Over the last three decades, the technologies that have changed our everyday lives have also stored the ever more accurate records of those lives. New technologies ranging from surveillance cameras and thermal scanners to GPS transponders have improved the capacity to track, watch and monitor. The range of monitoring techniques available today are unsurpassed in human history.
The gathering, usage, and sale of personal data generates massive profits for Governments and both large and small private firms. Thus, not only have surveillance technologies grown in number, but so have the entities that want to surveil.
In the 21st century, surveillance is unavoidable and has become a common feature of dealing with Governments, companies and other entities. It is a part of daily connection, involvement and initiative through the usage of the internet and social media. In such a scenario, the need for preventing misuse of surveillance technology and data protection also becomes vital.
CONCEPT OF SURVEILLANCE CULTURE
The advent of powerful technology and increase in digitization has led to the emergence of surveillance culture globally. The surveillance culture of present world is shaped in a similar fashion by security ties, organizational reliance, social media involvement and political and economic competency, just as all cultural developments are influenced by social, political and economic factors.
Surveillance culture can be categorized as existing in various forms and modes. One is the surveillance in public places and certain private places via CCTV cameras, baggage scanners and biometrics at airports, railway stations, shopping malls, traffic signals and Government offices and buildings.
Another one is the surveillance in which common masses play a more active part by using social media or traditional search engines to keep a check on everyday lives of people. Further, agreeing with the terms of service in order to use certain online sites is another mode of surveillance as these sites then get the users’ consent to keep track of their login, logout and search history.
Surveillance cultures vary greatly based on a variety of characteristics namely, age, gender, social status and geographic location. Thus, there is no such thing as a uniform surveillance culture. However, surveillance cultures share some similar characteristics, even if the details differ, because the critical enabling factors are almost on the similar lines around the globe.
HAZARDS ACCOMPANYING SURVEILLANCE
Some of the dangers associated with surveillance are the following:
The idea of intellectual privacy is based on the premise that free minds are the cornerstone of a free society and that monitoring of such belief formation and idea development can have a negative impact on such activities.
It is a notion that if anyone is monitored while he/she is engaged in intellectual pursuits such as reading, thinking, online browsing or private conversation, such surveillance often brings a halt in the human minds from indulging in ideas or behaviors that may seem deviant to others.
Surveillance, thereby jeopardizes the society’s core values of intellectual differences and unconventional uniqueness. The fear of being observed, leads people to act and think differently than they would have otherwise.
Therefore, a reasonable legal process must be followed by the Government in order to perform any sort of surveillance on the activities of the citizens or collect their personal data.
It is further important to mention that records gathered by private persons could be demanded by or sold to the Government, particularly those related to political opinions. Accordingly, the issues of intellectual privacy does not only revolve around the public authorities, but also extends to private entities.
Blackmailing and Inducing
Information obtained deceitfully might be used to blackmail or defame the person by publicizing any confidential information. If any confidential information is obtained as a result of undue surveillance, such information can be used to threaten the victim and can have a negative impact.
Surveillance increases the watcher’s ability to persuade. Even if the ones being observed are unaware that they are being watched or persuaded, this information provides the observer more power over them, which may be utilized to convince, influence or control them.
Surveillance is also used by certain Governments to regulate public behavior. For an instance, one of the arguments for large CCTV networks in modern metropolitan settings is that they provide police more power to monitor and control what happens on the streets of a certain city. Though the presence of cameras or police can certainly urge residents to respect the law, it might also have negative consequences such as privacy infringement of the common public, vulnerability issues, etc.
Google and other online companies create massive comprehensive profiles in accordance with the web browsing patterns and purchasing behaviors of the users. Certain companies combine various types of data to create even more detailed consumer profiles, which they sell to a variety of sources, including direct marketers and companies. This type of commercial data may be utilized to provide discounts or targeted marketing to customers.
A frequent shopper discount may appear simple. However, what needs to be pondered upon is the capacity to provide such discounts to the appropriate target customers. For example, affluent and frequent fliers are provided certain memberships with which they are entitled to skipping the airport security queues, extra luggage allowances, etc. However, it should be noted that such privileges form bias against consumers or residents based on money, location, gender, colour, or ethnicity.
PROTECTION OF PERSONAL DATA IN THE ERA OF DIGITAL SURVEILLANCE
Personal data protection across several jurisdictions takes on new hues as it becomes more linked to the administration and control of the internet. Undoubtedly, the internet has evolved into a modern public realm. The social media platforms and search engines wield enormous influence and have a significant duty to guarantee that their platforms serve the public good.
However, the unrestricted collection of personal data jeopardizes the peace, prosperity, and individual liberty without which a democratic space cannot be sustained or utilized.
Consequently, as a response to widespread gathering of personal data, many nations have passed legislation and have entitled the individuals with the right to regulate how their data is collected, processed and transferred by public and private entities. This ensures intrinsic security of the personal data of the citizens.
Though establishing a data protection culture rapidly is unachievable, its widespread promotion has improved confidence and communication between the Government authorities, businesses and common people.
Governments and businesses all around the globe should aim to promote openness in the use of personal data, enable data portability between platforms and allow consumers to access and remove any of their personal data.
Furthermore, policymakers should ensure that any proposed research and development programmes with respect to digital surveillance include a full evaluation of any potential violation of privacy rights, security of personal data and should also be open to public comments and suggestions.
LEGAL POSITION CONCERNING SURVEILLANCE CULTURE IN INDIA
Presently in India, communication surveillance is primarily governed by two legislations. First being the Telegraph Act, 1885 which deals with interception of telephonic conversations and the second being the Information Technology Act, 2000 which concerns the surveillance of electronic communication.
However, there are no specific laws or regulations to address the gaps existing between the aforesaid two legislations for avoiding overreach.
The Supreme Court of India (hereinafter referred to as the “Supreme Court”) while considering that data privacy is a part of Right to Life enshrined in the Constitution of India and also a fundamental human right, observed the principles of informational privacy and data protection in the landmark judgment of K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1. This celebrated judgement of the Supreme Court resulted in the introduction of the Personal Data Protection Bill, 2019 (hereinafter referred to as the “PDP Bill”).
The PDP Bill lays forth the fundamentals of data protection and establishes mechanisms for dealing with any violations of its provisions. Further, it imposes sanctions on corporations and individuals that fail to comply with the provisions of the PDP Bill. Moreover, it establishes an adjudicatory procedure through which individuals can seek compensation for any ‘damage’ they have suffered as a result of a violation of the PDP Bill’s provisions.
However, though an umbrella legislation may be easier to draft and implement, it may overlook sector-specific details in order to achieve the declared State goal. For an instance, data collection in the health sector amid the Covid-19 pandemic would be different from data collection and use for the national security, which includes challenges such as terrorism and counterfeit money. It is pertinent to note that the surveillance needs in both the circumstances would be different.
The PDP Bill was referred to a Joint Parliamentary Committee (hereinafter referred to as the “Committee”) for further consideration, and thereafter the Committee published its Report and finalized the Data Protection Bill, 2021 (hereinafter referred to as the “Bill”). The Bill which is expected to be enacted anytime soon, shall govern all the aspects of data processing in the country and any surveillance mechanism shall be affected by the same.
PRIVACY AND SURVEILLANCE IN INDIA: JUDICIAL PRECEDENTS
The Right to Privacy has not been explicitly mentioned in the Constitution of India. However, the Courts in India have created a framework for protection of privacy of the citizens by interpreting it within the meaning of Right to Life and Personal Liberty under Article 21 of the Constitution.
The Supreme Court developed the law on Right to Privacy via some landmark judgments involving surveillance. The first being the case of Kharak Singh v. State of U.P., (1964) 1 SCR 33, wherein the constitutional validity of Regulation 236 of the Uttar Pradesh Police Regulations, 1861 was challenged which permitted surveillance. The Supreme Court held that “surveillance by domiciliary visits and other acts under regulation 236 was ultra vires articles 19 (1)(d) and 21”.
In another case of People’s Union for Civil Liberties v. Union of India, 1995 (3) 365, the Supreme Court held that “right to privacy included the right to hold a telephone conversation in the privacy of one’s home or office and that telephone tapping, a form of technological eavesdropping’ infringed the right to privacy”.
However, in Govind v. State of Madhya Pradesh (1975) 2 SCC 148, a case of surveillance under the Madhya Pradesh Police Regulations, though the Supreme Court acknowledged a limited right to privacy, it upheld the impugned regulation which authorised domiciliary visits in its entirety.
Traditionally, the notions of surveillance have been linked just with the monitoring activities of the Government authorities such as the police. But in today’s modern world, surveillance has not just been limited to the Government and has expanded to private companies and individuals as well.
Also, surveillance can be perplexing as it has both its advantages and drawbacks. This ambiguity highlights a wider issue of lack of a clear explanation for when and why monitoring is damaging. Thus, an adequate analysis and explanation of when and why surveillance is harmful in order to determine when and how to regulate it is of utmost importance.
Furthermore, in spite of personal data protection being recognised as a fundamental right, there is no law in place to adequately explain the state’s purpose in collecting such data as well as to enforce and balance people’s rights against greater public interests. Hence, a legislation authorising data gathering and mandating the Government to adhere to key data privacy and surveillance norms is urgently needed.
– Team AMLEGALS assisted by Ms. Kopal Agarwal
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