India should not delay enacting a Privacy Act #mustshare


It is time the government stopped twiddling its thumbs and took action
Livemint
First Published: Mon, Jun 10 2013.
Illustration: Shyamal Banerjee/Mint<br /><br />
Illustration: Shyamal Banerjee/Mint
By modern standards of civility governments snooping on citizens is considered abhorrent behaviour. The admission by the US government that it has been collecting billions of pieces of information world-wide, especially personal data and emails, has thus been greeted by shock and anger. Indian citizens, too, have been subjected to this sweep, carried out under the Foreign Intelligence Surveillance Act, or Fisa.
It is time the government of India stopped twiddling its thumbs and took strong measures such as enacting a Privacy Act to protect the rights of citizens.
An 8 June report by The Guardian suggests that 6.3 billion reports were collected from India. The investigation followed reports that the US has been monitoring communications between US and foreign nationals over the Internet for years under a project called “prism”. The Guardian said it has acquired classified documents about a data-mining tool called “boundless informant” that was used by the US National Security Agency that details and even maps by country the voluminous amount of information it collects from computer and telephone networks.
Reacting to earlier reports on the same issue, US director of national intelligence, James R. Clapper, issued a media release on 6 June, stating that The Guardian and The Washington Post articles “contain numerous inaccuracies”, but acknowledged that, “section 702 is a provision of Fisa that is designed to facilitate the acquisition of foreign intelligence information concerning non-US persons located outside the US…” The US government simultaneously clarified that the usage of such information or metadata (analytics of the humungous amounts of data intercepted) is used only after a due legal process.
Nevertheless, this assurance provides little comfort given that around 40 countries filter the Internet to varying degrees, including democratic and non-democratic governments. YouTube and Gmail (both from Google), BlackBerry maker Research In Motion Ltd, WikiLeaks, Skype (now a Microsoft product), Twitter and Facebook have all been censored, at different times, in China, Iran, Egypt and even India.
In April, the Union government began rolling out a central monitoring system, or CMS, which will enable it to monitor all phone and Internet communication in the country. Human Rights Watch in a 7 June media release described CMS as “chilling, given its reckless and irresponsible use of the sedition and Internet laws”.
Cybersecurity experts caution that while US and European Union citizens have recourse to law under their own domestic privacy policies, India has no such safeguard. The obvious agency to take a lead in the design, framing and enactment of such a law is, of course, the Union government. But it is hard to expect the government to take any initiative in the matter as—like any government—it would want to have the capabilities to intercept private communication of citizens. On 25 April 2011, the government in a media release admitted that provisions for authorization of interception are contained in section 5(2) of the Indian Telegraph Act, 1885, read with Rule 419 (A) of the Indian Telegraph Rules, 1951, as well as in section 69 of the Information Technology Act, 2000, read with the Information Technology (Directions for Interception or Monitoring or Decryption of Information) Rules, 2009.
The release also pointed out that the Supreme Court, in its order of 18 December 1996, had upheld the constitutional validity of interceptions and monitoring under section 5(2) of the Indian Telegraph Act, but added that telephone tapping would infringe the Right to Life and Right to Freedom of Speech and Expression enshrined in articles 21 and 19(1)(a), respectively, of the Constitution of India, unless permitted under the procedure established by law.
However, these guidelines are implemented more by way of an exception rather than as a rule.
The trouble here is that while the law is clear, it has multiple exceptions built into it that allow the government to do as it pleases. The safeguards thought of by the judiciary are not sufficient to protect the privacy of citizens. It is too much to hope that the government will adhere to privacy norms on its own. Three things need to happen in case India is ever to have a reasonable chance at a decent privacy law. One, citizen awareness and activism have to assume a much higher level than what prevails now. Two, public representatives—legislators, especially in Parliament—have to realize that privacy is a right that is at par with other rights and should not be trampled at will. Finally, at an appropriate juncture, the higher judiciary should take a look at the issue carefully once again. Continuous judicial scrutiny of the government is, for now, the only viable option to check abuses of privacy.
Does India need a privacy law? Tell us at views@livemint.com

On whistleblowers and government threats of investigation


No healthy democracy can endure when the most consequential acts of those in power remain secret and unaccountable

James Clapper, the US director of national intelligence.

James Clapper, the US director of national intelligence, who called the Guardian’s revelations ‘reprehensible’. Photograph: Michael Reynolds/EPA

We followed Wednesday’s story about the NSA‘s bulk telephone record-gathering with one yesterday about the agency’s direct access to the servers of the world’s largest internet companies. I don’t have time at the moment to address all of the fallout because – to borrow someone else’s phrase – I’m Looking Forward to future revelations that are coming (and coming shortly), not Looking Backward to ones that have already come.

But I do want to make two points. One is about whistleblowers, and the other is about threats of investigations emanating from Washington:

1) Ever since the Nixon administration broke into the office of Daniel Ellsberg‘s psychoanalyst’s office, the tactic of the US government has been to attack and demonize whistleblowers as a means of distracting attention from their own exposed wrongdoing and destroying the credibility of the messenger so that everyone tunes out the message. That attempt will undoubtedly be made here.

I’ll say more about all that shortly, but for now: as these whistleblowing acts becoming increasingly demonized (“reprehensible”, declaredDirector of National Intelligence James Clapper yesterday), please just spend a moment considering the options available to someone with access to numerous Top Secret documents.

They could easily enrich themselves by selling those documents for huge sums of money to foreign intelligence services. They could seek to harm the US government by acting at the direction of a foreign adversary and covertly pass those secrets to them. They could gratuitously expose the identity of covert agents.

None of the whistleblowers persecuted by the Obama administration as part of its unprecedented attack on whistleblowers has done any of that: not one of them. Nor have those who are responsible for these current disclosures.

They did not act with any self-interest in mind. The opposite is true: they undertook great personal risk and sacrifice for one overarching reason: to make their fellow citizens aware of what their government is doing in the dark. Their objective is to educate, to democratize, to create accountability for those in power.

The people who do this are heroes. They are the embodiment of heroism. They do it knowing exactly what is likely to be done to them by the planet’s most powerful government, but they do it regardless. They don’t benefit in any way from these acts. I don’t want to over-simplify: human beings are complex, and usually act with multiple, mixed motives. But read this outstanding essay on this week’s disclosures from The Atlantic’s security expert, Bruce Schneier, to understand why these brave acts are so crucial.

Those who step forward to blow these whistles rarely benefit at all. The ones who benefit are you. You discover what you should know but what is hidden from you: namely, the most consequential acts being taken by those with the greatest power, and how those actions are affecting your life, your country and your world.

In 2008, candidate Obama decreed that “often the best source of information about waste, fraud, and abuse in government is an existing government employee committed to public integrity and willing to speak out,” and he hailed whistleblowing as:

“acts of courage and patriotism, which can sometimes save lives and often save taxpayer dollars, should be encouraged rather than stifled as they have been during the Bush administration.”

The current incarnation of Obama prosecutes those same whistlelblowers at double the number of all previous presidents combined, and spent the campaign season boasting about it.

The 2008 version of Obama was right. As the various attacks are inevitably unleashed on the whistleblower(s) here, they deserve the gratitude and – especially – the support of everyone, including media outlets, for the noble acts that they have undertaken for the good of all of us. When it comes to what the Surveillance State is building and doing in the dark, we are much more informed today than we were yesterday, and will be much more informed tomorrow than we are today, thanks to them.

(2) Like puppets reading from a script, various Washington officials almost immediately began spouting all sorts of threats about “investigations” they intend to launch about these disclosures. This has been their playbook for several years now: they want to deter and intimidate anyone and everyone who might shed light on what they’re doing with their abusive, manipulative exploitation of the power of law to punish those who bring about transparency.

That isn’t going to work. It’s beginning completely to backfire on them. It’s precisely because such behavior reveals their true character, their propensity to abuse power, that more and more people are determined to bring about accountability and transparency for what they do.

They can threaten to investigate all they want. But as this week makes clear, and will continue to make clear, the ones who will actually be investigated are them.

The way things are supposed to work is that we’re supposed to know virtually everything about what they do: that’s why they’re called publicservants. They’re supposed to know virtually nothing about what we do: that’s why we’re called private individuals.

This dynamic – the hallmark of a healthy and free society – has been radically reversed. Now, they know everything about what we do, and are constantly building systems to know more. Meanwhile, we know less and less about what they do, as they build walls of secrecy behind which they function. That’s the imbalance that needs to come to an end. No democracy can be healthy and functional if the most consequential acts of those who wield political power are completely unknown to those to whom they are supposed to be accountable.

There seems to be this mentality in Washington that as soon as they stamp TOP SECRET on something they’ve done we’re all supposed to quiver and allow them to do whatever they want without transparency or accountability under its banner. These endless investigations and prosecutions and threats are designed to bolster that fear-driven dynamic. But it isn’t working. It’s doing the opposite.

The times in American history when political power was constrained was when they went too far and the system backlashed and imposed limits. That’s what happened in the mid-1970s when the excesses of J Edgar Hoover and Richard Nixon became so extreme that the legitimacy of the political system depended upon it imposing restraints on itself. And that’s what is happening now as the government continues on its orgies of whistleblower prosecutions, trying to criminalize journalism, and building a massive surveillance apparatus that destroys privacy, all in the dark. The more they overreact to measures of accountability and transparency – the more they so flagrantly abuse their power of secrecy and investigations and prosecutions – the more quickly that backlash will arrive.

I’m going to go ahead and take the Constitution at its word that we’re guaranteed the right of a free press. So, obviously, are other people doing so. And that means that it isn’t the people who are being threatened who deserve and will get the investigations, but those issuing the threats who will get that. That’s why there’s a free press. That’s whatadversarial journalism means.

 

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