Power and rights are neither absolute nor permanent but dynamic, situational, contested and socially constructed concepts. Power, in the sociological context does not merely mean raw physical force or economic might to influence the thoughts, actions and behaviour of others. In reality, it represents the will and capacity to give a particular context, on the basis of one’s own values or interests, which other people, organizations or nations willingly or unwillingly follow.
According to the Stanford Encyclopedia of Philosophy, the concept of privacy is rooted in Western philosophy. Aristotle introduced and distinguished between the notions of ‘polis’, meaning the public domain of political activity, and ‘oikos’, which refers to the domestic family sphere. However, in this Greek intellectual distinction the original purpose was not to restrict self-regulation or obviate state oversight which is different but equally important for appropriate social behaviour and prevent individual criminal activities in both individual and public gatherings and situations.
During the late 19th century, the evolution of the US privacy protection law was mainly influenced by the moral consideration to protect family values and customs within an increasingly diverse and multi-racial, multi-ethnic and multi-religious American society rather than to merely serve as a legal instrument to protect an individual’s right to deny the state’s intrusion into his/her personal affairs.
It is important to recognize and appreciate the fundamental reality that mutual relations between state and its citizens are primarily grounded in its social contract, based on how the rights and obligations are socially constructed within a particular cultural context, before being constitutionally agreed and subsequently enforced through law-making and protected through legal implementation.
In Quran, Surah-e-Hujurat (Chapter 12, verse 49) describes the Islamic concept of privacy but comprehensively and clearly demands a careful balance between social and individual rights and obligations, by urging Muslims to simultaneously avoid suspicion, spying and backbiting. This indicates that unlike Western philosophy and modern jurisprudence the Islamic notion of privacy is neither unilateral, unconditional nor isolated from the overall and overarching objective of creating a just, peaceful and respectable society, in which the individual’s rights are balanced with his/her equally vital social obligation of not indulging in backbiting or conspiracies against the state.
According to ‘Tarikh-e-Tabari’ (Volume 2, Pages 320-321), Hazrat Hatib bin Abi Balta’ah (ra), a Muslim companion of the Prophet (pbuh) and a war veteran of the battle of Badr, sent a secret letter to his tribe to warn them about the Muslims’ plan to attack them. The letter was covertly hidden and carried by a woman. The prophet (pbuh) sent Hazrat Ali bin Abu Talib (ra) and Hazrat Zubair bin Awam (ra) to intercept that woman and ensure the letter did not reach the enemy. Hazrat Ali swiftly followed the woman and after stopping her searched her camel and all her belongings but couldn’t find the letter.
Since Hazrat Ali was convinced about the authenticity of the information, he threatened the woman with dire consequences. Upon realizing that he would not budge or let her go unless she handed over the letter, the woman took it out of her hair and gave it to Hazrat Ali (ra) who promptly brought it to the Prophet (pbuh). The Prophet (pbuh) called and investigated his Muslim companion Hatib bin Abi Balta’ah (ra) and demanded an explanation before other companions. Hazrat Umer (ra) advised the Prophet (pbuh) to punish the concerned sahabi for his betrayal and breach of trust but the Prophet (pbuh) stopped short of punishing him only because he was a war veteran of the battle of Badr.
This very important historic incident proves that the concept of privacy is neither universal nor provides a legal justification to allow any individual or group, irrespective of their rank or prestige, to indulge in anti-state activities and harm state interests.
Islamic philosophy offers great respect and sanctity to all individuals, particularly in terms of protecting the dignity and honor of ladies and protecting all individuals against several forms of discrimination. However, the above Quranic verse and this particular personal decision, act and instruction of the Holy Prophet (pbuh) clearly proves that any individual, including a close, respected companion and war veteran of the Prophet (pbuh) as well as a woman were not allowed to use the notion of privacy to harm the collective public and state interest of the entire Muslim state and even their personal letter addressed to a relative, which is private property, was confiscated.
In the contemporary environment characterized by accelerated globalization, rapid advent of IT and cyber technologies and growing popularity of social media, reviewing the notion of privacy has become very significant – not to reject it but to adapt and tailor it more accurately to the changing global, regional and domestic environment. The social and actual purpose of the concept of privacy and its traditional legal framework needs to be dispassionately and logically revisited in order to ensure that the social contract between state and society is realistically and practically preserved in line with our values, culture as well as national security considerations.
The global war on terror, the swift evolution of the IT sector and growing domestic and global cyber security challenges have made information domain the most critical battlespace in the perpetual contest between values, interests, wealth and power between states as well as within states, way beyond conventional battlefields.
We are all living in an environment in which our family structure, values, ideology and culture are constantly facing moral and intellectual threats not merely economic losses or data theft. Hybrid warfare has virtually replaced conventional warfare as a superior, low-cost but more effective strategy to disrupt the social cohesion, political stability and moral values of other states. Therefore, the modern legal system must recognize that these rapid, real and deep transformations in our social interactions, relations, behaviour and norms pose critical and decisive challenges to our values, social structures as well as national interests, not merely the rights of an individual.
It is a national security imperative for our parliament, along with its relevant standing committees on law, justice, human rights, religious affairs as well as the Council of Islamic Ideology to start a timely, unemotional and informed debate to ensure that the concept of privacy and national security are mutually consistent and our privacy laws are compatible with our own values, ideology, culture and national interests and not driven by merely by individual and political interests as well as liberal norms, external expectations and pressures.
The writer is an international security analyst with over28 years of internationally
negotiating, advising,analyzing, publishing and teaching several aspects ofnational security.