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Free Speech and Surveillance
https://cis-india.org/internet-governance/blog/free-speech-and-surveillance
<b>Gautam Bhatia examines the constitutionality of surveillance by the Indian state. </b>
<p style="text-align: justify; ">The Indian surveillance regime has been the subject of <a href="http://india.blogs.nytimes.com/2013/07/10/how-surveillance-works-in-india/?_php=true&_type=blogs&_r=0">discussion</a> for quite some time now. Its nature and scope is controversial. The Central Monitoring System, through which the government can obtain direct access to call records, appears to have the potential to be used for bulk surveillance, although official claims emphasise that it will only be implemented in a targeted manner. The <a href="http://timesofindia.indiatimes.com/tech/tech-news/Govt-to-launch-internet-spy-system-Netra-soon/articleshow/28456222.cms">Netra system</a>, on the other hand, is certainly about dragnet collection, since it detects the communication, via electronic media, of certain “keywords” (such as “attack”, “bomb”, “blast” and “kill”), no matter what context they are used in, and no matter who is using them.<span> </span></p>
<p style="text-align: justify; ">Surveillance is quintessentially thought to raise concerns about <i>privacy</i>. Over a <a href="http://indiankanoon.org/doc/845196/">series</a> of <a href="http://news.rediff.com/report/2010/apr/26/phone-tapping-what-1997-supreme-court-verdict-says.htm">decisions</a>, the Indian Supreme Court has read in the right to privacy into Article 21’s guarantee of the right to life and personal liberty. Under the Supreme Court’s (somewhat cloudy) precedents, privacy may only be infringed if there is a compelling State interest, and if the restrictive law is narrowly tailored – that is, it does not infringe upon rights to an extent greater than it needs to, in order to fulfill its goal. It is questionable whether bulk surveillance meets these standards.<span> </span></p>
<p style="text-align: justify; ">Surveillance, however, does not only involve privacy rights. It also implicated Article 19 – in particular, the Article 19(1)(a) guarantee of the freedom of expression, and the 19(1)(c) guarantee of the freedom of association.</p>
<p style="text-align: justify; "><span>Previously on this blog, we have discussed the “chilling effect” in relation to free speech. The chilling effect evolved in the context of defamation cases, where a combination of exacting standards of proof, and prohibitive damages, contributed to create a culture of self-censorship, where people would refrain from voicing even legitimate criticism for fear of ruinous defamation lawsuits. The chilling effect, however, is not restricted merely to defamation, but arises in free speech cases more generally, where vague and over-broad statutes often leave the border of the permitted and the prohibited unclear.</span></p>
<p style="text-align: justify; "><span>Indeed, a few years before it decided </span><i>New York Times v. Sullivan</i><span>, which brought in the chilling effect doctrine into defamation and free speech law, the American Supreme Court applies a very similar principle in a surveillance case. In </span><a href="http://supreme.justia.com/cases/federal/us/357/449/case.html"><i>NAACP v. Alabama</i></a><span>, the National Association for the Advancement of Coloured People (NAACP), which was heavily engaged in the civil rights movement in the American deep South, was ordered by the State of Alabama to disclose its membership list. NAACP challenged this, and the Court held in its favour. It specifically connected freedom of speech, freedom of association, and the impact of surveillance upon both:</span></p>
<p style="text-align: justify; "><i> “Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the “liberty” assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the</i><i> </i><i>effect of curtailing the freedom to associate is subject to the closest scrutiny… it is hardly a novel perception that <span>compelled disclosure</span> of affiliation with groups engaged in advocacy may constitute</i> [an]<i> effective a restraint on freedom of association… this Court has recognized the vital relationship between freedom to associate and privacy in one’s associations. <span>Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs</span>.”</i></p>
<p style="text-align: justify; "><i> </i></p>
<p style="text-align: justify; "><i> </i>In other words, if persons are not assured of privacy in their association with each other, they will tend to self-censor both who they associate with, and what they say to each other, especially when unpopular groups, who have been historically subject to governmental or social persecution, are involved. Indeed, this was precisely the <a href="https://www.aclu.org/national-security/aclu-v-clapper-challenge-nsa-mass-phone-call-tracking">argument</a> that the American Civil Liberties Union (ACLU) made in its constitutional challenge to PRISM, the American bulk surveillance program. In addition to advancing a Fourth Amendment argument from privacy, the ACLU also made a First Amendment freedom of speech and association claim, arguing that the knowledge of bulk surveillance had made – or at least, was likely to have made – politically unpopular groups wary of contacting it for professional purposes (the difficulty, of course, is that any chilling effect argument effectively requires proving a negative).<span> </span></p>
<p style="text-align: justify; ">If this argument holds, then it is clear that Articles 19(1)(a) and 19(1)(c) are <i>prima facie</i> infringed in cases of bulk – or even other forms of – surveillance. Two conclusions follow: <i>first</i>, that any surveillance regime needs statutory backing. Under <a href="http://indiankanoon.org/doc/493243/">Article 19(2),</a> reasonable restrictions upon fundamental rights can only be imposed by <i>law</i>, and not be executive fiat (the same argument applies to Article 21 as well).</p>
<p style="text-align: justify; ">Assuming that a statutory framework <i>is</i> brought into force, the crucial issue then becomes whether the restriction is a reasonable one, in service of one of the stated 19(2) interests. The relevant part of Article 19(2) permits reasonable restrictions upon the freedom of speech and expression “in the interests of… the security of the State [and] public order.” The Constitution does not, however, provide a test for determining when a restriction can be legitimately justified as being “in the interests of” the security of the State, and of public order. There is not much relevant precedent with respect to the first sub-clause, but there happens to be an extensive – although conflicted – jurisprudence dealing with the public order exception.</p>
<p style="text-align: justify; ">One line of cases – characterised by <a href="http://indiankanoon.org/doc/553290/"><i>Ramji Lal Modi v. State of UP</i></a><i> </i>and <a href="http://indiankanoon.org/doc/1475436/"><i>Virendra v. State of Punjab</i></a> – has held that the phrase “for the interests of” is of very wide ambit, and that the government has virtually limitless scope to make laws ostensibly for securing public order (this extends to prior restraint as well, something that Blackstone, writing in the 18<sup>th</sup> century, found to be illegal!). The other line of cases, such as <a href="http://indiankanoon.org/doc/1386353/"><i>Superintendent v. Ram Manohar Lohia</i></a> and <a href="http://www.indiankanoon.org/doc/341773/"><i>S. Rangarajan v. P. Jagjivan Ram</i></a>, have required the government to satisfy a stringent burden of proof. In <i>Lohia</i>, for instance, Ram Manohar Lohia’s conviction for encouraging people to break a tax law was reversed, the Court holding that the relationship between restricting free speech and a public order justification must be “proximate”. In <i>Rangarajan</i>, the Court used the euphemistic image of a “spark in a powder keg”, to characterise the degree of proximity required. It is evident that under the broad test of <i>Ramji Lal Modi</i>, a bulk surveillance system is likely to be upheld, whereas under the narrow test of <i>Lohia</i>, it is almost certain not to be.</p>
<p style="text-align: justify; ">Thus, if the constitutionality of surveillance comes to Court, three issues will need to be decided: <i>first</i>, whether Articles 19(1)(a) and 19(1)(c) have been violated. <i>Secondly</i> – and if so – whether the “security of the State” exception is subject to the same standards as the “public order” exception (there is no reason why it should not be). And <i>thirdly</i>, which of the two lines of precedent represent the correct understanding of Article 19(2)?</p>
<hr style="text-align: justify; " />
<p style="text-align: justify; "><span><i>Gautam Bhatia — @gautambhatia88 on Twitter — is a graduate of the National Law School of India University (2011), and has just received an LLM from the Yale Law School. He blogs about the Indian Constitution at <a class="moz-txt-link-freetext" href="http://indconlawphil.wordpress.com/">http://indconlawphil.wordpress.com</a>. Here at CIS, he blogs on issues of online freedom of speech and expression.</i></span></p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/free-speech-and-surveillance'>https://cis-india.org/internet-governance/blog/free-speech-and-surveillance</a>
</p>
No publisherGautam BhatiaNetraPrivacyFreedom of Speech and ExpressionSurveillanceCensorshipCentral Monitoring SystemArticle 19(1)(a)2014-07-07T04:59:59ZBlog EntryThe Central Monitoring System: Some Questions to be Raised in Parliament
https://cis-india.org/internet-governance/blog/central-monitoring-system-questions-to-be-asked-in-parliament
<b>The following are some model questions to be raised in the Parliament regarding the lack of transparency in the central monitoring system.</b>
<p><b><span style="text-decoration: underline;">Preliminary</span></b></p>
<ul>
<li style="text-align: justify; ">The Central Monitoring System (CMS) is a Central Government project to intercept communications, both voice and data, that is transmitted via telephones and the internet to, from and within India. Owing to the vast nature of this enterprise, the CMS cannot be succinctly described and the many issues surrounding this project are diverse. This Issue Brief will outline preliminary constitutional, legal and technical concerns that are presented by the CMS.</li>
<li style="text-align: justify; ">At the outset, it must be clearly understood that no public documentation exists to explain the scope, functions and technical architecture of the CMS. This lack of transparency is the single-largest obstacle to understanding the Central Government’s motives in conceptualising and operationalizing the CMS. This lack of public documentation is also the chief reason for the brevity of this Issue Note. Without making public the policy, law and technical abilities of the CMS, there cannot be an informed national debate on the primary concerns posed by the CMS, i.e the extent of envisaged state surveillance upon Indian citizens and the safeguards, if any, to protect the individual right to privacy. </li>
</ul>
<p><b><span style="text-decoration: underline;">Surveillance and Privacy</span></b></p>
<ul>
<li style="text-align: justify; ">Surveillance is necessary to secure political organisation. Modern nation-states, which are theoretically organised on the basis of shared national and societal characteristics, require surveillance to detect threats to these characteristics. In democratic societies, beyond the immediate requirements of national integrity and security, surveillance must be targeted at securing the safety and rights of individual citizens. This Issue Brief does not dispute the fact that democratic countries, such as India, should conduct surveillance to secure legitimate ends. Concerns, however, arise when surveillance is conducted in a manner unrestricted and unregulated by law; these concerns are compounded when a lack of law is accompanied by a lack of transparency.</li>
<li style="text-align: justify; ">Technological advancement leads to more intrusive surveillance. The evolution of surveillance in the United States resulted, in 1967, in the first judicial recognition of the right to privacy. In <i>Katz</i> v. <i>United States</i> the US Supreme Court ruled that the privacy of communications had to be balanced with the need to conduct surveillance; and, therefore, wiretaps had to be warranted, judicially sanctioned and supported by probable cause. <i>Katz</i> expanded the scope of the Fourth Amendment of the US Constitution, which protected against unreasonable searches and seizures. Most subsequent US legal developments relating to the privacy of communications from surveillance originate in the <i>Katz</i> judgement. Other common law countries, such as the United Kingdom and Canada, have experienced similar judicial evolution to recognise that the right to privacy must be balanced with governance.</li>
</ul>
<p><b><span style="text-decoration: underline;"><br />Right to Privacy in India</span></b></p>
<ul>
<li style="text-align: justify; ">Unfortunately, India does not have a persuasive jurisprudence of privacy protection. In the <i>Kharak Singh</i> (1964) and <i>Gobind</i> (1975) cases, the Supreme Court of India considered the question of privacy from physical surveillance by the police in and around the homes of suspects. In the latter case, the Supreme Court found that some of the Fundamental Rights “could be described as contributing to the right to privacy” which was nevertheless subject to a compelling public interest. This insipid inference held the field until 1994 when, in the <i>Rajagopal</i> (“Auto Shankar”, 1994) case, the Supreme Court, for the first time, directly located privacy within the ambit of the right to personal liberty recognised by Article 21 of the Constitution. However, <i>Rajagopal</i> dealt specifically with the publication of an autobiography, it did not consider the privacy of communications. In 1997, the Supreme Court considered the question of wiretaps in the <i>PUCL</i> case. While finding that wiretaps invaded the privacy of communications, it continued to permit them subject to some procedural safeguards which continue to be routinely ignored. A more robust statement of the right to privacy was made recently by the Delhi High Court in the <i>Naz </i><i>Foundation</i> case (2011) that de-criminalised consensual homosexual acts; however, this judgment has been appealed to the Supreme Court.</li>
</ul>
<p><b><span style="text-decoration: underline;">Issues Pertaining to the CMS</span></b></p>
<ul>
<li style="text-align: justify; ">While judicial protection from physical surveillance was cursorily dealt with in the <i>Kharak Singh</i> and <i>Gobind</i> cases, the Supreme Court of India directly considered the issue of wiretaps in the <i>PUCL</i> case. Wiretaps in India primarily occur on the strength of powers granted to certain authorities under section 5(2) of the Indian Telegraph Act, 1885. The Court found that the Telegraph Act, and Rules made thereunder, did not prescribe adequate procedural safeguards to create a “just and fair” mechanism to conduct wiretaps. Therefore, it laid down the following procedure to conduct wiretaps: </li>
</ul>
<ul>
</ul>
<p style="text-align: justify; ">(a) the order should be issued by the relevant Home Secretary (this power is delegable to a Joint Secretary),<br /> (b) the interception must be carried out exactly in terms of the order and not in excess of it,<br /> (c) a determination of whether the information could be reasonably secured by other means,<br /> (d) the interception shall cease after sixty (60) days.</p>
<ul>
</ul>
<ul>
<li style="text-align: justify; ">Therefore, prima facie, any voice interception conducted through the CMS will be in violation of this Supreme Court judgement. The CMS will enforce blanket surveillance upon the entire country without regard for reasonable cause or necessity. This movement away from targeted surveillance to blanket surveillance without cause, conducted without statutory sanction and without transparency, is worrying.</li>
<li style="text-align: justify; ">Accordingly, the following questions may be raised, in Parliament, to learn more about the CMS project: </li>
</ul>
<ol>
<li>Which statutes, Government Orders, notifications etc deal with the establishment and maintenance of the CMS?</li>
<li>Which is the nodal agency in charge of implementing the CMS?</li>
<li>What are the powers and functions of the nodal agency?</li>
<li>What guarantees exist to protect ordinary Indian citizens from intrusive surveillance without cause?</li>
<li>What are the technical parameters of the CMS?</li>
<li>What are the consequences for misuse or abuse of powers by any person working in the CMS project?</li>
<li>What recourse is available to Indian citizens against whom there is unnecessary surveillance or against whom there has been a misuse or abuse of power?</li>
</ol>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/central-monitoring-system-questions-to-be-asked-in-parliament'>https://cis-india.org/internet-governance/blog/central-monitoring-system-questions-to-be-asked-in-parliament</a>
</p>
No publisherbhairavCentral Monitoring SystemInternet GovernancePrivacy2013-09-25T10:30:10ZBlog EntryFreedom from Monitoring: India Inc Should Push For Privacy Laws
https://cis-india.org/internet-governance/blog/forbesindia-article-august-21-2013-sunil-abraham-freedom-from-monitoring
<b>More surveillance than absolutely necessary actually undermines the security objective.</b>
<hr />
<p>This article by Sunil Abraham was <a class="external-link" href="http://forbesindia.com/article/recliner/freedom-from-monitoring-india-inc-should-push-for-privacy-laws/35911/1">published in Forbes India Magazine</a> on August 21, 2013.</p>
<hr />
<p style="text-align: justify; ">I think I understand why the average Indian IT entrepreneur or enterprise does not have a position on blanket surveillance. This is because the average Indian IT enterprise’s business model depends on labour arbitrage, not intellectual property. And therefore they have no worries about proprietary code or unfiled patent applications being stolen by competitors via rogue government officials within projects such as NATGRID, UID and, now, the CMS.</p>
<p style="text-align: justify; ">A sub-section of industry, especially the technology industry, will always root for blanket surveillance measures. The surveillance industry has many different players, ranging from those selling biometric and CCTV hardware to those providing solutions for big data analytics and legal interception systems. There are also more controversial players who provide spyware, especially those in the market for zero-day exploits. The cheerleaders for the surveillance industry are techno-determinists who believe you can solve any problem by throwing enough of the latest and most expensive technology at it.<br /><br />What is surprising, though, is that other indigenous or foreign enterprises that depend on secrecy and confidentiality—in sectors such a banking, finance, health, law, ecommerce, media, consulting and communications—also don’t seem to have a public position on the growing surveillance ambitions of ‘democracies’ such as India and the United States of America. (Perhaps the only exceptions are a few multinational internet and software companies that have made some show of resistance and disagreement with the blanket surveillance paradigm.)<br /><br />Is it because these businesses are patriotic? Do they believe that secrecy, confidentiality and, most importantly, privacy, must be sacrificed for national security? If that were true then it would not be a particularly wise thing to do, as privacy is the precondition for security. Ann Cavoukian, privacy commissioner of Ontario, calls it a false dichotomy. Bruce Schneier, security technologist and writer, calls it a false zero sum game; he goes on to say, “There is no security without privacy. And liberty requires both security and privacy.”<br /><br />The reason why the secret recipe of Coca Cola is still secret after over 120 years is the same as the reason why a captured soldier cannot spill the beans on the overall war strategy. Corporations, like militaries, have layers and layers of privacy and secrecy. The ‘need to know’ principle resists all centralising tendencies, such as blanket surveillance. It’s important to note that targeted surveillance to identify a traitor or spy within the military, or someone engaged in espionage within a corporation, is pretty much an essential. However, any more surveillance than absolutely necessary actually undermines the security objective. To summarise, privacy is a pre-condition to the security of the individual, the enterprise, the military and the nation state.<br /><br />Most people complaining online about projects like the Central Monitoring System seem to think that India has no privacy laws. This is completely untrue: We have around 50 different laws, rules and regulations that aim to uphold privacy and confidentiality in various domains. Unfortunately, most of those policies are very dated and do not sufficiently take into account the challenges of contemporary information societies. These policy documents need to be updated and harmonised through the enactment of a new horizontal privacy law. A small minority will say that Section 43(A) of the Information Technology Act is the India privacy law. That is not completely untrue, but is a gross exaggeration. Section 43(A) is really only a data security provision and, at that, it does not even comprehensively address data protection, which is only a sub-set of the overall privacy regulation required in a nation. <br /><br />What would an ideal privacy law for India look like? For one, it would protect the rights of all persons, regardless of whether they are citizens or residents. Two, it would define privacy principles. Three, it would establish the office of an independent and autonomous privacy commissioner, who would be sufficiently empowered to investigate and take action against both government and private entities. Four, it would define civil and criminal offences, remedies and penalties. And five, it would have an overriding effect on previous legislation that does not comply with all the privacy principles. <br /><br />The Justice AP Shah Committee report, released in October 2012, defined the Indian privacy principles as notice, choice and consent, collection limitation, purpose limitation, access and correction, disclosure of information, security, openness and accountability. The report also lists the exemptions and limitations, so that privacy protections do not have a chilling effect on the freedom of expression and transparency enabled by the Right to Information Act.<br /><br />The Department of Personnel and Training has been working on a privacy bill for the last three years. Two versions of the bill had leaked before the Justice AP Shah Committee was formed. The next version of the bill, hopefully implementing the recommendations of the Justice AP Shah Committee report, is expected in the near future. In a multi-stakeholder-based parallel process, the Centre for Internet and Society (where I work), along with FICCI and DSCI, is holding seven round tables on a civil society draft of the privacy bill and the industry-led efforts on co-regulation.<br /> <br />The Indian ITES, KPO and BPO sector should be particularly pleased with this development. As should any other Indian enterprise that holds personal information of EU and US nationals. This is because the EU, after the enactment of the law, will consider data protection in India adequate as per the requirements of its Data Protection Directive. This would mean that these enterprises would not have to spend twice the time and resources ensuring compliance with two different regulatory regimes.<br /><br />Is the lack of enthusiasm for privacy in the Indian private sector symptomatic of Indian societal values? Can we blame it on cultural relativism, best exemplified by what Simon Davies calls “the Indian Train Syndrome, in which total strangers will disclose their lives on a train to complete strangers”? But surely, when email addresses are exchanged at the end of that conversation, they are not accompanied by passwords. Privacy is perhaps differently configured in Indian societies but it is definitely not dead. Fortunately for us, calls to protect this important human right are growing every day.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/forbesindia-article-august-21-2013-sunil-abraham-freedom-from-monitoring'>https://cis-india.org/internet-governance/blog/forbesindia-article-august-21-2013-sunil-abraham-freedom-from-monitoring</a>
</p>
No publishersunilCentral Monitoring SystemInternet GovernancePrivacy2013-08-21T07:04:48ZBlog EntryBalancing vigilance and privacy
https://cis-india.org/news/the-hindu-august-19-2013-prashant-jha-balancing-vigilance-and-privacy
<b>As the government steps up its surveillance capabilities, the entire social contract between the state and citizens is being reformulated, with worrying consequences.</b>
<hr />
<p class="body" style="text-align: justify; ">This article by Prashant Jha was <a class="external-link" href="http://www.thehindu.com/sci-tech/technology/balancing-vigilance-and-privacy/article5037582.ece">published in the Hindu on August 18, 2013</a>. Pranesh Prakash is quoted.</p>
<hr />
<p class="body" style="text-align: justify; ">The Indian state is arming itself with both technological capabilities and the institutional framework to track the lives of citizens in an unprecedented manner.</p>
<p class="body" style="text-align: justify; ">A new Centralised Monitoring System (CMS) is in the offing, which would build on the already existing mechanisms. As <i>The Hindu </i>reported on June 21, this would allow the government to access in real-time any mobile and fixed line conversation, SMS, fax, website visit, social media usage, Internet search and email, and will have ‘unmatched capabilities of deep search surveillance and monitoring’.</p>
<p class="body" style="text-align: justify; ">Civil society groups and citizens expressed concern about the government’s actions, plans, and intent at a discussion organised by the Foundation for Media Professionals, on Saturday.</p>
<p class="body" style="text-align: justify; "><b>The context</b></p>
<p class="body" style="text-align: justify; ">Usha Ramanathan, a widely respected legal scholar, pointed to the larger political context which had permitted this form of surveillance. It stemmed, she argued, from a misunderstanding of the notion of sovereignty. “It is not the government, but the people who are sovereign.” Laws and the Constitution are about limiting the power of the state, but while people were being subjected to these restrictions, the government itself had found ways to remain above it – either by not having laws, or having ineffective regulators. States knew the kind of power they exercised over citizens, with the result that ‘impunity had grown’.</p>
<p class="body" style="text-align: justify; ">“There is also a complete breakdown of the criminal justice system,” Ms Ramanathan said. This had resulted in a reliance on extra-judicial methods of investigation, and ‘scape-goating’ had become the norm. ‘National security’ had been emphasised, re-emphasised, and projected as the central goal. “We haven’t paused to ask what this means, and the extent to which we have been asked to give up personal security for the sake of national security.” It was in this backdrop that technology had advanced by leaps, and made extensive surveillance possible.</p>
<p class="body" style="text-align: justify; ">The implications are enormous. The data is often used for purposes it is not meant for, including political vendetta, keeping track of rivals, corporates, and digging out facts about a citizen when he may have antagonised those in power.</p>
<p class="body" style="text-align: justify; ">Pranesh Prakash, director of the Centre of Internet and Society (CIS) looked back at the killing of Haren Pandya, the senior Bharatiya Janata Party (BJP) leader in Gujarat. Mr Pandya was using the SIM card of a friend, and it was by tracking the SIM, and through it his location, that the Gujarat government got to know that Mr Pandya had deposed before a commission and indicted the administration for its role in the riots. Eventually, he was found murdered outside a park in Ahmedabad. The Gujarat Police had accessed call details of 90,000 phones.</p>
<p class="body" style="text-align: justify; ">It is also not clear whether mining this kind of data has been effective for the national security purposes, which provide the reason for doing it in the first place. Saikat Datta, resident editor of Daily News and Analysis, and an expert on India’s intelligence apparatus, said a core problem was the absence of any auditing and over sight. “There needs to be a constant review of the number of calls, emails under surveillance, with questions about whether it is yielding results. But this does not happen, probably because a majority is not for counter-terrorism. There would be trouble if you build accountability mechanisms.” When he sought information under RTI around precisely such issues, he was denied information on the grounds that it would strengthen ‘enemies of the state’.</p>
<p class="body" style="text-align: justify; ">Anja Kovacs, who works with the Internet Democracy Project, said this form of “mass surveillance” criminalised everybody since it was based on the assumption that each citizen was a “potential criminal”. She also pointed out that having “more information” did not necessarily mean it was easier to address security threats – there was intelligence preceding the Mumbai attacks, but it was not acted upon. She added, “Most incidents have been resolved by traditional intelligence. Investing in agencies, training them better could be more effective.”</p>
<p class="body" style="text-align: justify; "><b>Bring in the caveats</b></p>
<p class="body" style="text-align: justify; ">Few argue that the state is not entitled to exercise surveillance at all. In fact, a social contract underpins democratic states. Citizens agree to subject some of their rights to restrictions, and vest the state with the monopoly over instruments and use of violence. In turn, the state – acting within a set of legal principles; being accountable to citizens; and renewing its popular legitimacy through different measures, including elections – provides order and performs a range of developmental functions.</p>
<p class="body" style="text-align: justify; ">This framework, citizens and civil liberty groups worry, is under threat with governments appropriating and usurping authority to conduct unprecedented surveillance. Citizen groups, technology and privacy experts came together globally to draft the International Principles on the Application of Human Rights to Communication Surveillance.</p>
<p class="body" style="text-align: justify; ">It prescribed that any restriction to privacy through surveillance must be ‘legal’; it must be for a ‘legitimate aim’; it must be ‘strictly and demonstrably necessary’; it must be preceded by showing to an established authority that other ‘less invasive investigative techniques’ have been used; it must follow ‘due process’; decisions must be taken by a ‘competent judicial authority’; there must be ‘public oversight’ mechanisms; and ‘integrity of communications and systems’ should be maintained. (Full text available on www.necessaryandproportionate.org)Mr Prakash of CIS, which has done extensive work on surveillance and privacy issues, said, “An additional principle must be collection limitation or data minimisation.” Giving the instance of Indian Railways seeking the date of birth from a customer booking a ticket, Mr Prakash said this was not information which was necessary. But it could be used by hackers and many other agencies to access an individual’s private transactions in other areas. The UPA government is finalising a privacy Bill, but its final version is not yet public, and it is not clear how far the government would go in protecting citizen rights.</p>
<p>
For more details visit <a href='https://cis-india.org/news/the-hindu-august-19-2013-prashant-jha-balancing-vigilance-and-privacy'>https://cis-india.org/news/the-hindu-august-19-2013-prashant-jha-balancing-vigilance-and-privacy</a>
</p>
No publisherpraskrishnaCentral Monitoring SystemInternet GovernancePrivacy2013-09-05T10:53:28ZNews Item