by Ethan Dettman

Abstract:

Pakistan presents a critical case study in digital surveillance and privacy rights within emerging democracies. An evolving framework of digital surveillance and censorship laws in Pakistan increasingly constrain personal rights to privacy and freedom of speech. Pakistan’s unique placement as a post-colonial emerging democracy offers a study of how emerging democracies adapt to the online landscape. Countries can leverage historical legislation and contemporary digital regulations to influence digital spaces. Pakistan is an example of a country misusing privacy regulations in the name of national security or public order. The suppression of dissidents has a severe effect on freedom of speech and press freedom, a troubling sign for an emerging democracy.

Pakistan is a case study of a young democracy engaged in digital surveillance and working to legislate its digital space. 192 out of 250 million Pakistanis used a telecommunications service by September 2023.[1] Pakistan is a post-colonial parliamentary democracy with a plural population, a secular British inspired constitution, with Islam as the constitutionally enshrined state religion. Its socio-political system creates a complex tension between the secular and cultural norms of the state. There have also been consistent issues arising between military and civilian power structures within the national government. Combined tensions between military and civilian, religious and security interests have created an uneven application of law to human rights in and beyond digital spaces. Although legislation to ensure Pakistanis digital rights are protected has been introduced, this same legislation is cited to violate digital rights. Frequently legislation introduced on digital rights uses vague wording that gives officials space to justify surveillance. The below analysis offers a glimpse into how Pakistan has developed and deployed digital control mechanisms to try to understand and influence its digital space. This research is relevant to the comparative study of digital rights in emerging or young democratic/ post-colonial states.

Below I walk through a series of relevant legal structures in chronological order to contextualize the process and formation of a body of law and practice on digital rights in Pakistan. Some laws are more applicable than others, while at times older legal infrastructures are reinterpreted or repackaged in the digital era. Each law advances the story of digital rights in Pakistan and leads towards the final section in which I draw the impact of each of the laws together and analyze the current state of Pakistani digital rights.

Telegraphs Act, 1885

One of the first laws on technology dates to 1885, Pakistan has had a legal framework for electronic communication. The Telegraphs Act established regulations for telegraph communications and gave the government broad authority to control these systems and punish user ‘mischief”. Telegraphs as defined in the 1885 law were defined as “any apparatus, equipment or plant used for transmitting, emitting, making or receiving signs, signals, writing, speech, sound or intelligence of any nature by wire, radio or visual or electromagnetic system.[2] While technology has advanced since 1885, the definition outlined by the British colonial government offers a foundation for all future digital laws in Pakistan by making “rules consistent with this Act for the conduct of all or any telegraphs, established, maintained, or worked”[3]

The law also established a theme that is common in Pakistani legislation that affords the state security privileges. The law outlined “that any message or class of messages to or from any person or class of person… shall not be transmitted, or shall be intercepted and detained, or shall be disclosed to the [government making the order] or an officer thereof mentioned in the order.”[4]Section 5(2) goes on to state that a certificate from the provincial or federal government can be used as proof that the interception was truly in the interest of public security or a public emergency. The usage of public emergency and national security without judicial oversight is worrisome, not only due to the lack of a concrete definition but due to the certificate being able to confirm the legal validity of surveillance. The certificate goes around the target and does not have a check to the power to surveil. Despite being 140 years old, this law established a framework for surveillance that later Pakistani legislation would follow, a system that continues to lack proper checks and balances.

Pakistan Telecommunication Act 1996

The Pakistan Telecommunication Reorganization Act of 1996 helped to bring Pakistan’s digital legislation into the modern age. The Act was passed into law as the Internet began to emerge. The act established key institutions for managing Pakistan’s Telecommunication sector, including the Pakistan Telecommunication Authority (PTA), a three member board consisting of a financial expert, a telecommunications engineer, and a government appointee.[5] The PTA was established to regulate telecommunications operations, maintain infrastructure, and modernize the sector through efficient, cost-effective services.[6] Section 9 states the Federal Government “may, from time to time, call for reports on the activities of the Authority and Board and provide for representation in meetings.” This request might seem normal, yet in Pakistani politics it can lead to partisan politics. Recent surveillance and censorship activities against Imran Khan and his supporters are an example of political meddling in digital communications.[7]

By far the most used and contentious is the lack of clarity in Section 54 which states that “in the interest of national security or in the apprehension of any offence, the Federal Government may authorize any person or persons to intercept calls and messages or to trace calls through any telecommunication system.” Section 54 has been used to establish a “black law” under which the PTA, and by extension the Pakistani government, can monitor and track the internet usage of specific people.[8]

Imran Khan was prime minister from 2018 until he was removed by a no confidence vote in April 2022 and was arrested for corruption charges on May 9, 2023. Following his arrest mass riots took place across the country.[9] These riots triggered a public emergency that resulted in mass surveillance against protestors. The surveillance was authorized using the 1885 Act and Section 54 of the Telecommunications act. Khan’s wife along with thousands of other audio clips were leaked before the February 2024 general elections, and in July 2024 the government cited Section 54 to allow Pakistan’s intelligence service to monitor traffic.[10] These examples demonstrate how the government uses these laws to violate individual digital rights.

Musa Saeed and Safa Imran writing on Pakistani surveillance note that the lack of a concrete definition gives the Pakistani government “unbridled legal powers to obtain any data from telecommunication companies under the guise of national security.”[11] They further elaborate that crimes such as blasphemy and sedition are punishable under Section 54, which may be of concern to “state interests but absolutely do not fall under the ambit of national security.”[12] Amnesty International found that the examples of surveillance that many Imran Khan supporters faced included audio leaks, arrests, social media surveillance and geo fencing.[13] The lack of a robust definition results in the conflation of domestic political upheaval and national security to justify digital surveillance.

2013 Fair Trial Act

The 2013 Fair Trial Act was enacted when Pakistan was reeling from terrorist bombings across the country. The act augmented law enforcement agencies’ ability to collect evidence for potential offenses. This is similar to the United States Patriot Act, in that the Fair Trial Act puts state security over personal privacy concerns. Much of Pakistan’s digital legislation follows this idea of security outweighing personal privacy, evidenced by security clauses that go around personal protections in many pieces of legislation. The Fair Trial Act lays out ways user data can be accessed, even if that access violates privacy rights. Section 5 of the Act “allows any official or applicant to prepare a report and Section 9 states that the officer may directly go to a judge’s chambers to gain a warrant, bypassing a citizen’s right to privacy and enabling surveillance.[14] There is no set standard to identify that someone may commit a crime. This lack of a standard enables officers to monitor a target’s traffic in violation of their right to privacy.

2016 Pakistan Prevention of Electronic Crimes Act

The 2016 Pakistan Prevention of Electronic Crimes Act (PECA) was a landmark act designed to update previous including the 1996 reorganization act, and often is used in conjunction with the Fair Trial Act to assist in gathering digital data officials see as necessary. The Act grants law enforcement powers with vague restrictions, such as real-time data collection in Section 36[15] and traffic data retention by service providers for up to a year in Section 29.[16] These laws resulted in the Lawful Management Intercept System (LIMS), a system that filters monitored Internet traffic.[17] LIMS monitors and retrieves all information from devices via IMEI numbers (mobile identification numbers). Abbas reported that telecom companies monitor up to 2% of their customers at any given time with no oversight or judicial permission. Both PECA and the Fair Trial Act are directly referenced as two of the pillars LIMS is built upon, giving the government leeway to surveil citizens at will. Vague wording in section 34 allows authorities to block or remove online material to protect the "glory of Islam" or "public order," terms that also have no formal definition. Material can be removed for both reasons as broadly interpreted. In February 2023 Wikipedia was blocked for two days for containing “sacrilegious content.”[18] Religious protection is frequently used as a reason to censor the Internet and to stifle as freedom of expression.

Sections 9 and 18 of PECA criminalize the posts which undermine the glorification of Islam or constitute a threat to public order are frequently used to silence regime critics. Additionally, Sections 3 and 4, addressing unauthorized access and data transmission, use the term “dishonest intention” to describe potential offenders who could face fines or jail time for “unauthorized” access or use of data. The Act also allows for the seizure of electronic devices and data (Sections 28 and 30) in cases of potential loss of data or “commission of offence” that is determined by an “authorized official,” (also vague terminology). Section 29 states that Internet Service Providers must retain data that “authorised officials” deemed necessary.[19] Violations arising from Sections 28 and 30 allow for the collection of data that can be used to prosecute individuals in violation of other Sections in this law. Section 10 mentions cyber terrorism, defined as creating a “sense of fear, panic or insecurity in the Government or the public.”

Digital Controls and the Case of Imran Khan

The culmination of these laws’ flaws can be seen in the Imran Khan situation. In March 2023, the Pakistan Electronic Media Regulatory Authority (PEMRA) placed a ban on the broadcast of speeches by Imran Khan on the grounds of attacking the state and promoting hatred as he accused the “establishment” of leading to his arrest.[20] Khan believes that as a result of his attempt to remove military generals from political office, the military and the West orchestrated his vote of no confidence in response to his attempt to take full control over his government. Khan’s public calls of a conspiracy against him led to public demonstrations and were seen as harming public order.[21] Section 34 of PECA justified this ban, as the state saw Khan’s rhetoric as violating public order. Khan’s calls illustrate how Pakistan’s digital controls can be leveraged in ways that favor the ruling order and their hold on power.

The establishment Khan mentioned is the Pakistani military and its infiltration of Pakistan’s political system. The military sees itself as central to Pakistan’s existence and has dominated politics for all of Pakistan’s existence.[22]The military was the only institution inherited from the partition with India that remained fully intact, meaning the military was the strongest institution and could shape the country. Multiple wars with India have cemented the Army’s centrality in politics, one where military support is a necessity for a political career. Politicians make deals with the military to gain and hold on to political office, often choosing short term benefits over long term democratic practices. If politicians do not cooperate with the military, they run the risk of being put on trial and imprisoned, negative press, or even assassination attempts.[23] The Pakistani military controls politics in Pakistan and plays parties against each other. A former member of Khan’s party explains that until opposing parties admit they need their opponent to not be politically persecuted, true democracy will not exist in Pakistan as the military will help the side that best benefits them.[24] Through this lens, it is apparent that democracy in Pakistan is fragile at the highest level of governance, and this radiates down through digital legislation.

The military supported Imran Khan’s rise to power, seeing his Pakistan Tehreek-e-Insaaf (PTI) party to counter the Pakistan Muslim League (PML-N) and Pakistan People’s Party (PPP). The military saw PML-N and PPP as a threat to the military’s dominance in politics, and thus helped to rig elections for Khan in 2018.[25] Khan eventually fell out with the military, and then the military worked to bring him down through corruption charges. Khan mobilized his supporters, and riots and attacks around the country followed. These actions led to massive surveillance on Khan’s supporters, justified through the Fair Trial Act and section 54 of the 1996 PTO Act. The military used the Fair Trial Act to justify surveillance on Khan’s supporters by alleging they are committing crimes, and section 54 was used to cite the riots and violence as a national security threat.[26]

Sadia Jamil’s work found that Pakistan uses PECA and the Fair Trial Act to silence journalists’ online commentaries.[27] Owing to these laws and the 1996 PTO Act, Jamil cites that Pakistani journalists practice self-censorship, as they do not have adequate digital protection to ensure they can safely express their opinions. As the New York Times wrote in 2024, the Pakistani government slows the internet down in a pseudo firewall and access to social media such as X and WhatsApp are slowed or periodically blocked.[28] The best example is following the Imran Khan fallout, as citizens saw his challenging of the system and organized protests through social media and online platforms, and the government is attempting to silence critics of the regime. The ruling party, perceiving threats to its authority, leverages digital censorship to maintain control. Even in the face of direct court orders, Section 54 of PTO Act is cited to justify surveillance, evidencing the ability these laws give the government to breach privacy rights.[29]

In today's age of disinformation and online criticism, Pakistan’s use of vague terminology such as “in the interest of national security”[30] in its digital surveillance laws demonstrates how imprecise legal language can enable privacy violations in the digital age. This legislation has legally justified the surveillance against those the military “establishment” sees as a threat to their prominence in politics through vague terminology that can be misused. Dating back to 1885, the Telegraphs act set a definition on electronic devices that gave the government broad control over electronic communication. Subsequent legislation like the 1996 Telecommunications Reorganization Act and the 2016 Prevention of Electronic Crimes Act were meant to protect Pakistani digital privacy rights yet are cited by the government as legal justification for violating the very rights they set out. When used in conjunction with the Fair Trial Act, government officials can order surveillance of those they see as threats to national security and public order, terms lacking a clear, concise definition in these laws.

These laws show a troubling pattern in digital legislation, where digital privacy rights are disregarded in the name of potential crimes. The case of Imran Khan illustrates how this legislative framework enables political manipulation, with the military shaping politics in Khan’s favor when he was in their good graces, then helping to orchestrate his downfall once Khan and the military’s interests diverged. To do so, the establishment used legislation like the 1996 PTO Act and the 2013 Fair Trial Act to monitor citizens rallying around their leader under the guise of preserving public order and national security. Citizen’s location, social media posts, and personal data were monitored, and sometimes leaked.[31] Online content has been blocked, repressing freedom of speech and internet access.[32] The digital legislation in Pakistan provides an important case study for the misuse of privacy regulations under the guise of national security interests. Studying this case can help prevent legislation with similar loopholes from being created in similar democracies. While Pakistan faces legitimate security concerns, the pattern reveals systematic misuse of surveillance powers to violate personal privacy and suppress political opposition. This case study is particularly relevant for emerging democracies in the digital age because it highlights the crucial need for precise, well-defined digital privacy laws that protect individual rights while still addressing the security concerns. The protection of freedom of expression and political belief through robust digital privacy safeguards is essential in order to maintain democratic governance. Pakistan’s democratic struggles show how democracy depends on the protection of these freedoms.

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[1] Syed Waqas Ali Kazmi, “Advancing Digital Literacy for a More Literate Pakistan - Opinion - Business Recorder.Pdf,” Winter 24, 9AD, https://www.brecorder.com/news/40323139.

[2]Pakistan, “Telegraphs Act 1885,” n.d., https://pakistancode.gov.pk/english/UY2FqaJw1-apaUY2Fqa-bp8%3D-sg-jjjjjjjjjjjjj.

[3] Pakistan, “Telegraphs Act 1885.” Pakistan, “Telegraphs Act 1885.”

[4] Pakistan, “Telegraphs Act 1885.”

[5] Pakistan Telecommunication Authority, “Pakistan Telecommunication Reorganization Act,” 1996, https://www.pta.gov.pk/assets/media/pta_act_consolidated_footnotes_11012022.pdf.

[6] Authority, “Pakistan Telecommunication Reorganization Act.”

[7] Zia Ur-Rehman and Christina Goldbaum, “Internet Slows to a Crawl in Pakistan, Stoking Fear of a Firewall,” The New York Times, Winter 24, 8AD, https://www.nytimes.com/2024/08/20/world/asia/pakistan-internet-government-surveillance.html.

[8] Saima Shabbir, “Pakistan Authorizes Top Spy Agency to Tap Calls, Messages in ‘Interest of National Security,’” Arab News, 2024, https://www.arabnews.com/node/2546191/pakistan.

[9] Al Jazeera Staff, “A Year since Pakistan’s May 9 Riots_ A Timeline of Political Upheaval,” Al Jazeera, September 24, 5AD, https://www.aljazeera.com/news/2024/5/9/timeline-a-year-of-ex-pm-imran-khans-arrest-may-9-violence-in-pakistan.

[10] Shabbir, “Pakistan Authorizes Top Spy Agency to Tap Calls, Messages in ‘Interest of National Security.’”

[11] MUSA SAEED and SAFA IMRAN, “Charting the Digital Surveillance Machinery of Pakistan,” RSIL Law Review, 2023, https://heinonline.org/HOL/LandingPage?handle=hein.journals/rsil2023&div=6&id=&page=.

[12] SAEED and IMRAN, “Charting the Digital Surveillance Machinery of Pakistan.”

[13] Amnesty International Staff, “Pakistan 2023,” Amnesty International, 2024, https://www.amnesty.org/en/location/asia-and-the-pacific/south-asia/pakistan/report-pakistan/.

[14] SAEED and IMRAN, “Charting the Digital Surveillance Machinery of Pakistan.”

[15] “Pakistan Prevention of Electronic Crimes Act,” 2016, https://www.na.gov.pk/uploads/documents/1470910659_707.pdf.

[16] “Pakistan Prevention of Electronic Crimes Act.”

[17] Zaki Abbas, “The Surveillance System Keeping Tabs on Millions,” Dawn, 2024, https://www.dawn.com/news/1843299.

[18] Staff, “Pakistan 2023.”

[19] Abbas, “The Surveillance System Keeping Tabs on Millions.”

[20] Staff, “Pakistan 2023.”

[21] “How Imran Khan Became the Man Who Divided Pakistan,” The Guardian, 2023, https://www.theguardian.com/world/2023/may/09/how-imran-khan-became-the-man-who-divided-pakistan.

[22] Abid Hussain, “Can Pakistan’s Politicians Break the Military’s Stranglehold,” Al Jazeera, 2024, https://www.aljazeera.com/news/2024/1/30/can-pakistans-politicians-break-the-militarys-stranglehold.

[23] Hussain, “Can Pakistan’s Politicians Break the Military’s Stranglehold.”

[24] Hussain, “Can Pakistan’s Politicians Break the Military’s Stranglehold.”

[25] Aqil Shah, “Pakistan’s Military Still Runs the Show,” Foreign Affairs, 2023, https://www.foreignaffairs.com/pakistan/pakistans-military-still-runs-show-imran-khan.

[26] Abbas, “The Surveillance System Keeping Tabs on Millions.”

[27] Khalifa University of Science & Technology and Sadia Jamil, “The Rise of Digital Authoritarianism: Evolving Threats to Media and Internet Freedoms in Pakistan,” World of Media. Journal of Russian Media and Journalism Studies 3, no. 3 (2021): 5–33, https://doi.org/10.30547/worldofmedia.3.2021.1.

[28] Ur-Rehman and Goldbaum, “Internet Slows to a Crawl in Pakistan, Stoking Fear of a Firewall.”

[29] Maryiam Suleman Anees, “Pakistan Expands Surveillance Powers Yet Again in the Name of ‘National Security,’” The Diplomat, 24, 7AD, https://thediplomat.com/2024/07/pakistan-expands-surveillance-powers-yet-again-in-the-name-of-national-security/.

[30] Authority, “Pakistan Telecommunication Reorganization Act.”

[31] Shabbir, “Pakistan Authorizes Top Spy Agency to Tap Calls, Messages in ‘Interest of National Security.’”

[32] Staff, “Pakistan 2023.”