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Protection vs privacy

December 21, 2012

WITH its passage by the National Assembly bringing the Investigation for Fair Trial Bill one step closer to becoming law, Pakistan stands on the edge of a new world of legal but risky information gathering. Several countries have gone down this route since 9/11, and there are conditions specific to Pakistan that make it just as important here, if not more, to be able to intercept the communications of those suspected of criminal activities. In combining the country’s terrorism problem with limited forensic tools and training, lack of protection for judges and witnesses and laws restricting the admissibility in court of several kinds of evidence, the need to strengthen the hands of intelligence agencies and police in preventing crimes is clear. As it stands, this inability of the state to punish perpetrators has consequences beyond creating incentives to carry out crimes and releasing terrorists who are then free to strike again. It also contributes to extrajudicial killings, deaths in ‘encounters’ and enforced disappearances that the security establishment has come to rely on as an alternative to the existing legal system. Be all of that as it may, Pakistan is also a place where the ability to legally intercept communication carries particular risks. Wiretapping and other types of monitoring have been used both by and against politicians as tools of politics and corruption. There is little training, among either the judges who will grant warrants for monitoring or those who will carry it out, on how to balance privacy concerns against the need for information, and little case law to fall back on. The newly legal method could well be overused by overzealous intelligence agents, with investigators tracking too many people who have no intention of committing crimes. And unless some of the other weaknesses of the investigation and prosecution systems are addressed, intercepting communications will be of limited value.

Given the last-minute changes that were made to the bill in the Assembly, the exact language of the legislation is not yet known. Opposition and coalition parties did play an important role by asking for some much-needed amendments, including, reportedly, punishment for misuse by investigators, reducing the time period for which warrants will be valid and restricting the number of agencies that can intercept communications. But as the bill goes to the Senate on its way to becoming law, it still needs to be looked at with an extremely cautious eye — including carefully defining which crimes it will cover and creating a rigorous monitoring mechanism — so that the legislation that ultimately goes into effect doesn’t impinge on privacy and citizens’ rights more than is absolutely necessary.