SURVEILLANCE STATE

WHY IN NEWS:

• The Centre Government on 4^th February 14, 2021 denied granting blanket permission to any government agency for interception or monitoring of any messages or information under its surveillance programmes such as Centralized Monitoring System (CMS) and National Intelligence Grid (NATGRID).

WHAT IS SURVEILLANCE STATE?

• A surveillance state is defined as a state which legally surveils all actions, locations, and friends of its citizens, in order to prevent crimes or in order to solve them faster.
• When a state takes measures to ensure security, it simultaneously restricts liberty of people also. Hence there should be balance between security and liberty.

NEED OF SURVEILLANCE BY STATE:

• Prevent organized crime:
  • Social media has become a tool for facilitating organized crime i.e. to commit and provoke extremism, money laundering, violence and crime.
• Curb on fake news and misinformation:
  • Fake news is a new challenge for law enforcement agencies as it may trigger mob violence, influence elections etc.
• Misuse of privacy clause:
  • Many of the online service providers such as Whatsapp has privacy commitments to its users >> such privacy settings of companies can be easily misused by criminals to act anonymously
• Unregulated domain:
  • Social media platforms are self-regulated as government does not regulate content appearing on social network platforms; hence due diligence is need of the hour for social media.
• Neutralizing emerging threats:
  • Surveillance would help in countering threats such as terrorist activities, cyber-attacks etc. by offering better information on potential attacks.
• Enforces Supreme Court’s advisory:
  • The SC in Tehseen Poonawalla case and Prajwala Letter Case > asked government to frame guidelines or a standard operating procedure (SOP) to deal with the publication and proliferation of unlawful content through social media intermediaries like Google, YouTube, Facebook etc.
• Role of state and non-state actors:
  • Enemy countries may make use of mass media to create chaos and disruptions in society >> to take advantage of the weakened state establishment
• To ensure rights of citizens:
  • State establishments are obliged to protect its citizen’s rights. Hence state need to check unlawful activities that may pose a threat to citizen’s rights such as cyber-bullying, defamation etc.

LEGAL FRAMEWORK:

• The Indian Telegraph Act, 1885:
  • Section 5 of the Act allows both central and state governments to intercept messages in:
    • Public emergency or in the interest of public safety
    • Interest of sovereignty and integrity of India, security of the State, public order, and prevention of incitement to the commission of offence
    • Interest of friendly relations with foreign states.
• The Indian Post Office Act, 1898:
  • It allows the Centre and state to intercept postal articles in public emergencies or in the interest of public safety or tranquility.
• The Unlawful Activities Prevention Act, 1967:
  • It allows the information that was intercepted in the Telegraph Act to be used as evidence.
• The Information Technology Act (IT Act), 2000:
  • It is one of the primary laws regulating interception, monitoring, decryption, and collection of digital communications and information
  • In 2018 MeitY has prepared the Information Technology (Intermediary Guidelines) Rules 2018 which would replace the rules notified in 2011.
• Aadhar Act, 2016:
  • In the interest of national security central government may issue a direction for revealing information from Aadhar database.

MASS SURVEILLANCE PROJECTS IN INDIA:

• Central Monitoring System Project:
  • Government has set up the CMS to automate the process of lawful interception and monitoring of mobile phones, landlines and the internet in the country.
• Network Traffic Analysis (NETRA):
  • It has been developed by the Center for Artificial Intelligence & Robotics (CAIR) laboratory under DRDO.
  • The system could detect selective words like “bomb”, “blast”, “attack” or “kill” within seconds from emails, instant messages, status updates and tweets.
• National Intelligence Grid (NATGRID):
  • NATGRID was proposed just after the 26/11 Mumbai attacks.
  • It is essentially an intelligence grid that links all the stored data from different government and intelligence entities, which enables it to analyse data gathered by the linked agencies.
• Lawful Interception and Monitoring Project (LIM):
  • The LIM works in a similar way to NETRA.
  • It is a program for surveillance of Internet traffic in India, allowing the monitoring of all traffic (text and audio) passing through Internet Service Providers (ISPs) without the ISP’s knowledge.

COURT VERDICTS ON STATE SURVEILLANCE

• Kharak Singh v/s UP, 1962:
  • Supreme Court strikes down certain UP Police Regulations that allowed for home visits to “habitual criminals” or those who were likely to become habitual criminals.

• Union for Civil Liberties v/s Union of India, 1996
  • Supreme Court gives guidelines for interception of telecommunications, specifying who can issue interception orders, on other alternatives, on the duration of the order, and on the specific nature of the order.
• K.S. Puttaswamy v/s Union of India, 2017:
  • SC ruled that privacy is a fundamental right. But this right is not unbridled or absolute.

ISSUES:

• Against freedom of speech:
  • Excessive surveillance restricts citizen’s freedom of speech as enshrined in Article 19(2).
• Against right to privacy:
  • Tapping of private messages, calls and mails on the basis of vague and arbitrary provisions is against individual’s right to privacy under Article 21
• Arbitrary application:
  • A blanket approval to certain security agencies for carrying out surveillance is arbitrary and against SC’s 2017 judgment in ‘the right to privacy case’ where SC made mandatory for government to answer the questions of ‘how, when, and what kind’ while impinging on citizen’s right to privacy.
• Lack of review
  • Decisions about surveillance are taken by the executive branch, with no parliamentary or judicial supervision.
• Lack of safeguards:
  • An individual will almost never know that she/he is being under surveillance due to clandestine nature of the act, hence challenging it before a court is a near-impossibility.
• Vague and ambiguous:
  • As per many of our laws grounds of surveillance is vague such as  ‘friendly relations with foreign States’ or protecting ‘sovereignty and integrity of India’ >> which have higher scope of misuse
• Opaque and liable to be misused:
  • There is almost no information available about the bases on which surveillance decisions are taken, and how the legal standards are applied, turning it into a tool in the hands of politicians for misuse.

WAY FORWARD:

• Parliamentary and judicial oversight:
  • There must be parliamentary oversight over the agencies that conduct surveillance and all surveillance requests must necessarily go before a judicial authority to evaluate the merits of surveillance request.
• Independent review committee:
  • Instituting an independent review committee or a ‘Privacy Commission’ comprising of retired civil servants, retired judges and civil society representatives to oversee the surveillance requests of government.
• Applying surveillance more objectively:
  • In place of using terms like ‘national sovereignty’ or ‘public security’, situations attracting surveillance by the state should be made more precise and objective.
  • Every surveillance request must mandatorily specify a probable cause for suspicion.
• Reforms in criminal justice system:
  • Evidence obtained through unconstitutional surveillance must be statutorily stipulated to be inadmissible in court.
• Private initiatives:
  • Citizens’ initiatives such as the Indian Privacy Code have also proposed legislative models for surveillance reform, which could be used by the parliament to take this forward.

BEST PRACTICE:

• PRISM:
  • It is a code name for a program under which the United States National Security Agency (NSA) collects internet communications from various U.S. internet companies
• The Investigatory Powers Act of UK:
  • It is UK’s new surveillance law. The Act creates a new framework of oversight intended to prevent abuse, which includes setting up an independent body tasked with reviewing and reporting on the government’s surveillance activities.

PRACTICE QUESTION:

Q. “Surveillance is indispensable in the age of cyber warfare, but it must be carried out in a transparent and systematic manner” Comment.