Does the Sharia Accept Mass Surveillance?

In light of multiple confirmed revelations, conscious device users guard themselves against intrusion from the government and hackers.

This is the question I tackled with the last term paper I handed in as a student of UIA Malaysia under the supervision of Professor Sikandar may Allah preserve him. The original paper was in Arabic, and that’s how I displayed it on Academia.Edu and on my site as well [وسائل الاستخبار المعاصرة], as a sample of my work in Arabic. What follows in English is a very brief summary of the conclusions I reached, with some of the justification and key passages and quotes translated.

This essay seeks the position of Islamic Law towards mass surveillance or al-murāqabah al-jumhūriyyah. The Arabic word muraqabah comes from the root [ر – ق – ب], whose derivations usually have the meaning of watching in prepared anticipation, sometimes watching from an elevated position. Similar to nazara, which can mean to watch and to wait, but raqaba adds the meaning of waiting for something and readiness to react to that something.

Mass surveillance was defined as government use of electronic devices to monitor most or all of the population to prevent terrorism and maintain security. Surveillance discussion in Islamic Law diverges from tajassus because the latter was categorically prohibited against Muslims, and traditional books focused on the ruling of captured enemy spies, and for example, if a Muslim was spying against the Muslims.

Electronic surveillance may be public with cameras and recording devices easily seen or assumed to be behind mirrors and screens. I refer to such obvious types of surveillance as murāqabah khārijiyyah, or ẓāhirah. Private surveillance or murāqabah sirriyyah or khafiyyah or khāṣṣah is using privately owned devices to record its owners’ conversations or capture images without their permission or knowledge. A third form of mass surveillance is the collection of usage data from digital accounts that may not necessarily be linked to a single device—for example, purchase history, browsing history, social media profiles, etc.

This essay concludes that public surveillance most closely resembles the institution of ḥisbah, strictly monitoring public actions and discourse, and is likewise encouraged in Islam. Abul-Hasan al-Māwardī (d. 450) defined ḥisbah thus in his famous al-Aḥkām al-Sulṭāniyyah, pg. 349:

هي أمر بالمعروف إذا ظهر تركه، ونهي عن المنكر إذا ظهر فعله

The commanding of good if it is publicly abandoned, and the prohibition of evil if it is publicly committed

The important thing to note, and al-Māwardī is consistent in this throughout his chapter of ḥisbah, is the qualifier for all acts subject to ihtisab, which is ẓuhūr, or that the offense happens openly or in public. For example,

وإذا جاهر رجل بإظهار الخمر، فإن كان مسلمًا أراقها عليه [وأدّبه]، وإن كان ذميًّا أدبه على إظهارها.” استمر هكذا حتى قال “وأما ما لم يظهر من المحظورات، فليس للمحتسب أن يتجسس عنها، ولا أن يهتك الأستار حذرًا من الاستتار بها، قال النبي -ﷺ: من أتى من هذه القاذورات شيئًا فليستتر بستر الله، فإنه من يبد لنا صفحته نقم حد الله تعالى.”

“And if a man openly exposes alcohol, if he is a Muslim, then [the muhtasib, or religious police] pours it out before him [and disciplines him], but if it’s a covenanted person, he disciplines him for exposing the alcohol.” Until he said, “But as for what is not openly committed of prohibited actions, then it is not for the muhtasib to spy and seek out, and he should not break any coverings, in warning from those hiding behind curtains and blinds. The Prophet ﷺ said: whoever has anything of these drinks should cover themselves with Allah’s cover, for if anyone exposes their page to us, we will establish the ḥadd upon them.” – I found this hadeeth with al-Haakim who said it was sahih according to the conditions of al-Bukhari and Muslim

Surveillance with cameras in public locations where a human could potentially be standing instead of the camera appears Islamically legitimate, and analogically similar to the well-known institution of ḥisbah, and the role of witnesses in repelling and recording violations.

Ruling on various types of intrusive surveillance:

As for collecting purchase and browsing history for marketing purposes, then this is the subject of Islamic marketing etiquette and not covered in this research. 1)As a side note, the author suggests that such information should only be offered voluntarily by customers, to protect their privacy, and not be a default. Also, browsers and ISPs should be smart enough to protect certain private browsing habits from going beyond the necessary points of communication, to protect the dignity of private users. One possibility, at the end of every month for example, a single message from the ISP could be sent to the user, allowing them to choose which types of companies they are willing to send their stats to, and then briefly select what type of stats they are willing to share from their browsing history.

Using these capabilities for journalistic intentions is also outside the borders of this research. But clearly forbidden is hacking with the intention of blackmail, voyeurism, exposing the sins of others to gain tabloid sales etc.

Taking advantage of such capabilities for the purposes of war and espionage against an enemy carries a different ruling. Scholars of Islam have no disagreement that the Prophet ﷺ sent spies to acquire information from the enemy at the very least, if not pursue more clandestine activities of sabotage and ideological influence.

But the government’s ability to take over a resident’s privately owned device remotely should be restricted as much as possible to prevent widespread illegal hacking. Nonetheless, if government agencies have that ability, it should only be evoked when strong suspicion to a major unrepairable crime exists—like murder or fornication—to aid law enforcement before acting. The essay advises forming a committee of select Islamic scholars to serve as middlemen in seeking the keys and permission to use this ability. Al-Māwardī stated [pg. 366]:

فإن غلب على الظن استسرار قوم بها لأمارات دلت، وآثار ظهرت، فذلك ضربان: أحدهما: أن يكون ذلك في انتهاك حرمة يفوت استدراكها، مثل: أن يخبره من يثق بصدقه أن رجلًا خلا بامرأة ليزني بها، أو برجل ليقتله، فيجوز له في مثل هذه الحالة أن يتجسَّس ويُقدِم على الكشف والبحث، حذرًا من فوات ما لا يستدرك من انتهاك المحارم، وارتكاب المحظورات، وهكذا لو عرف ذلك من المتطوعة جاز لهم الإقدام على الكشف، والبحث في ذلك، والإنكار، كالذي كان من شأن المغيرة بن شعبة.”

“If he has strong reason to believe a people are continuing in [great sins] [privately] due to evidences indicating2)See al-Qurṭubī, v. 16, pp. 331-2 about differentiating between good and ill suspicions regarding sin. that, and traces that have appeared, then there are two aspects: one, in violation of sanctity that could not be repaired, like if someone whose honesty is trusted informed him that a man was alone with a woman to fornicate with her, or with another man to kill him. Then it is allowed for him in that situation to spy and do what he can to uncover the truth and search, fearful over losing what could not be repaired of violated sanctity and committed prohibitions. And similarly, if a volunteer muhtasib [has similar strong reason to believe] then it is allowed for him to spy and uncover the truth, to rebuke, just like the incident with al-Mughīrah ibn Shu`bah.”

Otherwise, the automatic indiscriminate mass collection of private activities of private citizens is not sanctioned by the Sharia on behalf of the government, even for the sake of fighting terrorism. There exists no evidence that specifically allows this, to the exception of the general prohibition against spying against Muslims. On the contrary, we see evidence that reaffirms its binding nature with regard to the political authority. Abu Dawood recorded in Kitab al-Adab, the chapter of the prohibition of spying:

“عَنْ مُعَاوِيَةَ، قَالَ: سَمِعْتُ رَسُولَ اللَّهِ ﷺ يَقُولُ: «إِنَّكَ إِنِ اتَّبَعْتَ عَوْرَاتِ النَّاسِ أَفْسَدْتَهُمْ، أَوْ كِدْتَ أَنْ تُفْسِدَهُمْ» فَقَالَ أَبُو الدَّرْدَاءِ: «كَلِمَةٌ سَمِعَهَا مُعَاوِيَةُ مِنْ رَسُولِ اللَّهِ نَفَعَهُ اللَّهُ تَعَالَى بِهَا».”

Abu al-Darda’ said that Mu`awiyah said: I heard the Messenger of Allah ﷺ say: “Truly, if you follow the people’s weaknesses then you would ruin them or nearly ruin them.” That was a word that Mu`awiyah heard from the Messenger of Allah that Allah benefited him by.

Thus, government surveillance through privately-owned equipment should be forbidden and discredited for the same reason tajassus against Muslims is forbidden. Numerous narrations detail that Umar, as caliph and chief justice, discarded evidence that was received through spying, even if he himself obtained that evidence with his own eyes and ears (see Tafsir al-Qurṭubī, v. 16, pp 333-334). This would have also been expected from the Prophet ﷺ who would not punish individuals if evidence of their crimes were not admissible in court. For example, the incident of when he turned away from stoning a woman after the her mulā`anah, even though apparent genetic traits of her child that the Prophet ﷺ foretold appear to have confirmed her ex-husband’s suspicions of her infidelity.

As for terrorism, and the exception we’ve chosen to allow for the sake of preventing what cannot be repaired [ما يفوت استدراكه], then while there is no justification for putting the entire population under the microscope, there exists Islamic precedent for invasive investigation of specific individuals—with or without their knowledge. Ali ibn Abi Talib was chosen by the Prophet ﷺ on more than one such occasion. Some narrations tell us that he investigated Maariyah’s servant to kill him when the hypocrites started spreading rumors that Ibrahim ibn Muhammad did not resemble the Prophet ﷺ. When Ali approached the servant, sword drawn, the man threw his robe down revealing that he was a eunuch, incapable of intimate relations3)Recorded by al-Haakim in al-Mustadrak, Kitab Ma`rifah al-Sahabah, from Aaishah; v. 4, book 41, no. 6821.; and then of course, Jibreel greeted the Prophet ﷺ as Abu Ibrahim. In a more famous story and undoubtedly authentic, Ali and a group of companions were sent to capture a woman and retrieve a letter she was delivering to Quraish to warn them of the Prophet’s plans. When the companions caught up to her,

فَقُلْنَا: لَتُخْرِجِنَّ الكِتَابَ أَوْ لَنُلْقِيَنَّ الثِّيَابَ.

“So we said: you will give us the message or we will strip search you.”

And the fact that Ali was not alone, since that could have led to temptation, is why I believe that using this ability to spy invasively on any private individual should not be one person to one computer, but multiple people together watching and doing this, so that a culture of self-accountability is preserved inshaAllah.

When it comes to terrorism, we can benefit from Western studies. And many have claimed that mass surveillance has proven ineffective in stopping terrorism. Nearly all—if not all—incidents of terrorism since 9/11 have had stronger leads gained from traditional methods of Muslims reporting suspicious Muslims, or detailed files from intelligence agencies working together. Otherwise, the sheer volume of electronic data has slowed down and hampered intelligence agencies’ abilities to identify and prevent attacks by that means alone.

Furthermore, according to the UN committee of counterterrorism, the mass surveillance practices of many countries are in direct violation of the International Covenant on Civil and Political Rights, signed in 1966.

The surveillance culture also increases personal and academic cowardice and self-censorship. This is bad for academia, which thrives on creative exploration and objective criticism, but it could be beneficial in curbing deviant ideas, assuming the state is receptive to orthodox Islamic teachings. And we also know that from the greatest jihad is a word of truth in the face of an oppressive head of state, but this branch of iman is curtailed in such conditions. Perhaps worse, and proving the Prophet’s warnings truthful, mass private surveillance leads ordinary citizens to public immorality after giving up on their privacy. The worst affect though, without any doubt, is that this surveillance, in practice, unfairly targets practicing Muslims which makes practicing Islam appear suspect.

And in addition to these factors, we know that the Prophet ﷺ may have had greater need than us today, to spy on individuals and on entire communities. The risk to Islam was greater, as the Messenger himself was still walking the earth. He even had the names of all the hypocrites plotting against him and his companions and mission, but did not assign any companions to stand guard by their homes and eavesdrop. When he gave those names to Hudhaifah, and then passed away, it was still kept secret and not abused nor taken as an excuse to put larger swaths of the population under excess scrutiny for their comings and goings and gatherings and communications.

And Allah knows best.

References   [ + ]

1. As a side note, the author suggests that such information should only be offered voluntarily by customers, to protect their privacy, and not be a default. Also, browsers and ISPs should be smart enough to protect certain private browsing habits from going beyond the necessary points of communication, to protect the dignity of private users. One possibility, at the end of every month for example, a single message from the ISP could be sent to the user, allowing them to choose which types of companies they are willing to send their stats to, and then briefly select what type of stats they are willing to share from their browsing history.
2. See al-Qurṭubī, v. 16, pp. 331-2 about differentiating between good and ill suspicions regarding sin.
3. Recorded by al-Haakim in al-Mustadrak, Kitab Ma`rifah al-Sahabah, from Aaishah; v. 4, book 41, no. 6821.
About Chris

Chris, aka AbdulHaqq, is from central Illinois and accepted Islam in 2001 at age 17. He studied Arabic and Islamic theology in Saudi Arabia from 2007-13 and most recently earned a master’s in Islamic Law from Malaysia. He is married with children.

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