Censorship And Surveillance Under Aadhaar And Digital India Projects

Information and Communication Technology (ICT) has changed the way we looked at traditional Human Rights and Civil Liberties. Traditionally Human Rights were confined to physical and mental aspects only. However, with the advent of ICT, Human Rights and Civil Liberties have assumed a totally different meaning. Unfortunately, the legislations around the world are still lagging far behind that required to protect Human Rights in Cyberspace.

India has been deliberately violating Privacy Rights of its Netizens through various e-surveillance projects and its phone tapping activities. We have no dedicated Privacy Laws and Data Protection Laws (PDF) in India as on date. Successive Indian Governments have clearly signaled through their "conducts" that they are not at all interested in protecting Privacy Rights in India. The Narendra Modi Government even mentioned in the Supreme Court of India that there is no Privacy Right in India under the Indian Constitution.

This article is discussing the controversial issues of censorship and e-surveillance in India under the projects like Aadhaar, Digital India, national intelligence grid (Natgrid), etc. Till now it is clear that surveillance and censorship under Digital India and Aadhaar is widely practiced in India.

Adoption of digital India project by Indian government has always been portrayed as a social and welfare oriented initiative. Digital India is treading exactly on similar lines as Aadhaar has worked so far. As Aadhaar has increasingly been tied up by Indian government with digital India, there is no escape from the conclusion that the combination of Aadhaar and digital India is a digital panopticon.

Further, it is also obvious that surveillance and censorship under digital India and Aadhaar regimes are omnipresent. The blog title Internet, Mobile And Social Media Censorship In India By Twitter, Facebook, Google, Etc has been cataloging the censorship and surveillance activities of Indian government and technology companies like Google, Microsoft, Facebook, Twitter, etc for long. A dedicated page titled censorship and surveillance under digital India has also been opened to report about surveillance and censorship activities of Indian government. Censorship and surveillance under Aadhaar project has also been covered by us.

Anyone who is active on social media websites like Twitter, Facebook, etc is well aware that critical tweets and sharing are oftenly censored in India. Twitter is on the forefront of this exercise where Aadhaar and digital India related critical tweets are censored in real time.

As far as e-surveillance is concerned, Indian government is infamous for its blatant e-surveillance with no regard to the constitutional norms. Aadhaar is the final nail in the coffin of civil liberties that are openly violated by Indian government. Civil liberties protection in cyberspace is absent in India. There is no e-surveillance policy of India (pdf) that can govern the illegal and unconstitutional e-surveillance and phone tapping activities of Indian government and its agencies.

Worst part of this situation is that parliamentary oversight of intelligence agencies of India is still missing till date. To give overreaching and illegal e-surveillance and phone tapping powers in the hands of such intelligence agencies is a death knell of civil liberties. India “must reconcile” the civil liberties and national security requirements but the same is presently missing. Clearly India has become a police state with unaccountable Orwellian powers.

FinFisher: The New Face Of Global Electronic Spying, E-Surveillance And Eavesdropping

Human Right Protection in Cyberspace has become a tedious task in the present E-Surveillance oriented environment around the Globe. Issues like E-Surveillance in India, Cell Site Location Based E-Surveillance In India, Surveillance Of Internet Traffic In India,  Central Monitoring System (CMS) for Telephone Tapping in India, etc are well known.

It is of utmost importance that a Balance between Civil Liberties and National Security Requirements Must be Maintained. Affirming this requirement a District Court of United States has recently declared the FBI National Security Letters (NSLs) With Gag Orders to be Unconstitutional.

In the meantime, some Researchers have found a Malware named FinFisher that is notorious for violating Civil Liberty Stakeholders’ Privacy and Confidentiality. Interestingly, the Malware has spread around the Globe to many Civil Liberty Oppressing Countries.

Although the hand and involvement of Nations in the spreading of this Malware cannot be predicted and confirmed at this stage yet it can also not be ruled out. This is so because the Malware of the nature of Spyware is targeting dissidents living under oppressive regimes.

A Canadian research center has confirmed that it had identified 25 different Countries that host servers linked to FinFisher, a Trojan Hrse program which can dodge Anti-Virus protections to steal data, log keystrokes, eavesdrop on Skype calls, and turn microphones and web cams into live Surveillance devices.

Some have even claimed that the Company making the Spyware has sold the Malware to repressive regimes and this is a potential breach of UK export laws. Besides export norm violations, this episode can also raise a variety of Legal Issues as well, especially those pertaining to Cyber Laws Violations across the Globe, including India.

Unfortunately we have no Harmonised International Legal Frameworks in this regard. For instance an International Cyber Law Treaty Is Required on an urgent basis. Similarly, International Cyber Security Treaty Is Required on priority basis. The United Nations must protect Human Rights in Cyberspace so that Civil Liberties can be suitably protected. Otherwise Self Defense in Cyberspace to Protect Civil Liberties would be the only option left.

Civil Liberties And National Security Requirements Must Be Reconciled By India

Maintaining a balance between civil liberties and national security requirements is a difficult task. Countries across the world, including India, are trying to achieve this mammoth task. Similar is the case for reconciling the homeland security and civil liberties in India. Equally national security and fundamental rights must be reconciled in India.

However, the bigger question is how to reconcile civil liberties with national security requirements? There is no second opinion that civil liberties and national security must be reconciled in India as soon as possible. Similarly, India must reconcile national security concerns with due process requirements as prescribed by Indian constitution.

The truth is that nations across the world are ignoring civil liberties for the false claims of national security. This is a disturbing trend especially when the United Nations is silent on the protection of human rights in cyberspace. This applies to India as well that has draconian laws like information technology act 2000 to violate civil liberties in cyberspace.

Unfortunately, UN has not been able to formulate a universally acceptable legal framework of cyber law and human rights protection in cyberspace. The obvious result is that different jurisdictions have different cyber laws. The only thing common in these cyber laws is that virtually none of them is protecting human rights in cyberspace.

According to Praveen Dalal, managing partner of New Delhi based ICT and techno legal law firm Perry4Law and CEO of PTLB, there is need to have “Reconciliation” between National Security needs of India on the one hand and Protection of Fundamental Rights on the other. I have also sent a communication in this regard to Government of India in the past, informs Dalal.

It seems some segments of Indian government agree with this “reconciliation theory” suggested by techno legal experts of India. For instance, the Union Minister of Communications and Information Technology, Shri Kapil Sibal has reportedly said that adequate balance needs to be maintained between needs of “privacy of individual” and “genuine security concerns of state” while dealing with challenges of cyber security.

Another area that deserves the attention of Indian government in general and UN in particular pertains to Human Rights Protection in Cyberspace. According to techno legal experts like Praveen Dalal, presently UN and Human Rights in Cyberspace are two separate issues although they need to be one. Similarly, we have no International Cyber Law Treaty, International Cyber Security Treaty, International Cooperation in Techno Legal fields, etc, informs Dalal.

Interestingly, Kapil Sibal appealed to the global community to collaborate and evolve global protocols in security of information and network. Sibal assured that India stands committed to contribute and cooperate with international community on this issue. It seems at least Kapil Sibal is aware of the details of techno legal issues and that is good news for India. However, we must not be satisfied with mere declarations and we must actual achieve the reconciliatory task as soon as possible.

Source: P4LO Blog.

Unconstitutional And Illegal Biometrics Collection Laws And Practices In India

India is passing through one of the “Most Dangerous Periods” for Civil Liberties and Human Rights Protections. No time in the past Indian Citizens were so “Vulnerable” to Human Rights Violations and blatant violation of their Fundamental Rights.

The Constitution of India has conferred many Fundamental Rights upon Indian Citizens and Persons. However, Indian Government is acting in clear “Derogation” of these Fundamental Rights and Human Rights.

Article 21 of Indian Constitution confers Privacy Rights in India to all. Similarly, Article 21 also confers Right to Life and Liberty to all that cannot be taken away except by “Due Process of Law”. Articles 14, 19 and 21 collectively protect against “Arbitrary and Unconstitutional State Actions”.

Despite all these “Protections and Rights” we have Authorities like Unique Identification Authority of India (UIDAI) that is not governed by any Law whatsoever. Similarly, we have provisions pertaining to National Population Register (NPR) of India that are clearly “Unconstitutional”.

We have no dedicated Data Protection Laws in India, Data Security Laws in India, Cyber Security Laws in India, etc. Even the Cyber Law of India, incorporated in the Information Technology Act, 2000 (IT Act 2000), is an “Endemic E-Surveillance Enabling Law” that requires urgent “Repeal”.

Cyber Security in India is also in bad shape and even the Supreme Court of India has chided Indian Government to boost up its Cyber Security to protect National Security of India. National Security and Right to Information in India are on “Crossroads” where the “National Security Card” is very frequently played by Indian Government to deny “Legitimate and Eligible Information” to Indian Citizens.

In all this “Political and Legislative Mess” we have a “Bonus” for Indian Government as well. The Parliamentary Oversight of Intelligence Agencies of India is missing and they are “Not Accountable” to any “Legislative and Parliamentary Scrutiny”.  Intelligence related Projects like National Intelligence Grid (NATGRID), Central Monitoring System (CMS) of India, proposed National Counter Terrorism Centre (NCTC) of India, etc have no Parliamentary Approval and Oversight.  

There is no second opinion that collection of “Highly Sensitive Biometric Details” by any Governmental Agency or Authority in such circumstances is not only “Unconstitutional” but is also “Highly Risky” for Life and Liberty of Indian Citizens/Persons. In fact, collection of Biometric Details by UIDAI and NPR are clearly “Unconstitutional and Illegal” and Indian Citizens and Residents can “Refuse” to provide the same no matter what these Authorities and Laws say.

Human Rights Protection in India is at its nadir. Similarly, Civil Liberties Protection in Indian Cyberspace is in doldrums. If we keep on succumbing to the “Pressure Tactics” of Indian Government, the day would be not far when Indian Government would have complete control over our “Body and Soul”.

National Security And Right To Information In India

National Security and Right to Information are interrelated concepts. We occasionally find them on Crossroads. In fact, the National Security Card is played so often by Governments around the World that the concept of National Security has become the most abused and most favourite method of defeating Civil Liberties Protections in Cyberspace.

Indian Judiciary has not been much involved with Cyberspace issues for long. Of late it has started dealing with issues pertaining to Cyberspace like Websites Blocking. Clearly, Indian Judiciary has not been comfortable with Cyberspace issues so far. Even issues pertaining to Information and Communication Technology (ICT) have not been properly appreciated by Indian Judiciary.

I personally believe that there must be a “Constitutional Balance” between National Security and Human Rights and Fundamental Rights Protection Requirements. Giving “Primacy” to one over the other, without engaging in a “Reconciliatory Exercise”, would be “Counter Productive” in the long run.

Further, the Fundamental Rights themselves must be “Reconciled” so that our Constitutional Scheme remains intact. The Indian Constitutional Scheme is based upon “Balance of Rights” and no right is absolute in nature. In case of conflict between two Fundamental Rights, the Fundamental Right that strengthens and substantiate the Public Interest should prevail”.

For instance, if there is a conflict between Right to Privacy and Right to Information/know, any information can be disclosed in certain circumstances to substantiate and strengthen Public Interest.

Thus, not all tapped conversations of Nira Radia and Ratan Tata can be labeled as “Private” or pertaining to “National Security” and barring few “Exceptional Disclosures” all other can be made “Public” by the Supreme Court of India.

The Supreme Court of India must not unnecessarily put a “Blanket Ban” upon disclosure or publication of such conversations as that would amount to “Unreasonable Curtailment” of other Fundamental Rights like Right to Information. The “National Security Card” should not be used by any individual or institution, including the Supreme Court of India, to defeat the Constitutional Protections and Safeguards.

I have already written about this issue to Indian Government in February 2011 and this was sufficient time for it to deliberate and formulate an effective Policy in this regard. If still the Indian Government has failed to formulate such Policy, it only shows that it is not interested in formulating one.

Finally, Intelligence Infrastructure of India needs Rejuvenation as it has become synonymous for Non Accountability and Mess. There is neither any Parliamentary Oversight nor and Transparency and Accountability of the working of Intelligence Agencies of India. E-Surveillance in India is presently done in much derogation of Constitutional Protections.

The matter is pending before Supreme Court of India and if it does not handle the issue properly, the chaos would persist for some more decades.