The scope for the right to privacy and freedom of expression is being narrowed further in Pakistan, according to a report published by Privacy International. The report claims that Pakistan’s military and intelligence agencies are closer than ever to removing internet privacy and increasing surveillance of the private data of average citizens, an exercise which was earlier specifically targeted on suspected of militancy and terrorism. A wide array of foreign companies such as Huawei (China), Ericsson (Sweden), and Nokia (Finland) have provided interception equipment to Pakistani networks, according to the report.
In the wake of the Peshawar school attack and the ongoing military operation, public consent was engineered for mass surveillance of communications. The same technologies that the Pakistani government uses for censorship are also used for surveillance. Censorship of online content is widespread and justified as a means to prevent the sharing of pornographic, obscene, and blasphemous material in the Islamic republic.
The report states that in June 2013, the Inter-Services Intelligence (ISI) was in talks with a European company to develop a mass surveillance system, by directly tapping the main fibre optic cables entering Pakistan, carrying most of the nation’s network communication data.
This sought to make virtually all of the nation’s domestic and international communications data available for scrutiny, something the report has termed as “the most significant expansion of the government’s capacity to conduct mass surveillance to date.”
This data surveillance can rival that of the most advanced surveillance conducted by the US and UK governments. Pakistan already cooperates heavily with international surveillance initiatives against its own citizens, particularly those led by the US National Security Agency (NSA). Pakistan is also one of the NSA’s approved third-party Signal Intelligence (SIGINT) partners, which makes Pakistan eligible for receiving advanced techniques and technical solutions in exchange for sharing the personal data of its citizens with NSA.
NSA surveillance of Pakistani politicians and judicial officers has become known through declassified documents; NSA has been spying on the Pakistan People’s Party (PPP) government since 2010. The Pakistani government made few statements about the NSA’s activities in Pakistan in response to these revelations, yet interception across Pakistani networks has remained persistent.
A Supreme Court hearing, in a case concerning phone tapping, revealed that the ISI has tapped: 6,523 phones in February; 6,819 in March; and 6,742 in April 2015. With each branch of the Pakistani armed forces having their own surveillance system, the numbers perhaps represent just the tip of the iceberg.
Such interception and surveillance is against international norms and conventions as well as against local legislations and constitutional guarantees. The International Convention on Civil and Political Rights (ICCPR) stipulates under Article 17 (1) that “no one shall be subject to arbitrary or unlawful interference with his privacy, family or correspondence”. Under Article 18 (b), the Cairo Declaration On Human Rights in Islam, to which Pakistan is also a signatory states: “everyone shall have the right to privacy in the conduct of his private affairs, in his home, among his family”. The Declaration makes it clear that the state is “not permitted to spy on him, to place him under surveillance or to besmirch his good name” and that “the State shall protect him from arbitrary interference.”
Furthermore, the UN Human Rights Committee has declared all surveillance conducted outside the ambit of the legal framework to be arbitrary and illegal. The UN Special Rapporteur on Freedom of Expression, in his report on electronic surveillance published in 2013 notes that “communications surveillance should be regarded as a highly intrusive act” and that laws “must stipulate that State surveillance of communications must only occur under the most exceptional circumstances and exclusively under the supervision of an independent judicial authority.”
These international commitments have made it incumbent upon the state to protect the right to privacy of its citizens and to refrain from across-the-board surveillance of the common man. The state must set out clear parameters in local legislation to define under what situation and circumstances the surveillance can be allowed and to what extent.
Article 14 of the Constitution of Pakistan explicitly forbids intrusion into the privacy of an individual. “The dignity of man and, subject to law, the privacy of home, shall be inviolable”, reads the Constitution. However, what is in the Constitution has not translated into criminal legislation. For example, The Anti-Terrorism Act (1997) specifically authorizes a wide range of officers to enter and search premises without warrant, upon reasonable suspicion of the premises containing written material, recordings, property, or other articles, in connection with terrorism. There is no requirement for a warrant so long as relevant officers can satisfy themselves that there exists a link to terrorism.
The Prevention of Electronic Crimes Bill is another draconian legislation in the offing that aims to curb the freedom of expression and provide legal cover to the mass surveillance of data. The powers granted under the Bill are too encompassing, allowing the law enforcement agencies to act on their whim, if they deem it fit and proper in the interest of maintaining law and order. A cursory look at the powers and authority is enough to comprehend the free hand afforded to the investigation officer. The officer can seize, inspect, access any data or data system used to process that data, and can demand that the person who owns that data provide technical assistance to the officer. The ambiguity seems to work in favour of the LEA official, who can barge into any private or public premise, and demand that particular information be handed to them. There are absolutely no safeguards provided in the law that guarantees the citizen the right to the inviolability of the dignity of man, as provided under Article 14 of the Constitution of Pakistan. The citizens of the state are denied the right to information, yet the State want to act like a police state and strangle the free speech of its citizens.
The framework set out in the Investigation for Fair Trials Act (2013) currently governs State surveillance in Pakistan. This act allows for access to data, emails, telephone calls, and any form of computer or mobile phone-based communication, subject to judicial warrant. However, a warrant can be requested wherever an official has “reasons to believe” that a citizen is, or is “likely to be associated” with, or even “in the process of beginning to plan” an offence under Pakistani law. As part of Pakistan Telecommunication Authority licensing requirements, service providers must make their networks “lawful interception-compliant”. This is extremely dangerous for a country like Pakistan, where fundamental rights like the freedom of expression and privacy are a farce and a façade that only exists on paper, and where such draconian laws are given precedence over basic human rights.
Edward Snowden, while delivering a speech at a conference said, “I can’t in good conscience allow the U.S. government to destroy privacy, internet freedom and basic liberties for people around the world with this massive surveillance machine they’re secretly building. I don’t see myself as a hero because what I’m doing is self-interested. I don’t want to live in a world where there’s no privacy and therefore no room for intellectual exploration and creativity.”
Privacy as a right is not something that the citizen of a state is entitled to; it is in fact an absolute prerequisite. The State of Pakistan can’t treat its own citizen as enemy combatants whose activities need to be constantly monitored in the interest of the State. Such measures will only increase the resentment of the public against the State, resulting in mass uprising and revolt.
The State of Pakistan and the intelligence agencies must immediately roll back the mass surveillance programme and formulate a transparent policy of data interception set out under the international standards of human rights.
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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong-based group was founded in 1984.
