Surveillance and its privacy pitfalls

The Gujarat snooping incident should be used as an opportunity to ask how the government has assumed the power to order such invasive, unchecked surveillance.

November 22, 2013 12:06 am | Updated May 26, 2016 08:23 am IST

On November 15, a pair of investigative portals released a set of audio transcripts depicting an extraordinarily invasive and scrupulous surveillance of a young woman by the Gujarat Police. Its implications, limited as they may appear to those who consider privacy a besmirched value, in fact, have much to tell us about the abusive might of political power. The surveillance was purportedly ordered by Amit Shah, former Gujarat Home Minister, at the behest, it appears, of the Bharatiya Janata Party’s prime ministerial candidate and current Gujarat Chief Minister, Narendra Modi. The Congress, for its part, has predictably taken umbrage to the alleged illegal surveillance, arguing it seems, for a probe into the matter. But we have been none the closer to a comprehensive privacy law under the Congress-led United Progressive Alliance regime. The Union government is, in fact, equally at fault for dipping into its totalitarian reserves to allow a substantial erosion of our privacy, even as technology pervades our lives like a brooding omnipresence.

Slippery slope

The tragedy of the matter is not merely that the BJP and Mr. Modi have been allowed to get away without an explanation, but that the value attached to our privacy is on a slippery slope. The BJP’s defence, for the record, an oblique annexe to the statement of the woman’s father, is broadly to question the locus of those who question the incident, given that “the girl and her father are not complaining.” This justification is a common one. It also ignores a fundamental fact: illegal surveillance by the state is the concern of the entire populace.

In India today, violations of privacy, which have become increasingly common, aren’t seen as anathema to one’s foundational civil liberties. The lack of a systematic indignation at such infractions, it might be argued, is an indication that these values are not cherish-worthy and are, in fact, antiquated given the age of publicity that we live in. To snoop into a person’s private space, therefore, whether in the interest of security or otherwise, does not vitiate your liberty: If you’ve got nothing to hide, you’ve got nothing to fear, goes the argument. But such a response, acceptable as it may have come to become, is inherently backward and opposed to all tenets of a liberal, democratic polity.

Privacy, contrary to the elitist notions attached to it, protects us from the abuse of those in power. It isn’t a luxury. On the contrary, it is integral to our development as human beings. The two Boston lawyers, Samuel Warren and Louis Brandeis, put it better than anyone in their 1890 essay in the Harvard Law Review . “The intensity and complexity of life, attendant upon advancing civilization,” they wrote, “have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.”

Right to privacy in India

The Indian Constitution does not expressly grant a right to privacy. It was only in 1994, in Rajagopal v. State ofTamil Nadu, that the Supreme Court, though its interpretive force, found privacy to be inherent in a person’s right to personal liberty: “It is the right,” wrote Justice B.P. Jeevan Reddy, “to be let alone.” In 1997, when considering the legality of certain wiretaps, the court, in PUCL v. Union of India , established a set of guidelines to be followed in intercepting messages, in a public emergency or in the interest of public safety. But these guidelines are seldom followed. Compounding the matter is the utter legislative inaction in the field.

In April, the Union government craftily trundled out the Central Monitoring System (CMS), amid almost no uproar, giving itself the absolute power to monitor all phone and online communication in the country. The CMS provides the government direct access to every one of India’s telecommunication networks; it has removed the earlier obstacle of having to rely on the service providers for such information. But there is little in the public domain indicating the complete nature and scope of this programme. The absence of a facilitating law, providing legislative backing to the CMS, only makes matters worse; much like India’s chief investigative agencies, the programme is a creature of the executive. In other words, there is no procedure established by law to lend any credibility to what is an unquestionable transgression of our personal liberty. The CMS is a distinctly anti-libertarian measure adopted by distinctly anti-democratic means.

In June 2013, The Hindu revealed that the CMS would substantially enhance the government’s surveillance and interception capabilities. The programme, contrary to initial expectations, does not replace the existing surveillance equipment deployed by mobile operators and Internet Service Providers, but rather multiplies the government’s forensic capabilities. The state can today navigate through every telecommunication network in the country, and it possesses the unique power to read all our personal messages, whether communicated by email, text or other online means. The government, as The Hindu reported, can, in fact, access your search history and the websites that you visit. It can even go through partially written emails floundering in your drafts.

As things stand, two primary laws control access to communication data in India. But neither expressly authorises surveillance nor does enough to protect privacy. It effectively only adds to the vacuum. The Indian Telegraph Act of 1885, a colonial-era law that continues to govern telecommunication law, gives the government the power to access information in the interest of public safety or in a public emergency — neither of which has been defined with any level of precision. The Information Technology Act of 2000, as amended in 2008, permits the government to intercept, monitor or decrypt information in the interest of the sovereignty or integrity of India, defence of India, security of the state, friendly relations with foreign states, or public order, or to prevent incitement to the commission of any offence. The lack of adequate safeguards to our privacy in both of these laws is telling — the intention in these laws, if anything, appears to be to strengthen the government’s prying powers as opposed to protecting civil liberties.

The recent snooping incident in Gujarat might have emanated out of a multitude of factors that are not yet directly apparent. But the wanton ease with which it was ordered speaks to a deeper rot. We should use this as an opportunity to ask ourselves why we value our privacy. And to question how the government has assumed — almost stealthily, and without the approval of the legislature — the power to conduct wide-ranging surveillance unchecked by any independent authority.

To allow programmes such as the CMS to be piloted without due process of law would amount to a renunciation of our most fundamental freedoms. It would grant the government, as the Professor of Law, Daniel J. Solve wrote, not merely Orwellian control over our lives, but would also lead to a corresponding Kafkaesque problem: “a suffocating powerlessness and vulnerability created by the court system’s use of personal data and its denial to the protagonist of any knowledge of or participation in the process.”

(Suhrith Parthasarathy is an Advocate in the Madras High Court)

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