Centre for Internet and Society

Essay: Watching Corona or Neighbours? - Introducing ‘Lateral Surveillance’ during COVID-19

Mira Swaminathan and Shubhika Saluja — 2020-05-22T06:39:02Z

Surveillance is already suspected to have become the ‘new normal’ considering the extensive amounts of money that is being invested by governments around the globe. The only way out of this pandemic is to take a humane approach to surveillance wherein the discriminatory tendencies of the people while spreading information about those infected are factored in to prevent excessive harm.

In times of emergency, ‘immature and even dangerous technologies are pressed into service, because the risks of doing nothing are bigger.’ Several mechanisms undertaken by governments worldwide, in response to the COVID-19 pandemic, have been criticized for enabling State sponsored mass surveillance. There are certain long term impacts of these mechanisms, especially mobile applications that arm the State with seemingly accurate and real time data of the individual. In this article, we explore the possibility of these apps becoming tools of lateral surveillance, i.e., the act of citizens surveilling each other and becoming the ‘eyes and ears’ of the State, in the near future. Though these apps may be helpful tools for contract tracing in times of the COVID-19 pandemic, the long term implications of these short term measures may cost the members of the society their anonymity, freedom of speech and create obstacles in the creation of a healthy and friendly society. One such implication is the ‘skill of surveilling thy neighbour’ being enabled by these apps to a certain extent at the present.

The governments across the globe have responded to COVID-19 through aggressive technological measures to trace individuals and enforce quarantine, costing individuals their privacy in exchange for the supposed benefit to the collective public health. In the same week when the Karnataka Government released a PDF with the names and addresses of around nineteen thousand international passengers who were quarantined in Bangalore, a man in Maharashtra was beaten up for sneezing in public. This stigma against anyone who could be potentially infected is not just prevalent in India but also in other countries. For example, in the United States, a man who returned from a Cruise that had a COVID-19 carrier on board, received death threats and personal attacks despite him being tested negative for COVID-19. Though South Korea has been successful in flattening the curve of COVID-19 cases through aggressive contact tracing (using security camera footage, credit card records, even GPS data from cars and cellphones), excessive data was exploited by internet mobs to hound infected individuals leading the government to minimize data sharing with the public. Escalations of a similar nature were evident in India as well when a woman was harassed and boycotted by her neighbours after the Delhi government marked her house with a quarantine sticker. With implicit and explicit forms of ‘watching over your neighbours’, the question then arises, is it the virus we are required to keep a check on or the neighbour next door who is “suspected” of carrying the virus?

What is Lateral Surveillance?

Surveillance, as is used in the hierarchical sense, is a vertical relationship between the person watching and the person being watched, which is usually the State and the citizen. All situations of surveillance involve power relations. In the conventional form of surveillance, there is a direct power hierarchy between the State and the citizens, and the State determines the collection, control and use of data for ‘public good.’ Lateral surveillance, on the other hand is a rather nuanced concept where citizens ‘keep an eye’ on other citizens and be vigilant of their acts. In this setup, there is not a hierarchical relationship where the one being watched is in some way being controlled or is under the authority of the watcher. As described by Mark Andrejevic, surveillance relationships can be mutual, a horizontal relationship between person to person is referred to as lateral or peer to peer surveillance. He further describes it as “the use of surveillance tools by individuals, rather than by agents of institutions public or private, to keep track of one another, covers (but is not limited to) three main categories: romantic interests, family, and friends or acquaintances.”

Sometimes, peer to peer surveillance is used to achieve emotional objectives such as community building and strengthening relationships with neighbours or tackling depression among the lonely. These emotional and social factors act as a driving force for lateral surveillance mechanisms creating a situation where privacy may be undermined for the betterment of the community. Surveillance technologies not only act as a tool for social control, but also as a tool for social exclusion. The mere requirement of Aarogya Setu as a ‘mandatory condition’ to travel via Indian Railways is a massive social exclusion of a large population of people who do not have smartphones. Lateral surveillance thus makes it easier to identify between those who conform to the ‘norms’ and those who don’t. For instance, even silent acts of not conforming with societal norms or opinion of the majority, threaten freedom of expression: during the lockdown to prevent the spread of COVID-19, the citizens who chose not to participate in the activity of lighting of lamps (urged by the Prime Minister) were either forced to conform, or were faced with a potential to be termed as ‘anti-national’ by some of their neighbours. In another instance, in South Korea, the LGBT community came under the scanner after a cluster of Coronavirus cases were reported from a particular area. This resulted in large-scale circulation of homophobic content and comments against the patients who tested positive from the community. This not only made it difficult for authorities to collect information but also increased troubles for the people belonging to the sexual minority in getting tested.

Lateral surveillance creates a culture of suspicion, where everyone is looked at as a potential suspect. In the times of COVID- 19, it translates into instances of being suspicious of the activity of a neighbour who could be potentially carrying the virus or someone who exercises his fundamental right to criticize the government. The practice of lateral surveillance is most harmful as it creates a culture of ‘hate’, ‘fear’ and ‘constant suspicion’ against an ‘enemy’. Lateral surveillance has been used for multiple instances, wherever the State identifies that it “cannot be everywhere”. There have been several campaigns that have been launched to promote lateral surveillance. For example, the “if you see something, say something” campaign launched after 9/11 attacks in the United States of America was an extreme form of lateral surveillance. The campaign encouraged people to report ‘any suspicious activity’ which resulted in creating a culture of xenophobia and racism where innocent individuals were reported by their neighbours for crimes they did not commit. Thus, the culture of lateral surveillance ensures that a system is created wherein everyone has the duty to ‘keep an eye’ for ‘their own safety’ and this heightens the fear of crime in the society.

Potential Lateral Surveillance issues with the Apps tracking Coronavirus

The priority of the government during such times is to take all available resources to address the emergency. However, these measures raise concerns about the invasion of privacy on account of public health considerations and balancing between the two conflicting interests. With the increase in quarantine monitoring and Corona tracking apps, the question is: whether real time collection and availability of (some of this) information secures the safety of the people or build a culture of surveillance?

Among these measures, the most publicised one is the Indian Government’s Aarogya Setu app. The app which was initially released hastily with an incomprehensive/ambiguous privacy policy and later replaced without notice to its users, is now being mandated for not only certain groups who are on the frontline such as journalists, e-commerce employees, delivery personnel but also is increasingly becoming a precondition to access public places. The government and private entities alike are making the app compulsory for entering apartments, travelling by the railways or the metro. The concept of ‘consent’ is seen eroding in the face of social pressure as the acceptance of the terms and conditions of the app is no longer an act free from coercion in the larger public interest. However, the Aarogya Setu app which exists over and above the various State Government apps to track COVID-19, enforce quarantine and spread awareness in the respective states, has come under the radar for not meeting the expected privacy standards such as minimal data collection, transparency to verify encryption techniques among others. The privacy policy of the app reveals that it maintains a record of all the places the user may have visited along with records of contact the user may have made with other users. This exchange of personally identifiable information among people’s devices may become a point of attack for malicious actors as highlighted in the Working Paper of Internet Freedom Foundation. Concerns over the working and information storage of the app were also raised by an ethical hacker who warned that “an attacker can get with a meter precision the health status” of someone anywhere in India. When seen from the lens of lateral surveillance, the information (stored on the server) is vulnerable to unwarranted exposure even though it is only meant to be shared with the government and other departments “formulate or implement an appropriate health response”. What raises deeper issues is the wide scope of the government’s ability to share the response data in de-identified form with several government departments and third parties on a ‘strict necessity’ basis or for research purposes. The possibility of the app being repurposed to meet multiple purposes cannot be overlooked. This potential for excessive sharing and function creep are the basis for concerns over changing forms of surveillance, from traditional to lateral due to higher possibilities of leakage of personal information.

A fundamental problem that can be noticed here is that an implementation of a public good is looked at as a binary. Each individual or organization in this pandemic performs their actions based on an “imaginary binary,” wherein the choice needs to be made between two equally worse options, created by their existing circumstances. Surveillance is regarded as ‘binary’ in nature, a tool used for both protection and control. For example, feminist legal theories have recognized that privacy used at either of the extremes (in the form of a binary) can result in affecting people’s autonomy. These theories acknowledge that while surveillance regimes exist, there are ‘gaps’ created in the system to reinforce newer surveillance mechanisms. This gap can support vulnerable groups while a ‘contextualized situation’ is created to ensure everyone’s rights are equally protected.

It is important to note that implementing 'absolute surveillance’ without basic ethical considerations like how it would affect minority groups (religious minorities, LGBTQIA community etc.) creates a problem of the ‘binary’ between surveillance and privacy, especially since the ‘culture of surveillance’ is involved in the process. Similarly, when the government responds to the pandemic by leveraging technology as its option against protecting the interests of those who may be discriminated against due to such intrusive technologies while ignoring the ethical considerations such as transparency and openness, it creates an air of suspicion. For instance, inaccessibility or absence of privacy policies in the case of Tamil Nadu & West Bengal Quarantine apps, heightens suspicion about the long term implications of such data collection activities. However, if ethical considerations are adopted in the implementation of these apps, lateral surveillance could be potentially avoided.

Apps like Corona Watch and Quarantine Watch, are potential examples of such surveillance apps where the State collects personal data and the citizens are expected to be more vigilant towards each other. As these apps increase the chances of users learning about who could have infected them (by showing the timing when an infected person visited a particular location on interactive maps). Though most of these apps currently available in West Bengal, Tamil Nadu, Maharashtra or Goa are capable of being used as sophisticated tools for State surveillance through creation of heat maps, checking on those quarantined while monitoring containment zones, and potential database for facial recognition because of selfies being sought from individuals at periodic intervals. The problem of lateral surveillance surfaces due to the potential of the same information being leaked to the public due to the lack of safeguards in the app and its design such as excessive data collection, third party exploitation of the data, lack of proper anonymization and encryption measures.

The other problem is that these apps affect the attitude of the people, making them more suspicious and wary as a community member. Since these apps make it more likely for personal information of nearby citizens to be revealed to other citizens, they encourage the practice of ‘watching over others’. They are being encouraged to stay updated about who is a possible threat to them or a vector of the virus, which is similar to the objective of neighbourhood watch schemes and peer surveillance programs. Instead of building a ‘healthy society’, there is increased suspicion, heightened fear of the virus, possibilities of discrimination and ostracisation of those suspected of carrying the virus. Further, intrusive tracking and excessive health messaging can discourage citizens, making them feel bullied and stigmatised. As Sean McDonald writes, when these technologies which enable the use of individual information as a “representative sample for public health risk” can have dangerous unintended consequences “when paired with the kinds of panic, scarcity and desperation”in such public health emergencies.

The need for more security makes people more likely to detect threats in every different action from the normal. This not only heightens the fear among everyone regarding the ‘perceived threat’ of the existence of a quarantined or infected patient, but it also creates a culture of vigilance, i.e. the people start to suspect everything and everyone. As Janet Chan mentions in her work- “such perceived threat has a tendency to ‘increase intolerance, prejudice, ethno-centrism, and xenophobia’. The consequence of the constant contact among neighbours may result in ethnic profiling, increased anxiety, communication overload and create potential tensions among them.” In Seoul where a restaurant manager was “eavesdropping in people’s conversations” just to confirm whether or not they’re infected with the Coronavirus and in India where photos and videos of patients tested positive of COVID are circulated amongst whatsapp groups. Such forms of lateral surveillance in the physical world is already having a negative impact on the society. Especially in India, where the concept of social distancing mirrors and invokes distinct histories of caste hierarchies, even the most diluted form of social distancing is harmful as it reinforces this segregation of ‘touchable’ and ‘untouchable.’ The virus further aids the existing structures of inequality. Hence, social exclusion due to the ‘culture of suspicion’ is deepened further in such a society in times of a crisis.

The potential technological solutionism of it through the aforementioned apps poses greater risks. The problem lies not only in the manner in which the individuals are being encouraged to seek more information but also the way in which the information is being handled by the State. Apart from the aforementioned apps, some States such as Delhi, Kerala and Telangana are using softwares to track cell phone location for the purposes of contact tracing. In Ahmedabad, the MU Corporation map even reveals the names and addresses of patients who tested positive. Further, the attitude of the people that creates social pressure on the State to reveal personal information as was seen in Mohali. The fact that ‘social pressure’ is a justification for making public quarantine lists, the possibility of more information being rolled out through these apps in the future for the sake of one or a few persons’ protection cannot be ignored.

Furthermore, as more personal data is gathered, the State needs to ensure that security standards and safeguards are maintained to prevent leakage of such data on social media as was already witnessed in Karnataka, Delhi and Nagpur. Even if these measures are being flagged as “necessary” to enforce quarantine or contain transmission, they are prima facie violative of the right to privacy of the people whose sensitive personal information is being disclosed like public property. There is no doubt that the right to privacy is not an absolute right, but neither the Epidemic Diseases Act, 1897 nor the National Disaster Management Act 2005 provide any explicit basis to disclose personal information of persons who have either been infected with the virus or who have been quarantined. Even if such disclosures can be justified as an act in good faith to prevent the outbreak of the disease under Section 4 the Epidemic Diseases Act or within the powers of the National Authority to take such measures for the prevention of disaster under Section 6(i) of the National Disaster Management Act, they need to be proportionate in nature and have a rational nexus with the legitimate aim sought to be achieved by the State (test for which was laid down in Puttaswamy Judgment). It is difficult to determine the connection between the careless disclosure of such sensitive information and prevention of the pandemic. There are less intrusive alternatives available. If public knowledge about an infected person’s residence and mobile phone number is going to assist the fight against the pandemic, then it is a clear case of lateral surveillance being encouraged by the State and that is the path to the ‘culture of suspicion’ as explained above.

In the absence of a comprehensive data protection law (particularly where the State is bound and accountable as a data collection entity), there is no judicial recourse available if the data is used for purposes other than those mentioned in the privacy policies. In certain cases, the privacy policies have not even been made public. This raises more concerns about possibilities of the data being disclosed to unauthorised entities or retained and used for other purposes. This data, if made available or leaked to the public in such times, increases the risks of vigilantism and lateral surveillance resulting in potential discrimination and harassment. The State needs to recognize the risk of normalization of these tools which if continued even after the pandemic could negatively affect the right to privacy not only vis-a-vis the State (as is already the case) but also vis-a-vis other members of society.

Measures to Better Implement Contract Tracing and Reduce Lateral Surveillance

1. Rule of Law and implementation of Privacy Principles : Though the measures introduced for tracking Coronavirus are necessary and crucial in the times of a fast spreading pandemic, they also need to be tested against the requirements of legality and doctrine of proportionality as well. The test of legitimate state aim, necessity and proportionality acts as the guiding force for implementation of state actions that constrain privacy. Deployment of excessively intrusive means to further public health while restraining privacy without any legal basis will do more harm than good. If the conflict between common good and individual privacy is resolved, the impact of the surveillance measures on people in general would reduce, thereby limiting the prospects of lateral surveillance. The path to prevent lateral surveillance goes through the path of reducing the scope of vertical surveillance itself. For instance, if the data collecting authority ensures that the system does not or is least likely to reveal any personal information of the user, then the risk of the same being available in public is minimal. In this regard, the privacy policy of Aarogya Setu app states that the data will be stored in “anonymized, aggregated datasets for the purpose of generating reports, heat maps and other statistical visualisations for the purpose of management of COVID-19 in the country or to provide you general notifications pertaining to COVID-19 as may be required.” Further, it also provides that the personal information will not be shared with any third party.

Although it is easier to brush aside the application of the privacy principles due to the lack of a comprehensive data protection law, a pandemic cannot be an excuse to forgo the application of these principles and the rule of law. Presently, India is witnessing instances of loss of privacy and confidentiality, stigmatization and rights violations which have been identified as harms of public health practice and surveillance by the World Health Organization. In order to minimize the harm from surveillance, preventive measures such as avoiding collection of unnecessary identifiable information, limited access to collected data, secured data storage practices, pseudonymisation of collected data, definite period of retention of data and promotion of transparency, inclusiveness and openness, should be taken. For instance, Singapore’s TraceTogether app provides a good example of application of data protection principles. The app collects only the mobile number and creates a random anonymized user ID, uses bluetooth, instead of the GPS location or WIFI or mobile network, stores data only on the phone of the user, and prevents third parties from identifying or tracking the user (employing privacy-by-design). The Privacy Policy of the app depicts how privacy principles can be put to work, with minimum data collection, allowing withdrawal of consent and minimal retention of data among other principles. Though Aarogya Setu follows most of the aforementioned principles employed at global level as seen in the case of TraceTogether as well, it goes a step ahead to collect even GPS location which may be considered an excessive means.

Finally, it is essential that the use of these apps remains limited to the times of pandemic without paving the way for sophisticated surveillance, traditional or lateral, post the pandemic. And for privacy policy of Aarogya Setu mentions the use of information only for the “management of COVID-19” the concerns over the its use for an unidentifiable period of time in the future are hinting at it becoming a surveillance tool in a world where people will have to live with Coronavirus.

2. Positive initiatives for improving mental health of citizens: We understand and acknowledge that the impact of lateral surveillance cannot be completely eradicated during a pandemic, we can suggest mechanisms in which initiatives encouraging surveillance can be better implemented by the State and the citizens. Since even a “privacy preserving” app cannot comprehensively address the fundamental issues relating to the efficacy of contact tracing, intended or unintended consequences of social exclusion and discriminatory use, lateral surveillance can be turned on its head by ensuring that mutual care and trust is practiced instead of enabling surveillance. The Central Government and several State Governments such as Maharashtra and Kerala among others are trying to deal with the impact of Coronavirus on mental health with innovative campaigns. So instead of a helpline number, an app can be introduced by the State that gives counselling services to quarantined patients which would help in destigmatizing the existing scenario. Further, citizens too can be involved in helping one another, for example, neighbourhoods in England use “innovative placards wherein they identify the quarantined people in need (and their concerns) with a simple showcase of ‘red/yellow/green’ placards outside their houses. They have also introduced the use of “printable postcards” that are used to offer help for the elderly in the communities. These community initiatives are a much better way of approaching this public health crisis instead of a ‘sticker’ or a ‘label’ outside the quarantined person’s house labelling them in a negative way, as though they have committed a crime.

Avoiding the toxic culture created in the ‘new normal'

Citizens need to be made aware of the consequences of this pandemic on the community in a way they can help each other to overcome it , instead of simply alarming or scaring them which would definitely have long term negative impacts on the community. Considering how instances of discrimination against certain communities are already surfacing amidst the pandemic, contact tracing should explored within the bounds of the law while being implemented through these apps. With certain governments using personnel tracking tools such as smart watches for purposes of public services, the increase in the use of these kinds of intrusive technologies is soon going to be a harsh reality. Surveillance is already suspected to have become the ‘new normal’ considering the extensive amounts of money that is being invested by governments around the globe. The only way out of this pandemic is to take a humane approach to surveillance wherein the discriminatory tendencies of the people while spreading information about those infected are factored in to prevent excessive harm. It can only be expected that the State would be wary of the means being deployed to achieve the end, and the citizens act responsibly while participating in these initiatives so as to reduce the negative impacts of vertical or lateral surveillance. We should all move towards a society where we watch the virus and carefully use technology to avoid situations where ordinary citizens are encouraged to watch over their neighbours. We need to unlearn this habit of “watching over someone else” both voluntarily and involuntarily before it becomes too late.

For more details visit https://cis-india.org/internet-governance/blog/essay-watching-corona-or-neighbours-introducing-2018lateral-surveillance2019-during-covid201919

UK’s Interception of Communications Commissioner — A Model of Accountability

joe — 2014-07-24T06:08:53Z

The United Kingdom maintains sophisticated electronic surveillance operations through a number of government agencies, ranging from military intelligence organizations to police departments to tax collection agencies. However, all of this surveillance is governed by one set of national laws outlining specifically what surveillance agencies can and cannot do.

The primary law that governs government investigations is the Regulation of Investigatory Powers Act 2000, abbreviated as RIPA 2000.

To ensure that this law is being followed and surveillance operations in the United Kingdom are not conducted illegally, the RIPA 2000 Part I establishes an Interception of Communications Commissioner, who is tasked with inspecting the surveillance operations, assessing their legality, and compiling an annual report to for the Prime Minister.

On April 8, 2014 the current Commissioner, Rt Hon. Sir Anthony May, laid the 2013 annual report before the House of Commons and the Scottish Parliament. In its introduction, the report notes that it is responding to concerns raised as a result of Edward Snowden’s actions, especially misuse of powers by intelligence agencies and invasion of privacy. The report also acknowledges that the laws governing surveillance, and particularly RIPA 2000, are difficult for the average citizen to understand, so the report includes a narrative outline of relevant provisions in an attempt to make the legislation clear and accessible. However, the report points out that while the Commissioner had complete access to any documents or investigative records necessary to construct the report, the Commissioner was unable to publish surveillance details indiscriminately, due to confidentiality concerns in a report being issued to the public. (It is worth noting here that though the Commissioner is one man, he has an entire agency working under him, so it is possible that he himself did not do or write all of that the report attributes to him). As a whole, the report outlines a series of thorough audits of surveillance operations, and reveals that the overwhelming majority of surveillance in the UK is conducted entirely legally, and that the small minority of incorrectly conducted surveillance appears to be unintentional. Looking beyond the borders of the United Kingdom, the report represents a powerful model of a government initiative to ensure transparency in surveillance efforts across the globe.

The Role of the Commissioner

The report begins in the first person, by outlining the role of the Commissioner. May’s role, he writes, is primarily to audit the interception of data, both to satisfy his own curiosity and to prepare a report for the Prime Minister. Thus, his primary responsibility is to review the lawfulness of surveillance actions, and to that end, his organization possesses considerable investigative powers. He is also tasked with ensuring that prisons are legally administrated, though he makes this duty an afterthought in his report.

Everyone associated with surveillance or interception in the government must disclose whatever the commissioner asks for. In short, he seems well equipped to carry out his work. The Commissioner has a budget of £1,101,000, almost all of which, £948,000 is dedicated to staff salaries.

The report directly addresses questions about the Commissioner’s ability to carry out his duties. Does the Commissioner have full access to whatever materials or data it needs to conduct its investigations, the report asks, and it answers bluntly, yes. It is likely, the report concludes, that the Commissioner also has sufficient resources to adequately carry out his duties. Yes, the Commissioner is fully independent from other government interests; the commissioner answers his own question. Finally, the report asks if the Commissioner should be more open in his reports to the public about surveillance, and he responds that the sensitivity of the material prohibits him from disclosing more, but that the report adequately addresses public concern regardless. There is a degree to which this question and answer routine seems self-congratulatory, but it is good to see that the Commissioner is considering these questions as he carries out his duties.

Interception of Communications

The report first goes into detail about the Commissioner’s audits of communications interception operations, where interception means wiretapping or reading the actual content of text messages, emails, or other communications, as opposed to the metadata associated with communications, such as timestamps and numbers contacted. In this section, the report outlines the steps necessary to conduct an interception, outlining that an interception requires a warrant, and only a Secretary of State (one of five officials) can authorize an interception warrant. Moreover, the only people who can apply for such warrants are the directors of various intelligence, police, and revenue agencies. In practice, the Secretaries of State have senior staff that read warrant applications and present those they deem worthy to the Secretary for his or her signature, as their personal signature is required for authorization.

For a warrant to be granted, it must meet a number of criteria. First, interception warrants must be necessary in the interests of national security, to prevent or detect serious crime, or to safeguard economic wellbeing of the UK. Additionally, a warrant can be granted if it is necessary for similar reasons in other countries with mutual assistance agreements with the UK. Warrants must be proportionate to the ends sought. Finally, interception warrants for communications inside the UK must specify either a person or a location where the interception will take place. Warrants for communications outside of the UK require no such specificity.

In 2013, 2760 interception warrants were authorized, 19% fewer warrants than in 2012. The Commissioner inspected 26 different agencies and examined 600 different warrants throughout 2013. He gave inspected agencies a report on his findings after each inspection, so they could see whether or not they were following the law. He concluded that the agencies that undertake interception “do so lawfully, conscientiously, effectively, and in our national interest.” Thus, all warrants adequately meet the application and authorization requirements outlined in RIPA 2000.

Communications Data

The report goes on to discuss communications data collection, where communications data refers to metadata–not the content of the communications itself, but data associated with it, such as call durations, or a list of email recipients. The Commissioner explains that metadata is easier to obtain than an interception warrant. Designated officials in their respective surveillance organization read and grant metadata warrant applications, instead of one of the Secretaries of State who could grant interception warrants. Additionally, the requirements for a metadata warrant are looser than for interception warrants. Metadata warrants must still be necessary, but necessary for a broader range of causes, ranging from collecting taxes, protecting public health, or for any purpose specified by a Secretary of State.

The relative ease of obtaining a metadata warrant is consistent with a higher number of warrants approved. In 2013, 514,608 metadata warrants were authorized, down from 570,135 in 2012. Local law enforcement applied for 87.5% of those warrants while intelligence agencies accounted for 11.5%. Only a small minority of requests was sent from the revenue office or other departments.

The purposes of these warrants were similarly concentrated. 76.9% of metadata warrants were issued for prevention or detection of crime. Protecting national security justified 11.4% of warrants and another 11.4% of warrants were issued to prevent death or injury. 0.2% of warrants were to identify people who had died or otherwise couldn’t identify themselves, 0.11% of warrants were issued to protect the economic wellbeing of the United Kingdom, and 0.02% of warrants were associated with tax collection. The Commissioner identified less than 0.01% of warrants as being issued in a miscarriage of justice, a very low proportion.

The Commissioner inspected metadata surveillance efforts, conducting 75 inspections in 2013, and classified the practices of those operations inspected as good, fair or poor. 4% of operations had poor practices. He noticed two primary errors. The first was that data was occasionally requested on an incorrect communications address, and the second was that he could not verify that some metadata was not being stored past its useful lifetime. May highlighted that RIPA 2000 does not give concrete lengths for which data should be stored, as Section 15(3) states only that data must be deleted “as soon as there are no longer grounds for retaining it as necessary for any of the authorized purposes.” He noted that he was only concerned because some metadata was being stored for longer periods than associated interception data. As May put it, “I have yet to satisfy myself fully that some of these periods are justified and in those cases I required the agencies to shorten their retention periods or, if not, provide me with more persuasive reasons.” The Commissioner seems determined that this practice will either be eliminated or better justified to him in the near future.

Indian Applications

The United Kingdom’s Interception of Communications Commissioner has similar powers to the Indian Privacy Commissioner suggested by the Report of the Group of Experts on Privacy. Similar to the United Kingdom, it is recommended that a Privacy Commissioner in India have investigative powers in the execution of its charter, and that the Privacy Commissioner represent citizen interests, ensuring that data controllers are in line with the stipulated regulations. The Report also broadly states that “with respect to interception/access, audio & video recordings, the use of personal identifiers, and the use of bodily or genetic material, the Commissioner may exercise broad oversight functions.” In this way, the Report touches upon the need for oversight of surveillance, and suggests that this responsibility may be undertaken by the Privacy Commissioner, but does not clearly place this responsibility with the Privacy Commissioner. This raises the question of if India should adopt a similar model to the United Kingdom – and create a privacy commissioner – responsible primarily for overseeing and enforcing data protection standards, and a separate surveillance commissioner – responsible for overseeing and enforcing standards relating to surveillance measures. When evaluating the different approaches there are a number of considerations that should be kept in mind:

Law enforcement and security agencies are the exception to a number of data protection standards including access and disclosure.
There is a higher level of ‘sensitivity’ around issues relating to surveillance than data protection and each needs to be handled differently.
The ‘competence’ required to deliberate on issues related to data protection is different then the ‘competence’ required deliberating on issues related to surveillance.

Additionally, this raises the question of whether India needs a separate regulation governing data protection and a separate regulation governing surveillance.

Allegations of Wrongdoing

It is worth noting that though May describes surveillance operations conducted in compliance with the law, many other organizations have accused the UK government of abusing their powers and spying on citizens and internet users in illegal ways. The GCHQ, the government’s communications surveillance center has come under particular fire. The organization has been accused indiscriminate spying and introducing malware into citizen’s computers, among other things. Led by the NGO Privacy International, internet service providers around the world have recently lodged complaints against the GCHQ, alleging that it uses malicious software to break into their networks. Many of these complaints are based on the information brought to light in Edward Snowden’s document leaks. Privacy International alleges that malware distributed by GCHQ enables access to any stored content, logging keystrokes and “the covert and unauthorized photography or recording of the user and those around him,” which they claim is similar to physically searching through someone’s house unbeknownst to them and without permission. They also accuse GCHQ malware of leaving devices open to attacks by others, such as identity thieves.

Snowden’s files also indicate a high level of collaboration between GCHQ and the NSA. According to the Guardian, which analyzed and reported on many of the Snowden files, the NSA has in past years paid GCHQ to conduct surveillance operations through the US program called Prism. Leaked documents report that the British intelligence agency used Prism to generate 197 intelligence reports in the year to May 2012. Prism is not mentioned at all in the Interception of Communications Commissioner’s report. In fact, while the report’s introduction explains that it will attempt to address details revealed in Snowden’s leaked documents, very little of what those documents indicate is later referenced in the report. May ignores the plethora of accusations of GCHQ wrongdoing.

Thus, while May’s tone appears genuine and sincere, the details of his report do little to dispel fears of widespread surveillance. It is unclear whether May is being totally forthcoming in his report, especially when he devotes so little energy to directly responding to concerns raised by Snowden’s leaks.

Conclusion

May wrapped up his report with some reflections on the state of surveillance in the United Kingdom. He concluded that RIPA 2000 protects consumers in an internet age, though small incursions are imaginable, and especially lauds the law for it’s technological neutrality. That is, RIPA 2000 is a strong law because it deals with surveillance in general and not with any specific technologies like telephones or Facebook, use of which changes over time. The Commissioner also was satisfied that powers were not being misused in the United Kingdom. He reported that there have been a small number of unintentional errors, he noted, and some confusion about the duration of data retention. However, any data storage mistakes seemed to stem from an unspecific law.

Despite May’s report of surveillance run by the books, other UK groups have accused GCHQ, the government’s communications surveillance center, of indiscriminate spying and introducing malware into citizen’s computers. Privacy International has submitted a claim arguing that a litany of malware is employed by the GCHQ to log detailed personal data such as keystrokes. The fact that May’s report does little to disprove these claims casts the Commissioner in an uncertain light. It is unclear whether surveillance is being conducted illegally or, as the report suggests, all surveillance of citizens is being conducted as authorized.

Still, the concept of a transparency report and audit of a nation’s surveillance initiatives report is a step towards government accountability done right, and should serve as a model for enforcement methods in other nations. May’s practice of giving feedback to the organizations he inspects allows them to improve, and the public report he releases serves as a deterrent to illegal surveillance activity. The Interception of Communications Commissioner–provided he reports truthfully and accurately–is what gives the safeguards built into the UK’s interception regime strength and accountability. In other nations looking to establish privacy protections, a similar role would make their surveillance provisions balanced with safeguards and accountability to ensure that the citizens fundamental rights–including the right to privacy–are not compromised.

For more details visit https://cis-india.org/internet-governance/blog/uk-interception-of-communications-commissioner-a-model-of-accountability

The Design & Technology behind India’s Surveillance Programmes

udbhav — 2017-01-20T15:56:44Z

There has been an exponential growth in the pervasive presence of technology in the daily lives of an average Indian citizen over the past few years. While leading to manifold increase in convenience and connectivity, these technologies also allow for far greater potential for surveillance by state actors.

While the legal and policy avenues of state surveillance in India have been analysed by various organisations, there is very little available information about the technology and infrastructure used to carry out this surveillance. This appears to be largely, according to the government, due to reasons of national security and sovereignty.^[1] This blog post will attempt to paint a picture of the technological infrastructure being used to carry out state surveillance in India.

Background
The revelations by Edward Snowden about mass surveillance in mid-2013 led to an explosion of journalistic interest in surveillance and user privacy in India.^[2] The reports and coverage from this period, leading up to early 2015, serve as the main authority for the information presented in this blog post. The lack of information from official government sources as well as decreasing public spotlight on surveillance since that point of time generally have both led to little or no new information turning up about India’s surveillance regime since this period. However, given the long term nature of these programmes and the vast amounts of time it takes to set them up, it is fairly certain that the programmes detailed below are still the primary bedrock of state surveillance in the country, albeit having become operational and inter-connected only in the past 2 years.

The technology being used to carry out surveillance in India over the past 5 years is largely an upgraded, centralised and substantially more powerful version of the surveillance techniques followed in India since the advent of telegraph and telephone lines: the tapping & recording of information in transit.^[3] The fact that all the modern surveillance programmes detailed below have not required any new legislation, law, amendment or policy that was not already in force prior to 2008 is the most telling example of this fact. The legal and policy implication of the programmes illustrated below have been covered in previous articles by the Centre for Internet & Society which can be found here,^[4] here^[5] and here.^[6] Therefore, this post will solely concentrate on the technological design and infrastructure being used to carry out surveillance along with any new developments in this field that the three source mentioned would not have covered from a technological perspective.

The Technology Infrastructure behind State Surveillance in India

The programmes of the Indian Government (in public knowledge) that are being used to carry out state surveillance are broadly eight in number. These exclude specific surveillance technology being used by independent arms of the government, which will be covered in the next section of this post. Many of the programmes listed below have overlapping jurisdictions and in some instances are cross-linked with each other to provide greater coverage:

Central Monitoring System (CMS)
National Intelligence Grid (NAT-GRID)
Lawful Intercept And Monitoring Project (LIM)
Crime and Criminal Tracking Network & Systems (CCTNS)
Network Traffic Analysis System (NETRA)
New Media Wing (Bureau of New and Concurrent Media)

The post will look at the technological underpinning of each of these programmes and their operational capabilities, both in theory and practice.

Central Monitoring System (CMS)

The Central Monitoring System (CMS) is the premier mass surveillance programme of the Indian Government, which has been in the planning stages since 2008^[7] Its primary goal is to replace the current on-demand availability of analog and digital data from service providers with a “central and direct” access which involves no third party between the captured information and the government authorities.^[8] While the system is currently operated by the Centre for Development of Telematics, the unreleased three-stage plan envisages a centralised location (physically and legally) to govern the programme. The CMS is primarily operated by Telecom Enforcement and Resource Monitoring Cell (TERM) within the Department of Telecom, which also has a larger mandate of ensuring radiation safety and spectrum compliance.

The technological infrastructure behind the CMS largely consists of Telecom Service Providers (TSPs) and Internet Service Providers (ISPs) in India being mandated to integrate Interception Store & Forward (ISF) servers with their Lawful Interception Systems required by their licences. Once these ISF servers are installed they are then connected to the Regional Monitoring Centres (RMC) of the CMS, setup according to geographical locations and population. Finally, Regional Monitoring Centre (RMC) in India is connected to the Central Monitoring System (CMS) itself, essentially allowing the collection, storage, access and analysis of data collected from all across the country in a centralised manner. The data collected by the CMS includes voice calls, SMS, MMS, fax communications on landlines, CDMA, video calls, GSM and even general, unencrypted data travelling across the internet using the standard IP/TCP Protocol.^[9]

With regard to the analysis of this data, Call Details Records (CDR) analysis, data mining, machine learning and predictive algorithms have been allegedly implemented in various degrees across this network.^[10] This allows state actors to pre-emptively gather and collect a vast amount of information from across the country, perform analysis on this data and then possibly even take action on the basis of this information by directly approaching the entity (currently the TERM under C-DOT) operating the system. ^[11] The system has reached full functionality in mid 2016, with over 22 Regional Monitoring Centres functional and the system itself being ‘switched on’ post trials in gradual phases.^[12]

National Intelligence Grid (NATGRID)

The National Intelligence Grid (NATGRID) is a semi-functional^[13] integrated intelligence grid that links the stored records and databases of several government entities in order to collect data, decipher trends and provide real time (sometimes even predictive) analysis of data gathered across law enforcement, espionage and military agencies. The programme intends to provide 11 security agencies real-time access to 21 citizen data sources to track terror activities across the country. The citizen data sources include bank account details, telephone records, passport data and vehicle registration details, the National Population Register (NPR), the Immigration, Visa, Foreigners Registration and Tracking System (IVFRT), among other types of data, all of which are already present within various government records across the country.^[14]

Data mining and analytics are used to process the huge volumes of data generated from the 21 data sources so as to analyse events, match patterns and track suspects, with big data analytics^[15] being the primary tool to effectively utilise the project, which was founded to prevent another instance of the September, 2011 terrorist attacks in Mumbai. The list of agencies that will have access to this data collection and analytics platform are the Central Board of Direct Taxes (CBDT), Central Bureau of Investigation (CBI), Defense Intelligence Agency (DIA), Directorate of Revenue Intelligence (DRI), Enforcement Directorate (ED), Intelligence Bureau (IB), Narcotics Control Bureau (NCB), National Investigation Agency (NIA), Research and Analysis Wing (RAW), the Military Intelligence of Assam , Jammu and Kashmir regions and finally the Home Ministry itself.^[16]

As of late 2015, the project has remained stuck because of bureaucratic red tape, with even the first phase of the four stage project not complete. The primary reason for this is the change of governments in 2014, along with apprehensions about breach of security and misuse of information from agencies such as the IB, R&AW, CBI, and CBDT, etc.^[17] However, the office of the NATGRID is now under construction in South Delhi and while the agency claims an exemption under the RTI Act as a Schedule II Organisation, its scope and operational reach have only increased with each passing year.

Lawful Intercept And Monitoring Project

Lawful Intercept and Monitoring (LIM), is a secret mass electronic surveillance program operated by the Government of India for monitoring Internet traffic, communications, web-browsing and all other forms of Internet data. It is primarily run by the Centre for Development of Telematics (C-DoT) in the Ministry of Telecom since 2011.^[18]

The LIM Programme consists of installing interception, monitoring and storage programmes at international gateways, internet exchange hubs as well as ISP nodes across the country. This is done independent of ISPs, with the entire hardware and software apparatus being operated by the government. The hardware is installed between the Internet Edge Router (PE) and the core network, allowing for direct access to all traffic flowing through the ISP. It is the primary programme for internet traffic surveillance in India, allowing indiscriminate monitoring of all traffic passing through the ISP for as long as the government desires, without any oversight of courts and sometimes without the knowledge of ISPs.^[19] One of the most potent capabilities of the LIM Project are live, automated keyword searches which allow the government to track all the information passing through the internet pipe being surveilled for certain key phrases in both in text as well in audio. Once these key phrases are successfully matched to the data travelling through the pipe using advanced search algorithms developed uniquely for the project, the system has various automatic routines which range from targeted surveillance on the source of the data to raising an alarm with the appropriate authorities.

LIM systems are often also operated by the ISPs themselves, on behalf of the government. They operate the device, including hardware upkeep, only to provide direct access to government agencies upon requests. Reports have stated that the legal procedures laid down in law (including nodal officers and formal requests for information) are rarely followed^[20] in both these cases, allowing unfettered access to petabytes of user data on a daily basis through these programmes.

Crime and Criminal Tracking Network & Systems (CCTNS)

The Crime and Criminal Tracking Network & System (CCTNS) is a planned network that allows for the digital collection, storage, retrieval, analysis, transfer and sharing of information relating to crimes and criminals across India.^[21] It is supposed to primarily operate at two levels, one between police stations and the second being between the various governance structures around crime detection and solving around the country, with access also being provided to intelligence and national security agencies.^[22]

CCTNS aims to integrate all the necessary data and records surrounding a crime (including past records) into a Core Application Software (CAS) that has been developed by Wipro.^[23] The software includes the ability to digitise FIR registration, investigation and charge sheets along with the ability to set up a centralised citizen portal to interact with relevant information. This project aims to use this CAS interface across 15, 000 police stations in the country, with up to 5, 000 additional deployments. The project has been planned since 2009, with the first complete statewide implementation going live only in August 2016 in Maharashtra. ^[24]

While seemingly harmless at face value, the project’s true power lies in two main possible uses. The first being its ability to profile individuals using their past conduct, which now can include all stages of an investigation and not just a conviction by a court of law, which has massive privacy concerns. The second harm is the notion that the CCTNS database will not be an isolated one but will be connected to the NATGRID and other such databases operated by organisations such as the National Crime Records Bureau, which will allow the information present in the CCTNS to be leveraged into carrying out more invasive surveillance of the public at large.^[25]

Network Traffic Analysis System (NETRA)

NETRA (NEtwork TRaffic Analysis) is a real time surveillance software developed by the Centre for Artificial Intelligence and Robotics (CAIR) at the Defence Research and Development Organisation. (DRDO) The software has apparently been fully functional since early 2014 and is primarily used by Indian Spy agencies, the Intelligence Bureau (IB) and the Research and Analysis Wing (RAW) with some capacity being reserved for domestic agencies under the Home Ministry.

The software is meant to monitor Internet traffic on a real time basis using both voice and textual forms of data communication, especially social media, communication services and web browsing. Each agency was initially allocated 1000 nodes running NETRA, with each node having a capacity to analyse 300GB of information per second, giving each agency a capacity of around 300 TB of information processing per second.^[26] This capacity is largely available only to agencies dealing with External threats, with domestic agencies being allocated far lower capacities, depending on demand. The software itself is mobile and in the presence of sufficient hardware capacity, nothing prevents the software from being used in the CMS, the NATGRID or LIM operations.

There has been a sharp and sudden absence of public domain information regarding the software since 2014, making any statements about its current form or evolution mere conjecture.

Analysis of the Collective Data

Independent of the capacity of such programmes, their real world operations work in a largely similar manner to mass surveillance programmes in the rest of the world, with a majority of the capacity being focused on decryption and storage of data with basic rudimentary data analytics.^[27] Keyword searches for hot words like 'attack', 'bomb', 'blast' or 'kill' in the various communication stream in real time are the only real capabilities of the system that have been discussed in the public domain,^[28] which along with the limited capacity of such programmes^[29] (300 TB) is indicative of basic level of analysis that is carried on captured data. Any additional details about the technical details about how India’s surveillance programmes use their captured data is absent from the public domain but they can presumed, at best, to operate with similar standards as global practices.^[30]

Capacitative Global Comparison

As can be seen from the post so far, India’s surveillance programmes have remarkably little information about them in the public domain, from a technical operation or infrastructure perspective. In fact, post late 2014, there is a stark lack of information about any developments in the mass surveillance field. All of the information that is available about the technical capabilities of the CMS, NATGRID or LIM is either antiquated (pre 2014) or is about (comparatively) mundane details like headquarter construction clearances.^[31] Whether this is a result of the general reduction in the attention towards mass surveillance by the public and the media^[32] or is the result of actions taken by the government under the “national security” grounds under as the Official Secrets Act, 1923^[33] can only be conjecture.

However, given the information available (mentioned previously in this article) a comparative points to the rather lopsided position in comparison to international mass surveillance performance. While the legal provisions in India regarding surveillance programmes are among the most wide ranging, discretionary and opaque in the world^[34] their technical capabilities seem to be anarchic in comparison to modern standards. The only real comparative that can be used is public reporting surrounding the DRDO NETRA project around 2012 and 2013. The government held a competition between the DRDO’s internally developed software “Netra” and NTRO’s “Vishwarupal” which was developed in collaboration with Paladion Networks.^[35] The winning software, NETRA, was said to have a capacity of 300 GB per node, with a total of 1000 sanctioned nodes.^[36] This capacity of 300 TB for the entire system, while seemingly powerful, is a miniscule fragment of 83 Petabytes traffic that is predicted to generated in India per day.^[37] In comparison, the PRISM programme run by the National Security Agency in 2013 (the same time that the NETRA was tested) has a capacity of over 5 trillion gigabytes of storage^[38], many magnitudes greater than the capacity of the DRDO software. Similar statistics can be seen from the various other programmes of NSA and the Five Eyes alliance,^[39] all of which operated at far greater capacities^[40] and were held to be minimally effective.^[41] The questions this poses of the effectiveness, reliance and proportionality of the Indian surveillance programme can never truly be answered due to the lack of information surrounding capacity and technology of the Indian surveillance programmes, as highlighted in the article. With regard to criminal databases used in surveillance, such as the NATGRID, equivalent systems both domestically (especially in the USA) and internationally (such as the one run by the Interpol)^[42] are impossible due to the NATGRID not even being fully operational yet.^[43]

Conclusion

Even if we were to ignore the issues in principle with mass surveillance, the pervasive, largely unregulated and mass scale surveillance being carried in India using the tools and technologies detailed above have various technical and policy failings. It is imperative that transparency, accountability and legal scrutiny be made an integral part of the security apparatus in India. The risks of security breaches, politically motivated actions and foreign state hacking only increase with the absence of public accountability mechanisms. Further, opening up the technologies used for these operations to regular security audits will also improve their resilience to such attacks.

^[1] http://cis-india.org/internet-governance/blog/the-constitutionality-of-indian-surveillance-law

^[2] http://india.blogs.nytimes.com/2013/07/10/how-surveillance-works-in-india/

^[3] https://www.privacyinternational.org/node/818

^[4] http://cis-india.org/internet-governance/blog/state-of-cyber-security-and-surveillance-in-india.pdf

^[5] http://cis-india.org/internet-governance/blog/security-surveillance-and-data-sharing.pdf

^[6] http://cis-india.org/internet-governance/blog/paper-thin-safeguards.pdf

^[7] http://pib.nic.in/newsite/PrintRelease.aspx?relid=54679 & http://www.dot.gov.in/sites/default/files/English%20annual%20report%202007-08_0.pdf

^[8] http://ijlt.in/wp-content/uploads/2015/08/IJLT-Volume-10.41-62.pdf

^[9] http://www.thehindu.com/scitech/technology/in-the-dark-about-indias-prism/article4817903.ece

^[10] http://cis-india.org/internet-governance/blog/india-centralmonitoring-system-something-to-worry-about

^[11] https://www.justice.gov/sites/default/files/pages/attachments/2016/07/08/ind195494.e.pdf

^[12] http://www.datacenterdynamics.com/content-tracks/security-risk/indian-lawful-interception-data-centers-are-complete/94053.fullarticle

^[13] http://natgrid.attendance.gov.in/ [Attendace records at the NATGRID Office!]

^[14] http://articles.economictimes.indiatimes.com/2013-09-10/news/41938113_1_executive-order-nationalintelligence-grid-databases

^[15] http://www.business-standard.com/article/current-affairs/natgrid-to-use-big-data-analytics-to-track-suspects-1

^[16] http://sflc.in/wp-content/uploads/2014/09/SFLC-FINAL-SURVEILLANCE-REPORT.pdf

^[17] http://indiatoday.intoday.in/story/natgrid-gets-green-nod-but-hurdles-remain/1/543087.html

^[18] http://www.thehindu.com/news/national/govt-violates-privacy-safeguards-to-secretly-monitor-internet-traffic/article5107682.ece

^[19] ibid

^[20] http://www.thehoot.org/story_popup/no-escaping-the-surveillance-state-8742

^[21] http://ncrb.gov.in/BureauDivisions/CCTNS/cctns.htm

^[22] ibid

^[23] http://economictimes.indiatimes.com/news/politics-and-nation/ncrb-to-connect-police-stations-and-crime-data-across-country-in-6-months/articleshow/45029398.cms

^[24] http://indiatoday.intoday.in/education/story/crime-criminal-tracking-network-system/1/744164.html

^[25] http://www.dailypioneer.com/nation/govt-cctns-to-be-operational-by-2017.html

^[26] http://articles.economictimes.indiatimes.com/2012-03-10/news/31143069_1_scanning-internet-monitoring-system-internet-data

^[27] Surveillance, Snowden, and Big Data: Capacities, consequences, critique: http://journals.sagepub.com/doi/pdf/10.1177/2053951714541861

^[28] http://www.thehindubusinessline.com/industry-and-economy/info-tech/article2978636.ece

^[29] See previous section in the article “NTRO”

^[30] Van Dijck, José. "Datafication, dataism and dataveillance: Big Data between scientific paradigm and ideology." Surveillance & Society 12.2 (2014): 197.

^[31] http://www.dailymail.co.uk/indiahome/indianews/article-3353230/Nat-Grid-knots-India-s-delayed-counter-terror-programme-gets-approval-green-body-red-tape-stall-further.html

^[32] http://cacm.acm.org/magazines/2015/5/186025-privacy-behaviors-after-snowden/fulltext

^[33] https://freedomhouse.org/report/freedom-press/2015/india

^[34] http://blogs.wsj.com/indiarealtime/2014/06/05/indias-snooping-and-snowden/

^[35] http://articles.economictimes.indiatimes.com/2012-03-10/news/31143069_1_scanning-internet-monitoring-system-internet-data

^[36] http://economictimes.indiatimes.com/tech/internet/government-to-launch-netra-for-internet-surveillance/articleshow/27438893.cms

^[37] http://trak.in/internet/indian-internet-traffic-8tbps-2017/

^[38] http://www.economist.com/news/briefing/21579473-americas-national-security-agency-collects-more-information-most-people-thought-will

^[39] http://www.washingtonsblog.com/2013/07/the-fact-that-mass-surveillance-doesnt-keep-us-safe-goes-mainstream.html

^[40] http://www.washingtonpost.com/wp-srv/special/politics/prism-collection-documents/

^[41] Supra Note 35

^[42] http://www.papillonfoundation.org/information/global-crime-database/

^[43] http://www.thehindu.com/opinion/editorial/Revive-NATGRID-with-safeguards/article13975243.ece

For more details visit https://cis-india.org/internet-governance/blog/the-design-technology-behind-india2019s-surveillance-programmes

Cyber security, surveillance and the right to privacy: country perspectives

praskrishna — 2013-01-23T12:10:23Z

This blog post is fourth in a series of eight blog posts to report on the “Third South Asian Meeting on the Internet and Freedom of Expression” recently concluded in Dhaka, Bangladesh.

This post was published in the Internet Democracy Project Website on January 22, 2013. All the blog posts in this series are written by Richa Kaul Padte, the official rapporteur at the meeting.

'The best way to protect people’s rights is to enable people to protect their rights themselves' – Chinmayi Arun

Pranesh Prakash, CIS India	Opening the session on cyber security, surveillance and privacy, moderator Pranesh Prakash from the Centre for Internet and Society (India) frames the debate by talking about how the principles raised by discussions on security, privacy and surveillance are always in tension with each other. ‘The boundaries that have been drawn in a pre-digital era don’t apply online always [and] the classic model of state-controlled surveillance is not as relevant [today].’

Taking forward the discussion by setting both a global and national framework around the issue, Assistant Professor at the Delhi-based National Law University Chinmayi Arun brings to light the ways in which cyber security is consistently tabled on several global agendas; however, with little to no meaningful parallel discussions around the right to privacy. She also connects the idea of surveillance to notions of censorship vis a vis freedom of expression, and poignantly states: ‘surveillance is a lot more insidious than censorship – [so much] more can take place before people realise it is happening.’ Prakash furthers this idea in his transition between country perspectives by highlighting the ways in which surveillance measures are already established and heavily pervasive, with both Prakash and Arun advocating greater transparency in areas where these measures are in place. As Arun says, ‘it’s not true that every instance of surveillance needs to be secret until it’s done’, and distinguishing between necessary surveillance measures (in the case of crime investigations, for example) and those that position all people as criminals who must be monitored, is key to taking the discussion forward.

Chinmayi Arun, National Law University Delhi, India

Mohammed Nazmuzzaman Bhuian, Dhaka University

Mohammad Nazmuzzaman Bhuian, an Associate Professor from the University of Dhaka, opens a Bangladeshi country perspective with the question, ‘how does a cyber security act become a surveillance act?’ A cyber crime refers to any crime that involves a computer or a network, and the crimes under this can play out in two ways. The computer itself may be a target, or it may be used to carry out a crime. It is when it is used to carry out a crime that the question of online surveillance arises

Offering another perspective from Bangladesh, Head of the Centre for IT Security and Privacy and Assistant Professor, University of Asia Pacific, Mohammad Shahriar Rahman, discusses the manipulation of security and surveillance laws by the State in order to create greater security for itself. He cites the ban of YouTube in the country in response to a US-produced video ridiculing the Prophet Mohammed and the attacks on bloggers who have advocated for free speech on the Internet, including speech that may be anti-authoritarian or anti-religious. These examples echo Mariyath Mohamed’s perspectives on the interplay between religion, politics and censorship from the previous session, which clearly resound through many South Asian countries.

Mohammad Shahriar Rahman, University of Asia Pacific, Bangladesh

Kailash Prasad Neupane, Nepal Telecommunications Authority	Perspectives from Nepal, offered by speaker Kailash Prasad Neupane from the Nepal Telecommunications Authority, highlight the acute similarities between the laws in different South Asian countries, which all position the freedom of expression as ‘subject to certain restrictions’, where the subjectivity of the clause tends to be interpreted by a powerful and majority State against its minority citizens, thus undermining both democracy and citizens’ rights. As Rahman says, ‘if the government wants to be seen as democratic in these times, they need to realise you can’t jail everyone who is critical of the Prime Minister.’

Speaking from the floor, Bishakha Datta, from Mumbai-based women’s media organisation Point of View, expands on the speakers’ views by highlighting the ways in which, given the extensive measures of State security and surveillance, societies themselves become structured around a culture of surveillance that citizens in turn internalise and see as a necessary part of their lives. She asks, ‘when we talk about the right to privacy, are we saying that we are willing to accept surveillance as long as our privacy is maintained, or are we opposing it on the grounds of privacy?’ Echoing Prakash’s idea that ‘the way in which security and privacy are portrayed as being at loggerheads is false’, Arun responds to Datta by advocating privacy as the starting point for all discussions surrounding security. In summary she states, ‘we must underline our right to privacy,and that right must always dominate. One must always start with that right, and then narrow the circumstances in which, only when it is absolutely necessary and to the extent absolutely necessary, it may be violated.’ And it is through this consistent demand for the right to privacy, and the placing of citizens and individuals (rather than the interests of the State) at the heart of these conversations, that we can see security and privacy as co-existing notions that work to ensure, rather than suppress, freedom of expression.	Bishakha Datta, Point of View, India

For more details visit https://cis-india.org/news/internet-democracy-richa-kaul-padte-jan-22-2013-cyber-security-surveillance-and-the-right-to-privacy

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

pranesh — 2014-03-06T23:02:45Z

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

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

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

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

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

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

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

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

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

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

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

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

CIS Submission to the UN Special Rapporteur on Freedom of Speech and Expression: Surveillance Industry and Human Rights

2019-02-20T10:48:24Z

CIS responded to the call for submissions from the UN Special Rapporteur on Freedom of Speech and Expression. The submission was on the Surveillance Industry and Human Rights.

CIS is grateful for the opportunity to submit the United Nations (UN) Special Rapporteur on call for submissions on the surveillance industry and human rights.1 Over the last decade, CIS has worked extensively on research around state and private surveillance around the world. In this response, individuals working at CIS wish to highlight these programs, with a special focus on India.

The response can be accessed here.

For more details visit https://cis-india.org/internet-governance/blog/cis-submission-to-the-un-special-rapporteur-on-freedom-of-speech-and-expression-surveillance-industry-and-human-rights

Privacy and Security Can Co-exist

sunil — 2012-03-21T09:05:57Z

The blanket surveillance the Centre seeks is not going to make India more secure, writes Sunil Abraham in this article published in Mail Today on June 21, 2011.

TODAY, the national discourse around the “ right to privacy” posits privacy as antithetical to security.

Nothing can be farther from the truth. Privacy is a necessary but not sufficient condition for security. A bank safe is safe only because the keys are held by a trusted few. No one else can access these keys or has the ability to duplicate them. The 2008 amendment of the IT Act and their associated rules notified April 2011 propose to eliminate whatever little privacy Indian netizens have had so far. Already as per the Internet Service Provider ( ISP) licence, citizens using encryption above 40- bit were expected to deposit the complete decryption key with the Ministry of Communications and Information Technology. This is as intelligent as citizens of a neighbourhood making duplicates of the keys to their homes and handing them over at the local police station.

Surveillance

Surveillance in any society is like salt in cooking — essential in small quantities but completely counter- productive even slightly in excess. Blanket surveillance makes privacy extinct, it compromises anonymity, essential ingredients for democratic governance, free media, arts and culture, and, most importantly, commerce and enterprise. The Telegraph Act only allowed for blanket surveillance as the rarest of the rare exception. The IT Act, on the other hand, mandates multitiered blanket surveillance of all lawabiding citizens and enterprises.

When your mother visits the local cybercafe to conduct an e- commerce transaction, at the very minimum there are two levels of blanket surveillance. According to the cyber- cafe rules, all her transaction logs will be captured and stored by the operator for a period of one year. This gentleman would also have access to her ID document and photograph. The ISPs would also store her logs for two years to be in compliance with the ISP licence ( even though none of them publish a data- retention policy). Some e- commerce website, to avoid liability, will under the Intermediary Due Diligence rules also retain logs.

Data retention at the cyber- cafe, by the ISP and also by the application service provider does not necessarily make Indian cyberspace more secure. On the contrary, redundant storage of sensitive personal information only opens up multiple points of failure and leaks — in the age of Nira Radia and Amar Singh no sensible bank would accept such intrusion into their core business processes.

Surveillance capabilities are not a necessary feature of information systems.

They have to be engineered into these systems. Once these features exist they could potentially serve both the legally authorised official and undesirable elements.

Terrorists, cyber- warriors and criminals will all find systems with surveillance capabilities easier to compromise.

In other words, surveillance compromises security at the level of system design. There were no Internet or phone lines in the Bin Laden compound — he was depending on a store and forward arrangement based on USB drives. Do we really think that registration of all USB drives, monitoring of their usage and the provision of back doors to these USBs via a master key would have led the investigators to him earlier?

Myth

Increase in security levels is not directly proportional to an increase in levels of surveillance gear. This is only a myth perpetuated by vendors of surveillance software and hardware via the business press. You wouldn't ask the vendors of Xray machines how many you should purchase for an airport, would you? An airport airport with 2,000 X- ray machines is not more secure than one with 20. But in the age of UID and NATGRID, this myth has been the best route for reaching salestargets using tax- payers’ money.

Surveillance must be intelligent, informed by evidence and guided by a scientific method. Has the ban on public WiFi and the current ID requirements at cyber- cafes led to the arrest of terrorists or criminals in India? Where is the evidence that more resource hungry blanket surveillance is going to provide a return on the investment? Unnecessary surveillance is counter- productive and distracts the security agenda with irrelevance.

Finally, there is the question of perception management. Perceptions of security do not only depend on reality but on personal and popular sentiment. There are two possible configurations for information systems — one, where the fundamental organising principle is trust and second, where the principle is suspicion.

Systems based on suspicion usually give rise to criminal and corrupt behaviour.

Perception

If the state were to repeatedly accuse its law- abiding citizens of being terrorists and criminals it might end up provoking them into living up to these unfortunate expectations. If citizens realise that every moment of their digital lives is being monitored by multiple private and government bodies, they will begin to use anonymisation and encryption technology round the clock even when it is not really necessary. Ordinary citizens will be forced to visit the darker and nastier corners of the Internet just to download encryption tools and other privacy enabling software. Like prohibition this will only result in further insecurity and break- down of the rule of law.

The writer is executive director of the Bangalore- based Centre for Internet and Society.

Read the original published in Mail Today here

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

India:Privacy in Peril

bhairav — 2013-09-25T09:56:22Z

The danger of mass surveillance in India is for real. The absence of a regulating law is damning for Indians who want to protect their privacy against the juggernaut of state and private surveillance.

The article was originally published in the Frontline on July 12, 2013.

At the concluding scene of his latest movie, Superman disdainfully flings a surveillance drone down to earth in front of a horrified general. “You can’t control me,” he tells his military minder. “You can’t find out where I hang up my cape.” This exchange goes to the crux of surveillance: control. Surveillance is the means by which nation-states exercise control over people. If the logical basis of the nation-state is the establishment and maintenance of homogeneity, it is necessary to detect and interdict dissent before it threatens the boundedness and continuity of the national imagination. This imagination often cannot encompass diversity, so it constructs categories of others that include dissenters and outsiders. Admittedly, this happens less in India because the foundation of the Indian nation-state imagined a diverse society expressing a plurality of ideas in a variety of languages secured by a syncretic and democratic government that protected individual freedoms. Unfortunately, this vision is still to be realised, and the foundational idea of India continues to be challenged by poor governance, poverty, insurgencies and rebellion. Consequently, surveillance is, for the modern nation-state, a condicio sine qua non—an essential element without which it will eventually cease to exist. The challenge for democratic nation-states is to find the optimal balance between surveillance and the duty to protect the freedoms of its citizens.

History of wiretaps

Some countries, such as the United States, have assembled a vast apparatus of surveillance to monitor the activities of their citizens and foreigners. Let us review the recent controversy revealed by the whistle-blower Edward Snowden. In 1967, the U.S. Supreme Court ruled in Katz vs United States that wiretaps had to be warranted, judicially sanctioned and supported by probable cause. This resulted in the passage of the Wiretap Act of 1968 that regulated domestic surveillance. Following revelations that Washington was engaging in unrestricted foreign surveillance in the context of the Vietnam war and anti-war protests, the U.S. Congress enacted the Foreign Intelligence Surveillance Act (FISA) in 1978. FISA gave the U.S. government the power to conduct, without judicial sanction, surveillance for foreign intelligence information; and, with judicial sanction from a secret FISA court, surveillance of anybody if the ultimate target was a foreign power. Paradoxically, even a U.S. citizen could be a foreign power in certain circumstances. Domestically, FISA enabled secret warrants for specific items of information such as library book borrowers and car rentals.

Following the 9/11 World Trade Centre attacks, Congress enacted the Patriot Act of 2001, Section 215 of which dramatically expanded the scope of FISA to allow secret warrants to conduct surveillance in respect of “any tangible thing” that was relevant to a national security investigation. In exercise of this power, a secret FISA court issued secret warrants ordering a number of U.S. companies to share, in real time, voice and data traffic with the National Security Agency (NSA). We may never know the full scope of the NSA’s surveillance, but we know this: (a) Verizon Communications, a telecommunications major, was ordered to provide metadata for all telephone calls within and without the U.S.; (b) the NSA runs a clandestine programme called PRISM that accesses Internet traffic, such as e-mails, web searches, forum comments and blogs, in real time; and (c) the NSA manages a comprehensive data analysis system called Boundless Informant that intercepts and analyses voice and data traffic around the world and subjects them to automated pattern recognition. The documents leaked by Snowden allege that Google, Facebook, Apple, Dropbox, Microsoft and Yahoo! participate in PRISM, but these companies have denied their involvement.

India fifth-most monitored

How does this affect India? The Snowden documents reveal that India is the NSA’s fifth-most monitored country after Iran, Pakistan, Jordan and Egypt. Interestingly, China is monitored less than India. Several billion pieces of data from India, such as e-mails and telephone metadata, were intercepted and monitored by the NSA. For Indians, it is not inconceivable that our e-mails, should they be sent using Gmail, Yahoo! Mail or Hotmail, or our documents, should we be subscribing to Dropbox, or our Facebook posts, are being accessed and read by the NSA. Incredibly, most Indian governmental communication, including that of Ministers and senior civil servants, use private U.S. e-mail services. We no longer enjoy privacy online. The question of suspicious activity, irrespective of the rubric under which suspicion is measured, is moot. Any use of U.S. service providers is potentially compromised since U.S. law permits intrusive dragnet surveillance against foreigners. This clearly reveals a dichotomy in U.S. constitutional law: the Fourth Amendment’s guarantees of privacy, repeatedly upheld by U.S. courts, protect U.S. citizens to a far greater extent than they do foreigners. It is natural for a nation-state to privilege the rights of its citizens over others. As Indians, therefore, we must clearly look out for ourselves.

Privacy and personal liberty

Unfortunately, India does not have a persuasive jurisprudence of privacy protection. In the Kharak Singh (1964) and Gobind (1975) cases, the Supreme Court of India considered the question of privacy from physical surveillance by the police in and around homes of suspects. In the latter case, the court found that some of the Fundamental Rights “could be described as contributing to the right to privacy”, which was subject to a compelling public interest. This insipid inference held the field until 1994 when, in the Rajagopal (“Auto Shankar”, 1994) case, the Supreme Court, for the first time, directly located privacy within the ambit of the right to personal liberty recognised by Article 21 of the Constitution. However, Rajagopal dealt specifically with the publication of an autobiography, it did not consider the privacy of communications. In 1997, the Supreme Court considered the question of wiretaps in the People’s Union for Civil Liberties (PUCL) case. While finding that wiretaps invaded the privacy of communications, it continued to permit them subject to some procedural safeguards which continue to be routinely ignored. A more robust statement of the right to privacy was made by the Delhi High Court in the Naz Foundation case (2011) that decriminalised consensual homosexual acts; however, there is an appeal against the judgment in the Supreme Court.

Legislative silence

Judicial vagueness has been compounded by legislative silence. India does not have a law to operationalise a right to privacy. Consequently, a multitude of laws permit daily infractions of privacy. These infractions have survived because they are diverse, dissipated and quite disorganised. However, the technocratic impulse to centralise and consolidate surveillance and data collection has, in recent years, alarmed many citizens. The state hopes to, through enterprises such as the Central Monitoring System (CMS), the Crime and Criminals Tracking Network and System (CCTNS), the National Intelligence Grid (NATGRID), the Telephone Call Interception System (TCIS) and the Unique Identification Number (UID), replicate the U.S. successes in surveillance and monitoring and profiling all its citizens. However, unlike the U.S., India proposes to achieve this without an enabling law. Let us consider the CMS. No documents have been made available that indicate the scope and size of the CMS.

From a variety of police tenders for private equipment, it appears that the Central government hopes to put in place a system that will intercept, in real time, all voice and data traffic originating or terminating in India or being carried by Indian service providers. This data will be subject to pattern recognition and other automated tests to detect emotional markers, such as hate, compassion or intent. The sheer scale of this enterprise is intimidating; all communications in India’s many languages will be subject to interception and testing designed to detect different forms of dissent. This mammoth exercise in monitoring is taking place—it is understood that some components of the CMS are already operational—without statutory sanction. No credible authorities exist to supervise this exercise, no avenues for redress have been identified and no consequences have been laid down for abuse.

Statutory Surveillance

In a recent interview, Milind Deora, Minister of State for Communications and Information Technology, dismissed public scepticism of the CMS saying that direct state access to private communications was better for privacy since it reduced dependence on the interception abilities of private service providers. This circular argument is both disingenuous and incorrect. No doubt, trusting private persons with the power to intercept and store the private data of citizens is flawed. The leaking of the Niira Radia tapes, which contain the private communications of Niira Radia taped on the orders of the Income Tax Department, testifies to this flaw. However, bypassing private players to enable direct state access to private communications will preclude leaks and, thereby, remove from public knowledge the fact of surveillance. This messy situation may be obviated by a regime of statutory regulation of warranted surveillance by an independent and impartial authority. This system is favoured by liberal democracies around the world but conspicuously resisted by the Indian government.

The question of privacy legislation was recently considered by a committee chaired by Justice Ajit Prakash Shah, a former judge of the Delhi High Court who sat on the Bench that delivered the Naz Foundation judgment. The Shah Committee was constituted by the Planning Commission for a different reason: the need to protect personal data that are outsourced to India for processing. The lack of credible privacy law, it is foreseen, will result in European and other foreign personal data being sent to other attractive processing destinations, such as Vietnam, Israel or the Philippines, resulting in the decline of India’s outsourcing industry. However, the Shah Committee also noted the absence of law sufficient to protect against surveillance abuses. Most importantly, the Shah Committee formulated nine national privacy principles to inform any future privacy legislation (see story on page 26). In 2011, the Department of Personnel and Training (DoPT) of the Ministry of Human Resource Development, the same Ministry entrusted with implementing the Right to Information Act, 2005, leaked a draft privacy Bill, marked ‘Secret’, on the Internet. The DoPT Bill received substantive criticism from the Attorney General and some government Secretaries for the clumsy drafting. A new version of the DoPT Bill is reported to have been drafted and sent to the Ministry of Law for consideration. This revised Bill, which presumably contains chapters to regulate surveillance, including the interception of communications, has not been made public.

The need for privacy legislation cannot be overstated. The Snowden affair reveals the extent of possible state surveillance of private communications. For Indians who must now explore ways to protect their privacy against the juggernaut of state and private surveillance, the absence of regulatory law is damning. Permitting, through public inaction, unwarranted and non-targetted dragnet surveillance by the Indian state without reasonable cause would be an act of surrender of far-reaching implications.

Information, they say, is power. Allowing governments to exercise this power over us without thought for the rule of law constitutes the ultimate submission possible in a democratic nation-state. And, since superheroes are escapist fantasies, without the prospect of good laws we will all be subordinate to a new national imagination of control and monitoring, surveillance and profiling. If allowed to come to pass, this will be a betrayal of the foundational idea of India as a free and democratic republic tolerant of dissent.

Bhairav Acharya is a constitutional lawyer practising in the Supreme Court of India. He advises the Centre for Internet & Society, Bangalore, on privacy law and other constitutional issues.

For more details visit https://cis-india.org/internet-governance/blog/frontline-cover-story-july-12-2013-bhairav-acharya-privacy-in-peril

Pegasus snoopgate, an opportune moment to revisit legal framework governing state surveillance framework

Gurshabad Grover and Tanaya Rajwade — 2020-07-09T01:30:34Z

Revelations of hacking call for a relook at India’s surveillance regime

This article by Gurshabad Grover and Tanaya Rajwade was published in the Indian Express on December 25, 2019. The authors would like to thank Arindrajit Basu for his comments and suggestions.

In early November, it became clear that several lawyers and human rights activists had been targeted by spyware that allowed attackers unfettered access to information stored on victims’ phones. On November 29, in the Rajya Sabha, the Minister of Electronics and Information Technology was repeatedly asked whether any Indian agency had commissioned the attack vector ‘‘Pegasus” that was used in the attacks from the Israeli firm NSO. Where a categorical response would have sufficed, the minister chose to muddy the waters through vague assertions such as “standard operating procedures have been followed”.

There are cogent reasons pointing towards an Indian law enforcement agency’s hand in procuring Pegasus. First, NSO maintains that it only sells services and software to state agencies. Second, some of the known Indian targets of the vulnerability are human rights activists. These individuals work on India-specific issues and hardly qualify as serious threats in the eyes of a foreign government.

The government derives some of its powers to conduct electronic surveillance from Section 69 of the Information Technology (IT) Act. The procedures for such surveillance are defined in the IT (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009. It is these rules, and not the parent Act that define the terms “interception” and “monitoring” as “acquisition of the contents of any information through the use of any means” and “to view or to inspect or listen to or record information”, respectively. These all-encompassing definitions seemingly permit authorised law enforcement agencies to use Pegasus-like tools.

However, the IT Act also penalises unauthorised access to computers without the owner’s permission. These provisions, namely section 43 and 66, do not carve out an exception for law enforcement agencies. As lawyer Raman Chima highlighted recently, any action explicitly prohibited under the Act cannot be justified by procedures laid out in subordinate legislation. Therefore, no law enforcement agency can “hack” devices, though they may “intercept” or “monitor” through other means. Additionally, the Supreme Court’s privacy verdict held any invasion of privacy by the state must be based on a law. As some of the agencies authorised to conduct surveillance (like the Intelligence Bureau) do not have statutory backing, surveillance by them is unconstitutional.

The use of spyware gives the state access to private conversations, including privileged communications with lawyers. Such an infringement of rights may be justified for militants suspected of actively planning an armed attack. For academicians and human rights activists, the use of broad surveillance without any evidence or anticipation of such activities is unfathomable in a democracy.

With the popularity of end-to-end encryption, surveillance may require the exploitation of vulnerabilities on end-users’ devices. The Pegasus snoopgate is an opportune moment to revisit the legal framework governing the state surveillance framework. It is crucial to dismantle state agencies that run surveillance operations despite lacking statutory authority. For other agencies, there is a need to introduce judicial and parliamentary oversight. Depending on the concerns of law enforcement, it may be necessary to enact legislation permitting “hacking” into devices on extremely limited grounds.

Unfortunately, the government has taken a massive leap backwards by ignoring the standards laid down by the Supreme Court and Justice Srikrishna Committee’s recommendations, and introducing unconstitutional surveillance enablers in the Data Protection Bill. Now is the time for Parliament to guarantee the privacy and security of Indians.

Grover and Rajwade are researchers at the Centre for Internet and Society (CIS). Views are personal. Disclosure: CIS is a recipient of research grants from Facebook.

For more details visit https://cis-india.org/internet-governance/blog/pegasus-snoopgate-an-opportune-moment-to-revisit-legal-framework-governing-state-surveillance-framework

Privacy and Surveillance Roundtable

praskrishna — 2014-06-29T14:50:20Z

The Centre for Internet and Society and the Cellular Operators Association of India invite you to a roundtable at the India International Centre, New Delhi on July 4, 2014.

Background and Context to the Roundtables

In India, lawful interception of communications may be conducted by the state in three ways: firstly, intercepting telephone calls and other telecommunications may take place under powers listed in the Telegraph Act, 1885 and procedure set out in the Telegraph Rules, 1951; secondly, intercepting written communications transmitted through the postal service or by private couriers may occur under the Post Office Act, 1898; and, thirdly, intercepting, de-crypting, and monitoring email messages and other electronic communications may take place under the Information Technology Act, 1950 and two sets of Rules issued in 2008.

The government’s intention to create a Central Monitoring System to automate the existing process of telephone tapping is significant for a number of reasons. It will bypass private telephone service providers; currently the active cooperation of TSPs is required and compelled in order to intercept and monitor a telephone conversation. This creates an extra layer of compliance activity for TSPs which is cumbersome and expensive. Interception orders from the state often do not comply with the procedure required by law. This uncertainty is compounded by the lack of an indemnity for TSPs.

However, while the CMS will release TSPs from legal liability, it will leave the government free to conduct telephone interceptions in absolute secrecy and without a credible system of oversight and checks and balances. Amongst the world’s major democratic countries, India is alone in refusing to overhaul its telephone tapping regime. The legal requirements of probable cause, judicial sanction, and warrant-based interception – which are followed with exceptions in democracies around the world – are not adequately protected in India. The same principles also apply to the interception of postal and electronic communications.

There are several intelligence and police agencies in India that conduct interceptions of communications without central coordination. Previous cases in the Supreme Court of India and a few Indian High Courts reveal many cases of improper and even illegal surveillance. The sheer number of interested state agencies, the concerns of inadequate oversight, the lack of a credible legal regime, the constant leaks of private communications, and the poor legal protection given to TSPs and ISPs must be legally addressed.

Information about the Roundtables

The Privacy and Surveillance Roundtables are a CIS initiative, in partnership with the Cellular Operators Association of India (COAI). 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 Report of the Group of Experts on Privacy

In January 2012 Justice A.P. Shah formed a committee to create a report of recommendations for privacy legislation in India. The committee met seven times from January 2012 to September 2012. The Report is made up of six chapters and begins by reviewing the international best practices around privacy and the relevant Indian jurisprudence. The Report then recommends nine National Privacy Principles to be adopted by each sector in India. The Nine National Privacy Principles reflect international standards, as well as taking into consideration the Indian context. Along with the National Privacy Principles, the Report lays out a regulatory framework for privacy including privacy commissioners at the regional and national level, self regulating organizations at the industry level, and a system of complaints. Finally the report demonstrates how the National Privacy Principles could be used to harmonize existing legislation and practices.

The Draft CIS Citizens Privacy (Protection) Bill 2013

The Centre for Internet and Society has been researching privacy in India since 2010 with the objective of raising public awareness, completing in depth research, and driving a privacy legislation in India. As part of this work, the Centre for Internet and Society has drafted the Privacy (Protection) Bill 2013. The Citizens Privacy Protection Bill contains provisions that speak to data protection, interception, and surveillance. The Bill also establishes the powers and functions of the privacy commissioner, and lays out offenses and penalties for contravention of the Act. The Bill represents a citizens’ version of a privacy legislation, and will be shared with civil society, industry, and government. It is hoped that the review and revision of the Bill will be a participatory process, and thus comments and feedback to it’s’ provisions will be included as annex’s to the Bill.

The International Principles on the Application of Human Rights to Communication Surveillance

These principles were defined in 2013 in response to rapidly changing technologies and surveillance practices. The principles are the outcome of a global consultation with civil society groups, industry and international experts in communications surveillance law, policy and technology, spearheaded by the Electronic Frontier Foundation US and Privacy International UK. As technologies that facilitate State surveillance of communications advance, States are failing to ensure that laws and regulations related to communications surveillance adhere to international human rights and adequately protect the rights to privacy and freedom of expression. These principles attempt to explain how international human rights law applies in the current digital environment, particularly in light of the increase in and changes to communications surveillance technologies and techniques. These principles can provide civil society groups, industry, States and others with a framework to evaluate whether current or proposed surveillance laws and practices are consistent with human rights.

Tentative Agenda

Time	Detail
10.00 11.00	Introduction
11.00 11.30	Tea
11.30 13.00	Discussion
13.00 14.00	Lunch
14.00 16.00	Discussion
16.00 16.15	Tea

Resources

For more details visit https://cis-india.org/internet-governance/events/privacy-and-surveillance-roundtable-new-delhi

The Difficult Balance of Transparent Surveillance

kovey — 2013-07-15T04:23:35Z

Is it too much to ask for transparency in data surveillance? On occasion, companies like Microsoft, Facebook, and the other silicon valley giants would say no. When customers join these services, each company provides their own privacy statement which assures customers of the safety and transparency that accompanies their personal data.

This research was undertaken as part of the 'SAFEGUARDS' project that CIS is undertaking with Privacy International and IDRC

Google even publishes annual “Transparency Reports” which detail the data movement behind the scenes. Governments, too, are somewhat open about surveillance methods, for example with the public knowledge of the existence and role of institutions like America’s NSA and India’s CMS. These façades of assurance, however, never satisfy the public enough to protect them from feeling cheated and deceived when information leaks about surveillance practices. And in the face of controversy around surveillance, both service providers and governments scramble to provide explanations for discrepancies between their promises and their practices.

So it seems that transparency might not be too much to ask, but instead is perhaps more complicated of a request than imagined. For some citizens, nothing would be more satisfying than complete transparency on all data collection. For those who recognize surveillance as crucial for national security, however, complete transparency would mean undermining the very efficacy of surveillance practices. And data companies often find themselves caught between these two ends, simultaneously seeking profits by catering to the public, while also trying to abide by political and legal frameworks. Therefore, in the process of modern data surveillance, each attempt at resolution of the transparency issue will become a delicate balance between three actors: the government, the big data companies, and the people. As rightly stated on the Digital Due Process website, rules for surveillance must carefully consider “the individual’s constitutional right to privacy, the government’s need for tools to conduct investigations, and the interest of service providers in clarity and customer trust.”[1]

So we must unpack the idea of transparency.

First, there should be a distinction made between proactive transparency and reactive transparency, or, the announcement of surveillance practices versus the later access to surveillance records. The former is more risky and therefore more difficult to entertain, while the latter may lack any real substance beyond satisfying inquiries. Also consider the discrepancy in motivation for transparency between the actors. For the citizen, is transparency really an end goal, or is it only a stepping stone in the argument for eradication of surveillance practices in the name of rights to privacy? Here, we ascertain the true value of total transparency; will it ever please citizens to learn of a government’s most recent undermining of the private sphere?

Reactive transparency has been achieved only in recent years in India, during a number of well publicized legal cases. In one of the earliest cases of reactive transparency, Reliance Communications made an affidavit in the Supreme Court over the exact number of surveillance directives given by the government. It was released that 151,000 Reliance accounts were monitored for a project between 2006 and 2010, with 3,588 tapped phones just from the Delhi region alone in 2005.[2]

But also there has been controversy over the extent of reactive transparency, because it has been especially problematic to discern the point where transparency once again encroaches on privacy, both for government and the people’s sake. After gathering the data, its release could further jeopardize the citizens and the government. It is important to carefully consider the productive extent of reactive transparency: What will become of the information? Will one publicly reveal how many people were spied on? Who was spied on? What was found when through spying? Citizens must take all of this into consideration when requesting transparency.

Meanwhile, service providers embrace transparency when it can benefit their corporation, or as a recent Facebook statement explained, “we’ve been in discussions with U.S. national security authorities urging them to allow more transparency, so that our users around the world can understand how infrequently we are asked to provide user data on national security grounds.” [a] Many of the service providers mentioned in the recently leaked PRISM report have made well-publicized requests to the U.S. government for more transparency.[3]

Not only have they allegedly written requests to the government to allow them to disclose information, but the companies (including Facebook [a], Apple [b], Microsoft[c], and Google [d]) have all released explanatory statements in the wake of the June 2013 PRISM scandal. Although service providers claim that the request to release data about their cooperation is in the ‘interest of transparency,’ it instead seems that the motivation for this transparency is to ease consumers’ concerns and help the companies save face. The companies (and the government) will admit their participation in surveillance once it has become impossible to deny their association with the programs. This shrewd aspect of transparency can be seen most clearly in statements like those from Microsoft, who included in their statement on June 14^th, “We have not received any national security orders of the type that Verizon was reported to have received.” [c] Spontaneous allusions like this are meant to contrast guilt-conscious service providers favorably to telecom service providers such as AT&T and Verizon, who allegedly yielded the most communications data and who as of now have yet to release defensive public statements.

Currently, we find ourselves in a situation where entities admit to their collusion in snooping only once information has leaked, indignation has ignited, and scandal has erupted. A half-hearted proactive transparency leads to an outrage demanding reactive semi-transparency. These weak forms of transparency neither satisfy the public, nor allow governments and service providers to maintain dignity.

But now is also a crucial moment for possible reevaluation and reformation of this system, especially in India. Not only is India enacting its own national security surveillance system, the CMS[4] but the recent NSA and PRISM revelations are still sending shockwaves throughout the world of cyber security and surveillance. Last week, a Public Interest Litigation (PIL) was sent to the Indian Supreme Court, arguing that nine foreign service providers (Facebook, Hotmail, Yahoo!, Google, Apple, Skype, Paltalk, AOL, YouTube) violated the trust and privacy of their Indian customers through their collusion with the US government’s surveillance programs.[5]

Among other things, the PIL emphatically sought prosecution of the mentioned corporations, demands for the service providers to establish servers in India, and also sought stricter rules to prevent Indian officials from using these foreign services for work involving national security. Ultimately, the PIL was rejected by the Supreme Court; although the PIL stated the grounds of Rule 6 of the Information Technology Rules 2011 for the guidelines in protecting sensitive Indian citizen information, the SC saw the PIL as addressing problems outside of SC jurisdiction, and was quoted as saying “we cannot entertain the petition as an Indian agency is not involved.”[5][6]

The SC considered the PIL only partially, however, as certain significant parts of the petition were indeed within Indian domestic agency, for example the urge to prohibit federal officials from using the private email services such as Gmail, Hotmail, and Yahoo. And although the SC is not the correct place to push for new safeguard legislation, the ideas of the PIL are not invalid, as Indian leaders have long searched for ways of ensuring basic Indian privacy laws in the context of international service providers. This is also not a problem distinctive to India. International service providers have entered into agreements regarding the same problems of incorporating international customers’ rights, formal agreements which India could emulate if it wanted to demand greater privacy or transparency.

For example, there is the Safe Harbor Framework, an institution in place to protect and mediate European Union citizens’ privacy rights within the servers of foreign (i.e. American) Internet companies. These regulations were established in 2000, and serve the purpose of adjusting foreign companies’ standards to incorporate E.U. privacy laws. In accordance with the agreement, E.U. data is only allowed to be sent to outside providers who maintain the seven Safe Harbor principles, several of which focus on transparency of data usage.[7] India could enact a system similar to this, and it would likely alleviate some of the concerns raised in the most recent PIL. These frameworks, however, have not proven completely reliable safeguards either, especially when the service providers’ own government uses national security as a means to override the agreement. Although the U.S. government has yet to fully confirm or deny many of the NSA and PRISM allegations in regards to Europe, there is currently strong room to believe that the surveillance practices may have violated the Safe Harbor agreements by delivering sensitive E.U. citizen data to the U.S. government.[8] It is uncertain how these revelations will impact the agreements made between the big Silicon-Valley companies and their E.U. customers.

The recent PIL also strongly suggested establishing domestic data servers to keep Indian citizens’ information within the country and under the direct supervision of Indian entities. It strongly pushes for self-reliance as the best way to ensure both citizen and national security. The PIL assumes that domestic servers will not only offer better information protection, but also create much needed jobs and raise national tax revenue.[5] If allegations about PRISM and the E.U. prove true, then the E.U. may also decide to support establishment of European servers as well.

Several of the ideas outlined in the PIL have merit, but may not be as productive as the requesters assume. It is true that establishing servers and domestic regulators in India may temporarily protect from unwanted foreign, i.e. American, surveillance. But at the same time, this also increases likelihood of India’s own central government taking a stronger surveillance stance, more stringently monitoring their own servers and databases. It has not yet been described how the CMS will be operate its surveillance methods, but moving data to domestic servers may just result in shifting power from NSA to CMS. Rather than more privacy or transparency, the situation could easily become a matter of who citizens prefer spying over them.

Even if one government establishes rules which enforce transparency, this may clash with the laws of the service providers’ domestic government, i.e. confidentiality in surveillance. Considering all of this, rejection of foreign service providers and promotion of domestic self reliance may ultimately prove the most effective alternative for nations which are growing rapidly in both internet presence and internet consciousness. But that does not make this option the easiest. Facing the revelations and disillusionment of domestic (CMS) and international (PRISM) surveillance methods, countries like India are reaching an impeding critical juncture. Now is the most important time to establish new norms, while public sentiment is at its highest and transition is most possible, not only creating new laws which can safeguard privacy, but also strongly considering alternatives to foreign service providers like those outlined in June’s PIL. Privacy International’s guiding principles of communications surveillance also offer useful advice, urging for the establishment of oversight institutions which can access surveillance records and periodically publish aggregate data on surveillance methods.[9] Although the balance between security on the national level and security on the personal level will continue to be problematic for nations in the upcoming years, and even though service providers’ positions on surveillance usually seem contrived, Microsoft Vice President John Frank made a statement which deserves appreciation, rightly saying, “Transparency alone may not be enough to restore public confidence, but it’s a great place to start.”[c]

[1]. http://digitaldueprocess.org/

[2]. http://bit.ly/151Ue1H

[3]. http://bit.ly/12XDb1Z

[4]. http://ti.me/11Xh08V

[5]. Copy of 2013 PIL to Supreme Court, Prof. S.N. Singh [attached]

[6]. http://bit.ly/1aXWdbU

[7]. http://1.usa.gov/qafcXe

[8]. http://bit.ly/114hcCX

[9]. http://bit.ly/156wspI

[a]. Facebook Statement: http://bit.ly/ZQDcn6

[b]. Apple Statement: http://bit.ly/1akaBuN

[c]. Microsoft Statement:http://bit.ly/1bFIt31

[d]. Google Statement: http://bit.ly/16QlaqB

For more details visit https://cis-india.org/internet-governance/blog/the-difficult-balance-of-transparent-surveillance

Spy Files 3: WikiLeaks Sheds More Light On The Global Surveillance Industry

maria — 2013-11-14T16:21:00Z

In this article, Maria Xynou looks at WikiLeaks' latest Spy Files and examines the legality of India's surveillance technologies, as well as their potential connection with India's Central Monitoring System (CMS) and implications on human rights.

Last month, WikiLeaks released “Spy Files 3”, a mass exposure of the global surveillance trade and industry. WikiLeaks first released the Spy Files in December 2011, which entail brochures, presentations, marketing videos and technical specifications on the global trade of surveillance technologies. Spy Files 3 supplements this with 294 additional documents from 92 global intelligence contractors.

So what do the latest Spy Files reveal about India?

When we think about India, the first issues that probably come to mind are poverty and corruption, while surveillance appears to be a more “Western” and elitist issue. However, while many other developing countries are excluded from WikiLeaks’ list of surveillance technology companies, India is once again on the list with some of the most controversial spyware.

ISS World Surveillance Trade Shows

The latest Spy Files include a brochure of the ISS World 2013 -the so-called “wiretapper’s ball”- which is the world’s largest surveillance trade show. This years ’ ISS World Asia will take place in Malaysia during the first week of December and law enforcement agencies from around the world will have another opportunity to view and purchase the latest surveillance tech. The leaked ISS World 2013 brochure entails a list of last years’ global attendees. According to the brochure, 53% of the attendees included law enforcement agencies and individuals from the defense, public safety and interior security sectors, 41% of the attendees were ISS vendors and technology integrators, while only 6% of the attendees were telecom operators and from the private enterprise. The brochure boasts that 4,635 individuals from 110 countries attended the ISS World trade shows last year and that the percentage of attendance is increasing.

The following table lists the Indian attendees at last years ’ ISS World:

Law Enforcement, Defense and Interior Security Attendees	Telecom Operators and Private Enterprises Attendees	ISS Vendors and Technology Integrators Attendees
Andhra Pradesh India Police	BT	AGC Networks
CBI Academy	Cogence Investment Bank	Aqsacom India
Government of India, Telecom Department	India Reliance Communications	ClearTrail Technologies
India Cabinet Secretariat	Span Telecom Pvt. Ldt.	Foundation Technologies
India Centre for Development of Telematics (C-DOT)		Kommlabs
India Chandigarh Police		Paladion Networks
India Defence Agency		Polaris Wireless
India General Police		Polixel Security Systems
India Intelligence Department		Pyramid Cyber Security
India National Institute of Criminology		Schleicher Group
India office LOKAYUKTA NCT DELHI		Span Technologies
India Police Department, A.P.		TATA India
India Tamil Nadu Police Department		Tata Consultancy Services
Indian Police Service, Vigilance		Telecommunications India
Indian Telecommunications Authority		Vehere Interactive
NTRO India
SAIC Indian Tamil Nadu Police

17 4 15

According to the above table - which is based on data from the WikiLeaks ’ ISS World 2013 brochure- the majority of Indian attendees at last years’ ISS World were from the law enforcement, defense and interior security sectors. 15 Indian companies exhibited and sold their surveillance technologies to law enforcement agencies from around the world and it is notable that India’s popular ISP provider, Reliance Communications, attended the trade show too.

In addition to the ISS World 2013 brochure, the Spy Files 3 entail a detailed brochure of a major Indian surveillance technology company: ClearTrail Technologies.

ClearTrail Technologies

ClearTrail Technologies is an Indian company based in Indore. The document titled “Internet Monitoring Suite ” from ClearTrail Technologies boasts about the company’s mass monitoring, deep packet inspection, COMINT, SIGINT, tactical Internet monitoring, network recording and lawful interception technologies. ClearTrail’s Internet Monitoring Suite includes the following products:

1. ComTrail: Mass Monitoring of IP and Voice Networks

ComTrail is an integrated product suite for centralized interception and monitoring of voice and data networks. It is equipped with an advanced analysis engine for pro-active analysis of thousands of connections and is integrated with various tools, such as Link Analysis, Voice Recognition and Target Location.

ComTrail is deployed within a service provider network and its monitoring function correlates voice and data intercepts across diverse networks to provide a comprehensive intelligence picture. ComTrail supports the capture, record and replay of a variety of Voice and IP communications in pretty much any type of communication, including - but not limited to- Gmail, Yahoo, Hotmail, BlackBerry, ICQ and GSM voice calls.

Additionally, ComTrail intercepts data from any type of network -whether Wireless, packet data, Wire line or VoIP networks- and can decode hundreds of protocols and P2P applications, including HTTP, Instant Messengers, Web-mails, VoIP Calls and MMS.

In short, ComTrail’s key features include the following:

- Equipped to handle millions of communications per day intercepted over high speed STM & Ethernet Links

- Doubles up as Targeted Monitoring System

- On demand data retention, capacity exceeding several years

- Instant Analysis across thousands of Terabytes

- Correlates Identities across multiple networks

- Speaker Recognition and Target Location

2. xTrail: Targeted IP Monitoring

xTrail is a solution for interception, decoding and analysis of high speed data traffic over IP networks and independently monitors ISPs/GPRS and 3G networks. xTrail has been designed in such a way that it can be deployed within minutes and enables law enforcement agencies to intercept and monitor targeted communications without degrading the service quality of the IP network. This product is capable of intercepting all types of networks -including wireline, wireless, cable, VoIP and VSAT networks- and acts as a black box for “record and replay” targeted Internet communications.

Interestingly enough, xTrail can filter based on a “pure keyword”, a URL/Domain with a keyword, an IP address, a mobile number or even with just a user identity, such as an email ID, chat ID or VoIP ID. Furthermore, xTrail can be integrated with link analysis tools and can export data in a digital format which can allegedly be presented in court as evidence.

In short, xTrail’s key features include the following:

- Pure passive probe

- Designed for rapid field operations at ISP/GPRS/Wi-Max/VSAT Network Gateways

- Stand-alone solution for interception, decoding and analysis of multi Gigabit IP traffic

- Portable trolley based for simplified logistics, can easily be deployed and removed from any network location

- Huge data retention, rich analysis interface and tamper proof court evidence

- Easily integrates with any existing centralized monitoring system for extended coverage

3. QuickTrail: Tactical Wi-Fi Monitoring

Some of the biggest IP monitoring challenges that law enforcement agencies face include cases when targets operate from public Internet networks and/or use encryption.

QuickTrail is a device which is designed to gather intelligence from public Internet networks, when a target is operating from a cyber cafe, a hotel, a university campus or a free Wi-Fi zone. In particular, QuickTrail is equipped with multiple monitoring tools and techniques that can help intercept almost any wired, Wi-Fi or hybrid Internet network so that a target communication can be monitored. QuickTrail can be deployed within fractions of seconds to intercept, reconstruct, replay and analyze email, chat, VoIP and other Internet activities of a target. This device supports real time monitoring and wiretapping of Ethernet LANs.

According to ClearTrail’s brochure, QuickTrail is a “all-in-one” device which can intercept secured communications, know passwords with c-Jack attack, alert on activities of a target, support active and passive interception of Wi-Fi and wired LAN and capture, reconstruct and replay. It is noteworthy that QuickTrail can identify a target machine on the basis of an IP address, MAC ID, machine name, activity status and several other parameters. In addition, QuickTrail supports protocol decoding, including HTTP, SMTP, POP3 and HTTPS. This device also enables the remote and central management of field operations at geographically different locations.

In short, QuickTrail’s key features include the following:

- Conveniently housed in a laptop computer

- Intercepts Wi-Fi and wired LANs in five different ways

- Breaks WEP, WPA/WPA2 to rip-off secured Wi-Fi networks

- Deploys spyware into a target’s machine

- Monitor’s Gmail, Yahoo and all other HTTPS-based communications

- Reconstructs webmails, chats, VoIP calls, news groups and social networks

4. mTrail: Off-The-Air Interception

mTrail offers active and passive ‘off-the-air’ interception of GSM 900/1800/1900 Mhz phone calls and data to meet law enforcement surveillance and investigation requirements. The mTrail passive interception system works in the stealth mode so that there is no dependence on the network operator and so that the target is unaware of the interception of its communications.

The mTrail system has the capability to scale from interception of 2 channels (carrier frequencies) to 32 channels. mTrail can be deployed either in a mobile or fixed mode: in the mobile mode the system is able to fit into a briefcase, while in the fixed mode the system fits in a rack-mount industrial grade chassis.

Target location identification is supported by using signal strength, target numbers, such as IMSI, TIMSI, IMEI or MSI SDN, which makes it possible to listen to the conversation on so-called “lawfully intercepted” calls in near real-time, as well as to store all calls. Additionally, mTrail supports the interception of targeted calls from pre-defined suspect lists and the monitoring of SMS and protocol information.

In short, mTrail’s key features include the following:

- Designed for passive interception of GSM communications

- Intercepts Voice and SMS “off-the-air”

- Detects the location of the target

- Can be deployed as a fixed unit or mounted in a surveillance van

- No support required from GSM operator

5. Astra: Remote Monitoring and Infection framework

“Astra ” is a remote monitoring and infection framework which incorporates both conventional and proprietary infection methods to ensure bot delivery to the targeted devices. It also offers a varied choice in handling the behavior of bots and ensuring non-traceable payload delivery to the controller.

The conventional methods of infection include physical access to a targeted device by using exposed interfaces, such as a CD-ROM, DVD and USB ports, as well as the use of social media engineering techniques. However, Astra also supports bot deployment without requiring any physical access to the target device.

In particular, Astra can push bot to any targeted machine sharing the same LAN (wired, wi-fi or hybrid). The SEED is a generic bot which can identify a target’s location, log keystrokes, capture screen-shots, capture Mic, listen to Skype calls, capture webcams and search the target’s browsing history. Additionally, the SEED bot can also be remotely activated, deactivated or terminated, as and when required. Astra allegedly provides an un-traceable reporting mechanism that operates without using any proxies, which overrules the possibility of getting traced by the target.

Astra’s key features include the following:

- Proactive intelligence gathering

- End-to-end remote infection and monitoring framework

- Follow the target, beat encryption, listen to in-room conversations, capture keystrokes and screen shots

- Designed for centralized management of thousands of targets

- A wide range of deployment mechanisms to optimize success ration

- Non-traceable, non-detectable delivery mechanism

- Intrusive yet stealthy

- Easy interface for handling most complex tasks

- Successfully tested over the current top 10 anti-virus available in the market

- No third party dependencies

- Free from any back-door intervention

ClearTrail Technologies argue that they meet lawful interception regulatory requirements across the globe. In particular, they claim that their products are compliant with ETSI and CALEA regulations and that they are efficient to cater to region specific requirements as well.

The latest Spy Files also include data on foreign surveillance technology companies operating in India, such as Telesoft Technologies, AGT International and Verint Systems. In particular, Verint Systems has its headquarters in New York and offices all around the world, including Bangalore in India. Founded in 1994 and run by Dan Bodner, Verint Systems produces a wide range of surveillance technologies, including the following:

- Impact 360 Speech Analytics

- Impact 360 Text Analytics

- Nextiva Video Management Software (VMS)

- Nextiva Physical Security Information Management (PSIM)

- Nextiva Network Video Recorders (NVRs)

- Nextiva Video Business Intelligence (VBI)

- Nextiva Surveillance Analytics

- Nextiva IP cameras

- CYBERVISION Network Security

- ENGAGE suite

- FOCAL-INFO (FOCAL-COLLECT & FOCAL-ANALYTICS)

- RELIANT

- STAR-GATE

- VANTAGE

While Verint Systems claims to be in compliance with ETSI, CALEA and other worldwide lawful interception and standards and regulations, it remains unclear whether such products successfully help law enforcement agencies in tackling crime and terrorism, without violating individuals’ right to privacy and other human rights. After all, Verint Systems has participated in ISS World Trade shows which exhibit some of the most controversial spyware in the world, used to target individuals and for mass surveillance.

And what do the latest Spy Files mean for India?

Why is it even important to look at the latest Spy Files? Well, for starters, they reveal data about which Indian law enforcement agencies are interested in surveillance and which companies are interested in selling and/or buying the latest spy gear. And why is any of this important? I can think of three main reasons:

1. The Central Monitoring System (CMS)

2. Is any of this surveillance even legal in India?

3. Can such surveillance result in the violation of human rights?

Spy Files 3...and the Central Monitoring System (CMS)

Following the Mumbai 2008 terrorist attacks, the Telecom Enforcement, Resource and Monitoring (TREM) cells and the Centre for Development of Telematics (C-DOT) started preparing the Central Monitoring System (CMS ). As of April 2013, this project is being manned by the Intelligence Bureau, while agencies which are planned to have access to it include the Research & Analysis Wing (RAW) and the Central Bureau of Investigation (CBI). ISP and Telecom operators are required to install the gear which enables law enforcement agencies to carry out the Central Monitoring System under the Unified Access Services (UAS ) License Agreement.

The Central Monitoring System aims at centrally monitoring all telecommunications and Internet communications in India and its estimated cost is Rs . 4 billion. In addition to equipping government agencies with Direct Electronic Provisioning, filters and alerts on the target numbers, the CMS will also enable Call Data Records (CDR) analysis and data mining to identify personal information of the target numbers. The CMS supplements regional Internet Monitoring Systems , such as that of Assam, by providing a nationwide monitoring of telecommunications and Internet communications, supposedly to assist law enforcement agencies in tackling crime and terrorism.

However, data monitored and collected through the CMS will be stored in a centralised database, which could potentially increase the probability of centralized cyber attacks and thus increase, rather than reduce, threats to national security. Furthermore, some basic rules of statistics indicate that the bigger the amount of data , the bigger the probability of an error in matching profiles, which could potentially result in innocent people being charged with crimes they did not commit. And most importantly: the CMS currently lacks adequate legal oversight, which means that it remains unclear how monitored data will be used. The UAS License Agreement regarding the CMS mandates mass surveillance by requiring ISPs and Telecom operators to enable the monitoring and interception of communications. However, targeted and mass surveillance through the CMS not only raises serious questions around its legality, but also creates the potential for abuse of the right to privacy and other human rights.

Interestingly enough, Indian law enforcement agencies which attended last years ’ ISS World trade shows are linked to the Central Monitoring System. In particular, last years’ law enforcement, defense and interior security attendees include the Centre for Development of Telematics (C-DOT) and the Department of Telecommunications, both of which prepared the Central Monitoring System. The list of attendees also includes India’s Intelligence Bureau, which is manning the CMS, as well as the agencies which will have access to the CMS: the Central Bureau of Investigation (CBI), the Research and Analysis Wing (RAW), the National Technical Research Organization (NTRO) and various other state police departments and intelligence agencies.

Furthermore, Spy Files 3 entail a list of last years ’ ISS World security company attendees, which includes several Indian companies. Again, interestingly enough, many of these companies may potentially be aiding law enforcement with the technology to carry out the Central Monitoring System. ClearTrail Technologies, in particular, provides solutions for targeted and mass monitoring of IP and voice networks, as well as remote monitoring and infection frameworks - all of which would potentially be perfect to aid the Central Monitoring System.

In fact, ClearTrail states in its brochure that its ComTrail product is equipped to handle millions of communications per day, while its xTrail product can easily be integrated with any existing centralised monitoring system for extended coverage. And if that’s not enough, ClearTrail’s “Astra ” is designed for the centralized management of thousands of targets. While there may not be any concrete proof that ClearTrail is indeed aiding the Centralized Monitoring System, the facts speak for themselves: ClearTrail is an Indian company which sells target and mass monitoring products to law enforcement agencies. The Centralized Monitoring System is currently being implemented. What are the odds that ClearTrail is not equipping the CMS? And what are the odds that such technology is not being used for other mass electronic surveillance programmes, such as the Lawful Intercept and Monitoring (LIM)?

Spy Files 3...and the legality of India’s surveillance technologies

ClearTrail Technologies’ brochure -the only leaked document on Indian surveillance technology by the latest Spy Files- states that the company complies with ETSI and CALEA regulations. While it’s clear that the company complies with U.S. and European regulations on the interception of communications to attract more customers in the international market, such regulations don’t really apply within India, which is part of ClearTrail’s market. Notably enough, ClearTrail does not mention any compliance with Indian regulations in its brochure. So let’s have a look at them.

India has five laws which regulate surveillance:

1. The Indian Telegraph Act, 1885

2. The Indian Post Office Act, 1898

3. The Indian Wireless Telegraphy Act, 1933

4. The Code of Criminal Procedure (CrPc ), 1973: Section 91

5. The Information Technology (Amendment ) Act, 2008

The Indian Post Offices Act does not cover electronic communications and the Indian Wireless Telegraphy Act lacks procedures which would determine if surveillance should be targeted or not. Neither the Indian Telegraph Act nor the Information Technology (Amendment ) Act cover mass surveillance, but are both limited to targeted surveillance. Moreover, targeted interception in India according to these laws requires case-by-case authorization by either the home secretary or the secretary department of information technology. In other words, unauthorized, limitless, mass surveillance is not technically permitted by law in India.

The Indian Telegraph Act mandates that the interception of communications can only be carried out on account of a public emergency or for public safety. However, in 2008, the Information Technology Act copied most of the interception provisions of the Indian Telegraph Act, but removed the preconditions of public emergency or public safety, and instead expanded the power of the government to order interception for the “investigation of any offense”.

The interception of Internet communications is mainly covered by the 2009 Rules under the Information Technology Act 2008 and Sections 69 and 69 B are particularly noteworthy. According to these Sections, an Intelligence Bureau officer who leaked national secrets may be imprisoned for up to three years, while Section 69 not only allows for the interception of any information transmitted through a computer resource, but also requires that users disclose their encryption keys upon request or face a jail sentence of up to seven years.

While these laws allow for the interception of communications and can be viewed as widely controversial, they do not technically permit the mass surveillance of communications. In other words, ClearTrail’s products, such as ComTrail, which enable the mass interception of IP networks, lack legal backing. However, the Unified Access Services (UAS ) License Agreement regarding the Central Monitoring System mandates mass surveillance and requires ISP and Telecom operators to comply.

Through the licenses of the Department of Telecommunications, Internet service providers, cellular providers and telecoms are required to provide the Government of India direct access to all communications data and content even without a warrant, which is not permitted under the laws on interception. These licenses also require cellular providers to have ‘bulk encryption’ of less than 40 bits, which means that potentially any person can use off-the-air interception to monitor phone calls. However, such licenses do not regulate the capture of signal strength, target numbers like IMSI, TIMSI, IMEI or MSI SDN, which can be captured through ClearTrail’s mTrail product.

More importantly, following allegations that the National Technical Research Organization (NTRO) had been using off-the-air interception equipment to snoop on politicians in 2011, the Home Ministry issued a directive to ban the possession or use of all off-the-air phone interception gear. As a result, the Indian Government asked the Customs Department to provide an inventory of all all such equipment imported over a ten year period, and it was uncovered that as many as 73,000 pieces of equipment had been imported. Since, the Home Ministry has informed the heads of law enforcement agencies that there has been a compete ban on use of such equipment and that all those who possess such equipment and fail to inform the Government will face prosecution and imprisonment. In short, ClearTrail's product, mTrail, which undertakes off-the-air phone monitoring is illegal and Indian law enforcement agencies are prohibited from using it.

ClearTrail’s “Astra ” product is capable of remote infection and monitoring, which can push bot to any targeted machine sharing the same LAN. While India’s ISP and telecommunications licenses generally provide some regulations, they appear to be inadequate in regulating specific surveillance technologies which have the capability to target machines and remotely monitor them. Such licenses mandate mass surveillance, but legally, wireless communications are completely unregulated, which raises the question of whether the interception of public Internet networks is allowed. In other words, it is not clear if ClearTrail’s QuickTrail is technically legal or not. The UAS License agreement mandates mass surveillance, and while the law does not prohibit it, it does not mandate mass surveillance either. This remains a grey area.

The issue of data retention arises from ClearTrail ’s leaked brochure. In particular, ClearTrail states in its brochure that ComTrail - which undertakes mass monitoring of IP and Voice networks - retains data upon request, with a capacity that exceeds several years. xTrail - for targeted IP monitoring - has the ability to retain huge volumes of data which can potentially be used as proof in court. However, India currently lacks privacy legislation which would regulate data retention, which means that data collected by ClearTrail could potentially be stored indefinitely.

Section 7 of the Information Technology (Amendment) Act, 2008, deals with the retention of electronic records. However, this section does not state a particular data retention period, nor who will have authorized access to data during its retention, who can authorize such access, whether retained data can be shared with third parties and, if so, under what conditions. Section 7 of the Information Technology (Amendment) Act, 2008, appears to be incredibly vague and to fail to regulate data retention adequately.

Data retention requirements for service providers are included in the ISP and UASL licenses and, while they clarify the type of data they retain, they do not specify adequate conditions for data retention. Due to the lack of data protection legislation in India, it remains unclear how long data collected by companies, such as ClearTrail, would be stored for, as well as who would have authorized access to such data during its retention period, whether such data would be shared with third parties and disclosed and if so, under what conditions.

India currently lacks specific regulations for the use of various types of technologies, which makes it unclear whether ClearTrail ’s spy products are technically legal or not. It is clear that ClearTrail’s mass interception products, such as ComTrail, are not legalized - since Indian laws allow for targeted interception- but they are mandated through the UAS License agreement regarding the Central Monitoring System.

In short, the legality of ClearTrail’s surveillance technologies remains ambiguous. While India’s ISP and telecom licenses and the UAS License Agreement mandate mass surveillance, the laws - particularly the 2009 Information Technology Rules- mandate targeted surveillance and remain silent on the issue of mass surveillance. Technically, this does not constitute mass surveillance legal or illegal, but rather a grey area. Furthermore, while India ’s Telegraph Act, Information Technology Act and 2009 Rules allow for the interception, monitoring and decryption of communications and surveillance in general, they do not explicitly regulate the various types of surveillance technologies, but rather attempt to “legalize” them through the blanket term of surveillance.

One thing is clear: India’s license agreements ensure that all ISPs and telecom operators are a part of the surveillance regime. The lack of regulations for India’s surveillance technologies appear to create a grey zone for the expansion of mass surveillance in the country. According to Saikat Datta, an investigative journalist, a senior privacy telecom official stated:

“Do you really think a private telecom company can stand up to the government or any intelligence agency and cite law if they want to tap someone’s phone?”

Spy Files 3...and human rights in India

The facts speak for themselves. The latest Spy Files confirm that the same agencies involved in the development of the Central Monitoring System (CMS) are also interested in the latest surveillance technology sold in the global market. Spy Files 3 also provide data on one of India’s largest surveillance technology companies, ClearTrail, which sells a wide range of surveillance technologies to law enforcement agencies around the world. And Spy Files 3 show us exactly what these technologies can do.

In particular, ClearTrail’s ComTrail provides mass monitoring of IP and voice networks, which means that law enforcement agencies using it are capable of intercepting millions of communications every day through Gmail, Yahoo, Hotmail and others, of correlating our identities across networks and of targeting our location. xTrail enables law enforcement agencies to monitor us based on our “harmless” metadata, such as our IP address, our mobile number and our email ID. Think our data is secure when using the Internet through a cyber cafe? Well QuickTrail proves us wrong, as it’s able to assist law enforcement agencies in monitoring and intercepting our communications even when we are using public Internet networks.

And indeed, carrying a mobile phone is like carrying a GPS device, especially since mTrail provides law enforcement with off-the-air interception of mobile communications. Not only can mTrail target our location, listen to our calls and store our data, but it can also undertake passive off-the-air interception and monitor our voice, SMS and protocol information. Interestingly enough, mTrail also intercepts targeted calls from a predefined suspect list. The questions though which arise are: who is a suspect? How do we even know if we are suspects? In the age of the War on Terror, potentially anyone could be a suspect and thus potentially anyone’s mobile communications could be intercepted. After all, mass surveillance dictates that we are all suspicious until proven innocent .

And if anyone can potentially be a suspect, then potentially anyone can be remotely infected and monitored by Astra. Having physical access to a targeted device is a conventional surveillance mean of the past. Today, Astra can remotely push bot to our laptops and listen to our Skype calls, capture our Webcams, search our browsing history, identify our location and much more. And why is any of this concerning? Because contrary to mainstream belief, we should all have something to hide !

Privacy protects us from abuse from those in power and safeguards our individuality and autonomy as human beings. If we are opposed to the idea of the police searching our home without a search warrant, we should be opposed to the idea of our indiscriminate mass surveillance. After all, mass surveillance - especially the type undertaken by ClearTrail ’s products - can potentially result in the access, sharing, disclosure and retention of data much more valuable than that acquired by the police searching our home. Our credit card details, our photos, our acquaintances, our personal thoughts and opinions, and other sensitive personal information can usually be found in our laptops, which potentially can constitute much more incriminating information than that found in our homes.

And most importantly: even if we think that we have nothing to hide, it’s really not up to us to decide: it’s up to data analysts. While we may think that our data is “harmless”, a data analyst linking our data to various other people and search activities we have undertaken might indicate otherwise. Five years ago, a UK student studying Islamic terrorism for his Masters dissertation was detained for six days . The student may not have been a terrorist, but his data said this: “Young, male, Muslim... who is downloading Al-Qaeda’s training material” - and that was enough for him to get detained. Clearly, the data analysts mining his online activity did not care about the fact that the only reason why he was downloading Al-Qaeda material was for his Masters dissertation. The fact that he was a male Muslim downloading terrorist material was incriminating enough.

This incident reveals several concerning points: The first is that he was clearly already under surveillance, prior to downloading Al-Qaeda’s material. However, given that he did not have a criminal record and was “just a Masters student in the UK”, there does not appear to be any probable cause for his surveillance in the first place. Clearly he was on some suspect list on the premise that he is male and Muslim - which is a discriminative approach. The second point is that after this incident, it is likely that some male Muslims may be more cautious about their online activity - with the fear of being on some suspect list and eventually being prosecuted because their data shows that “they’re a terrorist”. Thus, mass surveillance today appears to also have implications on freedom of expression. The third point is that this incident reveals the extent of mass surveillance, since even a document downloaded by a Masters student is being monitored.

This case proves that innocent people can potentially be under surveillance and prosecuted, as a result of mass, indiscriminate surveillance. Anyone can potentially be a suspect today, and maybe for the wrong reasons. It does not matter if we think our data is “harmless”, but what matters is who is looking at our data, when and why. Every bit of data potentially hides several other bits of information which we are not aware of, but which will be revealed within a data analysis. We should always “have something to hide ”, as that is the only way to protect us from abuse by those in power.

In the contemporary surveillance state, we are all suspects and mass surveillance technologies, such as the ones sold by ClearTrail, can potentially pose major threats to our right to privacy, freedom of expression and other human rights. And probably the main reason for this is because surveillance technologies in India legally fall in a grey area. Thus, it is recommended that law enforcement agencies in India regulate the various types of surveillance technologies in compliance with the International Principles on Communications Surveillance and Human Rights.

Spy Files 3 show us why our human rights are at peril and why we should fight for our right to be free from suspicion.

This article was cross-posted in Medianama on 6th November 2013.

For more details visit https://cis-india.org/internet-governance/blog/spy-files-three

Roundtable on Indian Privacy Law and Policy

bhairav — 2014-12-27T14:18:16Z

This event was hosted by the Centre for Law and Development of the National University of Advanced Legal Studies (NUALS) in Kochi. It was attended by members of the faculty of NUALS, some students from the 2nd year, 3rd year, 4th year, and 5th year.

The meeting began with a talk by Bhairav Acharya on the origin of privacy law, its jurisprudential evolution, and the current context in which privacy is being debated in India and around the world.

Bhairav began by talking about the nature of privacy law around the world. Privacy has, until recently, never been a right in English common law. Indeed, the tort of invasion of privacy is also relatively incomplete. Privacy is protected through other torts, including the torts of nuisance, trespass, and others. European treaty requirements have foisted a right to privacy upon the British legal system; the contours of this right remain unclear.

American courts, on the other hand, have been more receptive to claims of the right to privacy. There is much in the American political and legal tradition that has contributed to the easy acceptability of privacy claims. Not least among these are the strong emphasis on the individual as the fundamental unit of governance and sovereignty, and the American libertarian tradition of autonomy.

Bhairav then spoke of the right to privacy in India. Early cases in the Supreme Court of India see privacy as a negotiation between the liberties of citizens and the power of the state. In a legal tradition deeply influenced by colonialism, Indian courts readily accepted claims against physical police surveillance and other related rights in the criminal justice process – public rights against the state that were once denied to Indian subjects of colonial rule, but held short of viewing privacy as a necessary individual protection against society. This has resulted in dichotomous privacy jurisprudence.

Bhairav then talked about the contexts in which privacy claims arise in India today. Specifically, he spoke about increasingly sophisticated surveillance techniques and large-scale personal data collection and processing. There are many complexities in both these fields and a lot of time and questions were spent going over them. Surveillance is older than the nation-state; privacy law does not seek the end of surveillance, but only its optimal use. There are many kinds of surveillance, the contemporary debate deals solely with wiretapping and electronic surveillance. Privacy law cannot be blind to the many other kinds of surveillance, including old-fashioned physical surveillance on the road.

Data collection, too, cannot be ended, nor should it for it forms the basis of modern commerce and is tied to India’s economic growth. There were questions and discussion on ‘big data’, data mining, analytics, business models, and other related areas. In India, however, in the absence of an innovative IT industry, the dominant business model is of receiving foreign personal data, usually of Europeans and Americans, to provide cheap processing services. This model depends entirely on comparatively lower Indian wages. Hence, it is not surprising that the first personal data protection rules issued by the Indian government in 2011 applied solely to foreign data that was outsourced to India.

Bhairav then introduced the 2011 draft Right to Privacy Bill that was proposed by the Department of Personnel and Training of the Indian government, as well as the Personal Data Protection Rules issued under the Information Technology Act, 2000. These measures were studied clause-by-clause.

Similarly, Indian law in respect of communications surveillance was analysed in detail. The Indian Telegraph Act 1885, the Indian Telegraph Rules 1951 (including the amendments of 1961, 1999, 2007, and 2014) were looked at in detail. These laws were compared to the Indian Post Office Act 1898 and the Information Technology Act 2000. The 1968 report of the Law Commission of India that examined the wiretapping power and suggested possible overreach was also examined.

Bhairav reviewed Indian law in respect of wiretapping. All Supreme Court case law, especially the cases of Hukum Chand and Peoples Union for Civil Liberties, were analysed. Finally, the group looked at how the legal principles applicable to wiretapping have been extended to electronic and Internet surveillance. Over here, the group studied the two sets of 2011 Rules under the IT Act that enable Internet and email surveillance of both content and metadata.

After a lunch break, the group spoke about possible models for privacy regulation and protection in India. In respect of surveillance, a lot of time was spent discussing the merits and demerits of judicial warranting of surveillance, as opposed to executive authorisations. The consensus of the group, with a few exceptions, was that judicial warranting would not be a suitable model for Indian surveillance, due to several systemic weaknesses. The group also rejected several of the principles proposed by Justice A. P. Shah in the 2012 Report that was commissioned by the Planning Commission.

After a discussion on legislative models, the group discussed, clause-by-clause, the CIS proposal on privacy that was read through by Bhairav. This discussion lasted several hours, and covered many areas.

For more details visit https://cis-india.org/internet-governance/blog/roundtable-on-indian-privacy-law-and-policy

Privacy and Surveillance Roundtable

praskrishna — 2014-06-20T05:26:10Z

The Centre for Internet and Society and the Cellular Operators Association of India in collaboration with the Council for Fair Business Practices invite you to a "Privacy Roundtable" at IMC Building, IMC Marg, Churchgate, Mumbai on June 28, 2014, 10.00 a.m. to 4.00 p.m.

Time	Details
10:00 – 11:00	Introduction
11:00 - 11:30	Tea
11:30 - 13:00	Discussion
13:00 - 14:00	Lunch
14.00 - 16.00	Discussion
16.00 - 16.15	Tea

Background and Context to the Roundtables

Information about the Roundtables

The Report of the Group of Experts on Privacy

The Draft CIS Citizens Privacy (Protection) Bill 2013

The International Principles on the Application of Human Rights to Communication Surveillance

Tentative schedule for the Roundtables:

Mumbai – June 28th
New Delhi – July 4th
Ahmedabad/Hyderabad – August 1st
Bangalore – September 5th
New Delhi – October 3rd
Chennai – October 24th
New Delhi – November 7th

Resources

For more details visit https://cis-india.org/events/privacy-surveillance-roundtable

Interview with Big Brother Watch on Privacy and Surveillance

maria — 2013-10-15T14:24:27Z

Maria Xynou interviewed Emma Carr, the Deputy Director of Big Brother Watch, on privacy and surveillance. View this interview and gain an insight on why we should all "have something to hide"!

For all those of you who haven't heard of Big Brother Watch, it's a London-based campaign group which was founded in 2009 to protect individual privacy and defend civil liberties.

Big Brother Watch was set up to challenge policies that threaten our privacy, our freedoms and our civil liberties, and to expose the true scale of the surveillance state. The campaign group has produced unique research exposing the erosion of civil liberties in the UK, looking at the dramatic expansion of surveillance powers, the growth of the database state and the misuse of personal information. Big Brother Watch campaigns to give individuals more control over their personal data, and hold to account those who fail to respect our privacy, whether private companies, government departments or local authorities.

Emma Carr joined Big Brother Watch as Deputy Director in February 2012 and has since been regularly quoted in the UK press. The Centre for Internet and Society interviewed Emma Carr on the following questions:

How do you define privacy?
Can privacy and freedom of expression co-exist? Why/Why not?
What is the balance between Internet freedom and surveillance?
According to your research, most people worldwide care about their online privacy – yet they give up most of it through the use of social networking sites and other online services. Why, in your opinion, does this occur and what are the potential implications?
Should people have the right to give up their right to privacy? Why/Why not?
What implications on human rights can mass surveillance potentially have?
“I'm not a terrorist and I have nothing to hide...and thus surveillance can't affect me personally.” Please comment.
Do we have Internet freedom?

VIDEO

For more details visit https://cis-india.org/internet-governance/blog/interview-with-big-brother-watch-on-privacy-and-surveillance