Daily Times

US whistleblower Edward Snowden is making the headlines globally. The US government says he is a traitor who has betrayed the US. The other view is that he is a patriot who has blown the whistle on unconstitutional surveillance carried out by the US government, in particular the National Security Agency (NSA), worldwide. History, I am sure, will judge Snowden kindly for being the torchbearer of freedom against tyranny and oppression for all people around the world.

We should know. We, the internet users of Pakistan, are amongst the worst affected by this surveillance. Many would argue that given that our country has become infested with terrorist groups given our own duplicitous conduct vis-à-vis war on terrorism is ample justification for the violation of our most basic fundamental rights, including the privacy of our data. Here is why this justification is hogwash. Given that the overwhelming number of Pakistani internet users do not pose a security threat to anyone makes any mass surveillance by anybody foreign or domestic illegal, unconstitutional and coercive on the basis of the principle of proportionality. The constitution of Pakistan deems, subject to law, the right of privacy inviolable. Yet internet users in Pakistan are doubly affected, first by a callous Stasi/Gestapo like wretched state establishment that does not give two hoots about the law and privacy of an individual and second, on top of that, by foreign bodies such as NSA.

There are no two opinions on the issue of security and terror. This is why we have CCTV cameras and warning systems. Reading personal emails, intercepting text messages and phone calls through listening in devices and recording meta data or big data on unsuspecting populations is going too far and that too without a legitimate legal process. Why is it different? Well, because you cannot detonate a bomb through an email and you cannot just cannot kill people by using the internet. The actions that cause mayhem, destruction etc are always outside the realm of cyberspace. Does that mean that internet ought not to be regulated? No, of course not. There should be laws that should govern internet but the right to privacy must be inviolable. Under the US constitution such mass surveillance should technically amount to unreasonable search and seizure. Could there be reasonable search and seizure? Should internet activity of known terrorists and extremists be monitored? Yes, but only after all requirements of due process are fully met and these should be met substantially. Pakistan’s Investigation of Fair Trial Act, for example, requires a court order from a High Court judge. However, the applying party only has to have a ‘reason to believe’ and not a probable cause to merit such an order making the Pakistani law draconian in nature.

The real reason why governments around the world seek surveillance is because they wish to control the internet. Our societies have been modelled around the principle of the panopticonism. The issue is that this is not just for legitimate security threats. The governments want to play an active role in shaping society, for better or for worse, but it is when they take a turn for the worse that it worries people. In Pakistan, we know this because since 1958 Pakistan has been a national security state, and since 1977, and some would say even earlier, the government has tried to interfere with every sphere of a citizen’s life by using religion. Intelligence agencies keep dossiers on everyone. This, in turn, allows them to vet candidates and potential state functionaries. Consequently, only a certain kind of people are allowed to responsible positions, closing door on merit and instead promoting useful opportunism and careerism. A post-colonial state that has built on its colonial edifice in place to control native populations, the idea of a panopticon is particularly appealing for them. State preservation and perpetuation are obviously legitimate goals, which at least this writer shares, but what happens when the interests of a ruthless deep state do not match the aspirations of a people to be an inclusive democratic society? The “moderate infringement” on “personal liberties” as the unthinking US President (who now makes the White House look like Uncle Tom’s cabin) put it, becomes rather immoderate in the Pakistani context.

Am I being an alarmist? The Citizen Lab, an international watchdog, reports that the command and control server of Finfisher has been found in PTCL headquarters in Islamabad. Finfisher is a notorious surveillance software used by authoritarian regimes and others around the world. Citizen Lab has also found that the government is using netsweeper to actively filter and censor the internet in Pakistan. Can we trust even the most democratic of Pakistani governments with such software let alone the shadowy operatives of our so-called intelligence agencies? The great ‘democrat’ Zulfiqar Ali Bhutto was notorious for having assigned ISI a political role in addition to maintaining a secret police to crush dissidents. Have we forgotten how certain journalists were dragged out in the middle of the night in Nawaz Sharif’s previous government? I shudder to think what our present government will do to us equipped with all this technology. The pitfalls are numerous. Religion, ideology and national security will be used in the most cynical way to oppress an already oppressed multitude even further.

Lordships of the Superior Judiciary! The time to act is now. Strike down surveillance by the government and by foreign actors like the NSA as unconstitutional and illegal. Let us follow the example of Germany in this regard, which declared the EU directive on six-month retention of data as unconstitutional. We have missed the boat on so many things in our chequered history. Let us ensure that the internet is kept free from all constraints and surveillance. If we manage to make this resource free and independent, Pakistan will be on the right side of history for once.

The writer is a lawyer based in Lahore and the author of the book Jinnah: Myth and Reality. He can be contacted via twitter @therealylh and through his email address yasser.hamdani@gmail.com