Author: Ektha Vivekanand, a student at School of Excellence in Law, The Tamil Nadu Dr Ambedkar Law University
Abstract:
In a world run on data, the right to privacy and state surveillance of private activities is a major consideration. There are various legal, ethical and moral implications that state surveillance has which this article addresses. It begins with a brief introduction to the concept of surveillance, then delves into the legality of the concept. The ethical background of it is considered next, after which contentions for and against the same are raised.
Introduction:
Surveillance and its implications on the right to privacy is a grey area that has been in debate globally for a long time. The issues of surveillance have only rapidly increased with the increasing use of social media and high rate of digitisation. Different governments across the world in both developing and developed countries, that have the appropriate resources, use a series of mechanisms to practice surveillance on the activities of their citizens.
Surveillance refers to the close observation of an individual or a community, especially those suspected of committing a crime. In other terms, it is a framework through which actions are tracked. More clearly, it can be described as an endeavour by government agencies to perform organized reviews of personal information and behaviours and to maintain records of them. It can also be characterized as the meticulous observation of a person or location, particularly by law enforcement or military forces, in response to a crime that has occurred or is anticipated. Analysing the idea of surveillance reveals that it cannot take place without the participation of the state or its institutions.
Surveillance in today’s world implies digital surveillance by way of monitoring emails, telephone conversations, text messages and CCTV surveillance. Governments have their own reasons for conducting surveillance which are logically accurate and acceptable, however there are logical and ethical questions that need to be addressed. In a strictly legal point of view, surveillance serves as an impingement upon the citizens’ right to privacy and their fundamental right to the freedom of speech and expression. In a digital perspective, it acts as a severe breach of data privacy and personal data.
Legality of State Surveillance:
The current legal backdrop surrounding state surveillance in India is that the right to privacy has been declared a fundamental right under the wide umbrella of the right to life and personal liberty under Article 21 of the Constitution of India by the Supreme Court of India.
A case that shook India in reference to data privacy was the Pegasus case in 2021. Pegasus is a sophisticated cyber software that permits government and intelligence organizations to “remotely and covertly extract data from almost any mobile device.” The software can be installed using a zero-click method (which requires no user interaction) and can be sent to the targeted devices via wireless transmission, disguised as a push notification. It can be configured to intercept messages, capture screenshots, and retrieve browser history and contacts from the device. In July 2021, the Pegasus Project, a coalition of media organizations and Amnesty International, disclosed that a list of 50,000 phone numbers had been targeted by the spyware, which included politicians, journalists, activists, and students from India. This disclosure led to multiple petitions filed in the Supreme Court of India against the government for excessive and unregulated state surveillance.
Some legal statutes that need to be examined in the context of state surveillance are the Indian Telegraph Act 1885 and the Information Technology Act 2000. The Indian Telegraph Act 1885 is especially relevant because it enables the government to establish, operate, license, maintain, and oversight wired and wireless communication in the territory of India. In the event of an emergency, any authority in power as well as the Government in control is empowered to intercept any communication that takes place between private citizens in the country under Section 5. Although the overall ambit of this interception is very narrow, the existence of the option itself legally, brought the provision into question. In People’s Union for Civil Liberties v Union of India & Ors, the provision was challenged and the Supreme Court held that phone tapping is a violation of a private individual’s right to privacy while also providing guidelines that needed to be followed by the government in certain events where tapping has to be done in order to avoid the total infringement of privacy. The Indian Telegraph Rules 2009 were established in order to effectuate these guidelines. The Rules provided for a review committee to review, scrutinize and monitor the orders and requests made for interception. The order cannot be executed without the prior approval of the review committee. However, from a strictly legal perspective, penal action cannot be instituted in case of an action of interception without the prior approval of the committee. Hence, the non-compliance does not attract legal sanctions.
The primary purpose behind the enactment of the Information Technology Act 2000 was to make all activities pertaining to electronic communication, online dealings and e-commerce matters lawful. Section 69 specifically grants authority to the Government at both the central and State levels, or to officers designated by the respective governments through a documented and reasoned order, to direct any government agency to decrypt, monitor, or intercept any data that is stored, transmitted, generated, or received on any computer resource. The validity of this section was questioned in Shreya Singhal v Union of India and the section was upheld by the Supreme Court.
The Information Technology (Procedure and Safeguards for Interception, Monitoring, And Decryption of Information) Rules, 2009 enabled the central government to authorise 10 agencies to conduct surveillance for them in the year 2018. These rules provide detailed regulations and guidelines pertaining to the interception such as recording the reasons for interception prior to doing so and setting a time limit for an initial period of 60 days and a maximum of 180 days for the direction of interception. It also mandates the destruction of all information obtained through the interception within a period of 6 months after the completion of the interception.
The Right to Privacy is a severe legal concern that needs to be addressed since the Constitution of India confers certain basic human rights on the people by way of the Fundamental Rights provided under Part III. The right to privacy was declared as an inherent part of human life and it had to be brought under the ambit of the Right to Life and Personal Liberty. Guaranteeing the people of the country the fundamental right to privacy is to enable them to protect themselves from government action that impinges upon their privacy. The provision of this right as a fundamental right is a hurdle to state action since it attracts legal action on the activities of the government that pertain to surveillance. Hence, this right also serves as a contradiction to the aforementioned provisions that enable state surveillance since it protects citizens against such surveillance.
Hence, the Indian legal framework is extensive in the sense that it covers and enables the State to conduct its activities while also protecting the people from extensive infringement of their rights and adequately securing their data from government intervention and interception. However, the overall scope within which the State can conduct surveillance on the people and monitor their digital footpath is very narrow and limited with lengthy procedural aspects, thereby protecting people from any unnecessary imposition.
The Ethical Aspects of State Surveillance:
One of the main ethical issues related to government surveillance involves the challenging equilibrium between ensuring national security and upholding personal privacy. Proponents contend that surveillance initiatives are essential for identifying and averting dangers to public safety, including terrorism and organized crime. They argue that trading off a degree of privacy for increased security measures is a justifiable compromise. Conversely, detractors claim that widespread government surveillance can violate individuals’ privacy rights and undermine civil liberties. They raise alarms about the likelihood of surveillance programs overstepping boundaries and gathering excessive personal information, which could lead to a surveillance state with extensive consequences.
Gathering and examining personal data, communication metadata, and online behaviours without consent or a legitimate legal foundation can be perceived as an encroachment on privacy. Opponents contend that large-scale surveillance initiatives can erode the essential right to privacy, which is vital for individual freedom and autonomy. They express worries about the risk of government bodies amassing and retaining sensitive personal data, which could result in improper use or mishandling of that information.
The ethical considerations surrounding government surveillance also encompass the risk of power abuse by authorities. Critics raise alarms that surveillance initiatives might grant government agencies disproportionate abilities to observe and control citizens, which could result in power misuse, discrimination, and infringements on human rights. To mitigate these worries, it is essential to create strong legal frameworks, oversight structures, and accountability practices that promote transparency and inhibit the misuse of surveillance authority. Such protections are vital in preventing abuse and ensuring there are checks and balances in place to uphold individuals’ rights. A thorough understanding of the ethical dimensions of government surveillance necessitates a careful analysis of the trade-off between security and privacy, the possible intrusion into personal privacy, and the imperative to avert power misuse. Achieving the correct equilibrium between ensuring national security and preserving individual rights presents a challenging endeavour that demands continuous dialogue, public education, and careful evaluation of the consequences of surveillance activities.
Contentions in favour of State Surveillance:
Advocates for surveillance by the government raise the contention that it is one of the key features that enhance national security. In an intricately connected world, the threats of terrorism and cyber crime run amok and pose a genuine security concern. By gathering and examining data, government organizations can pinpoint and scrutinize persons or groups engaged in actions that may jeopardize national security. Through the observation of communication networks and digital behaviours, governments can possibly identify and avert acts of terrorism, espionage, and other dangers before they happen. This preventive strategy seeks to protect the safety and welfare of the country and its people.
Another contention favouring surveillance highlights its ability to detect and prevent criminal activity. Through the observation of electronic communications and online behaviours, law enforcement agencies can collect intelligence that supports the investigation and prevention of a range of crimes, such as cybercrime, drug trafficking, money laundering, and more. Surveillance can offer significant insights into the actions of criminals, their networks, and their motivations. This data can assist in identifying suspects, disrupting illegal operations, and collecting evidence for legal proceedings. By utilizing cyber threat intelligence, governments can enhance the protection of their citizens and uphold law and order in society.
While the justifications for government surveillance emphasize its potential advantages for national security and crime prevention, it is essential to weigh these factors against the ethical concerns and implications for individual privacy.
Contentions against State Surveillance:
A major worry regarding government surveillance is the possible violation of individuals’ civil liberties. The extensive collection of personal information and observation of activities can result in a decline in privacy and a diminishing of essential rights. Citizens may perceive that their privacy rights, safeguarded by legal frameworks and constitutions, are under threat. This intrusion into personal affairs can foster feelings of anxiety and distrust between the populace and their government. The acquisition and storage of personal information, such as online browsing habits, emails, and phone logs, can also trigger concerns about excessive authority. The apprehension over the potential misuse or mishandling of this information by the government, whether deliberate or accidental, can lead to a considerable deterioration of trust in governmental bodies.
When people realize that their online activities and communications are being observed, they may refrain from expressing their true thoughts and opinions due to fear of consequences or scrutiny from surveillance. This self-censorship can hinder the flow of ideas and obstruct public discourse, ultimately undermining the democratic values that many societies are founded upon. The anxiety surrounding surveillance can dissuade people from engaging in open conversations, voicing differing opinions, or taking part in activism, which is crucial for a thriving exchange of ideas essential for a robust democracy.
It is vital to take these points into account when assessing the ethical ramifications of government surveillance.
Conclusion:
The scope for surveillance is very low, but still existing. Legislations like the Digital Personal Data Protection Act 2023 and the aforementioned statutes have helped enable the legal system in India to encapsulate the aspects of privacy protection in the event of state surveillance.
While logical arguments in favour of state surveillance are persisting arguments, the ethical considerations need to be adequately represented in order to protect the fundamental rights of the citizens and their right to privacy.
The existence of stringent procedural regulations that the State needs to follow to conduct surveillance helps in maintaining a check upon the state’s powers for the same. The debate between morality and legality is an ever-lasting one that needs to reach a consensus at the earliest.
FAQs:
Q. Is electronic surveillance by the government still permitted?
A. Yes, in India, electronic surveillance is permitted but is ridden with procedural formalities to protect the citizens from impingement.
Q. What are the main reasons for state surveillance?
A. The major reasons behind surveillance is the protection of national security and the prevention and detection of criminal activity.
