ISLAMABAD   -   The Islamabad High Court (IHC) sought report from the federal government asking that who is responsible for installation of Lawful Interception Management System in breach of the provisions of the Telecom Act and the Fair Trial Act.

It also said, “This mass surveillance system that exists and includes the Lawful Intercept Management System installed at the Surveillance Center on the direction of PTA, prima facie, appears to have no legal backing.”

A single bench of IHC comprising Justice Babar Sattar issued the directions in his written order after hearing the petitions of former first lady Bushra Bibi and former chief justice Saqib Nisar’s son Mian Najam ul Saqib against their respective audio leaks.

Justice Sattar stated that in view of the law as laid down together with the unambiguous provisions of the Fair Trial Act, Telegraph Act, PECA, Telecom Act, and PPC, any surveillance being undertaken in breach of the Fair Trial Act is a criminal act. “And to the extent that the Lawful Intercept Management System has been installed under the direction and supervision of the state that enables the state to undertake mass surveillance of over 4 million citizens simultaneously, the liability rests with the Federal Government. The Prime Minister and the members of his cabinet are individually and collectively responsible for the existence and operation of any mass surveillance system if it turns out that such surveillance is being or has been undertaken,” said the judge.

The judge directed, “Let a copy of this order be sent to the Prime Minister through his Principal Secretary. Let a copy of the order also be sent to Secretary Cabinet Division, so it can be shared with members of the Cabinet for their information. This court expects that the Prime Minister will solicit appropriate reports from all the intelligence agencies that ultimately report to him and place the matter before the Federal Cabinet.”

“Then PM shall have a report filed on behalf of the Federal Government as to whether (i) surveillance is being undertaken in Pakistan in breach of provisions of the Fair Trial Act, Telecom Act and Telegraph Act, in a manner that undermines Articles 9, 14, and 19 of the Constitution as enumerated by the Supreme Court in the Benazir Bhutto, (ii) who is responsible for installation of Lawful Interception Management System in breach of provisions of the Telecom Act and the Fair Trial Act, and who is to be held liable for installing a mass surveillance system in breach of constitutional rights of citizens and statutory requirements, and (iii) who is in charge of the operation of the surveillance system and who is to be held liable for the breach of the right of privacy of citizens, whose data has been accessed through the Lawful Interception Management System and released on social media. Let such report be filed within a period of six weeks,” ordered the judge.

He also said that let the Telecom Licensees file their own reports in sealed envelopes along with the entire set of correspondence between them and PTA in relation to the procurement, instalment, and operation of the Lawful Interception Management System by July 5.

He continued that as installation and operation of the Lawful Interception Management System is, prima facie, not in accordance with law and it has been represented by the Federal Government as well as PTA that no agency has been authorized to indulge in surveillance and utilize such system for purposes of surveillance, all Telecom Licensees, whether or not they are a party in the instant petitions, will ensure that the Lawful Interception Management System is not allowed to access their networks such that it can be used to access and/or procure consumer data.

The bench further directed that the Telecom Licensees will file compliance reports, stating that their networks cannot be accessed through Lawful Intercept Management System, by 05.07.2024.

It clarified that to the extent that Telecom Licensees enable any entity or person to access data of citizens in breach of the constitutional guarantees under Articles 9, 14 and 19 of the Constitution and provisions of the Fair Trial Act, Telecom Act, Telegraph Act, PECA and PPC, the management of Telecom Licensees and the members of their board of directors, individually and collectively, will be rendering themselves liable for criminal liabilities under the aforementioned laws.

The IHC bench also directed a copy of this order will be communicated by PTA to all Telecom Licensees who have been required to provide access to their network through the Lawful Interception Management System for compliance. The non-provision of access to the network of Telecom Licensees to anyone through the Lawful Interception Management System will not prevent law enforcement and intelligence agencies to undertake surveillance for any legitimate state purpose in accordance with provisions of the Fair Trial Act.

Justice Sattar also wrote in the order that this Court has formed a preliminary view that the Chairman and Members of PTA have misrepresented themselves in the reports filed before this Court and in terms of their representation with regard to the Lawful Interception Management System procured and deployed on the directions of PTA.

He added that the PTA will also file a sealed report along with correspondence with Telecom Licensees for procurement, instalment, and operationalization of the Lawful Interception Management System while identifying how the Surveillance Center (where such system is installed) is manned and the entities and the individuals who have, and have had, access to it. The technical experts from PTA shall make a graphic representation before the court, of the manner in which the Lawful Interception Management System operates, and how data procured through such system, is stored, retrieved, used, protected, and destroyed (if at all).

As this court has formed the preliminary view that the Chairman and Members of PTA have misrepresented themselves to this court, he ordered, “Let a show-cause notice be issued to them under Article 204 of the Constitution read together with Section 2(b) and 6 of the Contempt of Court Ordinance, 2003, for filing reports and making misrepresentations with regard to the Lawful Intercept Management System with an attempt to divert the course of justice and prejudice the determination of subject matter in the instant petitions. They shall file their responses to the show-cause notices within a period of six weeks and appear in person on the next date of hearing.”

The court mentioned that Additional Attorney General, also submitted that the Federal Government wishes to present certain documents in chambers for the assistance of the Court. It added that as the request for in-chamber proceedings has been turned down, for reasons stated in the earlier part of this order, let the Federal Government file any such documents in a sealed envelope before the next date of hearing.

Later, the bench deferred hearing of the case till September 4 for further proceedings.