Introduction
In today’s hyper-connected world, nefarious cyber surveillance and wiretapping activities executed under the guise of legal authority form a double-edged sword, blurring the line between protection and intrusion. Pakistan’s federal government has adopted the uncertain path of intrusion following its notification authorizing intelligence agencies to trace and record messages and calls without prior judicial approval.
Originating from the streets of New York, monitoring telephone calls has always been accompanied by a distinct sense of uneasiness in all sectors of society. The roots of its being loathed are not just in its intrusive nature; rather, they stem from the mockery of international and national privacy norms. Contravening international law and running ultra vires of the constitution through such interferences obfuscates the position of wiretapping and cyber surveillance in any society.
Regardless, it has been condoned with impunity by Pakistan, hiding behind notions of national security or public interest—the two most favorite excuses provided by state functionaries to override the fundamental rights protected by the constitution of the country.
Wiretapping and Cyber Surveillance
Wiretapping entails secretive electronic monitoring and interception of phone, fax, or other communication systems. This mechanism dates to the 19th century and has been at the forefront of the combat against American mobsters by the US government. Later, such electronic eavesdropping methods emerged in the Cold War Era, as evinced by Operation Ivy Bells. Cyber surveillance, on the contrary, is a more modernistic sibling of wiretapping; it monitors people who use “smart” devices that use a data network for communication purposes. This modern methodology of surveillance encompasses nearly any telecommunications system, impinging on one’s freedoms.
Right to Privacy Versus National Security
The right to privacy is the right to hide or obscure elements of one’s life from the public at large and is embedded in international law through multiple instruments that Pakistan has ratified or is signatory to. Under international law, it is most notably secured by the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). Article 12 of the UDHR and Article 17 of the ICCPR entail that no one shall be subjected to arbitrary or unlawful interference with their privacy, home, family, or correspondence.
In addition, international law ensures protection against any such interferences and/or attacks. The regulation by law of any such intrusions is of utmost importance, which the General Comment to Article 17 identifies in the following words:
“The gathering and holding of personal information on computers, databanks and other devices by public authorities or private bodies must be regulated by law.”
Similarly, regional instruments such as the European Convention on Human Rights (ECHR) and the European Union (EU), have also upheld data protection and the right to privacy at various times. Such is evidenced by the declaration that the protection of personal data is of fundamental significance to any person.
“Legislation permitting the public authorities to have access on a generalized basis to the content of electronic communications must be regarded as compromising the essence of the fundamental rights.”
Court of Justice of the European Union (CJEU)
Pakistan’s Constitution holds the right to privacy in the utmost respect as well, categorizing it as a fundamental right. Article 14 of the 1973 Constitution deems the privacy of the home and the dignity of man to be inviolable. Theoretically, such fundamental rights ensured by the constitution cannot be trumped by inconsistent domestic provisions as provided by Article 8. In addition, as per the superior courts of Pakistan, the right to privacy is an integral part of the right to life and liberty, a prerequisite for personal autonomy, and more importantly, privacy “attaches to the person, not to the place where it is associated” (2023 PLD 461 SC).
Notwithstanding the above, prohibition on such activities is not absolute both internationally and nationally, maintaining room for exceptions. However, to fall within the lawful ambit of international law, any instance of interference must be provided by law and must be subjected to strict compliance with the principles of necessity and proportionality.
Under national law, however, a letdown has provided a greater breadth of exceptions to law enforcement agencies in avoiding enforcement of fundamental rights. Therefore, the room provided above is notoriously exploited through broad terms such as “national or public security” and “public interest,” and that too without proper adherence to the essentials necessary to fulfill the criteria of exceptional usage of surveillance techniques.
Technically, both of these terms are as wide as one’s imagination, encompassing multiple concepts in their definition. National security, which forms the basis of the statutory notification passed by Pakistan’s federal government, provides arbitrary power to intelligence officials for wiretapping without prior judicial approval under the Pakistan Telecommunication Act 1996. It’s of vital importance that the term “national security” remains undefined under the parent act of the notification and is thus molded according to the malicious interests of those in power.
However, generally, national security refers to the ability of a state to protect the physical integrity and autonomy of its territory. While it cannot be denied that states must deal with circumstances that may challenge their integrity and autonomy, there is a proper method for dealing with such challenges, especially those compliant with the notions of necessity and proportionality.
The statutory notification is devoid of both the required elements; neither has the notification specified any concerns to national security necessitating the intrusions, nor is it, reasonably speaking, proportionate to prejudice the privacy of millions over a mere iteration of a national security threat, and that too, vague. Furthermore, the existence of less restrictive measures indicates that the criteria of necessity and proportionality have not been appreciated by Pakistan while passing its notification authorizing wiretapping.
Constitutionality of Surveillance
As evident from above, the notification in question has infringed the norms of international law and its constitutionality remains questionable, if not outrightly untenable. This view has been shared by the superior courts in deciding issues of wiretapping and cyber surveillance by intelligence and/or law enforcement agencies for decades. The basic principle of the unconstitutionality of such actions is evinced by the case of former prime minister Benazir Bhutto, where illegal phone-tapping and other eavesdropping techniques were sanctioned as an infringement of the right to privacy (1998 PLD 388).
The established protocols necessary for the smooth functioning of the legislative framework and rule of law have been proscribed under the Telegraph Act, The Telecommunication Act, the Fair Trial Act, and PECA. It is undeniable that surveillance is an indispensable tool in the fight against criminality. However, its arbitrary and discretionary usage by the government is unconstitutional and unlawful. This is identified by the legislative framework mentioned above and noted by the Islamabad High Court in its order a few weeks ago.
As established by the law of the country, requests for surveillance must be granted by a judge of the high court and cannot be discretionarily or whimsically used. It is thus, evident that the notification passed by the government is ultra vires of the constitution, established dictums of the superior courts, and the protocols essential for the rule of law.
Conclusion
Unauthorized and illegal surveillance for alleged security purposes has an unavoidable by-product: jeopardizing the fundamental liberties of millions of individuals. The notification passed by the Federal Government of Pakistan is not only a jab at the liberty of its citizens but also a blatant violation of the norms set under international law, and an infringement of its own constitution. It is unironic how this notification has come after the blanket ban imposed by the government on social media platform X (formerly Twitter), which exists to date notwithstanding that the same has been assailed before the constitutional courts of nearly every province of the country.
While the constitutionality of the notification in question has been challenged before the constitutional courts of Pakistan, it is only natural for one to believe that it may suffer from the same delay and lack of attention that the blanket ban case receives. The criterion for exceptional intrusion laid down under international and national law remains far from being met, and such unlawful intrusions weaken the state from within.
“They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety.”
Benjamin Franklin
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