The case against surveillance

Last week, a Ministry of Home Affairs (MHA) notification authorising 10 Central agencies to intercept, monitor, and decrypt online communications and data caused a furore in both Parliament and the wider civil society. The notification was described as an incremental step towards a surveillance state. The government’s defence was equally swift: it protested that the notification created no new powers of surveillance. It was only issued under the 2009 Information Technology Rules, sanctioned by the previous United Progressive Alliance government. The 10 agencies had not been given a blank check; rather, specific surveillance requests, the government contended, still had to be authorised by the MHA in accordance with law. But whatever one makes of the government’s defence, the MHA notification lays bare the lopsided character of the surveillance framework in India, and highlights an urgent need for comprehensive reform. The problem The existing surveillance framework is complex and confusing. Simply put, two statutes control the field: telephone surveillance is sanctioned under the 1885 Telegraph Act (and its rules), while electronic surveillance is authorised under the 2000 Information Technology Act (and its rules). The procedural structure in both cases is broadly similar, and flows from a 1997 Supreme Court judgment: surveillance requests have to be signed off by an official who is at least at the level of a Joint Secretary. There are three features about the current regime. First, it is bureaucratised. Decisions about surveillance are taken by the executive branch (including the review process), with no parliamentary or judicial supervision; indeed, the fact that an individual will almost never know that she is being surveilled means that finding out about surveillance, and then challenging it before a court, is a near-impossibility. Second, the surveillance regime is vague and ambiguous. Under Section 69 of the IT Act, the grounds of surveillance have been simply lifted from Article 19(2) of the Constitution, and pasted into the law. They include very wide phrases such as “friendly relations with foreign States” or “sovereignty and integrity of India”. Third, and flowing from the first two features, the regime is opaque. There is almost no information available about the bases on which surveillance decisions are taken, and how the legal standards are applied. Indeed, evidence seems to suggest that there are none: a 2014 RTI request revealed that, on an average, 250 surveillance requests are approved every day. It stands to reason that in a situation like this, approval resembles a rubber stamp more than an independent application of mind.

Source : https://www.thehindu.com/todays-paper/tp-opinion/the-case-against-surveillance/article25823488.ece

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