Essential surveillance and the right to privacy

The last few days have seen significant uproar in the Indian parliament and media about the alleged wire-tapping of four senior politicians in India. The Outlook Magazine reported that telephones of Bihar Chief Minister Nitish Kumar, Union Agriculture Minister Sharad Pawar, CPI(M) General Secretary Prakash Karat and Congress General Secretary Digvijay Singh were tapped by intelligence agencies at various points of time. The opposition parties and the media alleged that the Manmohan Singh government had authorised these wire-tappings for political interests. However, the government has categorically denied its involvement in any such action, and set up an inquiry to examine the veracity of the report published in Outlook.

Whether the government directly issued orders or if it was a case of accidental random sweep, we might never know; but it sure raises the question of the absence of a direct fundamental Right to Privacy in the Indian Constitution. Court judgments over the years imply that individual privacy is indirectly guaranteed under Art 21 which protects the right to life and liberty. Such indirect protection is insufficient in a society where individual space and privacy are culturally very limited. Out of goodwill or sheer nosiness, everyone is into everybody’s business. And it is considered impolite to shoo these ‘well-wishers’ away. It is therefore, no surprise that the Right to Privacy is not enshrined in the Indian Constitution as a fundamental right. Neither are there stringent laws ensuring individual privacy and protection from unwelcome intrusion by individuals or governments.    

Phone/Wire-tapping laws can be found in the 1885 Indian Telegraph Act , but they fall seriously short of 21C realities. In a 1997 judgement, the Supreme Court of India had “observed that unlawful means of phone tapping are invasions in privacy and are uncivilized and undemocratic in nature.” It had issued guidelines to be followed for authorizing wire-tappings, but today’s advanced technologies can easily circumvent them. As reported by Outlook Magazine, the National Technical Research Organization (NTRO), a technical-intelligence gathering agency created in 2004, tapped the cellphone of the four leaders using the off-the-air GSM monitoring device. The device can tap into any conversation within a two kilometer radius without any assistance from the service provider. “Depending on weather conditions we can detect and intercept a GSM mobile number at least 2 km away even though the number is not available to us … All we have to do is to set up a mobile monitoring system by placing the device in a car and then drive around the likely areas of the phone we want to put under surveillance. Once the call is detected, the device hooks on to the number and continues to track and record calls made or received. Sometimes, we take a voice sample from a TV recording and use it to identify the cellphone if we are monitoring a public figure.”

Other intrusive actions by intelligence and law enforcement agencies require all telecom providers to be part of the surveillance efforts. “A telephone company has to set up a 20 ft by 20 ft room with eight computers in every city … Each computer belongs to a designated agency, which can use it to access all data, phone call records and, if necessary, even record calls of a particular number, provided the Union or state home secretary has authorised it.”

While the terror situation these days can help rationalize such drastic measures for national security purposes, it also lays the burden on the government to ensure that it does not abuse its powers. The accidental intrusion of individual privacy due to advanced surveillance methods is a privilege the citizenry grants its government in times of crisis. It should not be used as a right. The Indian Parliament, instead of engaging in shouting matches and walk-outs, should seriously take up the task of legislating the protection of individual privacy. Technological advances are shrinking personal space. But willful shrinking through social networking sites should not be confused with a free-run for government agencies to poke around in people’s lives. A serious debate in the Parliament is necessary to determine whether the right to privacy can be guaranteed as a Fundamental Right. The 1885 Telegraph Act should be revisited and amended with the current realities in mind. Wire-tapping laws need to be made stringent with a competent authority designated to determine and authorise when such wire-tapping is critical to national security. It should also include relevant laws for protection of individual’s rights, privacy and information in the cyber world. With the project for an Unique Identification numbers for all Indian citizens underway, it is necessary to incorporate water-tight methods for protection of information, identity theft and misuse by persons for malicious purposes.    

It is necessary that Indian society learns to recognize and respect individual space and privacy beyond the cultural confines it has stuck to so far. If a person cannot be gauranteed an intrusion-free private life by people around him, it would be wrong to assume that the government will. Essential surveillance is a grey area; the Indian Parliament needs to define it.