BREACH OF PRIVACY?

American singer Rockwell wrote a song back in 1984 named, Somebody’s Watching Me. The lyrics encapsulate the song’s wide resonance among masses: “I always feel like somebody’s watching me; And I have no privacy.” Though a part of popular culture, this song was etched in reality – a reality that Indians today are struggling to cope with.

On December 21, 2018, announcing a decision that could have wide ramifications across the country, the central government allowed 10 intelligence and investigating agencies along with Delhi Police to intercept, monitor and decrypt “any information” generated, transmitted, received or stored in “any computer”.

Meanwhile, the Supreme Court issued a notice on a PIL by the NGO People’s Union of Civil Liberties (PUCL), challeng- ing the surveillance powers of the State under section 5(2) of the Indian Telegraph Act read with Rule 419-A of the Indian Telegraph Rules of 1951. The petition also attacks the constitutional validity of section 69 of the Information Technology Act and the Information Technology (Procedures for Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009. The bench headed by Chief Justice Ranjan Gogoi tagged the PIL on January 14, with a string of earlier petitions challenging the Ministry of Home Affairs’ order dated December 20, 2018, authorising ten security and intelligence agencies to intercept, monitor and decrypt data stored across computers. The petition places reliance on the 2017 nine-judge bench decision that had declared the right to privacy a fundamental right under Article 21, and the subsequent Aadhaar judgment in 2018, where the disclosure of information was declared a requisite only in the interest of national security.

In its verdict on the right to privacy, the Supreme Court had explicitly acknowledged that technological development and innovation in the digital space to violate individual privacy may emerge as a threat, necessitating an expansive reading of the new right.

As India moves towards digitisation, algorithms and artificial intelligence, the judiciary will be able to interpret the right to privacy and apply it to new technological innovations. PUCL observed, “It is important to point out that the first petition challenging the citizen’s right against surveillance by the state was the PUCL PIL challenging telephone tapping filed in 1991, in which a judgement was given in 1997, laying down guidelines with regard to telephone tapping. In the said case, PUCL had argued that any order for telephone tapping should be sanctioned by judicial authority to prevent arbitrary and politically motivated decisions to tap telephones of different people.” Surveillance efforts by the ruling government have always evoked the ire of opposition parties and legal experts, yet, surveillance has been a useful weapon for those in power. Apar Gupta, a lawyer and executive director for Internet Freedom Foundation said, “The new surveillance laws by the government are unconstitutional because they breach of the right to privacy. We have urged the Supreme Court to look into the law in respect to the Aadhar judgement.”

In this context, the MHA notification suggests that if the government perceives a threat to national security or public order, it can not only monitor a citizen’s online activities but also carry out searches and seize information stored in any computer resource, including mobile phones and tabs. The government can then access any information stored on a computer device, including passwords and photographs – even those not shared online.

“Any surveillance should happen within judicial safeguards and oversight. If there is no such regulation, then surveillance will indeed be a breach of the right to privacy. We believe there should be a regulation on surveillance,” added Gupta. Further, recent rules observe that a person under state surveillance will not be informed of his/her precarious position under scrutiny. “I also think that there should be some rule where, at the end of the process, a person is aware of the surveillance,” Gupta asserted.

Meanwhile, the Ministry of Home Affairs’ order on surveillance triggered a massive controversy across the country, particularly through political corridors. Responding to Congress leader Anand Sharma’s criticism of MHA allowing 10 security and intelligence agencies to monitor a computer, Finance Minister Arun Jaitley said: “On December 20, the same order of authorisation that had been existing since 2009 was repeated. You are making a mountain where a molehill does not exist.”

WHY SURVEILLANCE?

While the law for surveillance is being criticised by the opposition and lawyers, the police and administration have observed that, in today’s age of rampant technology, surveillance remains one of the few tools that can be used to crack down big crimes and criminals.

“Police is not here to interfere in someone’s personal life, we work to protect the people. Nowadays, everything can happen through a mobile phone, a laptop or even a smartwatch. Now, criminals do not keep things as papers but they just carry it in a drive,” said an official of Delhi police requesting anonymity.

Police officials also rubbished the statement of misuse of law, saying that without permission from the Home Department of the Union Government or state government, no such surveillance can take place. “The order is not new and neither has the government given any new power to authorities. None of these authorities can directly decide on whom the surveillance should happen. Permission should be taken from the Home Secretary of state or Centre,” said an official.

According to the government’s clarification posted on December 20, the notice was only issued to notify service providers to codify existing orders, as it will help ensure lawful, regulated monitoring and interception of any information. The order, it said, would prevent any unauthorised agency or individual from using it.

However, former IPS and former Director General of the Human Rights Commission, Sankar Sen, told Millennium Post, “Surveillance is an important tool but it should not be there without requisite safeguards. If the authorities are so confident that there would not be any misuse, then why can’t they add the clause of safeguarding?” Sen also said that, in his experience, there have been several cases where phone tapping and snooping occur without prior permission.

The right of wrong will ultimately be decided by the court; but, through various new norms like Aadhaar and surveillance, the State has cleared its path to enter a citizen’s personal life. Recently, Facebook has confirmed that it would share chat details with police for investigation needs. This is the life which is private, beyond anyone’s judgment – the personal is now being forced into the paradigm of the public and political. At every step, the lens of scrutiny will be watching you with bated breath. If this is not a breach of privacy, then what is? This, the state must clarify to the Supreme Court.