Centre for Internet and Society

The constitutionality of MHA surveillance order

nehaa — 2018-12-31T14:06:04Z

The rules require review committees to examine all surveillance orders issued under this section every couple of months.

The article by Nehaa Chaudhari was published in Asian Age on December 30, 2018.

The MHA notification authorising 10 agencies to intercept, monitor and decrypt “any information” generated, transmitted, received or stored in “any computer” has kicked up a row. One section calls it electronic surveillance at the behest of the Big Brother. This time the qualitative difference is data stored anywhere, not just data in motion, can be intercepted.

Privacy is a fundamental right in India. Nine Supreme Court judges agreed on this in late August, last year. It is “the constitutional core of human dignity” and flows primarily from the “guarantee of life and personal liberty” of our Constitution, they said, in the case of K.S.Puttaswamy vs Union of India. This meant two rules for the Indian state. Rule number 1.) Do not intrude upon a citizen’s right to life and personal liberty; and rule number 2.) Take all necessary steps to safeguard individual privacy.

However, because no fundamental right is absolute, the Indian state is allowed to deviate from rule number 1 in certain situations. It can restrict individual privacy provided that it first fulfills three conditions: The restriction must be backed by law; it must be for a legitimate state aim; and, it must be proportionate.

All laws (including existing ones) and government actions, with consequences for individual privacy, must meet the three conditions listed above to be valid.

Those that fail to do so are unconstitutional, and must be suitably amended, or will be struck down, as was the case with Section 377 of the Indian Penal Code, earlier this year. Section 69 of the Information Technology Act, under which the Ministry of Home Affairs has issued its recent surveillance order, warrants similar scrutiny.

Section 69 empowers the Centre and all state governments to authorise any of their officers to surveil citizens’ electronic communications and information. They may do so for any of the reasons laid down in the same section, including India’s sovereignty, integrity, defence, security and foreign relations, or public order, or to prevent the incitement of certain offences, or to investigate any offence. Government orders issued under this section must be reasoned, and in writing. These orders, and the resultant surveillance activity, must follow the procedure laid down in a set of rules framed under the Information Technology Act in 2009. The rules require review committees to examine all surveillance orders issued under this section every couple of months. The review committee at the Centre examines the Union government’s surveillance orders, while state governments’ orders are examined by committees at their respective states. But, review committees, whether at the Centre, or at any of the states, only have
three members each, tasked with reviewing hundreds of orders every day. Moreover, they consist only of government officials. Neither the Information Technology Act, nor the accompanying 2009 rules, require Parliamentary or judicial oversight of electronic surveillance by the executive.

In the past week, at least two petitions have been filed before the Supreme Court,which claim that the MHA’s surveillance order violates the fundamental right to privacy and is unconstitutional. This order for electronic surveillance is a clear deviation from rule number 1, and so the question before the court will be if it meets each of the conditions above to be valid.

Is the MHA order lawful? Yes, given as it was framed under the framework of the IT Act. There remains however, a larger question of the constitutionality of Section 69 itself. If the court finds Section 69 itself to be unconstitutional, any action taken pursuant to Section 69, including the recent MHA order, will also be unconstitutional.

Is the MHA order pursuant to a legitimate state aim? The order itself does not specify what in particular the government hopes to achieve. However, given as it was issued under Section 69, the government could well argue that it was only for the six purposes laid down in the statute.

Moreover, according to the Supreme Court in the right to privacy judgment, legitimate state aims are “matters of policy to be considered by the Union government.” The court even offered examples of possible legitimate state aims, which included the grounds listed under Section 69.

Is the MHA order proportionate? No; and neither is the IT Act’s framework dealing with electronic surveillance. The IT Act allows government surveillance of citizens, unchecked by either the legislature, or the judiciary. It creates a scenario where tiny government committees must review the government’s own decisions to curtail citizens’ fundamental rights. Moreover, it penalises individuals with up to seven years in jail, in addition to fines, for not complying with any interception, monitoring, or decryption request by an authorised government agency.

In light of the recent MHA order, this means that individuals must comply with surveillance requests by 10 government agencies including tax authorities, the police, and civil and military intelligence agencies, or be prepared to face jail time. This is unethical, undemocratic, and unconstitutional.

Unchecked government surveillance threatens not just an individual’s fundamental right to privacy, but also her fundamental freedoms of speech, movement, and assembly among others, also guaranteed fundamental rights under the Indian Constitution.

These rights and freedoms are the very essence of what it means to be a free citizen in a modern democracy. A democratic state must only exercise its police powers in the narrowest of circumstances, within bright lines, clearly defined.

In August, 2017, the Supreme Court laid down the framework to identify these narrow circumstances and bright lines in so far as the fundamental right to privacy was concerned. But, the promise of Puttaswamy is only as good as its implementation, and here lies its biggest challenge.

As Pranesh Prakash, Fellow at the Centre for Internet and Society, said on a television channel recently, perhaps it is about time that we stopped relying solely on the courts to step in to safeguard our fundamental rights, and started demanding that our elected law-markers did their jobs, or did them better. After all, a general election is but a few months away.

For more details visit https://cis-india.org/internet-governance/news/nehaa-chaudhari-asian-age-december-30-2018-constitutionality-of-mha-surveillance-order

Mastering the Art of Keeping Indians Under Surveillance

bhairav — 2015-08-23T12:26:48Z

In its first year in office, the National Democratic Alliance government has been notably silent on the large-scale surveillance projects it has inherited. This ended last week amidst reports the government is hastening to complete the Central Monitoring System (CMS) within the year.

The article was published in the Wire on May 30, 2015.

In a statement to the Rajya Sabha in 2009, Gurudas Kamat, the erstwhile United Progressive Alliance’s junior communications minister, said the CMS was a project to enable direct state access to all communications on mobile phones, landlines, and the Internet in India. He meant the government was building ‘backdoors’, or capitalising on existing ones, to enable state authorities to intercept any communication at will, besides collecting large amounts of metadata, without having to rely on private communications carriers.

This is not new. Legally sanctioned backdoors have existed in Europe and the USA since the early 1990s to enable direct state interception of private communications. But the laws of those countries also subject state surveillance to a strong regime of state accountability, individual freedoms, and privacy. This regime may not be completely robust, as Edward Snowden’s revelations have shown, but at least it exists on paper. The CMS is not illegal by itself, but it is coloured by the compromised foundation of Indian surveillance law upon which it is built.

Surveillance and social control

The CMS is a technological project. But technology does not exist in isolation; it is contextualised by law, society, politics, and history. Surveillance and the CMS must be seen in the same contexts.

The great sociologist Max Weber claimed the modern state could not exist without monopolising violence. It seems clear the state also entertains the equal desire to monopolise communications technologies. The state has historically shaped the way in which information is transmitted, received, and intercepted. From the telegraph and radio to telephones and the Internet, the state has constantly endeavoured to control communications technologies.

Law is the vehicle of this control. When the first telegraph line was laid down in India, its implications for social control were instantly realised; so the law swiftly responded by creating a state monopoly over the telegraph. The telegraph played a significant role in thwarting the Revolt of 1857, even as Indians attempted to destroy the line; so the state consolidated its control over the technology to obviate future contests.

This controlling impulse was exercised over radio and telephones, which are also government monopolies, and is expressed through the state’s surveillance prerogative. On the other hand, because of its open and decentralised architecture, the Internet presents the single greatest threat to the state’s communications monopoly and dilutes its ability to control society.

Interception in India

The power to intercept communications arises with the regulation of telegraphy. The first two laws governing telegraphs, in 1854 and 1860, granted the government powers to take possession of telegraphs “on the occurrence of any public emergency”. In 1876, the third telegraph law expanded this threshold to include “the interest of public safety”. These are vague phrases and their interpretation was deliberately left to the government’s discretion.

This unclear formulation was replicated in the Indian Telegraph Act of 1885, the fourth law on the subject, which is currently in force today. The 1885 law included a specific power to wiretap. Incredibly, this colonial surveillance provision survived untouched for 87 years even as countries across the world balanced their surveillance powers with democratic safeguards.

The Indian Constitution requires all deprivations of free speech to conform to any of nine grounds listed in Article 19(2). Public emergencies and public safety are not listed. So Indira Gandhi amended the wiretapping provision in 1972 to insert five grounds copied from Article 19(2). However, the original unclear language on public emergencies and public safety remained.

Indira Gandhi’s amendment was ironic because one year earlier she had overseen the enactment of the Defence and Internal Security of India Act, 1971 (DISA), which gave the government fresh powers to wiretap. These powers were not subject to even the minimal protections of the Telegraph Act. When the Emergency was imposed in 1975, Gandhi’s government bypassed her earlier amendment and, through the DISA Rules, instituted the most intensive period of surveillance in Indian history.

Although DISA was repealed, the tradition of having parallel surveillance powers for fictitious emergencies continues to flourish. Wiretapping powers are also found in the Maharashtra Control of Organised Crime Act, 1999 which has been copied by Karnataka, Andhra Pradesh, Arunachal Pradesh, and Gujarat.

Procedural weaknesses

Meanwhile, the Telegraph Act with its 1972 amendment continued to weather criticism through the 1980s. The wiretapping power was largely exercised free of procedural safeguards such as the requirements to exhaust other less intrusive means of investigation, minimise information collection, limit the sharing of information, ensure accountability, and others.

This changed in 1996 when the Supreme Court, on a challenge brought by PUCL, ordered the government to create a minimally fair procedure. The government fell in line in 1999, and a new rule, 419A, was put into the Indian Telegraph Rules, 1951.

Unlike the United States, where a wiretap can only be ordered by a judge when she decides the state has legally made its case for the requested interception, an Indian wiretap is sanctioned by a bureaucrat or police officer. Unlike the United Kingdom, which also grants wiretapping powers to bureaucrats but subjects them to two additional safeguards including an independent auditor and a judicial tribunal, an Indian wiretap is only reviewed by a committee of the original bureaucrat’s colleagues. Unlike most of the world which restricts this power to grave crime or serious security needs, an Indian wiretap can even be obtained by the income tax department.

Rule 419A certainly creates procedure, but it lacks crucial safeguards that impugn its credibility. Worse, the contours of rule 419A were copied in 2009 to create flawed procedures to intercept the content of Internet communications and collect metadata. Unlike rule 419A, these new rules issued under sections 69(2) and 69B(3) of the Information Technology Act 2000 have not been constitutionally scrutinised.

Three steps to tap

Despite its monopoly, the state does not own the infrastructure of telephones. It is dependent on telecommunications carriers to physically perform the wiretap. Indian wiretaps take place in three steps: a bureaucrat authorises the wiretap; a law enforcement officer serves the authorisation on a carrier; and, the carrier performs the tap and returns the information to the law enforcement officer.

There are many moving parts in this process, and so there are leaks. Some leaks are cynically motivated such as Amar Singh’s lewd conversations in 2011. But others serve a public purpose: Niira Radia’s conversations were allegedly leaked by a whistleblower to reveal serious governmental culpability. Ironically, leaks have created accountability where the law has failed.

The CMS will prevent leaks by installing servers on the transmission infrastructure of carriers to divert communications to regional monitoring centres. Regional centres, in turn, will relay communications to a centralised monitoring centre where they will be analysed, mined, and stored. Carriers will no longer perform wiretaps; and, since this obviates their costs of compliance, they are willing participants.

In its annual report of 2012, the Centre for the Development of Telematics (C-DOT), a state-owned R&D centre tasked with designing and creating the CMS, claimed the system would intercept 3G video, ILD, SMS, and ISDN PRI communications made through landlines or mobile phones – both GSM and CDMA.

There are unclear reports of an expansion to intercept Internet data, such as emails and browsing details, as well as instant messaging services; but these remain unconfirmed. There is also a potential overlap with another secretive Internet surveillance programme being developed by the Defence R&D Organisation called NETRA, no details of which are public.

Culmination of surveillance

In its present state, Indian surveillance law is unable to bear the weight of the CMS project, and must be vastly strengthened to protect privacy and accountability before the state is given direct access to communications.

But there is a larger way to understand the CMS in the context of Indian surveillance. Christopher Bayly, the noted colonial historian, writes that when the British set about establishing a surveillance apparatus in colonised India, they came up against an established system of indigenous intelligence gathering. Colonial rule was at its most vulnerable at this point of intersection between foreign surveillance and indigenous knowledge, and the meeting of the two was riven by suspicion. So the colonial state simply co-opted the interface by creating institutions to acquire local knowledge.

The CMS is also an attempt to co-opt the interface between government and the purveyors of communications; because if the state cannot control communications, it cannot control society. Seen in this light, the CMS represents the natural culmination of the progression of Indian surveillance. No challenge against it that does not question the construction of the modern Indian state will be successful.

For more details visit https://cis-india.org/internet-governance/blog/the-wire-may-30-2015-bhairav-acharya-mastering-the-art-of-keeping-indians-under-surveillance

Big Brother is watching you

chinmayi — 2014-01-06T09:31:22Z

India has no requirements of transparency whether in the form of disclosing the quantum of interception or in the form of notification to people whose communication was intercepted.

The article by Chinmayi Arun was published in the Hindu on January 3, 2014.

The Gujarat telephone tapping controversy is just one of many kinds of abuse that surveillance systems enable. If a relatively primitive surveillance system can be misused so flagrantly despite safeguards that the government claims are adequate, imagine what is to come with the Central Monitoring System (CMS) and Netra in place.

News reports indicate Netra — a “NEtwork TRaffic Analysis system” — will intercept and examine communication over the Internet for keywords like “attack,” “bomb,” “blast” or “kill.” While phone tapping and the CMS monitor specific targets, Netra is vast and indiscriminate. It appears to be the Indian government’s first attempt at mass surveillance rather than surveillance of predetermined targets. It will scan tweets, status updates, emails, chat transcripts and even voice traffic over the Internet (including from platforms like Skype and Google Talk) in addition to scanning blogs and more public parts of the Internet. Whistle-blower Edward Snowden said of mass-surveillance dragnets that “they were never about terrorism: they’re about economic spying, social control, and diplomatic manipulation. They’re about power.”

So far, our jurisprudence has dealt with only targeted surveillance; and even that in a woefully inadequate manner. This article discusses the slow evolution of the right to privacy in India, highlighting the context and manner in which it is protected. It then discusses international jurisprudence to demonstrate how the right to privacy might be protected more effectively.

Privacy and the Constitution

A proposal to include the right to privacy in the Constitution was rejected by the Constituent Assembly with very little debate. Separately, a proposal to give citizens an explicit fundamental right against unreasonable governmental search and seizure was also put before the Constituent Assembly. This proposal was supported by Dr. B.R. Ambedkar. If accepted, it would have included within our Constitution the principles from which the United States derives its protection against state surveillance. However, the proposed amendment was rejected by the Constituent Assembly.

Fortunately, the Supreme Court has gradually been reading the right to privacy into the fundamental rights explicitly listed in the Constitution. After its initial reluctance to affirm the right to privacy in the 1954 case of M.P. Sharma vs. Satish Chandra, the court came around to the view that other rights and liberties guaranteed in the Constitution would be seriously affected if the right to privacy was not protected. In Kharak Singh vs. The State of U.P., the court recognised “the right of the people to be secure in their persons, houses, papers, and effects” and declared that their right against unreasonable searches and seizures was not to be violated. The right to privacy here was conceived around the home, and unauthorised intrusions into homes were seen as interference with the right to personal liberty.

If the Kharak Singh judgment was progressive in its recognition of the right to privacy, it was conservative about the circumstances in which the right applies. The majority of judges held that shadowing a person could not be seen to interfere with that person’s liberty. Dissenting with the majority, Justice Subba Rao maintained that broad surveillance powers put innocent citizens at risk, and that the right to privacy is an integral part of personal liberty. He recognised that when a person is shadowed, her movements will be constricted, and will certainly not be free movements. His dissenting judgment showed remarkable foresight and his reasoning is consistent with what is now a universally acknowledged principle that there is a “chilling effect” on expression and action when people think that they are being watched.

The right to privacy as defined by the Supreme Court now extends beyond government intrusion into private homes. After Govind vs. State of M.P., and Dist. Registrar and Collector of Hyderabad vs. Canara Bank, this right is seen to protect persons and not places. Any inroads into this right for surveillance of communication must be for permissible reasons and according to just, fair and reasonable procedure. State action in violation of this procedure is open to a constitutional challenge.

Our meagre procedural safeguards against phone tapping were introduced in PUCL vs. Union of India (1997) after the Supreme Court was confronted with extensive, undocumented phone tapping by the government. The apex court found itself compelled to lay down what it saw as bare minimum safeguards, consisting mostly of proper record-keeping and internal executive oversight by senior officers such as the home secretary, the cabinet secretary, the law secretary and the telecommunications secretary. These safeguards are of little use since they are opaque and rely solely on members of the executive to review surveillance requests.

Right and safeguards

There is a difference between targeted surveillance in which reasons have to be given for surveillance of particular people, and the mass-surveillance which Netra sets up. The question of mass surveillance and its attendant safeguards has been considered by the European Court of Human Rights in Liberty and Others vs. the United Kingdom. Drawing upon its own past jurisprudence, the European Court insisted on reasonable procedural safeguards. It stated quite clearly that there are significant risks of arbitrariness when executive power is exercised in secret and that the law should be sufficiently clear to give citizens an adequate indication of the circumstances in which interception might take place. Additionally, the extent of discretion conferred and the manner of its exercise must be clear enough to protect individuals from arbitrary interference. The principles laid down by the European Court in relation to phone-tapping also require that the nature of the offences which may give rise to an interception order, the procedure to be followed for examining, using and storing the data obtained, the precautions to be taken when communicating the data to other parties, and the circumstances in which recordings may or must be erased or the tapes destroyed be made clear.

Opaque and ineffective

Our safeguards apply only to targeted surveillance, and require written requests to be provided and reviewed before telephone tapping or Internet interception is carried out. CMS makes the process of tapping more prone to misuse by the state, by making it even more opaque: if the state can intercept communication directly, without making requests to a private telecommunication service provider, then it is one less layer of scrutiny through which the abuse of power can reach the public. There is no one to ask whether the requisite paperwork is in place or to notice a dramatic increase in interception requests.

India has no requirements of transparency whether in the form of disclosing the quantum of interception taking place each year, or in the form of subsequent notification to people whose communication was intercepted. It does not even have external oversight in the form of an independent regulatory body or the judiciary to ensure that no abuse of surveillance systems takes place. Given these structural flaws, the Amit Shah controversy is just the beginning of what is to come. Unfettered mass surveillance does not bode well for democracy.

(Chinmayi Arun is research director, Centre for Communication Governance, National Law University, Delhi, and fellow, Centre for Internet and Society, Bangalore.)

For more details visit https://cis-india.org/internet-governance/blog/the-hindu-january-3-2014-chinmayi-arun-big-brother-is-watching-you

Counter Surveillance Panel: DiscoTech & Hackathon

praskrishna — 2014-02-28T05:36:15Z

We invite you to a Counter Surveillance DiscoTech and Hackathon at the Centre for Internet and Society in Bangalore on Saturday, March 1, 2014 (9.00 a.m. to 5.00 p.m.). The event is being co-organized by the Centre for Internet and Society in tandem with the MIT Centre for Civic Media Co-Design Lab, with support from members of Tactical Technology Collective, Hackteria.org and Srishti School of Art Design and Technology. Registrations begin at 9.00 a.m. The event shall close with a featured talk by renown information activist and maker lab innovator Smari McCarthy, titled "Privacy for Humanity" at 5.00 p.m.

Overview

Mirroring the call by MIT Civic Media Lab Co-Design Studio, this event brings together students, technologists, designers and citizens to explore counter-surveillance strategies. The event will be held simultaneously across various locations including Boston, Palestine, Lisbon and Buenos Aires. Click here for the definition of DiscoTech.(Discovering Technology)

Agenda

We shall begin with brief contextualized introductions catalyzed by researchers in the field of privacy & surveillance, followed by workshops and hackathons led by expert practitioners. Participants are welcome from diverse backgrounds looking to be involved in designing engaging and creative ways to counter surveillance. The event shall close with a featured talk by renown information activist and maker lab innovator Smari McCarthy , titled "Privacy for Humanity" at 5.00 p.m.

Introductory Catalyst Sessions

Malavika Jayaram: Fellow at Berkman Center for Internet and Society at Harvard University and the Centre for Internet and Society, Bangalore
Laird Brown: DesiSec Project at the Centre for Internet and Society, Bangalore and University of Toronto
Kaustubh Srikant: Head of Technology, Tactical Technology Collective and Maya Indira Ganesh (Program Director)
Abhay Raj Naik: Assistant Professor, Azim Premji University

Design and Hackathon Lead Catalysts

Yashas Shetty:Faculty@ www.srishti.ac.in and Co-Founder Hackteria.org (DNA Spoofing, Surveillance Camera: Avoidance, Microscopic Re-Appropriation & Bacterial Discotheque)

Hari Dilip Kumar: Co, Founder, FluxGen: (Introducing data transmission protocols, Software Defined Radio (SDR) design and surveillance detection )

Sharath Chandra Ram: Researcher @ CIS Open Lab and Faculty@Srishti (Civic Media solutions using open citizen networks and the web, spectrum scanning, visual communication design strategies, finger print mash-up publishing)

Featured Talk and Interactive Closing Session by Smari McCarthy

(Executive Director, International Modern Media Institute and Founder, Icelandic Pirate Party & Icelandic Digital Freedom Society)

Title of Talk: PRIVACY for HUMANITY - 5.00 p.m.

Click to download the flyer invite
Date: Saturday, March 1, 2014
Time: 9.00 a.m. to 5.00 p.m. (Registration 9.00 a.m. sharp)
Venue: Centre for Internet and Society, Bangalore
Map : http://bit.ly /1fcDDLG

Please RSVP due to limited space and logistics for lunch and refreshments

For more details visit https://cis-india.org/events/counter-surveillance-panel-disco-tech-hackathon

Free Speech and Surveillance

Gautam Bhatia — 2014-07-07T04:59:59Z

Gautam Bhatia examines the constitutionality of surveillance by the Indian state.

The Indian surveillance regime has been the subject of discussion for quite some time now. Its nature and scope is controversial. The Central Monitoring System, through which the government can obtain direct access to call records, appears to have the potential to be used for bulk surveillance, although official claims emphasise that it will only be implemented in a targeted manner. The Netra system, on the other hand, is certainly about dragnet collection, since it detects the communication, via electronic media, of certain “keywords” (such as “attack”, “bomb”, “blast” and “kill”), no matter what context they are used in, and no matter who is using them.

Surveillance is quintessentially thought to raise concerns about privacy. Over a series of decisions, the Indian Supreme Court has read in the right to privacy into Article 21’s guarantee of the right to life and personal liberty. Under the Supreme Court’s (somewhat cloudy) precedents, privacy may only be infringed if there is a compelling State interest, and if the restrictive law is narrowly tailored – that is, it does not infringe upon rights to an extent greater than it needs to, in order to fulfill its goal. It is questionable whether bulk surveillance meets these standards.

Surveillance, however, does not only involve privacy rights. It also implicated Article 19 – in particular, the Article 19(1)(a) guarantee of the freedom of expression, and the 19(1)(c) guarantee of the freedom of association.

Previously on this blog, we have discussed the “chilling effect” in relation to free speech. The chilling effect evolved in the context of defamation cases, where a combination of exacting standards of proof, and prohibitive damages, contributed to create a culture of self-censorship, where people would refrain from voicing even legitimate criticism for fear of ruinous defamation lawsuits. The chilling effect, however, is not restricted merely to defamation, but arises in free speech cases more generally, where vague and over-broad statutes often leave the border of the permitted and the prohibited unclear.

Indeed, a few years before it decided New York Times v. Sullivan, which brought in the chilling effect doctrine into defamation and free speech law, the American Supreme Court applies a very similar principle in a surveillance case. In NAACP v. Alabama, the National Association for the Advancement of Coloured People (NAACP), which was heavily engaged in the civil rights movement in the American deep South, was ordered by the State of Alabama to disclose its membership list. NAACP challenged this, and the Court held in its favour. It specifically connected freedom of speech, freedom of association, and the impact of surveillance upon both:

“Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the “liberty” assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny… it is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute [an] effective a restraint on freedom of association… this Court has recognized the vital relationship between freedom to associate and privacy in one’s associations. Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.”

In other words, if persons are not assured of privacy in their association with each other, they will tend to self-censor both who they associate with, and what they say to each other, especially when unpopular groups, who have been historically subject to governmental or social persecution, are involved. Indeed, this was precisely the argument that the American Civil Liberties Union (ACLU) made in its constitutional challenge to PRISM, the American bulk surveillance program. In addition to advancing a Fourth Amendment argument from privacy, the ACLU also made a First Amendment freedom of speech and association claim, arguing that the knowledge of bulk surveillance had made – or at least, was likely to have made – politically unpopular groups wary of contacting it for professional purposes (the difficulty, of course, is that any chilling effect argument effectively requires proving a negative).

If this argument holds, then it is clear that Articles 19(1)(a) and 19(1)(c) are prima facie infringed in cases of bulk – or even other forms of – surveillance. Two conclusions follow: first, that any surveillance regime needs statutory backing. Under Article 19(2), reasonable restrictions upon fundamental rights can only be imposed by law, and not be executive fiat (the same argument applies to Article 21 as well).

Assuming that a statutory framework is brought into force, the crucial issue then becomes whether the restriction is a reasonable one, in service of one of the stated 19(2) interests. The relevant part of Article 19(2) permits reasonable restrictions upon the freedom of speech and expression “in the interests of… the security of the State [and] public order.” The Constitution does not, however, provide a test for determining when a restriction can be legitimately justified as being “in the interests of” the security of the State, and of public order. There is not much relevant precedent with respect to the first sub-clause, but there happens to be an extensive – although conflicted – jurisprudence dealing with the public order exception.

One line of cases – characterised by Ramji Lal Modi v. State of UP and Virendra v. State of Punjab – has held that the phrase “for the interests of” is of very wide ambit, and that the government has virtually limitless scope to make laws ostensibly for securing public order (this extends to prior restraint as well, something that Blackstone, writing in the 18^th century, found to be illegal!). The other line of cases, such as Superintendent v. Ram Manohar Lohia and S. Rangarajan v. P. Jagjivan Ram, have required the government to satisfy a stringent burden of proof. In Lohia, for instance, Ram Manohar Lohia’s conviction for encouraging people to break a tax law was reversed, the Court holding that the relationship between restricting free speech and a public order justification must be “proximate”. In Rangarajan, the Court used the euphemistic image of a “spark in a powder keg”, to characterise the degree of proximity required. It is evident that under the broad test of Ramji Lal Modi, a bulk surveillance system is likely to be upheld, whereas under the narrow test of Lohia, it is almost certain not to be.

Thus, if the constitutionality of surveillance comes to Court, three issues will need to be decided: first, whether Articles 19(1)(a) and 19(1)(c) have been violated. Secondly – and if so – whether the “security of the State” exception is subject to the same standards as the “public order” exception (there is no reason why it should not be). And thirdly, which of the two lines of precedent represent the correct understanding of Article 19(2)?

Gautam Bhatia — @gautambhatia88 on Twitter — is a graduate of the National Law School of India University (2011), and has just received an LLM from the Yale Law School. He blogs about the Indian Constitution at http://indconlawphil.wordpress.com. Here at CIS, he blogs on issues of online freedom of speech and expression.

For more details visit https://cis-india.org/internet-governance/blog/free-speech-and-surveillance

Development Informatics

Aayush Rathi and Ambika Tandon — 2019-09-27T15:12:01Z

For more details visit https://cis-india.org/internet-governance/files/development-informatics

Policy Recommendations for Surveillance Law in India and an Analysis of Legal Provisions on Surveillance in India and the Necessary & Proportionate Principles

maria — 2015-03-14T03:08:04Z

For more details visit https://cis-india.org/internet-governance/blog/policy-recommendations-for-surveillance-law-in-india-and-analysis-of-legal-provisions-on-surveillance-in-india-and-the-necessary-and-proportionate-principles.pdf

The Big Eye: The tech is all ready for mass surveillance in India

Admin — 2018-08-13T14:54:14Z

Chennai’s T. Nagar, arguably India’s biggest shopping district by revenues and crowded on any given day, gets even more packed in festival seasons as thousands throng its saree and jewellery stores.

The blog post by Anand Murali was published in Factor Daily on August 13, 2018. Sunil Abraham was quoted.

Every year, Deepavali, less than three months away this year, presents the perfect hunting ground for pickpockets and other petty thieves — and a headache for the local police.

This time, however, the city police have reason to believe it has a handle on things. It has a technology that analyses CCTV footage to spot, in real time, people with a criminal history visiting the T. Nagar area. “We are matching real-time CCTV video footage with our criminal database using the FaceTagr system and if any criminals are identified in that area, we get an immediate alert and we can further investigate,” says P Aravindan, deputy commissioner of police. Last year, FaceTagr, a face recognition software developed by an eponymous Chennai company, was used in a few areas with results that convinced the police to spread it to all of the T Nagar area, he adds.

Aravindan’s counterparts in Punjab are as big fans of real-time surveillance as him. Amritsar Police used something the state’s police calls Punjab Artificial Intelligence System, or PAIS, developed by Gurugram AI company Staqu Technologies, to solve a murder case within 24 hours — again, using CCTV footage and facial recognition technology. The company has piloted a camera mounted on a pair of smart glasses to capture a real-time feed and analyse it for facial matches with a database.

Elsewhere, the Surat Police has a picture intelligence unit that relies on NEC’s proprietary NeoFace technology for facial recognition, as also vehicle number plate recognition, to track persons of interest. The result is alerts that the police can proactively act upon and faster turnaround in solving cases. Surat can claim to be a step ahead of Tokyo: NEC plans to use the latest version of its NeoFace technology at the 2020 Tokyo Olympics to track accredited persons – athletes, officials, media, and others – at multiple venues.

Welcome to the Big Eye helping law keepers and administrators in India to instantly recognise faces and use the information in multiple use cases.

Facial recognition and image cognition tech is nothing new, to be sure. We have seen them in movies for some time now – be it the Jason Bourne series in which the CIA uses complex surveillance tech to track the agent or the Mission Impossible movies where the protagonist use facial recognition to get access to secure areas. Or, the recent Steven Spielberg movie, Ready Player One, in which the villain uses camera drones. This kind of advanced – and even futuristic – image recognition-based surveillance all set to go mainstream in India with the rapid proliferation of cameras: from the public and private CCTVs to the ubiquitous mobile phone cameras.

Investigation on steroids

Chennai-based FaceTagr has been working with Indian Railways since last year to prevent human trafficking. “Finding missing children and the prevention of human trafficking was one of the first use cases that we developed. We work with the Indian Railways, state police departments, and CBI to prevent human trafficking,” says Vijay Gnanadesikan, CEO and co-founder, FaceTagr.

His moment of epiphany that led to the idea for developing FaceTagr was on a morning drive to work in Chennai traffic and watching children begging at his window. “I reached the office and discussed with my cofounder. We realised that there is an existing database of missing children with photographs and, with face recognition technology, we could develop a solution that could help solve the problem and in a way also prevent human trafficking,” says Gnanadesikan. Cut to today: the tool has been deployed at the India-Nepal and India-Bangladesh borders at nearly 24 checkpoints to monitor human trafficking.

FaceTagr is a face recognition technology that works on both static images and video footage. The same technology is being used in a solution for the Chennai police to identify criminals. “Earlier a suspect had to be taken to the police station, fingerprinted, and then his details were verified. Imagine a guy walking on the road at 2 am who is looking suspicious. A police patrol can take the suspect’s photograph with our app and, within a second, receive details about his crime history,” says Gnanadesikan.

The T. Nagar deployment runs on real-time CCTV footage. In the areas it was deployed last year, the system helped reduce the number of crimes “from three digits to a single digit” during last year’s Deepavali season, claims the FaceTagr CEO.

The system compares the real-time CCTV footage of the crowd with the police criminal database for facial matches. “Once someone from the database is identified among the crowd, the picture shows up, which is then re-verified by the police personnel monitoring the system for a reconfirmation,” says Gnanadesikan, adding that an ID match does not mean a crime is committed. “Someone might also be there for shopping and we and the police team are very mindful of that, but it will give the police a notification about the person’s whereabouts in the area.”

One of the clever outcomes of the deployment is that the system helps identify criminals from other cities or areas. According to DCP Aravindan, a police officer in Chennai city will likely not know of a criminal from, say, Tirunelveli, Kanyakumari or other far off places. This is where the face recognition system comes in handy, he says.

“Traditionally, we have data of all criminals station-wise and there is also a crime team which is familiar with the criminals and can recognise them. But, of late, with the improvement in connectivity and communication, people from far-off places come and commit a crime and this has made it challenging to identify them,” he says. The state’s crime database currently has over 60,000 photographs with more photographs being added daily. Every week, the department nabs two or three criminals with the help of the face recognition system, Aravindan adds.

Are there any privacy concerns? “To avoid misuse we have conducted multiple training programs for all the police personnel who are using this application and we have instructed them that unless they find a person suspicious, they should not take a photograph. We have designed an SOP (standard operating procedure) for using the system to avoid misuse,” adds the deputy commissioner.

Surveillance on smart glass

The face recognition system of Staqu, the Gurgaon AI startup, has been deployed in the states of Uttarakhand, Punjab and Rajasthan.

According to Atul Rai, Staqu’s CEO and co-founder, different law enforcement jurisdictions or agencies, even within a state, often have their own sets of data and it becomes difficult to sift through them and find links or patterns. Staqu’s answer to that problem was ABHED, short for Artificial Intelligence Based Human Efface Detection, which formed the base software for a mobile application and is connected to a backend database processing system. “This system accumulates images, speech and text, and using all this information, it develops intelligence for these agencies,” says Rai.

The company has also developed a real-time video surveillance-based face recognition technology that works via a camera mounted on a smart glass. The system was piloted with the Punjab Police and the company is now in the process of deploying with the Dubai Police, says Rai.

Most CCTVs today have a limited view and, in comparison, an officer wearing the smart glass and moving in a crowd will have a better field of view, says Rai. “In real time, the glass will stream the video footage to the server, which will then match the footage and give the report if any person from the database is detected,” he adds.

The Staqu-developed PAIS, or Punjab Artificial Intelligence System, can image match with an accuracy of 98% if the database has five images of the person, claims Rai.

Another use case for face recognition technology that has been coming up in India is in the corporate sector for attendance and security.

“In many of the enterprise use cases, the technology is used in controlled spaces – for example, conferences where most attendees pre-register or employees access systems in companies,” says Uday Chinta, managing director of American technology service company IPSoft, which has also developed and deployed an AI-based personal assistant called Amelia in the US. “Amelia is able to recognise a person using his facial features and able to assist them and give personalised service based on their identity,” says Chinta.

Software services company Tech Mahindra has launched a facial recognition system for employee attendance at its Noida office. According to one report, the system also comes with a “moodometer” that will track the mood and emotions of employees and give additional analytics to the company.

Beyond face analytics, image recognition technology is also being used to identify vehicles. The National Highways Authority of India has been using AI-based image recognition systems to tag and identify vehicles across its infrastructure in the country.

Underlying digital layer: databases

The scarier part to the tech is its dark side: mass surveillance covering all. Countries like China have already deployed mass surveillance on its citizens. Chinese citizens today have a scoring system assigned to them by the government based on various factors including data captured through the surveillance program which will give the preferential access to services like fast internet access.

In the case of India, to facilitate proper surveillance in a state, one of the first requirements is a digital database which already exists in many forms across central and state governments. With or without a double take, the answer is obvious: Aadhaar, India’s citizen ID database. With a population of 135 crore and Aadhaar covering over 90% of this population, it is India’s most extensive database.

Notwithstanding the use cases detailed earlier in this story and the huge interest among state police and law enforcement agencies in India, collecting data and using it – even it is to bust crime – falls into grey areas. In June this year, news reports had National Crime Records Bureau director Ish Kumar saying that investigators need to be given limited access to Aadhaar. Reacting to this, the Unique Identification Authority of India (UIDAI) issued a statement saying that access to Aadhaar biometric data for criminal investigation is not permissible under Section 29 of the Aadhaar Act, 2016 — which perhaps explains why the Punjab Police declined requests for interviews for this story.

Longtime Aadhaar critic Sunil Abraham, executive director of Bengaluru’s Centre for Internet and Society (CIS), calls Aadhaar “the perfect tool for surveillance”.

“The main database is the Aadhaar database. It’s got your iris and biometrics information already and they have said that they will strengthen the fingerprint authentication with facial recognition. So now, they have the have the full surveillance infrastructure that they need. The collection devices (CCTVs) are just there to collect the data but the actual recognition engine is Aadhaar only,” says Abraham, who is leaving CIS to join non-profit Mozilla Foundation as a vice president in January.

According to him, all three types of biometrics – fingerprint data, iris information data, and facial data – can be used in a remote and covert fashion and, therefore, in a non-consensual fashion. (Editor’s note: There is no public incident, to date, that proves such a use.)

Abraham is “100% sure” where we are headed. “The reason why I call Aadhaar a surveillance project is not that there is metadata stored, I call it a surveillance project because the biometrics are being stored. Metadata is one of the problems, that is the profiling risk but the surveillance risk primarily comes from the biometric data that they have,” he says. By metadata, he is referring to a citizen’s information such as phone number, age, sex, address, and other details.

There are also other databases in the works that could provide the basis for surveillance. Like: the Crime and Criminal Tracking Network & Systems (CCTNS) across police stations in India. According to the CCTNS website, as of May 2018, the CCTNS hardware and software deployment has covered nearly 94% of the police stations across India. There have been reports of the CCTNS system being used as a mass surveillance system in the guise of e-policing by authorities in Hyderabad.

Early in 2016, the Hyderabad of Police had launched a tender looking for companies to set up a citizen profiling and monitoring system. According to a report in Telangana Today, the Integrated People Information Hub (IPIH) gives the police access to personal informations of its citizens including names, family details, addresses and other related information by sourcing them from documents like police records, FIRs and other external sources like utility connections, tax payments, voter identification, passport etc.

During Israeli Prime Minister Benjamin Netanyahu’s visit to India in January, Tel Aviv-based AI company Cortica had announced a partnership with India’s Best Group to develop solutions for combing through data captured daily by drones, surveillance cameras, and satellites. The aim is to develop an AI-based real-time identification of patterns, concepts and situational anomalies to identify potential problems, flag them and improve safety in the process. More details such as scale and scope of this partnership are not available at this point in time.

Mass surveillance: Easier said than done

Take a step back. India already has multiple digital surveillance – even if not mass, real-time facial recognition – programs in place to keep track of its citizens. E.g.: the Telecom Enforcement Resource and Monitoring (TERM) and NETRA (NEtwork TRaffic Analysis) surveillance software developed by the Centre for Artificial Intelligence and Robotics (CAIR). These are just some of the surveillance programs operated by the government.

But when it comes to mass surveillance in real time, even with the AI-based tech is available today, the currently installed infrastructure might not be ready for real-time mass surveillance. “Countries like China are good at setting up infrastructure which is very essential for mass surveillance systems to be in place,” says Kedar Kulkarni of Bengaluru-based deep learning startup Hyperverge, who also insists that all CCTVs out there today might not be fit to conduct facial recognition.

According to Kulkarni, for a mass surveillance system to be in place, you either need cameras that can capture and do computing for face recognition within its hardware or you need a robust network which can transmit live feeds from multiple cameras to processing centres, which is very bandwidth intensive.

Most public spaces in India including railway stations, bus depots, metro station, marketplaces are often under CCTV surveillance. New Delhi is all set to have one of the largest deployments in the country of CCTVs with the state government announcing plans to install 1.4 lakh CCTVs across Delhi. The India Railways is also setting aside Rs 3,000 crore in its 2018-19 budget to install CCTV systems across 11,000 trains and 8,500 stations, according to a news report.

In comparison, China is said to have 170 million CCTV cameras installed across the country currently and this number is estimated to go up by 400 million in the next three years, says a BBC news report.

Even the staunchest privacy activists acknowledge what surveillance can deliver if used carefully. “Overall, it is a very powerful technology. It should be used for law enforcement, it should be used for national security. That is the correct domain of application,” says Abraham. He hastens to add the caveats: “When we use it, we have to use it with lots of safeguards and it should be used only on a very small subset of the population. It shouldn’t be a technology that is broadly deployed in the population because it is not necessary, it is not proportionate, and the risks are very high.”

The flip and funny side of facial recognition-based surveillance is that the government does not need the technology to actually work. Just the threat of surveillance – that big brother is watching you – is enough to reduce crime. According to Gnanadesikan, the Chennai CEO of FaceTagr, one reason for the drop in crime rate in last year’s T. Nagar trials was that criminals knew that they were being watched.

For more details visit https://cis-india.org/internet-governance/news/factor-daily-anand-murali-august-13-2018-the-big-eye

EXTRATERRITORIAL ALGORITHMIC SURVEILLANCE AND THE INCAPACITATION OF INTERNATIONAL HUMAN RIGHTS LAW

pranav — 2019-12-31T10:55:51Z

For more details visit https://cis-india.org/internet-governance/extraterritorial-algorithmic-surveillance-and-the-incapacitation-of-international-human-rights-law

Social Media Monitoring

amber — 2017-01-16T14:23:13Z

We see a trend of social media and communication monitoring and surveillance initiatives in India which have the potential to create a chilling effect on free speech online and raises question about the privacy of individuals. In this paper, Amber Sinha looks at social media monitoring as a tool for surveillance, the current state of social media surveillance in India, and evaluate how the existing regulatory framework in India may deal with such practices in future.

Social Media Monitoring: Download (PDF)

Introduction

In 2014, the Government of India launched the much lauded and popular citizen outreach website called MyGov.in. A press release by the government announced that they had roped in global consulting firm PwC to assist in the data mining exercise to process and filter key points emerging from debates on Mygov.in. While this was a welcome move, the release also mentioned that the government intended to monitor social media sites in order to gauge popular opinion. Further, earlier this year, the government set up National Media Analytics Centre (NMAC) to monitor blogs, media channels, news outlets and social media platforms. The tracking software used by NMAC will generate tags to classify post and comments on social media into negative, positive and neutral categories, paying special attention to “belligerent” comments, and also look at the past patterns of posts. A project called NETRA has already been reported in the media a few years back which would intercept and analyse internet traffic using pre-defined filters. Alongside, we see other initiatives which intend to use social media data for predictive policing purposes such as CCTNS and Social Media Labs.

Thus, we see a trend of social media and communication monitoring and surveillance initiatives announced by the government which have the potential to create a chilling effect on free speech online and raises question about the privacy of individuals. Various commentators have raised concerns about the legal validity of such programmes and whether they were in violation of the fundamental rights to privacy and free expression, and the existing surveillance laws in India. The lack of legislation governing these programmes often translates into an absence of transparency and due procedure. Further, a lot of personal communication now exists in the public domain which renders traditional principles which govern interception and monitoring of personal communications futile. In the last few years, the blogosphere and social media websites in India have also changed and become platforms for more dissemination of political content, often also accompanied by significant vitriol, ‘trolling’ and abuse. Thus, we see greater policing of public or semi-public spaces online. In this paper, we look at social media monitoring as a tool for surveillance, the current state of social media surveillance in India and evaluate how the existing regulatory framework in India may deal with such practices in future.

For more details visit https://cis-india.org/internet-governance/blog/social-media-monitoring

Second Privacy and Surveillance Roundtable

anandini — 2014-08-09T04:10:50Z

On July 4, 2014, the Centre for Internet and Society in association with the Cellular Operators Association of India organized a privacy roundtable at the India International Centre. The primary aim was to gain inputs on what would constitute an ideal surveillance regime in India.

Introduction: About the Privacy and Surveillance Roundtables

The Privacy and Surveillance Roundtables are a CIS initiative, in partnership with the Cellular Operators Association of India (COAI), as well as local partners. From June 2014 – November 2014, CIS and COAI will host seven Privacy and Surveillance Roundtable discussions across multiple cities in India. The Roundtables will be closed-door deliberations involving multiple stakeholders. Through the course of these discussions we aim to deliberate upon the current legal framework for surveillance in India, and discuss possible frameworks for surveillance in India. The provisions of the draft CIS Privacy Bill 2013, the International Principles on the Application of Human Rights to Communication Surveillance, and the Report of the Group of Experts on Privacy will be used as background material and entry points into the discussion. The recommendations and dialogue from each roundtable will be compiled and submitted to the Department of Personnel and training

The second Privacy and Surveillance Roundtable was held in New Delhi at the India International Centre by the Centre for Internet and Society in collaboration with the Cellular Operators Association of India on the 4^th of July, 2014.

The aim of the discussion was to gain inputs on what would constitute an ideal surveillance regime in India working with theCIS Draft Privacy Protection Bill, the Report of the Group of Experts on Privacy prepared by the Justice Shah committee, and the International Principles on the Application of Human Rights to Communications Surveillance.

Background and Context: Privacy and Surveillance in India

The discussion began with the chair giving an overview of the legal framework that governs communications interception under Indian Law. The interception of telecommunication is governed by Section 5(2) of the Telegraph Act,1885 and Rule 419A of the Telegraph Rules,1951. The framework under the Act has remained the same since it was drafted in 1885. An amendment to the Telegraph Rules in 1996 in light of the directions given under PUCL v Union of India was possibly the first change to this colonial framework barring a brief amendment in 1961.

During the drafting of the Act, the only two Indian members of the drafting committee objected to the wide scope given to interception under Section 5(2). In 1968, however, the 30^th Law Commission Report studying Section 5(2) came to the conclusion that the standards in the Act may be unconstitutional given factors such as ‘public emergency’ were too wide in nature and called for a relook at the provision.

While the interception of postal mail is governed by Section 26 of the Post Office Act, 1898, the interception of modern forms of communication that use electronic information and traffic data are governed under Sections 69 and 69B of the Information Technology Act, 2000, while interception of telephonic conversations are governed by section 5(2) of the Indian Telegraph Act 1885 and subsequent rules under section 419A.

What the law ought to be?
With the shift in time, the Chair noted that the concept of the law has changed from its original colonial perspective. Cases such as Maneka Gandhi v Union of India, highlighted that an acceptable law must be one that is ‘just, fair and reasonable’. From judgments such as these, one can impute that any surveillance law should not be arbitrary and must comply with the principles of criminal procedure. Although this is ideal, recent matters that are at the heart of surveillance and privacy, such as the Nira Radia matter, currently sub-judice, will hopefully clarify the scope of surveillance that is considered permissible in India.

Why is it important now?
In India, the need to adopt a legislation on privacy came in the wake of the Indo-EU Free Trade Agreement negotiations, where a data adequacy assessment conducted by the European Commission showed that India’s data protection practices were weak. In response to this, the Department of Personnel and Training drafted a Privacy Bill, of which two drafts have been made, though the later draft has not been made available to the public.

The formation of a privacy proposal in India is not entirely new. For example in 1980, former Union minister VN Gadgil proposed a bill to deal with limiting reportage on public personalities. Much of this bill was based on a bill in the House of Lords in 1960 suggested by Lord Mancroft to prevent uncontrolled reporting. The chair notes here that in India privacy has developed comprehensively as a concept in response to the reporting practices of the media.

Although, the right to privacy has been recognised as an implicit part of the right to life under the Constitution, the National Commission to Review the Working of the Constitution set up in February 2000 suggested the addition of a separate and distinct fundamental right to privacy under Article 21 B along the same lines of Article 8 of the European Convention of Human Rights.

While these are notable efforts in the development of privacy, the Chair raised the question of whether India is merely 'inheriting' reports and negotiations, without adopting such standards into practice and a law.

Discussions

Cloud base storage and surveillance

Opening up the discussion on electronic interception, a participant asked about the applicability of a Privacy regulation to cloud based services. Cloud based storage is of increasing relevance given that the cloud permits foreign software companies to store large amounts of customer information at little or no cost.

Indian jurisdiction, however, would be limited to a server that resides in India or a service provider that originates or terminates in India. Moving the servers back to India is a possible solution, however, it could have negative economic implications.In terms of telecommunications, any communications that originate or terminate using Indian satellites are protected from foreign interception.

Before delving into further discussion, the Chair posed the question of as to what kind of society we would like to live in, contrasting the individual based society principle and the community based principle. While the former is followed by most Western Nations as a form of governance, Orientalist and/or Asian tradition follows the community based principle where the larger focus is community rights. However, it would be incorrect to say that the latter system does not protect rights such as privacy, as often Western perceptions seem to imply. For example, the Chair points out that the oldest Hindu laws such as the Manu Smriti protected personal privacy.

Regulatory models for surveillance

After the preliminary discussion, the Chair then posed the fundamental question of how a government can regulate surveillance. During the discussion, a comparison was made between the UK, the US modus operandi i.e. the rule of probable cause coupled with exhaustion of other remedies, and the Indian rule based out of Section 5(2) of the Telegraph Act, 1885. In the United States, wire taps cannot be conducted without a Judge’s authorization.For example, the Foreign Intelligence Surveillance Act, which governs foreign persons, has secret courts. In addition, a participant added that surveillance requests in the US are rarely if ever, rejected. While on paper, the US model seems acceptable, most participants are weary of the practicability of such a system in India citing that a judiciary that is shielded from public scrutiny entirely cannot be truly independent. The UK follows an interception regime regulated by the Executive, the beginnings of which lay in its Telegraph Act in 1861, which the Indian Telegraph Act is based on. However, the interception regime of the UK has constantly changed with a steady re-evaluation of the law. Surveillance in the UK is regulated by the Regulation of Investigatory Powers Act of 2000(RIPA), in addition it has draft bills pending on Data Retention and on the Admissibility of intercepted communications as evidence.

In contrast, India follows an executive framework, where the Home Secretary gives authorization for conducting wiretaps. This procedure can be compromised in emergent circumstances, where an officer not below the rank of a Joint Secretary can pass an order.

Participants agreed that the current system is grossly inadequate, and the Chair asked whether both a warrant and a judicial order based system would be appropriate for India.

Considering the judicial model as a possible option, participants thought of the level of judiciary apt for regulating matters on surveillance in India. While participants felt that High Court judges would be favourable, the immense backlog at the High Court level and the lack of judges is a challenge and risks being inefficient. If one were to accept the magistrate system, the Chair adds that there are executive magistrates within the hierarchy who are not judicial officers. To this, a participant posed the question as to whether a judicial model is truly a workable one and whether it should be abandoned. In response, a participant, iterated the Maneka Gandhi ratio that “A law must be just, fair and reasonable and be established to the satisfaction of a judicially trained mind”

It was then discussed how the alternative executive model is followed in India, and how sources disclose that police officers often use (and sometimes misuse) dedicated powers under Section 5(2), despite Rule 419A having narrowed down the scope of authority. A participant disagreed here, stating that most orders for the interception of communications are passed by the Home Secretary.

When the People’s Union for Civil Liberties challenged Section 5(2) of the Telegraph Act, the Supreme Court held that it did not stand the test of Maneka Gandhi and proposed the set-up of a review committee under its guidelines which was institutionalised following an amendment in 2007 to the Telegraph Rules.

Under Rule 419A, a review committee comprises of officials such as the Cabinet Secretary, Secretary of the Department of Telecommunications, Secretary of the Department of Law and Justice and the Secretary of Information Technology and Communication ministry at the Centre and the Chief Secretary ,the Law Secretary and an officer not below the rank of a Principal secretary at the State level. A participant suggested that the Home Secretary should also be placed in the review committee to explain the reasons for allowing the interception.

Albeit Rule 419A states that the Review Committee sits twice a month, the actual review time according to conflicting reports is somewhere between a day to a week. The government mandates that such surveillance cannot continue for more than 180 days.

In contrast to the Indian regime, the UK has a Commissioner who reviews the reasons for the interception along with the volume of communication among other elements. The reports of such interceptions are made public after the commissioner decides whether it should be classified or declassified and individuals can challenge such interception at the Appellate Tribunal.

A participant asked whether in India, such a provision exists for informing the person under surveillance about the interception. A stakeholder answered that a citizen can find out whether somebody is intercepting his or her communications via the government but did not elaborate on how.

Authorities for authorizing interception

On the subject of the regulatory model, a participant asked whether magistrates would be competent enough to handle matters on interception. It was pointed out that although this is subjective, it can be said that a lower court judge does not apply the principles of constitutional law, which include privacy, among other rights.

Having rejected the possibility of High Court judges earlier in the discussion, certain participants felt that setting up a tribunal to handle issues related to surveillance could be a good option, considering the subject matter and specialisation of judges. Yet, it was pointed out that the problem with any judicial system, is delay that happens not merely inordinately but strategically with multiple applications being filed in multiple forums. In response, a participant suggested a more federal model with greater checks and balances, which certain others felt can only be found in an executive system.

The CIS Privacy Protection Bill and surveillance

Section 6 of the CIS Privacy Protection Bill lists the procedure for applying to a magistrate for a warrant for interception. One of the grounds listed in the Bill is the disclosure of all previously issued warrants with respect to the concerned person.

Under Section 7 of the Bill, cognisable offences that impact public interest are listed as grounds for interception. Considering the wide range of offences that are cognisable, there is debate on whether they all constitute serious enough offences to justify the interception of communications. For example, the bouncing of a cheque under the Negotiable Instruments Act is a cognisable offence in public interest, but is it serious enough an offence to justify the interception of communications? How should this, then be classified so as to not make arbitrary classifications and manage national security is another question raised by the Chair.

The example of Nira Radia and the fact that the income tax authorities requested the surveillance demonstrates the subsisting lack of a framework for limiting access to information in India. A participant suggested that a solution could be to define the government agencies empowered to intercept communications and identify the offences that justify the interception of communications under Section 7 of the CIS Privacy Protection Bill.

During the discussion, it was pointed out that the Government Privacy Bill, 2011 gives a broad mandate to conduct interception that goes beyond the reasonable restrictions under Article 19 (2) of the Constitution. For example, among grounds for interception like friendly relations with other States, Security and public disorder, there are also vague grounds for interception such as the protection of the rights and freedoms of others and any other purpose mentioned within the Act.

Although the Justice Shah report did not recommend that “any other purpose within the Act” be a ground for interception, it did recommend “protection of the freedom of others” continue to be listed as a permissible ground for the interception of communications.

Meta-data and surveillance

Under Section 17 of the Draft Bill, metadata can be intercepted on grounds of national security or commission of an offence. Metadata is not protected under Rule 419A of the Telegraph Rules and a participant asked as to why this is. The Chair then posed the question to the conference of whether there should be a distinction between the two forms of data at all.

While participants agreed that Telecommunication Service Providers store meta data and not content data, there is a need according to certain participants, to circumscribe the limits of permissible metadata collection. These participants advocated for a uniform standard of protection for both meta and content data, whereas another participant felt that there needs to be a distinction between content data and meta data. Certain participants also stressed that defining what amounts to metadata is essential in this regard.

The Chair moved on to discussing the provisions relating to communication service providers under Chapter V. It was noted that this section will be irrelevant however, if the Central Monitoring System comes into force, as it will allow interception to be conducted by the Government independent of service providers.

Data Retention and Surveillance

Data can be classified into two kinds for the purposes of interception, i.e. content and Meta data. Content data represents the content in the communication in itself whereas Meta data is the information about the communication.

Telecommunications service providers are legally required to retain metadata for the previous year under the Universal Access Service Terms, although no maximum time limit on retention has been legally established.

A participant highlighted that the principle of necessity has been ignored completely in India and there is currently a practice of mass data collection. In particular, metadata is collected freely by companies, as it is not considered an invasion of privacy.

Another stakeholder mentioned that nodal officers set up under every Telecommunication Service Provider are summoned to court to explain the obtainment of the intercepted data. The participant mentions that Telecom Service Providers are reluctant to explain the process of each interception, questioning as to why Telecom Service Providers must be involved in judicial proceedings regarding the admissibility of evidence when they merely supply the data.

A participant asked as to where a Grievance Redressal mechanism can be fit in within the current surveillance framework in India. In response, it was noted that with a Magistrate model, procedure cannot be prescribed as Criminal Procedure would apply. However, if tribunals were to be created, a procedure that deals with the concerns of multiple stakeholders would be apt.

A doubt raised by a stakeholder was whether prior sanction could be invoked by public servants against surveillance. Its applicability must be seen on a case to case basis, although for the most part, prior sanction would not be applicable considering that public officials accused of offences are not be entitled to prior sanction.

Section 14 of the CIS Privacy Protection Bill prohibits the sharing of information collected by surveillance with persons other than authorised authorities in an event of national security or the commission of a cognisable offence. Participants agreed that the wording of the section was too wide and could be misused.

A participant also pointed out that in practice, such parameters on disclosure are futile as even on civil family matters, metadata is shared amongst the service provider and the individuals that request it.

With relation to metadata, a participant suggested a maximum retention period of 2 years. As pointed out earlier, Call Detail Records, a service provider must retain the information for at least one year, however, there is no limit placed on retention, and destruction of the same is left to the discretion of the service provider. Generally it was agreed by participants that a great deal more clarity is needed as currently the UASL merely states that Internet Protocol Detail Record (IPDR) should be maintained for a year.

Duties of the Service Provider

Under the CIS Privacy Protection Bill , the duties of Telecommunication Service Providers broadly includes ‘measures to protect privacy and confidentiality’ without further elaboration. A participant mentioned that applicable and specific privacy practices for different industries need to be defined. Another participant stressed that such practices should be based in principles and not based in technology - citing rapidly evolving technology and the obsolete government standards that are meant to be followed as security practices for ISPs.

Another area that needs attention according to a participant is the integrity of information after interception is conducted. Participants also felt that audit practices by Telecommunication Service Providers should be confined to examining the procedures followed by the company, and not examine content, which is currently the practice according to other participants.

A participant also mentioned that standards do not be prescribed to Telco's considering the Department of Telecommunications conducts technical audits. Another participant felt that the existing system on audits is inadequate and perhaps a different model standard should be suggested. The Chair suggests that a model akin to the Statement on Auditing Standards that has trained persons acting as auditors could fair better and give security to Telco's by ensuring immunity for proceedings based on compliance with the standards.

The next issue discussed was whether surveillance requests can be ignored by Telco's, and whether Telco's can be held liable for repeatedly ignoring interception requests. A stakeholder replied that although there are no rules for such compliance, a hierarchal acquiescence exists which negates any flexibility.

Admissibility of Evidence

The significance given to intercepted communications as evidence was the next question put forth by the Chair. For example in the US, the ‘fruit of the poisonous tree’ rule is followed where evidence that has been improperly received discredits its admissibility in law as well as further evidence found on the basis of it. In India, however, intercepted communications are accorded full evidentiary value, irrespective of how such evidence is procured. The 1972 Supreme Court Judgment of Malkani v State of Maharashtra, reiterated a seminal UK judgment, Kuruma, Son of Kanju v. R , which stated that if the evidence was admissible it is irrelevant how it was obtained.

Participants suggested more interaction with the actual investigative process of surveillance, which includes prosecutors and investigators to gain a better understanding of how evidence is collected and assessed.

Conclusions

The Roundtable in Delhi was not a discussion on surveillance trapped in theory but a practical exposition on the realities of governance and surveillance. There seemed to be two perspectives on the regulatory model both supported with workable solutions, although the overall agreement was on an organised executive model with accountability and a review system. In addition, inputs on technology and its bearing on the surveillance regime were informative. A clear difference of opinion was presented here on the kind of protection metadata should be accorded. In addition, feedback from stakeholders on how surveillance is conducted at the service provider level, highlight the need for an overhaul of the regime, incorporating multiple stakeholder concerns.

1994 4 SCC 569

The definition of telegraph was expanded with the Telegraph Laws (Amendment) Act, 1961 under Section 3 (1AA) to ‘‘telegraph’ means any appliance, instrument, material or apparatus used or capable of use for transmission or reception of signs, signals, writing, images and sounds orintelligence of any nature by wire, visual or other electro-magnetic emissions, radio waves or Hertzian waves, galvanic, electric or magnetic means.

Explanation.—’Radio waves’ or ‘Hertzian waves’ means electromagnetic waves of frequencies lower than 3,000 giga-cycles per second propagated in space without artificial guide;]

1978 AIR 597

Art 21-B-“Every person has a right to respect for his private and family life, his home and his correspondence.”, Accessed at < http://lawmin.nic.in/ncrwc/finalreport/v1ch3.htm>

Article 8 of the European Convention on Human Rights mentions

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.

Article 8 was invoked in Rajagopal v State of Tamil Nadu (1995 AIR 264)

PUCL v Union of India, (1997) 1 SCC 301

IPDR measures bandwidth and monitors internet traffic.

[1955] A.C. 197

For more details visit https://cis-india.org/internet-governance/blog/second-privacy-and-surveillance-july-4-2014

Automated Facial Recognition Systems and the Mosaic Theory of Privacy: The Way Forward

Arindrajit Basu, Siddharth Sonkar — 2020-01-02T14:12:38Z

Arindrajit Basu and Siddharth Sonkar have co-written this blog as the third of their three-part blog series on AI Policy Exchange under the parent title: Is there a Reasonable Expectation of Privacy from Data Aggregation by Automated Facial Recognition Systems?

The Mosaic Theory of Privacy

Whether the data collected by the AFRS should be treated similar to face photographs taken for the purposes of ABBA is not clear in the absence of judicial opinion. The AFRS would ordinarily collect significantly more data than facial photographs during authentication. This can be explained with the help of the mosaic theory of privacy.

The mosaic theory of privacy suggests that data collected for long durations of an individual can be qualitatively different from single instances of observation. It argues that aggregating data from different instances can create a picture of an individual which affects her reasonable expectation of privacy. This is because a mere slice of information reveals a lot less if the same is contextualised in a broad pattern — a mosaic.

The mosaic theory of privacy does not find explicit reference in Puttaswamy II. The petitioners had argued that seeding of Aadhaar data into existing databases would bridge information across silos so as to make real time surveillance possible. This is because information when integrated from different silos becomes more than the sum of its parts.

The Court, however, dismissed this argument, accepting UIDAI’s submission that the data collected remains in different silos and merging is not permitted within the Aadhaar framework. Therefore, the Court did not examine whether it is constitutionally permissible to integrate data from different silos; it simply rejected the possibility of surveillance as a result of Aadhaar authentication.

Jurisprudence in other jurisdictions is more advanced. In United States v. Jones, the United States Supreme Court had observed that the insertion of a global positioning system into Antoine Jones’ Jeep in the absence of a warrant and without his consent invaded his privacy, entitling him to Fourth Amendment Protection. In this case, the movement of Jones’ vehicle was monitored for a period of twenty-eight days. Five concurring opinions in Jones acknowledges that aggregated and extensive surveillance is capable of violating the reasonable expectation of privacy irrespective of whether or not surveillance has taken place in public.

The Court distinguished between prolonged surveillance and short term surveillance. Surveillance in the short run does not reveal what a person repeatedly does, as opposed to sustained surveillance which can reveal significantly more about a person. The Court takes the example of how a sequence of trips to a bar, a bookie, a gym or a church can tell a lot more about a person than the story of any single visit viewed in isolation.

Most recently, in Carpenter v. United States, the Supreme Court of the United States held that the collection of historical cell data by the government exposes the physical movements of an individual to potential surveillance, and an individual holds a reasonable expectation of privacy against such collection. The Court admitted that historical-cell site information allows the government to go back in time in order to retract the exact whereabouts of a person.

Judicial decisions have not addressed specifically whether facial recognition through law enforcement constitutes a search under the Fourth Amendment or a “mere visual observation”.

The common thread linking CCTV footages and cellular data is the unique ability to track the movement of an individual from one place to another, enabling extreme forms of surveillance. It is perhaps this crucial link that would make ARFS-enabled CCTVs prejudicial to individual privacy.

The mosaic theory as understood in Carpenter helps one understand the extent to which an AFRS can augment the capacities of law enforcement in India. This in turn can help in understanding whether it is constitutionally permissible to install such systems across the country.

AFRS enabled-CCTV footages from different CCTVs. if viewed in conjunction could reveal a sequence of movements of an individual, enabling long-term surveillance of a nature that is qualitatively distinct from isolated observances observed across unrelated CCTV footages.

Subsequent to Carpenter, federal district courts in the United States have declined to apply Carpenter to video surveillance cases since the judgement did not “call into question conventional surveillance techniques and tools, such as security cameras.”

The extent of processing that an AFRS-enabled CCTV exposes an individual to would be significantly greater. This is because every time an individual is in the zone of a AFRS-enabled CCTV, the facial image will be compared to a common database. Snippets from different CCTVs capturing the individual’s physical presence in two different locations may not be meaningful per se. When observed together, the AFRS will make it possible to identify the individual’s movement from one place to another.

For instance, the AFRS will be able to identify the person when they are on Street A at a particular time and when they are Street B in the immediately subsequent hour recorded by respective CCTV cameras, indicating the person’s physical movement from A to B. While a CCTV camera only records movement of an individual in video format, AFRS translates that digital information into individualised data with the help of a comparison of facial features with a pre-existing database.

Through data aggregation, which appears to be the aim of the Indian government in their tender that links three databases, it is apparent that the right to privacy is in danger. Yet, at present, there does not exist any case law or legislation that can render such efforts illegal at this juncture.

Conclusions and The Way Forward

Despite a lack of judicial recognition of the potential unconstitutionality of deploying AFRS, it is clear that the introduction of these systems pose a clear and present danger to civil rights and human dignity. Algorithmic surveillance alters a human being’s life in ways that even the subject of this surveillance cannot fully comprehend. As an individual’s data is manipulated and aggregated to derive a pattern about that individual’s world, the individual or his data no longer exists for itselfbut are massaged into various categories.

Louis Amoore terms this a ‘data-derivative’, which is an abstract conglomeration of data that continuously shapes our futures without us having a say in their framing. The branding of an individual as a criminal and then aggregating their data causes emotional distress as individuals move about in fear of the state gaze and their association with activities that are branded as potentially dangerous — thereby suppressing a right to dissent — as exemplified by their use reported use during the recent protests in Hong Kong.

Case law both in India and abroad has clearly suggested that a right to privacy is contextual and is not surrendered merely because an individual is in a public place. However, the jurisprudence protecting public photography or videography under the umbrella of privacy remains less clear globally and non-existent in India.

The mosaic theory of privacy is useful in this regard as it prevents mass ‘data-veillance’ of individual behaviour and accurately identifies the unique power that the volume, velocity and variety of Big Data provides to the state. Therefore, it is imperative that the judiciary recognise safeguards from data aggregation as an essential component of a reasonable expectation of privacy. At the same time, legislation could also provide the required safeguards.

In the US, Senators Coons and Lee recently introduced a draft Bill titled ‘The Facial Recognition Technology Warrant Act of 2019’. The Bill aims to impose reasonable restrictions on the use of facial recognition technology by law enforcement. The Bill creates safeguards against sustained tracking of physical movements of an individual in public spaces. The Bill terms such tracking ‘ongoing surveillance’ when it occurs for over a period of 72 hours in real time or through application of technology to historical records. The Bill requires that ongoing surveillance only be conducted for law enforcement purposes and in pursuance of a Court Order (unless it is impractical to do so).

While the Bill has its textual problems, it is definitely worth considering as a model going forward and ensure that AFR systems are deployed in line with a rights-respecting reading of a reasonable expectation of privacy. Parsheera suggests that the legislation should narrow tailoring of the objects and purposes for deployment of AFRS, restrictions on the person whose images may be scanned from the databases, judicial approval for its use on a case by case basis and effective mechanisms of oversight, analysis and verification.

Appropriate legal intervention is crucial. A failure to implement this effectively jeopardizes the expression of our true selves and the core tenets of our democracy.

For more details visit https://cis-india.org/internet-governance/automated-facial-recognition-systems-and-the-mosaic-theory-of-privacy-the-way-forward

Checks and balances needed for mass surveillance of citizens, say experts

Admin — 2017-12-16T14:32:23Z

A number of measures are required to protect law-abiding citizens from mass surveillance and misuse of their personal data, according to top technology and legal experts.

The article by Peerzada Abrar was published in the Hindu on December 9, 2017

The measures include issuing of tokens by the Unique Identification Authority of India (UIDAI) instead of Aadhaar numbers and having an official in the judiciary give permission to vigilance.

The experts were participating in a panel discussion on ‘Navigating Big Data Challenges’ at Carnegie India’s Global Technology Summit here. They also said there was a need to implement ‘de-identification of data’ or preventing a person’s identity from being connected with information.

The moderator of the discussion was Justice B.N. Srikrishna, a former Supreme Court judge, who was also heading a government-appointed committee of experts to identify “key data protection issues” and recommend methods to address them. Justice Srikrishna told the panellists that Aadhaar or the unique identification number had empowered the people. But in situations where the State wants all the information about citizens from different service providers because of its suspicions related to terrorism or criminal activity, he asked, what is the method to create a balance?

“Surveillance is like salt in cooking which is essential in tiny quantities, but counterproductive even if slightly in excess,” responded Sunil Abraham, executive director of Bengaluru-based think tank, Centre for Internet and Society. He said there was a need to make a surveillance system which had privacy by design built into it.

Mr. Abraham said that his organisation had proposed to the UIDAI that it used ‘tokenisation,’ which meant that whenever there was a ‘know your customer’ requirement, the Aadhaar number was not accessed by organisations like telecom firms or the banks. Instead, when the citizens used various services via smart cards or pins, a token got generated, which was controlled by the UIDAI. Organisations like banks and telecom firms can store those token numbers in their database. He said this would make it harder for unauthorised parties to combine databases. But at the same time would enable law enforcement agencies to combine database using the appropriate authorizations and infrastructure.

“UIDAI is considering this, they call it the dummy Aadhaar numbers. We need technical as well as institutional checks and balances,” said Mr. Abraham.

Countries like the U.S also have processes like Foreign Intelligence Surveillance Court (FISA court) which entertains applications made by the U.S Government for approval of electronic surveillance, physical search, and certain other forms of investigative actions for foreign intelligence purposes.

“My concern is that in the current system, surveillance can be done by the State machinery. I don’t necessarily suggest FISA court.... but some kind of mechanism where (one can’t) be held at the mercy of incestuous State machinery,” said Rahul Matthan, a partner at law firm Trilegal. “But have some second person who is outside the influence of this system (and) who actually says ‘yes this is a terrorist which requires us to do mass surveillance,” he said.

Artificial Intelligence

A large amount of information or Big data ranging from financial, health to political insights of people is being collected by different organisations and service providers which is sitting in different silos. All of this is likely going to be linked through Aadhaar. Mr. Srikrishna asked what if a situation arises where all of this data is aggregated and using artificial intelligence and machine learning, one is able to analyse it and profile individuals. He said “would that be not a terrifying scenario” where the State can act super-monitor for citizens. He asked how can citizens be guarded against it?

Mr.Srikrishna was referring to the ‘Social Credit System’ proposed by the Chinese government for creating a national reputation system to rate the trustworthiness of its citizens including their economic and social status. It works as a mass surveillance tool and uses big data analysis technology.

“It is a possibility. What stands in the way of it becoming a reality (in India) is a robust law,” said Mr.Matthan. “Technology is so powerful that it could equally be used for good as well as bad.”

For more details visit https://cis-india.org/internet-governance/news/the-hindu-peerzada-abrar-december-9-2017-checks-and-balances-needed-to-mass-surveillance-of-citizens-say-experts

Security and Surveillance: A public discussion on Optimizing Security while Safeguarding Human Rights

praskrishna — 2014-12-19T08:46:34Z

The Centre for Internet and Society (CIS) invites you to a public discussion on optimizing security and safeguarding human rights at its Bangalore office on Friday, December 19th, 2014, 16:00 to 18:00.

The Centre for Internet and Society, in collaboration with Privacy International UK, has undertaken exploratory research into surveillance, security, and the security market in India.

Through this research, we hope to understand and document policy and law associated with security, surveillance, and the security market in India and learn about the regulation of security and related technologies such as encryption, filtering, monitoring software, and interception equipment. We also hope to understand the import and export policy regime for dual use technologies.

Such findings will be critical in creating evidence based research to inform security policy and regulation in India and work towards enabling regulatory frameworks that optimize the nation’s security while protecting the rights of citizens.

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

EU parliament report slams US surveillance

praskrishna — 2014-02-03T06:13:55Z

Report that outlines need for stringent laws for protecting citizen privacy, democratizing Internet governance holds lessons for India, say analysts.

The article by Moulishree Srivastava and Elizabeth Roche quotes Sunil Abraham. It was published in Livemint on January 17, 2014.

A European Union (EU) parliament report that outlines the need for stringent laws for protecting citizen privacy, democratizing Internet governance and rebuilding trust between Europe and the US holds many lessons for India, analysts and policymakers say.

The US government listened into Indian communications as part of its massive global surveillance, which was exposed last year in leaks to the media. The embassies of France, Italy, Greece, Japan, Mexico, South Korea and Turkey were also subjected to the surveillance put in place after the September 2001 terrorist attacks. According to the external affairs ministry, India has registered its protest at least thrice over the issue with US authorities.

A draft report on the US National Security Agency’s surveillance programme by the European parliament’s committee on civil liberties, justice and home affairs states that trust between the two transatlantic partners, trust among EU member-states, and trust between citizens and their governments were profoundly shaken because of the spying, and to rebuild trust in all these dimensions a comprehensive plan was urgently needed.

"It is very doubtful that data collection of such magnitude is only guided by the fight against terrorism, as it involves the collection of all possible data of all citizens; points therefore to the possible existence of other power motives such as political and economic espionage," says the report.

The report recommends prohibiting blanket mass surveillance activities and bulk processing of personal data, and asks EU member-states, including the UK, Germany, France, Sweden and the Netherlands, to revise their national legislation and practices governing the activities of intelligence services to ensure that they are in line with the standards of the European Convention on Human Rights.

It also calls on the US to revise its legislation without delay in order to bring it in line with international law, recognizing privacy and other rights as well as providing for judicial redress for EU citizens.

"The American approach to privacy regulation has been deeply flawed. The US dominance over the Internet affects the structure and substance of Internet governance and among other human rights, the right to privacy," said Sunil Abraham, executive director of the Centre for Internet and Society, a Bangalore-based not-for-profit research organization. "The (EU) report, if implemented, may change the future of Internet governance by deepening the existing leadership provided by the EU in promoting their privacy standards globally."

On India’s rather restrained reaction to the spying, he said, “It is a tragedy that our politicians are not as proactive when it comes to protecting our rights. While India has only focused on changing its official email policy after the revelations of mass surveillance, it has done nothing as concrete and comprehensive as EU."

"There is neither the recognition of (the) pervasive nature of global mass surveillance, nor is there full appreciation (of) the damaging consequences," Abraham added.

J. Satyanarayana, secretary in India’s department of electronics and information technology, said the concerns over privacy are the same for India as for the EU, but declined to comment on what preventive steps the government is implementing due to security reasons. The EU report called for concluding the EU-US umbrella pact, a framework agreement on data protection in the field of police and judicial cooperation, to ensure proper redress mechanisms for EU citizens in the event of data transfers from the EU to the US for law enforcement purposes. The report asks EU policymakers not to initiate any new sectoral agreements or arrangements for the transfer of personal data for law enforcement purposes and suggests suspending the terrorist finance tracking programme until the umbrella agreement negotiations are concluded.

"EU wants to use EU-US umbrella agreement...to raise the US standards, to ensure the rights of EU citizens and perhaps all the citizens. All humans will need protection under US law as is currently the case in the EU,” said Abraham. “The prohibition of blanket surveillance that the report recommends will hopefully apply to all citizens regardless of their nationality."

The draft report goes as far as suggesting suspending Safe Harbour, the legal instrument used for the transfer of EU personal data to the US through Google, Microsoft, Yahoo, Facebook, Apple and LinkedIn, until a full review has been conducted and current loopholes are plugged. The report’s proposals and recommendations are likely to be implemented after election to the European parliament in May.

In addition to reforms in the existing systems, the report outlines the importance of development of European clouds as it notes that trust in US cloud computing and cloud services providers has been affected by the surveillance practices.

"Three of the major computerized reservation systems used by airlines worldwide are based in the US and that PNR (passenger name record) data are saved in cloud systems operating on US soil under US law...lacks data protection adequacy," states the report.

C.U. Bhaskar, analyst with the South Asia Monitor think tank, was of the view that India had “adequately” responded to the US through quiet diplomacy.

"It is unlikely that the US will give up cyber surveillance,” he said, adding, “We should acquire our own capacity to ensure adequate defensive and offensive firewalls and build up appropriate capacity for our cyber programmes."

"Given our expertise in the IT (information technology) sector, as an analyst my opinion is that we have a reasonable capacity to build up our capabilities," Bhaskar added.

For more details visit https://cis-india.org/news/livemint-january-17-2014-moulishree-srivastava-elizabeth-roche-eu-parliament-slams-us-surveillance