By Anja Kovacs

With the PRISM scandal breaking in the US, India’s own large-scale planned surveillance apparatus, the Central Monitoring System (CMS), is starting to receive the public scrutiny that it deserves.

The CMS will make it possible for nine government agencies to monitor communications, gather communications meta-data and access the content of communication without needing to depend on the help of the telecommunication companies.

This news has caused concern because three aspects of the surveillance régime in India risk undermining the people’s rights in the digital age.

First, in a democracy, it is crucial that surveillance is targeted as narrowly as possible and only carried out if it is both necessary and proportionate to the crime under investigation.

As targets for communications surveillance under the CMS will need to be specified in orders issued under the relevant provisions of the Indian Telegraph Act or the Information Technology Act and their related rules, it is perhaps a step too far to claim, as some reports have done, that the CMS will allow for blanket surveillance.

Yet, it is true that the rules on collecting traffic data, or meta-data, under Section 69B of the Information Technology Act in particular do leave open the option of broad-sweep surveillance, as long as this is deemed necessary ​“to enhance cyber security” by the secretary of the department of information technology.

This is troubling as, unlike in the telephone era, meta-data in the Internet age makes it possible to construct a detailed profile of a person, including not only information on their network of contacts and details on the length of their conversations or their locations during those conversations, but also, for example, their sexual orientation, medical history or information that might be relevant to insurance claims.

Moreover, unlike in the pre-Internet age, this information can become accessible to government agencies even without the person to which this information pertains being suspected of a crime. In that sense, everybody can now potentially be treated as a criminal, whether or not there is cause to do so.

A second requirement for a surveillance system worthy of a democracy is, therefore, that an appropriate system of checks and balances is in place to avoid misuse of surveillance powers. The right to privacy is not explicitly recognised in the Constitution but read into the right to life, meaning that it is always at risk of being considered only as secondary.

Unfortunately, a strong privacy Bill, which could go a long way in further shoring up the protection of the right to privacy, remains pending. In addition, intelligence agencies in India are not under parliamentary oversight.

Whatever review mechanisms have been built into the rules related to communications surveillance, too, are internal to the government: there is no independent oversight, be it from the courts or otherwise. Existing checks and balances are, therefore, insufficient.

Finally, in a democratic country, it is also essential that a surveillance régime, contradictory as that may seem, is marked by transparency. This does not mean that every order should be made public the moment it is issued.

However, it does mean that there should be basic clarity with regards to the technical capabilities and actual use of a surveillance system, so that citizens know what type and level of surveillance they may be exposed to and by who, and that decisions are made public as soon as circumstances allow, so that they can be subject to public scrutiny and contribute to an informed public debate. At present, neither is the case in India.

In current circumstances, the CMS, therefore, exemplifies a fundamental shift in power in favour of the State that is unbecoming of a democracy.

In a democracy, the State’s power is always offset by strong protections of citizens’ rights; yet, at present, the CMS threatens to undermine Indians’ right to privacy and to freedom of expression while providing them with insufficient avenues for recourse in case of abuse.

Although new technologies might indeed have made it essential for the government to gain access to new forms of surveillance so as to effectively discharge its duty of protecting its people, greater safeguards to ensure that the people’s rights continue to be protected and promoted in this new era urgently need to be put in place.