Centre Resolute to ‘Snoop’ on its Citizens: A ‘Surveillance State' in Order

The Supreme Court on Monday, January 14, issued a notice to the Centre on a plea challenging the December 20 notification that authorises ten investigative agencies to intercept, monitor and decrypt any computer system. The notice was passed by a bench comprising Chief Justice of India Ranjan Gogoi, and Justices Ashok Bhushan and Sanjay Kishan Kaul. The apex court has given the Centre six weeks to respond.

A batch of petitions against the Home Ministry’s order have been filed by privacy activists claiming the order to be the same as “snooping”. Furthermore, as the order involves the right to snoop by electronic means, it has several grey areas which are grey voluntarily.

Subsection 1 of section 69 lays down that such an order can be issued by either a state or the Union Government. The circumstances for doing so are that it should be necessary or expedient and in the interest of;  
the sovereignty or integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognisable offence relating to above or for investigation of any offence. The caveat is that the reasons for doing so must be recorded in writing. This was one aspect missing from the December 20 order.

It is a vague justification by the government under the umbrella of “national security” that will allow such mass surveillance.  

Also Read: https://www.newsclick.in/mha-surveillance-order-sc-issues-notice-centre

Social Media Communication Hub

In July last year, the Information & Broadcasting (I&B) Ministry had proposed a plan to set up a social media communication hub. The project involved tapping into chatter (Whatsapp messages, etc.) and creating overall profiles of those seen as influencing discourse.

It was intended to give analytical inputs to the government to “mould public opinion” and “inculcate nationalistic feelings,” according to the RFP (request for proposal). However, the proposal came under fire and the opposition said that this will be used to muzzle political dissent, examples of which we’ve clearly seen in recent times.

On one hand, the BJP’s social media networks have outpaced other parties in spreading fake news, as per a study by BBC. On the other hand, we have examples of arrests being made based on social media posts. Like the case of Kishorechandra Wangkhem, who was detained on November 27 (for calling the CM a puppet) under National Security Act, which allows for detention of up to a year without trial, and has since been held at a jail in Imphal.

Justice Chandrachud, from the three-judge bench hearing the plea against the I&B Ministry order said, “We will become a surveillance state if this happens.” Following which the government withdrew the policy. “We are reviewing the policy and may come up with another scheme later,” attorney general KK Venugopal had told the three-judge bench.  

MHA Surveillance Order: The New Scheme

A lot of companies dominate the internet, including Facebook, Google, Amazon, Instagram, Twitter and many others. Facebook has been accused by several journalists and dissenters of censoring political content, suspending accounts and labelling news items as “spam”.

It has been established that Facebook and Whatsapp share data with government agencies. Even Google (Gmail) has shared their data with the NSA (National Security Agency) in USA.

Yogi Aggarwal’s article in The Asian Age points out that the big telecom industries in the country like Reliance Jio and Bharati Telecom have direct access to people’s smartphones, which have become a big part of our everyday functions (mails and keeping other data files, often synced with our computers). To get hold of such data, the government would need to negotiate with them, and that too in favour of the telecom companies. More importantly, these telecom firms will be left with the right to snoop on their customers, setting back the hard won right to privacy.     

Also Read: https://www.newsclick.in/bjps-new-surveillance-regime

The petitions by lawyer Shreya Singhal, her co-petitioner and Trinamool Congress lawmaker Mahua Moitra, Supreme Court lawyer ML Sharma and others alleged that the government's order is against the fundamental right to privacy and must be cancelled in the interest of justice.

"The court has issued notice to the Home Ministry... After six weeks the Supreme Court will look into our prayer on staying the notification," NDTV reported the petitioners.

Have You Linked Your Aadhar Yet?

Surveillance isn’t taken up from just one source. The implementation of Aadhar and its mandatory-optional linking to Voter IDs, bank accounts, driving license, mail IDs and telephone numbers, can be speculated as the groundwork for mass surveillance.

While talking to NewsClick, Bappa Sinha, founder and Chief Technology Officer of VirtunetSystems said, “They can very well collect the data of a billion people and their day-to-day activities for little cost as storage is cheap.” To reach targeted surveillance of citizens, we can assume certain keywords can be used as has been the case with the NSA in USA.  

Explaining further, Sinha said, “Private data, that is stored on my computer or the private network of a company is vulnerable. What the government is effectively sanctioning with the order is hacking and breaking encryption.”

As per a report by The Print, “The Press Information Bureau (PIB), the BJP-government’s official communication arm, floated a tender last month, inviting proposals from external agencies for ‘media aggregation, analysis and feedback services’ with regard to print, electronic, online and social media.” Questions of whether the BJP plans to use the government resources to source inputs for the party’s election campaign have also been raised.

What’s New in the Order

Despite the government’s claims of the order not being anything new and rejecting that it is a general snooping order, its implementation seems to suggest otherwise. The reason the order has alarmed the activists and the Opposition is the fear that snooping will be arbitrary and ill-conceived.

Advocate Manohar Lal Sharma, who also filed the plea, has termed the notification as, “illegal, unconstitutional and ultra vires to the law”. Sharma also tried to seek a prohibition on the agencies from initiating any criminal proceedings, enquiry or investigation against anybody under the provisions of the IT Act based on the notification.

Also See: https://www.newsclick.in/has-india-become-surveillance-state

"For the first time, powers of scanning data at rest have been given to various agencies. Earlier, only data in motion could be intercepted. But now data revived, stored and generated can also be intercepted as powers of seizure have been given," as reported.

The petition also alleges that the notification gives the state the right to access all communication systems, computer and mobile and "to use it to protect political interest and object of the present executive political party".

Many have called the order disproportionate, as the government surveillance of citizens is not checked by either the legislature, or the judiciary. Small government committees will be put in place that review its’ own government’s decisions.

Moreover, the order 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.

Even though the MHA order is lawful by virtue of being under the framework of the IT Act, the constitutionality of Section 69 has itself come under question.

"If anybody is going to monitor the computer, including your computer, that is an Orwellian state. George Orwell is around the corner. It is condemnable," said former Union minister P Chidambaram.

Whether the Centre’s order will be stayed or not is yet to be seen. The Central government said the rules for intercepting and monitoring computer data were framed in 2009 and its new order only notified the designated authority which can carry out such action. However, it seems the empowered bureaucracy will have all the privileges to empower BJP’s social media networks for further spreading and expansion of a “surveillance state”.

Read More: https://www.newsclick.in/road-becoming-centralised-surveillance-state