“..if you want to keep a secret you must also hide it from yourself.”
– George Orwell, 1984.
State surveillance of individuals is a widely documented cause of concern and the Pakistani State’s history of offline and subsequent online surveillance of its citizens depicts how this surveillance has now taken the form of content regulation online and has in fact caused a chilling effect by curtailing citizens’ constitutional rights of free speech and privacy.
Article 14 (1) of the Constitution of Pakistan 1973 recognises the right to privacy:
The dignity of man aid, subject to law, the privacy of home, shall be inviolable.
The inviolability of this right is ‘subject to law’. This expression is vague and a bare reading of the same presumes that citizens’ right to privacy can be curtailed at any time by the State through legislation.
Mr. Zaki Rahman, an Advocate of the High Courts, says, “Little jurisprudence has been developed in relation to the right to privacy in Pakistan. This is perhaps because the provision has not been phrased to extend to all forms of privacy (i.e. that it only extends to the home). This lacuna is for courts to interpret and that in this day and age, they are empowered to interpret the right to include data privacy, limiting the extent to which regulatory bodies utilise citizens’ private data through surveillance.”
Mr. Rehman’s view on whether the right to privacy applies to online platforms and to what extent the right to privacy is ‘subject to law’ can be debated. The Supreme Court of Pakistan in the Mohtarma Benazir Bhutto vs. President of Pakistan and others questioned whether surveillance of citizens through phone tapping was permissible under Article 14(1) of the Constitution. The case related to the dismissal of the then Prime Minister of Pakistan, Benazir Bhutto. One of the questions which arose in the case was whether the permitting the surveillance of certain individuals through wire-tapping was lawful under the Constitution. In this context, it was observed that privacy was not limited to the confines of the home:
- The term “privacy of home” cannot be restricted to the privacy in respect of home, the privacy within the four walls of the home. It refers to the privacy, which is sacred and secure like the privacy a person enjoys in his home. Such privacy of home a person is entitled to enjoy wherever he lives or works, inside the premises or in open land. Even the privacy of a person cannot be intruded in public places.
Although there was no law regulating surveillance in this case, it is clear that the ‘privacy of home’ is a broad term, which restricted the State’s ability to interfere with citizens’ private communications. A similar interpretation was adopted by the UN Special Rapporteur (UNSR) on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, in his report in 2013. According to this report, privacy meant an individual’s area of autonomous development, interaction and liberty, i.e. a sphere free from State intervention and from other unsolicited intervention by other actors.
Although the term ‘subject to law’ has been sparsely defined by courts, other jurisprudence seems to suggest that limitations on the right must be reasonable. It is however regrettable that courts have seldom interpreted reasonableness in the context of this right.
The UNSR also observed that the right to privacy included the ability of individuals to determine who would hold information about them and how it would be shared. This view was endorsed by Pakistani courts. Use of individuals’ data without their consent was declared as an unconstitutional violation of Article 14 (1) in the 2004 case of M.D. Tahir, Advocate vs. The Director, State Bank of Pakistan, Lahore and 3 others. The Lahore High Court (LHC), in this case, struck a circular down requiring banks to disclose citizens’ financial information to the Central Board of Revenue and the State Bank of Pakistan in certain situations holding that the people of Pakistan had a “right not to have their private financial matters, given in good faith under a fiduciary relationship to Banks, placed before tax collection agencies without allegations of wrongdoing.”
The LHC held that the “home”, “person” and “life” had been granted constitutional protection from State interference and that“…when one’s most private details are taken, it affects the life of the person making him potentially vulnerable and insecure.”
Although the courts did not directly target online regulation due to limited technological advancements at the time, much can be gleaned from the jurisprudence above. In principle, the limited interpretations of Article 14 (1) reflect a strict approach against State interference with citizens’ privacy vis-a-vis their communications.
Article 17 of the International Covenant on Civil and Political Rights (ICCPR), which Pakistan is signatory to, refers to protection from interference with correspondence which the ICCPR commentary interprets to include all forms of communication, both online and offline. Given the increased use of the internet in daily lives and the line between online and offline being blurred, these precedents are extendable to online platforms and the information citizens share online.
State surveillance of Pakistani citizens is not novel. On 14 March 1973, the National Assembly of Pakistan’s Constitution-making Committee analysed the then-Article 13 of the Draft Constitution. Mr. Mahmud Ali Kasuri moved an unsuccessful amendment to the right to privacy under the Draft Constitution, prompted by his own experiences of being surveilled by the State. He noted that citizens cannot expect the authorities to not surveil them, and requested that it should only be done by the orders of the Court.
“Let me say here that the unfortunate situation in Pakistan is that our correspondence is subject to censorship and censorship is contrary to law. […] Now this is a disgraceful state of affairs that a citizen’s correspondence in this country, his talk on the telephone in this country, his attempt to talk to anyone, should be subject to censorship. It is illegal. All I have to say is this. We cannot expect you to desist from the censorship. We cannot expect you to desist from recording the talks. But kindly do it with the orders of the Court and not without the orders of the court.” – Mahmud Ali Kasuri, 1973
Since then, State surveillance has only increased with the advent of anti-terrorism laws. An example is Section 11-EE of the Anti-Terrorism Act 1997. Under this provision, if the government suspects a person of being involved in terrorist activity, it could place the suspect’s name under the Fourth Schedule to the Act titled ‘Proscription of Person’, effectively allowing their surveillance. Although the government is required to proscribe a person under the Act through an order published in the official Gazette, it is also empowered to take this action against a person on an ex-parte basis (without providing them a hearing). There is also no requirement for the Federal Government to obtain a court order as a condition precedent to exercising its powers under Section 11-EE. However, the exercise of its powers under the provision can be appealed against to a High Court.
The prerequisites for such proscription are vague. The government must have reasonable grounds to proscribe a person which “may be formed on the basis of information received from any credible source whether domestic of foreign including governmental and regulatory authorities, law enforcement agencies, financial intelligence units, banks and on-banking companies and international institutions.” There is no prescribed procedure on how this information is received, whether a ‘credible source’ is exhaustively defined for the purposes of the provision, and which information can sufficiently result in the proscription of a person. The implications of such vague provisions is the lack of transparency and accountability with which the proscription takes place; lending much impunity to the State in enforcing the law.
Another example was the Actions (in Aid of) Civil Powers Ordinance 2019 (initially applicable to erstwhile FATA and PATA through Regulations in 2011 but extended via a 2019 Ordinance to KPK) where a member of the Armed Forces, conducting actions in aid of civil powers is permitted to “gather information through all means” about individuals potentially deemed ‘miscreants’ by the State in erstwhile FATA and PATA. Regulations like these provide vast powers to state officials to gather citizens’ private data and surveil their activities under the tag of ‘national security’. Although the 2019 Ordinance has lapsed, the 2011 Regulations remain in force and have been extended to Khyber Pakhtunkhwa through a legislative act. Privacy International reported that in 2015 the country’s intelligence agency had tapped 6,523 phones in February, 6,819 in March and 6742 in April. The pretext of national security is perhaps what enables this widespread surveillance.
According to the 2013 UNSR Report, vague and unspecified restrictions in the name of ‘national security’ could be used by the State as acceptable justifications for the surveillance of citizens’ communications, and could be manipulated by it as a means to target vulnerable groups, particularly journalists and activists. It also observed that non-transparent executive use of surveillance had a chilling effect where it remained undocumented without any known checks and balances to prevent its abuse. Therefore, surveillance of citizens on the pretext of national security, reflected in the laws above, is also considerably a violation of Pakistan’s obligations under international human rights law. Citizens can be arbitrarily punished for infractions they are not even aware of committing and there is much impunity against the manner in which information on citizens’ movement is gathered. Perhaps this is why there is a need for further jurisprudence to measure the reasonableness of restrictions placed through legislation on its exercise in Pakistan.
While the country may have enacted legislation to curtail citizen’s privacy of home; it has failed to comply with its international obligations by affording any clarity to the same. This mass unclear and unreasonable mandate of surveilling citizens through vague laws and non-transparent enforcement has a chilling effect. Citizens refrain from engaging in speech and expression fearing that it may cause potential infractions, which we see happening already. The State’s wholly unclear and unconstitutional policy of arresting people for speech made online and initially without charge discourages people from exercising their rights.
The Right to Privacy and the Freedom of Speech and Expression
Article 19: Freedom of Speech, etc of the Constitution of Pakistan guarantees citizens the freedom of speech and expression subject to reasonable restrictions which may be imposed by law. The practice of this right, however, is contingent upon the requirement that such communication is free from unlawful interception and interference.
In the Mohtarma Benazir Bhutto case, the Supreme Court held that citizens’ surveillance was not only a breach of their right to privacy, but also violated their right to speech and expression:
- “Another aspect of the case […] cannot be ignored that once any person’s telephone is subjected to eavesdropping, tapping, intrusion or interference of any kind, it interferes with the right of free speech and expression. […] a person in the presence of others may not be able to talk so freely or to express himself without any restriction or hesitation. Therefore, the tapping and eaves-dropping [sic] of telephone also infringes Article 19 […]”
Today, wire-tapping and other means of offline surveillance have become less relevant with most correspondence shifting online. One of the first pieces of legislation exclusively regulating online platforms was the Prevention of Electronic Crimes Act 2016 (PECA). The law aimed to regulate online content, particularly tackling online harassment, cyberterrorism, cyberstalking, blasphemy and forgery. Yet in effect, PECA increases communications surveillance, allowing the State vast powers to access citizens’ private correspondence, and to retain and utilise it for purposes stated in the Act. For instance, the Act requires service providers to retain user data, and the Pakistan Telecommunication Authority (PTA) can order service providers to provide access to this data. As was held in MD Tahir case, service providers owe a duty to their users to not share content with third parties without their consent. Sharing citizens’ information, without their consent, is evidently a violation of Article 14(1) of the Constitution.
Additionally, Section 37: Unlawful Online Content of PECA empowers the PTA to remove or block access to unlawful online content where it ‘considers it necessary in the interest of the glory of Islam, or the integrity, security or defence of Pakistan or any part thereof, public order, decency or morality, or in relation to contempt of court or commission of or incitement to an offence under this Act.’ It also gives the Authority power to prescribe rules for an oversight mechanism under Section 37 (1). The provision broadly mirrors the constitutional restraints on free speech and expression under Article 19; essentially placing the same speech restrictions online. Mirrored online, the vague restrictions extend the application of the State’s vast powers to restrict speech according to its own conceptions of what constitutes a violation of the limitations to Article 19.
However, PECA also reinforces its own vague limitations. Section 9 prohibits glorification of an “offence relating to terrorism, or any person convicted of a crime relating to terrorism, or activities of proscribed organizations or individuals or groups…”. General Comment No. 34 on Article 19 of the ICCPR clearly advises such provisions to be clearly defined so that they do not disproportionately interfere with the freedom of expression. PECA’s explanation of the term ‘glorification’ which states “depiction of any form of praise or celebration in a desirable manner” remains ambiguous and unclarified providing the State open-ended powers to punish citizens seemingly ‘glorifying an offence’ even in private communications.
Arguably, content regulation laws, including PECA, imbibe all forms of state regulation cited by the UN Special Rapporteur’s 2016 Report on the promotion and protection of the right to freedom of opinion and expression, as causes for concern. PECA is not only vague, but contains excessive intermediary liabilities, often requiring service providers to enforce the limitations contained in it to comply with the terms and conditions of their operating licenses. This is a concerning trend according to the 2016 UNSR Report’s observations on the States’ regulation of online content. According to the report, service providers are required to comply with local laws and regulations as conditions of their operating licenses. This provision becomes problematic when that local legislation or its implementation is itself inconsistent with human rights law. Under PECA, the PTA regularly monitors online content, submitting requests to social media companies and service providers to remove or block it where it violates local guidelines.
As a result of these vague provisions which give the executive complete authority to regulate citizens’ correspondence and information online, individuals tend to self-censor to filter content which can be considered a violation of PECA, furthering the control on citizens’ free speech that the authorities have repeatedly attempted to curtail through various legislations.
The 2013 UNSR Report observed that the right to privacy was an essential requirement for the realization of the right to speech and expression. Limitations on anonymity in communication, with the knowledge that one is being observed, has a direct impact on the information citizens choose to disseminate online and offline.
The Social Media Conundrum
Additionally, with social media applications such as Facebook and Twitter becoming regular platforms for expression, their regulation is a pressing matter for the government. Hence, in January 2020, it notified the Citizens Protection (Against Online Harm) Rules 2020 after the Federal Cabinet’s approval. However, after several objections, the Chairman of the PTA suspended the implementation of the Rules, yet they legally remained in force. However, another set of Rules was later notified and officially gazetted in October 2020 which broadly continued to mirror the earlier ones. They included unreasonable provisions such as requiring social media companies to block online content upon instructions by the PTA within 24 hours, to regulate content posted online in conformity with the guidelines prescribed in the Rules, to establish offices in Pakistan etc.
Hassan A. Niazi, a lawyer from Lahore, says that there is increasing acceptance amongst tech giants that social media requires government regulation. However, he says that any regulation must balance user safety and freedom of expression. “Regulation should make it obligatory on regulatory authorities to frame their decisions according to the principles given in Article 19 of the ICCPR. The ICCPR states that any restriction on speech should be both necessary and proportionate to the harm sought to be avoided.” Hassan is of the view that proportionality is a key element that allows for an effective balance to be maintained between freedom of expression and safety as it focuses regulatory efforts on the prevalence of content. He adds, “It is harmful content that has the potential for being viewed by thousands of users that should be the focus of regulatory efforts, as opposed to content that is unlikely to be viewed by anyone. Restricting or blocking content is the harshest restriction that can be imposed on expression, therefore it should only be applicable to the most harmful content, such as sexual exploitation, child abuse, and terrorism.”
However, the more draconian requirement came in Rule 9 (7) of the Rules where a service provider or a social media company was required to provide information, data, content or sub-content to the Investigation Agency, “in decrypted, readable and comprehensible format or plain version in accordance with the PECA.” The explanation to this sub-rule requires that “subject to justifiable technical limitations” the information provided can include, but is not limited to, information such as subscriber information, traffic data and content data.
Clearly this is a violation of the dictum in M.D. Tahir’s case in which the Lahore High Court held that citizens’ private information is protected under Article 14 (1) of the Constitution. Social media companies owe a duty to their users to not share their private data with any other party, save for allegations of wrongdoing. The interception of citizens’ communication limiting their anonymity by compelling service providers to share the same is not only a violation of citizens’ right to privacy but also chills their speech.
But Hassan may be right. It would be unreasonable to say that speech online should be unregulated, but these restraints must be clearly defined, should be proportionate to their objective and cannot paralyse the exercise of other fundamental rights. It befalls upon Pakistan to ensure that legislation is enacted with the view to protect rights rather than restrict them.
The Pakistani State’s online surveillance of its citizens through vague legislation is much like Jeremy Bentham’s ‘Panopticon’ i.e. a prison system where the watchman can observe the occupants of the prison but they cannot see the watchman; occupants are however acutely aware that they are being watched. The enactment of vague laws in Pakistan is the panopticon. Citizens are aware that they are being observed, and will discipline and police themselves to avoid possible punishment; resulting in a chilling effect both online and offline.
The surveillance of online platforms is much like Pakistan’s treatment of offline activity: surveil, discipline and punish. In 2017, the Human Rights Watch observed that Pakistan was, ‘clamping down on internet dissent at the expense of fundamental rights’. Earlier that year, five bloggers were abducted for operating Facebook pages that were anti-state and/or blasphemous. Punishments for infractions remained unclear, but it was evident that citizens ran the risk of violence for sharing certain content online.
It is unfortunate that citizens of the country continue to regulate their speech out of fear of punishment. But this much is clear. Surveillance under the garb of regulation in the non-transparent manner that Pakistan has adopted for long, is impermissible both under its own Constitution and international human rights law. Till such time the State continues unlawful interference in individuals’ communications, the freedom of speech and expression in Pakistan in the digital age remains illusory.