Domestic Surveillance and Right to Privacy

By Anshika Juneja, Symbiosis Law College, Pune.

Domestic Surveillance is the close observation of someone, often in order to catch them in wrongdoings. As defined by the government authorities, it is, “information that meets the stated or understood needs of policy makers and been collected, processed and narrowed to meet those ends which hold value to protect the country and its citizens.” Its value is founded on a unique and deep understanding of risks, vulnerabilities, mitigations, and threats. Domestic Surveillance plays a vital role in our national security by using advanced data mining systems to “connect the dots” to identify suspicious patterns. 

Meanwhile, in India, surveillance and monitoring mechanism through the Central Monitoring System (CMS) project, aimed at improving the capability of security agencies to protect national security and fight crime, including terrorism on the ground of national interest which has on the other hand raised serious privacy, civil rights and right to speech issues.

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FACTS /EXPLANATION/CURRENT SCENARIO

The list of current and planned future data collection targets by the government agencies are as follows: Internet searches, Websites visited, Emails, Social media, Blogging activity, Phone call records, Text messages, Skype calls, Credit card transactions, Financial information, Legal documents, Travel documents, Health records, Educational records, Arrest records, Driver license information, Aadhar card information, etc.

INDIAN LAW

The mass surveillance system is regulated under Section 5(2) of the Indian Telegraph Act, 1885, which empowers the Indian Government to intercept communications in the following instances:

  • the interests of the sovereignty and integrity of India
  • the security of the State
  • friendly relations with foreign states
  • public order
  • for preventing incitement to the commission of an offense

The Information Technology Amendment Act, 2008, Section 69B of that act gives the government the authority to “monitor and collect traffic data or information through any computer resource for cyber security.”

“The Right to Privacy,” is protected under Article 21 Right to Life and Article 19 of the Constitution of India, “unless it is permitted under procedure established by law.”

CRITICAL ANALYSIS

IN FAVOUR:

  1. The surveillance project is conducted to ensure the safety of individuals in the society and protecting the whole country is more important than one person’s right to privacy.
  2. Even if one probable attack is stopped then it’s worth spending money and even giving away the right to privacy in exchange of the safety of your dear ones.
  3. In a population of millions, when everybody is making innumerable calls, surfing the internet, withdrawing money from ATMs, etc everyday, in huge numbers, the probability of getting monitored by the security agencies is too low. Moreover, they are only interested in possible threats to our country and not on individual’s private life.

AGAINST:

  1. It is not economical. The chances of death by consumption of alcohol are 4,007 times more likely than to be killed by terrorist attacks, still our country spends more on war and projects to curb terror.
  2. Socially, the people will start fearing the government watching them, which leads to fear and mistrust of the government amongst people.
  3. The possibility of private sensitive information to be leaked or abused is high and the privacy of people may become public.

ETHICAL ANALYSIS

  1. Utilitarianism:

Utilitarianism maintains that conduct is ethical if it provides the greatest happiness for the greatest number of people and the moral standard adopted should promote the best long term interest of everyone concerned. This can be in terms of pleasure over pain.

A procedure to decide between the alternative actions is choosing between actions of relative maximum utility or the Action of relative maximum disutility i.e. the right of privacy being infringed and utilitarianism believes in maximizing the consequential good.

In other words, it is reasonable to conclude that the harm to certain individuals pales in comparison to the harm that would be inflicted by mass attacks, if they were not prevented by the program. Anyone having their dear and near ones like parents, a brother or sister, or a child living in a major city would believe that giving the government access to his or her data is worth the loss in privacy. In terms of utilitarianism, therefore, this government program can be regarded as ethical because it is consistent with the greatest net happiness for the greatest number. In other words, saving lives is a benefit so significant that the loss of some privacy of many more people of such a wide population would likely be less than the overall benefits. To be sure, weighing and relating benefits in terms of severity and the number of likely people, involves considerable uncertainty. Utilitarianism states this as an ethical conduct.

  1. Consequentialism:

         This theory states that the morality of an act depends on the ratio of good over the evil action produced and that one while proceeding with the action should perform right action which further produces greater good of the society. Surveillance programmes conducted by the government lead to the safety and protection of the country and its people in all corners of the world which outweighs the evil action of infringing the right to privacy of a person granted under our Constitution, the person whose right is violated will also enjoy the protection. In today’s world, the major terrorist activities are carried out by the innocent educated individuals due to various personal reasons, so the need to monitor increases, to shield our country from any such attack, which would lead to devastation of our society. Consequentialism considers the act of surveillance by government agencies ethical.

  1. Absolutism or Universalism:

Absolutism is the system of norms and values that is universally applicable to everyone, everywhere, at every time. In this scenario, the rights enshrined by the Constitution which are to be protected and whose violation is deemed to be an offence, are infringed, i.e. a norm is set, which must be protected. On the other hand the national security of the country is an important aspect which holds value and cannot be put at stake. So, under absolutism, both norms and values coexist but contradict each other and the act is considered ethical.

CONCLUSION

The only way to move forward is to put measures in place to ensure that India’s surveillance system protects citizens rather than exploiting them and their rights.

Surveillance operations, which do not follow local rules, standards, and oversight, can diminish trust in local law enforcement, achieving neither the goals of community policing nor of intelligence gathering. The Group of Experts on Privacy have advised the government to consider safeguards like informing citizens when their data is breached, changes in privacy policies, and requiring written consent from citizens before their data is shared with anyone.

Hence, in my opinion, the act of domestic surveillance by government agencies is ethical but the laws regarding it need to be reformed, specifically defining the function of the projects and laws undertaken by government. Laws should be made such that the country is protected, keeping the individuals  in mind, by protecting their rights and ensuring their safety.

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