Sunday, 23 March 2014

Electronic Surveillance and Right to Privacy: Stuck between a Rock and a Hard Place.

Big brother surveillance techniques have sparked much debate on the conflict that exists between the right to privacy and the duty to protect security of state. The conflicting judgments of two US courts on the constitutionality of NSA’s bulk surveillance programme is interesting to note. This post highlights the conflict and also gives a brief overview of the Big brother surveillance techniques that exist in India.

On June 6, 2013 the plaintiffs brought the first of two related lawsuits challenging the constitutionality and statutory authorization of certain intelligence gathering practices relating to the wholesale collection of phone record metadata and internet activity of all US Citizens[1].

The Court found that it does not have the authority to evaluate the constitutional challenge on one of the lawsuits, one claiming that government has exceeded its statutory authority under the Foreign Intelligence Surveillance Act (“FISA”).  However the Court did find sufficient basis for jurisdiction and authority to evaluate the NSA’s conduct on constitutional challenges, notwithstanding the fact that it was done pursuant to orders issued by the Foreign Intelligence Surveillance Court (“FISC”).

The Court granted in part, the Motion for Preliminary injunction. In spite of granting this injunction, the judge himself stayed his order in view of the “significant national security interests at stake in this case and novelty of the constitutional issues” pending appeal.

In a significant statement the Court said

“Plaintiffs have a substantial likelihood of showing that their privacy interests outweigh the government’s interest in collecting and analysing bulk telephony metadata and therefore the NSA’s bulk collection program is indeed an unreasonable search under the fourth amendment.”

The almost-Orwellian technology that enables the government to store and analyze the phone metadata of every telephone user in the United States is unlike anything that could have been conceived in 1979.

The reference to the year is to distinguish a US Supreme Court Case called Smith v. Maryland[2] where the question before the Court was whether local police could collect phone records after the pen register was installed for the limited purpose of investigating a case of harassing phone calls. The US Supreme Court held that such surveillance is in compliance with the fourth amendment. The NSA relies heavily on this precedent to justify its bulk surveillance programme.

The judge in the instant case stated that the extension of the precedent in Smith would be “stuff of science fiction”.

The judge also remarked
“I cannot imagine a more "indiscriminate" and "arbitrary invasion" than this systematic and high- tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval. Surely, such a program infringes on "that degree of privacy" that the Founders enshrined in the Fourth Amendment. Indeed, I have little doubt that the author of our Constitution, James Madison, who cautioned us to beware "the abridgement of freedom of the people by gradual and silent encroachments by those in power," would be aghast."

In a span of about 10 days a similar question came up before American Civil Liberties Union Et. Al v.James Clapper et. al[3]  before the United States District Court Southern District of New York. In a similar set of facts, the Plaintiffs challenged the legality of NSA’s telephony metadata collection program. The Court denied the claims and allowed the Government’s motion to dismiss. It ruled that the state interest was reasonable and not violative of the fourth amendment right and security of state supersedes the right to privacy.

Big Brother Surveillance in India:
In the recent past, India has also introduced several bulk surveillance programmes which seek to closely monitor communications and movements of citizens. Such programmes are giving wings to various governmental departments to rely on databases which contain private information such as, tax details, PAN numbers, date of birth etc. the following paragraphs will throw some light on these technologies:

  1. CMS: The Central Monitoring System is an initiative by the Ministry of Telecommunications which will empower governmental departments such as intelligence agencies and tax authorities to intercept telephone messages, calls, emails and VoIP. It is stated that this project is in line with Section 5 of the Indian Telegraph Act, 1885 and is secure as it has a strong inbuilt mechanism to protect the privacy of information stored. We believe that this clearly impinges upon the right to privacy. The lack of public documentation which highlights the effects and manner of implementation of the project raises concerns. Secondly, the concept of necessity has been done away with as information will be monitored even when there is no threat to security of state. Thirdly, by including tax authorities in the list of authorised departments the Government has gone beyond the ruling of the Supreme Court which stated that economic emergency is not national emergency.
  2. NATGRID: is a project introduced after the gruesome 26/11 attacks and envisions networking 21 databases for purposes of crime investigation including tax, health, and travel information. The information will be accessible to 11 security agencies and law enforcement agencies. Supporters of the project claim that the project is merely a technical interface for intelligence agencies and is a security initiative, thereby forming a reasonable restriction to privacy. One of the biggest hurdles to is the protection of information and lack of adequate safety equipment. Establishment of such grids will pose a huge risk of data loss due to hacking and contamination. Further NATGRID will not help in preventing attacks like 26/11 because the nodal defense departments are not privy to the information. The Government has also failed to define the legal status of the project, which poses huge concerns for privacy.
  3. UAV: Unmanned Ariel Vehicles are being used by the police to monitor large crowds and traffic. The Mumbai police recently used UAV ‘Netra’ to monitor large crowds during the Raj Thackrey rally. The use of these vehicles for concerns other than combating terrorism is an infringement of privacy as restoration of public order does not qualify as public emergency. Further there is no clarity on how the information is collected, stored and accessed.
  4. CCTV: CCTV cameras have been installed by many metro cities in public places such as railway stations and metro stations. These have been installed under simple executive orders and no clear safeguards exist with regard to how this information is stored, processed, accessed and monitored. The recent Privacy Protection Bill, 2011 is the only parliamentary step which seeks to regulate information and footage collected through such cameras. However the Bill is still at its infancy and it will take a lot of time before this data protection legislation becomes the law of the land.

Big Brother Surveillance: Cross Border Remedy:
As India’s privacy law is modeled on the American jurisprudence, such conflicting decisions are bound to affect the law on bulk surveillance and privacy in the country. It is interesting to note that the NSA’s bulk surveillance programme also keeps tabs on communications that happen within India. This was challenged before the Hon’ble Supreme Court of India in S.N. Singh Patron v Union of India. The Supreme Court dismissed a petition on the grounds that Article 32 can be invoked only against the state, hence other civil remedies must be resorted to.

Such lack of remedies poses a huge concern for the citizens of India, as there is no redressal for cross border surveillance which clearly impinges upon the privacy of an individual.

It is our opinion that there is a need to strike a balance between the states duty to protect the right to privacy and ensure security of state. Article 21, while encompassing the right to be left alone also provides that the same can be abridged in accordance to reasonable procedure established by law. Taking a cue from this exception, several Supreme Court cases have held privacy to be subservient to security of state. The need for surveillance is justified as there is a duty on states to protect public order and state security under Article 38 of the Constitution of India. But this Directive Principle of State Policy must be read with Part III as both form an essential part of fundamental governance of state. Hence the big brother surveillance techniques are in direct conflict with the right to privacy. These programmes must get Parliamentary approval and can be regarded as reasonable exceptions only if strong steps are taken towards protecting the data collected.

[1] Klayman et al v. Obama Civil Action No. 13-0851 (RJL) Filed December 16, 2013
[2] 442 U.S. 735 (1979
[3]ACLU v Clapper 13 Civ. 3994 (WHP)