Electronic Surveillance and Interception Laws in Pakistan

“We are rapidly entering the age of no privacy, where everyone is open to surveillance at all times; where there are no secrets from government.” 

[Osborn v. the United States, 385 U.S. 323, 341 (1966) (dissenting)]”

― William O. Douglas

Surveillance is one of the most common methods used by law enforcement agencies for gathering evidence and conducting an investigation.^[1] Electronic surveillance entails videotaping, geolocation tracking, wiretapping, data mining, social media mapping, bugging, and the monitoring of data or traffic on the internet. Electronic surveillance holds the tendency to interfere with the right to privacy and dignity which are guaranteed under Article 14 along with several other constitutional freedoms such as the right to life under Article 9 of the Constitution of Pakistan 1973. The data that is obtained through surveillance may also be produced as evidence in the court of law but there is a criterion laid down by the Superior Courts for the determination of the admissibility of evidence.

This piece aims to give an account of the statutes that regulate surveillance and interception in Pakistan followed by the procedures that are adopted by law enforcement agencies. The jurisprudence that has been developed over recent years is also discussed. There is diverging debate on whether the evidence that is obtained through illegal surveillance is admissible in the courts or not. The constitutional implications that arise out of these laws, mainly the interference with the right to privacy and contrast with separation of powers, have also been addressed. In the last part, an account of international law obligations concerning privacy is also provided.

Surveillance and Interception Laws

States all around the globe carry out surveillance along with interception and consider these methods to be necessary for maintaining law and order.^[2] For instance, China made use of internet activity to trace and censor dissidents^[3] and social media has been used by states resisting Arab Spring uprisings to employ against revolts^[4]. States disregard the privacy of particular individuals and groups in order to protect the rights of other individuals and groups.^[5] Surveillance of Pakistani citizens by the state is not novel. While analysing Article 13 of the Draft Constitution of Pakistan, an unsuccessful amendment to the right to privacy under the Draft Constitution was moved by Mr. Mahmud Ali Kasuri which was driven by his personal experiences of being subjected to surveillance by the state.^[6] Mr Kasuri’s communications via telephone were censored and recorded even when he was the Minister of Central Government. He maintained “that the unfortunate situation in Pakistan is that our correspondence is subject to censorship and censorship is contrary to law.^[7]

Electronic Surveillance and interception can be characterized as general or targeted. Generally, surveillance is similar to censorship which involves interception and collection of data, “monitoring”, “analysing” or “using” it for various purposes, for instance, information from a person’s communication can be used for security purposes or misused for securing illicit interests. It may also include preservation and/or retention of data as well as interference with, or access to data, communications content and information about communications, or “communications metadata”, at a larger scale contrary to targeted and tailored surveillance activity.^[8] Some of the major examples of mass surveillance include  UK’s ‘Tempora’^[9] and US ‘Upstream’ programmes and the similar surveillance system that Pakistan’s intelligence services sought to develop in 2013 by directly tapping the main fibre optic cables entering Pakistan.^[10] Targeted surveillance, on the contrary, is aimed at a specific individual, e.g., wiretapping directed toward a particular person of interest.^[11]

Statutory framework

The legislation on electronic surveillance and interception dates back to the 19th Century when the Telegraph Act 1885 was enacted to empower the government for the interception of messages.^[12] The government was given the power to intercept the messages or take possession of licensed telegraphs in the interest of public safety or case of a public emergency.^[13] The Federal Investigation Agency Act 1974 (FIA Act 1974) empowers the Federal Investigation Agency (FIA) for the prevention and detection of a wide variety of crimes.^[14] These are provided in the schedule of the FIA Act 1974 and include but are not limited to certain offences punishable under Pakistan Penal Code 1860 (PPC 1860)^[15], Official Secrets Act 1923^[16], and Prevention of Corruption Act, 1947.^[17]

With the evolution of technology the Pakistan Telecommunication (Re-organization) Act, 1996 (PTRA 1996) sets the foundation of a broader framework for interception. PTRA 1996 provides for a national security provision under which the federal government is conferred with the power to authorise a person for “tracing or interception of calls and messages”.^[18] The federal government or the cabinet is also vested with the power to issue legally binding policy directives under Section 8 of PTRA for lawful interception.^[19]

The Investigation for Fair Trial Act 2013 (IFTA 2013) was enacted to regulate swiftly evolving interception and investigative techniques. It is the first detailed legislation that aimed to cope with the legal needs of covert electronic surveillance, wiretapping, and communication interception.^[20] It contains the laws to aid the administration of justice and law enforcement, specifically for scheduled offences.^[21] Evidence collection also requires authorization to ensure the admissibility of material which was made possible through IFTA 2013.^[22]

Under section 94 of the Code of Criminal Procedure 1989 (CrPC), a person may be required by a court or any office in charge to produce documents or information as may be necessary for investigation. Prevention of Electronic Crimes Act 2016 (hereinafter ‘PECA) is the most recent legislation that regulates digital rights and access to electronic data.

Privacy and Surveillance in Pakistan

On several occasions, the issue of surveillance and its intricacies have been adjudicated by the Superior Courts of Pakistan. The Apex court of Pakistan has found it illegal and unconstitutional to invade the privacy of a person as it ultimately amounts to a violation of the dignity of man enshrined in the Constitution of Pakistan. Article 14 of the Constitution of Pakistan 1973 states that the privacy of a person is a fundamental right which shall be respected. The surveillance including phone tapping or eavesdropping entails a violation of the dignity of a person and privacy which are protected under Article 14 of the Constitution of Pakistan 1973.^[23] Surveillance, whether it be in the form of phone tapping, eavesdropping or any other means, affects the constitutional right to life as well. The expression “life” is defined in Shehla Zia Case^[24] and it is not merely restricted to animal or vegetative life. The right to life is an extensive right which carries the right to live in a clean atmosphere, and in a way that all the fundamental rights are guaranteed. It also extends to a right to the implementation of rule of law, a right to have clean and incorruptible administration to govern the country and the right to have protection from encroachment on privacy and liberty. The Honorable Supreme Court of Pakistan established the unconstitutionality of surveillance by relying on the idea of life and it was stated that telephone-tapping and eaves-dropping violate the right to life. In Mohtarma Benazir Bhutto Case, the phones of superior judiciary, legislators, journalists, members of the opposition and even the Government party members, Government officials and many others were put under surveillance as a result of which the Honorable Supreme Court confirmed that surveillance is illegal, immoral and unconstitutional as there are no legal justifications for such deplorable acts. It was also stated that bugging private homes, guest houses and chambers of the superior judiciary entailed a blow over the independence of judiciary. The Court also stated that the term “privacy at home” connotes the space where a person feels secure and enjoys privacy, and it is not limited to four walls of the home but also extends to public spaces. The inviolability of privacy is directly linked with the dignity of man and for the purpose of preserving it, an illegal intrusion or invasion should be forbidden. The Mohtarma Benazir Bhutto Case served as an opportunity to settle jurisprudence on unprecedented issues of surveillance. Electronic surveillance activities also lead to intervention in the right to freedom of speech guaranteed under Article 19 of the constitution of Pakistan 1973.^[25] It may be espoused that electronic surveillance activities hit three fundamentally guaranteed rights namely, right to dignity and privacy (Article 14), the Right to life (Article 9) and the Right to Freedom of Speech (Article 19). In M.D. Tahir v Director State Bank of Pakistan, the Supreme Court reaffirmed this view by stating that conversations over phone are private and intimate in nature and are protected by the constitution.^[26] Concurrent findings could be traced back to the early 90s when in Manzoor Ahmad v. The State,^[27] the Supreme Court found that eaves-dropping, tapping stealthily, and photographing something inside the house are invasions of privacy and as such were prohibited under the Constitution as well as in Islam.^[28]

The legality of surveillance and interception was recently contested in Justice Qazi Faez Isa v. President of Pakistan^[29]. One of the significant questions that were raised was whether prying into the private lives of citizens violates the tenets of the Constitution. Details regarding the properties of a Supreme Court judge were obtained from public records which according to the majority opinion was lawful and did not violate the constitutional rights.^[30] The court was of the view that obtaining the tax or property records of the petitioner judge and his family did not in any way amount to an invasion of privacy or covert surveillance. The fact that no confidentiality was attached to property records was the yardstick to establish that the right to privacy was not violated. Interestingly, Justice Mansoor Ali Shah and Justice Maqbool Baqar dissented the majority judgement and considered the actions of spying on the property records of a puisne judge as covert intelligence which was not permissible. The former stated that probing into the lives of citizens through surveillance and interception without the force of law is a violation of fundamental rights.^[31] Whereas the latter observed that covert surveillance was carried out without any authorization, legality or reason which confirms the violation of the constitutional rights.^[32]

How is Electronic Surveillance Legal?

IFTA 2013 is the law that currently governs electronic surveillance and interception. Electronic surveillance or interception is only permissible when it is carried out against a suspect involved in anti-state or terrorist activity. It is not allowed on the behest of intelligence agencies, however, a warrant from a Judge of the High Court concerned is required. Justice Mansoor Ali Shah expressed in Justice Qazi Faez Isa’s case that intelligence agencies, therefore, do not have a carte blanche^[33] to probe into the lives of ordinary men and women of this country.^[34] There is a mandatory process under IFTA 2013 which is as follows:

1. Notification
   The concerned law enforcement agency shall notify an authorized officer who would be a representative for making an application as to the issuance of warrants of surveillance or interception.^[35] That authorized officer shall not be below the rank of BPS-20.^[36]
   
2. Report
   A report for acquiring a warrant of surveillance or interception is prepared according to Rule 2(e) of Investigation for Fair Trial Rules, 2013 ( IFTA 2013). It contains the supporting material^[37] and all the reasons to believe the suspected involvement of a person in scheduled offences.^[38] The report shall contain details of suspicious conduct of the individual gathered through normal intelligence. All supporting material shall be annexed and it may be comprised of (a) a statement of belief by the said official based on his monitoring of the suspicious conduct of the said suspect; (b) any source report; (c) any intercepts of communications; (d) any intercepts of electronic communication including email, SMS; (e) any video recording; or (f) any other action giving rise to the suspicious conduct.^[39]
   
3. Presentation of Report to Head of Department
   The report shall be presented to the head of the applicant’s officer or the head of the organization who shall approve the report for submission before the Minister for permission to make an application to the Judge.
4. Presentation of the Report to the Minister
   Minister or official designated by the minister shall examine the report and after satisfaction, grant full or partial permission. If the Minister of Interior^[40] is not satisfied, one may decline the request with written order and relevant recommendations. ^[41]
   
5. Presentation of report to Designated Judge of High Court
   The application shall be presented to the High Court Judge in Chambers^[42] nominated by the Chief Justice of the said High Court.^[43] Under section 11 of IFTA 2013, the judge shall issue a warrant signed by a High Court Judge and the seal of his Court shall be affixed thereto.^[44] The Judge may either i) pass an order as to the issuance of a warrant as presented^[45], ii) pass an order as to the issuance of a warrant of surveillance or interception with some modifications, iii) may make any observation along with the warrant as to the method of implementation, iv) restrict the requested duration of a new or existing warrant, v) decline to issue a warrant if the Judge believes that the warrant is being procured with malafide intention or the process under IFTA 2013 is being abused.
6. Duration
   The warrant issued in the first instance is up to 60 days and it can be reissued for additional and subsequent durations of up to 60 days if the Judge is satisfied with the substantial progress since the issuance of the warrant in the first instance.^[46]

International Obligations

Pakistan has several obligations that not only arise from customary international law but also emerge from the ratified international instruments which relate to human rights and are influenced by electronic surveillance and interception. Article 12 of the Universal Declaration on Human Rights (UDHR) states that no one shall be subjected to arbitrary interference with respect to privacy.^[47] The provisions of UDHR enjoy the status of customary international law and state practice shows that the rights provided by UDHR are globally respected. Pakistan is a party to the International Covenant on Civil and Political Rights, which stipulates the right to privacy in Article 17.^[48] The Human Rights Committee has noted that state parties to the ICCPR are positively obligated to “adopt legislative and other measures to give effect to the prohibition against such interferences and attacks as well as to the protection of this right [privacy].”^[49]The Convention on the Rights of the Child (the CRC 1990) was ratified by Pakistan in  November 1990, and the CRC upholds the right to privacy of children. Article 16^[50] provides that no child shall be subjected to arbitrary or unlawful interference with his or her privacy, and a child has the right to the protection of the law against such interference or attacks. which both uphold the right to privacy. Furthermore, Cairo Declaration on Human Rights in Islam was signed by Pakistan in August 1990 in which Article 18^[51] protects the privacy of humans and creates an obligation upon the states to respect and protect the privacy of citizens.

Conclusion

With the growth of surveillance and interception techniques, the law has also evolved and appears to affect fundamental rights more than ever. It not only violates the freedom of expression, privacy and life but also restricts judicial independence. It could be inferred that with rapidly evolving technology,  privacy is more prone to interference. Electronic Surveillance or interception with the force of law is permissible, however, whenever any such act falls outside the ambit of relevant laws it curtails the fundamentally guaranteed rights of citizens. Additionally, the international obligations of Pakistan also stand as a cornerstone for the protection of citizens. There is a very thin distinguishing line between legal electronic surveillance and violation of the right to privacy. It is upon the courts of the country to balance the dictates of privacy and national security.

References

[1]  “Surveillance” (Legal Information Institute) Cornell Law School. accessed July 15, 2022

[2] Chris Bailey,’Surveillance and the Interception of Communications’ Transnational Institute (18 July 2005)

[3] Rebecca Mackinnon, Consent of The Networked 36–40 (2012).

[4] Anupam Chander, Essay, Jasmine Revolutions, 97 CORNELL L. REV. 1505, 1516–17,

1525–28 (2012).

[5] Cukier K, “Surveillance Is a Fact of Life, so Make Privacy a Human Right” (The EconomistMarch 9, 2021)

[6] Debates,Official Report,  The National Assembly Of Pakistan (Constitution- Making), Wednesday, March 14, 1973, http://na.gov.pk/uploads/documents/1453439967_808.pdf

[7] Ibid

[8] Digital Rights Foundation, “Impact and Legality of Surveillance ”(October 14, 2020) 18 <https://digitalrightsfoundation.pk/wp-content/uploads/2020/10/Impact-and-Legality-of-Surveillance-Final-Document-14.10.2020-1.pdf> accessed July 18, 2022

[9] Philip Bump, ‘The UK Tempora Program Captures Vast Amounts Of Data — And Shares With NSA’ (The Atlantic, 2022) <https://www.theatlantic.com/national/archive/2013/06/uk-tempora-program/313999/> accessed 6 August 2022.

[10] Privacy International, “Tipping the scales: Security & surveillance in Pakistan” Special Report (July 2015) 15 available at https://privacyinternational.org/sites/default/files/2018-08/PAKISTAN%20REPORT%20HIGH%20RES%2020150721_0.pdf

[11] n 6

[12] Telegraph Act 1885, s 5

[13] Ibid

[14] Federal Investigation Agency Act 1974 (FIA Act 1974), s 5

[15] Pakistan Penal Code (Act XLV of 1860).

[16] Official Secrets Act 1923 (XIX of 1923).

[17] Prevention of Corruption Act, 1947 (Il of 1947).

[18]  Pakistan Telecommunication (Re-organization) Act, 1996 (PTRA 1996), s 54

[19]  PTRA 1996, s 8

[20] Investigation for Fair Trial Act 2013 (IFTA 2013), preamble, available at: na.gov.pk/uploads/documents/1361943916_947.pdf

[21] Schedule offences as per IFTA 2013, [(1) The Private Military Organizations Abolition and Prohibition Act, 1974, to the extent of terrorist activities; (2) Prevention of Anti-National Activities Act, 1974, to the extent of terrorist activities; (3) Anti-Terrorism Act, 1997; (4) Pakistan Nuclear Regulatory Authority Ordinance, 2001, to the extent of terrorist activities; and (5) National Command Authority Act, 2010, to the extent of Anti-Terrorism Act, 1997].

[22] n 20

[23] Akhtar Hamid Ghori v. Saima Estate Developers 1989 CLC 2173 and Syed

Ghayyur Hussain Shah v. Gharib Alam PLD 1990 Lahore 432

[24] Ms. Shehla Zia v. WAPDA ,PLD 1994 SC 693

[25] Mohtarma Benazir Bhutto and Ors. vs. President of Pakistan ,P L D 1998 Supreme Court 388, Para 33

[26] 2004 C L D 1680 Lhr

[27] Manzoor Ahmad v. The State (1990 MLD 1488)

[28] Ibid para 5

[29]  Justice Qazi Faez Isa v. The President of Pakistan & others, PLD 2021 SC 1

[30] Ibid Para 87

[31] Ibid, Mansoor Ali Shah J. opinion para 48

[32] Ibid Maqbool Baqar J. opinion Para 84

[33]  Inc. US Legal, ‘Carte Blanche Law And Legal Definition | Uslegal, Inc.’ (Definitions.uslegal.com, 2022) <https://definitions.uslegal.com/c/carte-blanche/> accessed 7 August 2022. [means full discretionary power or unrestricted power to act at one’s own discretion; unlimited or unconditional authority.]

[34] Ibid  (per J.Mansoor Ali Shah, opinion dated 4 November 2020) para 36

[35] n 20,S 4

[36] BPS-20 is abbreviation for Basic Pay Scale No. 20. It is a seniority grade within the civil/federal government services scheme of Pakistan

[37] Rule 2(c), IFTR 2013

[38] n 20

[39] Rule 3(1) and (2), n 37

[40] n 20 ,S 6,7

[41] n 37,  Rule 4

[42] n 20, S 9

[43] n 37, Rule 6(1) to (3)

[44] n 20, S 12(2)

[45] Ibid , S12

[46] Ibid, S 14

[47] Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A (III) (UDHR) arts 3, 12.

[48] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR), art 17.

[49] Human Rights Committee, General Comment 16, (Twenty-third session, 1988), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 21 (1994).

[50] United Nations Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 (CRC), art 16.

[51] Organization of the Islamic Conference (OIC), Cairo Declaration on Human Rights in Islam, 5 August 1990, available at: https://www.refworld.org/docid/3ae6b3822c.html [accessed 21 August 2022]