Fu­ture of free­dom

FrontLine - - COVER STORY - BY USHA RA­MANATHAN

THE AGE OF MASS SUR­VEIL­LANCE IS un­de­ni­ably amidst us. An “or­der” from the Home Min­istry, us­ing the eu­phemism “com­pe­tent au­thor­ity”, de­clared that “any in­for­ma­tion gen­er­ated, trans­mit­ted, re­ceived or stored in any com­puter re­source” is of in­ter­est to the state. Ergo, the com­pe­tent au­thor­ity “hereby au­tho­rises the fol­low­ing Se­cu­rity and In­tel­li­gence Agen­cies” to in­ter­cept, mon­i­tor and de­crypt any such in­for­ma­tion.

The times, they have changed. Ed­ward Snow­den had to risk his life and lib­erty to let the peo­ple of the United States, and the rest of the world, know that the U.S. es­tab­lish­ment was us­ing a se­cretly ne­go­ti­ated law and judges and courts that op­er­ated in se­cret and is­sued se­cret orders grant­ing hordes of re­quests to carry on a pro­gramme of mass sur­veil­lance.

In In­dia, in 2018, such se­crecy is not just not nec­es­sary; the procla­ma­tion of power of the gov­ern­ment over the peo­ple is the point. If in the U.S. the gov­ern­ment had to hastily and de­fen­sively ex­plain that the sur­veil­lance was not over the peo­ple of the U.S. but over oth­ers to make sure they were not spies or ter­ror­ists, in In­dia every project of sur­veil­lance has un­abashedly been over the cit­i­zens.

It is star­tling, the swift­ness with which we have skit­tered down the path that leads to ex­tra­or­di­nary as­sump­tion of power of the state over the peo­ple. Yet, this was not un­fore­seen. When the Unique Iden­ti­fi­ca­tion

The gov­ern­ment’s de­ci­sion to launch mass sur­veil­lance raises con­cerns be­yond the free­dom of speech and ex­pres­sion and is an ex­tra­or­di­nary

as­sump­tion of power of the state over the peo­ple.

Au­thor­ity of In­dia (UIDAI) project was launched, it soon be­came plain that the ID project which had be­gun with ad­dress­ing the is­sue of Pak­istani in­fil­tra­tion into In­dia and then moved to il­le­gal mi­gra­tion from Bangladesh had found its rest­ing place in “leak­age in ser­vice de­liv­ery”. In this, at least in the be­gin­ning, the poor were cast as the sus­pects in the si­phon­ing off of ra­tions worth mil­lions; but even then there were many who were warn­ing about the sur­veil­lance po­ten­tial of the project. This be­gan to man­i­fest it­self when ev­ery­one was co­erced to en­rol in the UID data­base and then to link the num­ber to every data­base, and then we no­ticed the UIDAI had planned for “or­ganic” and “in­or­ganic” link­ing of num­bers: that is, it could be with the in­di­vid­ual’s con­sent, or the num­ber could sim­ply be seeded in var­i­ous data­bases us­ing a soft­ware cre­ated by the UIDAI.

Then there were the State Res­i­dent Data Hubs (SRDH) that the UIDAI trained States to cre­ate, that would pro­vide a 360-de­gree view of the in­di­vid­ual which the state could keep ex­panded and up­dated. The ma­jor­ity judges in the Put­taswamy II case (an­swer­ing ques­tions about the con­sti­tu­tional va­lid­ity of the UID project) did not see the sur­veil­lance as­pects of the project. Yet, sig­nif­i­cantly, they were able to up­hold the project be­cause they did not see the sur­veil­lance in the 360-de­gree view of the in­di­vid­ual in the SRDH, or the con­ver­gence of data, or the pro­fil­ing which con­ver­gence made in­evitable; what they did see was the au­then­ti­ca­tion records, and that sur­veil­lance through the data­base did not worry them too much. In fact, in a foot­note, the judges said: “We may take on record re­spec­tive state­ment of the learned At­tor­ney Gen­eral and Mr Dwivedi who ap­peared for the UIDAI that no state would be in­ter­ested in any mass sur­veil­lance of 1.2 bil­lion peo­ple of the coun­try or even the over­whelm­ing ma­jor­ity of of­fi­cers and em­ploy­ers or pro­fes­sion­als. The very idea of mass sur­veil­lance by state which pur­sues what an aad­haar num­ber holder (ANH) does all the time and based on aad­haar is an ab­sur­dity and im­pos­si­bil­ity.” It took less than three months for this em­phatic de­nial of in­ter­est in sur­veil­lance to evap­o­rate.

STATE, SUR­VEIL­LANCE AND TECH­NOL­OGY

This era of sur­veil­lance can only be achieved with the com­plic­ity of tech­nol­ogy com­pa­nies. There is some­thing deeply dis­turb­ing about the gov­ern­ment hold­ing “con­fi­den­tial” meet­ings with rep­re­sen­ta­tives of Google, Face­book, What­sapp, Ama­zon, Ya­hoo, Twit­ter and Sharechat to dis­cuss how to put a peo­ple un­der sur­veil­lance. This re­la­tion­ship be­tween the state, sur­veil­lance and tech­nol­ogy com­pa­nies is not new. Be­tween 2001, after the 9/11 at­tack on the World Trade Cen­tre, and 2007, tele­com com­pa­nies in the U.S. were in­volved in “war­rant­less sur­veil­lance”. This was in breach of the law even back then. Com­pa­nies such as AT&T, Ver­i­zon and Sprint had aided wire­tap­ping for the state. When this truth came out, as it some­times has to be, their cus­tomers could have taken them to court and cleaned them out in com­pen­sa­tion. Since they had been of help to the state, the Bush ad­min­is­tra­tion changed the law ret­ro­spec­tively to pro­tect the com­pa­nies from civil lit­i­ga­tion. In 2013, Snow­den’s rev­e­la­tions dis­closed the role that Google, Mi­crosoft, Ya­hoo, Ver­i­zon, Ap­ple and Face­book had played in mass sur­veil­lance.

Who are these com­pa­nies? Since 2006, Face­book has con­sis­tently breached norms, and every time the com­pany has been caught out, Mark Zucker­berg has given glib apolo­gies. The Cam­bridge An­a­lyt­ica episode and the in­ter­fer­ence with the pres­i­den­tial elec­tions in the U.S. have dented the cred­i­bil­ity of Face­book and have also raised ques­tions about what these com­pa­nies that col­lect our data do with them. It is no longer pos­si­ble to per­sist in the naive as­sump­tion that the data are only used for ad­ver­tis­ing. There is lit­tle doubt that they go way be­yond that.

Google has had a long re­la­tion­ship with the De­fence Ad­vanced Re­search Projects Agency (DARPA), an arm of the U.S. mil­i­tary. In Sep­tem­ber 2018, it was re­ported that DARPA had be­gun to ques­tion the eth­i­cal con­cerns that had arisen about large tech­nol­ogy firms, in­clud­ing Face­book and Google. This was ap­par­ently prompted by the fake news and con­spir­acy the­o­ries they were seen to be prop­a­gat­ing, and the con­trol over 90 per cent of the web that they had es­tab­lished, pri­vatis­ing and mon­etis­ing this space which was in­tended to be free for users. In early 2018, 3,100 em­ploy­ees at Google wrote to the CEO of Google, Sun­dar Pichai, urg­ing that “Google should not be in the busi­ness of war”, and ask­ing that the com­pany de­velop a pol­icy not to en­gage in build­ing war­fare tech­nol­ogy. Ama­zon and Mi­crosoft are re­ported to have worked on de­fence projects.

It is these com­pa­nies with whom the In­dian gov­ern­ment is in dis­cus­sion on how to surveil the peo­ple of this coun­try. It is dif­fi­cult to rec­on­cile the no­tion of na­tional se­cu­rity and shar­ing all man­ner of per­sonal in­for­ma­tion with com­pa­nies and gov­ern­ments. This per­plex­ity is an un­re­solved facet of the UID project, too, with bio­met­ric and de­mo­graphic data be­ing given to com­pa­nies such as L-1 Iden­tity So­lu­tions, which has close links with the Cen­tral In­tel­li­gence Agency.

The an­swer to con­cerns about per­sonal in­for­ma­tion be­com­ing the prov­ince of com­pa­nies lo­cated out­side In­dian ju­ris­dic­tion has been to de­mand data lo­cal­i­sa­tion. It is depicted as a choice be­tween cross-bor­der move­ment of data, which then leave In­dian space, and hold­ing the data in In­dia. But this is not an ei­ther-or sit­u­a­tion. The truth is that the In­dian gov­ern­ment is ask­ing for ac­cess to all data gen­er­ated in In­dia. This is an­other piece in the sur­veil­lance ar­chi­tec­ture.

It is im­pos­si­ble to ig­nore that it was the Naren­dra Modi gov­ern­ment which said to the Supreme Court that the In­dian peo­ple did not have a right to pri­vacy. This was shock­ing not only be­cause of what was said but also be­cause the task for the state is to pre­serve the rights and

lib­er­ties of the peo­ple. That the state would deny the ex­is­tence of the right and con­tend that the UID project may pro­ceed with­out con­cern­ing it­self with its pri­vacy im­pli­ca­tions speaks vol­umes about the gov­ern­ment’s view of the peo­ple as its sub­jects; and that the project can­not sur­vive if pri­vacy is to be re­spected.

RIGHT TO PRI­VACY

In Au­gust 2017, nine judges of the Supreme Court were ex­pan­sive in their en­dorse­ment of pri­vacy as a fun­da­men­tal right. In a cat­e­gor­i­cal re­jec­tion of the chal­lenge that had been set up by the gov­ern­ment to the ex­is­tence of the right, Jus­tice S.K. Kaul said: “Let the right to pri­vacy, an in­her­ent right, be unequiv­o­cally a fun­da­men­tal right em­bed­ded in Part III of the Con­sti­tu­tion of In­dia, but sub­ject to the re­stric­tion spec­i­fied, re­lat­able to that part. This is the call of to­day. The old or­der changeth yield­ing place to the new.”

The gov­ern­ment has, how­ever, been reluc­tant to ac­cept this ver­dict. In April 2018, even as a Con­sti­tu­tional Bench was lis­ten­ing to ar­gu­ments on the UID mat­ter, which in­cluded con­cerns about sur­veil­lance, the Min­istry of In­for­ma­tion and Broad­cast­ing re­vealed its plan to set up a “tech­nol­ogy plat­form... to col­lect dig­i­tal me­dia chat­ter” which should “sup­port easy man­age­ment of con­ver­sa­tional logs with each in­di­vid­ual with ca­pa­bil­i­ties to merge it across channels to help cre­at­ing a 360 de­gree view of the peo­ple who are cre­at­ing buzz across var­i­ous top­ics”. The plat­form was to have “lis­ten­ing and re­spond­ing ca­pa­bil­i­ties” not only to stan­dard dig­i­tal channels— in­clud­ing a wide range from Face­book to Google to In­sta­gram to Flickr to email to blogs, fo­rums, com­plaint web­sites—but “also en­able easy ex­ten­sion to in­te­grate pro­pri­etary data sources like the mo­bile rights plat­form”. The tasks in­cluded “ex­tract­ing sen­ti­ment”, “iden­tify(ing) in­flu­encers”, achiev­ing an “abil­ity to see his­toric con­ver­sa­tion of each user in a re­verse chrono­log­i­cal man­ner with the abil­ity to merge con­ver­sa­tions across channels”. It was to “strate­gise re­cov­ery for neg­a­tive pub­lic­ity” and to be able to cat­e­gorise what passes in the World Wide Web into “pos­i­tive, neg­a­tive and neu­tral” and to do pre­dic­tive anal­y­sis. A “pri­vate data cen­tre” was to be set up to store all data/con­tent in an archive.

Jus­tice D.Y. Chan­drachud was pro­voked to ex­claim: “If every tweet and What­sapp mes­sage was to be mon­i­tored by the gov­ern­ment, it will be like cre­at­ing a sur­veil­lance state.” The gov­ern­ment re­treated. In any event, it ap­pears it had not got any bids. This time round, the gov­ern­ment seems to have de­cided not to look out­side but to use its own agen­cies to mon­i­tor, in­ter­cept and de­crypt, and to pun­ish those who do not fol­low its dik­tat.

This de­ci­sion to launch mass sur­veil­lance raises con­cerns way be­yond the free­dom of speech and ex­pres­sion. It is, as Jus­tice Chan­drachud said in a re­lated con­text in his dis­sent in the UID case, about the fu­ture of free­dom it­self. Usha Ra­manathan works on ju­rispru­dence of law, poverty and rights.

RECORD­ING OF IRIS DATA in progress for the Aad­haar Unique Iden­tity Card at a cen­tre in Thiru­vanan­tha­pu­ram. The ma­jor­ity judges in the Put­taswamy II case up­held the UID project as con­sti­tu­tional be­cause they did not see its sur­veil­lance as­pects.

CLER­I­CAL ER­RORSin Aad­haar en­rol­ment have de­prived se­nior cit­i­zens of so­cial se­cu­rity pen­sions and other ben­e­fits.

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