The Digital Panopticon: Reconciling State Surveillance under PECA with the Fundamental Right to Privacy

Abstract

As digital surveillance become increasingly common in Pakistan, this research objective is to explore the consequences on the right of an individual relating to the privacy given no well-defined legal framework. Although the Constitution purports to protect individual privacy and dignity, the absence of articulation of protection for digital and informational privacy has enabled unfettered state surveillance on individuals, especially under the Prevention of Electronic Crimes Act, 2016 (PECA). The lack of a comprehensive data protection law, confusing legalese and insufficient oversight by the courts have resulted in massive attacks on digital and human rights. This article illustrates how various democracies have managed to balance the imperative of safeguarding civil liberties while meeting legitimate demands for national security through resort to international norms and best practices. Saeed argues that the existing monitoring in Pakistan amounts to a digital Panopticon where people are observed all the time, often without their knowledge or remedy under law. It outlines reforms that may be pursued in the area of law, the judiciary and civil society after considering proportionality, necessity and legality. Because only by replacing a system of hegemonic authoritarian Fiat with one based on transparency, human rights and respect for the constitution can this transition take place.

Keywords: Privacy Rights, Surveillance, PECA, Constitution of Pakistan, Cyber Law, Fundamental Rights, Comparative Jurisprudence, Digital Panopticon