The case against surveillance (Citizen privacy and State surveillance)

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The case against surveillance (Citizen privacy and State surveillance)

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• MHA order December 2018: The MHA notification which authorised multiple central agencies to intercept, monitor and decrypt online communications was opposed strongly. It looked like a step towards building a surveillance state.
• GoI defends itself: The government pointed out that it was the UPA-2 govt. that created the IT Rules in 2009, under which the notification was issued. And no blank cheque was given to any agency, but the MHA has to approve each surveillance request.
• Need for reform: The existing surveillance systems are complex, governed by two statutes -

1. Telephone surveillance under 1885 Telegraph Act (and rules),
2. Electronic surveillance under 2000 IT Act (and rules).

• 1997 S.C. judgment: It ordered that as a procedure, surveillance requests have to be signed by a Jt. Secy level officer at least.
• Three aspects of current surveillance regime:

1. It is totally bureaucratised, with zero parliamentary or judicial supervision. (since citizens will never know if they are being surveilled makes any questioning impossible)
2. It is vague and ambiguous. The Section 69 of IT Act copy-pasted content from Article 19(2) of the Constitution. Phrases like “friendly relations with foreign states" and "sovereignty and integrity of India" are used – extremely wide!
3. It is opaque with no idea about why a surveillance decision is taken. RTI shows nearly 250 surveillance requests approved per day  so no question of  deep thought going in any of it!

• A standard response: "Right to Privacy is not absolute" is the fixed reply to any questioning. We have to protect the nation from threats and terror. So there is a balance we are striking.
• Questioning this response: It is clear that privacy is not absolute, and no one is questioning "if there should be surveillance". The issue is "how, when, what".
• Security versus Privacy: An opaque, bureaucratic structure does little to increase security, but badly damages privacy. A govt. that has no checks on its surveillance powers will go overboard and collect so much data that it turns to noise!
• 2017 judgment and "proportionality": The 2017 K.S. Puttaswamy v. Union of India (right to privacy case) makes it mandatory that any impingement on right to privacy must be proportionate. How to decide that? The government's action must be the least restrictive method to achieve a state goal.
• Existing structure is unconstitutional: From this perspective, the existing bureaucratic + opaque + vague surveillance structure is unconstitutional! The executive is sitting in judgment over the executive, with zero parliamentary oversight.
• Judicial authority must sanction: Each surveillance request must go through an independent judicial authority that applies a legal mind to it (not through the executive, as on date).
• Grounds cannot be broad and vague: Even judicial supervision won't work unless specific causes for suspicion are mentioned. Hence, evidences gathered through unconstitutionally done surveillance must be rejected in courts of law.
• A reform long overdue: The existing surveillance mechanism needs a total redoing, against an aggressive and intrusive state. The world is waking up to it, and so should India.
• Summary : The surveillance mechanisms in India are archaic and opaque, and due for a comprehensive positive reform in light of the right to privacy verdict, 2017.

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