Why tightening privacy law before surveillance is important

Edward Snowden’s exposure of the US electronic surveillance operations has brought focus to India’s activities in this area with the debate mostly focused on individual right to privacy versus the state’s right to securing its citizens. In the US there is a well defined privacy law while India does not have one. Despite this, as per recent news reports, even NSA of USA has been throwing caution to the winds when it comes to individual’s privacy.

America is often cited as a model of democracy and the fear is that its acts of violating privacy will now be emulated more blatantly in India.

As a case to the point: DoT’s amendment to Universal Access Service License dated 31st May, 2011 states on its page 4 at X(b) that “within a period of three years location details shall be part of CDR for all mobile calls.” When a senior DoT officer in the know of this was asked if this does not breach privacy, his response was “This is our requirement. If anyone has a problem with it, let him go to court. We are not going to worry about privacy.”

It is clear that in absence of a clear privacy law, bureaucracy of Indian democracy can also be insensitive and blind to rights of an individual citizen in their zeal to implement security related policy through blanket orders like what has been quoted above. Such actions undermine the imperative need for security. Security driven excesses that ignores privacy, will only endanger democracy. So, privacy should be the pre-requisite for any deployment of security.

Some actions of the Indian government for blanket surveillance are not based on a sound legal foundation, for e.g. C-DoT has been mandated to build a CMS in India (to some extent on the lines of PRISM of USA) with no clear debate or definition of what would be lawfully permissible. Similarly, the Indian government has set up a NATGRID and UIDAI without a transparent discussion on what these organizations aim to do. Procedure of checks and balances and audit of their working are not defined. We can never be very sure that such systems will not be compromised at any stage or misused.

Such deployments at a national level where checks and balances are not built-in inherently will only endanger Indian democracy where such electronic snooping systems can be misused by a pliant administration faced with a national government hell bent on carrying out its mischievous agenda –as happened during emergency in India.

It is imperative that transparency and accountability should be part of planning of such networks at a national level – which is not the practice in India. While the law enforcement agencies need power to make our lives more secure, such powerful forces must be made accountable for their actions through powerful national watchdog organizations having the requisite mandate to carry out checks with sincerity without fear or favour. This would prevent abuse or misuse. Laws are urgently needed that have a clear oversight on the functioning of such national surveillance organizations.

As the Telegraph Act and IT Act only permits targeted surveillance, definition a clear dedicated privacy law for India is very important in such a situation. Individual privacy should not be violated unless he/she is a potential suspect whose monitoring has become necessary and has been mandated through a proper legally sanctioned process.

Limited surveillance in a democracy is a necessity but blanket surveillance goes against our tenets of democracy and makes us no different from dictatorships and cadre regulated regimes.

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