Pakistan's intelligence agencies gain legal cover for surveillance
Despite Supreme Court rulings against illegal surveillance, Pakistan's decision allowing it's spy agency, ISI, to monitor nearly all digital conversations has sparked outrage among political leaders, activists, and legal experts.
Is it a national security protection or privacy threat?
Originally published on Global Voices
The Supreme Court of Pakistan. Image taken by the author.
Pakistan has formally authorized the military-run Inter-Services Intelligence (ISI) to intercept citizens’ phone calls and messages under the guise of national security, a term often used by the state to infringe on citizens’ rights. Despite the Supreme Court's rulings declaring such surveillance illegal and unconstitutional, violating the dignity of man as enshrined in Article 14 of the Constitution of Pakistan, this authorization persists.
During an ongoing audio leak case involving Bushra Bibi, wife of imprisoned former Prime Minister Imran Khan, the Islamabad High Court (IHC) was informed about a Lawful Intercept Management System (LIMS) being in place without any legal backing. Lawful interception (LIMS) enables law enforcement agencies, with court orders or legal authorization, to selectively wiretap targeted individual telecommunications subscribers. Telecom companies in the country provided intelligence agencies with access to the phone calls, messages, and web browsing data of 2 percent (approximately 4 million) of their users through LIMS. Subsequently, the government issued a Statutory Regulatory Order (SRO) notification, permitting the ISI to monitor citizens under Section 54/1 of the Pakistan Telecommunication Act 1996, thereby granting it legal cover.
This controversial decision has initiated a debate among opposition leaders, citizens, and digital rights activists on social media, who argue that it violates citizens’ constitutional rights under Article 4.
The Human Rights Commission of Pakistan (HRCP) states that the notification flagrantly violates citizens’ constitutionally protected rights:
HRCP is deeply concerned by the recent unconstitutional notification issued by the federal government giving intelligence personnel carte blanche to intercept and trace the calls of any citizen in the interest of ‘national security’.
The notification is in flagrant violation…
— Human Rights Commission of Pakistan (@HRCP87) July 10, 2024
Reema Omar, a legal advisor for South Asia at the International Commission of Jurists, highlights the reasons why the notification was made in bad faith:
1. The Government’s notification authorising the ISI to intercept and trace calls is mala fide, unlawful, and a glaring surrender of human rights and fundamental freedoms
Some reasons why: pic.twitter.com/bW2U3eWah2
— Reema Omer (@reema_omer) July 10, 2024
Surveillance laws in Pakistan:
Since its independence in 1947, Pakistan has utilized various legislations and laws to monitor its citizens. The Telegraph Act of 1885 allowed the interception of messages and control of licensed telegraphs in the interest of public safety or during emergencies. The Federal Investigation Agency Act of 1974 aimed to prevent and detect various crimes, including offences under the Pakistan Penal Code, Official Secrets Act, and Prevention of Corruption Act. The Pakistan Telecommunication Act of 1996 outlined a framework for 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, however, investigative agencies were not given powers to monitor private communications. The Prevention of Electronic Crimes Act (PECA) of 2016 granted the Pakistan Telecommunications Authority (PTA) the power to block or remove information on the internet. The Monitoring and Reconciliation of Telephony Traffic Regulations of 2010 required providers to establish systems for real-time monitoring and recording of network traffic, banned the use of encryption software and granted PTA the authority to monitor all internet traffic through a monitoring system that internet service providers (ISPs) were mandated to install.
History of Audio leak cases in Pakistan
In the past, Pakistani Prime Ministers, federal ministers, and high-ranking officials have alleged that their private telephone conversations were made public. A notable case is Benazir Bhutto vs. the President of Pakistan, where the government was found guilty of illegally tapping the phones of political opponents with support from state intelligence agencies. The Supreme Court ruled that the government must obtain permission from a commission or the Supreme Court for each case of phone tapping until appropriate legislation was enacted to protect the constitutional rights of privacy and freedom of speech. In 2013, Parliament passed the Investigation for Fair Trial 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 were either refuted or met with silence, the advent of AI-generated content has added complexity and potential threats, necessitating forensic analysis to determine recording authenticity. In 2019, in the video scandal case involving an Accountability Court judge, the Supreme Court ruled that “No audio tape or video can be relied upon by a court until a forensic report is prepared by an analyst from the Punjab Forensic Science Agency, as per Section 9(3) of the Punjab Forensic Science Agency Act, 2007.
Reactions to this decision:
Omar Ayub Khan, the opposition leader in Parliament, believes the spy agency will target lawmakers and has labelled the notification a “black law.”
Defence Minister Khawaja Asif, a strong supporter of the move, recalled Imran Khan’s support for the military agency (ISI) engaging in unauthorized surveillance of politicians’ phone calls.
Six members of the Pakistan Bar Council (PBC) have challenged the government's decision to legalize mass surveillance in the Islamabad High Court, requesting that the court declare it null and void. A petition also has been filed in the Lahore High Court challenging this decision, arguing that call-tapping constitutes a serious invasion of privacy.
When Global Voices inquired with a senior official of the Pakistan Telecommunication Authority (PTA) about LIMS, they responded, “We do not handle this matter, and PTA is not involved in such activities.”
Global Voices spoke with Sadaf Khan of the non-profit Media Matters for Democracy via WhatsApp about the lack of awareness surrounding surveillance. She noted:
Pakistan has low literacy, and surveillance regulations are rarely understood or discussed by the public. This lack of awareness is concerning, as the fear of government surveillance impacts online freedom of expression. The key issue is that we learned about surveillance through court documents indicating it occurred without adhering to the Fair Trial Act of 2013. This revelation creates fear, leading to self-censorship and hindering freedom of expression.
She further stated that the state must conduct fair surveillance:
Pakistan faces significant law enforcement challenges, including ongoing terrorism threats. Surveillance is a crucial strategy for law enforcement worldwide to investigate and enforce laws. To ensure fair use of such invasive procedures, Pakistan enacted the Investigations for Fair Trial Act in 2013, which introduced judicial procedures for lawful surveillance, including warrant requirements and timelines. Similarly, PECA includes procedures for digital surveillance requiring judicial intervention. However, current authorizations through the PTA bypass these protective mechanisms, which is very concerning. While national security is important, there must be a balance through the enforcement of protective laws, ensuring that surveillance is both fair and just.
Barrister Ali Tahir told Global Voices via WhatsApp:
Surveillance in Pakistan primarily involves state monitoring, supported by private companies and telecom providers. This collaboration operates under privacy-eroding laws and legal uncertainties. Even without legal backing, intelligence agencies intercept and record calls and texts illegally. High-profile figures, including Prime Ministers and Chief Justices, have been victims of leaked audios.
When asked about the purpose behind the interception, he further stated:
It is clearly not for legal purposes. The IHC court has revealed no warrants under the law for eleven years, indicating illegal call tapping. Even if it is for security, the lack of warrants makes it illegal. Article 14(1) of the Constitution guarantees the right to privacy, which extends to phone calls. Laws like the Monitoring and Reconciliation of Telephony Traffic Regulations (2010) and the Investigation for Fair Trial Act (2013) regulate surveillance, requiring court warrants and permissions from high-level officials for specific offenses. No agency should arbitrarily invade an individual's privacy, as doing so is against the state's interests.