Surveillance and Monitoring are not the same

When the honourable Supreme Court considered the issue of Section 66A of ITA 2000/8 and ended up scrapping the section as being violative of the Indian Constitution, we had raised the objection to the decision on the ground that the Supreme Court had failed to distinguish between “Publishing” and “Messaging”.

Section 66A of ITA 2000/8 was all about “Messaging” using “Communication device” and stated that if it is used for certain purposes in a certain manner, it would amount to an offence. At the same time ITA 2000/8 also had section 67/67A/67B which addressed the offence created by “Publishing” and “Transmission” of electronic information.

Under Section 67/67A/67B, publishing and transmission of “Obscene” information was an offence. Other types of publishing were not included in the section. However, since offences regarding publishing in paper form were already covered  under IPC, publishing offences related to electronic publishing could be covered under IPC read with Section 4 of ITA 2000/8.

The problem with “Messaging” was considered different since “messaging” involved a communication from one individual to another and its effect is directly on the recipient individual and could be objected to only by him. If A sends a message to B, C cannot take a view on whether it is harassing or threatening etc unless B is a minor and C is the guardian. It is B and B alone who has to decide whether the message causes him mental disturbance and has to be considered as a “harassment” or “threat” etc. What may be a loving message sent from A to  B may be misconceived by B as a harassment either because a wrong word has been chosen by A or because of any other reason.

Offence under Section 66A was therefore not at all a publishing offence though the police in Palghar and several other places wrongly considered so and filed cases under the section for publishing offences. Several lower courts continued the litigation under the premise that Twitter and Face Book, liking and tweeting or re tweeting are all “Messaging” activities and the matter had reached the Supreme Court for its view.

Not withstanding that the section 66A had been used to harass innocent web users like Aseem Trivedi, the girls of Palghar, the business rival of Karti Chidambaram etc., Supreme Court was obliged to look beyond the politics behind the police action and interpret Section 66A on the basis of law.

Ideally, it should have come to the conclusion that Section 66A is only about sending message from one person to another through a communication device and whether it was causing harassment or threat to the recipient is for the recipient alone to judge and court can intervene if necessary. It should have held that Face Book or Twitter is a “Publishing” activity and the information sent for publishing were technically called “messages” because it was short and went in a burst from the sender to the platform where it was automatically displayed. Otherwise it was actually  content in a web page which was open for view not by the recipient alone but by many and in most cases by the public.

Every web content is a similar “TCP/IP Message which goes from the sender to a server and gets displayed and it should be classified as “Publishing” and not “Messaging”.

The Supreme Court appeared to completely miss this point or did not wish to give a proper interpretation because it was blinded by the mouth watering opportunity to assert its position on upholding “Freedom of Speech” and hence declared that the issue on hand was an issue of “Freedom of Speech” and if Section 66A is allowed to remain in the statute, it would create a “Chilling Effect” etc.

All this is now history and Cyber Jurisprudents can only regret that the then Government advocates did not appraise the Supreme Court properly and remove the widely prevailing ignorance which resulted in Section 66A being ejected from ITA 2000/8  and thereby “harassment by electronic messages and spamming and phishing” went out of the coverage of ITA 2000/8.

Now history seems to be returning to haunt us and the Supreme Court is in the verge of making a mistake similar to what it did in the Shreya Singhal case. This time it is the  case of the Mahua Moitra petition against UIDAI in which instead of the “Freedom of Speech” issue, it is the “Privacy Issue” which is blinding all the people concerned.

Supreme Court has conveniently shifted the responsibility to the Attorney General (AG) and sought his help instead of scratching its own brains and come to a decision. The AG and the Government behind him are wary of the black mail that the media will launch based on false narratives and want to avoid controversies. Just a few weeks back the Government chickened out of the litigation in the objection raised by the same petitioner in respect of an RFP for media monitoring by the I& B Ministry by withdrawing the RFP which was under objection.

It would not be surprising if the Government again adopts the same strategy and forces UIDAI to withdraw the RFP. The “Chilling Effect” created by the Supreme Court through its shrill comments during the preliminary hearings blown up further by the media are too powerful to let the Government stand its legitimate ground rather than chose a tactical withdrawal.

So we can anticipate that Mahua Moitra can claim another victory.  But this will be a victory of the evil forces using black mail technique against the Government and not a victory for justice. It will be a victory of mis-interpretation of the “Privacy” right by mis-interpreting “Media Monitoring” as “Surveillance”. It will be a victory of ignorance of technology platform and failure of the Supreme Court to take the responsibility of interpreting the law.

It will once again show that the Supreme Court instead of collaborating with the Government for the benefit of the Citizens of India will be acting like an adversary asking the Government to interpret the law and then take the high moral ground of saying it is incorrect. Government should avoid this trap and ask the Court itself to interpret the RFP and guide them if it amounts to surveillance.

I wish that the Supreme Court actually uses this opportunity to legally differentiate between “Surveillance” and “Media Monitoring”.

“Media Monitoring” means watching what is published in different media vehicles about a company, about a product, about an issue, about UIDAI, about Government etc. This requires scanning of all media vehicles and if the media vehicles are online, it requires software for the purpose. It is actually the duty of every company to know what others are talking about itself and react it in a positive manner. This is “Due Diligence” under Section 79 of ITA 2000/8. It is “Prudence” in Governance.

What the petitioner is asking the Supreme Court to do is to order the Government to close its eyes to media reports and let opposition continue its fake news campaign and dis-information campaign and donot react to them.

The Judiciary is expected to be blind to public comments about itself and not get influenced. But the Government is expected to be alert to such public opinion and take corrective steps. In the past we are aware that Kings used to travel their kingdom in disguise to know what the citizens think about the King. They also used messengers to report to them about the public opinion. This was prevalent even the days of Lord Rama and during Rama Rajya.

What we are seeing here is “Aadhaar bashing” by political opponents who donot want Aadhaar to be an instrument that prevents them to hold black money and benami properties. Mr Modi is seen as the brain behind this use of Aadhaar to root out black money and hence TMC MLA who is the petitioner and the Congress worker who is the advocate are trying to beat Aadhaar with the hope that it will hurt Modi in the background. These politically motivated advocates are using all their legal intelligence in trying to convince the Supreme Court that “Surveillance” and “Media Monitoring” are synonymous.

If the Supreme Court goes by its earlier record on Section 66A, it may come out with a slamming judgement saying that the Government is causing a “Chilling Effect” through surveillance and gain some brownie points.

But I hope against hope that this will not happen and the Supreme Court shows true character, sees through the opposition game and try to treat the petition only on legal merits and not on speculation.

Surveillance is a term when  an honest citizen without any past adverse history of criminal records is being tracked and using the tracked data to harass him. Unless the tracked data is used against the person, no offence is made out and it will remain an intelligence activity in the interest of security of the state.  Section 69/69A/69B and 70B of ITA 2000/8 has necessary legal controls for such an exercise. The new Privacy law can certainly address this.

But every action of the Government cannot be called “Surveillance” and the Supreme Court cannot be expected to have a daily hearing of the petitions raised by dubious political persons and interfere with the daily functions of the Government.

There is no doubt that journalists and opposition parties can indulge in speculation  that what starts as “Media Monitoring” can become “Surveillance”. But this is speculation that cannot  be indulged in by the Supreme Court.

The Court has to wait until it sees the evidence that the Government misuses “Media Monitoring” and intrudes into the private life of citizens.  It needs hard evidence before intruding into the day to day management of UIDAI and its corporate activities.

The RFP may not be critical to the functioning of UIDAI and the Government may not lose much by withdrawing the RFP. But if this litigation takes that route, then the Government of Mr Modi will show that it is buckling under the pressure of the unfair opposition campaign. It will allow the political opponents to flood the Supreme Court with more litigation leading to the election and make Supreme Court  dysfunctional along with the Government.

If the Supreme Court pushes the Government to such a decision, it would be a tragedy.  Then the differences between the Supreme Court and the Government will no longer be speculative and will become the debate among the citizens.  This should be avoided at all costs and even the Supreme Court has a responsibility in ensuring that it does not come out as a constant threat to the Government causing a “Policy Paralysis”.

On the other hand here is an opportunity for the Supreme Court to clear the air once for all on the difference between “Surveillance” and “Watching the Citizen’s reactions to Government activity as reflected in the media”.

The way Supreme Court responds to the situation will also determine and establish that the supreme Court  is not a servant of the opposition to beat the Government at every turn creating hurdles in the operation of the Government and its agencies.

If the Supreme Court quashes the RFP, the traditional media lead by senior journalists like Shekhar Guta and Sagarika Ghosh may hail it as a ” Victory to Privacy”. The Supreme court and the judges of the bench may also  be hailed as saviours of democracy. But history will judge the judges perhaps differently.

Does the bench have the character to stand up on the side of the justice and fairplay without being bothered by the Media and political opposition which has a threat of impeachment held against the judges? or will it bat for TRP? is what is bothering conscientious citizens like me.

Let us watch the day as the drama at the Supreme Court unfolds.

If the Supreme Court agrees with the arguments of Mr Abhishek Manu Singhvi and quashes the proposed RFP of UIDAI, I will be the first person to congratulate Rahul Gandhi and his advisors that his tactics of Modi Bashing through Aadhar bashing and arm twisting of Supreme Court through the impeachment threat is working well and he may continue the same as his election strategy.

Naavi

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About Vijayashankar Na

Naavi is a veteran Cyber Law specialist in India and is presently working from Bangalore as an Information Assurance Consultant. Pioneered concepts such as ITA 2008 compliance, Naavi is also the founder of Cyber Law College, a virtual Cyber Law Education institution. He now has been focusing on the projects such as Secure Digital India and Cyber Insurance
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