Centre for Internet and Society

Taking Cognisance of the Deeply Flawed System That Is Aadhaar

praskrishna — 2017-05-19T14:52:58Z

Aadhaar and its many connotations have grown to be among the most burning issues on the Indian fore today, that every citizen aware of their rights should be taking note of.

The article by Shreyashi Roy was published in the Wire on May 10, 2017.

With the leak of 130 million Aadhaar numbers recently coming to light, several activists, lawyers and ordinary citizens are up in arms about what is increasingly being viewed as a government surveillance system. Keeping this in mind, on Tuesday, May 9, Software Freedom Law Centre India (SFLC) hosted an event that brought together a panel to clearly articulate the dangers of Aadhaar and to discuss whether the biometric identification system is capable of being reformed.

SFLC is a donor-supported legal services organisation that calls itself a protector of civil liberties in the digital age.

Titled ‘Revisiting Aadhaar: Law, Tech and Beyond’, the discussion, with several eminent personalities who have in-depth knowledge of Aadhaar and its working, threw light on the various problems that have cropped up with regard to India’s unique identification system. The discussion was moderated by Saikat Datta, policy director at Centre for Internet and Society, which published the report that studied the third-party leaks of Aadhaar numbers and other personal data.

The leaks

The discussion took off from the point of the leaks, with Srinivas Kodali, a panelist and one of the authors of the report, explaining his methodology for the study that proved that the Aadhaar database lacked the security required when dealing with private information of people. He highlighted the fact that during the course of his research, he had noticed several leaks from government websites and notified the Unique Identification Authority of India (UIDAI) about the same. Yet, at every step, UIDAI continued to deny and reject the possibility of this happening. Kodali says, however, that he had noticed that the websites that were unknowingly leaking data were, in fact, fixing the leaks after being notified without acknowledging that the leak had happened in the first place. Kodali reiterated at the discussion, as in his report, that a simple tweaking of URL query parameters of the National Social Assistance Programme website could unmask and display private information. Unfortunately, UIDAI cannot be brought to task for unknowingly leaking information because there is no such provision.

He also addressed the question of the conflict of interest that existed in the entire system of building Aadhaar, which was created by developers who later left the UIDAI and built their own private companies, monetising the mine of private information that they were sitting on. Kodali blames UIDAI for this even being allowed, since the developers, though clearly lacking ethics, were in fact, merely volunteers.

The system

One of the glaring issues with the technology behind Aadhaar is that the software is not open source. Anivar Aravind, a panelist, called it “defected by design” and “bound to fail” because not only is the technology completely untested but there are very obvious leaks that are taking place. Moreover, UIDAI does not allow any third-party audits or any other persons to look at the technology. Datta pointed to the fact that this is unheard of in other nations, where software is routinely subjected to penetration testing and hacking experts are called upon to check how secure a database is.

Anupam Saraph, another panelist and future designer, illuminated the creation of the Aadhaar database, pointing out that this is a system less about identification and more about verification. All of the verification, moreover, has been done by private parties, making the database itself suspect and leaving everyone’s private information loose at the time of enrolment. In addition, Aadhaar was meant for all residents and not just citizens. But now there is a mix of both, creating confusion in many aspects. Saraph also brought up how one rogue agency with access to all this information could pose an actual national security threat, unlike all the requests for information on breaches that the government keeps pointing fingers at. Referring to Nandan Nilekani’s statement about Aadhaar not being like AIDS, Saraph pointed out that it was exactly like it because much like the body, which cannot distinguish between an invasion and itself, the Aadhaar system is not being able to distinguish between aliens and citizens and has begun denying the latter benefits.

The Supreme Court has declared time and again that Aadhaar cannot be made mandatory, but the government continues to – in complete disregard of the apex court’s judgment – insist on Aadhaar for a multitude of schemes. More and more schemes are being made unavailable without the existence of an Aadhaar number as the government continues to function in a complete lack of cognisance of the fact that the poor are losing out on something as basic as their food because of a number. Prasanna S., an advocate and a panelist, called it a “voluntary but mandatory” system that is becoming an evidence collection mechanism. Moreover, everything is connected through this one number, making many options like financial fraud, selective treatment of citizens and other horrors possible. The collection of all this information is not dangerous, screams the government. Maybe not in the hands of this one. But what of the next? What of rogues?

The legal aspect

One of the panelists was Shyam Divan, a senior advocate of the Supreme Court, who has represented petitioners fighting against Aadhaar. Divan spoke about how along with a group of advocates he has been trying to get the apex court to rule on the issue but has been met with long queues before a ruling can be procured. He addressed the right to privacy aspect of the system and the recent declaration that the citizen does not have the absolute right to the body. He emphasised that the government cannot own the body and that for a free and democratic society, a limited government, instead of an all-knowing and all-seeing government, is essential. Unfortunately for India, there is no express right to privacy in the constitution, but that does not mean that rights can be taken away in exchange for a fingerprint. It is the government’s duty to respect privacy. For him, Aadhaar has become an instrument of oppression and exclusion, a point that Prasanna also agreed with, calling it a “systematic attack on consent”.

There is complete agreement that there has been a railroading of consent in this entire matter if Aadhaar being passed forcibly through the Lok Sabha as a money bill is anything to go by. If parliament’s consent can be disregarded in that fashion, what is an ordinary citizen to do in the face of this complete imbalance of power in the state’s hand?

Usha Ramanathan, a legal researcher and a long-time critic of Aadhaar, spoke about how India has turned into a state where there are more restrictions than fundamental rights, rather than the other way around. She related how there was no clarity at the beginning of Aadhaar of how it would be a card or a number and was never a government project in the first place. This is a private sector ambition that the government has jumped on board with, without considering that the private sector does not concern itself with civil liberties. As other panelists also pointed out, the private sector cannot and will not protect public interest. This is the job of the government, especially in an age of digitisation. But Aadhaar compromises the ability of the state to stand up for its citizens.

With June 30 approaching fast, many of those who have so far abstained from enrolling in the system are considering giving up their rebellion and going like sheep to get themselves registered in the database. In the words of Divan, they will have to “volunteer compulsorily for an Aadhaar”. The government is probably counting on this. Turning to the Supreme Court has been of no help, although a verdict can be hoped for in a couple of weeks. But what can we do if they rule for the government?

Some of the panelists are on board with the idea of a civil disobedience movement, a kind of a rebellion against Aadhaar. Some suggested thinking of out-of-the-box ways to register one’s protest and dissent against what is clearly becoming the architecture of a surveillance state. Saraph was particularly vehement about the need to completely destroy the Aadhaar database – “shred it”.

What all the panelists emphasised repeatedly was that there can be no improvements to a system that is so deeply flawed and that has had so many “teething problems” that are making millions suffer. The main takeaway from the discussion was that Aadhaar must see a speedy demise because it cannot be saved and cannot persist in its current state.

For more details visit https://cis-india.org/internet-governance/news/the-wire-may-10-2017-shreyashi-roy-taking-cognisance-of-the-deeply-flawed-system-that-is-aadhaar

TACTIS Symposium 2014

praskrishna — 2014-02-04T07:32:01Z

Tata Consultancy organized the TACTIS Symposium at TCS Siruseri, Chennai on January 28 and 29, 2014. Sunil Abraham participated in the event and gave the key note address.

Click to download the event brochure here

For more details visit https://cis-india.org/news/data-privacy-day-chenna-2014

T20 Germany and Beyond: Digital Economy

praskrishna — 2017-06-06T15:25:46Z

Elonnai Hickok participated in a round-table discussion organized by GIZ and EPF in Berlin from May 29 to 30, 2017.

The Think20 (T20) is a network of research institutes and think tanks from the G20 countries. The T20 provides research-based policy advice to the G20, facilitates interaction among its members and the policy community, and communicates with the broader public about issues of global importance. Click to read more

For more details visit https://cis-india.org/internet-governance/news/t20-germany-and-beyond-digital-economy

Symposium on Human Rights and the Internet in India

praskrishna — 2015-02-07T00:50:00Z

On January 17, 2015 the Center for Communication Governance at National Law University, Delhi in collaboration with the UNESCO Chair on Freedom of Communication and Information at the University of Hamburg hosted a pubic symposium on “Human Rights and Internet in India” as a Network of Centers (NoC) regional event. Bhairav Acharya was a panelist.

See the concept note here.

The event convened a diverse group of collaborators working on issues of Privacy, Surveillance, Data Protection, Freedom of Expression and Intermediary Liability in India, the surrounding region, and internationally.

Agenda | Saturday, January 17 | Public Symposium

Opening words
Prof. (Dr.) Ranbir Singh, Vice Chancellor, National Law University, Delhi
Prof. (Dr.) Wolfgang Schulz, Director, Alexander von Humboldt Institute for Internet & Society

17:45 – 19:00 Panel I: Surveillance & Databases: Experiences & Privacy
The panel will explore how surveillance in India might become more consistent with international human rights standards and Indian constitutional values. It will also discuss the consequences of ubiquitous database programs for citizens’ human rights. This will include comparative perspectives around similar problems and a discussion of privacy-compatible practices in other countries.

Panelists:
Dr. Usha Ramanathan, Independent Law Researcher

Mr. Bhairav Acharya, Lawyer, Supreme Court of India and Adviser Centre for Internet & Society, Bangalore

Mr. Saikat Datta, Editor (National Security), Hindustan Times

Professor KS Park, Former Commissioner, Korea Communications Standards Commission and Professor, Korea University Law School

19:00 – 20:15 Panel II: Unpacking the Intermediary Liability Debate in India
The panel will focus on the legal framework governing Internet platforms in India, especially with regard to online content and its implications for rights of the citizens. It has been argued that the current legal framework creates incentives for online intermediaries to take down content even when no substantive notice or legitimate reasons have been offered. The panel will consider the debate around intermediary liability in India in light of the ongoing litigation at the Supreme Court. It will reflect on the international experience with intermediary liability legislation and discuss how to ensure that laws support an innovative and competitive environment for intermediaries, while ensuring that they prioritize the preservation of their users’ human rights.

Panelists:
Dr. Joris van Hoboken, Fellow, Information Law Institute at NYU School of Law

Professor (Dr.) Wolfgang Schulz, Director, Alexander von Humboldt Institute for Internet & Society (HIIG)

Mr. Raman Jit Singh Chima, Lawyer

Chinmayi Arun and Sarvjeet Singh, Centre for Communication Governance at National Law University, Delhi

For more details visit https://cis-india.org/internet-governance/news/symposium-on-human-rights-and-internet-in-india

Symposium on Data Privacy and Citizen's Rights

Admin — 2018-09-18T15:18:37Z

Shweta Mohandas was a panelist at the Symposium on Data Privacy and Citizen's Rights on September 9, 2018. The Symposium was organised by the Tech Law Forum of NALSAR University of Law, Hyderabad.

Concept Note

The National Academy of Legal Studies and Research (NALSAR) University of Law, Hyderabad is organising a Symposium on DATA PRIVACY AND CITIZEN’S RIGHTS to provide multiple stakeholders one platform to discuss and deliberate on the BN Srikrishna Committee Report and Draft Bill.

The Committee headed by Retd. Justice BN Srikrishna released its Report and Draft Bill on the 27th of July, 2018. It comes at a time when there is increasing discussion about the individual privacy and surveillance by both private organisations and state authorities. Especially in light of the 9-judge Puttaswamy judgment affirming the Fundamental Right to Privacy, there was a need to concretise the right in the form of a statute. The Bill proposes an elaborate data protection framework by utilising concepts such as anonymisation, pseudonymisation, data localisation, guardian data fiduciary, among others. While the Bill has been lauded for providing a data protection framework largely similar to the one proposed by civil society, there are several areas of concern with the Bill such as the amendments suggested to the RTI Act, the impact of the Bill on Free Speech and the lack of substantial provisions regarding surveillance. There has been further criticism that the discussions regarding these issues have been conducted in silos, with little to no dialogue taking place between the various stakeholders and experts in the field.

We believe that there is a need to provide a common forum for these stakeholders to interact with each other in providing suggestions that are representative in nature and nuanced in their expression.

Themes

Privacy and Free Speech This interaction aims to examine the juxtaposition of the constitutional right to free speech and the now constitutionally affirmed right to privacy. Will a new data protection law impact the publication of leaked documents or sting operations like the Radia tapes or Tehelka’s ‘Operation Westend’? If so, how can journalists mitigate the risk of getting sued for breach of privacy? While the jurisprudence concerning the right to privacy is in its most nascent state, it becomes important for us to explore its contours in light of already established constitutional guarantees.

Right to Information and Right to Privacy How does the right to privacy impact the right to information? The guarantee of these two rights arise from diametrically opposite ideologies, in that privacy aims to shield from the public domain information and data concerning individuals and institutions while the right to information aims to promote transparency and disclosure of information held by the state. However, the question remains, is the existence of these two rights necessarily mutually exclusive? Will a new data protection law make it difficult to promote transparency under the Right to Information Act? Is there is a possibility of a clash between the Information Commissions and the proposed Data Protection Authority? This panel would analyze the co-existence and competitive nature of these two rights in the context of the Indian legal space.

Surveillance - As we move towards a form of governance that is increasingly capable of surveilling individual movements and actions, it becomes extremely necessary for us to understand the nature of surveillance. Can data privacy be compromised for surveillance that may be necessary for increased safety in our physical and virtual living spaces? Are there any provisions that protects data in cases of it becoming exploitable? What is the interaction of international statutes (like ICCPR) and the latest Indian statute in terms of its recognition of necessity of surveillance in contrast to the necessity of protection of data.

For more details visit https://cis-india.org/internet-governance/news/symposium-on-data-privacy-and-citizens-rights

Surveillance: Privacy Vs Security

praskrishna — 2013-08-19T05:32:55Z

The Foundation for Media Professionals is organizing a debate at the India International Centre, New Delhi on August 17, 2013. Shri Kapil Sibal will give the opening speech. Natgrid chief Raghu Raman is one of the debaters. Pranesh Prakash is participating in this event as a panelist.

This was published by the Foundation for Media Professionals on their website. Also read the blog post by Vivian Fernandes and Ninglun Hanghal.

In the backdrop of the recent disclosures by US defense contractor Edward Snowden about the activity of the National Security Agency (NSA) and reports that NSA may have collaborated with India on surveillance program in the country that have raised concerns about privacy and right of citizens, Foundation for Media Professionals (FMP) in partnership with Friedrich Ebert Stiftung (FES) invited Pranesh Prakash to a panel discussion on "Surveillance: Privacy vs. Security".

Guest Speaker
Kapil Sibal, Union Minister for Communications and Information Technology, Govt. of India

Panelists

Pranesh Prakash, Policy Director, Centre for Internet and Society

Dr. Usha Ramanathan, Independent Law Researcher
Saikat Datta, Resident Editor, DNA
Capt. Raghu Raman, National Intelligence Grid (Natgrid)

Moderator

Paranjoy Guha Thakurta

For more details visit https://cis-india.org/news/foundation-for-media-professionals-august-17-2013-surveillance-privacy-v-security

Surveillance Technologies

elonnai — 2012-03-22T05:40:24Z

The following post briefly looks at different surveillance technologies, and the growing use of the them in India.

Surveillance...

New security technologies are constantly emerging that push the edge between privacy and a reasonable level of security. Society's tolerance level is constantly being tested by governments who use surveillance and monitoring technologies to protect the nation. Governments claim that they need absolute access to citizens life. They need to monitor phones, look through emails, peer into files – in-order to maintain security and protect against terrorism. Though as a side note, in an Economic Times article published on Nov. 4 2010 it was reported that government computers were being hacked into through viruses, and top secret documents were being stolen. The irony of the story is that the viruses were introduced to the computers through porn websites visited by officials.

...In a Car? On the Street? In an Airport?

Despite the fact that governmental monitoring might make the common man uncomfortable, the reality is that governments will always win the national security vs privacy fight. The story becomes more complicated when it moves from the government directly monitoring individuals, to security agencies monitoring individuals. For instance the use of full body scanners at airports, or trucks equipped with scatter x-ray machines used to control crime in neighborhoods - is a much more heated debate. There are other ways in which to check passengers for banned items, and other ways to keep crime off the streets without mandating that individuals submit themselves to invasive scans, or scanning unaware individuals.

...In the Movie Theater????..for Marketing Purposes????

Surveillance technology has now been taken even another step further. No longer is it being just used to prevent violent crimes or terrorist attacks. Today the movie industry is using controversial anti-piracy tools to protect the films they produce. For instance the security company Aralia Systems manufacturers products such as: CCTV cameras and anti-camcorder systems that shine infrared light beams on audiences as they watch a movie. The light beams reflect off camcorders and alerts the theater that there are camcorders present. Though this practice can be seen as invasive - individuals might be opposed to being probed by light beams throughout movies, the extent of potential privacy invasion does not stop there. Aralia Systems has partnered with Machine Vision Lab and has created a system that harvests audiences emotions and movements as they watch movies. The data can then be used by market researchers to better tailor their behavioral advertising schemes. Essentially movie theater monitoring has merged surveillance technologies with behavioral marketing technologies in a twisted invasion of movie watchers personal privacy.

Is this technology in India?

Though behavioral monitoring and piracy technologies such as ones produced by Aralia Systems are not yet used in Indian movie theaters – security measures against piracy are used. Movie theaters across India are equipped with metal detectors at the door, and security personel check your handbag or back pack for camcorders. According to a Indian Express article, the organization Allegiance Against Copyright Theft believes one of the reasons monitoring technology is not yet used in theaters is because there is no present Indian legislation that penalizes recording in halls. Once legislation is passed, they speculate there will be a push to use these technologies. Even though monitoring technology is not yet used in theaters, monitoring of consumers behavior is increasing. Recently in India the WPP owned research agency IMRB International has developed an online audience measurement system that uses tailored metering technology to track the sites that users visit. The Web Audience Measurement System has launched this technology in a sample size of 21,000 Indian households, covering 90,000 individuals. IMRB has said that the meters are capable of capturing usage data from multiple computers, and that they can then use the information to market to the individual. Does it seem ironic to anyone that companies now charge for a service – movie tickets, internet services, telephone services – and make an extra profit by data mining at the expense of a persons privacy?

Sources

http://economictimes.indiatimes.com/news/politics/nation/Govt-depts-asked-not-to-store-sensitive-info-on-Net-connected-computers/articleshow/6874631.cms
http://www.research-live.com/news/technology/imrb-unveils-web-measurement-service-for-indian-market/4003941.article
http://blogs.computerworld.com/17276/anti_piracy_tool_will_harvest_market_your_emotions?source=rss_blogs
http://www.indianexpress.com/news/antipiracy-unit-joins-hands-with-cinema-halls-to-curb-camcording/695439/2

For more details visit https://cis-india.org/internet-governance/blog/privacy/surveillance-technologies

Surveillance Stories: Optimizing rights and governance

Admin — 2018-10-31T01:39:56Z

Sunil Abraham gave a talk at the National Centre for Biological Sciences, Tata Institute of Fundamental Research, Bangalore on October 16, 2018. Sunil used a series of stories to explain how surveillance works and fails in the context of theft, murder, insider trading, terrorism, demonetization and encounter killings.

These stories were used to explore multiple technical solutions for solving the “surveillance optimization problem”. Policy makers have to simultaneously maximize various rights — the right to privacy, the right to transparency, the right to free speech — and uphold the imperatives of the nation state: national security, law enforcement and effective governance.

Two decades ago, Lawrence Lessig introduced a socioeconomic theory of regulation called the ‘pathetic dot theory’, which discusses how individuals in a society are regulated by four forces — law, code or technical infrastructure, market and social norms. The talk will explore how these four regulatory options contribute to solving the surveillance optimization problem.

This was published on the website of National Centre for Biological Sciences

For more details visit https://cis-india.org/internet-governance/news/surveillance-stories-optimizing-rights-and-governance

Surveillance rises, privacy retreats

praskrishna — 2015-05-02T06:43:33Z

WikiLeaks founder Julian Assange and former US National Security Agency contractor Edward Snowden have, at considerable personal cost, revealed how surveillance has eroded the private space in a world driven by digital technology.

The article was published in the Business Standard on April 12, 2015. Sunil Abraham is quoted.

In India, the extent of surveillance became evident after Union human resource development minister Smriti Irani walked into the trial room of a FabIndia outlet in Goa last week, only to discover closed-circuit television (CCTV) cameras pointed towards the trial room. The country woke up to the porous divide between privacy and surveillance.

Now, senior officials of FabIndia find themselves embroiled in a case of voyeurism and seven of them have taken interim anticipatory bail from a district court. They claim the CCTV cameras were in the retail area, not the trial room.

The FabIndia incident might have blown the lid on how flimsily our privacy is protected but there is no doubt that India is slowly but surely moving towards a surveillance regime, both in the private and the public spheres.

“After the Snowden episode, there are only two kinds of nations: Ones that know they are being watched, and others that don’t,” said Pavan Duggal, an advocate at the Supreme Court of India.

Despite the surge in surveillance, there are hardly any specific laws governing this.

A few laws
In 2000, India enacted the Information Technology Act, primarily to bring e-commerce under legal framework. After the Mumbai terrorist attack in 2008, the Act was amended, to give the government sweeping powers for mass surveillance.

In the context of private surveillance, the 2008 amendment added two definitions: (a) communication device; (b) intermediary.

A communication device, according to the law, means cell phones, personal digital assistance, or a combination of both or any other device used to communicate, send or transmit any text, video, audio, or image. An intermediary was defined as any person who, on behalf of another person, stores or transmits message or provides any service with respect to that message.

Rules regarding CCTV surveillance are governed by the IT Act, 2008, as CCTVs are considered to be communication devices, with computerised memory. However, the laws in relation to a communication device and intermediary deal mostly with third-party data sharing.

“Article 21 of the Constitution guards the right to privacy as a Fundamental Right. We do not have an explicit Act in this regard, but Section 43A of the IT Act, 2000, along with the IT Rules, 2011, protects data privacy in India,” said Prashant Mali, a cyber law and cyber security lawyer.

There were no amendments of the laws governing CCTVs.

However, Section 66E of the IT Act, states: “Whoever, intentionally or knowingly, captures, publishes or transmits, the image of a private area of any person, without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment, which may extend to three years, or with a fine not exceeding Rs 2 lakh, or both, with explanation.”

“The IT Act is not a privacy enabling law. Hence, the challenges to privacy in surveillance are not fully addressed in it,” said Duggal.

Internationally, there are more stringent laws governing CCTV cameras. For example, in the UK, there is a prescribed code. A person filmed by a surveillance camera can seek the footage. In the US, too, there are state-specific laws which prohibit the unauthorised installation or use of cameras in private places, like restrooms and trial rooms.

“Privacy laws must be compliant with international practices. Laws governing CCTVs should be more comprehensive. It should not be specific to voyeurism,” said Sunil Abraham, the executive director of Bengaluru-based research organisation, the Centre for Internet and Society.

The government has been working on a Privacy (Protection) Bill, which provides safeguards on personal data of individuals and sets conditions under which surveillance is allowed. It is expected that the Bill will lead to the creation of the offices of privacy commissioner and data protection commissioner. However, it is mostly silent on laws governing CCTV usage.

“In India, the concern over enacting privacy laws, implementing them and our understanding of privacy are low, compared to the global context. The Privacy Protection Bill, 2013 is pending before Parliament. When this gets enacted, our laws would be at par with those in the West,” said Mali. “But doubts remain about their implementation.”

Government surveillance
Amendments to the IT Act in 2008 gave the government wide powers of interception, encryption and blocking. The amendment introduced Section 66A, which made sending “offensive” messages through a computer or any other communication device, such as a cell phone or a tablet, a punishable offense.

The Supreme Court recently struck down the provision as infringing the constitutional right of freedom of speech.

“Every nation is under the classical dilemma to balance national security with privacy and freedom of expression. Always, when there is a conflict between the two, national security wins hands down. However, apart from international consensus, we need customise national solutions,” said Duggal.

Today, some of the biggest government projects based on the powers vested to it under the IT Act. It has enabled the progression of surveillance procedures like the Central Monitoring System (CMS) and National Intelligence Grid (Natgrid), enabled through information on Aadhar card or unique identification number.

The CMS gives the government access to records of any mobile to landline calls, to read private emails, texts, and even browsing history through telecom operators. Natgrid could make the information available to nearly 11 central agencies.

“It is reported that the CMS can monitor close to 900 million people at one go. There is neither confirmation nor denial from the government,” said Duggal. However, compared to the US and China, that practice blanket surveillance, India is still considered a low-surveillance category nation.

“India is still low on surveillance. In India, we have targeted surveillance. At any given point in time, less than 200,000 phone calls are being intercepted. Not more than a couple of lakh of surveillance orders are given by both state and central governments,” said Abraham.

Surely, with so many surveillance devices around, it is a closely watched world like never before.

SALIENT FEATURES ON PRIVACY IN THE IT ACT, 2008

Communication Device: Cell phones, personal digital assistance, or combination of both or any other device used to communicate, send or transmit any text, video, audio, or image
Intermediary: Any person, who on behalf of another person, stores or transmits messages or provides any service
Sections 66A to 66F: Added to Section 66, prescribing punishment for offences such as sending obscene messages, identity theft, cheating by impersonation using computer resources, violation of privacy and cyber terrorism
Section 69: Amended to give power to the state to issue directions for interception or monitoring or decryption of any information through any computer resource
Sections 69A and B: These grant power to the state to issue directions for blocking public access of any information through any computer resource and to authorise to monitor and collect traffic data or information through any computer resource for cyber security.

For more details visit https://cis-india.org/internet-governance/news/business-standard-namrata-acharya-april-12-2015-surveillance-rises-privacy-retreats

Surveillance Project

sunil — 2016-04-05T15:21:27Z

The Aadhaar project’s technological design and architecture is an unmitigated disaster and no amount of legal fixes in the Act will make it any better.

The article will be published in Frontline, April 15, 2016 print edition.

Zero. The probability of some evil actor breaking into the central store of authentication factors (such as keys and passwords) for the Internet. Why? That is because no such store exists. And, what is the probability of someone evil breaking into the Central Identities Data Repository (CIDR) of the Unique Identification Authority of India (UIDAI)? Greater than zero. How do we know this? One, the central store exists and two, the Aadhaar Bill lists breaking into this central store as an offence. Needless to say, it would be redundant to have a law that criminalises a technological impossibility. What is the consequence of someone breaking into the central store? Remember, biometrics is just a fancy word for non-consensual and covert identification technology. High-resolution cameras can capture fingerprints and iris information from a distance.

In other words, on March 16, when Parliament passed the Bill, it was as if Indian lawmakers wrote an open letter to criminals and foreign states saying, “We are going to collect data to non-consensually identify all Indians and we are going to store it in a central repository. Come and get it!” Once again, how do I know that the CIDR will be compromised at some date in the future? How can I make that policy prediction with no evidence to back it up? To quote Sherlock Holmes, “Once you eliminate the impossible, whatever remains, no matter how improbable, must be the truth.” If a back door to the CIDR exists for the government, then the very same back door can be used by an enemy within or from outside. In other words, the principle of decentralisation in cybersecurity does not require repeated experimental confirmation across markets and technologies.

Zero. The chances that you can fix with the law what you have broken with poor technological choices and architecture. And, to a large extent vice versa. Aadhaar is a surveillance project masquerading as a development intervention because it uses biometrics. There is a big difference between the government identifying you and you identifying yourself to the government. Before UID, it was much more difficult for the government to identify you without your knowledge and conscious cooperation. Tomorrow, using high-resolution cameras and the power of big data, the government will be able to remotely identify those participating in a public protest. There will be no more anonymity in the crowd. I am not saying that law-enforcement agencies and intelligence agencies should not use these powerful technologies to ensure national security, uphold the rule of law and protect individual rights. I am only saying that this type of surveillance technology is inappropriate for everyday interactions between the citizen and the state.

Some software engineers believe that there are technical fixes for these concerns; they point to the consent layer in the India stack developed through a public-private partnership with the UIDAI. But this is exactly what Evgeny Morozov has dubbed “technological solutionism”—fundamental flaws like this cannot be fixed by legal or technical band-aid. If you were to ask the UIDAI how do you ensure that the data do not get stolen between the enrolment machine and the CIDR, the response would be, we use state-of-the-art cryptography. If cryptography is good enough for the UIDAI why is it not good enough for citizens? That is because if citizens use cryptography [on smart cards] to identify themselves to the state, the state will need their conscious cooperation each time. That provides the feature that is required for better governance without the surveillance bonus. If you really must use biometrics, it could be stored on the smart card after being digitally signed by the enrolment officer. If there is ever a doubt whether the person has stolen the smart card, a special machine can be used to read the biometrics off the card and check that against the person. This way the power of biometrics would be leveraged without any of the accompanying harms.

Zero. This time, for the utility of biometrics as a password or authentication factor. There are two principal reasons for which the Act should have prohibited the use of biometrics for authentication. First, biometric authentication factors are irrevocable unlike passwords, PINs, digital signatures, etc. Once a biometric authentication factor has been compromised, there is no way to change it. The security of a system secured by biometrics is permanently compromised. Second, our biometrics is so easy to steal; we leave our fingerprints everywhere.

Also, if I upload my biometric data onto the Internet, I can then plausibly deny all transactions against my name in the CIDR. In order to prevent me from doing that, the government will have to invest in CCTV cameras [with large storage] as they do for passport-control borders and as banks do at ATMs. If you anyway have to invest in CCTV cameras, then you might as well stick with digital signatures on smart cards as the previous National Democratic Alliance (NDA) government proposed the SCOSTA (Smart Card Operating System Standard for Transport Application) standard for the MNIC (Multipurpose National ID Card). Leveraging smart card standards like EMV will ensure harnessing greater network effects thanks to the global financial infrastructure of banks. These network effects will drive down the cost of equipment and afford Indians greater global mobility. And most importantly when a digital signature is compromised the user can be issued a new smart card. As Rufo Guerreschi, executive director of Open Media Cluster, puts it, “World leaders and IT experts should realise that citizen freedoms and states’ ability to pursue suspects are not an ‘either or’ but a ‘both or neither’.”

Near zero. We now move biometrics as the identification factor. The rate of potential duplicates or “False Positive Identification Rate” which according to the UIDAI is only 0.057 per cent. Which according to them will result in only “570 resident enrolments will be falsely identified as duplicate for every one million enrolments.” However, according to an article published in Economic & Political Weekly by my colleague at the Centre for Internet and Society, Hans Verghese Mathews, this will result in one out of every 146 people being rejected during enrolment when total enrolment reaches one billion people. In its rebuttal, the UIDAI disputes the conclusion but offers no alternative extrapolation or mathematical assumptions. “Without getting too deep into the mathematics” it offers an account of “a manual adjudication process to rectify the biometric identification errors”.

This manual adjudication determines whether you exist and has none of the elements of natural justice such as notice to the affected party and opportunity to be heard. Elimination of ghosts is impossible if only machines and unaccountable humans perform this adjudication. This is because there is zero skin in the game. There are free tools available on the Internet such as SFinGe (Synthetic Fingerprint Generator) which allow you to create fake biometrics. The USB cables on the UIDAI-approved enrolment setup can be intercepted using generic hardware that can be bought online. With a little bit of clever programming, countless number of ghosts can be created which will easily clear the manual adjudication process that the UIDAI claims will ensure that “no one is denied an Aadhaar number because of a biometric false positive”.

Near zero. This time for surveillance, which I believe should be used like salt in cooking. Essential in small quantities but counterproductive even if slightly in excess. There is a popular misconception that privacy researchers such as myself are opposed to surveillance. In reality, I am all for surveillance. I am totally convinced that surveillance is good anti-corruption technology.

But I also want good returns on investment for my surveillance tax rupee. According to Julian Assange, transparency requirements should be directly proportionate to power; in other words, the powerful should be subject to more surveillance. And conversely, I add, privacy protections must be inversely proportionate to power—or again, in other words, the poor should be spared from intrusions that do not serve the public interest. The UIDAI makes the exact opposite design assumption; it assumes that the poor are responsible for corruption and that technology will eliminate small-ticket or retail corruption. But we all know that politicians and bureaucrats are responsible for most of large-ticket corruption.

Why does not the UIDAI first assign UID numbers to all politicians and bureaucrats? Then using digital signatures why do not we ensure that we have a public non-repudiable audit trail wherein everyone can track the flow of benefits, subsidies and services from New Delhi to the panchayat office or local corporation office? That will eliminate big-ticket or wholesale corruption. In other words, since most of Aadhaar’s surveillance is targeted at the bottom of the pyramid, there will be limited bang for the buck. Surveillance is the need of the hour; we need more CCTVs with microphones turned on in government offices than biometric devices in slums.

Instantiation technology

One. And zero. In the contemporary binary and digital age, we have lost faith in the old gods. Science and its instantiation technology have become the new gods. The cult of technology is intolerant to blasphemy. For example, Shekhar Gupta recently tweeted saying that part of the opposition to Aadhaar was because “left-libs detest science/tech”. Technology as ideology is based on some fundamental articles of faith: one, new technology is better than old technology; two, expensive technology is better than cheap technology; three, complex technology is better than simple technology; and four, all technology is empowering or at the very least neutral. Unfortunately, there is no basis in science for any of these articles of faith.

Let me use a simple story to illustrate this. I was fortunate to serve as a member of a committee that the Department of Biotechnology established to finalise the Human DNA Profiling Bill, 2015, which was to be introduced in Parliament in the last monsoon session. Aside: the language of the Act also has room for the database to expand into a national DNA database circumventing 10 years of debate around the controversial DNA Profiling Bill, 2015. The first version of this Bill that I read in January 2013 said that DNA profiling was a “powerful technology that makes it possible to determine whether the source of origin of one body substance is identical to that of another … without any doubt”. In other words, to quote K.P.C. Gandhi, a scientist from Truth Labs, “I can vouch for the scientific infallibility of using DNA profiling for carrying out justice.”

Unfortunately, though, the infallible science is conducted by fallible humans. During one of the meetings, a scientist described the process of generating a biometric profile. The first step after the laboratory technician generated the profile was to compare the generated profile with her or his own profile because during the process of loading the machine with the DNA sample, some of the laboratory technician’s DNA could have contaminated the sample. This error would not be a possibility in much older, cheaper and rudimentary biometric technology for example, photography. A photographer developing a photograph in a darkroom does not have to ensure that his or her own image has not accidentally ended up on the negative. But the UIDAI is filled with die-hard techno-utopians; if you tell them that fingerprints will not work for those who are engaged in manual labour, they will say then we will use iris-based biometrics. But again, complex technologies are more fragile and often come with increased risks. They may provide greater performance and features, but sometimes they are easier to circumvent. A gummy finger to fool a biometric scanner can be produced using glue and a candle, but to fake a passport takes a lot of sophisticated technology. Therefore, it is important for us as a nation to give up our unquestioning faith in technology and start to debate the exact technological configurations of surveillance technology for different contexts and purposes.

One. This time representing a monopoly. Prior to the UID project, nobody got paid when citizens identified themselves to the state. While the Act says that the UIDAI will get paid, it does not specify how much. Sooner or later, this cost of identification will be passed on to the citizens and residents. There will be a consumer-service provider relationship established between the citizen and the state when it comes to identification. The UIDAI will become the monopoly provider of identification and authentication services in India which is trusted by the government. That sounds like a centrally planned communist state to me. Should not the right-wing oppose the Act because it prevents the free market from working? Should not the free market pick the best technology and business model for identification and authentication? Will not that drive the cost of identification and authentication down and ensure higher quality of service for citizens and residents?

Competing providers

Competing providers can also publish transparency reports regarding their compliance with data requests from law-enforcement and intelligence agencies, and if this is important to consumers they will be punished by the market. The government can use mechanisms such as permanent and temporary bans and price regulation as disincentives for the creation of ghosts. There will be a clear financial incentive to keep the database clean. Just like the government established a regulatory framework for digital certificates in the Information Technology Act allowing for e-commerce and e-governance. Ideally, the Aadhaar Bill should have done something similar and established an ecosystem for multiple actors to provide services in this two-sided market. For it is impossible for a “small government” to have the expertise and experience to run one of the world’s largest database of biometric and transaction records securely for perpetuity.

To conclude, I support the use of biometrics. I support government use of identification and authentication technology. I support the use of ID numbers in government databases. I support targeted surveillance to reduce corruption and protect national security. But I believe all these must be put in place with care and thought so that we do not end up sacrificing our constitutional rights or compromising the security of our nation state. Unfortunately, the Aadhaar project’s technological design and architecture is an unmitigated disaster and no amount of legal fixes in the Act will make it any better. Our children will pay a heavy price for our folly in the years to come. To quote the security guru Bruce Schneier, “Data is a toxic asset. We need to start thinking about it as such, and treat it as we would any other source of toxicity. To do anything else is to risk our security and privacy.”

For more details visit https://cis-india.org/internet-governance/blog/frontline-april-15-2016-sunil-abraham-surveillance-project

Surveillance Enabling Identity Systems in Africa: Tracing the Fingerprints of Aadhaar

Shruti Trikanad and Vrinda Bhandari — 2022-08-09T08:17:32Z

Biometric identity systems are being introduced around the world with a focus on promoting human development and social and economic inclusion, rather than previous goals of security. As a result, these systems being encouraged in developing countries, particularly in Africa and Asia, sometimes with disastrous consequences.

In this report, we identify the different external actors that influencing this “developmental” agenda. These range from philanthropic organisations, private companies, and technology vendors, to state and international institutions. Most notable among these is the World Bank, whose influence we investigated in the form of case studies of Nigeria and Kenya. We also explored the role played by the “success” of the Aadhaar programme in India on these new ID systems. A key characteristic of the growing “digital identity for development” trend is the consolidation of different databases that record beneficiary data for government programmes into one unified platform, accessed by a unique biometric ID. This “Aadhaar model” has emerged as a default model to be adopted in developing countries, with little concern for the risks it introduces. Read and download the full report here.

For more details visit https://cis-india.org/internet-governance/blog/surveillance-enabling-identity-systems-in-africa-tracing-the-fingerprints-of-aadhaar

Surveillance Camp: Privatized State Surveillance

praskrishna — 2013-01-29T06:51:39Z

This is the second in a series of posts mapping global surveillance challenges discussed at EFF’s Surveillance Camp in Rio de Janeiro, Brazil.

Katitza Rodriguez's blog post was published by the Electronic Frontier Foundation on their website on January 28, 2013. Elonnai Hickok is quoted.

In December 2012, EFF organized a Surveillance and Human Rights Camp in Brazil that brought together the expertise of a diverse group of people concerned about state electronic surveillance in Latin American and other countries. Among other concerns, participants spotlighted the many ways in which the private sector is increasingly playing a role in state surveillance. Here are a few examples:

Voluntary Agreements Between Law Enforcement and Private Companies

Often law enforcement agencies will approach companies asking for voluntary disclosure of information for investigative purposes. Those requests may look and sound more like threats, with a great deal of moral pressure applied on the companies.

This voluntary assistance remains out of the public eye and shrouded in secrecy, as notification of state access is never given to the individual concerned, is not codified in law, and is not clearly disclosed in the company's terms of service or user agreement. Currently there is minimal, if any, oversight over such voluntary cooperation, so the scope of assistance provided is not well-documented.

Canada

Canadian ISPs have jointly decided to provide identifying data about Canadian Internet users to law enforcement in child exploitation investigations. In fact, several Canadian ISPs have developed a formal protocol in conjunction with various law enforcement agencies to be used when those authorities are seeking identification information associated with a given IP address at a specific date and time. Since the adoption of this protocol, some ISPs have expanded their information sharing practices to cover customer identification data in other contexts, such as online harassment cases.

Law Enforcement Approaching Service Providers Without Legally-Required Authorization

A growing concern is the number of law enforcement officers skirting the law by asking service providers to simply fork over information without any sort of search warrant. Even when legal procedures, such as a search warrant, exist, police increasingly request information without obtaining a legal authorization. Nevertheless, they often expect full compliance from service providers.

Chile

In 2008, a Chilean website called Huelga.cl (“strike” in English) was approached by the Cyber Crime Section of the Chilean Police. The site is an online space for coordinating union actions. The agency demanded that the webmaster hand over data related to pseudonymous user accounts, such as IP addresses, records of previous connections, real names, and physical addresses. The targeted users had left comments on a website about an ongoing strike.

In this case, because police did not have a court order to back up the request for information, Huelga.cl took a stand by resisting police pressure and refusing to hand over the data without a fight. For legal assistance, they turned to Derechos Digitales, a Chilean online human rights nonprofit organization, and managed to resist the request.

In another case, the Regional Director of the Chilean Department of Labor, the agency responsible for ensuring the enforcement of labor laws, sent a letter to Huelga.cl simply demanding the removal of “inappropriate content” from their website along with the disclosure of user information, but it was only for administrative purposes as opposed to serious criminal investigations. Huegal.cl again refused to comply and instead, made the director’s demands public.

It is not always the case that service providers can resist extralegal government requests, find legal advice or have enough economic resources to fight against those demands as Huelga.cl did. Huelga.cl should be praised for speaking up and managing to make the request from law enforcement public.

Governments Pressure Private Sector

Governments frequently impose heavy fines for non-compliance with their requests for data access. This form of coercion acts as a mechanism of enforcement over service providers and can raise serious concerns for free expression. The service provider is left with little incentive or option to resist illegitimate requests from the government when they are threatened with heavy fines.

Brazil

In 2012, a judge from northern Brazil froze Google's accounts and imposed a fine on the company for refusing to remove three anonymous blogs or reveal contact details of the bloggers. The content of the blogs state d the mayor of Varzea Alegre of corruption and embezzlement.

While some companies might be able to withstand governmental pressure, alarms were raised that this won’t be the case for smaller companies that lack resources and influence. This is particularly true in contexts where heavy fines for noncompliance are written into legislation, and companies are not given legal avenues to appeal or fight the fine.

Foreign Governments Access To Individuals’ Data in the Cloud

Governments are increasingly seeking to negotiate access or interceptation capabilities to user data with companies that do not lie within their jurisdictions. This form of access is complicated because it is not always clear which country’s laws apply or to what extent. Because of the complex nature of these requests, governments often look for "easy" solutions that call for voluntary disclosure of information or simply allow full access to the user data.

For example, government officials in India have been pushing for real time interception capabilities for all BlackBerry services. In response to the demands from the Indian Government, after a number of unsatisfactory proposals, in 2012 RIM set up a NOC in Mumbai, providing security agencies with access to BlackBerry Messenger services, and created a solution for access to Blackberry Internet Services. In addition to asking RIM for real time access to communications, the Government of India had required Service Providers in India to adopt the solution provided by RIM by end of 2012 or risk being shut down.

According to Elonnai Hickok from the Centre for Internet and Society in Bangalore, India, the discussions between RIM and the Indian Government is just one example of how governments are trying to negotiate their interests in light of the challenges posed by communications stored in the cloud and in multiple jurisdictions.

While the Internet is technically borderless, in reality, state actors impose their sovereignty onto online environments with increasing frequency. The exercise of sovereignty over shared spaces can subject individuals to the laws of another country without any awareness on their part that this has happened. This in effect transforms the surveillance efforts of one country into privacy risks for all the world’s citizens.

Conclusion

State agencies and law enforcement are increasingly outsourcing investigations to private companies who are not under the same sort of judicial oversight as official law enforcement entities would be. The increasingly close and non-transparent connection between the private sector and law enforcement needs to be addressed, as it poses a risk to the rights and freedoms of the individual. Of major concern to all Camp participants was the notion that private companies are routinely complying with the requests of law enforcement in the absence of due process. We encourage further research and documentation of this phenomenon. To highlight on this issue, we will be blogging next about the privatization of public security in Latin America.

For more details visit https://cis-india.org/news/electronic-frontier-foundation-january-28-2013-katitza-rodriguez-surveillance-camp-privatized-state-surveillance

Surveillance Camp IV: Disproportionate State Surveillance - A Violation of Privacy

elonnai — 2013-02-19T12:37:09Z

This is the fourth in a series of posts mapping global surveillance challenges discussed at EFF's State Surveillance and Human Rights Camp in Rio de Janeiro, Brazil. This article has been co-written with Elonnai Hickok — Centre for Internet and Society India, and a speaker at EFF's Camp.

This article by Katitza Rodriguez and Elonnai Hickok was originally published by the Electronic Frontier Foundation on February 13, 2013.

States around the world are faced daily with the challenge of protecting their populations from potential and real threats. To detect and respond to them, many governments surveil communication networks, physical movements, and transactional records. Though surveillance by its nature compromises individual privacy, there are exceptional situations where state surveillance is justified. Yet, if state surveillance is unnecessary or overreaching, with weak legal safeguards and a failure to follow due process, it can become disproportionate to the threat—infringing on people's privacy rights.

Internationally, regulations concerning government surveillance of communications vary in approach and effectiveness, often with very weak or nonexistent legal safeguards. Some countries have strong regulations for the surveillance of communications, yet these regulations may be largely ineffective or unenforceable in practice. Other countries have no legal safeguards or legal standards differing vastly according to the type of communication data targeted. This is why, EFF organized at the end of last year a State Surveillance and Human Rights Camp in Brazil to build upon this discussion and focused on how states are facilitating unnecessary and disproportionate surveillance of communications in ways that lead to privacy violations.

State-Mandated Identity Verification

In 2012 the Constitutional Court in South Korea declared that country's "real-name identification system" unconstitutional. The system had mandated that any online portal with more than 100,000 daily users had to verify the identity of their users.[1]This meant that the individual has to provide their real name before posting comments online. The legal challenge to this system was raised by People's Solidarity for Participatory Democracy (PSPD)'s Public Law Center and Korean Progressive Network—Jinbonet among others.

Korea University professor Kyung-shin Park, Chair of PSPD's Law Center told EFF that portals and phone companies would disclose identifying information about six million users annually—in a country of only 50 million people. The South Korean Government was using perceived online abuses as a convenient excuse to discourage political criticism, professor Park told EFF:

The user information shared with the police most commonly has been used by the government to monitor the anti-governmental sentiments of ordinary people. All this has gone on because the government, the legislature, and civil society have not clearly understood the privacy implications of turning over identifying information of individuals.

The decision by the South Korean Constitutional Court to declare the "real identification system" unconstitutional was a win for user privacy and anonymity because it clearly showed that blanket mandates for the disclosure of identifying information, and the subsequent sharing of that data without judicial authorization, are a disproportionate measure that violates the rights of individuals.[2]

States Restrict Encryption and Demand Backdoors

Some States are seeking to block, ban, or discourage the use of strong encryption and other privacy enhancing tools by requiring assistance in decrypting information. In India service providers are required to ensure that bulk encryption is not deployed. Additionally, no individual or entity can employ encryption with a key longer than 40 bits. If the encryption equipments is higher than this limit, the individual or entity will need prior written permission from the Department of Telecommunications and must deposit the decryption keys with the Department.[3]The limitation on encryption in India means that technically any encrypted material over 40 bits would be accessible by the State. Ironically, the Reserve Bank of India issued security recommendations that banks should use strong encryption as higher as 128-bit for securing browser.[4]In the United States, under the Communications Assistance for Law Enforcement Act, telecommunication carriers are required to provide decryption assistance only if they already possess the keys (and in many communications system designs, there's no reason carriers should need to possess the keys at all). In 2011, the US Government proposed a bill that would place new restrictions on domestic development or use of cryptography, privacy software, and encryption features on devices. The bill has not been adopted.

Allowing only low levels of encryption and requiring service providers to assist in the decryption of communications, facilitates surveillance by enabling States easier access to data and preventing individuals from using crypto tools to protect their personal communications.

States Establish Blanket Interception Facilities

In Colombia, telecommunications network and service providers carrying out business within the national territory must implement and ensure that interception facilities are available at all times to state agencies as prescribed by law. This is to enable authorized state agencies to intercept communications at any point of time. In addition to providing interception facilities, service providers must also retain subscriber data for a period of five years, and provide information such as subscriber identity, invoicing address, type of connection on request, and geographic location of terminals when requested.

Though Colombia has put in place regulations for the surveillance of communications, these regulations allow for broad surveillance and do not afford the individual clear rights in challenging the same.

Conclusion

The examples above demonstrate that, although state surveillance of communications can be justified in exceptional instances, it leads to the violation of individual privacy when implemented without adequate legal safeguards. Clearly there is a need for international principles articulating critical and necessary components of due process for the surveillance of communications. Those strong legal safeguards are necessary not only in countries that don't have laws in place, but also in countries where laws are lacking and fail to adequately protect privacy. Last year, EFF organized the State Surveillance and Human Rights Camp to discuss a set of International Principles on State Surveillance of Communications, a global effort led by EFF and Privacy International, to define, articulate, and promote legal standards to protect individual privacy when the state carries out surveillance of communications.

[1].Constitutional Court's Decision 2010 Hunma 47, 252 (consolidated) announced August 28, 2012.

[2].The illegality of this practice was proved by a High Court decision handed down 2 months after the Constitutional Court's decision in August 2012. Seoul Appellate Court 2011 Na 19012, Judgment Announced October 18, 2012. This case was prepared and followed singularly by PSPD Public Interest Law Center.

[3].License Agreement for Provision of Internet Services Section 2.2 (vii)

[4].Reserve Bank of India. Internet Banking Guidelines. Section (f (2)).

For more details visit https://cis-india.org/internet-governance/blog/eff-feb-13-2013-katitza-rodriguez-and-elonnai-hickok-surveillance-camp-iv-disproportionate-state-surveillance-a-violation-of-privacy

Surveillance and the Indian Constitution - Part 3: The Public/Private Distinction and the Supreme Court’s Wrong Turn

pranesh — 2014-03-06T23:02:45Z

After its decision in Gobind, the Supreme Court's privacy floodgates opened; a series of claims involving private parties came before its docket, and the resulting jurisprudence ended up creating confusion between state-individual surveillance, and individual-individual surveillance.

Gautam Bhatia's blog post was originally published on Indian Constitutional Law and Philosophy Blog

We have seen that Gobind essentially crystallized a constitutional right to privacy as an aspect of personal liberty, to be infringed only by a narrowly-tailored law that served a compelling state interest. After the landmark decision in Gobind, Malak Singh v State of P&H was the next targeted-surveillance history-sheeter case to come before the Supreme Court. In that case, Rule 23 of the Punjab Police Rules was at issue. Its vires was not disputed, so the question was a direct matter of constitutionality. An order of surveillance was challenged by two individuals, on the ground that there were no reasonable bases for suspecting them of being repeat criminals, and that their inclusion in the surveillance register was politically motivated. After holding that entry into a surveillance sheet was a purely administrative measure, and thus required no prior hearing (audi alteram partem), the Court then embarked upon a lengthy disquisition about the scope and limitations of surveillance, which deserves to be reproduced in full:

“But all this does not mean that the police have a licence to enter the names of whoever they like (dislike?) in the surveillance register; nor can the surveillance be such as to squeeze the fundamental freedoms guaranteed to all citizens or to obstruct the free exercise and enjoyment of those freedoms; nor can the surveillance so intrude as to offend the dignity of the individual. Surveillance of persons who do not fall within the categories mentioned in Rule 23.4 or for reasons unconnected with the prevention of crime, or excessive surveillance falling beyond the limits prescribed by the rules, will entitle a citizen to the Court’s protection which the court will not hesitate to give. The very rules which prescribe the conditions for making entries in the surveillance register and the mode of surveillance appear to recognise the caution and care with which the police officers are required to proceed. The note following R. 23.4 is instructive. It enjoins a duty upon the police officer to construe the rule strictly and confine the entries in the surveillance register to the class of persons mentioned in the rule. Similarly R.23.7 demands that there should be no illegal interference in the guise of surveillance. Surveillance, therefore, has to be unobstrusive and within bounds. Ordinarily the names of persons with previous criminal record alone are entered in the surveillance register. They must be proclaimed offenders, previous convicts, or persons who have already been placed on security for good behaviour. In addition, names of persons who are reasonably believed to be habitual offenders or receivers of stolen property whether they have been convicted or not may be entered. It is only in the case of this category of persons that there may be occasion for abuse of the power of the police officer to make entries in the surveillance register. But, here, the entry can only be made by the order of the Superintendent of Police who is prohibited from delegating his authority under Rule 23.5. Further it is necessary that the Superintendent of Police must entertain a reasonable belief that persons whose names are to be entered in Part II are habitual offenders or receivers of stolen property. While it may not be necessary to supply the grounds of belief to the persons whose names are entered in the surveillance register it may become necessary in some cases to satisfy the Court when an entry is challenged that there are grounds to entertain such reasonable belief. In fact in the present case we sent for the relevant records and we have satisfied ourselves that there were sufficient grounds for the Superintendent of Police to entertain a reasonable belief. In the result we reject both the appeals subject to our observations regarding the mode of surveillance. There is no order as to costs.”

Three things emerge from this holding: first, the Court follows Gobind in locating the right to privacy within the philosophical concept of individual dignity, found in Article 21’s guarantee of personal liberty. Secondly, it follows Kharak Singh, Malkani and Gobind in insisting that the surveillance be targeted, limited to fulfilling the government’s crime-prevention objectives, and be limited – not even to suspected criminals, but – repeat offenders or serious criminals. And thirdly, it leaves open a role for the Court – that is, judicial review – in examining the grounds of surveillance, if challenged in a particular case.

After Malak Singh, there is another period of quiet. LIC v Manubhai D Shah, in 1993, attributed – wrongly – to Indian Express Newspapers the proposition that Article 19(1)(a)’s free expression right included privacy of communications (Indian Express itself had cited a UN Report without incorporating it into its holding).

Soon afterwards, R. Rajagopal v State of TN involved the question of the publication of a convicted criminal’s autobiography by a publishing house; Auto Shankar, the convict in question, had supposedly withdrawn his consent after agreeing to the book’s publication, but the publishing house was determined to go ahead with it. Technically, this wasn’t an Article 21 case: so much is made clear by the very manner in which the Court frames its issues: the question is whether a citizen of the country can prevent another person from writing his biography, or life story. (Paragraph 8) The Court itself made things clear when it held that the right of privacy has two aspects: the tortious aspect, which provides damages for a breach of individual privacy; and the constitutional aspect, which protects privacy against unlawful governmental intrusion. (Paragraph 9) Having made this distinction, the Court went on to cite a number of American cases that were precisely about the right to privacy against governmental intrusion, and therefore – ideally – irrelevant to the present case (Paras 13 – 16); and then, without quite explaining how it was using these cases – or whether they were relevant at all, it switched to examining the law of defamation (Para 17 onwards). It would be safe to conclude, therefore, in light of the clear distinctions that it made, the Court was concerned in R. Rajagopal about an action between private parties, and therefore, privacy in the context of tort law. It’s confusing observations, however, were to have rather unfortunate effects, as we shall see.

We now come to a series of curious cases involving privacy and medical law. In Mr X v Hospital Z, the question arose whether a Hospital that – in the context of a planned marriage – had disclosed the appellant’s HIV+ status, leading to his social ostracism – was in breach of his right to privacy. The Court cited Rajagopal, but unfortunately failed to understand it, and turned the question into one of the constitutional right to privacy, and not the private right. Why the Court turned an issue between two private parties – adequately covered by the tort of breach of confidentiality – into an Article 21 issue is anybody’s guess. Surely Article 21 – the right to life and personal liberty – is not horizontally applicable, because if it was, we might as well scrap the entire Indian Penal Code, which deals with exactly these kinds of issues – individuals violating each others’ rights to life and personal liberty. Nonetheless, the Court cited Kharak Singh, Gobind and Article 8 of the European Convention of Human Rights, further muddying the waters, because Article 8 – in contrast to American law – embodies a proportionality test for determining whether there has been an impermissible infringement of privacy. The Court then came up with the following observation:

“Where there is a clash of two Fundamental Rights, as in the instant case, namely, the appellant’s right to privacy as part of right to life and Ms. Akali’s right to lead a healthy life which is her Fundamental Right under Article 21, the RIGHT which would advance the public morality or public interest, would alone be enforced through the process of Court, for the reason that moral considerations cannot be kept at bay.”

With respect, this is utterly bizarre. If there is a clash of two rights, then that clash must be resolved by referring to the Constitution, and not to the Court’s opinion of what an amorphous, elastic, malleable, many-sizes-fit “public morality” says. The mischief caused by this decision, however, was replicated in Sharda v Dharmpal, decided by the Court in 2003. In that case, the question was whether the Court could require a party who had been accused of unsoundness of mind (as a ground for divorce under the wonderfully progressive Hindu Marriage Act) to undergo a medical examination – and draw an adverse inference if she refused. Again, whether this was a case in which Article 21 ought to be invoked is doubtful; at least, it is arguable, since it was the Court making the order. Predictably, the Court cited from Mr X v Hospital Z extensively. It cited Gobind (compelling State interest) and the ECHR (proportionality). It cited a series of cases involving custody of children, where various Courts had used a “balancing test” to determine whether the best interests of the child overrode the privacy interest exemplified by the client-patient privilege. It applied this balancing test to the case at hand by balancing the “right” of the petitioner to obtain a divorce for the spouse’s unsoundness of mind under the HMA, vis-à-vis the Respondent’s right to privacy.

In light of the above analysis, it is submitted that although the outcome in Mr X v Hospital Z and Sharda v Dharmpal might well be correct, the Supreme Court has misread what R. Rajagopal actually held, and its reasoning is deeply flawed. Neither of these cases are Article 21 cases: they are private tort cases between private parties, and ought to be analysed under private law, as Rajagopal itself was careful to point out. In private law, also, the balancing test makes perfect sense: there are a series of interests at stake, as the Court rightly understood, such as certain rights arising out of marriage, all of a private nature. In any event, whatever one might make of these judgments, one thing is clear: they are both logically and legally irrelevant to the Kharak Singh line of cases that we have been discussing, which are to do with the Article 21 right to privacy against the State.

For more details visit https://cis-india.org/internet-governance/blog/surveillance-and-the-indian-consitution-part-3

Surveillance and the Indian Constitution - Part 2: Gobind and the Compelling State Interest Test

pranesh — 2014-01-27T18:03:38Z

Gautam Bhatia analyses the first case in which the Supreme Court recognized a constitutional right to privacy, Gobind v. State of Madhya Pradesh, and argues that the holding in that case adopted the three-pronged American test of strict scrutiny, compelling State interest, and narrow tailoring in its approach to privacy violations.

After its judgment in Kharak Singh, the Court was not concerned with the privacy question for a while. The next case that dealt – peripherally – with the issue came eleven years later. In R.M. Malkani v State of Maharashtra, the Court held that attaching a recording device to a person’s telephone did not violate S. 25 of the Telegraph Act, because

"where a person talking on the telephone allows another person to record it or to hear it, it can-not be said that the other person who is allowed to do so is damaging, removing, tampering, touching machinery battery line or post for intercepting or acquainting himself with the contents of any message. There was no element of coercion or compulsion in attaching the tape recorder to the telephone."

Although this case was primarily about the admissibility of evidence, the Court also took time out to consider – and reject – a privacy-based Article 21 argument, holding that:

"Article 21 was invoked by submitting that the privacy of the appellant’s conversation was invaded. Article 21 contemplates procedure established by law with regard to deprivation of life or personal liberty. The telephonic conversation of an innocent citizen will be protected by Courts against wrongful or high handed interference by tapping the conversation. The protection is not for the guilty citizen against the efforts of the police to vindicate the law and prevent corruption of public servants. It must not be understood that the Courts will tolerate safeguards for the protection of the citizen to be imperiled by permitting the police to proceed by unlawful or irregular methods."

Apart from the fact that it joined Kharak Singh in refusing to expressly find a privacy right within the contours of Article 21, there is something else that unites Kharak Singh and R.M. Malkani: they hypothetical in Kharak Singh became a reality in Malkani – what saved the telephone tapping precisely because it was directed at "… a guilty person", with the Court specifically holding that the laws were not for targeting innocent people. Once again, then, the targeted and specific nature of interception became a crucial – and in this case, a decisive – factor. One year later, in another search and seizure case, Pooran Mal v Inspector, the Court cited M.P. Sharma and stuck to its guns, refusing to incorporate the Fourth Amendment into Indian Constitutional law.

It is Gobind v State of MP, decided in 1975, that marks the watershed moment for Indian privacy law in the Constitution. Like Kharak Singh, Gobind also involved domiciliary visits to the house of a history-sheeter. Unlike Kharak Singh, however, in Gobind the Court found that the Regulations did have statutory backing – S. 46(2)(c) of the Police Act, which allowed State Government to make notifications giving effect to the provisions of the Act, one of which was the prevention of commission of offences. The surveillance provisions in the impugned regulations, according to the Court, were indeed for the purpose of preventing offences, since they were specifically aimed at repeat offenders. To that extent, then, the Court found that there existed a valid “law” for the purposes of Articles 19 and 21.

By this time, of course, American constitutional law had moved forward significantly from eleven years ago, when Kharak Singh had been decided. The Court was able to invoke Griswold v Connecticut and Roe v Wade, both of which had found a "privacy" as an "interstitial" or "penumbral" right in the American Constitution – that is, not reducible to any one provision, but implicit in a number of separate provisions taken together. The Court ran together a number of American authorities, referred to Locke and Kant, to dignity, to liberty and to autonomy, and ended by holding, somewhat confusingly:

“the right to privacy must encompass and protect the personal intimacies of the home, the family marriage, motherhood, procreation and child rearing. This catalogue approach to the question is obviously not as instructive as it does not give analytical picture of that distinctive characteristics of the right of privacy. Perhaps, the only suggestion that can be offered as unifying principle underlying the concept has been the assertion that a claimed right must be a fundamental right implicit in the concept of ordered liberty… there are two possible theories for protecting privacy of home. The first is that activities in the home harm others only to the extent that they cause offence resulting from the mere thought that individuals might he engaging in such activities and that such ‘harm’ is not Constitutionally protective by the state. The second is that individuals need a place of sanctuary where they can be free from societal control. The importance of such a sanctuary is that individuals can drop the mask, desist for a while from projecting on the world the image they want to be accepted as themselves, an image that may reflect the values of their peers rather than the realities of their natures… the right to privacy in any event will necessarily have to go through a process of case-by-case development."

But if no clear principle emerges out of the Court’s elucidation of the right, it was fairly unambiguous in stressing the importance of the right itself. Interestingly, it grounded the right within the context of the freedom struggle. "Our founding fathers," it observed, "were thoroughly opposed to a Police Raj even as our history of the struggle for freedom has borne eloquent testimony to it." (Para 30) The parallels to the American Fourth Amendment are striking here: in his historical analysis Akhil Amar tells us that the Fourth Amendment was meant precisely to avoid the various abuses of unreasonable searches and seizures that were common in England at the time.

The parallels with the United States become even more pronounced, however, when the Court examined the grounds for limiting the right to privacy. "Assuming that the fundamental rights explicitly guaranteed to a citizen have penumbral zones and that the right to privacy is itself a fundamental right, that fundamental right must be subject to restriction on the basis of compelling public interest." "Compelling public interest" is an interesting phrase, for two reasons. First, “public interest” is a ground for fundamental rights restrictions under Article 19 (see, e.g., Article 19(6)), but the text of the Article 19 restrictions do not use – and the Court, in interpreting them, has not held – that the public interest must be “compelling”. This suggests a stricter standard of review for an Article 21 privacy right violation than Article 19 violations. This is buttressed by the fact that in the same paragraph, the Court ended by observing: “even if it be assumed that Article 19(5) [restrictions upon the freedom of movement] does not apply in terms, as the right to privacy of movement cannot be absolute, a law imposing reasonable restriction upon it for compelling interest of State must be upheld as valid.” The Court echoes the language of 19(5), and adds the word “compelling”. This surely cannot be an oversight.

More importantly – the compelling State interest is an American test, used often in equal protection cases and cases of discrimination, where “suspect classes” (such as race) are at issue. Because of the importance of the right at issue, the compelling state interest test goes hand-in-hand with another test: narrow tailoring. Narrow tailoring places a burden upon the State to demonstrate that its restriction is tailored in a manner that infringes the right as narrowest manner that is possible to achieve its goals. The statement of the rule may be found in the American Supreme Court case of Grutter v Bollinger:

"Even in the limited circumstance when drawing racial distinctions is permissible to further a compelling state interest, government is still constrained under equal protection clause in how it may pursue that end: the means chosen to accomplish the government’s asserted purpose must be specifically and narrowly framed to accomplish that purpose."

To take an extremely trivial example that will illustrate the point: the State wants to ban hate speech against Dalits. It passes legislation that bans “all speech that disrespects Dalits.” This is not narrowly tailored, because while all hate speech against Dalits necessarily disrespects them, all speech that disrespects Dalits is not necessarily hate speech. It was possible for the government to pass legislation banning only hate speech against Dalits, one that would have infringed upon free speech more narrowly than the “disrespect law”, and still achieved its goals. The law is not narrowly tailored.

Crucially, then, the Court in Gobind seemed to implicitly accept the narrow-tailoring flip side of the compelling state interest coin. On the constitutionality of the Police Regulations itself, it upheld their constitutionality by reading them narrowly. Here is what the Court said:

“Regulation 855, in our view, empowers surveillance only of persons against whom reasonable materials exist to induce the opinion that they show a determination, to lead a life of crime – crime in this context being confined to such as involve public peace or security only and if they are dangerous security risks. Mere convictions in criminal cases where nothing gravely imperiling safety of society cannot be regarded as warranting surveillance under this Regulation. Similarly, domiciliary visits and picketing by the police should be reduced to the clearest cases of danger to community security and not routine follow-up at the end of a conviction or release from prison or at the whim of a police officer.”

But Regulation 855 did not refer to the gravity of the crime at all. Thus, the Court was able to uphold its constitutionality only by narrowing its scope in a manner that the State’s objective of securing public safety was met in a way that minimally infringed the right to privacy.

Therefore, whether the Gobind bench was aware of it or not, its holding incorporates into Indian constitutional law and the right to privacy, not just the compelling State interest test, but narrow tailoring as well. The implications for the CMS are obvious. Because with narrow tailoring, the State must demonstrate that bulk surveillance of all individuals, whether guilty or innocent, suspected of crimes or not suspected of crimes (whether reasonably or otherwise), possessing a past criminal record or not, speaking to each other of breaking up the government or breaking up a relationship – every bit of data must be collected to achieve the goal of maintaining public security, and that nothing narrower will suffice. Can the State demonstrate this? I do not think it can, but at the very least, it should be made to do so in open Court.

For more details visit https://cis-india.org/internet-governance/blog/surveillance-and-the-indian-consitution-part-2