Audio leaks case: IHC rules phone tapping without law ‘illegal’

Telecom companies share responsibility if they provide citizens' data without scrutiny, says Justice Babar Sattar

KARACHI:

The Islamabad High Court (IHC) in the audio leaks case ruled on Monday that any action of phone tapping without a legal mechanism was 'illegal'.

The court denied the additional attorney general's request for an in-chamber hearing in the case involving audio leaks.

Justice Babar Sattar of the IHC presided over hearings concerning petitions filed by former first lady Bushra Bibi and ex-CJP’s son Najam Saqib regarding the audio leaks.

During the proceedings, Additional Attorney General Manoor Iqbal Dogal informed the court that the Ministry of Interior had established a Standard Operating Procedure (SOP) allowing ISI and IB to directly retrieve data from service providers.

Justice Babar expressed concern that an SOP issued by a section officer, rather than the appropriate authority, raises questions about its legality.

He questioned the Ministry of Interior's basis for issuing such an SOP, asking under which law it was authorized to share live location without a warrant and access data from service providers.

Justice Babar emphasized that the SOP issued by a section officer does not cover the specifics of phone tapping, which is a crucial distinction. He highlighted the need to examine the legal standing of this document.

The AAG added that in the case of missing persons, the Sindh High Court (SHC) had instructed the disclosure of data to intelligence agencies. The court then questioned whether this directive from the SHC was specific to a single case or applied as a permanent measure.

The court instructed the AAG to review the policy formulated in 2013 and determine if data had been acquired according to this policy's framework. The AAG affirmed compliance.

During the proceedings, the court asked about the rationale behind the Pakistan Telecommunication Authority (PTA) issuing directives.

In response, the PTA's lawyer explained that a case before the SHC had convened all concerned parties, including the PTA, to devise a mechanism. This arrangement, unchallenged thereafter, evolved into the 2013 policy.

The court asked whether the PTA affirmed that it had not authorized any entity to engage in phone tapping.

In response, the lawyer confirmed that indeed, PTA has not granted permission for any form of phone tapping. The lawyer clarified that PTA's role is regulatory and does not involve surveillance activities.

He noted that after the Mustafa Impex case, any directive from a division is considered a decision of the federal government.

The lawyer representing Islamabad Police informed the court that, to their understanding, there is no prohibition against obtaining such information.

Justice Babar then questioned police official whether they can enter someone's residence without a warrant.

The lawyer responded that their practice does not involve surveillance or recording, but rather they gather material after an incident occurs.

The court questioned whether in 11 years they had ever obtained a warrant. The lawyer replied that, in their understanding, it's not necessary to obtain a warrant to gather material after an incident.

The court also asked how they could obtain private video footage from someone's home. The lawyer reiterated that they do not conduct surveillance and only collect material after an incident for evidentiary purposes.

The court remarked that the Islamabad police seemed unaware of why warrants are necessary, asking if there had been no need for warrants in 11 years.

The court further inquired who had instructed the Inspector General not to seek warrants. It questioned whether the law enacted by Parliament was considered unnecessary, given that warrants had not been sought in 11 years.

Justice Babar commented that if a law had been made, everyone should be aware of its requirements.

He added that people should be informed about how privacy is being breached, expressing that the courts are unaware of the activities being conducted.

He further emphasized that this wasn't a matter of national security where laws could be ignored or disregarded.

The Additional Attorney General requested the court to hold in-chamber hearing adding he then provide details.

Justice Babar responded, questioning if he was inquiring about terrorists. He clarified that he was only asking about the law, whether hostile agencies were monitoring judges' chambers or the Prime Minister's residence. The AAGl denied this.

Justice Babar emphasized that national security wasn't at stake here and rejected the request for a chamber hearing.

Despite repeated requests from the AAG for a chamber hearing, Justice Babar reiterated that he wasn't seeking national security secrets and refused to conduct mock hearings in chambers.

During the hearing, the federal government was asked to lift the ban on providing data to telecom operators.

Justice Babar questioned whether rules had been established under the Telecom and Telegraph Act. He criticized how obtaining a warrant from a judge could be considered a national security threat, pointing out that Pakistan wasn't the only country combating terrorism.

IHC judge mentioned that many countries, including the United States, had implemented laws and strategies post-9/11. He argued that the situation wasn't overly complex and refusal to answer due to terrorism concerns wasn't justified.

Justice Babar stressed that he wasn't asking for specific terrorist identities or the involvement of hostile agencies. He expressed frustration at asking the same question for a year and warned that he might seek Supreme Court intervention if decisions were not respected.

He noted that the reports had presented inconsistent stances, suggesting possible forgery, and questioned if this was the conduct expected of the federal government or if they considered themselves above the law.

AAG Manoor Iqbal Dogal asserted that everyone must abide by the law.

The telecom company's lawyer informed the court that providing data is a requirement set by the PTA for obtaining telecom licenses.

Justice Babar asked whether the lawyer was aware of the specifics of the data being collected.

The lawyer replied that telecom operators are not informed about the details; they install systems as directed by the PTA.

Justice Babar requested that any correspondence regarding the installation of these systems by the PTA be presented as evidence.

The court emphasized that verbal statements were insufficient; detailed written directions were needed.

The telecom company's lawyer mentioned that authorized agencies could access 2% of all customers' data simultaneously.

Justice Babar questioned if 2% of telecom users' data across the entire country was being accessed, and why the telecom companies, who bear the costs and install the systems, should not be accountable.

He noted that without a legal mechanism for phone tapping, such actions were illegal if no oversight was provided.

IHC judge warned that telecom companies share responsibility if they provide citizens' data without proper scrutiny and threatened to issue a show cause notice to the PTA chairman and board members for contempt of court.

The PTA stated in court that they had not authorized anyone to tap phones; telecom operators had installed the system at the PTA's request.

During the hearing, Islamabad Police's lawyer, Tahir Kazim, requested permission to provide Call Detail Records (CDR) limited to the investigation scope, prompting Justice Babar to consider an appropriate order.

Subsequently, the court postponed the hearing indefinitely in the case of audio leaks, indicating that the date for the next hearing would be communicated through a written order.