Surveillance Rises, Privacy Retreats

WikiLeaks founder Julian Assange and former US National Security Agency contractor Edward Snowden have, at considerable personal cost, revealed how surveillance has eroded the private space in a world driven by digital technology.

In India, the extent of surveillance became evident after Union human resource development minister Smriti Irani walked into the trial room of a FabIndia outlet in Goa last week, only to discover closed-circuit television (CCTV) cameras pointed towards the trial room. The country woke up to the porous divide between privacy and surveillance.

Now, senior officials of FabIndia find themselves embroiled in a case of voyeurism and seven of them have taken interim anticipatory bail from a district court. They claim the CCTV cameras were in the retail area, not the trial room.

The FabIndia incident might have blown the lid on how flimsily our privacy is protected but there is no doubt that India is slowly but surely moving towards a surveillance regime, both in the private and the public spheres.

"After the Snowden episode, there are only two kinds of nations: Ones that know they are being watched, and others that don't," said Pavan Duggal, an advocate at the Supreme Court of India.

Despite the surge in surveillance, there are hardly any specific laws governing this.

A few laws

In 2000, India enacted the Information Technology Act, primarily to bring e-commerce under legal framework. After the Mumbai terrorist attack in 2008, the Act was amended, to give the government sweeping powers for mass surveillance.

In the context of private surveillance, the 2008 amendment added two definitions: (a) communication device; (b) intermediary.

A communication device, according to the law, means cell phones, personal digital assistance, or a combination of both or any other device used to communicate, send or transmit any text, video, audio, or image. An intermediary was defined as any person who, on behalf of another person, stores or transmits message or provides any service with respect to that message.

Rules regarding CCTV surveillance are governed by the IT Act, 2008, as CCTVs are considered to be communication devices, with computerised memory. However, the laws in relation to a communication device and intermediary deal mostly with third-party data sharing.

"Article 21 of the Constitution guards the right to privacy as a Fundamental Right. We do not have an explicit Act in this regard, but Section 43A of the IT Act, 2000, along with the IT Rules, 2011, protects data privacy in India," said Prashant Mali, a cyber law and cyber security lawyer.

There were no amendments of the laws governing CCTVs.

However, Section 66E of the IT Act, states: "Whoever, intentionally or knowingly, captures, publishes or transmits, the image of a private area of any person, without his or her consent, under circumstances violating the privacy of that person, shall be punished with imprisonment, which may extend to three years, or with a fine not exceeding Rs 2 lakh, or both, with explanation."

"The IT Act is not a privacy enabling law. Hence, the challenges to privacy in surveillance are not fully addressed in it," said Duggal.

Internationally, there are more stringent laws governing CCTV cameras. For example, in the UK, there is a prescribed code. A person filmed by a surveillance camera can seek the footage. In the US, too, there are state-specific laws which prohibit the unauthorised installation or use of cameras in private places, like restrooms and trial rooms.

"Privacy laws must be compliant with international practices. Laws governing CCTVs should be more comprehensive. It should not be specific to voyeurism," said Sunil Abraham, the executive director of Bengaluru-based research organisation, the Centre for Internet and Society.

The government has been working on a Privacy (Protection) Bill, which provides safeguards on personal data of individuals and sets conditions under which surveillance is allowed. It is expected that the Bill will lead to the creation of the offices of privacy commissioner and data protection commissioner. However, it is mostly silent on laws governing CCTV usage.

"In India, the concern over enacting privacy laws, implementing them and our understanding of privacy are low, compared to the global context. The Privacy Protection Bill, 2013 is pending before Parliament. When this gets enacted, our laws would be at par with those in the West," said Mali. "But doubts remain about their implementation."

Government surveillance

Amendments to the IT Act in 2008 gave the government wide powers of interception, encryption and blocking. The amendment introduced Section 66A, which made sending "offensive" messages through a computer or any other communication device, such as a cell phone or a tablet, a punishable offense.

The Supreme Court recently struck down the provision as infringing the constitutional right of freedom of speech.

"Every nation is under the classical dilemma to balance national security with privacy and freedom of expression. Always, when there is a conflict between the two, national security wins hands down. However, apart from international consensus, we need customise national solutions," said Duggal.

Today, some of the biggest government projects based on the powers vested to it under the IT Act. It has enabled the progression of surveillance procedures like the Central Monitoring System (CMS) and National Intelligence Grid (Natgrid), enabled through information on Aadhar card or unique identification number.

The CMS gives the government access to records of any mobile to landline calls, to read private emails, texts, and even browsing history through telecom operators. Natgrid could make the information available to nearly 11 central agencies.

"It is reported that the CMS can monitor close to 900 million people at one go. There is neither confirmation nor denial from the government," said Duggal. However, compared to the US and China, that practice blanket surveillance, India is still considered a low-surveillance category nation.

"India is still low on surveillance. In India, we have targeted surveillance. At any given point in time, less than 200,000 phone calls are being intercepted. Not more than a couple of lakh of surveillance orders are given by both state and central governments," said Abraham.

Surely, with so many surveillance devices around, it is a closely watched world like never before.

SALIENT FEATURES ON PRIVACY IN THE IT ACT, 2008

Communication Device: Cell phones, personal digital assistance, or combination of both or any other device used to communicate, send or transmit any text, video, audio, or image Intermediary: Any person, who on behalf of another person, stores or transmits messages or provides any service

Sections 66A to 66F: Added to Section 66, prescribing punishment for offences such as sending obscene messages, identity theft, cheating by impersonation using computer resources, violation of privacy and cyber terrorism.

Section 69: Amended to give power to the state to issue directions for interception or monitoring or decryption of any information through any computer resource.

Sections 69A and B: These grant power to the state to issue directions for blocking public access of any information through any computer resource and to authorise to monitor and collect traffic data or information through any computer resource for cyber security.