure the absence of political influence.
- Regulate state surveillance by introducing parliamentary safeguards, judicial oversight, and other supervision to ensure surveillance is not misused under the name of national security.
- Frameworks should be developed to control cross-border data sharing and surveillance, ensuring that foreign governments and corporations do not exploit the absence of oversight in Pakistan.
- Introduce the ethical regulations for the use of AI and other similar technologies to prevent misuse in surveillance, facial recognition, and data privacy. Also, hacking should be prevented under this regulation to provide security to users. A national AI policy should be adopted, which should be transparent and accountable to the users.
- Improvement of public digital literacy is very necessary to ensure that people can access remedies. This could be done by conducting awareness campaigns and providing legal support to help citizens understand and access legal support when they are in need.
- We see that the legislation is there and laws have been made to ensure privacy and data protection, but their complete implementation is required. When there are laws but they are not implemented to their full extent, it shows the loopholes in the system. Also, with time, when the amendments are needed, they should be done on time and implemented accordingly to ensure justice and fair treatment.
Conclusion
Pakistan is at a crossroads in defending the digital rights and privacy of its citizens. Although the constitution and Islamic law enjoin the protection of the sanctum, current legal frameworks do not respond adequately to the issues arising from contemporary surveillance, data abuse, and unregulated AI technologies. Drastic reforms such as passing a sweeping data protection law, establishing an independent regulatory agency, and embracing global human rights standards are necessary to make online spaces safe, just, and free from repression.
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The views and opinions expressed in this article/paper are the author’s own and do not necessarily reflect the editorial position of Paradigm Shift.
Wania Tariq is a law student at Fatima Jinnah Women's University, Rawalpindi. Her academic interests lie in constitutional law, criminal law, civil Law, technology and privacy rights, and media regulation.