ARTIFICIAL INTELLIGENCE AND DATA PRIVACY: A CONSTITUTIONAL PERSPECTIVE

Abstract

The introduction of state-controlled Artificial Intelligence (AI) and surveillance technologies into Pakistan, best exemplified by biometric databases and predictive policing systems such as the Punjab Safe City Project, presents a threat to the constitutional fundamental rights as never seen before. This paper demonstrates that the current constitutional and legislative system in place in Pakistan is urgently inadequate to regulate AI, which constitutes an algorithmic surveillance regime that functions in a vacuum of doctrines. Article 14 of the Constitution provides that the dignity and privacy should be inviolable, but the subject of law provision and the reactive and permissive approach of the statutes such as the Prevention of Electronic Crimes Act (PECA) 2016 make it possible to collect and profile mass data without the required protection of proportionality, transparency, and due process.

This study applies a doctrinal and comparative legal methodology and firstly, it diagnoses this constitutional gap by examining Pakistani jurisprudence on surveillance. It subsequently conducts a critical comparative analysis based on the transferable lessons acquired through the regulatory approach of the European Union based on rights (GDPR), fundamental rights jurisprudence in India (K.S. Puttaswamy), and the volumetric approach to digital privacy in the United States (Carpenter). The thesis argument is that in order to balance AI innovation and constitutional faithfulness, Pakistan should take a two-pronged approach of judicial reinterpretation and strong legislative change.

The main contribution made by paper is the proposal of a customized, justiciable, Algorithms Surveillance Test of Pakistani courts, which is based on a rigorous proportionality criterion (legality, legitimate aim, necessity, and balancing). This is a test which would give the doctrinal instrument to examine projects such as Safe Cities. Simultaneously, it states that the upcoming Personal Data Protection Bill should be supplemented with Compulsory Algorithmic Impact Assessments (AIAs), compulsory transparency and explainability conditions and an entirely independent National Commission with robust audit and sanction capabilities. Finally, the study can offer a real-life constitutional roadmap to Pakistan, and other jurisdictions in the Global South to go beyond a state of unregulated algorithmic governance to a state of responsible, rights-sensitive algorithmic regulation.