Evelyn Jeniffer Ilakiya, Nyayshastram
Surveillance means to watch over or monitor people. This system uses technology to collect and generates data of a substantial portion of the people. When employed by the State, it serves many purposes, like controlling crime, and trafficking and helps in maintaining public order, peace, and security in the society. It uses various mechanisms. Most of the central systems that are employed are phone and SMS monitoring software(telephone tapping), Internet monitoring software, which includes applications and social media servers that procure personal data. Shadowing of location and GPS tracking systems and Surveillance through biometrics, drones and cameras (e.g. CCTV cameras fixed in ATMs, shops and other places) are also prevalent today.
I. Constitutional validity
William Parent defines “Privacy as the condition of not having undocumented personal information known or possessed by others” [1]. The right of privacy protects the liberty of a person, it enables his/her to be in their personal space and to do things, that are not prohibited by law. It is non-interference from the public or the Government in the personal affairs of a person. It is also unanimously recognised as a Human right. As per Article 12 of the Universal Declaration of Human Rights: "No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks."[2]
The Indian constitution under Article 21 states that"No person can be deprived of his life and personal liberty except according to the procedure established by law"[3]. The phrase - Personal liberty under this was interpreted to contain in itself privacy, but it was not explicitly guaranteed[4]. Later, on 24 August 2017, the Supreme Court upheld the Right to privacy as a fundamental right in the landmark Judgement of K.S. Puttaswamy v. Union of India and Ors.[5] Article 19 and 21 are contemporary. Article 19 guarantees the right to freedom of speech and expression of a person[6]. Both the rights cannot be withheld unless prohibited by a reasonable restriction. Surveillance, though invades the privacy of a person is mostly brought under the exception of National security and interest of Sovereignty and integrity of the State[7].
II. Surveillance and Data interception
Surveillance through telecommunication, bio-metrics, and internet software monitoring is presently used all across the world. Phone tapping is one of the central systems across the world. In India, it finds its legality under Section 5(2) of the Indian Telegraph Act, 1885 which states that both the central and state Government have the authority to intercept messages transmitted through a telegraph when there occurs a situation of public emergency and safety which raises the need to protect the sovereignty and integrity in India[8]. The constitutional validity of this particular section was disputed in the case of PUCL v Union of India[9]. The Court held that individuals had a privacy interest in the content of their telephone communications. Telephone tapping amounts to privacy invasion when exercised without procedure established by law. It violates the fundamental right to freedom of speech and expression unless it falls within the restriction under Article 19(2). The Court further established, in this case, strict guidelines, safeguards, and how phone tapping should be executed.
India has also been exposed to surveillance through Bio-metrics. This system involves creating a database, by scanning a part of the body, like an eye or fingerprint[10]. This was challenged in the Aadhar card case[11]. The denied right to privacy was brought into the limelight by the Retired High Court Judge Puttuswamy. A suit was filed against the Union of India by him, in which he contended that the Aadhar scheme, which involves the identification of citizens using bio-metrics, was violative of the right to privacy guaranteed by the constitution. This new administration system was brought by the Government and was imposed on all people as an obligation to obtain benefits from Government policies and schemes. This case was taken up by a constitutional bench consisting of nine members.
The Court ruled out that information obtained by the authorities will have restricted use, i.e. for PDS Scheme, and will not be used for any other purpose, It further upheld the right to privacy as a fundamental right. Justice Kaul opined that the “Right to privacy includes the protection of informational privacy and the right to preserve personal reputation. Law must provide for data protection and regulate national security exceptions that allow for interception of data by the state”[12]. The undemocratic nature of the same was questioned mainly because Government authorities take power in their own hands and dictate what people have to do and not to do, they Interfere with the personal affairs of a person, violating their liberty, equality, and freedom. Many believe that the Aadhar Card Scheme is being converted into the most effective surveillance system by obtaining biometric and linking the card to services such as filing of Tax Returns and Bank Accounts[13].
The Information technology act permits and regulates web surveillance. Section 69 provides for the interception, monitoring, and decryption of computer sources by Central and State Governments in the national interest[14]. It grants the Central Government the "power to authorise to monitor and collect traffic data or information through any computer resource for Cyber Security”[15]. Apart from the State, Private companies which do not come under the umbrella of the State also unlawfully carry out these activities.
Furthermore, the users are neither aware of this nor have any recourse as a fundamental right cannot be enforced against them, with digitalisation and easy accessibility of the internet, data interception and illegal theft as attained a whole new level. The recent WhatsApp-facebook privacy controversy was discussed in’ Karmanya Singh Sareena v. Union of India[16]. When Facebook acquired WhatsApp, the latter changed its privacy policy. The new strategy permitted WhatsApp to share data of its users with the parent company Facebook and all its group companies for advertising, marketing and promotions. This raised serious concerns as to whether the fundamental right of privacy of numerous users was violated. Although the Respondents argued that only phone number was shared and WhatsApp chats are end to end encrypted, the unanswered question is what falls precisely within the ambit of “data sharing” as specified in its new privacy policy.
There are several other similar instances that -have never come into the light. The more we use internet services, the more of our data is procured, intercepted,and shared every day even without our knowledge. Vast databases of a person’s financial, medical, and telecommunications are recorded.
III. Conclusion
Therefore mass surveillance as an entire concept is not arbitrary. It has both pros and cons. The author finds peace with the surveillance carried out in the interest of National security in detecting terrorism and attacks on -the nation. It is necessary and justified when executed lawfully. Nevertheless, surveillance conducted through telecom and internet servers by the State, Public and private sectors gives them access to individual’s private data, and information is illegal, unjust, and arbitrary. This information is put into use in such a way that servers their individualistic purpose of economic or commercial needs. Most of the companies selling these surveillance technologies do not even have a proper privacy policy that prevents personal data breach. Technology and digitalisation act as a catalyst, increasing the number of crimes in this field. People are victimised, and their fundamental rights are primarily violated.
Although there are penalties imposed in the Information Technology Act for misuse of data, it does not sufficiently address the issue. Thus from the above-discussed facts, the privacy invasion caused by unlawful data interception and surveillance poses a threat to a democratic nation. In the present Indian scenario, there are no specific laws on the protection of privacy. The Personal Data Protection Bill 2019, introduced by the present Government, is pending before the parliament. This bill is aimed at protecting and regulating the processed data of individuals in the hands of companies, Government agencies, and internet sources. Not adhering to this law might attract a maximum penalty of up to 5 crores. It provides for systematic procedures and safeguards.
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[1] DeCew, Judith, "Privacy", The Stanford Encyclopedia of Philosophy (Spring 2018 Edition), Edward N. Zalta (ed.), available at https://plato.stanford.edu/archives/spr2018/entries/privacy/> Accessed on 21/10/2020
[2] Art 12 , Universal Declaration of Human Rights
[3] Art 21, the Constitution of India
[4] Bharat Vasani, Ramgovind Kuruppath and Samiksha Pednekar, ‘Surveillance In The Post-Puttaswamy Era’(Cyril Amarchand MangaldasBlog November 19, 2019) <https://corporate.cyrilamarchandblogs.com/2019/11/surveillance-post-puttaswamy-era-right-to-privacy/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration> acessed on 4 March 2021
[5] K.S. Puttaswamy and Ors. v. Union of India (UOI) and Ors. (2017) 6 MLJ 267.
[6] Art 19, the constitution of India
[7] Right To Privacy: Surveillance In The Post-Puttaswamy Era’ (BloombergQuintOpinion, November 12, 2019) <https://www.bloombergquint.com/law-and-policy/right-to-privacy-surveillance-in-the-post-puttaswamy-era> accessed 4 March 2021.
[8] S. 5(2), The Indian Telegraph Act, 1885.
[9] PUCL v union of India ,(1997) 1 SCC 301
[10] Chris Woodford, ‘Biometric fingerprint scanners November’ (EXPLAINTHATSTUFF, November 6, 2020) <https://www.explainthatstuff.com/fingerprintscanners.html> acessed 4 March 2021.
[11] Supra
[12] Ibid
[13] Varun Kalra & Ramisha Jain, An Armistice between Right to Privacy and Right of Surveillance, 4 INDIAN J.L. & PUB. POL'y 1 (2017). Accessed on (21/10/2020)
[14] S.69, The Information Technology Act, 2000
[15] S.69( B ), The Information Technology Act, 2000
[16] in ’Karmanya Singh Sareena v Union of India ,SLP (C) 804/2017