Establishing a Digital Surveillance and Censorship Regime
Bappa Sinha
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MODI government is systematically working to set up a surveillance and censorship framework for the digital domain, which seeks to undermine our fundamental rights of free speech and privacy. The genesis of many of these initiatives predated the Modi government. However, as with many other examples of policy continuity, the Modi government has put these efforts on steroids and taken them to such extremes that they are now at odds with basic constitutional values and what could reasonably be called liberal democratic principles.
Some of these efforts started in Modi’s first term, notably the push to make AADHAAR mandatory. While AADHAAR was introduced and rolled out under the previous Congress government through a gazette notification, it was only in 2016 that the legal sanction was provided through the AADHAAR Act, passed as a money bill. It legalised widespread private sector use, exclusion of services and benefits, and State surveillance. The government made AADHAAR mandatory for accessing various welfare schemes such as PDS, MNREGA, old age pensions and also private services such as opening bank accounts and getting SIM cards. A surveillance model had been set up with the dual purpose of government surveillance and handing over our data for corporations to profit from. The same template would be repeated even without any legal backing while automatically assigning Unique Health IDs (UIH) to people when they got their COVID vaccinations, and again, we see this now with the insistence in airports to get passengers on the DigiYatra App.
In Modi’s first term, the Supreme Court passed two landmark progressive judgements, scraping section 66A of the IT Act in 2015 by observing that it violated the right of free speech, having led to arrests for online “objectionable content” and the Puttuswamy judgement deeming privacy as a fundamental right in 2017. These judgements upheld the fundamental rights of free speech and privacy. However, since then, the government has gone about undermining these judgments through its actions and legislation. Prosecutions continued under Section 66A, prompting the Supreme Court to twice reiterate in 2019 and 2022 that the act had been scrapped. The Supreme Court itself ruled in 2018 that AADHAAR didn't violate its own judgment on the right to privacy, citing the benefits of AADHAAR in “welfare delivery”.
In February 2021, the government notified the IT Rules 2021 to regulate online media, including intermediaries like Facebook, Google and Twitter, OTT services like Netflix and Amazon Prime, messaging apps such as WhatsApp and news and current affairs websites. These rules called for a three-tier monitoring and complaint redressal mechanism, allowing the government to censor and restrict free speech in the guise of curbing “objectionable content”. These rules have been stayed by the Bombay, Madras and Kerala High Courts on grounds of violating “constitutional ethos and principles”. However, we see similar provisions introduced in legislation down the line.
In July 2021, 17 newspapers worldwide broke a major story about 100+ journalists, activists, students and politicians targeted for surveillance and hacking using Pegasus, a military-grade spyware. Pegasus is sold by Israel’s NSO group only to “vetted governments”. The government refused to cooperate with the Supreme Court appointed committee, set up to investigate the matter.
In April 2023, the government notified the IT Amendment Rules, 2023, to regulate online gaming and misinformation. This was yet another blatant attempt at restricting free speech as the rules provide for the establishment of a fact check unit (“FCU”), established at the sole discretion of the union government, aimed at “fact-checking” online information related to the union government. The Supreme Court has stayed the government’s notification, observing that the rules raised a “serious constitutional question” due to its possible “impact on the freedom of speech and expression.”
Digital Personal Data Protection Bill 2023 was introduced in the Lok Sabha on August 3, 2023 and made into law on August 11, 2023. The misleadingly named Act completely ignores the Puttuswamy judgment on the fundamental right to privacy. This Act is meant to cement digital authoritarianism by giving State agencies unfettered surveillance powers over citizens and allowing big corporations and digital monopolies a free hand to use citizen's data for their profit. The Act further prescribes duties for citizens, stating that they are legally obligated to provide the correct data, thereby precluding using pseudonyms while accessing data services.
The Telecommunications Bill, 2023, was introduced in the Lok Sabha on December 18, 2023 and made into law a mere six days later on December 24, 2023. The intent of the Act is to expand the government’s policing powers and create a surveillance structure. The draconian provisions of the Act relate to extending powers of mass surveillance and interception, internet shutdowns, weakening of encrypted services, and even KYC requirements of social media users. The Act designates all data services such as WhatsApp, Signal, Gmail, and even delivery apps as OTT services that require government licenses. It would allow the government to frame rules to break the security and confidentiality people enjoy through encryption for surveillance purposes. It also requires users to be identifiable through a biometric-based KYC process.
The Broadcast Services Bill, 2023, was released for public comments on November 10, 2023. The public consultation ended on January 15, 2024 (the deadline was initially December 8 and was later extended). This bill is yet another step by the Modi government to censor, restrict and stifle freedom of expression and bring back provisions similar to the ones in the IT Rules of 2021, which multiple high courts have stayed. The bill seeks to expand government control over all types of media, from TV channels and films to OTT platforms, independent YouTube channels and social media platforms such as Instagram, WhatsApp and Telegram, as well as news websites and journalists’ social media accounts. It seeks to blur the distinction between journalism and content creation, such as OTT content, shows, serials, documentaries, and other features traditionally subject to a certification norm. The bill also proposes a three-tier grievance redressal mechanism similar to that specified in the IT Rules, 2021. The bill further gives power to “authorised officers” not just to prohibit transmission of any programme but also to seize electronic devices, including studio equipment.
The government’s actions and the legal framework it is trying to set up for the digital domain mirror its actions in the physical world, where mass media outlets in print and TV have been largely made subservient through narrow corporate ownership, restricting funding through advertisement to pliable outlets and applying draconian laws such as PLMA and UAPA which have been used indiscriminately to incarcerate and silence journalists, activists and political opponents. Understanding the increasing importance of digital space in public dialogue and communications, in shaping public opinion and as a last refuge for divergent views, the government is setting up the machinery to monitor, control and censor this sphere as well. At the same time, the government seeks to strip citizens of their right to privacy by not just allowing big businesses unfettered use of their data but using government mandates to actually collect the data from citizens and then handing it over to these corporations. These actions portend an ominous future for our democracy and require sustained education campaigns to make people aware of the dangers they pose and to wage united resistance of all sections of people to fight and overturn these measures.
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