The Government's Cambridge Analytica Project Faces a Petition in the Supreme Court

On Friday, the Supreme Court admitted a Public Interest Litigation (PIL) petition against a Request For Proposal (RFP) which purportedly aims to set up a surveillance state apparatus. The RFP was put forth by the Broadcast Engineering Consultants India Ltd. (BECIL) on behalf of the Ministry of Information and Broadcasting (MIB). The petition drew heavily from the 2017 right to privacy Judgement in Justice KS Puttaswamy (Retd.) v. Union of India. The Judge delivering the 2017 decision was Justice DY Chandrachud, who incidentally admitted the present petition. The petitioners challenged the RFP for being in violation of the right to privacy, the right to freedom under Article 19 of the Constitution as well as the right against arbitrariness contained in Article 14.

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On January 23, 2018, the first RFP was floated by BECIL on behalf of the MIB. The purpose was to select an agency to operate and maintain a Social Media Communication Hub (SMCH). The last date for submitting proposals was February 13, 2018. However, on February 10, a corrigendum was issued which extended the last date to February 19. Thereafter on February 13, a second corrigendum was issued wherein corrections were made to the clauses of the original RFP. On April 24, a fresh RFP was issued seeking applications for operating and maintaining a SMCH on behalf of the MIB. The last date was stated as May 17, 2018.

On April 28, an addendum was issued in which an additional appendix was included to provide for a list of roles and responsibilities of the SMCH team. The appendix also included qualifications of Social Media Executives (SME) who would operate from 716 districts across the country. Thereafter, on May 16, a corrigendum was issued extending the last date to May 24. Another corrigendum was issued on May 23, once again extending the last date to May 31. On May 30, another corrigendum was issued and the last date was extended to June 18.

It is plausible that there were no bids hence the last date was constantly revised. However, what the RFP was expecting was a comprehensive social media monitoring set up. This would include the ability to collect posts across platforms such as Facebook, LinkedIn and Twitter to create comprehensive profiles of persons. However, it did not stop there; in fact, the RFP also expected the applicants to be able to collect and analyse the metadata as well as monitor and intercept emails and other private messages. The framework includes the ability to locate criticism and deal with it in real time. The RFP also went so far as to say that the purpose was to be ahead of 'competitors'. It is strange that the government is talking about 'competitors' unless it is a case of a party misusing the government to ensure its survival.

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What makes the RFP most interesting is that it also seeks a mechanism by which users' behaviour can be moulded and opinions created. This sounds a lot like the social engineering escapades of Cambridge Analytica. The petition in the Supreme Court has sought that the RFP be quashed as it violates the right to privacy of citizens. It is also challenged as being an arbitrary exercise of executive power and one which will severely curtail the right to freedom of speech and expression as well as of association.

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The arbitrariness highlighted in the petition revolves around the fact that this architecture, if built, would place all citizens in the country under surveillance. George Orwell's 1984 has been overused as an analogy; however, the RFP actually endorses the creation of such a regime. The very fact that the SMCH would enable the government to keep a tab on all the citizens should also worry all of those engaged in the democratic electoral process. It would enable the government to clamp down not only on dissenting voices in the general populace but also among their political opponents.

When it comes to restricting free speech and association, the petition states that in an event a person is being watched, their actions are automatically restrained and they cease to behave as naturally as they would if they were not being watched. This can be extended not only to speech but also to association and movement. Certain associations may not be unlawful, but could certainly result in social ridicule or exclusion, hence people may wish to keep such things private. If one is being constantly watched, it is unlikely that people would wish to join such associations.

On the one hand, the fact that no proposals were submitted may indicate that there are no firms possessing such technology in India. On the other hand, it is frightening that the government is thinking in such terms. In a sense, it almost reflects a corporate-minded nature of functioning wherein the reputation of the brand means everything, customers (citizens) be damned.