Digital Surveillance

This page elaborates Digital Surveillance for the definition.

What is Digital Surveillance?

Digital Surveillance as understood in general terms refers to keeping a close watch over somebody or something on a digital platform.

The legal understanding of the term:

While there is no definite definition of digital surveillance there are the implied definition of it in various statues like:

1.Information Technology (inception, decryption and monitoring) rules 2009 under sec 69(A) of IT act, 2000

Digital surveillance is understood to be constituted of three terms: decryption; intercept and monitoring “decryption” means the process of conversion of information in non-intelligible form to an intelligible form via a mathematical formula, code, password or algorithm or a combination thereof;” “intercept” with its grammatical variations and cognate expressions, means the aural or other acquisition of the contents of any information through the use of any means, including an interception device, so as to make some or all of the contents of an information available to a person other than the sender or recipient or intended recipient of that communication, and includes-“monitor” with its grammatical variations and cognate expressions, includes to view or to inspect or listen to or record information by means of a monitoring device.

2. Digital personal data protection act, 2023

(a) apply to the processing of digital personal data within the territory of India where the personal data is collected–– (I) in digital form; or (ii) in non-digital form and digitized subsequently; (b) also apply to processing of digital personal data outside the territory of India, if such processing is in connection with any activity related to offering of goods or services to Data Principals within the territory of India.

Under Section 5(2) of this law, the government can intercept calls only in certain situations:

-Interests of the sovereignty and integrity of India,

-Security of the state,

-Friendly relations with foreign states or public order,

-Preventing incitement to the commission of an offence.

These are the same restrictions imposed on free speech under Article 19(2) of the Constitution. However, these restrictions can be imposed only when there is a condition precedent - the occurrence of any public emergency, or in the interest of public safety

3. Code of Criminal Procedure (CrPC), 1973:

The CrPC authorizes law enforcement agencies to conduct surveillance in the course of investigating criminal offences. Section 91 of the CrPC allows the police to issue a summons or a search warrant for the production of any document, electronic record or other thing necessary for the purposes of any investigation, inquiry or trial (1) A person may process the personal data of a Data Principal only in accordance with the provisions of this Act and for a lawful purpose,— (a) for which the Data Principal has given her consent; or (b) for certain legitimate uses.

Legal provision(s) relating to Term and Types of term

Type of Digital Surveillance: Private and personal surveillance. State and private surveillance follow two separate logics, even though they intersect at many points

Personal surveillance can be understood with the help of IT act 200 where the digital surveillance by state i.e. the act wont apply to: c) not apply to— (i) personal data processed by an individual for any personal or domestic purpose; and (ii) personal data that is made or caused to be made publicly available by— (A) the Data Principal to whom such personal data relates; or (B) any other person who is under an obligation under any law for the time being in force in India to make such personal data publicly available.

“Digital personal data”: means personal data in digital form

“Personal data” means any data about an individual who is identifiable by or in relation to such data;

For the private sector, surveillance aims to capture people’s personal information for profiling their consumeristic behavior. People’s data becomes a commodity harvested by data mining agencies to be sold to companies for curating their marketing strategies per the users’ preferences. This ever increasing surveillance by the private sector has led to what philosopher Shoshana Zuboff terms as “surveillance capitalism”.

Also it can be deduced that public surveillance can be narrowed down to the specific places and acts as given in section 9 of Indian telegraph act 1885. It also provides the rationale behind providing the provision of digital surveillance.

The state ,proclaims to employ these technologies for reasons of maintaining order in society, ensuring compliance with the law, and better administration and management of the public. However, the unchecked use of surveillance by the state can take much more nefarious forms, being used for controlling any kind of dissent, controlling electoral behavior, constricting people’s freedoms and rights, ensuring conformity to a specific notion of the ideal citizenry, and targeting groups or communities that may be seen as unfit and incongruous.

As defined in Cases

The term digital surveillance is not explicitly defined. However , from some landmark cases the term is understood as,

PUCL vs Union of India:

gave guidelines against illegal and excessive surveillance by the state: said telephone tapping infringed the fundamental right to privacy, and created safeguards against arbitrariness in the exercise of the state's surveillance powers.

Vinit Kumar vs CBI, 2019:

The Bombay High Court ruled that the interception of a businessman’s telephone calls was an infringement of his right to privacy. The Indian Home Ministry had ordered the interception of a businessman’s communications after he was accused of bribing a public servant. The businessman challenged the interception orders, arguing that they were unlawful and infringed his right to privacy. The Court held that there was no lawful justification for intercepting the businessman’s communications, set aside the orders and instructed that all information obtained through the interception be destroyed.

Manohar Lal Sharma v. Union of India: Analyzing the Pegasus Case: Sentinel Reins in the Winged Horse

-         The violation of privacy with regard to arbitrary state action would be subject to the “reasonableness” test under Art. 14.

-         Privacy invasions that implicate Art. 19 freedoms would have to fall under the restrictions of public order, obscenity etc.

-         Intrusion of one’s life and personal liberty under Art. 21 will attract the just, fair and reasonable threshold.

-         Phone tapping not only infringes Art. 21 but also contravenes Art. 19 freedoms. Such a law would have to be justifiable under one of the permissible restrictions in Article 19(2), in addition to being “fair, just and reasonable” as required by Article 21, and as was held in the PUCL Case. It would also need to be subject to a higher threshold of “compelling state interest”.

Right to Privacy: The Puttaswamy Case -   

 In August 2017, a nine judge bench of the Supreme Court in the Puttaswamy Case gave legitimacy to the ‘right to privacy’ under the Constitution of India and overruled the M.P Sharma case and the Kharak Singh case in relation to the guarantee of the right to privacy under the Constitution, and, therefore, made its derogation subject to the highest level of judicial scrutiny.

-         Premised on the principle that “Privacy is the ultimate expression of the sanctity of the individual”, the Supreme Court affirmed the reasoning and judgment given in the PUCL Case and held that: Privacy” is the “condition or state of being free from public attention to intrusion into or interference with one’s acts or decisions”. The right to be in this condition has been described as the “right to be let alone”. What seems to be essential to privacy is the power to seclude oneself and keep others from intruding on it in any way. These intrusions … may take any of several forms, including peeping over one’s shoulder to eavesdropping directly or through instruments, devices, or technological aids.[10]...

-         The ‘proportionality and legitimacy’ test was also established – which is a four-fold test that needs to be fulfilled before state intervention in the right to privacy:

i. The state action must be sanctioned by law.

ii. In a democratic society there must be a legitimate aim for action.

iii. Action must be proportionate to the need for such interference.

iv. And it must be subject to procedural guarantees against abuse of the power to interfere.

International experience

Article 12 of the Universal Declaration of Human Rights states that "Everyone has the right to the protection of the law against arbitrary interference with his privacy, family, home or correspondence." In December 2013, the United Nations adopted a resolution titled "The right to privacy in the digital age," which recognized the potential for surveillance and data collection to infringe on privacy and other human rights. The resolution emphasized the need for national legislation, oversight mechanisms, and transparency to protect privacy both online and offline(report)

National Experience

Currently, legal recourse against illegal surveillance by individuals or private companies exists, including the ability to file an FIR or approach the Magistrate court. However, legal protections against state surveillance are limited, and there is a lack of adequate national legislation and oversight. The UN Office of the High Commissioner has noted that weak procedural safeguards and ineffective oversight contribute to reduced accountability and that mass surveillance by governments is becoming a dangerous habit. The need for national legislation, oversight mechanisms, and transparency to protect privacy both online and offline is crucial in India. There are legal remedies available to victims of illegal surveillance by individuals or private companies.

The Cyber Cells of state police forces can be approached to report such incidents, and victims of cybercrime can file an FIR under Section 154 of the Criminal Procedure Code, 1973. If the police officer or cell refuses to investigate the complaint, a private complaint can be filed under Section 156 (3) read with Section 190 of the Criminal Procedure Code, 1973, seeking a direction to the police station concerned to investigate the matter.

At the micro-level, the state is empowered to perform targeted surveillance in the form of interception. There are various lawful interception systems available in the Indian market which are installed into the networks of telecom services and internet services by the government through the license agreement. Though interception is legal in India under specific legal grounds, hacking is a punishable offence under the Information Technology (Amendment) Act, 2008 (Section 43 and 66).

Database

Data for the world's most surveilled cities shows that India's capital city New Delhi ranks first with 1,826.6 cameras per square mile, while Chennai which has 609.9 cameras per square miles ranks third; London is second (1,138.5 cameras) and Mumbai at 18 (157.4 cameras) ,By Forbes India

Apperance of term in database.

It does not appear at all.

Fear it Causes

research worldwide suggests that the presence of CCTV cameras has little to no impact on crimes , Bhopal police launched a mobile application called ‘Bhopal Eye,’ which allows the police to access live feeds from private users’ CCTV cameras (Chandran, 2023)

Creates panopticon fear that we are being watch ( jeremy bentham’s concept of prison)