Right to Privacy

After the much controversial PRISM surveillance program by US there Whistle-blower, recent information breaches raise  focus on privacy and security concerns. With the growth of modern technology and communication system, the potential of invading one's privacy has increased drastically. Edward Snowden, the whistleblower who pulled back the curtain on the United States' internet surveillance programme,  said of mass-surveillance dragnets that “they were never about terrorism: they’re about economic spying, social control, and diplomatic manipulation. They’re about power.”

Phone tapping, CMS(Central monitoring system), NETRA are few of the recent attempts by India to fight against security breaches.

According to News reports, Netra — a “NEtwork TRaffic Analysis system” — will intercept and examine communication over the Internet for keywords like “attack,” “bomb,” “blast” or “kill”. It is the first attempt by Indian Government at mass surveillance rather than surveillance of predetermined targets. It will scan tweets, status updates, emails, chats and even voice traffic over the Internet (including from platforms like Skype and Google Talk) in addition to scanning blogs and similar public parts of the Internet. Thus, while phone tapping and the CMS monitor specific targets, Netra's working area is vast and indiscriminate.

 This article discusses the evolution of right to privacy in India and how it is being protected now. First of all, lets take a look over its origin. At the eve of independence, Constituent Assembly out rightly rejected the right to privacy in the Constitution. Similarly a proposal to provide citizens with a fundamental right against unreasonable governmental search and seizure was also rejected by Constituent Assembly, which if accepted at that time, would derive the principles in the Constitution from which US derives its protection against state surveillance against own country's citizens. Then, the guardian of the Constitution, Supreme Court interfered and came with the view that other rights guaranteed in the Constitution would be seriously affected if the right to privacy was not protected.

And In Kharak Singh vs. The State of UP, the court recognized "the right of the people to be secure in their persons, houses and papers" and declared that this right cannot be violated. This includes the unauthorized intrusions into homes as interference.

Unfortunately, this judgment was too conservative about the circumstances in which the right could be applied. Majority of judges held the view that "shadowing a person could not be seen to interfere with that person's liberty", which is quite contradictory to the contemporary and universally acknowledged principle that there is a "chilling effect" on expression and action when people know or suspects that they are being watched.

As defined by Supreme Court, the right to privacy now extends beyond government intrusion into private homes, thus not limited to only places. Thus any breach of this right for surveillance of communication must be for permissible reasons and should comply with just, fair and reasonable procedure. Any violation of this procedure is open to a constitutional challenge.

After touching the grounds of history, lets focus on the much hue and cries over mass-surveillance program by Netra. What's new about it, when phone tapping and target surveillance has become a normal thing. So, there is a difference between these  two. In target surveillance, proper reasons have to be given for surveillance of people concerned. While in mass surveillance, there are significant risks of arbitrariness when executive power is exercised in covet form. European Court of human Rights stated that the extent of discretion conferred and the manner of its exercise must be transparent enough to protect individuals from arbitrary interference. Similar principles were laid down over phone tapping which require that the nature of offences which give rise to such interception orders, the procedure to be followed, storing the data obtained, and circumstances where these tappings should be erased be made clear.

Further, our safeguards apply only to targeted surveillance and require written requests before interception or telephone tapping can be carried out. CMS makes this process more opaque by making it more opaque because now state can intercept communication directly, without making requests or anything. And there is no accountability and know how whether the requisite paperwork was done.

Another question arises is -How far Netra like system is going to serve for its cause? A very basic question arises- Will anti social elements and culprits use Bomb, Blast, Kill in their conversation? Don' they have code words for it? Isn't it easy to mock the identity at every level, conceal it and communicate in a manner that is impossible to track. So, who is going to affect then, probably who is not aware of all these. Are we blocking from the common man who doesn’t know how to tweak the system? These mere questions reflects the serious flaws, caveats in the very aspect of Netra.

 More importantly, India should understand, after supporting "Right to Privacy in the Digital Age" in General Assembly on December 18,2013, there remains a little relevance for such systems. The resolution calls upon states to end violations of privacy by ensuring that national legislation complies with obligations under international human rights law, and “to review their procedures, practices and legislation regarding the surveillance of communications, their interception and collection of personal data, including mass surveillance, interception and collection, with a view to upholding the right to privacy by ensuring the full and effective implementation of all their obligations under international human rights law.”

India has no transparency yet in terms of disclosing the quantity of interception taking place every year and notification to people whose communication was intercepted. We don’t even have any external oversight body or similar independent regulatory body to prevent this abuse of surveillance systems.

There is need to maintain “a necessary balance” between security and privacy concerns. Unfettered and unwarranted mass surveillance poses a threat to any democratic country as it threatens various rights which are reinforced by right to privacy such as right to freedom of thought, association and movement.