Editorial: The Surveillance Ecosystem

Dear members and friends of Common Cause,

The SPIR 2023 is now out. It is India’s first report of its kind on matters of surveillance and privacy. This issue of your journal presents a reader-friendly summary of the report, its conclusions, and key findings. It also sums up the salient points of the panel discussion and the keynote address at the well-attended event which marked the launch of the report on March 31, 2023.

The SPIR series is an attempt to measure the impact of policing on the ground. It is part of the organisation’s campaign for police reforms. The first SPIR (2018) surveyed respondents in 22 states on citizens’ trust and satisfaction levels, police excesses, diversity, etc. SPIR 2019 focused on the working conditions of police personnel, their attitudes, crime investigation, and police violence. The two volumes of the SPIR 2020-21 covered policing in areas facing extremism or insurgency and policing in the times of the Covid-19 pandemic.

The current issue is focused on matters of surveillance and privacy. We all know from experience that a variety of state and private players consistently profile us and track all our activities. Some even manipulate our emotions and beliefs in order to polarize minds. Several government agencies, at the central and state levels, also use a variety of surveillance methods such as drones, CCTV cameras, phone tapping, and Facial Recognition Technology (FRT). All this raises a plethora of legal and philosophical questions which we have tried to tackle in this study.

We understand that surveillance is not a new concept. Modern state throughout the world has been spending an enormous amount of time and resources on perfecting methods of surveillance without being detected. Their reasons could be anything from national security concerns to winning elections to witchhunts of opponents.

The present volume uses four parallel methods of investigation, i.e., official data on the installation and use of surveillance apparatus; a focused group discussion with domain experts; an analysis of media coverage, and an extensive survey of common people. It also assesses the capacity and preparedness of the human beings behind the systems who end up conducting surveillance.

Surveillance and Democracy

We at Common Cause believe that matters of surveillance and privacy profoundly impact the state of democracy, human rights, and the process of free and fair elections. As far back as in 2010, a private company, Cambridge Analytica, ‘harvested’ the data of over 70 million Facebook users for manipulating opinions in the US elections. Since then, technology has improved drastically. The Pegasus spyware, developed by the Israeli company NSO – which claimed to have sold it to ‘vetted’ governments – used a computer virus to copy data from the smartphones of its victims, mostly dissenters, opposition leaders, and journalists across the world.

Even though surveillance is often done by individuals and private companies, a bigger cause for concern globally is targeted surveillance by state agencies. There is also a legislative void around the breach of data through surveillance. Many of these clandestine activities of the state impinge on the citizens’ right to THE SURVEILLANCE ECOSYSTEM Versus the Constitutional Right to Privacy 4 | January-March, 2023 COMMON CAUSE | Vol. XLII No. 1 privacy emanating from Article 21 and the fundamental freedoms guaranteed under the Constitution of India.

At a time when technology is becoming all invasive, the Constitutional guarantee of fundamental rights is the only protection available to the citizen against illegal surveillance. But such protection can only be effective if the law catches up sensibly with emerging technologies. The citizens also need to understand the value of their personal data which is being collected, stored, and shared often without their consent or knowledge.

This state of affairs raises some serious questions: Do we need a legal basis for surveillance or interception of the citizens’ data? Should the agencies conducting surveillance have judicial or parliamentary oversight? How can the lawful authorisation of surveillance be made transparent? What is the legal remedy available to a citizen who is subjected to illegal or malicious surveillance?

As of now, the only tangible instrument in the hands of the citizens is their constitutional Right to Information (RTI). It allows people to scrutinise the state’s actions and to hold public servants accountable. However, many proposed changes seek to dilute that power as we write this. For instance, the draft Data Protection Bill turns the logic on its head by expanding the scope of information which can be denied on the grounds of privacy.

The application of RTI to methods and extent of surveillance is vital because the ecology of surveillance affects not just privacy but also civil liberties, internet freedom, and the existence of independent media. According to the Freedom House Report 2022, internet freedom and the freedom of expression are consistently on a decline. Another important concern is that the production, dissemination, and impact of politically vital information is in the hands of the global internet platforms that pay little respect to domestic laws and institutions.

A Democratic Fight is on

It is heartening that the onslaught on citizen’s privacy is being pushed back by many individuals and institutions across the world. Some global alliances are raising their voice against illegal, unchecked, and unaccountable surveillance by the government authorities. These include coalitions of investigative journalists, citizen labs, whistle-blowers, and civil rights activists. In another positive step, a nine-judge Constitutional Bench of the Supreme Court has held privacy as an intrinsic part of the Right to Life and Personal liberty under Articles 14, 19, and 21 of the Constitution.

The common people often support, or are indifferent to, surveillance because they assume it is being done in the interest of national security or public safety. But they tend to take their right to privacy more seriously when it involves their financial data and bank transactions. We hope that, eventually, citizens will be mindful that protecting democratic freedoms, or the integrity of elections, is as crucial for our collective well-being as protecting our financial data.

Our attempt in this study is to make sense of the ecosystem of surveillance from the citizens’ perspective. We need to understand all its implications if we are serious about defending democratic freedoms. We hope that SPIR 2023 will be a step in the direction of improving awareness about privacy as a fundamental right and creating democratic resilience against unwanted invasions.

As always, your feedback is welcome on this issue of your journal.

Vipul Mudgal
Editor

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