The Shari 'A Approach To Contemporary Problems of Mass Surveillance

Muslim World J. Hum. Right.
2020; 17(1): 1–44
Sattam Eid Almutairi*

The Shari’a Approach to Contemporary
Problems of Mass Surveillance
https://doi.org/10.1515/mwjhr-2020-0007
Published online August 19, 2020
Abstract: The phenomenon of mass surveillance has confronted legal systems

throughout the world with significant challenges to their fundamental norms and
values. These dilemmas have been most extensively studied and discussed in
relation to the kind of privacy cultures that exist in Europe and North America.
Although mass surveillance creates the same kinds of challenges in Muslim
countries, the phenomenon has rarely been discussed from the perspective of
Shari’a. This article seeks to demonstrate that this neglect of mass surveillance and
other similar phenomena by Shari’a scholars is unjustified. Firstly, the article will
address objections that Shari’a does not contain legal norms that are relevant to the
modern practice of state surveillance and that, if these exist, they are not binding
on rulers and will also seek to show that, whatever terminology is employed,
significant aspects of the protection of privacy and personal data that exists in
other legal systems is also be found deeply-rooted in Shari’a. Secondly, it will
assess the specific requirements that it makes in relation to such intrusion on
private spaces and private conduct and how far it can benefit from an exception to
the general prohibition on spying. Finally, it is concluded that mass surveillance is
unlikely to meet these Shari’a requirements and that only targeted surveillance can
generally do so.
Keywords: privacy, state surveillance, Islam, Western legal systems
1 Introduction
There are several possible explanations for the neglect of the phenomenon of mass
surveillance by Shari’a scholars. Firstly, it might be that mass surveillance is a topic
on which Shari’a is understandably silent, as it has become feasible, in its current
*Corresponding author: Sattam Eid Almutairi PhD, Assistant Professor of Law Taif University and
Associate member of UCD Centre for Human Rights, Taif 62237, Saudi Arabia,
E-mail: sattam.almutairi@ucdconnect.ie
2 S. E. Almutairi
form, only in recent decades1 and is not within the fixed scope of Shar’ia, which is not
susceptible to the kind of innovation that would encompass such a novel devel-
opment.2 Secondly, insofar as the paradigm of mass surveillance is that carried out
by the state, it might be that Shari’a does not contain norms by which the ruler can be
made accountable to those under his authority, so Shari’a can for that reason offer
no constraint on the behaviour of public authorities.3 Thirdly, it might be that
effective control over mass surveillance would require the importation into Shari’a of
concepts such as privacy or data protection, or at least aspects of these, that are
fundamentally foreign to it and would be a distortion or corruption of it if they were
presented as Shari’a in origin.4 Fourthly, it is certainly the case that for the vast
majority of Muslims around the world, the legal and constitutional system under
which they live, even in Muslim-majority countries, is not based on Shari’a and,
particularly in relation to an issue such a mass surveillance, does not regard Shari’a
as providing the touchstone of its validity.5 It could also be contended, in relation to
each of the four points just mentioned that there is such a diversity of opinions
among Muslims that Shari’a does apply to mass surveillance (including that
conducted by the state) but fiqh cannot benefit by using the right to privacy because
it is either (a) superfluous (because Shari’a already serves the same purpose of
protecting against spying or intrusion on private places) or, in other respects
(b) unIslamic (because it includes ideas such as sexual freedom).
Invariably, of course, the phrase mass surveillance may have carried different
meanings for different people. Therefore, it is necessary here to clarify exactly what
is meant by mass surveillance. Mass surveillance refers to the systematic practice
of the subjection of entire populations or a substantial fraction of a population to
indiscriminate monitoring, using sophisticated means through the Internet, as
well as other electronic apparatus.6 Generally, various “traditional” methods of
surveillance, such as phone tapping target a specific individual; mass surveillance
1 M Hasian & others, The Rhetorical Invention of America’s National Security State (Lexington
Books 2015) 34.
2 See generally; D MacGregor, ‘Islamic Law and Its Sources’ (Classic.austlii.edu.au, 2006),
available at <http://classic.austlii.edu.au/au/journals/AUFPPlatypus/2006/46.pdf> accessed 25
August 2019.
3 K El Fadl, ‘Islam and the Challenge of Democratic Commitment’ (2003) Fordham Int’l L.J. 4, 61. A
An-Na’im, Islam and the Secular State Negotiating the Future of Shari’a (Harvard University Press
2008) 52.
4 Democracy is the clearest example of some other situation in which the relevance of concepts
that originate outside Shari’a has been rejected on this ground. S Qutib, in Shade of the Quran (Dar
El Shorouk Publishing, 2011) 1285–1286.
5 K Booth &T Dunne, Terror in Our Time (Routledge 2012) 46.
6 Electronic Frontier Foundation, ’Mass Surveillance Technologies’ Available at:< https://www.
eff.org/issues/mass-surveillance-technologies> accessed 2 July 2019.
Shari’a Approach of Mass Surveillance 3
on the other hand envisages a wider reach. The situation in mass surveillance is far
more dangerous and overreaching than had been previously understood. In this
regard, Hild Bos-Ollermann explains that security agencies often capture “entire
cables or large web applications that process many millions of communications”.7
This has led to the existence of a practice known as ‘bulk data collection8 which is
one of the latest forms of mass surveillance. Through this medium, state agencies
conduct indiscriminate collection of personal data from millions of people, using
various filters and techniques, without attempting to limit the dataset to specific
individuals.
Moreover, it needs to be mentioned that the private sector contributes
significantly to mass surveillance through products and services that facilitate and
support such activities. For example, cell phone carriers, social media applica-
tions, and search engines today possess huge amounts of user information which
allows state agencies to effectively spy on its citizens.9 Thus, a dichotomy between
the state on the one hand and private individuals on the other is no longer plau-
sible today when speaking of surveillance data in the digital world. This new
environment has created other immensely powerful private actors, such as the
global social media giants, who might play a significant role and greatly contribute
to mass surveillance of populations. In this regards, Simon Chesterman pointed
out that reliance on private actors in mass collection data “was necessary as a
technical matter in order to access information”.10 Also, it appears to have been
part of a clear effort by government officials to avoid oversight and protect
themselves from involvement in a legally questionable process.11 Shari’a, in
contrast to other legal systems, has a clear legal norm prohibiting private sur-
veillance, without the need for novel legislation or judge-made law, and that it is
surveillance by the state that is in a more ambiguous position. Thus, there are
reasonable grounds to assert that private actors are also bound by the Shari’a
privacy norms, and their activities must be regulated to ensure that personal
information collected or processed is not used for an illegitimate surveillance or
7 H Bos-ollermann, ‘Mass Surveillance and Oversight’ in D Cole and others (eds), Surveillance,
Privacy and Transatlantic Relations (Hart Publishing, 2017)140.
8 There are two other phenomena in this respect which might be worthy of mention. Aside from
“bulk data collection”, which is the usual form of mass surveillance, there is another form called
“big data analytics”, a wider concept than the former, and which acts as a facilitator to it. “Big
data” may be gathered in many different ways, some of which may not involve surveillance in any
conventional sense.
9 M Franks, ‘Democratic Surveillance’ (2017) 30. Harvard J L & Tech, 454.
10 S Chesterman, One Nation Under Surveillance: A new Social Contract to Defend Freedom Without
Sacrificing Liberty (Oxford University Press 2011)117.
11 ibid, 118.
4 S. E. Almutairi
spying; or they are not engaged in mass surveillance — as well as the use that
private individuals make of them to spy on each other — Therefore, state author-
ities have access to a wealth of personal data, enabling practices such as profiling
and data mining. This shift in surveillance practices has led to what has been
called “the disappearance of disappearance”, a process whereby it is increasingly
difficult for individuals to maintain their anonymity, or to escape the monitoring of
social institutions.”12 The consequences of this shift — such as public surveillance
and facial recognition technologies — are indeed very much at variance with
certain Islamic cultural norms of privacy such as modesty regulations, Hijab or
burqa, which aim to protect the family and women by concealing information
relating to their physical appearance and identity.13 According to some views, a
woman must be fully covered.14 However, it is important to point out that there are
certain inconsistencies between mass surveillance and burqa or veiling regula-
tions. Further, it is not accidental that Hijab or burqa regulations were framed to
keep women anonymous in public places which runs contrary to the surveillance
culture.15 On the other hand, in many European countries, no one, under the guise
of privacy can expect to be free to have their faces covered in public places for
reasons of public security.16
However, the collection and use of personal information by security agencies
leads to a process whereby individuals must only seek to engage in legitimate
activities, as well as employ lawful methods to achieve their daily goals, which are
constantly being assessed and viewed as potentially dangerous without knowing
about or contesting such assessment, would place a heavy burden on the popu-
lace. This burden results from the government’s expectations that its citizens
would always live above board, as would be the case in a utopian state in which
individuals must perfectly legitimize everyday activities through the reality of
being exposed to or watched by the government.17 The controversy surrounding
mass surveillance stems from a lack of consensus on how to address the right to
12 K Haggerty & R Ericson, ‘The Surveillant Assemblage’ (2000) 51 (4) British Journal of Sociology,
619.
13 E Alshech, ‘Out of Sight and Therefore out of Mind: Early Sunni Islamic Modesty Regulations
and The Creation of Spheres of Privacy’, (2007) 66 J Near Eastern Studies <http://www.jstor.org/
stable/10.1086/524180> accessed 16 Nov 2016. 279.
14 ibid 278.
15 Alshech, 2016. 289–290. It should be noted that the preservation of Hijab or veiling is a strong
measure in Saudi Arabia that would put practical limits on mass surveillance.
16 This is the case in only some European countries and to a varying extent. N Cox, Behind the Veil
(Edward Elgar Publishing Limited 2019) 2–4.
17 See generally; Valsamis Mitsilegas, The Value of Privacy in an Era of Security: Embedding
Constitutional Limits on Preemptive Surveillance, eight INT’L POL. Soc. 104, 105 (2014).
privacy and personal data concerns that it implicates. One of the most contro-
versial aspects of mass surveillance is its propensity to gather process and main-
tain massive amounts of information about large portions of the population not
based on any prior or reasonable suspicion of crime by such individuals. In the not
too distant past, the traditional form of state surveillance was that state agencies
collected and maintained small amounts of information about specific individuals,
often based on a reasonable suspicion of being involved in criminal activity. The
state was technologically limited in its capacity to conduct mass surveillance
activities. Currently, state security agencies are capable of collecting vast amounts
of personal data, and then parsing it for informational value or utility that might be
related to security matters and possibly for other, less legitimate, reasons. This
shifts the focus of data collection and storage from detection of identified criminal
activities, to the prediction of risk and future activity; it is interesting to note that in
mass surveillance, safeguards against the misuse of surveillance, where neces-
sary, takes place after the surveillance has been carried out. The implication is that
the vast amounts of personal data that has been collected through mass surveil-
lance may be liable to misuse by state agencies.18
The primary question addressed in this article is whether Shari’a is capable of
addressing the phenomenon of mass surveillance and of binding rulers and con-
tains norms and principles relevant and sufficient to assessing whether and under
what conditions mass surveillance particularly that carried out by states, is
legitimate.19 It will be also argued that Shari’a requires free communication and
mutual trust between the ruler and the ruled and these values, rather than those of
a democratic society specifically ground the Shari’a protections against mass
surveillance.
Shari’a, entirely on its own terms, requires that demanding conditions of
lawfulness and justifiability be met before exceptions can validly be made to the
protection it gives to the dwelling, family life and private communications or from
the general prohibitions on spying. However, fiqh does not address in detail how to
assess those issues of lawfulness and justifiability in practice, because in most
Muslim countries Shar’ia is not considered to provide applicable norms of
constitutional law and in those in which it has a constitutional status (in particular,
the Kingdom of Saudi Arabia) the relevant practices and institutions are lacking or
18 V Mitsilegas, ‘Surveillance and Digital Privacy in the Transatlantic ‘War on Terror.’ The Case for
a Global Privacy Regime’ (2016) 47 Colum. Hum Rights. L Rev.15.
19 The concepts of privacy and data protection share some similarities, but there are notable
differences between them as well. While the right to privacy does not imply every information
regarding a specific individual or group; the concept of data protection relates to the protection of
this kind of information, i.e., of a wider scope.
6 S. E. Almutairi
underdeveloped. Thus, in seeking to understand better how the conditions of

lawfulness and justifiability of mass surveillance under Shar’ia could be applied in
practice, it is useful to take the case law of the European Convention on Human
Rights and the European Court of Justice as a working model, because they provide
the most prominent examples globally of courts seeking to grapple with such
issues and their relevance is not limited by the specificity of a national legal
tradition. The argument being made is not that the ECHR and EU law are evaluative
tools or standards in this regard, but that they provide an instructive working out of
the kind of issues with which Shar’ia should engage.
2 Does Shari’a Impose Limitations on Mass

Surveillance Conducted by the State?
The origin of the Islamic concern with the protection of private and family life,
home and communications, from the time of the Prophet Mohammed, his Family
and his Companions onward, is traceable to texts of the Quran and the Sunnah, as
well as various practices of the Prophet’s companions.20 Shari’a privacy norms
have taken different forms in Islamic thought since Islamic traditions and texts
made no mention of any single term that can be straightforwardly translated as
‘privacy’. Instead, they recognize, as does the European Convention on Human
Rights, a right to respect of the home, private and family life, and
20 The Quran and the Sunnah are the highest authority and the ultimate of all sources of the
Shari’a in the elaboration of fiqh (Islamic jurisprudence). Also, the Sunnah contains the statements
and actions of the Prophet Muhammad’s close associates and companions, which constitute
authoritative guides to the scholars and jurists of figh, but these are accorded less weight than the
Quran and Sunnah. On other hand, the methods of adopting or articulating rules and norms rest
with the scholars and jurists of Shari’a, who have established the principles and theories of
jurisprudence (figh). This utilizes for interpretation and expounding of the sacred texts contained
in the Quran and Sunnah, as well as the expansion of the reach and application of the original texts
to novel issues and phenomena, for example, by the way of the consensus of scholars, or reasoning
by analogy, which are the other significant sources of Shari’a. See generally; S Taman, ‘An
Introduction to Islamic Law’ (2014) 16 European J L Reform, D MacGregor, ’Islamic Law and Its
Sources’ (Classic.austlii.edu.au, 2006), available at <http://classic.austlii.edu.au/au/journals/
AUFPPlatypus/2006/46.pdf> accessed 25 August 2019 and S Reza, ‘Islam’s Fourth Amendment:
Search and Seizure in Islamic Doctrine and Muslim Practice’ (2009) Georgetown J Intl L, vol. 40, No
3, 710–711.
correspondence.21 The Islamic preference of describing rather than explicitly

defining privacy does not necessarily reduce the concept of privacy to the specific
elements described, but instead gives room to deduce from such general terms
many specific privacy rights.
The two Quranic commands of “Do not enter one’s house without his
permission”22 and “do not spy”23, are the cornerstone of the concept of privacy in
Islam24 which should perform the function of a constitutional limitation on the
ruler’s power to conduct mass surveillance of his populations. Thus, Shari’a pro-
tects individuals from arbitrary interference by public authorities into activities
within their private sphere. It should be stated that routine surveillance of pop-
ulations by police authorities and their agents was apparently a feature of law-
enforcement in Muslim communities for many centuries. For instance, in the
Abbasid era, Caliph Al-Nasir li-Din Allah (Baghdad: 1180–1225) was known to
employ spies who indiscriminately conducted mass surveillance of group activ-
ities and gatherings in Baghdad.25 In Nineteenth Century Egypt, Khalid Fahmy
21 Apparently, there is also a parallel between the Shari’a and the US in relation to privacy
protections, where both jurisprudences are very much concerned about specific places and situ-
ations such as the protection of home and personal papers and the prohibition of unreasonable
searches and unwarranted spying. Where the US Supreme Court has not (yet) resiled from the
concept of a reasonable expectation of privacy, it remains a point of contention particularly
between different members of the Court as a confusing and unnecessary concept. The Fourth
Amendment (Amendment IV) the U.S. Constitution: “The right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be
violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation,
and particularly describing the place to be searched, and the persons or things to be seized”. A
Selbst, ‘Contextual Expectations of Privacy’ (2013) Vol. 35 Cardozo Law Review.643.
22 The Holy Quran, (24:27). Some scholars argue for the absolute prohibition of entry into private
homes, even where it is certain that the suspect is conducting a prohibited act, since a sin
committed in private damages only the sinner, but not the larger public. On the other hand, it is
doubtful if this view can be sustained in situations where a strong suspicion exists that a crime is
either being committed or is imminent. The state and its agents are also not allowed to effect an
unlawful entry in order to investigate, if the matter has nothing to do with public order. See
generally; E Alshech Do not Enter Houses Other than your own: The Evolution of the Notion of a
Private Domestic Sphere in Early Sunni Islamic Thought (Brill, 2004).
23 The Holy Quran, (49:12).
24 The Quranic verse states; “Oh you who believe! Do not enter a house other than your own, until
you have asked permission (tasta’nisu) and greeted (tusallimu) those in them: it is best for you, in
order that you may remember. If you find no one in the house, enter not until permission is given to
you, if you are asked to go back, go back, that makes for greater purity for themselves (azka lakum),
and God (Allah) knows well all that you do. It is no fault on your part to enter buildings not used for
living (ghayr maskum), which serve some (other) use for you and God (Allah) has knowledge of
what you reveal and what you conceal”. The Holy Quran, (24:27).
25 H Almutairi, Liberty or Deluge (Arab Institute, 2008) 220.
8 S. E. Almutairi
recalls that systematic surveillance of entire civilians by law enforcement agencies

was common practice.26 It is important to note, however, that these surveillance
activities in the Islamic communities of old in fact constituted clear departures
from the requirements of Shari’a law. They could not be taken as implementing the
ideals of Islamic law as articulated in the Quran or the Sunnah and espoused by
several Islamic scholars — classical and modern alike — in relation to surveillance
and information-sharing. According to the holy Quran, spying is considered a
major sin, and is therefore prohibited. The prohibition of spying is to ensure
respect and protection for the private lives and communications of citizens.27 In
addition, the Sunnah, which refers to the actions and comments of the Prophet
Mohammad contain statements that supplement the abovementioned Quranic
text. The most cited and relevant of these statements expands somewhat on the
Quranic commands: “Beware of suspicion, for suspicion is the worst of false tales;
and do not look for the others’ faults, and do not spy.”28 In addition to his
cautionary instructions on spying and surveillance of individuals, the Prophet
stressed the privacy of meetings when he stated that “All (private) meetings are
deemed to be confidential, except three: those that discuss unlawful bloodshed,
Zina (adultery/fornication), and misappropriation of the property of others”.29
However, it is not any statement of the Prophet Mohammad that explains what is
essentially prohibited by the Quranic and Prophetic injunctions in relation to
spying activities; but rather the statement of one of his companions, Ibn Mas’ud,
which described such activities as any conduct that aims to disclose illicit
behaviour that is not public or manifest (zahir). Thus, his reaction to the overt and
incontrovertible evidence that an individual had been drinking wine was that
although, Islam forbids spying and seeking out the fault of others, action was
appropriate whenever such acts were manifest.30
Two other statements attributed to the Prophet warn of the penalties that await
those who intercept the private communications of others. What follows
strengthens the argument that Shari’a has not problem dealing with private sur-
veillance (including that conducted by social media companies). Perhaps the
counterargument is that users’ consent to what the companies do mean that there
26 K Fahmy, ‘The Police and the People in Nineteenth-Century Egypt’ (Brill, 1999) Vol.39, Issue. 3,
376.
27 The Quranic verse states; “O you who have believed, avoid much [negative] assumption.
Indeed, some assumption is sin. And do not spy or backbite each other. Would one of you like to eat
the flesh of his brother when dead? You would detest it. And fear Allah; indeed, Allah is Accepting
of repentance and Merciful”. The holy Quran, (49:12).
28 Sahih Bukhari, vol.8 No 717.
29 Sunan Abi Dawud 4869.
30 Abi Da’ud (n 29): 2/571 & Sunan Al-Bayhaqi: 8/334.
is no violation or that what users choose to place on social media becomes public
rather than private. The weaknesses in that counterargument apply, I think, in
relation to Shari’a as much as to other legal frameworks. Reading the personal
correspondence of others and eavesdropping are the other forms of spying that are
prohibited by the Sunnah. With regard to accessing the personal correspondence
of others, the Prophet Mohammad stated thus: “Whoever reads a letter of his
brother without his permission will read it in hell.”31 And in relation to eaves-
dropping, he stated: “Whoever listens to others’ conversations against their wishes
will have molten lead poured in his ears in the hereafter.”32 In the same vein, the
visual prying into an individual’s property or dwelling could result in a rather
severe penalty, one that is sanctioned by the Prophet as evidenced in this oft-cited
statement; “there is no liability for one who pokes out the eye of someone who is
looking into his home without permission.”33 Thus, it is important to point out that
the penalties described for a violation of privacy either in the hereafter or in the
worldly life, demonstrates one important conclusion; the great emphasis placed on
the importance of privacy under Shari’a. Consequently, it is incumbent upon the
state to ensure the respect and protection of privacy through the doctrine of Siyasa
Shariah, which authorizes and empowers the state to adopt measures that have
implications in the sphere of individual to individual relations.
Furthermore, the Prophet was said to have warned the governor of Damascus,
Mu’awiya bin Abu Sufyan of the chilling effects of spying and surveillance on
people’s lives even through the possibility of detection of religious trans-
gressions — If you seek out people’s faults, you will corrupt them, or bring them
very near corruption34 and if the ruler sows suspicion among the people he will
corrupt them — 35 Indeed, it may certainly be argued that, these Prophetic state-
ments appear to have been rendered as advice to rulers, rather than as a pre-
scription or obligation. It is necessary here to advert to the principles of usul fiqh
(principles of jurisprudence), and explain what scholars and jurists of Shari’a call
the khabar and inshá’ dichotomy. khabar (reports, simple assertions) aims to
inform the Faithful about a certain matter (either mentioned in the Quran or the
Sunnah), and may be believed or disbelieved, and does not necessarily involve a
request or demand to do or stop doing something (obligations or prohibitions)
such as the above statements.36 On the other hand, inshá’ (origination) involves
31 Al-Suyuti, Jami al-Saghir Vol.1, 165.

32 Bukhari, (n 28) 7042.
33 ibid, 6506.
34 Abi Dawud (n 29), 4880.
35 ibid, 4889.
36 S Jackson, Islamic Law and the State: The Constitutional Jurisprudence of Shihab Al-Din Al-
Qarafi (Brill, 1996) 170–173.
10 S. E. Almutairi
injunctions that require Muslims to do or not to do something (obligations or

prohibitions),37 such as the Quranic verse that concerns the injunction not to spy.38
Thus, when we look at Prophet Muhammad’s reported statements above, it shows
clearly that he intended to warn Muslims, particularly those in power about the evil
effects of spying on society; the Prophet found no reason to phrase his message as a
prohibition because the Quran clearly prohibits it. It follows that these statements
cannot be seen as mere advice that could make permissible for the ruler to spy on
his people, an action that evidently contradicts many Qur’anic and Prophetic texts.
It is worth noting that one of the main reasons in the Islamic tradition, for the
avoidance of spying and unfair suspicion is that these are acts (whether performed
by the ruler or by others) that typically lead to division and disorder.
However, it merits mention that one of the orders handed down by the first
Caliph Abu Baker to Amr Ibn Al-Aas, his general and leader of the Muslim army,
was an injunction not to disclose people’s astarahum (singular str commonly used
in early Islam when discussing matters relating to privacy) and said it suffices for
you what people reveal to the public sphere.39 This order basically enjoined the
leader of the army, as the head of the agency whose main responsibility was the
security of the community against internal disorder or external attack, not to
engage in spying or surveillance of people’s private life. It could be argued that if
Abu Baker were to issue the same orders today, he could have reformulated his
decree in in such categorical terms as reflect the modern language of the right to
privacy. In this regard, it is worth noting that the concept of ‘husn al dhan’
(assuming the best in people), constitutes an important value and component in
any Islamic society and tradition40 and the current form of mass surveillance
clearly appears to run contrary to that Islamic imperative.
It is certainly the case that Shari’a requires, in Robert Post’s terms, “a partic-
ular kind of social structure in which persons are joined by common norms that
govern the forms of their social interactions”41 and that this Islamic civilization is
37 B Gruendler & M Cooperson (eds), Classical Arabic Humanities in Their Own Terms (Festschrift
for Wolfhart Heinrichs on his 65th Birthday, presented by his students and colleagues) (Brill, 2008)
526.
38 The holy Quran, (49:12). There are many texts in the Quran and the Sunnah that contain both
khabar and inshá’, which often start as a khabar (report) but ends as inshá’ (origination). An
example of texts that contain khabar and inshá’ at the same time is found in al Maidah surah which
states that “O you who have believed, indeed, intoxicants, gambling, [sacrificing on] stone alters
[to other than Allah], and divining arrows are but defilement from the work of Satan, so avoid it
that you may be successful.” The Holy Quran (5:90).
39 M Alzahri, Major Classes, Vol 5 (International Company 2001) 61.
40 A Al-Nasser, The art of state administration in Islam (Dar Al Kutub Ilmiyah 2010) 92–95.
41 R Post, ‘Three Concepts of Privacy’ (2000–2001) 89 Georgetown Law Journal 2087, 2093.
based on the values of respect for human dignity and the need for the rulers to be
able to consult the ruled and obtain their genuine views on matters of public
concern (public consultation or shura), free from the effects of intimidation or
coercion.42 Uncontrolled or mass surveillance of the population is just as much a
threat to the common norms of that kind of Islamic culture as it is to democracy.
Therefore, there can be a parallel between the maintenance of such Islamic norms
and of democracy, without having to argue that Islam requires a state to be
democratic in the Western (or any other) sense.
A comparison between European privacy protection policy and its Islamic
counterpart would best illustrate the rather limited statutory privacy safeguards
under Islamic law.43 EU privacy laws contain substantive restrictions on the
governments’ collection, use and disclosure of all types of personal information;
these laws represent constraints on the capacity of the state to conduct sweeping
surveillance on its citizens.44 However, it is important to point out that the Euro-
pean systems are quite strong on issues like data retention and protection, but
relatively weak in relation to state surveillance.45 Thus, national intelligence ser-
vices are generally exempted in EU legislations and regulatory measures. The
practice of the British GCHQ of mass surveillance is an illustrative example of this
weakness in the European legal system, particularly in relation the issues raised by
mass surveillance, where legal protection is not strong in practice.46
42 Rawls’s notion of a “decent hierarchical society”, may be relevant here: “A decent hierarchical
society’s basic structure specifies a decent system of social cooperation. First, it secures a core list
of human rights. Second, its political system takes the fundamental interests of all persons into
account through a decent consultation hierarchy. This means that the government genuinely
consults with the representatives of all social groups, which together represent all persons in the
society, and that the government justifies its laws and policies to these groups”. Wenar, Leif, “John
Rawls”, The Stanford Encyclopedia of Philosophy (Spring 2017 Edition), Edward N. Zalta (ed.),
URL=https://plato.stanford.edu/archives/spr2017/entries/rawls/ accessed 3 April 2019.
43 Classical jurists expressed concerns and called for a restriction on state powers of access to
private property of people even when the state or its proxies were collecting zakat tax. This would
suggest that scholars and jurists were aware of the power imbalance that existed between the state
and its citizens, with the latter viewing the former as a forceful intruder, whom if allowed the
freedom to pry into private affairs, might retrieve and expose damaging information. Eli Alshech,
‘Notions of Privacy in Classical Sunni Islamic Thought’ (Ph.D. Dissertation, Princeton University
2004) 120.
44 F Bignami & G Resta ’Transatlantic Privacy Regulation: Conflict and Cooperation’ (2015) 78(4)
Law and Contemporary Problems, 236.
45 See generally Z Bauman et al., ‘After Snowden: Rethinking the Impact of Surveillance’ (2014)
8(2) International Political Sociology, 121–144.
46 R Aldrich, GCHQ: The Uncensored Story of Britain’s Most Secret Intelligence Agency (Harper-
Press, 2010) 542–544.
12 S. E. Almutairi
Although, the Islamic provisions relating to privacy rights are rather brief and
vague, and do not contain a single specific recognition of the protection of per-
sonal data, there are several important principles in Shari’a law that parallel
contemporary privacy and data protection law in the European Union (propor-
tionality, transparency or legality and legitimacy). If prudently applied, these
Shari’a principles would be sufficient to prevent infringements of the right to
privacy (including personal information) in the digital age. Scholars of Shari’a may
use the Mursala principle whenever necessary to regulate and restrain the arbitrary
use of certain forms of surveillance by state agencies against its population and the
principle would clearly also be useful for enacting sets of procedural safeguards to
limit access by state agencies to personal data and to undermine the use of the
fruits of unlawful data collection that was conducted either by the state itself or a
third party such as social media companies.47 More speculatively, it could be
argued that not allowing individuals to have control of personal data in this digital
environment would also contravene certain other Islamic norms and concepts, if
we recall that the Prophet advised that the citizens are entitled to have control over
private property.48 Another reason that Shari’a can respond to these modern de-
velopments is the basic right to human dignity, upon which the protection of
privacy in Islamic law can be founded.49 A lack of control over this area of their
lives would reduce individuals to mere objects in the hands of the state or powerful
private companies, who can freely collect, retain and share the personal data of
citizens as they deem fit.50 Thus, we may assume that the kind of privacy rights
protection that the Shari’a envisages do indeed entail protection of personal data
in this new (digital) environment. We should not underestimate the fact that the
collection of such information should be seen in its context today that with rapid
technological development, this approach would allow the monitoring of large
amounts of information which is to some extent public, such as information from
social media, facial recognition technology, body worn cameras, CCTV and
automatic number plate recognition technology. the absence of legislation gov-
erning the collection and use of data obtained from such sources should be a
matter of a genuine concern for privacy for Muslims today.
47 G Bowering & others (ed), The Princeton Encyclopedia of Islamic Political Thought (1st edn,
Princeton University Press, 2013) 435.
48 Muhammad Aslam Hayat ‘Privacy and Islam: From the Quran to Data Protection in Pakistan’
(2007) vol 16 (2) Info & Communications Tech L, 143.
49 M Maroth, ‘Human Dignity in the Islamic World’, in M Duwell and others (eds), The Cambridge
Handbook of Human Dignity (Cambridge University Press 2014) 159.
50 N Jacoby, ‘Redefining the Right to Be Left Alone: Privacy Rights and the Constitutionality of
Technical Surveillance Measures in Germany and the United States’ (2007) 34 The Georgia Journal
of International and Comparative Law.454.
For abovementioned reasons, it can be concluded that the very idea of mass
surveillance does not only pose significant challenges to the Western fundamental
norms and values (human rights, dignity and democracy), it also conflicts with
indisputable aspects of Shari’a it may involve interference with matters that occur
on private property; it may involve spying; it may also undermine other Islamic
values such as ‘husn al dhan’51, the importance of consultation with the ruled and
the relationship of trust between ruler and people.52 Moreover, the Prophet warned
of the chilling effects of widespread suspicion (which is inherent in the various
forms of mass surveillance), that adversely affects and spoils people’s lives, thus
inhibiting the free development of personality.53
3 The Application of the Islamic “Do not Spy”

Principle to New Technology and its Exceptions
The Islamic position is that the spying or surveillance of individuals are illegal, and
as such should be prohibited and avoided. However, it could be argued that the
development of privacy protection norms under the Shari’a have not kept pace
with technology. This is because issues relating to privacy were addressed in the
Quran and Sunnah, well before the advent of the Internet. Thus, there can be a
noticeable gap between Islamic privacy rhetoric and the reality of today’s tech-
nology; e-mail exemplifies that gap. According to many Muslim Scholars, the term
“electronic surveillance” does not have any synonym in the Quranic verses or in
the Sunnah.54 However, this need not imply that Shari’a must completely ignore or
be unable to address modern problems of mass surveillance. The general prohi-
bition of spying in the Quran can accommodate all kinds or forms of spying and
surveillance.55 Thus, it should be obvious that reading or accessing the personal
emails of other people would fall under the scope of the Sunnah prohibition
against reading the private correspondence of others.56
The dynamic pace of technological advance has, however, enabled some
states to gather personal data on a large segment of the population, to retain it for a
period of years, and make it available for future uses. It is clear, at least from a
51 Al-Nasser, (n 40) 92–95.

52 El Fadl, (n 3) 9.
53 Abi Dawud (n 29), 4880 and 4889.
54 Z Khan & others, ‘E-Surveillance Vis-À-Vis Privacy Rights: An Analysis of Western and the
Shar1’a Perspectives’ (2016) 8(4) Eur J Bus & Management, 94.
55 ibid.
56 565 U. S. (2012), 6.
14 S. E. Almutairi
European perspective that data intercepted and stored under mass surveillance
programs fall within the scope of the private life of an individual. This leads us to
the question whether Shari’a injunctions relating to privacy are relevant today to
address the contemporary problems resulting from mass surveillance (potentially
of entire populations). Indeed, do they provide individuals with adequate and
effective protection of their personal data when in the possession of the police and
other security agencies? While it is difficult to extract express and precise rules of
protection from the Quran and the Sunnah, it is possible to infer such prescriptions
from the Uṣūl al-fiqh, which should suffice to deal with most of the likely privacy
abuses in the digital environment.57 Thus, we may safely conclude that mass
surveillance — including interception of communications or legal requirements
obliging telecommunications companies to store and provide telecommunications
content data or metadata to law-enforcement or security agencies — prima facie
runs contrary to the Shari’a principles in relation to privacy and may violate the
“do not spy” principle.
However, it should be noted that the prohibition contained in the “do not spy”
principle is not absolute. In exceptional and compelling circumstances, the state
and its security agencies may conduct surveillance based on the principle of ne-
cessity; such as the legitimacy of spying during a war or other emergencies.58
Military necessity of this kind, as well as similar applications of the doctrine of
necessity, obviously falls within the recognised exceptions to the “do not spy”
injunction. This exception is however subject to stringent conditions, which must
be for surveillance to be permissible under the Shari’a. It follows, therefore that the
principle is relegated in situations where surveillance activities become necessary
in the form of espionage and counter-intelligence operations against foreign
powers that may pose a real threat to the safety and security of the state.59 Or there
can be also internal enemies who can legitimately be placed under surveillance.
This rule can be narrowed down to apply only against the agents of an enemy
country during war time. Alternatively, according to the principle of reciprocity, it
might also apply to surveillance of a country that is known to have previously
conducted surveillance against the state. It may be contended, further, that rea-
sons of state security, even in the absence of full-blown war, could justify what
would otherwise have been illicit intelligence gathering through spying. The
implication is that the exigencies that would warrant surveillance in these sce-
narios are those of a military or internal security nature. Indeed, there is evidence
that the Prophet Mohammed and his companions accessed information and
57 MacGregor, (n 2).
58 M Al-Dughmi, Spying and its Rulings in Islamic Shari’a (Dar Al Salam 1985) 58.
59 ibid.
intelligence in similar circumstances, which information was used for military

purposes.60 Proof that in the early days of Islam, the Prophet extensively relied on
spying as his chief military intelligence strategy may be found in the fact that
shortly before the Battle of Hunain (February 630), he sent out spies to gather
intelligence as regards the plans of the enemy regarding the imminent war.61
Similarly, before the invasion of the city of Khaibar, the Prophet sent out experi-
enced agents and scouts to carry out reconnaissance activities in order to deter-
mine the preparedness of the enemy.62
It is important to note that classical Islamic political thought conceives of and
differentiates between two worlds; the ‘war’ or ‘jihad territory’ (dar al-jihad), and
the ‘peace territory’ (dar al-Isalm or silm).63 The latter refers to territories where
Islamic law prevails. It can also refer to territories that have borders with Muslim
territories, and which have nonaggression treaties or that live in peace with
Muslims. The last group is regarded as a separate category by some Muslim jurists
who refer to them as dar al-hed ‘territory of treaty’. Dar al- harb or war refers to
territories where Islamic law is not in force.64 Abu Hanifa, the originator of this
concept laid down three criteria by which a territory may be regarded as ‘dar al-
Isalm’.
First, Muslims should enjoy peace and security within the territory; second the
territory should be governed by a Muslim ruler, and third it must have common
borders with Islamic territories.65 These characteristics are of the utmost impor-
tance because they determine what territory may be regarded as a Muslim state,
and thus, may engage in surveillance espionage. If we accept this division as valid
today it means that a Muslim country is permitted under Shari’a law, to spy on any
country that is classifiable as dar al-harb.
The basis for this concept is not found in either the Quran or the Sunnah; the
only dar or abodes that the Quran and Sunnah speak of are the dar of the hereafter
and the dar of earthly life. The concepts of dar al-harb and dar al-islam were
introduced by Muslim jurists in the eight century to describe the reality of the world
of their time, because of the incessant wars between Muslims and other nations. In
consequence, many contemporary thinkers and ulama (Scholars) have rejected the
60 ibid 55.
61 A Al-Asmari, ‘Arab / Islamic concept of intelligence in the case of Fatah Paramilitary’ (PhD
thesis, Brunel University 2009) 57.
62 ibid 60.
63 M Ghunaimi, The Muslim Conception of International Law and the Western Approach (Martinus
Nijhoff, The Hague 1968) 156.
64 ibid.
65 G Calassi & G Lancioni (eds), Dār al-islām / dār al-ḥarb: Territories, People, Identities (Brill 2017)
350.
16 S. E. Almutairi
application of these concepts today. In this regard, al-Ghannouchi states that the
concepts of dar al-harb and dar al-islam were relevant due to the historical cir-
cumstances of the time; and that it is not binding on the Islamic thought of today.66
The author regretted living in a world where a Muslim can enjoy more peace and
security in a non-Muslim country than in a country ruled by a Muslim. He gives the
example of his country of origin Tunisia, where a ban on the Hijab was imposed in
the past by the government. But the same Hijab is considered a matter of choice
(instead of an obligation) in most European countries.67
Therefore, it should be stated that more recent application of these concepts is
extremely rare; a state can become a dar of war only when a real war is taking place
or is about to take place. It must also be noted that the principle regards all
territories on earth as dar of Islam, or peace, unless war takes place. In times of war,
therefore, military necessity would appear to be sufficient justification for the use
of espionage and other intelligence gathering measures that would not ordinarily
have been permissible under the Shari’a. However, a territory is not presumed or
treated as an enemy of Islam and Muslims by default, merely because such a
territory is not ruled by Muslims or because it does not apply Shari’a law. It follows
that resorting to spying or intelligence gathering of the sort mentioned above,
against such a territory would constitute a departure from Shari’a principles.
However, it is important to point out that in recent decades, technological
advances have increasingly blurred the distinction between war and peace,
changing the conventional methods of warfare from military actions on the ground
to intelligence and information warfare.68 This state of affairs has put states under
a permanent real or imagined fear of attack or sabotage, which has in turn made
resort to spying and intelligence gathering the norm rather than the exception. It is
true that the global debate as to whether the distinction between war and peace has
become blurred (especially since ‘9/11’) can be arguably raised in a Shari’a context;
yet it is clear that the (alleged) uncertainty about the boundary between peace and
war was openly raised by the US after the ‘9/11’ attacks.69
Current events have proved that one of the likely effects of the above doc-
trine — that there is no distinction between peace and war times, and that terrorism
66 A Zahid, Criticism of the Religious Foundations of Contemporary Islamic Fundamentalism

(Centre of Civilization for Islamic Thought Development 2018) 393.
67 An claim that Islamic Teachings are Aggressive for Dividing the World into Land of Peace and
War (The Statement of Islam, 1 May 2018)s<http://bayanelislam.net/Suspicion.aspx?id=01-07-
0003#_ednref11> accessed 1 May 2018.
68 See generally; R Brooks, How Everything Became War and the Military Became Everything:
Tales from the Pentagon (Simon & Schuster 2017).
69 See generally; S Chesterman, One Nation under Surveillance: A new Social Contract to Defend
Freedom Without Sacrificing Liberty (Oxford University Press 2011).
could and should be prevented before they occur — is that it sometimes blinds
those in its favour to the dangers of unfettered national security agencies.70 For
example, the case of the murder of Jamal Khashoggi (a Saudi columnist in The
Washington Post, who was killed in the Saudi Consulate in Istanbul Turkey, in
October 2018), revealed that the CIA had intercepted phone calls involving high
ranking Saudi officials.71 This clearly appears to be a routine and systematic
practice of this US agency, despite the close and strong relationship between Saudi
Arabia and the US, by virtue of which the latter considers the former as her very
close ally in Middle East.72 Before that incident, there were two previous incidents
which showed a clear departure from the legitimate purposes of spying and in-
telligence gathering, which should ordinarily be conducted against enemies or
countries in anticipation of war, but which were conducted against close Allies.
According to Wiarda, Americans view European countries as our traditional and
“natural” Allies, the US has long taken this for granted.73 Surprisingly, WikiLeaks
and the Snowden’s revelations have disclosed that NSA had spied on certain high
level officials of European countries, most notably France and Germany; and
which activities especially targeted the three former presidents of France; Jacques
Chirac, Nicolas Sarkozy and Francois Hollande.74 The other incident concerns the
case of the German Chancellor, Angela Merkel’s phone-tapping, which was dis-
closed by Edward Snowden. Again, the NSA was implicated as being the initiators
of the operation that wire-tapped the German Chancellor’s phone; this revelation
generated a lot of tension and debates in Germany and Europe.75
These cases demonstrate the important conclusion that the above systematic
surveillance activities have nothing to do with the challenge or difficulty of dis-
tinguishing between war and peace. Rather, it concerns friends spying on friends,
or a husband spying on his wife and vice versa. One may recast this scenario in the
common phrase, ‘the big brother is watching!’ The US besides, the situation
factually speaking, is that almost all governments today conduct surveillance or
espionage operations against other countries whose activities simply matter to
them. Some are friends, some are enemies; some may just be in locations of interest
70 Chesterman, (n 10) 105.

71 M Chulov, ’CIA Khashoggi Findings ’Highly Damaging’ to Mohammed bin Salman’, The
Guardian (18 Nov 2018) <https://www.theguardian.com/world/2018/nov/17/cia-khashoggi-
findings-highly-damaging-to-saudi-prince-mohammed-bin-salman accessed 16 Jan 2019>.
72 C Layne & B Thayer, American Empire: A Debate (Routledge 2006) 40.
73 H Wiarda, Culture and Foreign Policy: The Neglected Factor in International Relations (2nd edn
Routledge 2016) 32.
74 J Regan & M John, ‘NSA Spied on French Presidents: WikiLeaks’, Reuters (Paris, 23 June 2015).
75 R Miller (ed) Privacy and Power: A Transatlantic Dialogue in the Shadow of the NSA-Affair
(Cambridge University Press 2017) 352–353.
18 S. E. Almutairi
to the spying power, or that they have ties to other countries that are of interest. The
consequences for international law and peace are enormous and underappreci-
ated. Rosa Brooks noted that the US may through its policies destroy or undermine
international law and its institutions, and set the stage for other states to behave in
similar ways.76 Furthermore, one may add that the US approach to mass surveil-
lance and intelligence operations could further weaken America’s moral standing,
and its long standing position as the leader of ‘The Free World’; it may also lead to a
loss of trust and credibility within the international community.
However, if states are exploiting the ambiguity arising from the blurred
distinction between peace time and war time, then that is not a problem peculiar to
Muslim countries; the USA and many other Western countries also take part in this
malfeasance. It therefore becomes necessary, with regard to Islamic states, to
distinguish between what Shari’a law requires in this respect, from the possible
scenarios that evolve out of state policies in order to exploit the (alleged) uncer-
tainty or ambiguity normally used as a pretext for political ends. Nevertheless, the
existence of this ambiguity is insufficient to justify under the Shari’a what was
originally a prohibited act, i.e. spying and surveillance.
Spying and intelligence gathering, therefore, are allowed in anticipation of a
war that has not yet occurred. An example is the case of Israel, whose relationship
with Muslim states fluctuates between lukewarm acceptance and hostility; which
means that war may break out at any moment. Muslim states surrounding Israel
may, therefore feel justified under the Shari’a, to conduct intelligence gathering
and espionage in order to guarantee national security. It should be noted that the
ruler is also permitted under the Shari’a, to spy on those who may be planning an
armed rebellion within his realm. In other words, the exception to the “do not spy”
principle also extends to preventing acts of terrorism, which today forms one of the
prime excuses for the development and deployment of mass electronic surveil-
lance with its attendant indiscriminate collection and processing of personal in-
formation. If this led to the emergence of a surveillance society, this would be
under the guise of counter-terrorism, which is completely incompatible with
Shari’a principles.
It is evident from the foregoing that the Shari’a does not grant unfettered
powers to the government or its agents to spy on, or gather the personal infor-
mation of its citizens for illicit purposes. There are legal restrictions on surveillance
and spying that represent the guarantees and safeguards that Shari’a law provides
to protect an individual’s privacy and prevent the abuse of governmental power.
76 Brooks, (n 68) 266.

4 The Lawfulness of Electronic Surveillance in

Islam
For interception of communications or electronic surveillance to be permissible
under the Shari’a, and for such acts to be exempted from the “Do Not Spy”
principle they must meet certain conditions. The most important of these
conditions (or what may be referred to here as Shari’a requirements) is that such
surveillance must be necessary and conducted strictly according to the
acceptable safeguards. Shari’a requirements for surveillance are more or less
similar to the principles and requirements of surveillance in the European legal
system.77 In Western legal systems, for example, EU law and the ECHR require
broadly similar principles to Shari’a legal system. According to Article 8 (2) of
the European Convention of Human Rights (ECHR), three requirements must be
satisfied in order to justify any interference with the privacy rights protected
under Article 8 (1). The first requirement is that the interference must be in
accordance with the law; three conditions are necessary to satisfy this
requirement. The interference must be prescribed by law; the law must be
accessible; it must also be foreseeable.78 The second requirement is that the
state must be able to show that the interference was undertaken for a legitimate
aim in the pursuit “one of these purposes: the interest of national security,
public safety or the economic wellbeing of the country, for the prevention of
disorder or crime, for the protection of health or morals, for the protection of the
rights and freedoms of others”.79 The third requirement is that any interference
must be necessary in a democratic society, i.e. the interference or intrusion
must be proportionate.80 An Islamic polity does not have to be a democracy for
an equivalent principle to apply, as there is a clear Islamic analogue for
77 There are no stipulated requirements to be met under the Shari’a, to determine whether any
interference by the state with privacy rights is justified or not. In practice, however, it would seem
that the state in a Shari’a law setting, is obliged to fullfill the same conditions, as we will see later
on, that are required of a European state, in order to justify an interference with privacy. In short,
the state must act in accordance with the law.
78 Weber and Saravia v. Germany, App no 54934/00 (ECHR, 29 June 2006) para 84.
79 Article 8 (2) ECHR reads thus: “There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the law and is necessary in a democratic
society in the interests of national security, public safety or the economic wellbeing of the country,
for the prevention of disorder or crime, for the protection of health or morals, or for the protection
of the rights and freedoms of others”.
80 Laskey, Jaggard and Brown v UK app no 21627/93; 21628/93; 21974/93 24 (ECtHR, 19 February
1997) para 45.
20 S. E. Almutairi
democracy, in terms of respect for the basis of human personality and the
importance of consultation with the ruled.81
As previously stated, military necessity is a justification under the Shari’a for
the state to conduct spying and intelligence gathering activities. The only
requirement seems to be that such activities must be for purely military purposes
However, it should be noted that if surveillance is carried out for a military pur-
pose, information gained as a result has to be disregarded for any other purpose.
For example, such information must be destroyed immediately if it concerns a
specific natural person, and has been determined to be irrelevant for the purpose of
the military needs. Otherwise, such use cannot meet the requirements of Shari’a’s
necessity, and would therefore be unjustified under Shari’a. Thus, while spying is
the rule in times of war, the opposite is the case in times of peace; spying is the
exception and not the rule. However, it should be stated here that the following
analysis of the requirements of surveillance is generally concerned with the state’s
activities in relation to the targeted surveillance.
4.1 The Principle of Legitimacy
Under the Shari’a, it is essential that surveillance be prescribed by law, or has a

basis in a law that explicitly authorises and regulates the activities of security and
intelligence agencies. It can be plausibly argued that this stems from the basic
Islamic criminal law principle that no one can be accused of a crime or punished
for one, without a legal basis to support it.82 Subjecting individuals to surveillance
is a restriction on their rights; therefore, any surveillance activity must have a basis
in domestic law. ‘The principle of legality’ or legitimacy does not merely refer to
domestic law, it also requires surveillance regimes to be accessible and
foreseeable.
The first requirement is accessibility, which entails that the “law” authorising
surveillance programs needs to be accessible not only to the person concerned, but
also to the public at large.83 The reason for this is that Shari’a prohibits surveillance
and spying. Thus, if the state needs to resort to it, it is required to make such
programs accessible publically for purposes of accountability. Thus, where the
Islamic principles and institutions applied and are operated as they are supposed
to, they can provide the necessary accountability and oversight, whereby the ruler
81 El Fadl, (n 3) 9.
82 M Haleem & others (eds), Criminal Justice in Islam: Judicial Procedure in the Shari’a (I.B. Tauris
2003) 69.
83 ibid.
can be held accountable for whether the proper scope of that exception has been
exceeded or not. This would ensure that any surveillance regime is compatible
with the relevant Shari’a principles. It would also allow for a retrospective ex-
amination of such surveillance actions and their underlying apparatus, in light of
the parameters set by the Shari’a, either by a court or any other independent body.
The important issue for many litigants in the context of litigating surveillance
and spying issues is that of locus standi or the legal right or competence to sue.
The mere existence of secret legislation and measures that permit surveillance
and spying activities that violate Shari’a principles of privacy does not mean that
they will go unchallenged, or be outside the supervision of the Shari’a court, due
to the inability of individuals to prove injury, or that they have been the subject of
surveillance. Thus, any applicant has standing to sue. In other words, an
application is considered admissible even in the absence of concrete evidence of
harm. This can be applied through the system of public complaints, which
directly draws inspiration from the principle of enjoining the right and forbidding
the wrong.84 This, then, invests every competent citizen with the right to bring a
legal challenge to any provision that might be seen as a violation of Shari’a
principles, without the need to demonstrate the existence of an actual injury or a
potential risk of injury from present or future surveillance measures. Thus, it
suffices to evoke the mere existence of a surveillance program to indicate a
possible violation of the Shari’a principles of privacy. In Europe, the rules
relating to locus standi appear to be restrictive at the national level, however, the
jurisprudence of European Courts, the ECtHR and the CJEU have endorsed a
pragmatic approach to legal standing. The case of Schrems is illustrative. In the
aftermath of the Snowden leaks,85 which disclosed that U.S. Internet companies
were granting security agencies extensive access to the personal data of their
clients, a Facebook subscriber brought a complaint to the Irish Data Protection
Commissioner (DPC) over his concerns, in light of the Snowden allegations, that
his personal data was being transferred to the U.S under the Safe Harbour
agreement. The DPC dismissed the complaint as ‘frivolous and vexatious’ on the
basis that he was bound by Safe Harbour.86 The applicant brought his case to the
Irish High Court, which adjourned the case pending a reference to the Court of
Justice of the European Union (CJEU). The CJEU considered the complaint and
held that the Safe Harbour agreement was invalid for not being adequate to
84 Bowering (n 47)208.
85 See generally Z Bauman et al., ‘After Snowden: Rethinking the Impact of Surveillance’ (2014)
8(2) International Political Sociology, 121–144.
86 ‘Data Protection Commissioner says no action will be taken against Apple and Facebook’ RTÉ
(26 July, 2013).
22 S. E. Almutairi
protect personal data transferred to the U.S.87 By this ruling, the CJEU has made it
possible for individuals whose claims are based on a potential risk of injury
resulting from mass surveillance to be able to maintain an action, even though
Schrems did not provide proof that his personal data was actually intercepted.
The European Court of Human Rights has confirmed in Weber and Saravia v.
Germany,88 that the mere existence of a secret surveillance regime constitutes an
interference with the private lives of individuals.89
Perhaps, the most important safeguard introduced by Shari’a law, which is
very similar to European jurisprudence, is that all individuals are entitled to
challenge the legality of such surveillance regime, even if it cannot be proved that
their privacy rights have been affected by such measures. Thus, applying this
principle is particularly important in the context of mass surveillance; it provides
avenues for judicial review and redress, and makes it inevitable that such mea-
sures will be challengeable under the supervisory jurisdiction of the courts.
The second part of legality relates to the foreseeability of the applicable law.
The scope of the discretion given to the authority and conditions under which any
surveillance measure may be deployed must be foreseeable.90 However, this does
not imply that individuals must be able to know when exactly the authorities
would spy on them as this would render the very idea of surveillance meaningless.
We should bear in mind that we are dealing with exceptions which justify what the
Shari’a in ordinary situations would outlaw. In other words, in order for the state to
legitimate actions that have already been prohibited in the Shari’a, it is essential
that the law must have clear and detailed rules relating to surveillance activities,
the grounds required for ordering them, and the competent authorities that
implement the measures, as well as the form of authorization and supervision
required for such surveillance. For example, on the interception of telephone
conversations, Saudi law allows the government to tap phone lines, provided that
it is authorized by a prior judicial order and for a limited period of time.91
87 Case C-362/14 Press and Information Maximillian Schrems v Data Protection Commissioner
ECLI:EU:C:2015:650.
88 Weber (n 78).
89 According to the Court: “[T]he mere existence of legislation which allows a system for the
secret monitoring of communications entails a threat of surveillance for all those to whom the
legislation may be applied. This threat necessarily strikes at freedom of communication between
users of the telecommunications services and thereby amounts in itself to an interference with the
exercise of the applicants’ rights under Article 8, irrespective of any measures actually taken
against them.” ibid para 78.
90 Haleem (n 82) 69.
91 Art 56, Law of Criminal Procedure, Saudi Arabia (Royal Decree No M/39, 2001). Art 56 grants the
Director of the Bureau of Investigation and Prosecution the authority to order the interception of
correspondence and communications for renewable periods of 10 days at a time.
Moreover, since the implementation of secret surveillance measures regarding

communications is not open to scrutiny by the individuals concerned or the public
at large, it would be contrary to Shari’a principles for the legal discretion granted to
the state and its agents to be expressed in terms of an unfettered power. Thus, for
the law to be compatible with the Shari’a, there must be some measure of pro-
tection against arbitrary, abusive and unwarranted interferences by public au-
thorities. In other words, the law must ensure that any surveillance measure
should be subject to the Shari’a requirements as to surveillance and spying in order
to be exempted from the “Do Not Spy” principle.” Therefore, because it is in the
first place a law that allows the spying and monitoring of individuals generally
prohibited in the Shari’a, any uncertainty or obscurity in that law would render it
law void; for example, if it did not meet Shari’a standards and was unable to pass
the necessity test set out in the Shari’a. Thus, legality requires a Shari’a state to
provide adequate safeguards to ensure that an individual’s rights to privacy are
respected, and that the competent authority acts only within the exceptions
permitted by the Shari’a.
The recent and highly significant judgement of the ECHR in Catt v the United
Kingdom92 dealing with the protection of personal data, in relation to activities that
take place in the public space is germane. The significance of this case — in which
the Court held that a violation of Article 8 had occurred — lies in the fact that it
decides the legality of state authorities retaining information garnered from sur-
veillance of individuals in public places. Given the sensitive information involved,
it is imperative that the legal rules and safeguards governing the collection,
retention, duration of storage of information (from surveillance), must be clear,
adequate and sufficient to prevent arbitrariness and abuse.93
In Shari’a context, one may view the interference with privacy in the above
case as a legitimate and justifiable one, simply because it relates to activities which
occurred in public. This, however, is a good example of how new technology seems
to have overwhelmed some principles of the Shari’a. Today, unlike the early days
of Islam, large information gathering could be done with relative ease. The latest
92 Catt v. The United Kingdom App no. 43514/15 (ECtHR,24 January 2019) In Catt v the United
Kingdom, a British peace movement activist, who had participated in several public demonstra-
tions, some of which were apparently infamous for serious disorder and criminality; the Smash
EDO movement (the group was mainly established to close down EDO arms factory in Brighton
which manufacture weapons and weapon components and hence sold to Israel); discovered that
his personal data (including his name, address, date of birth, description and photograph) was
stored in an “Extremism database”. A photograph also showed Catt actively participating in a
demonstration; when requested the Police authorities to delete or destroy this information, his
request was rejected without reasons.
93 ibid, para 10,11.
24 S. E. Almutairi
information technologies allow incredible amounts of information relating to a

large variety of subjects including personal data to collected and retained, whether
in the public arena or private space. Indeed, such technologies as, for instance,
CCTVs and social media sites based on the World Wide Web service, have led to the
almost entire extinction of what used to be private space. Such that as there is now
a recognised blurring in the distinction between war and peace time, so it is with
the public and private sphere. The use of new technologies by the state to access
and store personal data is evident, for example, in the use of biometric information
travel passports that contain photographs which could be profiled and stored by
facial recognition equipment. All these call for the requisite up to date legislation
that is able to keep abreast of the novel threats brought about by new technology.
And such policies should be pursued not only in Western societies, but also in
Islamic and other societies where privacy right is given any consideration. Thus, it
may be argued that the collection of information may be in line with Shari’a
principles of privacy, but the retention of these sensitive personal data for indef-
inite periods gives rise to privacy concerns. More especially where they are kept in
a database whose title has a negative connotation (e.g. “Extremism” or “Red Alert”
or “Class A Terrorism”). This may have severe consequences and chilling effects on
genuine and innocent persons and individuals who do not actually have any
connections with violent groups or constitute any national security threats. Thus, it
follows that the decision of the ECHR in the abovementioned case is commendable,
and the approach it outlined to provide effective safeguards in the protection of
personal data should be followed by even Shari’a based legal systems.
4.2 Siyasa Shar’iyya; the Content of the Relevant Legitimate

Aims (National Security, etc.)
The Shari’a generally prohibits any conduct or action that may threaten or nega-
tively impact the lives, property, religion, honour or the minds of individuals.94
The government under the concept of Siyasa Shar‘iyya (administrative authority),
may pass new qawanin or anzima (laws or regulations) to protect the above-
mentioned interests or address new problems.95 In the context of recognised ex-
ceptions to the “do not spy” principle under the Shari’a, such as the legitimacy of
spying on the enemy during a war,96 military necessity of this kind (including the
other applications of the doctrine of necessity, e.g. national security), are
94 Maroth (n 49) 159.

95 Bowering (n 47) 197.
96 Al-Dughmi (n 58) 35–136.
obviously of great relevance to the topic of how Shari’a applies to the surveillance
operations carried out by states.
Therefore, government surveillance for the purpose of maintaining state se-
curity falls under the heading of Siyasa Shar’iyya, and the principles of Shari’a in
relation to privacy are of only indirect application to it, even if there are some
constraints on the form such surveillance can properly take. An interference with
the right to privacy in the Shari’a could be generally justified on grounds of other
weightier interests such as, for instance, maintaining public safety; in such situ-
ations, the state may be justified under Shari’a to apply CCTV in public places. Yet,
in the context of government surveillance, legitimate justifications are very
restricted. The state can only resort to electronic surveillance in order to detect or
avert serious dangers to the safety of the state, such as a military attack on its
territory or the commission of terrorist acts.
However, it is important to note that there are other acts considered offences in
Islamic law, e.g. extramarital sex or drug trafficking, which do not constitute a
serious danger sufficient for the state to justify a resort to spying and use of an
invasive form of surveillance, e.g. electronic surveillance such as interception of
communications. In the classical periods of Islamic history, many scholars would
allow the intrusion into a private dwelling only if there were sufficient proof or
evidence that a murder or rape was about to take place. With regard to alcohol
consumption, extramarital sex and other personal acts, some scholars permitted a
search only if such misconduct became visible to the public.97 Some scholars did
not favour informing the authorities about such a transgression unless reliable
witnesses were available. Indeed, others rejected the idea of informing the au-
thorities even if there were reliable witness.98
However, in general, it was rare to find in the classical Muslim period a scholar
who postulated that the state had the authority to spy on people. Scholars showed
great reluctance to entrust to state authorities the power of conducting surveil-
lance or spying activities. This actually reflects the general mistrust of state au-
thorities by the scholars of that time. In modern times, that mistrust is even more
justified, especially as the technology available for use is continually becoming
more sophisticated and invasive, this has facilitated the government to acquire
immense powers of control over its citizens. It should be emphasized that spying/
surveillance appear to be absolutely prohibited under Shari’a, on the evidence of
the Quran and the Sunna alone, this is plain from the Qur’anic and Prophetic
97 Alshech, (n 22) 298.

98 ibid 301.
26 S. E. Almutairi
texts which have not explicitly or expressly mentioned any exception to this
prohibition.99
With the above in view, by analogy and extension,100 the principle of necessity
can also apply to surveillance and spying, according to which the state when
necessary, may suspend the prohibition against spying and surveillance. The
resort to highly invasive means of surveillance or spying would therefore be very
hard to justify in cases of less serious offences such as alcohol consumption. In
other words, the more invasive the form of surveillance used, the more compelling
must be the justification that makes its use necessary. In this context, Mawdudi
provides a useful explanation about the kind of situation that would justify the use
of a highly sophisticated means of surveillance.
[P]rying into the life of an individual [by acts such as reading someone’s email, bugging
devices etc.] cannot be justified on moral grounds by a government’s saying that it needs to
know the secrets of potentially dangerous persons. The basis of this philosophy is the fear and
suspicion with which modern governments look at those of their citizens who are intelligent
and dissatisfied with official policies. This is exactly what Islam has called the root cause of
mischief in politics.101
In the European legal system, for example, EU law requires the state under
Article 8 (2) of the ECHR, to show that the interference with privacy rights was
conducted for a legitimate aim in the pursuit of “one of these purposes: the interest
of national security, public safety or the economic wellbeing of the country, for the
prevention of disorder or crime, for the protection of health or morals, for the
protection of the rights and freedoms of others”.102 It appears that, in this respect,
Shari’a is more protective of privacy than the Convention is.
99 Scholars have been able to distill from the Quran the principle of necessity (darura), which was
expressed thus: “He has only forbidden to you dead animals, blood, the flesh of swine, and that
which has been dedicated to other than Allah. But whoever is forced [by necessity], neither
desiring [it] nor transgressing [its limit], there is no sin upon him. Indeed, Allah is Forgiving and
Merciful” The Holy Quran Al-Baqarah, 172.
100 Perhaps, the clearest and the most relevant application, which showed the legitimacy of
using qiyas in this way in this respect, was the Prophet’s habit of using spies during wars which
clearly appeared to be grounded on the necessity which has been established and founded on the
relevant Quranic text and has been embraced and adopted by Muslim scholars as a general Islamic
principle.
101 A A’la Mawdudi, Human Rights in Islam (2nd edn, The Islamic Foundation, 1980) 25.
102 Article 8 (2) ECHR reads thus: “There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the law and is necessary in a democratic
society in the interests of national security, public safety or the economic wellbeing of the country,
for the prevention of disorder or crime, for the protection of health or morals, or for the protection
of the rights and freedoms of others”.
Given the discretion allowed the ruler to embark on surveillance measures for
purposes of national security, public safety and good order, it becomes relevant to
ask how we are to distinguish between armed rebellion, acts of terrorism and other
kinds of violent crime, in order to determine when the ruler is acting appropriately.
Is it within the discretion of the ruler to determine how these three categories are to
be demarcated in practice or are there some objective criteria? In this regards,
Alzeer suggested that there must be in place an independent institution of a
specialist body of judges and jurists who would have the responsibility of deter-
mining the existence or otherwise of a national security necessity. It would be
within the discretion of the institution to determine how these three categories are
to be demarcated in practice, and provide some objective criteria that may help to
distinguish between them.103
However, we said earlier that national security could be a factor that brings an
exception to the “no spying” principle into operation, on the ground of necessity. It
should be noted that national security today refers to a broad concept which does
not only concern protection against military attacks, but also several other non-
military dimensions, such as economic, cyber or energy security etc. This may raise
the question whether national security in the Shari’a context is not merely another
way of referring to the ruler’s right to pre-empt an armed rebellion; yet it could refer
to something even broader than these new dimensions? The Shari’a’s concept of
necessity or darura is flexible enough to have included these new phenomena as
necessary justifications for intervention based on the national security of the Is-
lamic state.104 As we shall see later on in this article, that al-darurat has been
interpreted as ‘indispensable’ to the protection of one’s religion, lives, minds,
honour or property which is often referred to as the five fundamental necessities.105
103 M Alzeer, Security and Security Apparatus from an Islamic Viewpoint (Dar Al- Fakher El
Moasser, 2012) 121.
104 A relevant example could be the (alleged) attack on Turkey’s national currency, which was
seen as a threat to the national security, because it was an attack on its economy, which could give
rise to many other difficulties that would negatively impact the lives of the people. Thus, it could be
said that necessity in the context of the Shari’a’s may justify recourse to spying by the state if it
considers this necessary in order to protect its national economy, for example, in order to find out
the source of any threats or sabotage against its national currency. National security as a broad
concept can be invoked to bring an exception to the “no spying” principle, and as a legitimate aim.
However, this would next require the state to meet the other conditions, such as legitimacy of the
surveillance, as well as the conditions that must prevail to justify any interference based on the
doctrine of necessity.
105 M Almutairi ‘Necessity in Islamic Law’ (Ph. D Thesis, Edinburgh University 1997) 14.
28 S. E. Almutairi
4.3 Necessary (Darura) Under the Shari’a
Let us assume for the sake of argument that the state has satisfied the previous
requirements; it acted in accordance with the law and of course pursued a legiti-
mate aim. Notwithstanding this, the state must still satisfy the Shari’a requirement
of necessity or darura.106 Necessities have been interpreted by classical scholars in
terms of that which is “indispensable to the good of both faith and worldly affairs,
[which] if missed … and the otherworldly life will be bereft of bliss and salvation,
and plagued with utter loss”.107 They are the protection of religion, lives, minds,
honour or property. One term associated with necessity but which does not carry
the same legal effect is ‘Need’.108 A ‘Need’ refers to that which is required to remove
or ease an existing difficulty, such as shortening and the combining of prayers for
travellers.109 Although Need is an insufficient reason for actions within the pro-
hibited areas of the Shari’a, the principle of Necessity may justify such acts.110
Since Necessity is a stronger degree of difficulty, it can justify not practicing the five
fundamental pillars of Islam.
In Europe, the European Court of Human Rights has interpreted the term
“necessary” as somewhere between ‘indispensable’ and ‘useful’ or ‘desirable’.
Thus, ‘necessary’ is not synonymous with “indispensable.”111 Mass surveillance
and generalized and unlimited collection of personal data may not be prohibited in
the first instance, because it can be extremely useful to the state in tackling serious
crimes. However, the European Court would take a relatively stricter approach
when it considers on the other hand, the interference by mass surveillance with the
right to privacy, whether it is necessary, and its proportionality as a measure in the
light of all the circumstances.112 It should be noted that the Shari’a prescribes a
stricter version of necessity, which requires a higher standard of proof than the
European one. The implication is that the burden of establishing that the mass
106 Darura in the Arabic language is derived from the word darar which means an injury that
cannot be avoided.
107 M Al-Jabri, Democracy, Human Rights and Law in Islamic Thought (I.B.Tauris 2008) 250.
108 “The Improvements” is another term used by classical scholars, which means to observe
propriety and choose commendable habits, and to avoid what is shunned by sane minds, namely
all that comes under ethics and morals. Although “The Improvements” like “necessities” and
“needs” can be used as a basis of legal analogy or reasoning to reach a ruling in Shari’a, [neither
that concept or that of “needs” can be used to legitimize a prohibited act?].
109 Almutairi, (n 105) 16–17.
110 ibid.
111 Handyside v. The United Kingdom, Merits, App no 5493/72, A/24 [1976] ECHR 5, (ECHR 7
December 1976) para 48–49.
112 Big Brother Watch and Others v. UK, Merits and Just Satisfaction, First Section, App nos 58170/
13, 62322/14 and 24960/15, (ECHR, 13 Sep 2018), paras 337, 384–86.
surveillance measures executed were necessary is more difficult or onerous for a

Shari’a state than for its European counterpart.
Muslim scholars and jurists have generally established five main conditions
that govern the use of al- darura al-Shari’a.113 One of them has been referred to
earlier, which is the pursuit of a legitimate aim. These conditions are strictly
applied in assessing all situations in which actions have been initiated based on
necessity, in order to prevent any misuse or abuse of the principle. Thus, the
doctrine of necessity is not a free license; rather it is subjected to strict re-
quirements. In the context of surveillance there are three relevant requirements to
be discussed, including the principle of proportionality.
The first of these requirements is that the necessity requiring the measures
must be genuine and real not imagined.114 This requires the state with respect to
surveillance or spying, to demonstrate that there is a certainty or a strong degree of
probability that a serious breach of the security and the welfare of the state and its
citizens, such as a terrorist operation, is about to occur or will be carried out in the
future. In effect, there must be a well-founded suspicion that an individual or
group of persons have a strong link to a terrorist group or are participating in a plan
or conspiracy to commit a serious crime. It therefore becomes imperative that the
state and its agents must possess the appropriate and relevant kind of information
before spying or surveillance is commenced.
It follows that surveillance initiated on the basis of doubt or mere suspicion —
for example, when there is no real connection between the individual and the
events constituting the threat — cannot be justified under the Shari’a. A good
example is the FISA Law, which allows wiretaps based on a person’s status as a
foreign national.115 It must be noted that under the Shari’a’s principle of necessity,
the measures commenced continue only for as long as the threat or situation given
rise to the measures persists; the measures must therefore be discontinued as soon
as the situation abates or is brought under control, and the original injunction or
prohibition against surveillance and spying must then be restored.116
The second of these requirements is that there must be no other legal alter-
natives or lawful means of resolving the situation or issue that has necessitated the
need for the surveillance or spying.117 Thus, the state can only resort to surveillance
or spying when there is no way of removing or eliminating the threat or necessity
113 W al-Zuhayli, The Theory of Shari’a Necessity (4th edn Alresalah 1985) 69.
114 M Al-Jizani, The Truth of Shari’a Necessity and its Contemporary Applications (Dar Al-Minhaj
2007) 67.
115 Chesterman (n 10) 233.
116 Almutairi (n 105) 171.
117 Al-Jizani (n 114) 71.
30 S. E. Almutairi
other than by engaging in the prohibited act of spying. If there is an alternative and
legal means available at the time of resorting to surveillance or spying, the state is
precluded from applying any form of surveillance or spying because this is
expressly prohibited and outlawed in the Quran and the Sunna. As stated above, it
is for the reason that surveillance measures must be immediately discontinued
once the conditions giving rise to the measures have ceased to exist, or if the
measures themselves are no longer necessary.
The last and most important requirement is proportionality,118 which states
that what is permissible on grounds of necessity must be applied only to the extent
of such necessity. In legal discussions, jurists and legal scholars are known to
associate the principle of proportionality as part and parcel of the doctrine of
necessity; thus, it is often said that while the doctrine of necessity permits pro-
hibited acts, such acts must be proportional to the necessity.119 This requires that
the state must ensure that it has adopted the least intrusive form of surveillance; or
that the method of surveillance applied is in proportion to the degree of the ne-
cessity.120 The state is expected not to expand or extend the measures further,
beyond what is required to address the situation or necessity. In this regard, it is
difficult to justify or defend surveillance that monitors mass communications
rather than individual targets as being proportionate under the Shari’a.
The European practice, as is evident from the decisions of the ECHR and CJEU,
demonstrates a strong bias in favour of the principle of necessity, which inclines
towards a robust protection of individual privacy against mass surveillance. Unsur-
prisingly, therefore, a number of mass surveillance cases decided by these Courts have
failed to clear the proportionality hurdle; the Digital Rights Ireland case is illustrative of
this trend.121 This principle is also enshrined in the EU Charter of Fundamental Rights
118 One important example of the strict application of the test of proportionality involved the
second Caliph Umar, who whilst travelling at night in a city, heard unusual noise and cursing,
coming from a residential area. Umar drew near to the house from which the loud noise and
commotion emanated; he peeked into the house, and directed an accusation to the man he thought
was at fault. Umar called the man a sinner; he accused the man of sinning against Allah, and
warned him that Allah would not ignore his sins. The man in turn told Umar that he (Umar) had
committed more sins by doing three things that Allah prohibits: prying into an individual’s per-
sonal faults; not to access a private dwelling by any other means save through the front door; and
not enter a private dwelling without the permission of the owner of the house. Thus, the man
accused Umar of peeking into the house over the fence, and without permission, in order to accuse
him of his faults. Sunan alkubraa Al-Bayhaqi: 8/333. See generally; K Stilt, Islamic Law in Action:
Authority, Discretion and Everyday Experiences in Mamluk Egypt (Oxford University Press 2011) 97.
119 Al-Jizani (n 114) 78–80.
120 ibid.
121 Digital Rights Ireland Ltd v. Ireland, Joined Cases C-293/12 and C-594/12 [2014] 238,
ECLI:EU:C:2014:238.
which states that ‘Subject to the principle of proportionality, limitations may be made
only if they are necessary and genuinely meet objectives of general interest recognised
by the Union or the need to protect the rights and freedoms of others’.122
4.4 The Further Requirement of an Oversight by the Shari’a
As a preliminary matter, it may be asked whether surveillance measures require

additional oversight authority for its regulation under the Shari’a. The reason for
this is that engaging in prohibited acts may generally be justified under the
principle of necessity, which is often subject to the assessment of the relevant
agency concerned. However, since surveillance puts at risk not only the in-
dividuals’ privacy, but also their other fundamental human rights, such as
freedom of expression, it is therefore essential that all state surveillance activities
should be subjected to an effective control which should normally be regulated by
an independent body. This body could be the judiciary or a body of jurists and
scholars who have the capacity, by virtue of their professional or social qualifi-
cations, to determine the authenticity of the claims of the existence of the neces-
sity; and would discharge their duties with independence and impartiality.
Moreover, there is a very important and relevant principle or maxim in Islamic
jurisprudence which may discourage the use of surveillance measures; this maxim
states that the avoidance of harm takes precedence over the doing of good.123 The
claim that surveillance measures are carried out in the interests of the populace will
not outweigh the harm or injury that may result from allowing the state unfettered
powers to maintain indiscriminate surveillance of its citizens.124 By virtue of this
principle, we must not assume that whenever the state embarks on surveillance and
spying activities, even where necessary, that it would act within the parameters of the
Shari’a. Notwithstanding the apparent public interest in fighting terrorism and
serious crimes, it is still important to regulate and monitor the extensive powers at the
state’s disposal, since the potential for abuse is high and the harm to the citizenry
could be dire. A fortiori, under the Shai’a, public interest considerations may not be
invoked in cases where harmful consequences will follow the surveillance measures,
unless there are genuine and effective guarantees against abuses.
An important type of oversight is the ex post oversight which happens with the
presentation in court for use against a defendant the illegally obtained
122 Art 52(1), Charter of Fundamental Rights of the European Union, 2012/C 326/02. <http://data.
europa.eu/eli/treaty/char_2012/oj> accessed 16/01/2019.
123 A Al-Raissouni, Reviews and Advocates (Dar Al-Wahine 2009) 54.
124 ibid.
32 S. E. Almutairi
surveillance evidence. This provides an opportunity to cross check and possibly

challenge the legitimacy of the surveillance measure and the resulting illegally
and improperly obtained evidence. Although, Islamic legal traditions recorded an
incident during the era of the Second Caliph (Umar), in which unlawfully obtained
evidence was excluded, this did not appear to have subsequently developed into
an established practice or legal principle in classical Islamic legal thought.125
In this regard, however, Reza commented that “it is particularly striking, since
these same jurists regularly discuss evidentiary exclusion as a possible conse-
quence of violating a different rule of investigative procedure: the prohibition of
coercion during interrogations”.126 But they do not address this possibility in the
context of spying and search, which suggests that this exclusionary rule was not
typically applied in violations of surveillance rules in classical Islamic jurispru-
dence.127 A possible explanation of this ambiguity may be that these jurists did not
want to be seen as taking a position that was contrary to what they perceived as
divine commands or prohibitions; they did not want to represent as permissible
that which is prohibited by God. Both jurists were reluctant to have the culprit walk
free without facing the punishment defined by God even if the evidence was ob-
tained improperly.
In view of the advances in technology, which has helped to promote mass and
intrusive surveillance, the adoption and application of the exclusionary rule has
become important and necessary, in order to exclude any evidence obtained from
surveillance measures in violation of Shari’a principles of privacy. This constitutes
an important safeguard against possible abuses by intelligence or security
agencies, and a powerful deterrent against serious violations of the limits placed
on surveillance by Shari’a. It should be noted that this is, however, a relatively
weak form of oversight, since the intelligence or security agency could fabricate
the basis of the evidence in order to conceal from the court that the evidence was a
product of an unlawful surveillance measure.128
125 Although leading classical Muslim scholars such as Ghazali and Ibn Taymiyya, routinely cited
the Umar incident, they did not advert to the possible existence of a legal principle based on this.
Ghazali stated that if the muhtasib exceeded the ‘Do Not spy’ principle or performed illegal
searches, they were liable here or in the afterlife. Ibn Taymiyya concluded that any such illegality,
which was contrary to the practice of enjoining right and forbidding wrong, was sinful. S Reza,
‘Islam’s Fourth Amendment: Search and Seizure in Islamic Doctrine and Muslim Practice’ (2009)
40(3) Georgetown J Int’l L, 759–760.
126 ibid.
127 ibid.
128 J Shiffman & K Cooke, ‘U.S. Directs Agents to Cover up Program Used to Investigate Ameri-
cans’ Reuters, (5 August 2013) <https://www.reuters.com/article/us-dea-sod/exclusive-u-s-
directs-agents-to-cover-up-program-used-to-investigate-americans-idUSBRE97409R20130805?
irpc=932> accessed 10 May 2018.
It is relevant to note as well that such control or oversight should cover all
stages of the surveillance measures, whether before the surveillance measure
takes place, which normally takes the form of prior authorisation, or after the
approval of application for surveillance has been given. In this regard, Alzeer has
commented that one important condition that may guarantee that the powers of
surveillance and spying are not abused under the Shari’a is that the agency of state
responsible for such activities must be subjected to the oversight and supervision
of an independent body.129 In addition, Alzeer suggested the constitution of a
specialist body of judges and jurists who would have the responsibility of deter-
mining the existence or otherwise of a national security necessity, before any
surveillance measure is initiated, if need be; such a body would then serve as the
authorizing body especially in cases of uncertainty.130
Alzeer noted that another important means of avoiding abuse, and ensuring
that legality is maintained, in the use of surveillance measures is to establish an
internal mechanism of oversight, by which prospective candidates for employment
into the intelligence and security agencies involved are required to be persons of
high moral and religious standings.131 This is hoped that would help such persons
to carry out the duty of enjoining right and forbidden wrong within the intelligence
or security agency itself, since the activities of these secret service agencies are by
nature difficult to scrutinise through any of the conventional mechanisms or in-
stitutions. Because of the huge volume of activities to be monitored, the difficulties
associated with accessing relevant information, as well as capacity issues on the
part of the monitoring bodies are bound to hamper supervision.132 Thus, in order to
provide credible and effective control mechanisms, it is important that there
should be in place legal protections (and possibly, incentives) for potential
whistle-blowers to encourage the disclosure of violations.133 Such strengthening of
129 Alzeer, (n 103) 125.

130 ibid 121.
131 ibid 123.
132 The Special Rapporteur commenting on the problems associated with monitoring in regard to
whistle-blowers, Pieter Omtzigt commented that “the sword of Damocles of the disclosure of any
abuses by well-protected whistle-blowers may well constitute the most powerful deterrent against
violations of the legal limits that should in our view be placed on surveillance”. Mass Surveillance:
Who is Watching the Watchers? (Council of Europe, 2016)? 52.
133 For the time being, there is no legal protection offered to the whistle-blowers, in relation to
intelligence activities (this is notably so in the US); this would tend to discourage many would-be
whistle-blowers who are in a position to make disclosures of violations. The Snowden case is very
instructive: Snowden, a former United States National Security Agency (NSA) contractor, came
into possession of a huge amount of personal data indiscriminately collected. Snowden’s samples
disclosed grave violations of the Fourth Amendment of the US Constitution; Snowden fled to
Russia en route Hong Kong. While he sought and obtained asylum in Russia, the US government
34 S. E. Almutairi
the internal monitoring mechanisms of surveillance agencies would greatly assist

the overall oversight and supervision framework; it will also discourage by no
small measure, any reckless implementation of surveillance measures by such
agencies.
The situation as regards the protection given to whistleblowers is clearer in the
Shari’a. The protection available to whistleblowers stems from the Shari’a prin-
ciple of enjoining right and forbidding wrong, which requires everyone to
discourage the commission of wrongs.134 Thus, whoever exposes surveillance
abuses or surveillance regimes that are deemed violations of Shari’a principles is
merely discharging their duty of enjoining right and forbidding wrong. They will
also not incur any civil or criminal liabilities as a result of their actions. This is
simply because respect for privacy and the prohibition on spying and surveillance
emanates from higher laws — namely the Quran and the Sunna — against which
the state cannot invoke subordinate laws. We may conclude from the above that for
better and effective oversight of surveillance regimes, it is essential to involve the
relevant security and intelligence agency itself by providing legal protection for
any of its employees who may be inclined to expose violations of privacy or sur-
veillance abuses.
However, it is important to point out that today big data analytics and algo-
rithmic decision-making systems have largely replaced the role of individual hu-
man judgement in assessing intelligence material.135 It is argued that the way
personal data is used to generate inferences (often highly sensitive ones as to
political opinion, sexual orientation, religious belief, etc.), without much or any
human intervention shows that personal data is afforded little meaningful pro-
tection under European data protection law. Thus, the current European data
protection law does not aim to ensure accurate and lawful algorithmic decisions,
and thus, does not govern how decisions are made. This situation is not accidental,
the CJEU clearly expressed this position in its case-law by stating that the data
protection law was not designed to ensure the accuracy of decisions, or the
decision-making process that involved the personal data of individuals, or to
ensure the full transparency of these processes.136 In short, how personal data is
charged and tried him in absentia for violation of the Espionage Act of 1917 and for theft of
government property. However, many regard him as a hero and a patriot, and describe his act as
courageous civil disobedience. See Generally, E Epstein, How America Lost Its Secrets: Edward
Snowden, the Man and the Theft (E.J.E. Publications Ltd 2017).
134 Bowering (n 47) 208.
135 See Artificial Intelligence and Robotics, supra note 376.
136 YS, M and S v Minister voor Immigratie, Integratie en Asiel, Joined Cases C-141/12 and C-372/12
[2014], paras 45–47, ECLI:EU:C:2014:2081.
evaluated and privacy-invasive inferences are drawn about data subjects are not
covered and therefore cannot be challenged under the data protection law. In this
regard, Sandra Wachter and Brent Mittelstadt have voiced their concerns in their
recent article about novel risks of inferential analytics, and have highlighted a gap
in European data protection law posed by these modern technologies.137 The au-
thors highlighted that what is needed are standards for socially acceptable infer-
ential analytics; they argue that an introduction of a right to reasonable inferences
is a necessary reaction required to face these novel risks introduced by inferential
Big Data analytics.138 However, it is relevant to recall the view by Alzeer earlier, in
which he emphasized that the prospective candidates for employment into the
intelligence and security agencies must or should be persons of high moral and
religious standings. The reason or justification for this emphasis is simply to
protect the privacy of individuals and ensure that those in charge of collecting
personal information are not used by the state or third parties, or by themselves, to
abuse their positions by causing harm to the reputation of any individual.
Alzeer’s suggestion stems from his understanding of Islamic culture and so-
ciety in relation to issues of privacy, suspicion and trust. Perhaps, Alzeer was led to
proffer that suggestion based on his appreciation of the nature and seriousness of
intelligence operations, by which agency officials routinely handle very sensitive
personal information, with the attendant potential to cause harm if misused. Thus,
if such officials are persons of high moral standards, they are less likely to misuse,
abuse or put to illicit use any information acquired in the course of their duties,
whether by virtue of surveillance operations or not, but would be more inclined to
destroy such information. This implies that if data analytics have today largely or
even partly replaced the role of individual human judgement in assessing intel-
ligence material, then there clearly needs to be some analogue for the process of
vetting personnel in relation to the oversight and control of the design of systems,
and of decision algorithms in particular.
Furthermore, it is important to point out that the oversight body must also
ensure that all aspects of the operations and the entire surveillance regime of the
intelligence or security agency, including intelligence sharing with a foreign
counterpart are subjected to Shari’a principles. Today, it is known that many of the
world’s communications — WhatsApp MMS texts, electronic mail messages,
Facebook posts — transmit to servers abroad. This means that the receiving
country or the destination country of the communication could access personal
data contained in the communication, which may in turn be shared with the
137 S Wachter & B Mittelstadt, ‘A Right to Reasonable Inferences: Re-Thinking Data Protection
Law in the Age of Big Data and AI’ (2018) Colum Bus L Rev 8.
138 ibid 13–14.
36 S. E. Almutairi
relevant local intelligence or security agency. This possibility became evident from
the revelations in the Snowden affair.
Snowden had disclosed the existence of information-sharing partnerships
between the US and its Allies — the UK, New Zealand, Canada and Australia —
codenamed the Five Eyes; these are involved in what could be termed “collusion
for circumvention”.139 By agreement the intelligence agencies of these five nations
spy on each other’s citizens, and then share the collected information with each
other, in order to circumvent their respective national restrictions on surveillance
of citizens. While each may access the data gathered by the others, they are not
liable or accountable to their various local citizens and laws.140 Thus, it is essential
that there must be in place some measures to ensure that intelligence gathering
and sharing arrangements with third parties do not breach Shari’a principles. A
Muslim ruler must not cooperate with a foreign country whose intelligence agency
is infamous for violations of privacy and whose national laws do not provide the
same standards of privacy protection as does the Shari’a.
5 Shari’a Perspectives on the Various Modern

Applications of Mass Surveillance of Entire
Populations
The following activities would constitute an infringement of the Shari’a principles of
privacy and the “do not spy” principle: intercepting, collecting (in whatever format)
for analysis, storing and further distribution of communications data. Furthermore,
this infringement can occur when data are not sufficiently secured by private han-
dlers (social networks); so that data are lost or obtained by unauthorised persons
(private individuals or the state) or shared with a third party without fulfilling the
requirements of surveillance as stipulated in the Shari’a. On the other hand, it
should be stated that the Shari’a does not perceive the Internet as an information
highway for the public, being composed of many layers of both private and public
realms. Informed use of the social media warrants that frequent and habitual users
do not expect that their communications are completely shielded from the public or
in any way entirely private. While the traditional postcard may be analogous to
public communications like Twitter and Facebook, the method of access for both is
very different. Thus, accessing a postcard, for instance, is not analogous to accessing
an e-mail message from a private box.
139 Mass Surveillance (n 110) 19.

140 ibid.
It would be interesting to consider from a Shari’a viewpoint, whether a valid

distinction may be drawn between the content of the data (telephone conversa-
tions) and metadata (so-called traffic data), including the time of a call and the
email address of recipients or senders.141 It is true that the call content (not the
metadata) of a communication is revealing information of the utmost sensitivity,
but still the collection of metadata constitutes an interference with privacy and is
clearly a form of spying that is prohibited in Islam. The reason for the interest in
metadata is because it is easy for the intelligence/security agencies through this
medium, to build extensive personal life profiles for citizens (i.e. habitual call or
travel destinations or web visits), relying exclusively on metadata.142 This aligns
with the recent decision of the CJEU on Data Retention Directive which held that
those data, taken as a whole, may provide very precise information on the private
lives of the persons whose data are retained, such as the habits of everyday life,
permanent or temporary places of residence, daily or other movements, activities
carried out, social relationships.143 Thus, metadata must be collected and pro-
cessed in accordance with European privacy standards.
In regard to the application of modern mass surveillance in a Muslim society,
the pertinent question to as would be whether Islam permits mass surveillance of
entire populations using new technology, such as collecting personal data in bulk,
for the sake of preventing grave dangers such as would arise from terrorist attacks
against civilians. Several factors lead to the conclusion that mass surveillance and
data retention are fundamentally contrary to the “do not spy” principle, and
incompatible with core Shari’a principles of privacy. First, as previously stated, a
recourse to spying or surveillance is permissible in cases of necessity, notwith-
standing the absolute prohibition of these actions in the Quran and the Sunna.
Muslim scholars adopted a strict interpretation of the meaning of necessity as
something unavoidable or indispensable. Many of the threats and dangers that
activate modern mass surveillance programs would not amount to necessity within
the meaning attributed to such by the Shari’a.144 Moreover, the nature of modern
mass surveillance programs is that they tend to be the rule rather than the
141 In American jurisprudence, one of the worrisome privacy issues is the lack of protection for
metadata. The US government has confirmed that the NSA is authorized to require from major
telecommunication companies the metadata of all calls handled by them, which information is
maintained in the agency’s database for five years.
142 Miller, (n 75) 235–236.
143 Digital Rights Ireland (n 121).
144 The argument against the unnecessary use of mass surveillance programs is backed up by a
report published by the Review Group on Intelligence and Communications Technologies. The
Report stated that mass surveillance conducted by the NSA “was not essential to preventing
attacks and could readily have been obtained in a timely manner using conventional methods.”
38 S. E. Almutairi
exception. Mere suspicions are generalized, and data collection is indiscriminate

and aggressive; this runs against the Shari’a principles of necessity which con-
templates a temporal situation, not a permanent one.
Secondly, digital mass surveillance fails to meet the Shari’a requirements of
necessity and proportionality. Massive spying in this form is not based on urgency
or a strong probability of a crime that has been committed or that is about to
happen, but rather it randomly and indiscriminately collects and maintains data
on large segments of the populace a substantial portion of which is under no
suspicion at all.145 Moreover, counterterrorism cannot be used as a pretext to trump
the collective privacy rights of citizens; and terrorism can be tackled by the least
intrusive means and with targeted surveillance. Bulk data collection without
suspicion is an inherently disproportionate measure and also an unnecessary
response.146
Thirdly, it is clear that mass surveillance technologies target communications
that happen in private settings, i.e. personal computers and mobile phones, rather
than in public settings, for example, CCTV cameras; it is for this reason considered
an injurious intrusion into the private lives of citizens. On the other hand, public
monitoring such as CCTV does not generally give rise to reasonable expectations of
privacy in Islam. Nonetheless, the methodical and deliberate character of CCTV
recordings, and their capacity to be databased for subsequent injurious applica-
tions, may give rise to such concerns.147 Thus, the later use of an individual’s
photograph, for example, taken through CCTV for other purposes, or combined
with other information that could identify such an individual without a valid
suspicion, would be considered a breach of Islamic principles of privacy. Constant
and random monitoring of a specific individual would also constitute spying which
comes within the scope of the Islamic “do not spy” principle; thus, it must be
conducted in accordance with Islamic privacy standards.
145 Miller (n 75)159.

146 At the international level, the UN Special Rapporteur on the promotion and protection of
human rights and fundamental freedoms in the fight against terrorism, Ben Emmerson, accord-
ingly, stated that such programmes can be compatible with article 17 of the International Covenant
on Civil and Political Rights, if governmental authorities could prove that their systematic, coor-
dinated and indiscriminate invasion of the online privacy rights of a growing number of innocent
individuals the world over is justifiable as proportionate to the dangers they seek to avoid.
Otherwise, the bulk access technology that enables such intervention is injurious to privacy and
contrary to the rights granted under article 17United Nations General Assembly, Promotion and
Protection of Human Rights and Fundamental Freedoms While Countering Terrorism (UNGA 2014)
para 52.
147 Chesterman (n 10) 151.
Finally, mass surveillance is knowingly or unknowingly premised on the belief

that every individual is a potential threat to the security of the state, and hence may
be ideally placed under surveillance.148 In one sense, mass surveillance assumes
that every person is a security risk unless otherwise proven, through widespread
and indiscriminate surveillance. In this way, mass surveillance not only negatively
impact individual’s rights related to privacy; it also threatens the core criminal law
principle of the presumption of innocence, as well as the concept of citizenship and
trust between the individual and the state, which actually go against the teachings
of the Quran and the Sunna.149 On the contrary, the Quran and the Sunna
encourage the promotion of trust and positive regard between the governor and the
governed.
However, the question of whether and when mass surveillance can be justified
under Shari’a in reaction to the threat of global terrorism. It is important to point
out that intelligence and security agencies should be aware that they are not
dealing with naïve and inexperienced people, who may be assumed not to know
that they are the subject of surveillance; on the contrary, the subjects of such
surveillance will usually take precautions to avoid detection by the security au-
thorities. More importantly, they are known to employ the taqiyya tactic,150 a
religiously-sanctioned deception which allows a Muslim to lie and deceive or even
commit a prohibited act, provided that the situation is perceived as threatening.151
These can involve acts such as shaving, dressing in Western clothes or denial of
Islam or drinking wine; and some might go further to adopt other evasive tactics,
thus making it very difficult for security and intelligence agencies to detect them.152
148 C Baker & Others (eds), Neoliberalism and Terror: Critical Engagements (Routledge 2016) 65.
149 ‘Why Muslims should oppose Mass Surveillance’ (12 July 2016) <https://www.cage.ngo/why-
muslims-should-oppose-mass-surveillance> accessed 30 May 2018.
150 A Campbell, ‘Taqiyya: How Islamic Extremists Deceive the West’ (Council for the National
Interest Melbourne, 2005) <http://www.nationalobserver.net/2005_winter_ed3.htm> accessed 30
May 2018.
151 ibid.
152 ibid. One may argue that if the writer has established that taqiyya makes surveillance prob-
lematic, it should be made that surveillance is all the more necessary when dealing with people
who practice taqiyya because you cannot trust what they say in public (or in any situation in which
they believe they may be under surveillance) so that the security services have to place them under
surveillance in such a way as catches them when they do not suspect that they are under sur-
veillance and so let their guard down or tracks their movements and with whom they communi-
cate, so as to get indirect evidence of their intentions and plans. Thus, taqiyya makes surveillance
more necessary but this should be in cases of targeted individuals unless if there is general
agreement that all Muslims hold the view that they are in war with the West (which is unrealistic)
then there is likely that they would use taqiyya.
40 S. E. Almutairi
This technique might have been used in the attack against the CIA in
Afghanistan by Hamam Albalwi, a senior supervisor in a well-known jihadist
website.153 Albalwi was arrested by the Jordanian intelligence service and held for
interrogation for few days. He was subsequently recruited by the two agencies to
work as a mole and spy within the al-Qaeda camp in a Pakistani Talibani
dominant-area, to provide intelligence information about high-level targets. After
a year Albalwi contacted the JIS and CIA and alleged that he was carrying infor-
mation about Ayman al-Zawahiri’s location, the second important man in al-
Qaeda organization. Albalwi was then allowed into the premises of the CIA without
observing the usual security procedure. Albalwi then detonated a bomb that
claimed the lives of CIA employees and contractors, including the head of the
Jordanian intelligence service. This resulted in nine deaths, while six others were
seriously wounded. However, the CIA released a statement claiming that Albalwi
was a double agent.154 On his part, however, Albalwi released a recorded a video of
the attack in which he claimed to have cheated and deceived the CIA into thinking
that he would spy on al-Qaeda while he was actually doing the opposite.155 The
circumstances of this case should make one wonder if Albalwi used taqiyya to
establish credibility and trust enough to enter the CIA base without any search or
scrutiny.156
While in the West mass surveillance has been justified and used for fighting
serious crimes, primarily counterterrorism. In China, mass surveillance is more
nuanced, it is helping to develop a program called far reaching Social Credit
Scoring system, using big data analysis technology to assess each citizen and
business. It is jointly run by Tencent and Alibaba, China’s IT giants who run the
Chinese equivalents of all social networks, and who therefore have any and all
personal data of their clients. These two companies have partnered with the Chi-
nese government to create a system (Sesame Credit), akin to the American credit
score. But instead of measuring how regularly people pay their bills, it measures
153 B Ross & others, ‘How a Double Agent Lured Seven CIA Operatives to Their Deaths’ ABC News
(5 January 2010).
154 ibid.
155 ‘Profile: Jordanian ‘triple agent’ who killed CIA agents’ The Telegraph (5 January 2010).
156 It is true that the correct yardstick is not zero terrorist attacks, an unattainable goal, but rather
the number of attacks that would occur if it were not for the intelligence that security services
around the world currently gather, share and act upon. However, the continuation of international
terror attacks on Western soil generally demonstrates one important conclusion, which is that
mass surveillance can never be a panacea for future prevention of terrorist operations. There is so
far, no concrete evidence either from North America or Europe that proves that the use of mass
surveillance is an effective tool against terrorism. The Las Vegas shooting 2017, the Boston
Marathon bombing 2013 and Nice truck attack 2016 are also illustrative examples, despite the
massive surveillance conducted at the time.
how trustworthy they are, which therefore aims to enhance trust and social sta-
bility by creating a culture of sincerity.157
For example, if a citizen buys something which the government appreciates or
values, such as a local product, the score will go up. If a citizen spends too much
time on online gaming the the score will do down. The more score the citizen
obtains the more benefits he or she will obtain; on the other hand, the lower the
score, the less the advantage that accrues. Surprisingly, it is claimed that low score
does not only arise from the citizen’s own behaviours, but also from being asso-
ciated with someone with a low score. So, it is then advisable to break up with low
scoring friends in order to level up the score. The system is envisioned to be
completed and mandatory in 2020, and more penalties will be applied such as
exclusion from high-status and influential positions, and slow Internet
connections.158
Thus, it is clear from the above that the system has been used to rate in-
dividuals on their Internet habits (excessive online gaming reduces one’s score),
personal shopping habits, and a variety of other personal and wholly innocuous
acts that have no impact on the wider community. Therefore, we could describe it
as an effort aimed at controlling the populace through surveillance operations, an
activity which is chilling and filled with arbitrary abuses. The possibility of
applying such a system under Shari’a would clash not only with Islamic principles
of privacy, but also the concept of ‘husn al dhan’ (assuming the best in people),
which constitutes an important value and component in any Islamic society and
tradition.159 The previous Chinese model of mass surveillance is based on
assessing citizens by collecting private data that occurs on daily basis, which aims
to search out for who is not habits does not deem dangerous or jeopardy, as some
Western countries often invoke when it concerns mass surveillance, but it rather
deems untrustworthy. Thus, ‘husn al dhan’ in the Chinese case, should assume
that all citizens are trustworthy, if the government feels there should be ways to
promote trustworthiness among society this should be transparent and fair mea-
sures not by spying and surveillance of personal activities and invasion of private
sphere of individuals. In practice, the system assumes appears to assume the
otherwise of ‘husn al dhan’ which explain why there already involvement in mass
surveillance of all citizens. However, it should be stated that doing the otherwise of
‘husn al dhan’ (assuming the worst) considers a major sin in Islam which is not less
157 S Denyer, ‘China’s plan to organize its society relies on ‘big data’ to rate everyone’ The
Washington Post (22 October 2016).
158 R Marsden, ‘Big brother: China’s data-driven Social Credit system sounds like a sci-fi dystopia’
The National (26 September 2018).
159 A Al-Nasser (n 29) 92–95.
42 S. E. Almutairi
degree in harm than the spying activity its self. As the Prophet says three things
everyone cannot avoid he mentioned among them, suspicion of others so the
Prophet asked if one suspects of someone, it is not permissible to investigate based
on it if that occurred then it would be a major sin.160 This will be obviously applied
to the state and its officials which means constitutionally (as Islam must be placed
as the highest law) the state should always have or assume the best in its citizens
unless there is a compelling justification to assume the worst such tangible evi-
dence of crime and this can be happened only in cases of targeted surveillance and
it is impossible to occur in the case of mass surveillance. The Prophet warned of the
chilling effects of widespread suspicion (which is inherent in Mass surveillance),
that mass surveillance will in fact corrupt or ruin society; in other words, it will
destabilise society.161 In this regard, Mawdudi commented that spying activities
initiated by the state through the interception of private mail and the bugging of
homes could not be justified on grounds that the government wants to keep track
on dangerous persons. Mawdudi traces the reasons for this on the fact that gov-
ernments are usually suspicious of intelligent citizens that are critical of their
policies, a situation that Islam regards as the root of mischief in politics.162
Furthermore, Tariq Ramadan’s comments on the corrosive effects of surveillance
in Western societies are insightful which reflect his rich cultural and social un-
derstanding in Islamic cultures of these issues.
“[Terrorism] indeed exists and its evils must be fought with determination, but it is no less
clear that this bugbear is sometimes used to justify the most anti-democratic policies. Fear
and doubt are spread, and then populations are told that they are being watched and that a
number of their rights are being suppressed for their own good. Minds forcefed threatening
discourse and pictures eventually atrophy and accept them, yet such generalised intellectual
atrophy and passive acceptance are contrary to the democratic ideal”.163
6 Conclusions
As was mentioned at the outset, mass surveillance generates certain consequences
which are clearly in conflict with many aspects of Shari’a. It may involve inter-
ference with matters that occur on private property and it may involve spying.
160 S Alhanbali, Al A’addab Al Shariah Wal Munah Al Mari’ah Vol 1 (Dar Al Kutub Ilmiyah, 1996)
45.
161 ibid.
162 Al Mawdudi, (n 101) 25.
163 T Ramadan, Radical Reform Islamic Ethics and Liberation (Oxford University Press 2009) 284.
These acts are all dealt with in Shari’a, and there are clear commands that they
should not occur. More importantly, the mere existence of this textual evidence in
the Qur’an and Sunnah on spying and surveillance makes the situation much
harder for modern Muslim scholars who might be inclined towards mass surveil-
lance and spying for the sake of security, to use ijtihad to suspend or repeal this
prohibition, in order to accommodate surveillance activities, even with the added
reason that this would secure the safety and security of the people from more
sophisticated terrorist attacks. This is simply because of two reasons. Firstly, mass
surveillance programs would not be able to meet the Shari’a’s conditions under the
principle of necessity, as the Shari’a’ conditions are more difficult to satisfy than
that of the European regime. Secondly, there can be no further recourse to ijtihad164
since there is a text in the Quran and the Sunnah which is clear and explicit;
therefore, the only way that the state may be justified in engaging in surveillance
and spying activity is when the conditions as envisaged under the Shari’a are
fulfilled, including its equivalent of the European proportionality test. Thus, it is
unsurprising to conclude that Shari’a by no means embraces the idea of mass
surveillance as a reaction to the threat of global terrorism (or any other purposes);
this is not only because that the very idea of mass surveillance has apparent
conflict with many Shari’a rules and principles but also mass surveillance itself is
not a proven solution to terrorism. Thus, it is both unnecessary and a violation of
many Islamic values and principles. It may be appropriate here to refer the well-
known Islamic maxim which can be legitimately used to render the idea of mass
surveillance inapplicable at least in Shari’a context: the avoidance of harm takes
precedence over the doing of good.
The different implications of the argument being made for different kinds of
Muslim polities are interesting. For example, in Saudi Arabia, the argument relates
to Shari’a as part of the applicable national law and what kind of supplementary
regulations are needed to give it proper effect. In Turkey, on the other hand, the
issue of privacy is addressed by a secular national constitution and legislation
made under it, within the framework of the European Convention on Human
Rights. In terms of the practical implications of the argument made in the article.
As we discussed previously, we could make the case that understanding of what
Shari’a requires is enhanced by considering the similarities between that and
Western concepts of privacy. The political consequence might be in broadening the
range of political and social actors in favour of privacy (and against mass sur-
veillance) could be established in a situation like the Turkish one, by showing that
secularist defenders of privacy and Islamist defenders of Shari’a have a great deal
in common, in relation to this issue. It would be useful to emphasize (at several
164 T Ramadan, Western Muslims and the Future of Islam (Oxford University press 2004) 43.
44 S. E. Almutairi
points throughout the article) that Turkey is the prime example of a Muslim polity
that is a part to the European Convention on Human Rights (and still has some
prospect of acceding to the European Union and, at the very least, remaining
closely aligned with the EU in many areas) so that EU and ECHR decisions have
practical relevance for it. The alignment (or not) of the EU and Turkey in relation to
data protection is one topic that could be mentioned in that respect. In Saudi
Arabia, on the other, the argument based on the right to privacy is probably less
significant in practical terms than a demonstration that Shari’a plainly prohibits
many of the forms of mass surveillance currently practiced and focusing attention
on the how better effect can be given to that prohibition (for which purpose Eu-
ropean privacy law can offer practical examples of specific concepts and tech-
niques, that can be adapted to the Shari’a context without introducing any
anything unIslamic).

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Muslim World J. Hum. Right.

2020; 17(1): 1–44

Sattam Eid Almutairi*

Abstract: The phenomenon of mass surveillance has confronted legal systems

Keywords: privacy, state surveillance, Islam, Western legal systems

underdeveloped. Thus, in seeking to understand better how the conditions of

2 Does Shari’a Impose Limitations on Mass

correspondence.21 The Islamic preference of describing rather than explicitly

recalls that systematic surveillance of entire civilians by law enforcement agencies

31 Al-Suyuti, Jami al-Saghir Vol.1, 165.

injunctions that require Muslims to do or not to do something (obligations or

3 The Application of the Islamic “Do not Spy”

51 Al-Nasser, (n 40) 92–95.

intelligence in similar circumstances, which information was used for military

66 A Zahid, Criticism of the Religious Foundations of Contemporary Islamic Fundamentalism

70 Chesterman, (n 10) 105.

76 Brooks, (n 68) 266.

4 The Lawfulness of Electronic Surveillance in

4.1 The Principle of Legitimacy

Under the Shari’a, it is essential that surveillance be prescribed by law, or has a

Moreover, since the implementation of secret surveillance measures regarding

information technologies allow incredible amounts of information relating to a

4.2 Siyasa Shar’iyya; the Content of the Relevant Legitimate

94 Maroth (n 49) 159.

97 Alshech, (n 22) 298.

4.3 Necessary (Darura) Under the Shari’a

surveillance measures executed were necessary is more difﬁcult or onerous for a

4.4 The Further Requirement of an Oversight by the Shari’a

As a preliminary matter, it may be asked whether surveillance measures require

surveillance evidence. This provides an opportunity to cross check and possibly

129 Alzeer, (n 103) 125.

the internal monitoring mechanisms of surveillance agencies would greatly assist

5 Shari’a Perspectives on the Various Modern

139 Mass Surveillance (n 110) 19.

It would be interesting to consider from a Shari’a viewpoint, whether a valid

exception. Mere suspicions are generalized, and data collection is indiscriminate

145 Miller (n 75)159.

Finally, mass surveillance is knowingly or unknowingly premised on the belief

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