The Shari’a Approach to Contemporary Problems of Mass Surveillance

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.