THE recent ‘leak’ of private telephonic conversations between an ex-federal finance minister and two provincial finance ministers, all belonging to a political party opposing the centre, has raised many important questions about the privacy of Pakistani citizens’ telecommunications from government surveillance.

Article 14 of the Constitution emphatically guarantees our citizens the right to dignity and privacy which cannot be violated unless by law. But what chance does Article 14 have against an unchecked, unrestricted, obscure, opaque and state-of-the-art surveillance regime?

Most of our laws have granted the federal government vague and overbroad powers to surveil our telephonic communications. Even before the conception of Pakistan, Section 5 of the ancient Telegraph Act 1885 allowed colonial authorities and now our federal government to intercept any telegraphs “on the occurrence of any public emergency, or, in the interest of the public safety”. Similarly, Section 54 of the Pakistan Telecommunication (Reorganisation) Act, 1996, also provides the state carte blanche powers to intercept calls and messages or to trace calls through any telecommunication system “in the interest of national security or in the apprehension of any offence” — despite the privacy protections provided by any other law.

In the seminal case of Mohtarma Benazir Bhutto vs the President of Pakistan, in which the government was found to have been involved in illegally tapping the phones of political opponents with the covert support of state intelligence agencies, the Supreme Court said: “In our country, hardly there is any effective law, to check this menace and illegal act … No procedure has been laid down for regulating the tapping, taping or eavesdropping of private or official telephones … we find that tapping of telephones and eavesdropping of any person is reprehensible, immoral, illegal and unconstitutional act.”

We have an unchecked surveillance regime.

In that seminal case, the SC held that as long as no proper law was legislated which protected the violation of constitutional rights of privacy and freedom of speech due to unlawful government surveillance, the government will have to get permission from a commission or the SC itself, on a case-to-case basis, prior to conducting any future phone-tapping operation — and this permission shall not extend beyond six weeks.

Finally, in 2013, parliament managed to pass a law which attempted to regulate some of the surveillance activities of the state. The Investigation for Fair Trial Act provides intelligence and law-enforcement agencies sweeping powers to intercept telephonic calls, electronic messages and take over any communication equipment if there is a reasonable threat or possibility that the suspect shall attempt to commit a scheduled offence. However, law-enforcement agencies are required to inform and justify any wiretapping activity before carrying it out by applying for authorisation to the federal government through the interior minister, and then requiring a high court judge to issue a warrant.

Many carefully crafted oversight mechanisms are placed in the law to provide some protection to citizens from unwarranted surveillance. The authorisation by the federal interior minister and the issuance of warrant by a judge requires the agency to provide all details regarding the investigation and the specific objectives for the surveillance activity; and without the interior minister’s authorisation no intelligence agency can approach a judge for a warrant.

Furthermore, judges can only authorise the warrant if in their opinion the requested surveillance is justified and not unduly interfering with the right of privacy of a person or place; judges can also modify any aspect of the warrant relating to the modalities or duration of the requested surveillance. Issued warrants also need to be renewed in six days only after the judge is presented with the material obtained through the surveillance and feels the intended objective is being met and not unjustly interfering with the person’s privacy. The law also sets up a complaint mechanism, penalises the misuse of data gathered in a surveillance operation authorised under this law and criminalises illegal wiretapping by any person, including officials of law-enforcement agencies.

Unfortunately, it seems this law is not worth the paper it is written on because beautifully worded laws which are not enforced by either the government, parliament or the highest courts of our land are useless protections. It seems our state doesn’t seem to care that placing an ear to the telephone of every citizen of Pakistan not only obliterates any concept of communication privacy, but also freezes our right to speak freely as guaranteed by Article 19 of the Constitution. So be careful when you pick up the phone — Big Brother is listening.

The writer is a data privacy and technology law specialist.

[email protected]

Published in Dawn, September 9th, 2022

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