EDITORIAL: Finally, the Lahore High Court (LHC) has ruled, in a very important decision, that access to phone data of individuals, including suspects, without their permission, was illegal and a violation of article 13 of the constitution.
Even though the common man should not have had to wait till this late in the 21st century to be granted this right to privacy, this case sets another very important precedent as well.
The decision on a criminal appeal by one Rehmatullah, who was serving a 10-year sentence for links with a terrorist organisation and spreading prohibited material, the bench also noted that, in the modern era, “our phones are also our homes”, adding that “the privacy of our family enjoys constitutional protection”.
Indeed, it is true that mobile phones have assumed a very central role in everybody’s lives. And since it is also where people interact with their families and share their domestic lives, it must also, and finally does, have the same shelter as the home itself.
There’s only the matter of properly enforcing this verdict now, of course. Because it’s not as if blurred lines did not exist before the court’s verdict. It is, rather, the official machinery’s habit of ignoring rules and doing as it pleases that has been a much bigger part of the problem. That is why LHC’s stamp is a game-changer; it will make future violations more costly. But only if there is the official will to implement these orders in letter and spirit.
This decision assumes greater significance because the debate about privacy, and its limits, is already all the rage. So-called audio leaks, exposing shameless double-dealing politicians and shady custodians of the law, have made it very clear that nobody’s private conversations are safe.
And if somebody can always listen when you speak, surely they can dig deeper and keep your pictures and other sensitive and private material as well. With a big election just round the corner, such trends are expected to worsen.
These things affect society at many levels. It triggers an instant degeneration of politics, makes social discourse more toxic and, since they stem from a blatant violation of the law, instill a sense of fear in people. That’s why it wouldn’t be a bad idea for the government to build on the court’s momentum and give this sensitive matter, the right to privacy, some top-level attention. That would also be the best way of keeping some of its overeager subsidiary agencies in check.
That does not in any way mean that law enforcement must slow down when it needs information stored in an unwilling suspect’s cellphone. There are clear procedures that must finally be followed. It’s true that investigation agencies often get breakthroughs from leads found in mobile phones. This is increasingly true for financial crime, and entire chains holding together smuggling rackets feeding a giant black economy have been known to be discovered, and dismantled, because of information retrieved from WhatsApp groups.
But authorities now need to learn to obtain a magistrate’s warrant to take such steps instead of the usual, more muscular and completely illegal approach. It’s about time the law stopped living outside the law itself.
And it’s a shame that courts burdened by an embarrassing backlog have to waste more time just to remind the government that the constitution needs to be followed, to the letter, by everybody at all times.
Copyright Business Recorder, 2023
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