The Necessary & Proportionate Principles can be construed as being the foundation of all legislative functions in regard to any surveillance that needs to be carried out anywhere in the world. What is necessary to note here is that there are barely a handful of nations which take citizen privacy seriously and do not perceive the denial of this privacy as an affront to an internationally recognized human right. In a state like Peoples Republic of China where the Great Firewall prevents citizens on accessing anti-state information and keep tabs on their citizens activity online. Ironically, Peoples Republic of China was one of the principal designers of the membership of the Commission of the Human Rights.
In Pakistan, where surveillance and content filtering happens on an ad hoc basis and no legislation exists, the time is ripe to draft legislation pertaining to surveillance. The current set up entrusts the Federal Investigation Agency in tandem with the Ministry of Information Technology to carry out surveillance and blocking of pages on an ad hoc level. No information is disseminated to the common public to evaluate the criteria employed by the State in blocking websites. Nor explanations as to what is construed as, “objectionable” content. The Cyber Crimes Bills of 2007, 2011 and now 2014 all failed to make it past the Parliament, and with good reason; they repeatedly failed to address the blatant violations of citizen privacy and how they resonate with the Universal Declaration of Human Rights. Such repeated failures to strike a balance between protection of rights and provision of security have led to a landscape that is either completely unregulated, or regulated with a completely lack of transparency and with little or no public oversight, which are key principles of the Application of Human Rights to Communications Surveillance.
The latter scenario is ably demonstrated by the Anti-Terrorism Act of 1997, which reads:
5. Use of armed forces and civil armed forces to prevent terrorism.
(2) In particular and without prejudice to the generality of the provisions of sub-section (1), an officer of the police, armed forces and civil armed forces may—
iii) Enter and search without warrant, any premises to make any arrest or to take possession of any property, firearm, weapon or article used or likely to be used, in the commission of any terrorist act or scheduled offence.
Clearly a country at the front line of the War on Terror needs laws that effectively deal with the problems associated with terrorism, so in accordance with the Principles, there is a necessity and a legitimate aim. However, the question that then arises is whether such laws are proportionate and adequate, and whether they fit within the ambit of ensuring due process. The aforementioned law not only involves physical searches of property, which is an abuse of due process, but has also been used in order to digitally surveil individuals, which is a violation of the principle of user-notification. At a stage before sufficient guilt to process a warrant exists, this poses a serious threat to individual liberties. This is, not only by all standards a mockery of due process but also fails to ensure transparency and there is no form of public oversight, or competent judicial authority that oversees who is surveilled and for what purposes. The process also leaves no room for user notification of any form, and neither are the criterion of the requirement for proportionality addressed by the legislation. For a country attempting to pull itself out of a history of military rule, it does not bode well for democracy when unregulated and arbitrary policing is still the objective of the state. This clause even becomes harrowing when read with 27B of the same act, a recent addition to the Anti-Terrorism Act, which reads:
“… the conviction of an accused for an offence under this Act solely on the basis of electronic or forensic evidence or such other evidence that may have become available because of modern devices or techniques referred to [in the evidence law] shall be lawful.”
The addition of electronic evidence as a basis of conviction after allowing authorities to “hack” access to electronic devices in order to surveil individuals with no requirement for procedure or transparency further puts citizens at risk of being at the wrong end of a disproportionate misuse of unrestricted power by security forces.
The lack of accountability, which again is an integral pillar of the Necessary and Proportionate Principles, was further highlighted by the creation of the Inter Ministerial Committee for the Evaluation of Websites (IMCEW) by the Prime Minister of Pakistan in 2006 via notification number 5-1 2005 DFU. The mandate of the IMCEW was ambiguous to the point that it defies all notions of clarity of law, with its official task being to censure “obnoxious and blasphemous” material over the internet. To this date, no legal definition has been attributed to the word obnoxious. That may go a long way in explaining why websites such as the Pakistan Telecommunications workers union website, minority rights websites, entertainment websites (such as IMDB), and many more have been blocked at some stage or the other by the IMCEW.
In approximately 8 years since it’s creation, no functioning or decision of the IMCEW has ever been made public. It provides no list of websites it requests the PTA to have blocked, it is not required to provide reason, and there exists no process for appeals against its decisions. Once again, a flagrant disregard for due process, with non-existent accountability and public oversight, and an arbitrary policing authority straight out of a Orwellian nightmare can be identified as a distinct feature of the Pakistani laws in relation to internet privacy and freedom of access to information.
Article 54 of the Pakistan Telecommunications (Re-organization) Act 1996 is another cause of concern. It reads:
“Notwithstanding anything contained in any law for the time being in force, in the interest of national security or in the apprehension of any offence, the Federal Government may authorise any person or persons to intercept calls and messages or to trace calls through any telecommunication system.”
Here the federal government provides itself with the complete authority to order searches and surveillance against individuals, which again poses questions of due process, transparency, and proportionality. In its entirety, the law becomes a dilatory exercise that fails in its fundamental aims to protect individual liberties, and in the process, loses its legitimacy. This violates the Principles that demand authorities must have a “legitimate aim”, “necessity” and “adequacy”.
Being a citizen of a democratic state, it is every individual’s right to ask and be provided with information. However, in the geographical and legal jurisdiction of the Federal Government, bureaucracy prevents individuals from privacy, and access to information which is so desperately needed. In a report by Freedom House, Pakistan’s internet was classified as, “Not Free” with no regard to internet security and privacy. On a scale of 1-100 with 100 being worst, Pakistan ranked 67 on the Freedom on the Net. Such is our cyber infrastructure.
The current legislations and the lack of necessary protections calls for immediate reforms in existing laws, unless there’s significant push for secure and open communications fears of a surveillance state are real and fast becoming our reality.
