Sattam Eid Almutairi
The Shari'a Approach to the Present-Day Threats to Privacy and Data Protection; in the Light of the Contemporary Problems of Mass Surveillance and Big Data in the Digital Age
Surprisingly, no scholar has undertaken a comprehensive and scholarly study of how the Shari’a principles of privacy should be applied to new technologies such as the Internet, in the light of revelations such as those from Wikileaks and Edward Snowden and what they disclose about the massive increase in the state’s ability to surveil the general population. This thesis undertakes a comprehensive investigation of the Islamic approach to privacy and state surveillance and its application to modern problems of mass surveillance through the internet and other means. In this thesis, I argue that the Shari’a has the basic concepts to cope with present-day threats to privacy and data protection and that the Shari'a has the potential to do so, but that this has not been tapped in practice.
In addition, I have chosen the KSA as case study of a Shari’a-regulated legal system of a modern Islamic state, in order to assess the impacts of its actual law and practice in the area of spying and surveillance, as far as the right to privacy is concerned. This is the reason why the thesis focuses only on the four Sunni schools whose opinions are accepted as being authoritative in Saudi Arabia. Perhaps also briefly note that although the Shi’a minority has some scope to apply its own variety of Shar’ia, this is only in spheres that do not affect issues of state surveillance.
In addition, the thesis provides a preliminary conceptual survey of how understandings and practices in relation to privacy vary among legal systems in Western Europe, North America and Islamic societies. The thesis attempts to show how Western and Islamic traditions share many of the same concepts about the tests to be applied when deciding how far an intrusion on privacy is justified, to a greater extent than is widely appreciated. The thesis argues that an Islamic country need not necessarily be a democratic one in order to ensure that its surveillance regime is compatible with Islamic principles of privacy, as Shari'a has principles and institutions which are adequate and could be developed to perform the same or equivalent functions as the European or American frameworks of accountability and oversight.
The thesis also demonstrates that Shari’a’s requirements of surveillance have parallels in many respects with the European jurisprudence; an interference with private life must “be prescribed by law”, it must be ‘in pursuit of legitimate aims’, as well as fulfill the requirement of necessity. Indeed, the Shari’a’s interpretation of necessity is stricter than its European counterpart, as it generally requires a higher threshold to establish a case; it deems necessity as synonymous with “indispensable”. Furthermore, the thesis argues that certain features of mass surveillance and data retention approaches are fundamentally contrary to the “do not spy” principle, and incompatible with core Shari'a principles of privacy. It also highlights that in the context of counterterrorism some techniques such as taqiyya (holy deception), could render mass surveillance approaches fruitless.
Sattam Eid Almutairi (from Saudi Arabia) is Lecturer of public law at Ta'if University, School of Law and Shari'a where he has taught An Introduction to Law, Constitutional law, Criminal law and Islamic Culture. Recently, he published an article in the Muslim World Journal of Human Rights (MWJHR) titled ‘The Islamic and Western Cultures and Values of Privacy.’ This journal is highly regarded on issues of human rights in the Muslim world and notable academics in Islamic law and human rights law have published their research in this journal. Mr Almutairi studied law at King Abdul Aziz University (KAU), Saudi Arabia and completed an LL.B. (Bachelor of Laws) with excellent and distinctive degree and with the first class honors in 2010. He also holds an LL.M. (Master in International Human Rights) from University College Dublin (Sutherland School of Law) with Second Class Honours, Grad 1. From 2012 to 2019 he held Postgraduate Research Scholarship from School of Law and Shari'a, Ta'if University, and is currently finalising his PhD thesis at UCD (Sutherland School of Law), which addresses Shari’a approach to the present-day threats to privacy and data protection; in the light of the contemporary problems of mass surveillance and big data in the digital age.
Presentations and/or Publications:
Notions of Privacy in Islamic culture
12 May 2016. UCD Graduate Research Student Symposium.