Surveillance in India

Context: Over a dozen Opposition leaders and journalists in India received email alerts from Apple informing them that their devices may be targeted by “state-sponsored attackers”.

Surveillance means close observation of a person or group, especially the one who is under suspicion or the act or observing or the condition of being observed. 

With the growing technological developments surveillance technologies have also been introduced such as internet surveillance, CCTV surveillance, telephone, and e-mail id surveillance, artificial intelligence, facial recognition, integrated database systems, social media analytics, etc.

Types of Surveillance 

Surveillance can be categorized in various ways, primarily based on the actor conducting the surveillance and the individuals affected by it. Here are different types of surveillance based on these factors:

Based on the Actor

Surveillance by State: This involves government agencies, law enforcement, or other state entities monitoring individuals or groups for various purposes, including national security, law enforcement, and public safety.

Surveillance by a Private Actor: Private entities, such as corporations, businesses, or individuals, may conduct surveillance for various reasons, including commercial interests, security, or personal reasons.

Based on the Affected Person

Mass Surveillance: In mass surveillance, a large population or a broad group of individuals is subject to monitoring, often without specific targeting. This can involve the collection of data on a wide scale, such as integrated data systems, social media analytics, etc., the monitoring of internet communications or the use of public surveillance cameras.

Targeted Surveillance: Targeted surveillance is focused on specific individuals, groups, or entities. It involves monitoring and data collection with a specific objective, often in cases where there is a perceived threat or suspicion.

Lateral Surveillance: Lateral surveillance occurs when individuals monitor or surveil others within their social or peer groups. It can involve citizens watching or reporting on each other’s behaviour, often facilitated by social media or community networks. E.g., During Covid this surveillance was used to report infected persons.

Mechanism Used by State for Surveillance in India

National Intelligence Grid (NATGRID)

NATGRID allows investigation and law enforcement agencies to access real-time information from data stored within agencies like the Income Tax Department, banks, insurance companies, the Indian Railways, and other offices. There are a total of 21 categories of data that NATGRID has access to.  

Central Monitoring System (CMS) 

Where the NATGRID has access to real-time data, CMS is a centralized telephone interception provisioning system. And it’s exactly what it sounds like. It can bypass the middleman the telecom companies to directly monitor text messages, social media posts and phone calls.  

Network Traffic Analysis (NETRA)

NETRA is the third leg of India’s security infrastructure. While the CMS is tapping into your phone’s network, NETRA is watching everything you do online, not just on social media.

It can monitor any text-based messages containing direct messages on Facebook, within your personal emails or online blogs. Using filters and keywords, it can identify words even in encrypted messages.

Automated Facial Recognition System (AFRS)

Delhi Police have used AFRS, a large database containing videos and photos of people’s faces. A new face can be identified by matching a photo of a person with this database, and their identity can be ascertained.

Crime and Criminal Tracking Network System (CCTNS) 

CCTNS aims at collecting, storing, analysing, transferring, sharing of data between various police stations and with State Headquarters and police organisations.

Law Governing State-Surveillance in India

In India, there are no specific laws governing surveillance, although there are many acts and rules passed by legislature which governs surveillance indirectly.

• Section 69 Information Technology (IT) Amendment Act, 2008 gives power to the government to intercept, monitor or decrypt any data or information stored on any computer resources for the reason of public safety, public order etc.
• The Indian Telegraph Act (ITA), 1885 had also given power to the central or state government to intercept any message if it is against public safety.

Need for Surveillance by State

• To monitor and protect borders against illegal crossings, smuggling, and other illicit activities.
• It plays a crucial role in gathering intelligence about foreign governments, organisations, and individuals to protect national interests and security.
• It helps in identifying and preventing cyberattacks on critical infrastructure and sensitive information.
• It helps in identifying and preventing terrorist activities, organised crimes and gathering intelligence on potential threats.
• It assists law enforcement agencies in investigating and solving crimes, including theft, fraud, cybercrime, and other illegal activities.
• It helps in monitoring and preventing activities related to insurgency, Left wing extremism and other threats to national security.

Concerns with the State-Surveillance 

• Privacy Rights: The Indian Constitution guarantees the fundamental right to privacy under Article 21, but the use of surveillance technologies like use of Pegasus, facial recognition, and CCTV cameras can compromise citizens’ privacy.
• Lack of oversight mechanism: The IT Act and ITA grant government surveillance powers without independent legislative oversight, potentially enabling unchecked surveillance by concentrating power within the executive.
• Lack of Accountability: The lack of accountability in surveillance activities, especially when it comes to government agencies and law enforcement. 
• Lack of Transparency: The government has implemented various surveillance programs, such as the CMS, NETRA and NATGRID facing criticism for their lack of transparency and potential for abuse.
• Potential for Political Misuse: Surveillance can be misused for monitoring political opponents, activists, and journalists. This can have a chilling effect on freedom of expression and dissent.
• Misuse of Biometric Data: The system which collects and stores biometric data on millions of Indian citizens, has raised concerns about the security of this data and the potential for misuse. 
• Facial Recognition Technology: The use of facial recognition technology by law enforcement agencies and private entities has raised concerns about its accuracy and potential for misuse, including tracking citizens without their consent.
• Lack of Consent: Sometimes, people aren’t sufficiently informed about the extent of surveillance they’re under, leading to a lack of informed consent for data collection and monitoring.
• Unintended consequences: Storing vast amounts of sensitive personal data in surveillance databases poses cybersecurity risks leading to data breaches, identity theft and related risks.
• Risk of Social Profiling: Surveillance technologies can be used for social profiling which potentially can be used to change electoral behaviour, and stereotyping based on personal data.

Way forward

• An overhaul of surveillance laws is necessary to prevent the indiscriminate monitoring of people and entities by the state.
• Oversight and accountability mechanisms should be embedded in the legal mechanism provided for surveillance.
• Balancing the use of technology with the advantages it offers in terms of surveillance and the rights of citizens is crucial.
• A joint parliamentary committee can be formed to find the best legal practices in the world and find a legislative mechanism suitable for India.
• Legislation should be changed to address the emerging threats the existing legislations in India are from an era before spyware such as Pegasus and, thus, do not respond effectively to the modern-day surveillance industry.
• A Select Committee on surveillance can be formed in Parliament where the government submits specific reports about surveillance, explaining the need for such action.

Global Practices with regards to State Surveillance 

United States of America (USA) 

USA has a very strict policy on surveillance. In USA, 

• The Attorney General shall report to the House of Permanent Select Committee on Intelligence and Senate Select Committee. 
• The CJI can form a panel for surveillance to grant, modify or deny the application regarding surveillance.
• Any federal officer can file such an application for electronic surveillance.  

United Kingdom (UK) 

• In the UK, Regulation of Investigatory Powers Act, 2000 governs the provisions for surveillance and investigation by governmental bodies. 
• Under this act and guidelines, the surveillance and investigation can be done in case of terrorism, crime, public safety, or emergency services.
• Surveillance includes full electronic surveillance such as intercepting communication on cell phones or emails or letters, GPS locations of targets and access to electronic data encrypted or password protected.