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Is this the death of privacy?

It isn't the time to watch silently as our freedoms are compromised

Is this the death of privacy?

Catchy names for draconian laws are in vogue. After the USA’s Patriot Act, Pakistan enacted the Investigation for Fair Trial Act, 2013 — which I shall refer to as FTA 2013. The law, although motivated by a legitimate aim, affects the privacy and security of every Pakistani. Yet surprisingly little has been said about it.

The law provides for a procedure which enables designated state actors (referred to by FTA 2013 as ‘applicant’) to obtain warrants for surveillance and interception of electronic data and communication — as well as seize equipment used to store or communicate data. The entire process is characterised by secrecy, placing a premium on intelligence gathering and confidentiality of information while providing little or no protection to the affected citizens of Pakistan as well as alien citizens covered by it.

The aim of the law, as said before, is legitimate in that it seeks to pre-empt actions that may result in terrorist related activity. However, by any objective measure, the law is overbroad and susceptible to a strong constitutional challenge.

The designated ‘applicant’ under the law includes DG ISI, the three services’ intelligence agencies, the Intelligence Bureau and the police. If either of these suspects you of being engaged in activity linked or likely to be linked to terrorism, they can prepare a report and place it before a Federal Minister for permission to move a warrant.

Now, the Federal Minister may have little or no expertise in appreciation of evidence regarding actions allegedly linked to terrorism but his/her permission can enable the designated ‘applicant’ to then approach a High Court Justice for a warrant of surveillance.

 The silver lining is that intelligence agencies now have to submit their preliminary report to a politician — in terms of civil-military imbalance this is no small achievement for a country like Pakistan.

The silver lining here is that intelligence agencies now have to submit their preliminary report to a politician — in terms of civil-military imbalance this is no small achievement for a country like Pakistan. However, the larger gains for the polity and its power structures must not obfuscate the threat to individual liberty and privacy.

The hearing before the High Court Justice, for issuance of a warrant, shall take place in chambers and the proceedings remain secret throughout — i.e. citizens like you and me will never know and have no way of knowing whether a warrant for surveillance of our activities has been applied for or granted. To be fair, the FTA 2013 does provide a criterion as per which the High Court Justice must judge the application for issuance of a warrant.

Among other things, the Justice must be satisfied that the material is not frivolous, is credible and that there will be no ‘undue interference’ with the privacy of the individual against whom a warrant is issued. The term ‘undue interference’, however, is open to interpretation and there are no guidelines on this. Ideally, an individualised ‘proportionality’ assessment will guide discretion here. The length of the warrant can be up to 60 days and this period can be extended. If the warrant is denied, the relevant state actor can appeal the decision.

But what if the warrant is granted?

You are right — the citizen will never know till evidence is actually brought in a criminal trial against him/her.

The execution of the warrant takes place by serving it on the relevant service provider — your cell phone and/or internet service provider. They are indemnified against any action and are under a duty to comply with the warrant — failure to comply with the warrant causes a penalty of 10 million rupees.

Keep in mind that this is not the usual warrant that so many of us are familiar with. This is not a cop knocking at your door, producing a warrant and searching your home. This is the state digging out every possible thing about you online and in your electronic communication with others. Is there the danger of abuse of information? Of course.

Now, the FTA 2013 does factor that in and mentions punishments for misuse as well as unauthorised use of information regarding an individual but the bigger question is this: does the state of Pakistan have the capacity to ensure that abuse will not occur? Are people even trained for this?

How long will data be stored and how will it be destroyed? More importantly, who will destroy it? These are extremely important questions — and we need to debate these.

How will we know that the damage to anyone’s public reputation occurred because of abuse of information collected through a warrant? This is a highly pertinent question since the granting of warrants is an entirely secret process.

A Review Committee composed of Federal Ministers of Law, Interior and Defence is also provided by the FTA 2013 to meet on a bi-annual basis. Their job is to review the efficacy of warrants and the relevant progress made in preventing terrorism. However, their proceedings shall remain secret as well.

While the citizens are at the mercy of snooping by the state, they have no judicial recourse under the FTA 2013—unless they know of abuse. And we all know that by the time abuse of information occurs, it is often too late in the day to salvage reputations.

The enactment of this law should not make anyone think that surveillance of our communications was not taking place before this law. The Telecom Re-organization Act 1996 gave wide powers of surveillance to the state — without any involvement by the judiciary. That power still persists and is supplemented by the FTA 2013.

The only difference now is, and this is no small victory for the legislature, that a law actually governs the conduct of intelligence agencies if they want to engage in surveillance. Earlier, we had no way of knowing the process but now at least the involvement of a Federal Minister and a High Court Justice offers some semblance of resistance to the intelligence agencies and police having its way.

All of this is a victory for the legislature in Pakistan. And remember that legislatures are not about making laws. As Noah Feldman says, if you think that legislatures exist to make laws that is patently not true — that is their secondary function. Legislatures exist primarily to balance power in a society. And in a state characterised by civil-military imbalance the FTA 2013, despite its draconian powers, addresses the balance of power by subjecting intelligence agencies to the involvement of politicians and judges.

However, the law does leave a lot to be desired. It invades, in a way like never before, upon privacy — a right guaranteed by Article 14, but guaranteed ‘subject to law’. Remember, however, that Article 14 links privacy with the dignity of man — a point already accepted by the Honorable Supreme Court in the Benazir Bhutto Case (PLD 1998 SC 388). The right may not be absolute but how will a High Court or the Supreme Court rule if you challenge the process for issuance of secret warrants? Warrants that hit at the very autonomy, liberty and privacy of citizens.

Are we living in the age of the death of privacy? States throughout the world are engaging in mass surveillance as well as warrantless wire-tapping. Is privacy the first human right to die in the post-World War II world? Will we watch silently as our freedoms are compromised in the name of security? Whether you are an originalist when it comes to constitutional interpretation or believe in constitution as a ‘living breathing’ document, it cannot be allowed to become impotent when national security is invoked.

These are the fascinating and enduring questions that this country’s citizenry, politicians, intelligence agencies and judiciary must grapple with — and the time is now.

Waqqas Mir

waqqas
The writer is a practicing lawyer. He can be reached at [email protected]

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