August Issue 2015

Sun Tzu’s The Art of War is one of the most definitive books on military strategy and tactics. Written thousands of years ago, numerous distinguished military leaders have drawn inspiration from the historical text. At the time of its writing, the advantages of spying were not lost on the author: “What enables the wise sovereign and the good general to strike and conquer, and achieve things beyond the reach of ordinary men, is foreknowledge…it cannot be obtained inductively from experience, nor by any deductive calculation… knowledge of the enemy’s dispositions can only be obtained from other men.”

And so, the spy was born.

Fast forward thousands of years, and along with spies, we have technology. And along with spying on the enemy, states and corporations are busy spying on their own as well.

In Sun Tzu’s case, information gleaned through spies could directly be used in battle. But has mass surveillance led to an increase in the overall security of an ordinary human being?

The answer varies, depending on who you ask. Digital rights and privacy groups are adamant that mass surveillance has not led to any preemptive arrests, strikes or raids, thereby saving lives. On the other hand if you talk to those who are directly involved in counter-terrorism, the answer is an unequivocal yes.

“It’s easy to talk about privacy and fundamental rights sitting in an air-conditioned lounge,” says Brigadier Syed Ghazanfar Ali. As former commander of the Inter-Services Intelligence (ISI) in Punjab, he feels that all those advocating privacy rights and anti-surveillance laws are just not plugged into the realities of the state.

“Imagine a suspect suicide bomber walking in the Anarkali area. With the kind of human density there, how do you single out the bomber, and how do you subdue the threat, before something horrific happens?” The brigadier points to a series of surveillance mechanisms, which sometimes work in tandem or in isolation to create a pool of data sufficient for inferences to be made, patterns to be understood, actions to be taken.

A safe day goes by unnoticed, but a violent one makes all the headlines and hence, little is known about the success of mass surveillance in thwarting terrorism. On the contrary, there are numerous stories available, both locally and globally, on how surveillance has failed. The latest example is perhaps the Boston Marathon bombings in the United States, but possibly the most glaring intelligence and surveillance failure is that of the September 11 attacks in 2001: almost all the hijackers had previously been red-flagged, but due to the sheer number of red flags, and the inability to join the dots, nobody figured out what was about to happen, till it happened. Similarly in Pakistan, in the aftermath of the attack on the Army Public School, intelligence emerged suggesting that Peshawar had been on the hitlist.

As one former US intelligence official said: “It’s not about looking for a needle in the haystack, it’s about looking for the haystack and then the needle in it.”

In the United States, the mass surveillance rush happened in the aftermath of the 9/11 attacks, culminating in the passage of the Patriot Act. And in the following decade, the NSA and other US intelligence agencies conducted (and continue to conduct) the most invasive form of surveillance on the widest possible audience, both at home and abroad, in modern history.

On the home front, Brigadier Ghazanfar insists that “Pakistan’s ability to conduct surveillance is terribly limited, considering the level of threats the country continues to face on a day-to-day basis,” and that rather than spreading a gigantic surveillance dragnet across the length and breadth of the country, the intelligence agencies should conduct a much more restricted and targeted surveillance campaign. “And even with these limitations, we occasionally have politicians demanding surveillance of somebody or the other,” says the brigadier.

It is generally believed that the United States, the United Kingdom and most western nations are all safer today because of the amount of surveillance conducted by their respective governments, and while Pakistan is having its safest year since 2007, the only difference between them and us is that in those countries, privacy and surveillance are part of the national conversation.

The rules are different here, “Those that indulge in mass surveillance operate outside the purview of the various laws that either allow for surveillance or protect the privacy of the individual,” says Barrister Sardar Muhammad Ali. “And the citizens haven’t come forward themselves to secure their privacy rights either.”

In a democracy, this will not go down well. On the one hand, intelligence officials suggest strict internal laws and controls on surveillance, and equally foolproof mechanisms for the security of data obtained via surveillance, but on the other, a citizen will find the odds stacked heavily against him if he moves a court of law in trying to protect his own privacy.

In the West, the public has a loud enough voice, made possible through special interest groups, NGOs and the press. And, more importantly, the intelligence agencies are not as shrouded in mystery and intrigue as the ones here in Pakistan. Over a sustained period of time, after a certain amount of debate, surveillance laws can be brought into a mutually acceptable framework. This has just happened in the United States with the amendments to the draconian Patriot Act.

“There is a case for surveillance under a mutually acceptable regulatory framework,” says Barrister Ali. The debate needs to begin from the very need for surveillance and end with an understanding of not only what constitutes legitimate surveillance but also of the circumstances under which surveillance is not only necessary, but also acceptable.

Somehow, in the absence of a regulatory authority for privacy rights, it has fallen on the courts’ shoulders to be the sole defenders of citizens’ privacy. And that puts them in a tricky place. “In some cases, national interest will trump individual privacy or fundamental rights,” warns the barrister.

“But what precisely is national interest?” counters another lawer. With no set definition, such a term could easily be exploited by those in power.

Still, if such a regulatory authority were to be made, it would have its work cut out. Its first and foremost task would be to look at the existing laws from the point of the view of the individual and not the state. And then to try and bring all the scattered and isolated laws together into some form of a mutually acceptable framework.

The Inter-Services Intelligence (ISI) and the Intelligence Bureau (IB) are the go-to agencies for most surveillance work in the country. As one former Director General (DG) of the Federal Investigation Authority (FIA) admitted: “As the only ones who can conduct surveillance, the agencies have neatly positioned themselves in a way that not much can happen without them.” And while the Special Branch may have recently acquired some technological capabilities, the greatest challenge in regulating privacy will be to bring these two agencies under some form of judicial oversight.

It’s also a matter of trust. Most advocacy and privacy groups don’t trust those that have the powers of surveillance. They accuse them of, among other things, malpractice, rampant abuse of power, and an insufferable superiority complex. In return these groups are called anti-state, anti-religion and accused of working on a foreign agenda.

In the fight for privacy, sorting out these ingrained grievances may well pose to be the greatest challenge.

This article was originally published in Newsline’s August 2015 issue.