Apar Gupta, Internet Freedom Foundation
Apar Gupta, Executive Director, Internet Freedom Foundation
I think such long-term research is incredibly important. Even when it does show findings that a large number of Indians may not be predisposed towards certain forms of privacy protections, or may support surveillance. I think it’s literacy which needs to be done in terms of the social attitudes. I believe people are not a product of some biological creation solely but nurtured as per the environment which is around them.
I’d also like to thank CSDS-Lokniti for providing the methodology behind it. I really follow your work very closely around all the election-based surveys which are done. It imparts a great degree of objectivity to my own political biases. Of course, Lal Family Foundation for supporting this. This is critical work which requires to be done. It fills in gaps which are not exposed either by technology or by policy and legal analysis. This is work which needs to be done multi-year.
One thing I’d like to point out just picking up from where the last speaker left off was that we need to understand surveillance as a relationship of power. Which also explains the survey findings as they have come about. For instance, they do show that even today there’s a very low deployment despite clear code directions for the installation of CCTVs in police stations by itself. This was also there in the India Justice Report.
Delhi police doesn’t have audio recording. Why is that? Because it will place a system or provide information of accountability to the police forces by itself. I think this also is a realisation which comes from the repeated non-compliance with the creation of police accountability committees which comes from Prakash Singh sir’s case itself.
On Misplaced Faith in Technology for Policing
When you understand surveillance as a system of power, we can also understand some of the other findings which come through the survey. For instance, it does show that people who are lower on the socio-economic rung seem to instinctively not like surveillance. This is not born out of suspicion. It is born out of the actual experience. For instance, if you look at a report which is released about two years ago by the Criminal Justice Accountability Project. On the basis of surveys and interviews they did with tribal communities in Madhya Pradesh, they call the deployment of new technologies in violation of safeguards under criminal law and police practices, which are fairly casteist in nature. Technology is a veneer for an institutionalised system of deprivation of rights. So, it does not matter if it is AI, big data or facial recognition. It is the same police system by itself which at its underlying basis may require reform. I think our belief in technology today needs to be a little more critical. We ourselves are seeing new stories and the media ecology is flooded with statements about the potential of artificial intelligence and this fits within what is called sometimes a Gartner’s Hype Cycle. In this, we expect technology to be a panacea for all our social problems, but ultimately it turns out to be a weak medicine. Here, I’d like to say that our institutionalised attitudes towards technology in policing have been there for a long period of time. Why have they come about? They have come about because there have been genuine problems in terms of resource allocation in our criminal justice system.
Let us take the Justice Malimath Committee Report on Criminal Justice Reforms, 2003. There’s a conspicuous section within it. With respect to the use of technology to help solve crimes because the number of police officials per person is low but also develop and share intelligence tools and databases. We must remember, this is in 2003, when internet penetration may be 0.01 percent and computer desktop ownership would be 0.03 percent. Crimes are increasing especially with changes in technology.
A few years later the Madhava Menon’s Committee on Draft National Policy and Criminal Justice had a complete chapter on electronic surveillance and use of scientific evidence. I’m not dealing with scientific evidence but there’s substantial writing which is coming out that sometimes pseudo-science by itself may give the presumption of possibly evidentiary disclosure which may not be completely solving the crime but confirming an investigator’s bias. I would urge people here to read Jinee Lokaneeta’s book called the Truth Machines. I am trying to say in the first place that sometimes the faith we are placing in technology may not actually be met with evidence.
Let me substantiate it with a much more recent example. There was lawlessness that occurred in northeast Delhi which has a very high density of CCTV cameras. Our Chief Minister boasts that it leads even other cities such as Tokyo, Paris and London. It also has the highest tele-density all over this country. In fact, there are about 2.4 to 2.7 active internet connections per person. RTI data suggests that between February 23 and 26, 2020 there was violence which resulted in 53 deaths, 581 injuries, 754 FIRs and 1369 arrests.
The Union Home Minister in response to this violence, on the floor of the house, as per parliamentary record, on March 11, 2020 spoke about face identification software, “It starts the process of recognising all the faces. The software does not recognise religion and attire. We have put voter ID cards, driving licenses and government data inside this software. Through it, more than 1,100 people have been arrested out of which 300 are from Uttar Pradesh.” Again, there is a form of technology-determinism. Secondly, it leads to real consequences for people in terms of denial of their liberty. This statement is substantiated by the Delhi Police’s Annual Report in 2020. Interestingly, you can’t find it on their website any longer and also has about four pages which go on to state how the violence in Northeast Delhi was solved to a large extent with the use of CCTV footage, with data tools, with the use of the Vaahan database etc.
What is the result of all this evidence which has been gathered and all the cases which have been filed under the IPC and the UAPA? Technology is supposed to solve crimes. Technology is supposed to make these evidentiary processes better. Of course, there is a video of a person but that video is of a person at a place without indulging in violence. Sometimes, that video is of a person who’s wearing a specific colour of shirt or a jacket and they have arrested another person. This is as per analysis which has been conducted by Millennium Post, which reviewed about 100 bail orders out of a total of 3500 bail orders granted so far. The police had cited CCTV and video footage in at least 44 cases to back the allegations against the accused out of which in 32, the video footage did not stand up to basic judicial scrutiny and the accused were granted bail.
Another article, if you do not like Millennium Post, is in Article-14. It states in a series of recent cases, various Delhi district courts, have granted bail while holding the police responsible for vague evidence and general allegations. Words like ‘shoddy probe’, ‘absolutely evasive’, ‘vague’, ‘lackadaisical’, ‘callous’, ‘casual’, ‘farcical’ and ‘poor’ were quoted in judicial orders.
On Budgetary Vested Interest for Surveillance
Finally, I’d like to come to why I think this is happening. I think this does not happen only because we have structurally and institutionally accepted that technology is how we will solve our policing problem. I believe there is a very important role being played by the private sector here. This is illustrated in Manisha Sethi’s book Kafkaland. This is in 2008, contemporaneous with the Mumbai terror attacks, where there were CCTV vendors interacting with police departments offering modern technologies. These are budgetary processes of allocation which deprive police forces of more manpower. It is my firm belief that money is being diverted towards technologies which do not serve public purpose. In fact, it takes this money away from police itself towards their own benefit of being a better police force.
I will end by stating a FICCI and Ernest and Young report for the foundation of smart and safe cities which is claimed by cities in Punjab. I’m not drawing reference. Punjab claims that its smart cities have the capacity of real-time monitoring. This is a report which was authored by in fact Rajiv Chandrashekhar when he was the FICCI chairperson and it states, “totalising surveillance technology including centralised data system GIS which means geography-based analysis and reporting and ubiquitous CCTV cameras are the way to prevent law enforcement and national security issues.”
With this, I’ll end my prepared remarks and respond to certain comments which have been made earlier by panellists. I say this with a very high degree of respect as much as there is substantial agreement and some difference as well.
On Surveillance and Lack of Transparency
The first, I filed the RTI about four years ago asking for statistical information only, statistical information, numbers of the number of requests which are made, then granted, then reviewed of telephone-based interceptions in this country. There has been no data. It has been denied. It was first denied on grounds of national security thereafter it was revised and claimed that this data has been destroyed. We do not even maintain it. This matter is pending determination before the High Court of Delhi. Hence, we do not even have data. That is the level of opacity of the number of surveillance orders issued in this country today. Hence, we do not even know today if the home secretary any longer applies their mind or even has the physical capacity to affix their own signature on them.
The second is, there is a large amount of pending legal proposals which are in motion with respect to how our data is captured and how the governance frameworks are being set. However, they again represent the same view of a post-colonial state which is still aspiring to be a democracy but is not confident to give rights to ordinary Indians. The Digital Data Protection Bill is limited to data protection which means consensual sharing of data. I agree, I have knowledge, I have noticed but even there are large exemptions. This is a structural choice adopted from the time of the Sri Krishna Committee where surveillance was kept out. Hence, there is no regulation of surveillance within the digital data protection bill. It is not a comprehensive privacy bill.
Secondly, the Telegraph Act which is being proposed to be amended and as per a ministerial statement will be introduced in the monsoon session of parliament is calling it the Telecommunications Bill. But if you look at the sections of surveillance which is only a direct copy of Section 5(2) of the older Telegraph Act. In fact, it contains a provision which is titled as exclusive privilege of the central government. I will end here by stating that exclusive privilege is a phrase used by monarchs and colonies. It is not used in a democratic country. The power with the central government may be the power to license and regulate.
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