Mass Surveillance a Comparative Study…

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By: Qamar Bashir

Civilized countries uphold the basic rights of their citizens above all other considerations. The constitutions and laws of these countries ensure that all public services and government institutions operate strictly within legal boundaries, serving the people who are the ultimate paymasters for all state institutions and their functionaries, from the President down to the peon.

Even countries that profess socialism have realized that their source of power lies in their citizens’ ability to generate wealth. This wealth creation is only possible when the entire government machinery is holistically, ideologically, and administratively focused on creating enabling conditions for their people to realize their full potential. By creating wealth and paying taxes, citizens make the government wealthy, which in turn uses this wealth to further empower the people and leverage resources from other countries to fuel their growing and prospering economies.

In contrast, countries like ours often operate oppositely. Government officials, who enjoy powers, perks, and privileges because of the hard-earned wealth of individuals from peons to chief executives of multinational companies, often fail to honor and uphold the dignity, privacy, and private lives of these citizens. Instead, they treat them disrespectfully and violate their basic human rights, guaranteed by the constitution, with total impunity. This disregard for citizens’ rights undermines the fundamental principles of governance and erodes public trust in state institutions.

In civilized countries, the right to privacy and protection from unlawful surveillance is a cornerstone of democratic values and human rights. Governments in these nations are bound by stringent legal frameworks and oversight mechanisms to ensure that any surveillance activities are conducted lawfully, transparently, and with respect for individual freedoms. Judicial oversight, data protection laws, and independent regulatory bodies work in tandem to safeguard citizens’ communication data from unauthorized access and misuse. Upholding these principles is essential for maintaining public trust, protecting civil liberties, and preventing abuse of power, ensuring that citizens can communicate freely without fear of unwarranted intrusion by the state.

However in extreme exigencies the intelligence agencies need surveillance of their own or citizens of the foreign countries, they do so after following stringent legal procedures to obtain permission. In the United States, the Foreign Intelligence Surveillance Act (FISA) and the USA PATRIOT Act require agencies to seek warrants from the Foreign Intelligence Surveillance Court (FISC) or a federal judge, with oversight from congressional committees and the Department of Justice.

In the United Kingdom, the Investigatory Powers Act mandates that surveillance warrants be authorized by a Judicial Commissioner and a Secretary of State, overseen by the Investigatory Powers Commissioner’s Office (IPCO).

European Union member states adhere to the General Data Protection Regulation (GDPR) and the European Convention on Human Rights (ECHR), requiring national court approvals and oversight from bodies like the European Court of Human Rights (ECtHR) and the European Data Protection Supervisor (EDPS).

For example, Germany’s Bundesnachrichtendienst (BND) requires G10 Commission approval, and France’s intelligence activities are overseen by the Commission Nationale de Contrôle des Techniques de Renseignement (CNCTR). In contrast, China’s National Intelligence Law and Cybersecurity Law allow the Ministry of State Security (MSS) to conduct surveillance with administrative approval and limited transparency, emphasizing state security. Each approach reflects the country’s balance between security and privacy and the extent of judicial and public oversight to prevent abuse.

In Pakistan, the legal framework governing the surveillance of citizens by intelligence agencies includes several key laws and regulations. Article 14 of the Constitution of Pakistan guarantees the inviolability of the dignity of man and, subject to law, the privacy of home. It provides a constitutional safeguard against unlawful interference in an individual’s private life. Section 54 of Pakistan Telecommunication (Re-organization) Act, 1996 allows interception of communications only if authorized by the federal government for national security or emergency purposes, following prescribed procedures. Investigation for Fair Trial Act, 2013 requires a warrant issued by a High Court judge, based on reasonable grounds related to terrorism, espionage, or serious crime. It also emphasizes the need for judicial oversight to ensure surveillance activities are lawful and not arbitrary. Section 39 of the Pakistan Electronic Crimes Act (PECA), 2016 permits the retention, acquisition, and disclosure of traffic data by service providers for up to one year under specific conditions read with Section 29 permitting the retention, acquisition, and disclosure of traffic data by service providers for up to one year, subject to production of a warrant issued by the court.

Article 17 of the International Covenant on Civil and Political Rights (ICCPR) Protects individuals from arbitrary or unlawful interference with their privacy, family, home, or correspondence and ensures the right to legal protection against such interference.

But in total disregard to the laws of the country, international law and best practices, the high court declared that the intelligence agencies of the country in collaboration with the Pakistan Telecommunication Authority (PTA) and telecom companies, were reportedly engaged in unauthorized mass surveillance of over 400,000 citizens without proper legal authorization or judicial oversight.

The most serious aspect of the judgment is the word “mass surveillance” which is a far more serious crime than individual surveillance if done without following a lawful procedure.It involves monitoring large segments of society indiscriminately, infringing on the privacy rights of many innocent individuals and creating a pervasive sense of being constantly watched. This can lead to self-censorship, stifling free expression and personal freedoms. Additionally, mass surveillance provides extensive data that can be misused for political, social, or economic control, increasing the risk of data breaches and unauthorized use of personal information. It undermines democratic value, violates constitutional and human rights on a large scale, posing significant ethical dilemmas by treating all citizens as potential suspects without due cause.

The impugned judgment has significant implications for upholding the privacy rights of citizens and the democratic and constitutional process in Pakistan. It mandates enhanced accountability and transparency by requiring the federal government, specifically Prime Minister Shehbaz Sharif and cabinet members, to report on the legal framework and implementation of the surveillance system, ensuring compliance with legal boundaries and constitutional provisions.

By demanding detailed reports from the PTA and telecom companies, the judgment emphasizes judicial oversight to prevent unauthorized surveillance and protect citizens’ privacy under Article 14 of the Constitution.

Holding top officials responsible for mass surveillance promotes accountability, strengthens the rule of law, and prevents abuse of power, thereby safeguarding the integrity of the democratic process.

This proactive judicial stance enhances public confidence in the judiciary and may prompt legislative and policy reforms to create clearer, more robust laws balancing national security needs with individual privacy rights, reinforcing the democratic fabric of the country.

By: Qamar Bashir

Former Press Secretary to the President

Former Press Minister to the Embassy of Pakistan to France

Former MD, SRBC