SURVEILLANCE technology is rightfully under debate again, after news of journalists, opposition leaders, activists and leaders of foreign countries including Prime Minister Imran Khan being targeted by the Indian government has emerged based on an in-depth investigation by journalists and human rights groups.
It is important to trace how surveillance technologies work, who supplies and purchases them, and what impact they have on citizens and fundamental rights before we can agree on the steps to be taken to protect us from the all-pervasive violation of privacy that surveillance technology enables.
There are several types of surveillance technologies. They can be divided into mass and targeted surveillance. The former entails surveillance that is carried out on a massive scale, such as direct access surveillance whereby all internet traffic is monitored, eg the Web Monitoring System in Pakistan that uses deep packet inspection technology developed by Sandvine. India has a similar Central Monitoring System. Pakistan has deployed surveillance technology developed by Finfishr in the past as well.
Targeted surveillance entails using malicious ways to infect the devices or accounts of specific people to gain access to information, data, contacts, messages, emails, photos, etc on the target’s phone or computer. This was done using the Pegasus virus that is downloaded on a target’s device when they click on a seemingly innocent link sent to them, and it ends up giving access to the attackers, including to their cameras and microphones at any given time, as well as the ability to record telephone calls.
Sellers of surveillance tools must be held accountable.
Pegasus is a product of the Israel-based NSO Group which claims they only sell this technology to governments. This means that only governments have the ability to infect devices of targets. The investigation shows that Pegasus has been allegedly used by the governments of Azerbaijan, Bahrain, Hungary, India, Kazakhstan, Mexico, Morocco, Rwanda, Saudi Arabia and the UAE.
In 2019, the NSO Group was sued by Facebook after Pegasus was used to instal spyware on phones of targets who would miss a video call from a strange number, abusing a loophole in WhatsApp technology which is otherwise end-to-end encrypted.
Companies that develop and sell surveillance technologies must be held accountable. Moreover, there need to be licensing terms that enable companies to withdraw technologies that are abused for purposes other than what is legally permissible and stated by governments as the reason for the purchase of these technologies. There is also a dire need to implement export controls for surveillance technology and subject it to scrutiny and human rights due diligence as these are tools of cyber warfare with a grave impact.
Until such measures are put in place and there are international regulations governing the sale and use of surveillance technology, there needs to be a global moratorium on the sale of surveillance technology, as called for by David Kaye, former UN special rapporteur on the promotion and protection of the right to opinion and expression.
Surveillance technology grossly violates the right to privacy of citizens, especially when it is employed to spy on people without a court-issued warrant and without suspicion of targets having committed a criminal act. Further, surveillance induces fear in journalists, activists and citizens who are apprehensive about being observed by law-enforcement agencies and governments, and end up not expressing their opinions. This in effect violates the right to freedom of speech, as well as citizens’ right to information.
Surveillance technology use by states also raises the issue of accountability of the state, and who exactly handles the data. When all-pervasive spying methods are employed, a lot of personal information is abused to blackmail officials and others. Take, for example, the Arshad Malik or Justice Qazi Faez Isa cases.
It is especially concerning when the targets are journalists and activists. The press has a duty to investigate corruption, abuse of authority and the performance of governments and states. For governments to carry out unlawful surveillance is a gross violation of press freedom which is guaranteed by the constitutions of all democratic states, including Pakistan and India. For India to spy on Pakistan’s prime minister makes it a cross-border international crime, one that must not be allowed to be repeated at the hands of surveillance technologies.
To conclude, it is of utmost importance to have international standards regulating surveillance technology, and for principles of international human rights law to govern the development, sale, purchase and use of surveillance technologies in order to minimise their abuse, protect the rights of citizens, and prevent governments from abusing their power against the interests of citizens.
Published in Dawn, July 25th, 2021