Battling Orwellian surveillance

December 29, 2019

The modern fight for civil liberties is slowly shifting to online spaces

Fiction in the last century has pathologised the rise of the surveillance state and industry with seminal works such as V for Vendetta, the dystopia in Nineteen Eighty-Four and the technological utopia in Brave New World. In these depictions, the spectre of surveillance seems caricatured and the authors overly paranoid– surely human society will never evolve to this level of control and submission. However, the last decade has laid bare an unprecedented capitulation to the surveillance-industrial complex as tech companies have emerged as sites of thought-control and data collection. The enactment of intrusive legislation and policies by nation-states to monitor and control citizens under the garb of security is exasperating.

The acquisition of surveillance technology for mass monitoring by governments has been part of our collective public anxiety since the Snowden revelations. However, the import, export and acquisition of such technology have become particularly prevalent of late. This year it was reported that the government of Pakistan had acquired deep packet inspection technology from the Canadian firm, Sandvine. While the employment and policies around this technology are opaque, deep packet inspection has the potential to break encrypted communications and surveil not only traffic data but the content of communications as well. This nexus between governments and private firms is a double-edged sword; it has been reported by The Guardian that at least two dozen Pakistani government officials were targeted by the Israeli spyware company, NSO Group, through the WhatsApp hacks earlier this year. This has prompted the government to ban the use of social media applications for official communications. In light of developments such as these, the United Nations Special Rapporteur on Freedom of Opinion and Expression David Kaye has called for “an immediate moratorium on the sale, transfer and use of surveillance technology until human rights-compliant regulatory frameworks are in place”. The unregulated prevalence of technology, along with the absence of counter-narratives that challenge the equation of surveillance and security, is a threat to both citizens and governments.

The battle for civil liberties is slowly shifting to online spaces and the right to privacy is emerging as the most contested right of our times. Jurisprudence and scholarship around the right to privacy reveals that it is an intersectional right integral to other freedoms such as free expression, freedom of association and assembly, and the right to dignity. Surveillance has a chilling effect on liberties as individuals are less likely to speak freely if they know that Big Brother is watching. Furthermore, the lack of privacy safeguards in public spaces and the erosion of the expectation of privacy due to the installation of CCTV cameras, as part of safe city projects, have significantly impacted the freedom of assembly. Footage of the recent Students’ Solidarity March was used by law enforcement to identify participants and register cases against them. In these circumstances robust privacy protections can create an enabling environment for other fundamental and democratic rights.

From a libertarian perspective, privacy is central to human and personal development; to draw on fiction again, in A Room of One’s Own Virginia Woolf dreams “of the urbanity, the geniality, the dignity” for women “which are the offspring of luxury and privacy and space”. Alternatively, framed in the language of human rights, the right to privacy seeks to curtail the excesses of governmental power as a negative right against state interference. Lastly, the right to privacy is also conceived as a positive right to be protected by the government such as the right to bodily autonomy, protection of personal information and self-determination.

The acquisition of surveillance technology for mass monitoring by governments has been part of our collective public anxiety.

While the right to privacy is often seen as an individual right, it can be employed against structural exclusions and discrimination as well. Surveillance often manifests itself along gendered, racial and class lines, disproportionately impacting the most vulnerable members of society. David Lyon has argued in Surveillance as Social Sorting: Privacy, Risk and Digital Discrimination that mass collection and sorting of personal data results in the creation of differentiated categories which results in discriminatory practices: “For surveillance today sorts people into categories, assigning worth or risk, in ways that have real effects on their life-chances. Deep discrimination occurs, thus making surveillance not merely a matter of personal privacy but of social justice”. The alarming use of CCTV cameras as a tool for moral policing at the University of Balochistan shows that the gaze of surveillance is not neutral. The fact that illegal CCTV cameras were allowed to be installed on campus, and personal data was weaponised to harass and blackmail mostly female students, speaks volumes of the impact of surveillance to perpetuate and enhance existing injustices. The right to privacy is often afforded to the most powerful in our society, apparent in the architecture of our cities and homes. The right to privacy, when framed in the local context and the perspective of the most marginalised, is a collective right that can be used to counter systemic and institutionalised power.

The discriminatory use of surveillance technology employed against Uighur Muslims in China should give us pause to consider the implications of acquiring surveillance technology in the absence of countervailing privacy protections. Without a digital rights-based approach to public safety, collection of citizens’ personal data and the protection of marginalised communities, we run the risk of replicating schemas and systems of oppression that already exist in society. The prime minister’s recently unveiled Digital Pakistan initiative, couched in rhetoric of connectivity, economic benefits and investment, will be incomplete if it ignores the human and digital rights angle. As we move into an era of increased surveillance and digitisation, citizens need to make demands of their state as opposed to blindly accepting technology as a panacea. Encouragingly, the civil society is wrestling space for digital rights in government policies, for instance, in September of this year the Islamabad High Court ruled that the Pakistan Telecommunication Authority (PTA) cannot block websites arbitrarily and without due process. The application of fundamental rights such as due process (Article 10A) and free speech (Article 19) to the digital sphere makes this a landmark judgment. Additionally, a petition has been filed at the Lahore High Court to declare the illegal and secretive recording of citizens without their consent a violation of the right to privacy enshrined in Article 14 of the Constitution. These efforts are crucial in the new fight for civil rights in the digital age, where the threat of surveillance as a tool of control and discrimination is as palatable as ever, otherwise the fictions and warnings of decades past will come to pass.

The writer is a project manager at Digital Rights Foundation

Battling Orwellian surveillance in Pakistan