Centre for Internet and Society

Widening the Horizons of Surveillance - Lateral Surveillance Mechanisms

Mira Swaminathan & Shubhika Saluja — 2021-01-08T11:01:06Z

This paper sheds light on the issues and challenges associated with lateral surveillance mechanisms.

The pandemic has brought to light several fissures in existing patterns of governance-focussing on governmentality that snatches autonomy from the citizen and enmeshes it within existing power structures. Datafication through the phenomenon of lateral surveillance has been pushed across the globe as a way of combating human challenges in the 21st century, including those brought about by the pandemic.

Lateral surveillance is the act of ‘watching over’. Lateral surveillance differs from typical surveillance as the power dynamic between the one watching and the one being watched is not structural or hierarchical but more decentralized and balanced. The surveillance takes place between individuals themselves, without the involvement of any organizational entity such as the government. Looking back, the initiatives which encouraged lateral surveillance originated in the form of neighbourhood watch schemes and community policing initiatives in the United States and later spread across the world. These neighbourhood watch schemes enabled individuals to become the ‘eyes and ears’ of law enforcement agencies. With the advancements in technology, these neighbourhood watch and community building initiatives have transformed into easily accessible mobile applications, operated by law enforcement agencies or private entities, to mobilize citizens to monitor their surroundings or provide them with information sharing platforms to enable peer to peer or citizen communication. Though they aim to help in reducing the crime rates, improving the quality of life, building community pride and unity, they actually have many negative effects on people. This paper seeks to analyze the societal and legal implications of such technologies and provides recommendations to governments so that citizens’ rights are kept as a bare minimum threshold and not an option in a checklist.

While the essay released in May 2020 focused on the impact of lateral surveillance during COVID’19, this paper focuses largely on the history and evolution of lateral surveillance and the technologisation of the same. This paper also sheds light on the effects of lateral surveillance on the society and the challenges it poses to certain fundamental rights guaranteed under the Constitution.

Read the full paper here.

The research was submitted for review in May 2020 and accepted for publication in June 2020.

For more details visit https://cis-india.org/internet-governance/widening-the-horizons-of-surveillance

Why 'Facebook' is More Dangerous than the Government Spying on You

maria — 2013-11-23T08:38:30Z

In this article, Maria Xynou looks at state and corporate surveillance in India and analyzes why our "choice" to hand over our personal data can potentially be more harmful than traditional, top-down, state surveillance. Read this article and perhaps reconsider your "choice" to use social networking sites, such as Facebook.

Do you have a profile on Facebook? Almost every time I ask this question, the answer is ‘yes’. In fact, I think the amount of people who have replied ‘no’ to this question can literally be counted on my right hand. But this is not an article about Facebook per se. It’s more about the ‘Facebooks’ of the world, and of people’s increasing “choice” to hand over their most personal data. More accurate questions are probably:

“Would you like the Government to go through your personal diary? If not, then why do you have a profile on Facebook?”

The Indian Surveillance State

Following Snowden ’s revelations, there’s finally been more talk about surveillance. But what is surveillance?

David Lyon - who directs the Surveillance Studies Centre - defines surveillance as “any collection and processing of personal data, whether identifiable or not, for the purposes of influencing or managing those whose data have been garnered”. Surveillance can also be defined as the monitoring of the behaviour, activities or other changing information of individuals or groups of people. However, this definition implies that individuals and/or groups of people are being monitored in a top-down manner, without this being their “choice”. But is that actually the case? To answer this question, let’s have a look at how the Indian government and corporations operating in India spy on us.

State Surveillance

The first things that probably come to mind when thinking about India from a foreigner’s perspective are poverty and corruption. Surveillance appears to be a “Western, elitist issue”, which mainly concerns those who have already solved their main survival problems. In other words, the most mainstream argument I hear in India is that surveillance is not a real issue, especially since the majority of the population in the country lives below the line of poverty and does not even have any Internet access. Interestingly enough though, the other day when I was walking around a slum in Koramangala, I noticed that most people have Airtel satellites...even though they barely have any clean water!

The point though is that surveillance in India is a fact, and the state plays a rather large role in it. In particular, Indian law enforcement agencies follow three steps in ensuring that targeted and mass surveillance is carried out in the country:

1. They create surveillance schemes, such as the Central Monitoring System (CMS ), which carry out targeted and/or mass surveillance

2. They create laws, guidelines and license agreements, such as the Information Technology (Amendment ) Act 2008, which mandate targeted and mass surveillance and which require ISP and telecom operators to comply

3. They buy surveillance technologies from companies, such as CCTV cameras and spyware, and use them to carry out targeted and/or mass surveillance

While Indian law enforcement agencies don’t necessarily follow these steps in this precise order, they usually try to create surveillance schemes, legalise them and then buy the gear to carry them out.

In particular, surveillance in India is regulated under five laws: the Indian Telegraph Act 1885, the Indian Post Office Act 1898, the Indian Wireless Telegraphy Act 1933, section 91 of the 1973 Code of Criminal Procedure (CrPc ) and the Information Technology (Amendment ) Act 2008. These laws mandate targeted surveillance, but remain silent on the issue of mass surveillance which means that technically it is neither allowed nor prohibited, but remains a grey legal area.

While surveillance laws in India may not mandate mass surveillance, some of their sections are particularly concerning. Section 69 of the Information Technology (Amendment ) Act 2008 allows for the interception of all information transmitted through a computer resource, while requiring that all users disclose their private encryption keys or face a jail sentence of up to seven years. This appears to be quite bizarre, as individuals can only keep their data private and protect themselves from surveillance through encryption.

Section 44 of the Information Technology (Amendment) Act 2008 imposes stiff penalties on anyone who fails to provide requested information to authorities - which kind of reminds us of Orwell’s totalitarian regime in “1984”. Furthermore, section 66A of the same law states that individuals will be punished for sending “offensive messages through communication services”. However, the vagueness of this section raises huge concerns, as it remains unclear what defines an “offensive message” and whether this will have grave implications on the freedom of expression. The arrest of two Indian women last November over a Facebook post reminds us of this.

Laws in India may not mandate mass surveillance, but guidelines and license agreements issued by the Department of Telecommunications do. In particular, the UAS License Agreement regarding the Central Monitoring System (CMS ) not only mandates mass surveillance, but also attempts to legalise a mass surveillance scheme which aims to intercept all telecommunications and Internet communications in India. Furthermore, the Department of Telecommunications has issued numerous guidelines and license agreements for ISPs and telecom operators, which require them to not only be “surveillance-friendly”, but to also enable law enforcement agencies to tap into their servers on the grounds of national security. And then, of course, there’s the new National Cyber Security Policy, which mandates surveillance to tackle cyber-crime, cyber-terrorism, cyber-war and cyber-vandalism.

As both a result and prerequisite of these laws, the Indian government has created various surveillance schemes and teams to aid them. In particular, India ’s Computer Emergency Response Team (CERT ) is currently monitoring “any suspicious move on the Internet” in order to checkmate any potential cyber attacks from hackers. While this may be useful for the purpose of preventing and detecting cyber-criminals, it remains unclear how “any suspicious move” is defined and whether that inevitably enables mass surveillance, without individuals’ knowledge or consent.

The Crime and Criminal Tracking and Network & Systems (CCTNS ) is the creation of a nationwide networking infrastructure for enhancing the efficiency and effectiveness of policing and sharing data among 14,000 police stations across the country. It has been estimated that Rs. 2000 crore has been allocated for the CCTNS project and while it may potentially increase the effectiveness of tackling crime and terrorism, it raises questions around the legality of data sharing and its potential implications on the right to privacy and other human rights - especially if such data sharing results in data being disclosed or shared with unauthorised third parties.

Similarly, the National Intelligence Grid (NATGRID ) is an integrated intelligence grid that will link the databases of several departments and ministries of the Government of India so as to collect comprehensive patterns of intelligence that can be readily accessed by intelligence agencies. This was first proposed in the aftermath of the Mumbai 2008 terrorist attacks and while it may potentially aid intelligence agencies in countering crime and terrorism, enforced privacy legislation should be a prerequisite, which would safeguard our data from potential abuse.

However, the most controversial surveillance scheme being implemented in India is probably the Central Monitoring System (CMS). While several states, such as Assam, already have Internet Monitoring Systems in place, the Central Monitoring System appears to raise even graver concerns. In particular, the CMS is a system through which all telecommunications and Internet communications in India will be monitored by Indian authorities. In other words, the CMS will be capable of intercepting our calls and of analyzing our data on social networking sites, while all such data would be retained in a centralised database. Given that India currently lacks privacy legislation, such a system would mostly be unregulated and would pose major threats to our right to privacy and other human rights. Given that data would be centrally stored, the system would create a type of “honeypot” for centralised cyber attacks. Given that the centralised database would have massive volumes of data for literally a billion people, the probability of error in pattern and profile matching would be high - which could potentially result in innocent people being convicted for crimes they did not commit. Nonetheless, mass surveillance through the CMS is currently a reality in India.

And the even bigger question: How can law enforcement agencies mine the data of 1.2 billion people? How do they even carry out surveillance in practice? Well, that’s where surveillance technology companies come in. In fact, the surveillance industry in India is massively expanding - especially in light of its new surveillance schemes which require advanced and sophisticated technology. According to CIS ’ India Privacy Monitor Map - which is part of ongoing research - Indian law enforcement agencies use CCTV cameras in pretty much every single state in India. The map also shows that Unmanned Aerial Vehicles (UAVs), otherwise known as drones, are being used in most states in India and the DRDO ’s “Netra ” - which is a lightweight drone, not much bigger than a bird - is particularly noteworthy.

But Indian law enforcement agencies also buy surveillance software and hardware which is aimed at intercepting telecommunications and Internet communications. In particular, ClearTrail Technologies is an Indian company - based in Indore - which equips law enforcement agencies in India and around the world with surveillance software which can probably be compared with the “notorious” FinFisher. So in short, there appears to be a tight collaboration between Indian law enforcement agencies and the surveillance industry, which can be clearly depicted in the ISS surveillance trade shows, otherwise known as “the wiretappers’ ball”.

Corporate Surveillance

When I ask people about corporate surveillance, the answer I usually get is: “Corporations only care about their profit - they don’t do surveillance per se”. And while that may be true, David Lyon ’s definition of surveillance - as “any collection and processing of personal data, whether identifiable or not, for the purposes of influencing or managing those whose data have been garnered” - may indicate otherwise.

Corporations, like Google, Amazon and Facebook, may not have an agenda for spying per se, but they do collect massive volumes of personal data and, in cases such as PRISM, allow law enforcement to tap into their servers. Once law enforcement agencies get hold of data collected by companies, such as Facebook, they then use data mining software - equipped by various surveillance technology companies - to process and mine the data. And how do companies, like Google and Facebook, make money off our personal data? By selling it to big buyers, such as law enforcement agencies.

So while Facebook and all the ‘Facebooks’ of the world may not profit from surveillance per se, they do profit from collecting our personal data and selling it to third parties, which include law enforcement agencies. And David Lyon argues that surveillance involves the collection of personal data - which corporations, like Facebook, do - for the purpose of influencing and managing individuals. While this last point can probably be widely debated on, it is clear that corporations share their collected data with third parties, which ultimately leads to the influence or managing of individuals - directly or indirectly. In other words, the collection of personal data, in combination with its disclosure to third parties, is surveillance. So when we think about companies, like Google or Facebook, we should not just think of businesses interested in their profit - but also of spying agencies. After all, “if the product is free , you are the product ”.

Now if we look at online corporations more closely, we can probably identify three categories:

1. Websites through which we buy products and hand over our personal details - e.g. Amazon

2. Websites through which we use services and hand over our personal details - e.g. flight ticket

3. Websites through which we communicate and hand over our personal details - e.g. Facebook

And why could the above be considered “spying” at all? Because such corporations collect massive volumes of personal data and subsequently:

- Disclose such data to law enforcement agencies

- Allow law enforcement agencies to tap into their servers

- Sell such data to “third parties”

What’s notable about so-called corporate surveillance is that, in all cases, there is a mutual, key element: we consent to the handing over of our personal information. We are not forced to hand over our personal data when buying a book online, booking a flight ticket or using Facebook. Instead, we “choose” to hand over our personal data in exchange for a product or service. Now what significantly differentiates state surveillance to corporate surveillance is the factor of “choice”. While we may choose to hand over our most personal details to large online corporations, such as Google and Facebook, we do not have a choice when the government monitors our communications, collects and stores our personal data.

State Surveillance vs. Corporate Surveillance

Both Indian law enforcement agencies and corporations collect massive volumes of personal data. In fact, it is probably noteworthy to mention that Facebook, in particular, collects 20 times more data per day than the NSA in total. In addition, Facebook has claimed that it has received more demands from the US government for information about its users than from all other countries combined. In this sense, the corporate collection of personal data can potentially be more harmful than government surveillance, especially when law enforcement agencies are tapping into the servers of companies like Facebook. After all, the Indian government and all other governments would have very little data to analyse if it weren’t for such corporations.

Surveillance is not just about “spying” or about “watching people” - it’s about much much more. Observing people’s behaviour only really becomes harmful when the data observed is collected, retained, analysed, shared and disclosed to unauthorised third parties. In other words, surveillance is meaningful to examine because it involves the analysis of data, which in turn involves pattern matching and profiling, which can potentially have actual, real-world implications - good or bad. But such analysis cannot be possible without having access to large volumes of data - most of which belong to large corporations, like Facebook. The question, though, is: How do corporations collect such large volumes of personal data, which they subsequently share with law enforcement agencies? Simple: Because we “choose” to hand over our data!

Three years ago, when I was doing research on young people’s perspective of Facebook, all of the interviewees replied that they feel that they are in control of their personal data, because they “choose” what they share online. While this may appear to be a valid point, the “choice” factor can widely be debated on. There are many reasons why people “choose” to hand over their personal data, whether to buy a product, use a service, to communicate with peers or because they feel socially pressured into using social networking sites. Nonetheless, it all really comes down to one main reason: convenience. Today, in most cases, the reason why we hand over our personal data online in exchange for products or services is because it is simply more convenient to do so. And while that is understandable, at the same time we are exposing our data (and ultimately our lives) in the name of convenience.

The irony in all of this is that, while many people reacted to Snowden ’s revelations on NSA dragnet surveillance, most of these people probably have profiles on Facebook. Secret, warrantless government surveillance is undeniably intrusive, but in the end of the day, our profiles on Facebook - and on all the ‘Facebooks’ of the world - is what enabled it to begin with. In other words, if we didn’t choose to give up our personal data - especially without really knowing how it would be handled - large databases would not exist and the NSA - and all the ‘NSAs’ of the world - would have had a harder time gathering and analysing data.

In short, the main difference between state and corporate surveillance is that the first is imposed in a top-down manner by authorities, while the second is a result of our “choice” to give up our data. While many may argue that it’s worse to have control imposed on you, I strongly disagree. When control and surveillance are imposed on us in a top-down manner, it’s likely that we will perceive this - sooner or later - as a direct threat to our human rights, which means that it’s likely that we will resist to it at some point. People usually react to what they perceive as a direct threat, whereas they rarely react to what does not directly affect them. For example, one may perceive murder or suicide as a direct threat due the immediateness of its effect, whereas smoking may not be seen as an equally direct threat, because its consequences are indirect and can usually be seen in the long term. It’s somehow like that with surveillance.

University students have protested on the streets against the installation of CCTV cameras, but how many of them have profiles on social networking sites, such as Facebook? People may react to the installation of CCTV cameras, because it may appear as a direct threat to their right to privacy. However, the irony is that the real danger does not necessarily lie within some CCTV cameras, but rather within the profile of each person on a major commercial social networking site. At very best, a CCTV camera will capture some images of us and through that, track our location and possibly our acquaintances. What type of data is captured through a simple, “harmless” Facebook profile? The following probably only includes a tiny percentage of what is actually captured:

- Personal photos

- Biometrics (possibly through photos)

- Family members

- Friends and acquaintances

- Habits, hobbies and interests

- Location (through IP address)

- Places visited

- Economic standing (based on pictures, comments, etc.)

- Educational background

- Ideas and opinions (which may be political, religious, etc.)

- Activities

- Affiliations

The above list could potentially go on and on, probably depending on how much - or what type - of data is disclosed by the individual. The interesting element to this is that we can never really know how much data we are disclosing, even if we think we control it. While an individual may argue that he/she chooses to disclose an x amount of data, while retaining the rest, that individual may actually be disclosing a 10x amount of data. This may be the case because usually every bit of data hides lots of other bits of data, that we may not be aware of. It all really comes down to who is looking at our data, when and why.

For example, (fictional) Priya may choose to share on her Facebook profile (through photos, comments, or any other type of data) that she is female, Indian, a Harvard graduate and that her favourite book is “Anarchism and other Essays ” by Emma Goldman. At first glance, nothing appears to be “wrong” with what Priya is revealing and in fact, she appears to care about her privacy by not revealing “the most intimate details” of her life. Moreover, one could argue that there is absolutely nothing “incriminating” about her data and that, on the contrary, it just reflects that she is a “shiny star” from Harvard. However, I am not sure if a data analyst would be restricted to this data and if data analysis would show the same “sparkly” image.

In theory, the fact that Priya is an Indian who attended Harvard reveals another bit of information, that Priya did not choose to share: her economic standing. Given that the majority of Indians live below the line of poverty, there is a big probability that Priya belongs to India’s middle class - if not elite. Priya may not have intentionally shared this information, but it was indirectly revealed through the bits of data that she did reveal: female Indian and Harvard graduate. And while there may not be anything “incriminating” about the fact that she has a good economic standing, in India this usually means that there’s also some strong political affiliation. That brings us to her other bit of information, that her favourite author is a feminist, anarchist. While that may be viewed as indifferent information, it may be crucial depending on the specific political actors in the country she’s in and on the general political situation. If a data analyst were to map the data that Priya chose to share, along with all her friends and acquaintances that she inevitably has through Facebook, that data analyst could probably tell a story about her. And the concerning part is that that story may or may not be true. But that doesn’t really matter.

Today, governments don’t judge us and take decisions based on our version of our data, but based on what our data says about us. And perhaps, under certain political, social and economic circumstances, our “harmless” data could be more incriminating than what we think. While an individual may express strong political views within a democratic regime, if that political system were to change in the future and to become authoritarian, that individual would possibly be suspicious in the eyes of the government - to say the least. This is where data retention plays a significant role.

Most companies retain data indefinitely or for a long period of time, which means that future, potentially less-democratic governments may have access to it. And the worst part is that we can never really know what data is being held about us, because within data analysis, every bit of data may potentially entails various other bits of data that we are not even aware of. So, when we “choose” to hand over our data, we don’t necessarily know what or how much we are choosing to disclose. Thus, this is why I agree with Bruce Schneier’s argument that people have an illusionary sense of control over their personal data.

Social network analysis software is specifically designed to mine huge volumes of data that is collected through social networking sites, such as Facebook. Such software is specifically designed to profile individuals, to create “trees of communication” around them and to match patterns. In other words, this software tells a story about each and every one of us, based on our activities, interests, acquaintances, and all other data. And as mentioned before, such a story may or may not be true.

In data mining, behavioural statistics are being used to analyse our data and to predict how we are likely to behave. When applied to national databases, this may potentially amount to predicting how masses or groups within the public are likely to behave and to subsequently control them. If a data analyst can predict an individual’s future behaviour - with some probability - based on that individuals’ data, the same could potentially occur on a mass, public level. As such, the danger within surveillance - especially corporate surveillance through which we voluntarily disclose massive amounts of data about ourselves - is that it appears to come down to public control.

According to security expert Bruce Schneier, data today is a byproduct of the Information Society. Unlike an Orwellian totalitarian state where surveillance is imposed in a top-down manner, surveillance today appears to widely exist because we indirectly choose and enable it (by handing over our data to online companies), rather than it being imposed on us in a solely top-down manner. However, contemporary surveillance may potentially be far worse than that described in Orwell’s “1984”, because surveillance is publicly perceived to be an indirect threat - if considered to be a threat at all. It is more likely that people will resist a direct threat, than an indirect threat, which means that the possibility of mass violations of human rights as a result of surveillance is real.

Hannah Arendt argued that a main prerequisite and component of totalitarian power is support by the masses. Today, surveillance appears to be socially integrated within societies which indicates that contemporary power fueled by surveillance has mass support. While the argument that surveillance is being socially integrated can potentially be widely debated on and requires an entire in depth research of its own, few simple facts might be adequate to prove it at this stage. Firstly, CCTV cameras are installed in most countries, yet there has been very little resistance - on the contrary, there appears to be a type of universal acceptance on the grounds of security. Secondly, different types of spy products exist in the market - such as Spy Coca Cola cans - which can be purchased by anyone online. Thirdly, countries all over the world carry out controversial surveillance schemes - such as the Central Monitoring System in India - yet public resistance to such projects is limited. And while one may argue that the above cases don’t necessarily prove that surveillance is being socially integrated, it would be interesting to look at a fourth fact: most people who have Internet access choose to share their personal data through the use of social networking sites.

Reality shows, such as Big Brother, which broadcast the surveillance of people’s lives and present it as a form of entertainment - when actually, I think it should be worrisome - appear to enable the social integration of surveillance. The very fact that we all probably - or, hopefully - know that Facebook can share our personal data with unauthorised third parties and - now, after the Snowden revelations - that governments can tap into Facebook’s servers, should be enough to convince us to delete our profiles. Yet, why do we still all have Facebook profiles? Perhaps because surveillance is socially integrated and perhaps because it is just convenient to be on Facebook. But that doesn’t change the fact that surveillance can potentially be a threat to our human rights. It just means that we perceive surveillance as an indirect threat and that we are unlikely to react to it.

In the long term, what does this mean? Well, it seems like we will probably be more acceptive towards more authoritarian power, that we will be used to the idea of censoring our own thoughts and actions (in the fear of getting caught by the CCTV camera on the street or the spyware which may or may not be implanted in our laptop) and that ultimately, we will be less politically active and more reluctant to challenge the authority.

What’s particularly interesting though about surveillance today is that it is fueled and enabled through our freedom of speech and general Internet freedom. If we didn’t have any Internet freedom - or as much as we do - we would have disclosed less personal data and thus surveillance would probably have been more restricted. The more Internet freedom we have, the more personal data we will disclose on Facebook - and on all the ‘Facebooks’ of the world - and the more data will potentially be available to mine, analyse, share and generally incorporate in the surveillance regime. So in this sense, Internet freedom appears to be a type of prerequisite of surveillance, as contradictory and ironic as it may seem. No wonder why the Chinese government has gone the extra mile in creating the Chinese versions of Facebook and Twitter - it’s probably no coincidence.

While we may blame governments for establishing surveillance schemes, ISP and TSP operators for complying with governments’ license agreements which often mandate that they create backdoors for spying on us and security companies for creating the surveillance gear in the first place, in the end of the day, we are all equally a part of this mess. If we didn’t choose to hand over our personal data to begin with, none of the above would have been possible.

The real danger in the Digital Age is not necessarily surveillance per se, but our choice to voluntarily disclose our personal data.

For more details visit https://cis-india.org/internet-governance/blog/why-facebook-is-more-dangerous-than-the-government-spying-on-you

Security and Surveillance – Optimizing Security while Safeguarding Human Rights

elonnai — 2015-02-13T02:41:46Z

The Centre for Internet and Society (CIS) on December 19, 2014 held a talk on “Security and Surveillance – Optimizing Security while Safeguarding Human Rights.

The talk focused on a project that is being undertaken by CIS in collaboration with Privacy International, UK. Initiated in 2014, the project seeks to study the regulatory side of surveillance and related technologies in the Indian context. The main objective of the project is to initiate dialogue on surveillance and security in India, government regulation, and the processes that go into the same. The talk saw enthusiastic participation from civil society members, policy advisors on technology, and engineering students.

During the event it was highlighted that requirements of judicial authorization, transparency and proportionality are currently lacking in the legal regime for surveillance in India and at the same time India has a strong system of ‘security’ that service providers must adhere to – which works towards enhancing cyber security in the country.

Discussions played out with regard to how most of the nine intelligence agencies that are authorized to intercept information in India are outside the ambit of parliamentary oversight, the RTI and the CAG, making them virtually unaccountable to the Indian public.

Another conversation focused on the sharing of information between various intelligence agencies within the country, and the fact that this area is virtually unregulated. The discussion then steered to cyber-security in general, emerging technologies used by the Government of India for surveillance, cooperative agreements for surveillance technologies that India has with other countries, the export and import of such technologies from India, and most importantly, the role of service providers in the surveillance debate, and the regulations they are subject to.

A common theme seemed to be emerging from the discussion was that the agencies responsible for regulating information interception and surveillance in the country are shockingly unaccountable to the Indian public. As an active civil society member noted today - “There is no oversight/monitoring of the agencies themselves, so there’s no way anyone would even know of how many instances of surveillance or unauthorized interception have actually occurred.”

The talk successfully concluded with inputs from members of the audience, and a broad consensus on the fact that the Government of India would have to adhere to stronger regulatory standards, harmonized surveillance standards, stronger export and import certification standards, etc., in order to make surveillance in India more transparent and accountable. As was stated at the talk, “We don’t have a problem with the concept of surveillance per se, - it has more to do with its problematic implementation”.

For more details visit https://cis-india.org/internet-governance/blog/security-and-surveillance-optimizing-security-while-safeguarding-human-rights

Open Governance and Privacy in a Post-Snowden World : Webinar

vanya — 2015-10-04T11:09:12Z

On 10th September 2015, the OGP Support Unit, the Open Government Guide, and the World Bank held a webinar on “Open Governance and Privacy in a Post-Snowden World” presented by Carly Nyst, Independent consultant and former Legal Director of Privacy International and Javier Ruiz, Policy Director of Open Rights Group. This is a summary of the key issues that were discussed by the speakers and the participants.

See Open Governance and Privacy in a Post-Snowden World

Summary

The webinar discussed how Government surveillance has become an important and key issue in the 21^st century, thanks to Edward Snowden. The main concern raised was with respect to what a democracy should look like in the present day. Should the states’ use of technology enable state surveillance or an open government? Typically, there is a balance that must be achieved between the privacy of an individual and the security of the state – particularly as the former is primarily about social rights and collective interest of citizens.

At the international level, the right to privacy has been recognized as a basic human right and an enabler of other individual freedoms. This right encapsulates protection of personal data where citizens have the authority to choose whether to share or reveal their personal data or not. Due to technological advancement that has enabled collection, storage and sharing of personal data, the right to privacy and data protection frameworks have become of utmost importance and relevance with regard to open government efforts. Therefore, it is important for Governments to be transparent in handling sensitive data that they collect and use.

Many countries have also introduced laws to balance the right to privacy and right to information. The role of the private sector and NGOs involved in enabling an open and transparent government must also be duly addressed at a national level.

Key Questions:

Why should the government release information?

There are multiple reasons for doing so including:

For the purposes of research and public policy (which relates to healthcare, social issues, economics, national statistics, census, etc.)

Transparency and accountability (politicians, registers, public expenses, subsidies, fraud, court records, education)

Public participation and public services (budgets, anti-corruption, engagement, and e-governance).

However, all these have certain risks and privacy implications:

Risk of identification of individual: Any individual whose information is released has the risk of identification, followed by issues like identity theft, discrimination, stigmatization or repression. Normally, the solution for this would be anonymization of the data; however, this is not an absolute solution. Privacy laws can generally cope with such risks, but with pseudonymous data it becomes difficult in preventing identification.
Profiling of social categories which can lead to discrimination: In such a situation, policies and other legislations regulating the use of data and providing remedy for violations can help.
Exploitation and unfair/unethical use of information: When understanding the potential exploitation of information it is useful to consider who is going to benefit from the release of information. For example, in UK, with respect to release of Health Data, the main concern is that people and companies will benefit commercially from the information released, despite of the result potentially being improved drugs and treatment.

What are the Solutions?

The webinar also discussed potential solutions to the questions and challenges posed. For example, when commitments of Open Government Data Partnership are considered, privacy legislations must also be proposed. Further, key stakeholders must make commitments to take pro-active measures to reduce informational asymmetries between the state and citizens. To reduce the risks, measures must be taken to publish what information the State has or what the Government knows about the citizens. For example, in UK, within the civil society network, it is being duly considered in the national plan that the government will publicize how it will share data and have a centralized view on the process of information handling and usage of the data.

The Open Government Guide provides for Illustrative Commitments like enactment of data protection legislation, establishing programmes for awareness and assessment of their impact, giving citizens control of their personal information and the right to redress when that information is misused, etc.

Surveillance

The issue of surveillance and the role of privacy in an open government context was also discussed. The need for creating a balance between the legitimate interest of national security and the privacy of individuals was emphasized. With the rise of digital technologies, many governmental measures pertaining to surveillance intervene in individual privacy. There are many forms of surveillance and this has serious privacy implications, especially in developing countries. For example:

Communications surveillance
Visual surveillance
Travel surveillance

This raises the question: When is surveillance legitimate and when must it be allowed?

The International Principles on the Application of Human Rights to Communications Surveillance acts as a soft law and tries to set out what a good surveillance system looks like by ensuring that governments are in compliance with international human rights law.

In essence surveillance does not violate privacy, however, there must be a clear and foreseeable legal framework laying circumstances when the government has the power to collect data and when individuals might be able to foresee when they might be under surveillance.

Also, a competent judicial authority must be established to oversee surveillance and keep a check on executive power by placing restrictions on privacy invasions. The actions of the government must be proportionate and the benefits must not outweigh harm caused by surveillance.

Role of openness in a “mass surveillance” state

Surveillance measures that are being undertaken by governments are increasingly secretive. The European court of Human Rights has held that Secret surveillance may undermine democracy under the cloak of protecting it. Hence, open government and openness will work towards protecting privacy and not undermining it.

To balance the measure of government surveillance with privacy, there is a need to publish laws regulating such powers; publish transparency reports about surveillance, interception and access to communications data; reform legislations relating to surveillance by state agencies to ensure it complies with human rights and establish safeguards to ensure that new technologies used for surveillance and interception respect the right to privacy.

Conclusion

The conclusion one can draw is that Privacy concerns have gained importance in today’s data driven world. The main question that needs to be answered is whether Government’s should adopt surveillance measures or adopt an Open Government?

Considering equal importance of national security and privacy of individuals, it is required that a balance must be crafted between the two. This could be possibly done by enacting foreseeable and clear laws outlining scope of surveillance by the Government on one hand, and informing citizens about such measures on the other. Establishment of a competent judicial authority to keep a check on Government actions is also suggested to work out the delicate balance between surveillance and privacy.

For more details visit https://cis-india.org/internet-governance/blog/open-governance-and-privacy-in-a-post-snowden-world-webinar

Paranoid about state surveillance? Here’s the FD Guide to living in the age of snoops

Admin — 2017-12-16T13:38:46Z

The US does it, so does China. Ever since Edward Snowden’s revelations back in 2013, which exposed the extent of the US’s global surveillance apparatus, the public has been fairly clued into the extent of mass surveillance.

The blog post by Sriram Sharma was published in Factor Daily on December 12, 2017

It doesn’t take a conspiracy theorist to worry that India does it (or wants to), too, especially with the high decibel campaigns by banks, telecom service providers and others to have Indians link Aadhaar, the unique citizen ID, to multiple services.

If you want a dystopian picture of the future of surveillance, look no further than China, considered the world’s worst abuser of internet freedom for the third year in a row, according to the new Freedom House, a US-based NGO that conducts research and analysis on the internet. With a score of 87/100 (higher is worse), the Chinese state is renowned for its Great Firewall, which filters access to the wider internet. “Digital activism has declined amid growing legal and technical restrictions as well as heavy prison sentences against prominent civil society figures,” the latest Freedom House report notes.

India is rated “Partly Free” with a score of 41/100 (lower is better) in Freedom House’s 2017 report on internet freedom

While it’s a long way away from China, India scores 41/100 on Internet Freedom in 2017 but is still considered only ‘partly free’ owing to blocking of internet and telecom service providers in Kashmir and detainment of citizens for expressing their views online. The India report from Freedom House highlights Aadhaar’s mandatory linking for a wide range of schemes and records concerns regarding its privacy and security implications.

In this guide, we take a look at the why, what and how of India’s surveillance apparatus, the legal provisions in the Indian constitution that enables them, ask domain experts to provide us with tips on living in an age of state surveillance. We also take a look at a variety of widely used tools and apps that help you countering state surveillance or tracking of any kind.

Know your Big Brother: India’s State Surveillance Programs

Right to privacy organisation Privacy International has a detailed dossier on the state of privacy in India, which examines India’s surveillance schemes, laws around interception and access, and central intelligence agencies that carry out surveillance. Apart from the state police and the army, surveillance is carried out at least 16 different intelligence agencies, it notes.

The Centre for Internet and Society (CIS) and Software Freedom Law Centre (SFLC) have done extensive research in the past on India’s surveillance apparatus. Earlier this year, CIS reported on the various programs and tech infrastructure behind India’s surveillance state: these include Central Monitoring System (CMS), National Intelligence Grid (NATGRID), Network Traffic Analysis System (NETRA), etc. An earlier CIS report highlights a boom in surveillance tech in India following the 26/11 terror attacks in Mumbai.

Based on an RTI (Right to Information) filing, SFLC’s 2014 report on India’s Surveillance State reveals that around 7,500 to 9,000 telephone interception orders are issued by the central government alone each month. State surveillance of citizens’ private communications is authorised by laws that let them monitor phone calls, texts, e-mails and Internet activity on a number of broadly worded grounds such as such as ‘security of the state’, ‘defence of India’, and ‘public safety’.

The Government of India is also known to said to work with private third parties, some of which go so far as to infect target devices using malicious software to extract information on the subject. A 2013 Citizen Lab report titled ‘The Commercialisation of Digital Spying’ found command and control servers (used to control the host system) for FinFisher (a remote computer monitoring software suite) in India. A Wikileaks expose in 2015 dumped over a million emails belonging to Italian surveillance malware vendor HackingTeam. The emails revealed how India’s top intelligence agencies and the government expressed interest in buying Hacking Team’s malware interception tools.

Fears of an Aadhaar Surveillance State

Thejesh G N, an infoactivist wrote in FactorDaily about Hyderabad’s surveillance hub, which wants to collect all manner of details. Aadhaar is one of the primary keys to matching profiles with external data sources, he notes.

A look at data points gathered by Hyderabad’s Integrated Information Hub

“The end product shows on a map where you live, what you consume, did you take PDS, move to some other place, your mobile number, gender… there’s a lot of data in the hands of the very lowest level of government, which doesn’t have any protection as by a parliamentary committee or anything like that. It’s run by bureaucrats, so that has huge implications,” he says. “If you see Citizen Four (a 2014 documentary about Edward Snowden), it shows a similar system, where you enter one’s SSN, and it shows everything you have done, and are planning to do. We are building the same system…Governments change, today we might have a good government, tomorrow we might have the worst possible government on the planet.”

Pranesh Prakash, Policy Director of CIS says he doesn’t regard Aadhaar as a surveillance project. “I see Aadhaar as something that can facilitate surveillance, but by and of itself, it isn’t surveillance,” he says, adding that it does so in a non-consensual manner. “By having Aadhaar numbers across multiple databases, you make surveillance easier. But you need to tie it up to a surveillance system. For instance, Aadhaar without NATGRID isn’t surveillance, but Aadhaar with NATGRID can be helpful for surveillance.” NATGRID (National Intelligence Grid) was first proposed in late 2009 following 26/11 attacks by the Union Home Minister, to enhance India’s counter-terror capabilities. It links 21 citizen databases for access to intelligence/enforcement agencies.

Ongrid’s website earlier had this visualisation depicting its verification service, which made privacy advocates cringe. Source: Twitter.

We discussed some worst-case scenarios around the commercial use of Aadhaar and India Stack companies with Thejesh. “Let’s say there’s a screening company and they have your Aadhaar ID. They will send it to Airtel, or Vodafone, and ask for a list of all the websites you have viewed. Maybe you’ve watched porn or something, at some point in your life, and that could hurt your employment,” he says.

Curbing your data exhaust

The EFF (Electronic Frontier Foundation) has published a number of useful articles and resources for countering internet surveillance. Recommendations include using end-to-end encryption through tools such as OTR (a messaging protocol available on Adium), PGP (to exchange secure emails), and Signal (messenger).

Other useful tips:

Use VPNs

VPNs (virtual private networks) use encryption protocols and secure tunneling techniques to keep your internet activity impervious to snooping. With a VPN, you can bypass ISP restrictions on blocked websites or access services (Spotify) not available in your country, making it appear that you are browsing from another part of the world. Keep in mind that you can still be outed by your VPN provider, so it’s important to choose one that respects your privacy. There are hundreds of VPN service providers to choose from, That One Privacy Guy maintains a detailed comparison chart of over a hundred VPN providers, with details on jurisdiction, price, ethics, logging policies, VPN protocols supported, and more. Out of these, the country that the VPN provider is based in is a key filter: you don’t want to choose a VPN service based out of the ‘14 eyes‘, as they are known to do mass surveillance.

Use TOR

Tor, an acronym for ‘The Onion Router’, is a free app that lets you anonymise your online communication by directing a web browser’s traffic through a volunteer-run network of thousands of servers. It is funded by the US-based National Science Foundation, Mozilla, and Open Technology Fund, among others. Tor is available for download on Windows, Mac, Linux, and Android.

Browsing on Tor can be far slower than a regular web browser, but it keeps you anonymous.

Encrypt your storage

It’s now a default feature on your phone, or computer, so there’s no reason why you shouldn’t make use of it. To check if it is turned on in Windows 10, Go to Settings > System > About, and look for a “Device encryption” setting at the bottom of the About tab. Keep in mind that you need to sign into Windows with a Microsoft account to enable this setting, so it’s likely that the NSA or FBI might be able to bypass it.

On a Mac, you turn on full-disk encryption through FileVault, accessible in > System Preferences > Security & Privacy.

On an iPhone, data protection is enabled once you set up a passcode on your device.

Android 5.0 and above devices support full-disk encryption. If it isn’t turned on by default on your device, you can turn on encryption under the Security menu.

Sensitive documents can also be encrypted using TrueCrypt. Though you must keep in mind that key disclosure laws apply in India, under the Section 69 of the Information Technology Act, which states that there’s a seven-year prison sentence for failing to assist the central and state governments in decrypting information on a computer resource.

Use an air-gapped PC

An air-gapped PC is one that is not connected to the internet or to any computers that are connected to the internet. Air-gapped PCs are typically used when handling critical infrastructure, and this is an extreme measure one can take when working with sensitive data that you don’t want to be leaked.

Use HTTPS everywhere

HTTPS Everywhere offers plugins for Firefox, Chrome, and Opera, and turns every link you open or key in, to a secure version of the HTTP protocol, which is encrypted by Transport Layer Security (TLS). The tool protects you from eavesdropping or tampering with the site you are visiting, but only works on sites that support HTTPS. Keep in mind that this tool won’t conceal the sites you have accessed from eavesdroppers but it won’t reveal the specific URL that you visited.

Turn on Advanced Protection in Gmail

If you trust Gmail with your data, take the relationship to the next level with Advanced Protection, which safeguards your account against phishing attacks, limits access to trusted apps, and adds extra verification features to block fraudulent account access. You will need a Bluetooth key and a USB key to turn this feature on.

Some other don’ts

Don’t leave any cameras open. Tape them up if you are a potential surveillance target.
Don’t use freemium apps, which trade in your privacy. A recent example of a worst-case scenario.
Don’t send any data via free email services that you would like to keep private.
Don’t use Google or Facebook, as Snowden says, if you value your privacy. Don’t take our word for it.

As for Aadhaar, Thejesh says that there isn’t much one can do as it is forcibly linked to many essential services. He recommends using different email ids for official work and unofficial work. “Use one email ID for Aadhaar and mobile related accounts, and use the other one for regular communication. It separates the accounts from surveillance and adds a layer of security,” he says. “Don’t use Aadhaar until is necessary. If you use Aadhaar and you are not in a mood to resist everything, then don’t use it where it is not required. Don’t use it like a regular address proof,” he adds.

If you are already an Aadhaar holder, it makes sense to use the biometric locking system provided by UIDAI on its website to protect against identity theft and unauthorised access. The biometric locking feature sends an OTP code to your registered mobile number to unlock or disable the locking system.

If someone is concerned about surveillance, CIS’s Prakash recommends not having a cell phone. “The cellphone is the single largest means of data gathering about you,” he says.

Surveillance can take many forms: it can be physical or off-the-air surveillance (an interception technique used to snoop on phone calls), he points out.

A CCTV camera fitted on top of a Hyderabad Police vehicle

Surveillance is not always bad: medical surveillance, for instance, an entire field around the spread of diseases, is necessary, Prakash clarifies. “Even state surveillance for national security purposes is absolutely necessary. A nation-state can’t survive without surveillance so I am quite clear that those who oppose all forms of surveillance are opposing all kinds of rights – because you can’t have rights without security. And indeed, individual security is a human right guaranteed under the Universal Declaration of Human Rights and guaranteed in Article 21 of the Indian Constitution. Without security of the person, you can’t have the right to freedom of speech, you can’t enjoy the right to privacy… If you’re in a state of war or in a state of terror, then you can’t enjoy rights – so clearly for me, surveillance is necessary,” he says.

That said, surveillance in India is highly problematic as the laws and the democratic framework for surveillance is very weak, and enforcement of that framework is even worse, Prakash adds. “One of the best ways of countering surveillance, I would suggest, is to actually demand a democratic framework for surveillance in India. Demand that your MLA and MP take up this issue at the state and central level… and that we have a democratic framework for both our intelligence agencies and for all the surveillance that is conducted by the state in India,” he says.

He calls everything else – “the technological stuff, using anonymising networks, end-to-end encryption” – a second order issue. “It can help you as an individual, but it doesn’t help us as a society.”

For more details visit https://cis-india.org/internet-governance/news/factor-daily-sriram-sharma-december-12-2017-paranoid-about-state-surveillance-here-s-the-fd-guide-to-living-in-the-age-of-snoops

What India can Learn from the Snowden Revelations

elonnai — 2013-10-25T07:29:57Z

Big Brother is watching, across cyberspace and international borders. Meanwhile, the Indian government has few safeguards in theory and fewer in practice. There’s no telling how prevalent or extensive Indian surveillance really is.

The title of the article was changed in the version published by Yahoo on October 23, 2013.

Since the ‘Snowden revelations’, which uncovered the United States government’s massive global surveillance through the PRISM program, there have been reactions aplenty to their impact.

The Snowden revelations highlighted the issue of human rights in the context of the existing cross-border and jurisdictional nightmare: the data of foreign citizens surveilled and harvested by agencies such as the National Security Agency through programs such as PRISM are not subject to protection found in the laws of the country. Thus, the US government has the right to access and use the data, but has no responsibility in terms of how the data will be used or respecting the rights of the people from whom the data was harvested.

The Snowden revelations demonstrated that the biggest global surveillance efforts are now being conducted by democratically elected governments – institutions of the people, by the people, for the people – that are increasingly becoming suspicious of all people.

Adding irony to this worrying trend, Snowden sought asylum from many of the most repressive regimes: this dynamic speaks to the state of society today. The Snowden revelations also demonstrate how government surveillance is shifting from targeted surveillance, warranted for a specific reason and towards a specified individual, to blanket surveillance where security agencies monitor and filter massive amounts of information.

This is happening with few checks and balances for cross-border and domestic surveillance in place, and even fewer forms of redress for the individual. This is true for many governments, including India.

India’s reaction

After the first news of the Snowden revelations, the Indian Supreme Court agreed to hear a Public Interest Litigation requesting that foreign companies that shared the information with US security agencies be held accountable for the disclosure. In response to the PIL, the Supreme Court stated it did not have jurisdiction over the US government.

The response of the Supreme Court of India demonstrates the potency of jurisdiction in today’s global information economy in the context of governmental surveillance. Despite being upset at the actions of America’s National Security Agency (NSA), there is little direct legal action that any government or individual can take against the US government or companies incorporated there.

In the PIL, the demand that companies be held responsible is interesting and representative of a global debate, as it implies that in the context of governmental surveillance, companies have a responsibility to actively evaluate and reject or accept governmental surveillance requests. Although I do not disagree with this as a principle, in reality, this evaluation is a difficult step for companies to take.

For example, in India, under Section 69 of the Information Technology Act, 2000, service providers are penalized with up to seven years in prison for non-compliance with a governmental request for surveillance. The incentives for companies to actually reject governmental requests are minimal, but one factor that could possibly push companies to become more pronounced in their resistance to installing backdoors for the government and complying with governmental surveillance requests is market pressure from consumers.

To a certain extent, this has already started to happen. Companies such as Facebook, Yahoo and Google have created ‘transparency reports’ that provide – at different granularities – information about governmental requests and the company’s compliance or rejection of the same.

In India, P. Rajeev, Member of Parliament from Kerala, has started a petition asking that the companies disclose information on Indian data given to US security agencies. Although transparency by complying companies does not translate directly into regulation of surveillance, it allows the customer to make informed choices and decide whether a company’s level of compliance with governmental requests will impact his/her use of that service.

The PIL also called for the establishment of Indian servers to protect the privacy of Indian data. This solution has been voiced by many, including government officials. Though the creation of domestic servers would ensure that the US government does not have direct and unfettered access to Indian data, as it would require that foreign governments access Indian information through a formal Mutual Legal Assistance Treaty process, it does not necessarily enhance the privacy of Indian data.

As a note, India has MLAT treaties with 34 countries. If domestic servers were established, the information would be subject to Indian laws and regulations.

Snooping

The Snowden Revelations are not the first instance to spark a discussion on domestic servers by the Government of India.

For example, in the back-and-forth between the Indian government and the Canadian company RIM, now BlackBerry, the company eventually set up servers in Mumbai and provided a lawful interception solution that satisfied the Indian government. The Indian government made similar demands from Skype and Google. In these instances, the domestic servers were meant to facilitate greater surveillance by Indian law enforcement agencies.

Currently in India there are a number of ways in which the government can legally track data online and offline. For example, the interception of telephonic communications is regulated by the Indian Telegraph Act, 1885, and relies on an order from the Secretary to the Ministry of Home Affairs. Interception, decryption, and monitoring of digital communications are governed by Section 69 of the Information Technology Act, 2000 and again rely on the order of the executive.

The collection and monitoring of traffic data is governed by Section 69B of the Information Technology Act and relies on the order of the Secretary to the government of India in the Department of Information Technology. Access to stored data, on the other hand, is regulated by Section 91 of the Code of Criminal Procedure and permits access on the authorization of an officer in charge of a police station.

The gaps in the Indian surveillance regime are many and begin with a lack of enforcement and harmonization of existing safeguards and protocols. Presently, India is in the process of realizing a privacy legislation.

In 2012, a committee chaired by Justice AP Shah (of which the Center for Internet and Society was a member) wrote The Report of the Group of Experts on Privacy, which laid out nine national privacy principles meant to be applied to different legislation and sectors – including Indian provisions on surveillance.

The creation of domestic servers is just one example of how the Indian government has been seeking greater access to information flowing within its borders. New requirements for Indian service providers and the creation of projects that go beyond the legal limits of governmental surveillance in India enable greater access to details about an individual on a real-time and blanket basis.

For example, telecoms in India are now required to include user location data as part of the ‘call detail record’ and be able to provide the same to law enforcement agencies on request under provisions in the Unified Access Service and Internet Service Provider Licenses.

At the same time, the Government of India is in the process of putting in place a Central Monitoring System that would provide Indian security agencies the ability to directly intercept communications, bypassing the service provider.

Even if the Central Monitoring System were to adhere to the legal safeguards and procedures defined under the Indian Telegraph Act and Information Technology Act, the system can only do so partially, as both provisions create a clear chain of custody that the government and service providers must follow – that is, the service provider was included as an integral component of the interception process.

If the Indian government implements the Central Monitoring System, it could remove governmental surveillance completely from the public eye. Bypassing the service provider allows the government to fully determine how much the public knows about surveillance. It also removes the market and any pressure that consumers could exert from insight provided by companies on the surveillance requests that they are facing.

Though the Indian government could (and should) be transparent about the amount and type of surveillance it is undertaking, currently there is no legal requirement for the government of India to disclose this information, and security agencies are exempt from the Right to Information Act. Thus, unless India has a Snowden somewhere in the apparatus, the Indian public cannot hope to get an idea of how prevalent or extensive Indian surveillance really is.

Policy vacuum

For any government, the surveillance of its citizens, to some degree, might be necessary. But the Snowden revelations demonstrate that there is a vacuum when it comes to surveillance policy and practices. This vacuum has permitted draconian measures of surveillance to take place and created an environment of mistrust between citizens and governments across the globe.

When governments undertake surveillance, it is critical that the purpose, necessity and legality of monitoring, and the use of the material collected are built into the regime to ensure it does not violate the human rights of the people surveilled, foreign or domestic.

In 2013, the International Principles on the Application of Human Rights to Communications Surveillance were drafted, in part, to address this vacuum. The principles seek to explain how international human rights law applies to surveillance of communications in the current digital and technological environment. They define safeguards to ensure that human rights are protected and upheld when governments undertake surveillance of communications.

When the Indian surveillance regime is measured against these principles, it appears to miss a number of them, and does not fully meet several others. In the context of surveillance projects like the Central Monitoring System, and in order to avoid an Indian version of the PRISM program, India should take into consideration the safeguards defined in the principles and strengthen its surveillance regime to ensure not only the protection of human rights in the context of surveillance, but to also establish trust in its surveillance regime and practices with other countries.

Elonnai Hickok is the Program Manager for Internet Governance at the Centre for Internet and Society, and leads its research on privacy.

For more details visit https://cis-india.org/internet-governance/blog/yahoo-october-23-2013-what-india-can-learn-from-snowden-revelations

Big Democracy: Big Surveillance - A talk by Maria Xynou

maria — 2013-12-12T10:23:21Z

Next Tuesday, Maria Xynou will be presenting her latest research on surveillance in India. Come and engage in a discussion on India's controversial surveillance schemes, surveillance industry and much much more!

And so we've heard a lot about the Edward Snowden leaks and about the NSA's controversial mass surveillance projects. But what's happening in India?

It turns out that the world's largest democracy has some of the most controversial surveillance schemes in the world! Some of India's laws, schemes, projects and technologies are unbeatable when it comes to mass surveillance, censorship and control. While India may be a developing country with issues ranging from poverty to corruption, it nonetheless appears to be at the forefront of surveillance on an international level.

Join us at the Centre for Internet and Society (CIS) on 3rd December 2013 to hear about India's surveillance laws, schemes and technologies and to engage in a discussion on the potential implications. All that is required is an open mind, critical thought and a will to challenge that which has not been challenged!

We look forward to seeing you all and to hearing your thoughts, ideas and opinions!

VIDEO

For more details visit https://cis-india.org/internet-governance/events/big-democracy-big-surveillance-a-talk-by-maria-xynou

State Surveillance and Human Rights Camp

praskrishna — 2012-12-21T07:19:55Z

A two-day conference was held in Rio on December 13 and 14 at Sheraton Rio Hotel & Resort. Elonnai Hickok participated in the event and made a presentation on MLATS and International Cooperation for Law Enforcement Purposes.

Click here to see the Wiki page of the event. See Elonnai's presentation here [PDF, 313 Kb].

DAY 1: Mapping Out Government Surveillance Problems

8:30 - 9:00 Registration

9:00 - 9:10 Welcome/Introduction

Katitza Rodriguez, Electronic Frontier Foundation [Peru, ES]

Simultaneous interpretation from Spanish to English and Portuguese.

Plenary: Kinds of Data, Ways of Getting It

09:10 - 10:30

Chair: Enrique Chaparro, Fundacion Via Libre [Argentina, ES]

Metadata, online identifiers, and technologies of surveillance

Seth Schoen, Electronic Frontier Foundation [United States, EN]

Simultaneous interpretation from English to Spanish and Portuguese.

Surveillance is getting easier and cheaper for many reasons, not least because people are using electronic communications more than ever before, and there are so many facts out there to be noticed about the ways devices are talking to each other.
I will talk about the kinds of things that refer to people and their devices, with a particular focus on telecommunications metadata and transactional records that are described as "non-content" and may receive lower levels of legal protection. I'll discuss who is in a position to record this information, some of the things that can be learned from it, and why traffic analysis is powerful and difficult to defend against.
I'll try to explain concepts like MAC address, IP address, account name and number, telephone number, IMEI, IMSI, transient identifiers, log files, transactional records, locational privacy, and associational privacy.

How law enforcement agencies use cell phone location tracking technology in criminal cases

Hanni Fakhoury, Electronic Frontier Foundation [United States, EN]

With the rise of smartphones, the U.S. government's use of cell site location data to pinpoint our exact location has grown more widespread (and precise) over time. For years, U.S. courts permitted the government to get this location data without a search warrant under a tortured interpretation of federal electronic privacy statutes and an even more alarming constitutional argument: that we don't have any privacy in data we turn over to third parties, like cell phone companies. This talk will review what location data is and why the police want it, how they can get it under U.S. law, and legal and practical steps that need to be taken to safeguard our privacy.

Simultaneous interpretation from English to Spanish and Portuguese.

Deep packet inspection: What it is, how it works, and how it is used for surveillance

Chris Parsons, Doctoral Candidate, University of Victoria [Canada, EN]

Simultaneous interpretation from English to Spanish and Portuguese.

We are in the midst of a standardization revolution, a mass translation of discordant analogue signal types to interoperable digital transmission standards. All this digitized consumer traffic passes through the gateways of Internet Service Providers’ (ISPs). ISPs function as communicative bottlenecks, ideally positioning them to monitor, mine, and modify data using the Deep Packet Inspection (DPI) appliances situated within their networks. Some uses of these appliances could reshape the conditions of communication in democracies, blocking or modifying data transmissions in near real time.
In this presentation I discuss the technical capabilities of deep packet inspection and its significance for increased private and public surveillance capabilities. Drawing from case material from academic and advocacy work, I identify how the technology has been used for ISP-level surveillance, for copyright purposes, for national security purposes, and for advertising purposes. Moreover, I address how advocates in differing nations have opposed various uses of the technology, why they have done so, and conditions that facilitate domestic resistance to deep packet inspections' uses.

Advances in online spying: Commercial surveillance software, targeted hacking and beyond

Morgan Marquis-Boire, Google [New Zealand, EN]

Eva Galperin, Electronic Frontier Foundation [United States, EN]

Simultaneous interpretation from English to Spanish and Portuguese.

Against an increasingly security-aware online community, the traditional tools of blocking, filtering, and wiretapping have become less effective. Nervous regimes turn to the largely unregulated $5 billion a year industry in Internet surveillance tools.
Once the realm of the black market and intelligence agencies, the latest computer spyware is now sold at trade shows for dictator pocket change.
This talk will detail the cat and mouse game between authoritarian regimes and dissidents, as well as ongoing efforts to map out the relationship between surveillance software companies and governments.

10:30 - 10:40 Coffee Break

Workshops: Round I

10:40 - 11:50

Format: Interactive sessions with active participat0ion from the audience.

Workshop 1: Mobile privacy threats

This workshop addresses the ways governments are tracking mobile devices’ location and use, and why it’s been harder to protect communications privacy on mobile devices than on PCs.

Facilitators:
Hanni Fakhoury, Electronic Frontier Foundation [United States, EN]
Seth Schoen, Electronic Frontier Foundation [United States, EN/PT]

Rapporteur:
Enrique Chaparro, Fundación Vía Libre [Argentina, EN/ES]

Workshop 2: Training activists about state surveillance capabilities

In this workshop we’ll talk about some of new surveillance technologies that states are deploying, and the tactics that are used to legitimize the surveillance.
Going beyond just ‘what is used and how’, we speak to some political tactics that advocates have used to resist these tools on practical and principled levels, some of the conditions that contribute to successes, and ways of mobilizing effective strategies against expansions of state surveillance.

Facilitator:
Chris Parsons, University of Victoria [Canada, EN]

Rapporteur:
Katarzyna Szymielewicz, European Digital Rights [Poland, EN]

Workshop 3: Tactics for opposing state sponsored malware and surveillance

This workshop will review the different tactics government and non-government actors have employed to stop authoritarian regimes from making use of surveillance technology built in the United States and Europe to spy on their citizens.
We will discuss corporate responsibility, export controls, as well as the role of security research and user education campaigns. The workshop will end with a brainstorm of at least one concrete action each workshop attendee can take.

Facilitators:

Eva Galperin, Electronic Frontier Foundation [United States, EN]
Morgan Marquis-Boire [New Zealand, EN]

Rapporteur:
Silvio Rhatto, Sarava Group [Brazil, PT]

Reporting Back Session

11:50 - 12:40 Chair:

Katitza Rodriguez, Electronic Frontier Foundation [Peru, ES]

Rapporteurs:
Enrique Chaparro, Fundación Vía Libre [Argentina, EN/ES]
Katarzyna Szymielewicz, European Digital Rights [Poland, EN]

Report: Training Activists about State Surveillance Capabilities

Silvio Rhatto, Sarava Group [Brazil, PT]

Format: Each rapporteur has 10 minutes to report back about the results of their workshop discussion and 20 minutes to answer questions.

12:40 - 2:00 Lunch

Legal and Policy Plenary: Government Access to People’s Data

2:00 - 3:20

Chair: Pedro Paranaguá, Advisor for Internet Policy to the Workers’ Party in the Brazilian Chamber of Deputies [Brazil, PT/EN]

Different data, different rules? How the law has assigned varying levels of privacy protection to different categories of personal information

Kevin Bankston, Center for Democracy and Technology [United States, EN]

Using the example of US law, this presentation will map the different legal protections that have traditionally been applied to different types surveillance of different types of data, and consider how to redraw that map in light of new technologies.
Speaking generally, US surveillance law has been written based on the assumptions that: (1) surveillance of data on your computer is more invasive than access to your data in the cloud;(2) real-time surveillance is more invasive than access to stored data; (3) surveillance of the content of communications is more invasive than surveillance of non-content meta-data; (4) surveillance of newer communications is more invasive than surveillance of older communications.
These assumptions have long defined which types of surveillance are most strongly regulated against and which types of data are most strongly protected by law. Changing technology has made these assumptions about invasiveness and privacy increasingly obsolete, assuming that they ever made sense at all. But if these distinctions are outdated, what if any legal distinctions between different types of surveillance or data should replace them? How, if at all, can the law sensibly distinguish between personal communications and communications data in which we have a reasonable expectation of privacy, and that which we do not?

Simultaneous interpretation from English to Spanish and Portuguese.

Internet companies as an agent of the state & european mandatory telecommunications data retention

Katarzyna Szymielewicz, European Digital Rights [Poland, EN]

In this short presentation I will introduce European (i.e. based on EU legislation) regime of mandatory retention of telecommunication data for law enforcement purposes, explaining its political context, implementation and negative impact on human rights standards (not just privacy-related!).
Using case studies of Poland and Germany I will present two strikingly different approaches to storing telecommunication data and law enforcement, thus questioning the necessity and proportionality of this controversial measure. I will also touch briefly on pending political developments (including the revision of the Data Retention Directive and the reform of data protection law in the EU), explaining what the stakes are, what European civil society organisations are fighting for and why it is such an important fight. Finally, I will explain how the debate about mandatory data retention feeds into a broader discussion about the role of Internet intermediaries, including both their independence from political pressure and protection of their clients from surveillance executed by “private police.”

Simultaneous interpretation from English to Spanish and Portuguese.

Crossborder access to citizen's data and cloud computing in the investigation of criminal cases: Regional trends

Marcos Salt, profesor de derecho penal y procesal penal de la universidad de Buenos Aires (UBA) [Argentina, ES]

During the brief presentation, I will present practical examples of the problems caused by the application by analogy of the rules on physical evidence to obtain digital evidence.
I try to show that this trend is inconvenient to both for efficiency in the investigation of crimes by the state as to the validity of individual rights. I will place special reference to cross-border access to citizen's data in the cloud.

Simultaneous interpretation from Spanish to English and Portuguese.

Background on lawful interception mandates and government access to encryption keys

Seth Schoen, Electronic Frontier Foundation [United States, EN]

Simultaneous interpretation from English to Spanish and Portuguese.

In this session, I'll discuss some of the history of fights over government surveillance powers and government access in the United States, starting in the early 1990s and continuing to the present day. These issues have centered on three main themes: restrictions on cryptography and privacy tools, obligations for communications intermediaries to acquire and implement surveillance capabilities, and mandatory retention of telecommunications data.
One interesting point is that many of the same themes keep recurring: the powers that the government is seeking today are often similar to those it sought two decades ago.
Another interesting point is that the government has not always been successful in expanding its surveillance powers. Many of its proposals never became law and there are still plenty of issues left to fight over. But governments around the world are continuing to having a major effect on the design of technology, getting wiretapping interfaces and backdoors added to communications systems and discouraging deployments of strong encryption.

MLATS and International Cooperation for Law Enforcement Purposes

Elonnai Hickok, Center for Internet & Society India [India, EN]

In this session I will be looking at the challenges, requisite safeguards, and possible solutions in the context of international cooperation for fighting crime. In doing so I will look closely at the proposed principle of safeguards for international cooperation.
The objective of this session will be to explore ways of improving MLATS and international law enforcement cooperation in order to ensure that basic safeguards can be built into the process of international cooperation.

Simultaneous interpretation from English to Spanish and Portuguese.

Format: 10-15 minutes for each five speakers to introduce legal issues and 20 minutes of discussions

3:10 - 3:20 Coffee Break

Workshops: Round II

3:20 - 4:30

Workshop 1: Electronic surveillance demonstrations

In this workshop, we'll take a look at a few electronic surveillance devices (including an ordinary laptop) and look at some of what they can intercept. Technological infrastructure permitting, we may have a live demonstration of intercepting or modifying users' Internet communications.
We'll also consider low-cost surveillance techniques and discuss what kinds of demonstrations have the most pedagogical value for making users aware of particular threats.

Facilitator:
Seth Schoen, Electronic Frontier Foundation [United States, EN]

Rapporteur:
Eva Galperin, Electronic Frontier Foundation [United States, EN/ES/PT]

Simultaneous interpretation from English to Spanish and Portuguese.

Workshop 2: Legal framework regarding compelled disclosure of communications, subscriber information, and cryptographic keys

In this workshop we will cover various examples of compelled disclosure of private information (from subscriber information and content of communication to cryptographic keys) in the context of law enforcement, focusing on their legal aspects. We will briefly present various legal frameworks, discussing both the examples of legal safeguards (“good practices”) and their shortcomings that allow for government surveillance.
We will also look at various human rights implications of these measures and (potential / existing) role of private companies from the perspective of their compliance with such measures (incl. when requested by non-democratic regimes).

Facilitators:
Katarzyna Szymielewicz, European Digital Rights [Poland, EN]
Elonnai Hickok, Center for Internet & Society India [India, EN]

Rapporteur:
Hanni Fakhoury, Electronic Frontier Foundation [United States, EN]

Workshop 3: What data is most private? What surveillance is most invasive? How if at all should laws treat them differently?

This workshop will build on the discussion that began in the law & policy plenary, discussing how certain surveillance laws have applied different legal protections to different types of data and surveillance, and questioning whether such distinctions make sense in light of new technology.
The workshop will address that question from legal, personal, and political perspectives. Participants will share with each other details of how the laws in their countries treat different types of data and different types of surveillance, to facilitate shared understanding of the existing legal frameworks and to identify existing gaps and discrepancies in current legal protections.
Based on their own personal experiences as Internet users and as advocates, participants will then discuss what data in their lives they consider most private and what types of surveillance they find most invasive, and reflect on how if at all the law should distinguish between them. Finally, participants will discuss the politics of these different frameworks: both how gaps and weaknesses in existing frameworks threaten the ability of advocates to politically organize in the face of government surveillance, and how we can best work through the political process and change those frameworks to better reflect current technology and human rights norms.

Facilitators:
Kevin Bankston, Center for Democracy and Technology [United States, EN]
Danilo Doneda, Fundação Getúlio Vargas [Brazil, PT/EN]

Rapporteur:
Beatriz Busaniche, Fundación Vía Libre [Argentina, ES]

Reporting Back Session & Closing Meeting Day 1

4:30 - 5:20

Chair:
Katitza Rodriguez, Electronic Frontier Foundation [Peru, ES]

Rapporteurs:
Eva Galperin, Electronic Frontier Foundation [United States, EN/ES/PT]

Report: Demonstrating Surveillance

Hanni Fakhoury, Electronic Frontier Foundation [United States, EN]

Report: Compelled Disclosure of Communications, Subscriber Information & Cryptographic Keys

Beatriz Busaniche, Fundación Vía Libre [Argentina, ES]

Report: What Data is Most Private? What Surveillance is Most Invasive? Should Laws Treat Different Data Differently?

8:30 pm Dinner

DAY 2: Challenges and Mapping Out Possible Solutions
8:55 - 9:00 Welcome

Plenary: Surveillance in Latin America
9:00 - 10:20

Chair: Camila Marques, Lawyer, ARTIGO 19 [Brazil, PT]

Surveillance in Colombia
Carlos Eduardo Huertas, Semana [Colombia, ES]

Surveillance in Cuba
“Mario Hernandez” [Cuba, ES]

Surveillance in the Northern Triangle
Renata Avila, Global Voices [Guatemala, ES]

Surveillance in Peru
Yonsi Solis, Global Voices [Peru, ES]

Surveillance in Mexico
Caracol Azul, [Mexico, ES]
This session will have simultaneous interpretation from Spanish to English and Portuguese

Keynote: Challenges Posed By Electronic Surveillance

10:20 - 10:40
Frank La Rue, United Nations Special Rapporteur on Freedom of Expression [Guatemala, ES]
Increasing pressure (legal and political) on private parties to help carry out the state’s surveillance mandate.

Simultaneous interpretation from Spanish to English and Portuguese

10:40 - 11:00 Coffee Break

Plenary: International Surveillance & Human Rights Principles: Challenges and Opportunities in Latin America

11:00 - 11:50

Chair: Carly Nyst, Privacy International [Australia/UK, EN]
Simultaneous interpretation from English to Spanish and Portuguese.

Explanation of the Principles: Background, purpose, need, challenges and opportunities

Chilean and Latin American perspectives

Alberto Cerda, Derechos Digitales [Chile, ES]
Simultaneous interpretation from Spanish to English and Portuguese

Expansion of Brazilian law enforcement powers to access users’ digital information

Pablo Ortellado, GPOPAI [Brasil, PT/EN]
Simultaneous interpretation from Portuguese to Spanish and English

Surveillance and regional human rights standards

Juan Camilo Rivera, Comisión Colombiana de Juristas [Colombia, ES]
Simultaneous interpretation from Spanish to English and Portuguese

Workshops: Round III

11:50 - 1:00

Workshop 1: International surveillance and human rights principles: Perspectives from Latin America

Facilitator:
Alberto Cerda, Derechos Digitales [ES] & Carly Nyst, Privacy International [UK, EN]

Rapporteur:
Juan Camilo Rivera, Comisión Colombiana de Juristas [Colombia, ES]

Workshop 2: Technical community activism
What is the technology community doing to defend privacy?

Facilitators:

Enrique Chaparro, Fundación Vía Libre [Argentina, ES ]
João Carlos Caribé, Movimento Mega (aka Mega Não) [Brazil, PT/EN]

Rapporteur:
Eva Galperin, Electronic Frontier Foundation [USA, EN]

Plenary: Hands-on Activism

2:40 - 3:50 p.m.

Chair: Rebecca Bowe, Electronic Frontier Foundation [United States, EN]

Simultaneous interpretation from English to Spanish and Portuguese.

What is meant by Hands-On Activism? As you’ll learn from our panelists, there are many strategies that can be utilized to push back against a surveillance practice or proposal. We’ll cover the most effective ways to obtain public records; strategies for generating interest in digital rights issues; fresh and extraordinary approaches to creative campaigning, and tactics used by an international nonprofit to tackle privacy issues with online campaigns.

Raising digital awareness in Peru

Marco Sifuentes, Instituto Prensa y Sociedad [Peru, ES]

Peru has a very active and influential online community. It can affect the course of elections, prove the president wrong and stop law projects. It can work very well on "real world" matters. But when it comes to online issues, it's been hard to raise awareness on the Peruvian general public and even on the media. What went wrong? However, in the past year, some digital topics have received a lot of coverage. Some not. What changed? I’ll share Peru's experience in the hope that every participant can compare it with his or her own country's situation.

Online organizing for human rights

Fabiola Carrion, Access [Peru, ES/EN]

A recent addition to the Access Team, Fabiola will begin her presentation by talking about her own experiences in organizing and advocacy, arguing that the struggle for human rights is increasingly moving online. She will discuss new tools of organizing, and the importance of combining technology, policy, and grassroots advocacy tactics to affect holistic change in internet policy debates. Her presentation will include a series of short case studies from around the world where Access, along with its various allies, have successfully campaigned for a free and open internet. Her presentation will conclude with a discussion of lessons learned and best practices for online organizing, particularly around issues of surveillance and due process.

Surveillance and secrecy: Strategy and tactics - Using the law to uncover abuse of LEAs’ surveillance powers

Geoff King, Lawyer [United States, EN]

Open government laws, though riddled with exemptions, are powerful tools for shedding light on the governmental operations. One way in which these laws can be used is to uncover the existence of law enforcement surveillance, as well details about the tools used to achieve such surveillance. This portion of the presentation will explore how journalists and activists can employ successful transparency strategies in the face of various procedural pitfalls. It will also give concrete examples of how such strategies have paid off in the recent past.
Presentation Materials

Creative campaigning: tactical media mashup
Vladan Joler, Share Foundation [Serbia, EN]

Explore the beautiful world of tactical media as a creative tool for getting your message out there.
From creative campaigning during Serbian protests in the 90s to “lo fi” media interventions, protests inside computer games, media pranks and parasite media tactics to social media bots and Twitter bombs.
Presentation Materials

Simultaneous interpretation from English to Spanish and Portuguese Return to Top

3:50 - 4:10 Coffee Break

Workshops: Round IV

4:10 - 5:10

Workshop 1: What the international surveillance and human rights principles are asking the governments to do?

This session will be used to call out exactly what the International Surveillance and Human Rights Principles are asking governments to change or legislative/policy actions they are asking governments to take. This will hopefully be useful in helping individuals and organizations understand what aspects to highlight and push when proposing the principles and why.

Facilitators:

Katitza Rodriguez, Electronic Frontier Foundation [Peru, ES]
Elonnai Hickok, Center for Internet & Society India [India, EN]

Rapporteur:
Graciela Selaimen, NUPEF [Brasil, EN/ES/PT]

Workshop 2: Creative campaigning: tactical media mashup & anti-surveillance campaigns

What are activists around the world doing to counter surveillance proposals and practices? And what could they be doing, with just a little more knowledge and inspiration? At this session, workshop facilitators will share stories about successful campaigns launched around the world in response to government surveillance. How did a humorous Twitter hashtag about a proponent of surveillance legislation rise to “trending” status on Twitter? How did a small team of digital rights activists in Argentina manage to position themselves as one of the most trusted media sources on issues relating to privacy in the digital realm? How did a small group of activists manage to reach biggest world media and how are activists creating their own media? We’ll then open it up for a group discussion in which participants can share their own stories of effective tactics from around the world, and explore ideas for collaborating and harnessing the knowledge gleaned from our collective experiences.

Facilitators:

Rebecca Bowe, Electronic Frontier Foundation [United States, EN]
Vladan Joler, Share Foundation [Serbia, EN]

Rapporteur:
Hisham Almiraat, Global Voices Advocacy [Morocco, EN]

Reporting Back Session & Closing Remarks

5:10 - 6:00

Chair:
Katitza Rodriguez, Electronic Frontier Foundation [Peru, ES]

Rapporteurs:
Graciela Selaimen, NUPEF [Brasil, EN/ES/PT]

Renzo Lavin, Asociación Civil por la Igualdad y la Justicia [Argentina, ES]
Hisham Almiraat, Global Voices Advocacy [Morocco, EN]

Each breakout session will have one designated rapporteur, one note-taker, and a module to work around.

For more details visit https://cis-india.org/news/state-surveillance-and-human-rights-camp

CIS Supports the UN Resolution on “The Right to Privacy in the Digital age”.

elonnai — 2013-11-30T07:25:18Z

The United Nations adopted the resolution on the right to privacy recently. It recognised privacy as a human right, integral to the right to free expression, and also declared that mass surveillance could have negative impacts on human rights.

On November 26, 2013, the United Nations adopted a non-binding resolution on The Right to Privacy in the Digital Age. The resolution was drafted by Brazil and Germany and expressed concern over the negative impact of surveillance and interception on the exercise of human rights. The resolution was controversial as countries such as the US, the UK, and Canada opposed language that spoke to the right to privacy extending equally to citizens and non-citizens of a country. The resolution welcomed the report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression that examined the implications of surveillance of communications on the human rights of privacy and freedom of expression.

The resolution made a number of important statements that India, as a member of the United Nations, and as a country in the process of implementing a number of surveillance projects, like the Central Monitoring System, should take cognizance of, including in short:

Privacy is a human right: Privacy is a human right according to which no one should be subjected to arbitrary or unlawful interference with his or her privacy, family, home, or correspondence.
Privacy is integral to the right to free expression: an integral component in recognizing the right to freedom of expression.
Unlawful and arbitrary surveillance violates the right to privacy and freedom of expression: Unlawful and/or arbitrary surveillance, interception, and collection of personal data are intrusive acts that violate the right to privacy and freedom of expression.
Exceptions to privacy and freedom of expression should be in compliance with human rights law: Public security is a potential exception justifying collection and protection of information, but States must ensure that this is done fully in compliance with international human rights law.
Mass surveillance may have negative implications for human rights: Domestic and extraterritorial surveillance, interception, and the collection of personal data on a mass scale may have a negative impact on individual human rights.
Equal protection for online and offline privacy: The right to privacy must be equally protected online and offline.

The resolution further called upon states to:

Respect and protect the right to privacy, particularly in the context of digital communications.
To ensure that relevant legislation is in compliance with international human rights law
To review national procedures and practices around surveillance to ensure full and effective implementation of obligations under international human rights law.
To establish and maintain effective domestic oversight mechanisms around domestic surveillance capable of ensuring transparency and accountability.

The resolution finally calls upon the UN High Commissioner for Human Rights to present a report with views and recommendations on the protection and promotion of the right to privacy in the context of surveillance to the Human Rights Council at its twenty-seventh session and to the General Assembly at its sixty-ninth session and decides to examine “Human rights questions, including alternative approaches for improving the effective enjoyment of human rights and fundamental freedoms”.

The UN Resolution on the Right to Privacy in the Digital Age is a welcome step towards an international recognition of privacy as a human right in the context of communications and extra territorial surveillance. The Centre for Internet and Society encourages the Government of India to, as called upon in the Resolution, to review national procedures and practices around surveillance to ensure full and effective implementation of obligations under international human rights law.

Prior to the UN Resolution on “The Right to Privacy in the Digital Age”, a group of international NGO’s developed the Necessary and Proportionate principles that seek to form a backbone for a response to mass surveillance and provide a framework for governments to assess if domestic surveillance regimes are in compliance with international Human Rights Law. CIS has contributed to the process of developing these principles. The principles include legality, legitimate aim, necessity, adequacy, proportionality, competent judicial authority, due process, user notification, transparency, public oversight, integrity of communications and systems, safeguards for international cooperation, and safeguards against illegitimate access. A petition to sign onto the principles and demand an end to mass surveillance is currently underway.

Both the Government of India and public of India should take into consideration the UN Resolution and the necessary and proportionate principles to reflect on how India’s surveillance regime and practices can be brought in line with international human rights law and understand where the balance is drawn for necessary and proportionate surveillance, specific to the Indian context.

For more details visit https://cis-india.org/internet-governance/blog/cis-supports-the-un-resolution-on-201cthe-right-to-privacy-in-the-digital-age201d

Models for Surveillance and Interception of Communications Worldwide

bedaavyasa — 2014-07-10T07:50:08Z

This is an evaluation of laws and practices governing surveillance and interception of communications in 9 countries. The countries evaluated represent a diverse spectrum not only in terms of their global economic standing but also their intrusive surveillance capabilities. The analysis is limited to the procedural standards followed by these countries for authorising surveillance and provisions for resolving interception related disputes.

Sl. No.	Country	Legislation	Model
1.	Australia	Telecommunications (Interceptions and Access) Act, 1979 Governs interception of communications Relevant provisions: S. 3, 7, 6A, 34, 46 Surveillance Devices Act, 2004 Establishes procedure for obtaining warrants and for use of surveillance devices Relevant Provisions: S.13, 14	Authorisation for surveillance is granted in the form of a warrant from a Judge or a nominated member of the Administrative Appeals Tribunal The warrant issuing authority must be satisfied that information obtained through interception shall assist in the investigation of a serious crime The Acts provide a list of prescribed offences for which interception of communication may be authorized The Acts also specify certain federal and state law enforcement agencies that may undertake surveillance
2.	Brazil	Federal Law No. 9,296, 1996: Regulates wiretapping	Authorisation for interception is granted on a Judge’s order for a period of 15 days at a time Interception is only allowed for investigations into serious offences like drug smuggling, corruption murder and kidnapping
3.	Canada	Criminal Code, 1985 Governs general rules of criminal procedure including search and seizure protocols Relevant Provision: §§ 184.2, 184.4	Grants power to intercept communication by obtaining authorisation from a provincial court judge or a judge of the superior court Before granting his authorisation, the judge must be satisfied that either the originator of the communication or the recipient thereof has given his/her consent to the interception Under exceptional circumstances, however, a police officer owing to the exigency of the situation may intercept communication without prior authorisation
4.	France	*Loi d'orientation et de programmation pour la performance de la sécurité intérieure* (LOPPSI 2), 2011: Authorises use of video surveillance and interception of communications Relevant Provisions: Article 36 *Loi de Programmation Militaire* (LPM), 2013: Authorises surveillance for protection of national security and prevention of terrorism	Interception of communication under LOPPSI 2 requires previous authorization from an investigating Judge after consultation with the Public Prosecutor Such authorization is granted for a period of 4 months which is further extendable by another 4 months Interception of communication under LPM does not require prior sanction from an investigating judge and is instead provided by the Prime Minister’s office Information that can be intercepted under LPM includes not only metadata but also content and geolocation services
5.	Germany	Gesetz zur Beschränkung des Brief-, Post und Fernmeldegeheimnisses (G10 Act), 2001 Imposes restrictions on the right to privacy and authorizes surveillance for protecting freedom and democratic order, preventing terrorism and illegal drug trade Relevant Provisions: §3 The German Code of Criminal Procedure (StPO), 2002 Lays down search and seizure protocol and authorizes interception of telecommunications for criminal prosecutions Relevant Provisions: §§ 97, 100a	Authorises warrantless surveillance by specific German agencies like the Bundesnachrichtendienst (Federal Intelligence Service) Lays down procedure that must be followed while undertaking surveillance and intercepting communications Authorises sharing of intercepted intelligence for criminal prosecutions Mandates ex post notification to persons whose privacy has been violated but no judicial remedies are available to such persons The Code of Criminal Procedure authorises interception of communication of a person suspected of being involved in a serious offence only on the order of a court upon application by the public prosecution office
6.	Pakistan	Pakistan Telecommunications Reorganisation Act, 1996: Controls the flow of false and fabricated information and protects national security Relevant Provisions: § 54 Investigation for Fair Trial Act, 2013: Regulates the powers of law enforcement and intelligence agencies regarding covert surveillance and interception of communications Relevant Provisions: §§ 6,7, 8, 9	Authorisation for interception is provided by the federal government. No formal legal structure to monitor surveillance exists Interception can be authorized in the interest of national security and on the apprehension of any offence Requests for filtering and blocking of content are routed through the Inter-Ministerial Committee for the Evaluation of Websites, a confidential regulatory body Under the Fair Trial Act, interception can only be authorised on application to the Fedral Minister for Interior who shall then permit the application to be placed before a High Court Judge The warrant shall be issued by a judge only on his satisfaction that interception will aid in the collection of evidence and that a reasonable threat of the commission of a scheduled offence exists
7.	South Africa	The Regulation of Interception of Communications and Provision of Communication-related Information Act, 2002 Regulates and authorizes monitoring and interception of telecommunications services Relevant Provisions: §§ 16, 22	Warrant for intercepting communications and installing surveillance devices is granted by a designated judge The warrant is issued on satisfaction of the judge that the investigation relates to a serious offence or that the information gathering is vital to public health or safety, national security or compelling national economic interests
8.	United Kingdom	Regulation of Investigatory Powers Act, 2000: Authorises interception of communications and surveillance Relevant Provisions: §§ 5, 6, 65	Authorisation for interception is granted in the form of a warrant by the Secretary of State or in certain special cases by a ‘senior officer’ Communications can be intercepted only it is necessary to do so in the interest of national security or for the purpose of preventing and detecting serious crimes Complaints of alleged illegal surveillance are heard by the Investigatory Powers Tribunal
9.	United States	Electronic Communications Privacy Act, 1986 (Title III, Omnibus Crime Control and Safe Streets Act) Governs authorisation for wiretapping and interception Relevant Provisions: §18	Authorisation for interception can be granted by a district court or federal appeals court on application by a law enforcement officer duly signed by the attorney general Application mandates obtaining the information through a service provider before invading upon individual’s privacy

For more details visit https://cis-india.org/internet-governance/blog/models-for-surveillance-and-interception-of-communications-worldwide

First Privacy and Surveillance Roundtable

anandini — 2014-08-09T04:13:50Z

The Privacy and Surveillance Roundtables are a CIS initiative, in partnership with the Cellular Operators Association of India (COAI), as well as local partners. From June 2014 – November 2014, CIS and COAI will host seven Privacy and Surveillance Roundtable discussions across multiple cities in India. The Roundtables will be closed-door deliberations involving multiple stakeholders.

Through the course of these discussions we aim to deliberate upon the current legal framework for surveillance in India, and discuss possible frameworks for surveillance in India. The provisions of the draft CIS Privacy Bill 2013, the International Principles on the Application of Human Rights to Communication Surveillance, and the Report of the Group of Experts on Privacy will be used as background material and entry points into the discussion. The recommendations and dialogue from each roundtable will be compiled and submitted to the Department of Personnel and Training.

The first of seven proposed roundtable meetings on “Privacy and Surveillance” conducted by the Centre for Internet and Society in collaboration with the Cellular Operators Association of India and the Council for Fair Business Practices was held in Mumbai on the 28th of June, 2014.

The roundtable’s discussion centered on the Draft Privacy Protection Bill formed by CIS in 2013, which contains provisions on the regulation of interception and surveillance and its implications on individual privacy. Other background documents to the event included the Report of the Group of Experts on Privacy, and the International Principles on the Application of Human Rights to Communications Surveillance.

Background and Context

The Chair of the Roundtable began by giving a brief background of Surveillance regulation in India, focusing its scope to primarily telegraphic, postal and electronic surveillance.

Why a surveillance regime now?

A move to review the existing privacy laws in India came in the wake of Indo-EU Fair Trade Agreement negotiations; where a Data Adequacy Assessment conducted by European Commission found India’s data protection policies and practices inadequate for India to be granted EU secure status. The EU’s data protection regime is in contrast, fairly strong, governed by the framework of the EU Data Protection Directive, 1995.

In response to this, the Department of Personnel and Training, which drafted the Right to Information Act of 2005 and the Whistleblower’s Protection Act, 2011 was given the task of forming a Privacy Bill. Although the initial draft of the Bill was made available to the public, as per reports, the Second draft of the Bill has been shared selectively with certain security agencies and not with service providers or the public.

Discussion

The Chair began the discussion by posing certain preliminary questions to the Roundtable:

What should a surveillance law contain and how should it function?
If the system is warrant based, who would be competent to execute it?
Can any government department be allowed a surveillance request?

A larger question posed was whether the concerns and questions posed above would be irrelevant with the possible enforcement of a Central Monitoring System in the near future? As per reports, the Central Monitoring System would allow the government to intercept communications independently without using service providers and thus, in effect, shielding such information from the public entirely.

The CIS Privacy Protection Bill’s Regulatory Mechanism

The discussion then focused on the type of regulatory mechanism that a privacy and surveillance regime in India should have in place. The participants did not find favour in either a quasi-judicial body or a self-regulatory system – instead opting for a strict regulatory regime.

The CIS Draft Privacy Protection Bill proposes a regime that consists of a Data Protection Regulation Authority that is similar to the Telecom Regulatory Authority of India, including the provision for an appellate body. The Bill envisions that the Authority will act as an adjudicating body for all complaints relating to the handling of personal data in addition to forming and reviewing rules on personal data protection.

Although, the Draft Bill dealt with privacy and surveillance under one regulatory authority, the Chair proposes a division between the two frameworks, as the former is governed primarily by civil law, and the latter is regulated by criminal law and procedure. Though in a 2014 leaked version of the governments Privacy Bill, surveillance and privacy are addressed under one regulation, as per reports, the Department of Personnel and Training is also considering creating two separate regulations: one for data protection and one for surveillance.

Authorities in Other Jurisdictions

The discussion then moved to comparing the regulatory authorities within other jurisdictions and the procedures followed by them. The focus was largely on the United States and the United Kingdom, which have marked differences in their privacy and surveillance systems.

In the United Kingdom, for example, a surveillance order is reviewed by an Independent Commissioner followed by an Appellate Tribunal, which has the power to award compensation. In contrast, the United States follows a far less transparent system which governs foreigners and citizens under separate legislations. A secret court was set up under the FISA, an independent review process, however, exists for such orders within this framework.

The Authority for Authorizing Surveillance in India

The authority for regulating requests for interceptions of communication under the Draft CIS Privacy Protection Bill is a magistrate. As per the procedure, an authorised officer must approach the Magistrate for approval of a warrant for surveillance. Two participants felt that a Magistrate is not the appropriate authority to regulate surveillance requests as it would mean vesting power in a few people, who are not elected via a democratic process.

In the present regime, the regulation of interception of telecommunications under Indian Law is governed by the Telegraph Act,1885 and the Telegraph Rules,1951. Section 5(2) of the Act and Rule 419A of the Telegraph Rules, permit interception only after an order of approval from the Home Secretary of the Union Government or of the State Governments, which in urgent cases, can be granted by an officer of the Joint Secretary Level or above of the Ministry of Home Affairs of the Union or that State’s Government.

Although most participants felt confident that a judicial authority rather than an executive authority would serve as the best platform for regulating surveillance, there was debate on what level of a Magistrate Judge would be apt for receiving and authorizing surveillance requests - or whether the judge should be a Magistrate at all. Certain participants felt that even District Magistrates would not have the competence and knowledge to adjudicate on these matters. The possibility of making High Court Judges the authorities responsible for authorizing surveillance requests was also suggested. To this suggestion participants noted that there are not enough High Court judges for such a system as of now.

The next issue raised was whether the judges of the surveillance system should be independent or not, and if the orders of the Courts are to be kept secret, would this then compromise the independence of such regulators. As part of this discussion, questions were raised about the procedures under the Foreign Intelligence Surveillance Act, the US regulation governing the surveillance of foreign individuals, and if such secrecy could be afforded in India. During the discussions, certain stakeholders felt that a system of surveillance regulation in India should be kept secret in the interests of national security. Others highlighted that this is the existing practice in India giving the example of the Intelligence Bureau and Research and Analysis Wing orders which are completely private, adding however, that none of these surveillance regulations in India have provisions on disclosure.

When can interception of communications take place?

The interception of communications under the CIS Privacy Protection Bill is governed by the submission of a report by an authorised officer to a Magistrate who issues a warrant for such surveillance. Under the relevant provision, the threshold for warranting surveillance is suspicious conduct. Several participants felt that the term ‘suspicious conduct’ was too wide and discretionary to justify the interception of communication and suggested a far higher threshold for surveillance. Citing the Amar Singh Case, a participant stated that a good way to ensure ‘raise the bar’ and avoid frivolous interception requests would be to require officers submitting interception request to issue affidavits. A participant suggested that authorising officers could be held responsible for issuing frivolous interception requests. Some participants agreed, but felt that there is a need for a higher and stronger standard for interception before provisions are made for penalising an officer. As part of this discussion, a stakeholder added that the term “person” i.e. the subject of surveillance needed definition within the Bill.

The discussion then moved to comparing other jurisdictions’ thresholds on permitting surveillance. The Chair explained here that the US follows the rule of probable cause, which is where a reasonable suspicion exists, coupled with circumstances that could prove such a suspicion true. The UK follows the standard of ‘reasonable suspicion’, a comparatively lesser degree of strength than probable cause. In India, the standard for telephonic interception under the Telegraph Act 1885 is the “occurrence of any public emergency or in the interest of public safety” on the satisfaction of the Home Secretary/Administrative Officer.

The participants, while rejecting the standard of ‘suspicious conduct’ and agreeing that a stronger threshold was needed, were unable to offer other possible alternatives.

Multiple warrants, Storing and sharing of Information by Governmental Agencies

The provision for interception in the CIS Privacy Protection Bill stipulates that a request for surveillance should be accompanied by warrants previously issued with respect to that individual. The recovery of prior warrants suggests the sharing of information of surveillance warrants across multiple governmental agencies which certain participants agree, could prevent the duplication of warrants.

Participants briefly discussed how the Central Monitoring System will allow for a permanent log of all surveillance activities to be recorded and stored, and the privacy implications of this. It was noted that as per reports, the hardware purported to be used for interception by the CMS is Israeli, and is designed to store a log of all metadata.

A participant stated that automation component of the Centralized Monitoring System may be positive considering that authentication of requests i.e. tracing the source of the interception may be made easier with such a system.

Conditions prior to issuing warrant

The CIS Privacy Protect Bill states that a Magistrate should be satisfied of either. A reasonable threat to national security, defence or public order; or a cognisable offence, the prevention, investigation or prosecution of which is necessary in the public interest. When discussing these standards, certain participants felt that the inclusion of ‘cognizable offences’ was too broad, whereas others suggested that the offences would necessarily require an interception to be conducted should be listed. This led to further discussion on what kind of categorisation should be followed and whether there would be any requirement for disclosure when the list is narrowed down to graver and serious offences.

The chair also posed the question as to whether the term ‘national security’ should elaborated upon, highlighting the lack of a definition in spite of two landmark Supreme Court judgments on national security legislations, Terrorist and Disruptive Activities Act,1985 and the Prevention of Terrorism Act, i.e. Kartar Singh v Union of India [1] and PUCL v Union of India.[2]

Kinds of information and degree of control

The discussion then focused on the kinds of information that can be intercepted and collected. A crucial distinction was made here, between content data and metadata, the former being the content of the communication itself and the latter being information about the communication. As per Indian law, only content data is regulated and not meta-data. On whether a warrant should be issued by a Magistrate in his chambers or in camera, most participants agreed that in chambers was the better alternative. However, under the CIS Privacy Protection Bill, in chamber proceedings have been made optional, which stakeholders agreed should be discretionary depending on the case and its sensitivity.

Evidentiary Value

The foundation of this discussion, the Chair noted, is the evidentiary value given to information collected from interception of communications. For instance, the United States follows the exclusionary rule, also known as the “fruit of the poisonous tree rule”, where evidence collected from an improper investigation discredits the evidence itself as well as further evidence found on the basis of it.

Indian courts however, allow for the admission of evidence collected through improper collection, as does the UK. In Malkani v State of Maharashtra[3] the Supreme Court stated that an electronically recorded conversation can be admissible as evidence, and stated that evidence collected from an improper investigation can be relied upon for the discovery of further evidence - thereby negating the application of the exclusionary rule.

Emergent Circumstances: who should the authority be?

The next question posed to the participants was who the apt authority would be to allow surveillance in emergent circumstances. The CIS Privacy Protection Bill places this power with the Home Secretary, stating that if the Home Secretary is satisfied of a grave threat to national security, defence or public order, he can permit surveillance. The existing law under the Telegraph Act 1885 uses the term ‘unavoidable circumstance’, though not elaborating on what this amounts to for such situations, where an officer not below the rank of a Joint Secretary evaluates the request. In response to this question, a stakeholder suggested that the issuing authority should be limited to the police and administrative services alone. In the CIS Privacy Protection Bill - a review committee for such decisions relating to interception is comprised of senior administrative officials both at the Central and State Government level. A participant suggested that the review committee should also include the Defence secretary and the Home secretary.

Sharing of Information

The CIS Privacy Protection Bill states that information gathered from surveillance should not be shared be shared amongst persons, with the exception that if the information is sensitive in terms of national security or prejudicing an investigation, an authorised officer can share the information with an authorised officer of any other competent organisation.

A participant highlighted that this provision is lacking an authority for determining the sharing of information. Another participant noted that the sharing of information should be limited amongst certain governmental agencies, rather than to ‘any competent organisation.’

Proposals for Telecommunication Service Providers

In the Indian interception regime, although surveillance orders are passed by the Government, the actual interception of communication is done by the service provider. Certain proposals have been introduced to protect service providers from liability. For example, an execution provision ensures that a warrant is not served on a service provider more than seven days after it is issued. In addition an indemnity provision prevents any action being taken against a service provider in a court of law, and indemnifies them against any losses that arise from the execution of the warrant, but not outside the scope of the warrant. During discussions, stakeholders felt that the standard should be a blanket indemnity without any conditions to assure service providers.

Under the Indian interception regime, a service provider must also ensure confidentiality of the content and meta data of the intercepted communications. To this, a participant suggested that in situations of information collection, a service provider may have a policy for obtaining customer consent prior to the interception. The Information Technology (Reasonable security practices and procedures and sensitive personal information) Rules, 2011 are clearer in this respect, which allow for the disclosure of information to governmental agencies without consent.

Another participant mentioned that the inconsistencies between laws on information disclosure and collection, such as the IT Act, the Right to Information Act and the recently enacted Whistleblower’s Protection Act, 2011 need to be harmonised. Other stakeholders agreed with this, though they stated that surveillance regulations should prevail over other laws in case of any inconsistency.

Conclusions

The inputs from the Bombay Roundtable seem to point towards a more regulated approach, with the addition of a review system to enhance accountability. While most stakeholders here agreed that national security is a criterion that takes precedence over concerns of privacy vis-à-vis surveillance, there is a concomitant need to define the limits of permissible interception. The view here is that a judicial model would prove to be a better system than the executive system; however, there is no clear answer as of yet on who would constitute this model. While the procedure for interception was covered in depth, the nature of the information itself was covered briefly and more discussion would be welcome here in forthcoming sessions.

Click to download the Report (PDF, 188 Kb)

[1]. 1994 4 SCC 569.

[2]. (1997) 1 SCC 301.

[3]. [1973] 2 S.C.R. 417.

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

European Union Draft Report Admonishes Mass Surveillance, Calls for Stricter Data Protection and Privacy Laws

divij — 2014-09-30T08:52:45Z

Ever since the release of the “Snowden files”, the secret documents evidencing the massive scale of surveillance undertaken by America’s National Security Agency and publically released by whistle-blower Edward Snowden, surveillance in the digital age has come to the fore of the global debate on internet governance and privacy.

The Committee on Civil Liberties, Justice and Home Affairs of the European Parliament in its draft report on global surveillance has issued a scathing indictment of the activities of the NSA and its counterparts in other member nations and is a welcome stance taken by an international body that is crucial to the fight against surveillance.

The "European Parliament Draft Report on the US NSA surveillance programme, surveillance bodies in various Member States and their impact on EU citizens’ fundamental rights and on transatlantic cooperation in Justice and Home Affairs" released on the 8^th of January, 2014, comprehensively details and critiques the mass surveillance being undertaken by government agencies in the USA as well as within the EU, from a human rights and privacy perspective. The report examines the extent to which surveillance systems are employed by the USA and EU member-states, and declares these systems in their current avatars to be unlawful and in breach of international obligations and fundamental constitutional rights including "the freedom of expression, of the press, of thought, of conscience, of religion and of association, private life, data protection, as well as the right to an effective remedy, the presumption of innocence and the right to a fair trial and non-discrimination".

Furthermore, the report points to the erosion of trust between the EU and the US as well as amongst member states as an outcome of such secret surveillance, and criticises and calls for a suspension of the data-sharing and transfer agreements like the Terrorist Finance Tracking Program (TFTP), which share personal information about EU citizens with the United States, after examining the inadequacy of the US Safe Harbour Privacy principles in ensuring the security of such information.

After considering the secret and unregulated nature of these programmes, the report points to the need of restricting surveillance systems and criticizes the lack of adequate data protection laws and privacy laws which adhere to basic principles such as necessity, proportionality and legality.. It also questions the underlying motives of these programmes as mere security-tools and points to the possible existence of political and economic motives behind their deployment. Recognizing the pitfalls of surveillance and the terrible potential for misuse, the report "condemns in the strongest possible terms the vast, systemic, blanket collection of the personal data of innocent people, often comprising intimate personal information; emphasises that the systems of mass, indiscriminate surveillance by intelligence services constitute a serious interference with the fundamental rights of citizens; stresses that privacy is not a luxury right, but that it is the foundation stone of a free and democratic society; points out, furthermore, that mass surveillance has potentially severe effects on the freedom of the press, thought and speech, as well as a significant potential for abuse of the information gathered against political adversaries."

Amongst the recommendations in the 51-page report are calls for a prohibition of mass surveillance and bulk data collection, and an overhaul of the existing systems of data-protection across the European Union and in the US to recognize and strengthen the right to privacy of their citizens, as well as the implementation of democratic oversight mechanisms to check security and intelligence agencies. It also calls for a review of data-transfer programmes and ensuring that standards of privacy and other fundamental rights under the European constitution are met. The committee sets out a 7-point plan of action, termed the European Digital Habeus Corpus for Protecting Privacy, including adopting the Data Protection Package, suspending data transfers to the US until a more comprehensive data protection regime is through an Umbrella Agreement, enhancing fundamental freedoms of expression and speech, particularly for whistleblowers, developing a European Strategy for IT independence and developing the EU as a reference player for democratic and neutral governance of the internet.

Though this draft report has no binding legal value as yet, the scathing criticism has assisted in calling to the attention of the global community the complex issues of internet governance and privacy and surveillance, and generated debate and discourse around the need for an overhaul of the current system. The recent decision of the US government to ‘democratize’ the internet by handing control of the DNS root zone to an international body, and thereby relinquishing a large part of its means of controlling the internet, is just one example of the systemic change that this debate is generating.

For more details visit https://cis-india.org/internet-governance/blog/european-union-draft-report-admonishes-mass-surveillance

Response to the Pegasus Investigation

Anamika Kundu, Digvijay, Arindrajit Basu, Shweta Mohandas and Pallavi Bedi — 2022-04-13T14:44:43Z

For more details visit https://cis-india.org/internet-governance/response-to-the-pegasus-investigation

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

Surat’s Massive Surveillance Network Should Cause Concern, Not Celebration

joe — 2014-09-06T03:05:13Z

The blog post examines the surveillance network of Surat, a city in Gujarat state in India.

The Surveillance System

Surat, a city in the state of Gujarat, has recently unveiled a comprehensive closed-circuit camera surveillance system that spans almost the entire city. This makes Surat the first Indian city to have a modern, real-time CCTV system, with eye-tracking software and night vision cameras, along with intense data analysis capabilities that older systems lack.

Similar systems are planned for cities across India, from Delhi to Punjab, even those that already have older CCTV programs in place. Phase I of the system, which is currently completed, consists of 104 CCTV cameras installed at 23 locations and a 280 square foot video wall at the police control room. The video wall is one of the largest in the country, according to the Times of India.

Narendra Modi, then the Gujarat chief minister, launched the project in January 2013, though the project was original conceptualized by police commissioner Rakesh Asthana, who has cited the CCTV system in Scotland Yard as his inspiration.

Phase II of the surveillance project will involve the installation of 550 cameras at 282 locations, and in the future, police plan to install over 5000 cameras across the city. Though other security systems, like those in Delhi, rely on lines from the state owned service provider MTNL, with limited bandwidth for their CCTV network, the Surat system has its own dedicated cables.

The security system was financed by a unique Public-Private Partnership (PPP) model, where a coalition of businesses, including many manufacturing units and representatives of Surat’s textile industry want to prevent crime. The many jewelers in the city also hoped it would limit thefts. In the model, businesses interested in joining the coalition contribute Rs 25 lakh as a one-time fee and the combined fees along with some public financing go to construct the city-wide system. The chairman of the coalition is always the Commissioner of Surat Police. Members of the coalition not only get a tax break, but also believe they are helping to create a safer city for their industries to thrive.

Arguments for the System

Bomb blasts in Ahmedabad in 2008 led the Gujarat police to consider setting up surveillance systems not just in Ahmedabad, according to Scroll.in, but in many cities including Surat. Terror attacks in Mumbai in 2008 and at the Delhi High Court in 2011 lent momentum to surveillance efforts, as did international responses to terror, such as the United Kingdom’s intensive surveillance efforts in response to 2005 bombing in London. The UK’s security system has become so comprehensive that Londoners are caught on camera over 300 times a day on average. The UK’s CCTV systems cost over £500 million between 2008 and 2012, and one single crime has been solved in London for every 1,000 cameras each year, according to 2008 Metropolitan Police figures.

However, citizens in London may feel safer in their surveillance state knowing that the Home Office of the United Kingdom regulates how CCTV systems are used to ensure that cameras are being used to protect and not to spy. The UK’s Surveillance Camera Code of Practice outlines a thorough system of safeguards that make CCTV implementation less open to abuse. India currently has no comparable regulation.

The combined government worries of terrorism and business owners desire to prevent crime led to Surat’s unique PPP, ournalist Suarav Datta’s article in Scroll.in continues. Though the Surat Municipal Corporation invested Rs 2 crore, business leaders demonstrated their support for the surveillance system by donating the remaining Rs 10 crore required to build the first phase system. Phase II will cost Rs 21 crore, with the state government investing Rs 3 crore and business groups donating the other Rs 18 crore. This finance model demonstrates both public and private support for the CCTV system.

Why CCTV systems may do more harm than good

Despite hopes that surveillance through CCTV systems may prevent terrorism and crime, evidence suggests that it is not as much of a golden bullet as its proponents believe. In the UK, for example, where surveillance is practice extensively, the number of crimes captured on camera dropped significantly in 2010, because there were so many cameras that combing through all the hours footage was proving to be an exercise in futility for many officers. According to Suaray Datta’s article on Scroll.in, potential offenders in London either dodge cameras or carry out their acts in full view of them, which detracts from the argument that cameras deter crime. Additionally, prosecutors allege that the CCTV systems are of little value in court, because the quality of the footage is so low that it cannot provide conclusive proof of identities.

A 2008 study in San Francisco showed that surveillance cameras produce only a placebo effect–they do not deter crime, they just move it down the block, away from the cameras. In Los Angeles, more dramatically, there was little evidence that CCTV cameras helped detect crime, because in high traffic areas the number of cameras and operators required is so high, and because the city’s system was privately funded, the California Research Bureau’s report noted that it was open to exploitation by private interests pursuing their own goals. Surat’s surveillance efforts are largely privately funded too, a vulnerability that could lead to miscarriages of justice if private security contractors were to gain to security footage.

More evidence of the ineffectiveness of CCTV surveillance comes in the Boston marathon bombing of 2013 and the attack on the Indian parliament in 2001. In the case of the Boston bombing, release of CCTV footage to the general public led to rampant and unproductive speculation about the identity of the bomber, which resulted in innocent spectators being unfairly painted with suspicion.

India’s lack of regulation over CCTV’s also makes Surat’s new system susceptible to misuse. There is currently no strong legislation that protects citizens filmed on CCTV from having their images exploited or used inappropriately. Only police will have access to the recordings, Surat officials say, but the police themselves cannot always be trusted to adequately respect the rights of the citizens they are trying to protect.

The Report of the Group of Experts on Privacy acknowledges the lack of regulations on CCTV surveillance, and recommends that CCTV footage be legally protected from abuse. However, the Report notes that regulating CCTV surveillance to the standards of the National Privacy Principals they establish earlier in the report may not be possible for a number of reasons. First, it will be difficult to limit the quantity of information collected because the cameras are simply recording video of public spaces, and is unlikely that individuals will be able to access security footage of themselves. However, issues of consent and choice can be addressed by indicating that CCTV surveillance is taking place on entryways to monitored spaces.

Surat is not the first place in India to experiment with mass CCTV surveillance. Goa has mandated surveillance cameras in beach huts to monitor the huts and deter and detect crime. The rollout is slow and ongoing, and some of the penalties the cameras are intended to enforce seem too severe, such as potentially three months in prison for having too many beach chairs. More worryingly, there are still no laws ensuring that the footage will only be used for its proper law-enforcement objectives. Clear oversight is needed in Goa just as it is in Surat. The Privacy Commissioner outlined by the Report of the Group of Experts could be well suited to overseeing the proper administration of CCTV installations, just as the Commissioner would oversee digital surveillance.

Concerns of privacy and civil liberties appear to have flown out the window in Surat, with little public debate. It is unclear that Surat’s surveillance efforts will achieve any of their desired effects, but without needed safeguards they will present an opportunity for abuse. Perhaps CCTV initiatives need to be subjected to a little bit more scrutiny.

For more details visit https://cis-india.org/internet-governance/blog/surat-massive-surveillance-network-cause-of-concern-not-celebration