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India: Future of Liberty


by Usha Ramanathan





The government’s decision to launch mass surveillance raises concerns beyond the freedom of speech and expression and is an extraordinary assumption of power of the state over the people.





The age of mass surveillance is undeniably amidst us. An “order” from the Home Ministry, using the euphemism “competent authority”, declared that “any information generated, transmitted, received or stored in any computer resource” is of interest to the state. Ergo, the competent authority “hereby authorises the following Security and Intelligence Agencies” to intercept, monitor and decrypt any such information.





The times, they have changed. Edward Snowden had to risk his life and liberty to let the people of the United States, and the rest of the world, know that the U.S. establishment was using a secretly negotiated law and judges and courts that operated in secret and issued secret orders granting hordes of requests to carry on a programme of mass surveillance.





In India, in 2018, such secrecy is not just not necessary; the proclamation of power of the government over the people is the point. If in the U.S. the government had to hastily and defensively explain that the surveillance was not over the people of the U.S. but over others to make sure they were not spies or terrorists, in India every project of surveillance has unabashedly been over the citizens.





It is startling, the swiftness with which we have skittered down the path that leads to extraordinary assumption of power of the state over the people. Yet, this was not unforeseen. When the Unique Identification Authority of India (UIDAI) project was launched, it soon became plain that the ID project which had begun with addressing the issue of Pakistani infiltration into India and then moved to illegal migration from Bangladesh had found its resting place in “leakage in service delivery”. In this, at least in the beginning, the poor were cast as the suspects in the siphoning off of rations worth millions; but even then there were many who were warning about the surveillance potential of the project. This began to manifest itself when everyone was coerced to enrol in the UID database and then to link the number to every database, and then we noticed the UIDAI had planned for “organic” and “inorganic” linking of numbers: that is, it could be with the individual’s consent, or the number could simply be seeded in various databases using a software created by the UIDAI.





Then there were the State Resident Data Hubs (SRDH) that the UIDAI trained States to create, that would provide a 360-degree view of the individual which the state could keep expanded and updated. The majority judges in the Puttaswamy II case (answering questions about the constitutional validity of the UID project) did not see the surveillance aspects of the project. Yet, significantly, they were able to uphold the project because they did not see the surveillance in the 360-degree view of the individual in the SRDH, or the convergence of data, or the profiling which convergence made inevitable; what they did see was the authentication records, and that surveillance through the database did not worry them too much. In fact, in a footnote, the judges said: “We may take on record respective statement of the learned Attorney General and Mr Dwivedi who appeared for the UIDAI that no state would be interested in any mass surveillance of 1.2 billion people of the country or even the overwhelming majority of officers and employers or professionals. The very idea of mass surveillance by state which pursues what an aadhaar number holder (ANH) does all the time and based on aadhaar is an absurdity and impossibility.” It took less than three months for this emphatic denial of interest in surveillance to evaporate.





State, surveillance and technology





This era of surveillance can only be achieved with the complicity of technology companies. There is something deeply disturbing about the government holding “confidential” meetings with representatives of Google, Facebook, WhatsApp, Amazon, Yahoo, Twitter and ShareChat to discuss how to put a people under surveillance. This relationship between the state, surveillance and technology companies is not new. Between 2001, after the 9/11 attack on the World Trade Centre, and 2007, telecom companies in the U.S. were involved in “warrantless surveillance”. This was in breach of the law even back then. Companies such as AT&T, Verizon and Sprint had aided wiretapping for the state. When this truth came out, as it sometimes has to be, their customers could have taken them to court and cleaned them out in compensation. Since they had been of help to the state, the Bush administration changed the law retrospectively to protect the companies from civil litigation. In 2013, Snowden’s revelations disclosed the role that Google, Microsoft, Yahoo, Verizon, Apple and Facebook had played in mass surveillance.





Who are these companies? Since 2006, Facebook has consistently breached norms, and every time the company has been caught out, Mark Zuckerberg has given glib apologies. The Cambridge Analytica episode and the interference with the presidential elections in the U.S. have dented the credibility of Facebook and have also raised questions about what these companies that collect our data do with them. It is no longer possible to persist in the naive assumption that the data are only used for advertising. There is little doubt that they go way beyond that.





Google has had a long relationship with the Defence Advanced Research Projects Agency (DARPA), an arm of the U.S. military. In September 2018, it was reported that DARPA had begun to question the ethical concerns that had arisen about large technology firms, including Facebook and Google. This was apparently prompted by the fake news and conspiracy theories they were seen to be propagating, and the control over 90 per cent of the web that they had established, privatising and monetising this space which was intended to be free for users. In early 2018, 3,100 employees at Google wrote to the CEO of Google, Sundar Pichai, urging that “Google should not be in the business of war”, and asking that the company develop a policy not to engage in building warfare technology. Amazon and Microsoft are reported to have worked on defence projects.





It is these companies with whom the Indian government is in discussion on how to surveil the people of this country. It is difficult to reconcile the notion of national security and sharing all manner of personal information with companies and governments. This perplexity is an unresolved facet of the UID project, too, with biometric and demographic data being given to companies such as L-1 Identity Solutions, which has close links with the Central Intelligence Agency.





The answer to concerns about personal information becoming the province of companies located outside Indian jurisdiction has been to demand data localisation. It is depicted as a choice between cross-border movement of data, which then leave Indian space, and holding the data in India. But this is not an either-or situation. The truth is that the Indian government is asking for access to all data generated in India. This is another piece in the surveillance architecture.





It is impossible to ignore that it was the Narendra Modi government which said to the Supreme Court that the Indian people did not have a right to privacy. This was shocking not only because of what was said but also because the task for the state is to preserve the rights and liberties of the people. That the state would deny the existence of the right and contend that the UID project may proceed without concerning itself with its privacy implications speaks volumes about the government’s view of the people as its subjects; and that the project cannot survive if privacy is to be respected.





Right to privacy





In August 2017, nine judges of the Supreme Court were expansive in their endorsement of privacy as a fundamental right. In a categorical rejection of the challenge that had been set up by the government to the existence of the right, Justice S.K. Kaul said: “Let the right to privacy, an inherent right, be unequivocally a fundamental right embedded in Part III of the Constitution of India, but subject to the restriction specified, relatable to that part. This is the call of today. The old order changeth yielding place to the new.”





The government has, however, been reluctant to accept this verdict. In April 2018, even as a Constitutional Bench was listening to arguments on the UID matter, which included concerns about surveillance, the Ministry of Information and Broadcasting revealed its plan to set up a “technology platform... to collect digital media chatter” which should “support easy management of conversational logs with each individual with capabilities to merge it across channels to help creating a 360 degree view of the people who are creating buzz across various topics”. The platform was to have “listening and responding capabilities” not only to standard digital channels—including a wide range from Facebook to Google to Instagram to Flickr to email to blogs, forums, complaint websites—but “also enable easy extension to integrate proprietary data sources like the mobile rights platform”. The tasks included “extracting sentiment”, “identify(ing) influencers”, achieving an “ability to see historic conversation of each user in a reverse chronological manner with the ability to merge conversations across channels”. It was to “strategise recovery for negative publicity” and to be able to categorise what passes in the World Wide Web into “positive, negative and neutral” and to do predictive analysis. A “private data centre” was to be set up to store all data/content in an archive.





Justice D.Y. Chandrachud was provoked to exclaim: “If every tweet and WhatsApp message was to be monitored by the government, it will be like creating a surveillance state.” The government retreated. In any event, it appears it had not got any bids. This time round, the government seems to have decided not to look outside but to use its own agencies to monitor, intercept and decrypt, and to punish those who do not follow its diktat.





This decision to launch mass surveillance raises concerns way beyond the freedom of speech and expression. It is, as Justice Chandrachud said in a related context in his dissent in the UID case, about the future of freedom itself.





Usha Ramanathan works on jurisprudence of law, poverty and rights. This piece first appeared in Front Line India.


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