What is the legal framework that allows surveillance of citizens online? Who has the jurisdiction to do so? Perhaps the answer lies in Investigation for Fair Trial Act (IFTA) 2013
The right to free speech (Article 19) and right to privacy (Article 14) are enshrined in the Pakistani constitution as fundamental guarantees. However, there are exclusions in Article 19 that relate to restrictions on free speech such as limitations on criticism of Islam, military and judiciary.
In a security state such as Pakistan, the authorities tend to enforce restrictions more than rights. In recent times this is more so in the online world or cyberspace. Recently free speech practitioners, known as ‘bloggers’ or ‘social media activists’, have been targeted either physically (attacks, kidnap and torture) or through serious allegations against them by state authorities.
In a press conference in the first week of June 2018, a spokesman for the military expressed concerns over what he alleged was ‘anti-state’ activities of some netizens, and indicated that an official exercise is under way to monitor them. Some slides were exhibited of ‘free speech’ practitioners that were allegedly violative of the restrictions showcased by Article 19.
In other words, an official admission was made that surveillance is being conducted of citizens exercising their free speech rights which clashes with their privacy rights online.
What is the legal framework that allows surveillance of citizens online? Who has the jurisdiction to do so? What rules and procedures govern the legality of this exercise? The answers to these questions are enshrined in the little analysed Investigation for Fair Trial Act (IFTA) 2013.
IFTA was enacted in the last days of the PPP government with the stated objective of providing a legal framework for "collection of evidence by means of modern techniques and devices" and "to regulate the powers of the law enforcement and intelligence agencies" in collection of such evidence. The Act aimed at preventing arbitrary use of power by the law enforcement and intelligence agencies, and bring their acts of covert surveillance, wire-tapping and communication interception under proper executive and judicial oversight.
The unstated objective of the Act was to give evidentiary value to the information/data collected through covert surveillance and wire-tapping of alleged ‘suspects.’
IFTA empowered the judiciary to have an oversight of intelligence and law enforcement agencies’ covert surveillance and interception of communication including emails, SMS, Internet Protocol Detail Record (IPDR), Call Detail Record (CDR) and any form of computer-based or cellphone-based communication and voice analysis. On practical side, the Act was an effort to streamline ‘ongoing surveillance and monitoring of suspects’ by the agencies, and bring such activities under a legal framework and judicial scrutiny.
To achieve the above stated and unstated objectives, the Act provides a three-stage framework as gatekeeper for unbridled actions of the intelligence agencies. The framework consists of (i) minister-level permission to initiate application for monitor and undertake surveillance, (ii) judicial authorisation for surveillance/interception and six-monthly review and (iii) oversight of application of the law by a ministerial level Review Committee -- comprising federal ministers of defence, interior and law.
The procedure, laid down by the Act, necessitates the director general of agencies -- Inter Service Intelligence, three Services Intelligence Agencies, Intelligence Bureau and Police -- to be the applicant to seek approval for surveillance of a suspect. The Act also requires the applicant to notify and authorise "an appropriate officer not below BPS-20 or equivalent" to make the application for authorisation on his behalf.
However, before seeking warrant of surveillance from the concerned judge of the High Court, it is mandatory for the applicant /‘authorised officer’ to present the application/report to the federal interior minister for permission. Upon receipt of the application, duly permitted by the minister, the judge shall entertain the authorised officer in the chamber and pass appropriate order. The Act, however, does not give any arbitrary power to the judge to issue warrants Before making any order, the judge must consider certain conditions laid out in Section 10 of the Act.
In order to keep the surveillance process within the scope of the warrant, the Act authorises the judge to entertain complaints against the applicant for any misuse of given authority. Furthermore, to ensure prevention of misuse of any authority, the Act also authorises the review committee to conduct a six-monthly review of all the applications made under the Act. The committee is mandated to assess if the evidence collected through the warrants was helpful in prevention of offences as well as achieve the purposes of the Act.
The Investigation for Fair Trial Act 2013 is a unique and latest legislation on the subject. However, the provisions of the Telegraph Act (Section 05) and the Pakistan Telecommunication (Re-organization) Act 1996 (Section 54) remain valid. Nevertheless, Section 35 of the IFTA declares any surveillance or interception by any person, other than the procedure provided in this Act, as a crime punishable with imprisonment and fine. This would mean that the operation of provisions of any other law relating to surveillance is subject to the provision of this Act of 2013.
The Prevention of Electronic Crimes Act (PECA) 2016 is another legislation, which deals with the ‘objectionable’ content online. No other agency other than the Federal Investigation Agency (FIA) and Pakistan Telecom Authority (PTA) can take action under the PECA 2016. The Act also provides a judicial and parliamentary oversight of the actions taken by the above bodies. The IFTA, on the other hand, prohibits use of ‘intercepted material’ other than for the investigation of any crime. The violator of this prohibition can face imprisonment up to five years with fine up to ten million rupees.
Pakistan is signatory to the International Convention on Civil and Political Rights (ICCPR), which (Article 17) requires that "no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation." Article 17 of the ICCPR also necessitates legal protection to everyone against such interference or attacks. The Supreme Court of Pakistan (PLD 1998 SCMR 388), while interpreting Article 14 (right to privacy) of the Constitution of Pakistan, has held that "if a person intrudes into the privacy of any man, pries on the private life, it injures dignity of man and violates privacy of home." The Lahore High Court in 2004 CLC 1680 has termed the practice of collecting private information from one body to present to another, without any allegation of wrongdoing, as a violation of the right to privacy.
So, in terms of applicability of IFTA, legal concerns arise out of the assertion by the ISPR spokesperson that "we have the capability to monitor what is happening on [social media]" backed by his display of a slide of a ‘network of Twitter handles.’ The surveillance, online tracking, interception of communication and wire-tapping by any agency without following the procedure given in IFTA are prima facie illegal and display of covertly collected information in contravention of IFTA a crime.
The IFTA and PECA are not the ideal legislations. Both have several demerits, which are problematic on the touchstones of principles of justice and fundamental human rights. However, these laws provide certain judicial, administrative and parliamentary checks on the unbridled actions of surveillance, covert collection of data and information, online monitoring and interception of online communication by the agencies. Each and every person and organisation of the state is under the obligation to abide by the conditions/requirements provided by the laws of the land. No one should be above the law and rule of law is possible only when everyone submits to it.