Is it a protection of national security or a threat to privacy?
Supreme Court of Pakistan. Photo by author.
Pakistan has formally authorized its military-run Inter-Services Intelligence (ISI) to intercept calls and messages of its citizens in the name of national security, a term often used by states to violate the rights of their citizens. The Supreme Court has ruled that such surveillance is illegal, unconstitutional, and violates the human dignity enshrined in Article 14 of the Pakistani Constitution, but the authorization remains in place.
In the ongoing audio leak case involving Bushra Bibi, wife of jailed former Prime Minister Imran Khan, the Islamabad High Court (IHC) was informed that a Lawful Interception Management System (LIMS) has been put in place that has no legal backing. Lawful Interception (LIMS) allows law enforcement agencies to selectively eavesdrop on targeted individual telecom subscribers with a court order or legal permission. Through LIMS, telecom companies in the country had provided intelligence agencies with access to call, message and web browsing data of 2% of their users (around 4 million people). The government then issued a Statutory Regulatory Order (SRO) notification, allowing the ISI to spy on citizens under Section 54/1 of the Pakistan Telecommunications Act, 1996, giving them legal protection.
The controversial decision has sparked debate among opposition leaders, members of the public and digital rights activists on social media, who claim it violates people’s rights under Article 4 of the Constitution.
The Human Rights Commission of Pakistan (HRCP) has said the notification is a gross violation of the constitutionally protected rights of citizens.
🔴 HRCP is deeply concerned by the unconstitutional notice recently issued by the Federal Government, which authorises intelligence agents to listen in on and track the telephone calls of any citizen in the interest of “national security”.
This notice is a serious violation…
— Human Rights Commission of Pakistan (@HRCP87) July 10, 2024
Reema Omar, legal adviser for South Asia at the International Commission of Jurists, highlighted why the notice was issued in bad faith:
1. The Government notification authorising ISI to intercept and trace calls is malicious, illegal and a flagrant abrogation of human rights and fundamental freedoms.
There are several reasons: pic.twitter.com/bW2U3eWah2
— Reema Omer (@reema_omer) July 10, 2024
Pakistan Surveillance Laws:
Since its independence in 1947, Pakistan has used various laws and legislation to monitor its citizens. The Telegraph Act of 1885 allowed for the interception of messages and control of authorised telegraphs in the interest of public safety or in times of emergency. The Federal Investigation Agency Act of 1974 aimed to prevent and detect a range of crimes, including offences under the Pakistan Penal Code, the Official Secrets Act and the Prevention of Corruption Act. The Pakistan Telecommunications Act of 1996 outlined a framework for the surveillance and interception of telecommunications.
More recently, the Investigation for Fair Trial Act of 2013 allowed access to various forms of communication such as emails and telephone calls with a court order, but did not give investigatory agencies the power to monitor private communications. The Prevention of Electronic Crimes Act (PECA) of 2016 gave the Pakistan Telecommunications Authority (PTA) the power to block or remove information on the internet. The Telephone Traffic Monitoring and Coordination Rules of 2010 required providers to establish a system for real-time monitoring and recording of network traffic, banned the use of encryption software, and empowered the PTA to monitor all internet traffic through monitoring systems that internet service providers (ISPs) are required to install.
History of audio leaks in Pakistan
In the past, Pakistan’s prime ministers, federal ministers and senior officials have alleged that their private telephone conversations were made public. A notable case was Benazir Bhutto v. President of Pakistan, where the government was found guilty of illegally tapping the phones of political opponents with the assistance of national intelligence agencies. The Supreme Court ruled that until adequate legislation was enacted to protect the constitutional right to privacy and freedom of speech, the government must obtain permission from the Commission or the Supreme Court for each telephone tap. In 2013, Parliament passed the Fair Trial Inquiry Act.
Just before the February 8 elections, a series of audio and video leaks involving various politicians, military officials and judges surfaced on social media. While many of these leaks have been refuted or silenced, the advent of AI-generated content has added complexity and potential threats, necessitating forensic analysis to determine the authenticity of the recordings. In 2019, in a video scandal case involving an Accountability Court judge, the Supreme Court ruled that “Under Section 9(3) of the Punjab Forensic Science Institution Act, 2007, no court can place reliance on any audio tape or video until a forensic report is prepared by an analyst of the Punjab Forensic Science Institution.”
Reactions to this decision:
Leader of the Opposition in Parliament Omar Ayub Khan believed intelligence agencies were targeting lawmakers and called the notification a “black law”.
Defence Minister Khawaja Asif, who strongly supported the move, recalled Prime Minister Imran Khan’s support for the military agency (ISI) to monitor politicians’ phone calls without permission.
Six members of the Pakistan Bar Council (PBC) have challenged the government’s decision to legalise mass surveillance in the Islamabad High Court, requesting that the court declare it invalid. A petition has also been filed in the Lahore High Court challenging the decision, arguing that call tapping constitutes a serious invasion of privacy.
When Global Voices asked senior officials at the Pakistan Telecommunications Authority (PTA) about LIMS, they said, “We are not dealing with this issue and the PTA is not involved in any such activities.”
Global Voices spoke to Sadaf Khan of the non-profit organization Media Matters for Democracy via WhatsApp about the lack of awareness of surveillance.
Literacy rates are low in Pakistan, and surveillance regulations are rarely understood or discussed by the public. This lack of awareness is concerning as fear of government surveillance impacts freedom of expression online. A key issue is that people learned about the surveillance through court documents which show that it was being carried out without complying with the Fair Trial Act of 2013. This revelation creates fear and leads to self-censorship, hindering freedom of expression.
She further said the state must conduct fair oversight.
Pakistan faces significant law enforcement challenges, including the ongoing threat of terrorism. For law enforcement agencies around the world, surveillance is a key strategy for investigation and law enforcement. To ensure the fair use of such invasive procedures, Pakistan enacted the Fair Trial Investigations Act in 2013, which introduced judicial procedures for lawful surveillance, including warrant requirements and time limits. Similarly, PECA includes procedures for digital surveillance that require judicial intervention. However, the current authorization by the PTA circumvents these protective mechanisms, which is of great concern. National security is important, but must be balanced through the enforcement of protective laws to ensure that surveillance is fair and impartial.
Lawyer Ali Tahir told Global Voices via WhatsApp:
Surveillance in Pakistan is primarily state-sponsored, with the assistance of private companies and telecommunications operators. This collaboration operates under invasive privacy laws and legal uncertainty. Even without legal backing, intelligence agencies illegally intercept and record phone calls and text messages. High-profile figures, including the Prime Minister and the Chief Justice of the Supreme Court, have been victims of leaked audio.
When asked about the purpose of the interception, he further said:
Clearly, this is not a lawful purpose. The IHC court found that there was no legal warrant for 11 years, which indicates illegal wiretapping. Even if it was for security purposes, the lack of a warrant is illegal. Article 14(1) of the Constitution guarantees the right to privacy, which extends to telephone calls. Laws such as the Telephone Communications Surveillance and Control Rules, 2010 and Investigation for Fair Trial Act, 2013 regulate surveillance and require a court warrant and permission from a higher official for certain offences. No agency should arbitrarily infringe on the privacy of an individual, as doing so would be against the interest of the state.
