While many know Jeremy Bentham as the utilitarian philosopher behind the often-debated maxim of political science, “the greatest happiness of the greatest number”, there are portions of his thought that have left a number of individuals very unhappy. One of the practical demonstrations of his thought was his two-decades-long advocacy of the architecture of a panopticon. This panopticon would serve as a prison in which a central guard tower in the centre would at all times be able to view all the prisoners. At the same time, the central tower housing the guards was purposefully opaque, thereby preventing prisoners from ever knowing who was under watch. This created a system of total and perpetual surveillance. The Ministry of Information & Broadcasting recently released a tender for a ‘Social Media Communication Hub’ (SMCH), with its tentacles spread throughout the country’s 716 districts, that aims to centrally monitor all of our activities on social media, watching it day and night. Welcome to the government’s digital panopticon. We, the people of India, are to be constantly watched!
The SMCH has two primary functions. The first is to conduct surveillance on people and the second is to tailor specific content for broadcast to influence them. The ‘Scope of Work’ in the tender clearly states in its very first sentence that the government requires, “a technology platform to collect Digital Chatter from all core Social Media Platforms as well as digital platforms”. Such mass collection of data is available to a granular, individual level as it further states in the second para that, “should also support easy management of conversational logs with each individual with capabilities to merge it across channels to help facilitate creating a 360-degree view of the people who are creating buzz across various topics”. Specific capabilities include live search, monitoring, collecting, indexing and storage of personal data from all social media platforms which are specifically mentioned, but also email, “maximum meta-data”, and as separately mentioned, even location-based data.
The second functionality indicates a worrying tendency towards disinformation as there exists an unguided, even dangerous, ability to post and publish content on the basis of surveillance. The tender mentions that the “platform may be used to disseminate content and hence should support publishing features”. This is further substantiated in the section on “Pre and Post establishment support”, which states that the team of ‘social media executives’ are expected to, “create and publish content on various social media platforms of Ministry of I&B”. Appendix 4 expands on their roles and responsibilities -- “publishing content as assessed [by the] Ministry of Information and Broadcasting”. In addition to this, 716 district-wise social media executives are expected to conduct, “social media publicity”.
These functionalities are sought to be built in the absence of any underlying parliamentary legislation that would have been put to debate and public scrutiny. Rather curiously, the ministry, through Broadcast Engineering Consultants India Limited, floated a tender rather than seeking a clear legal sanction. On the very face of it and by express statements in the request for proposal (RFP), the SMCH will conduct mass surveillance of users of social media and email. This is against any legitimate State goal and violates the principles of proportionality and necessity as articulated in the unanimous nine-judge verdict of the Supreme Court restating the fundamental right to privacy. Even posts on social media platforms or blogs cannot be generally gathered and catalogued by the State, as noted specifically by Justice Kaul in the judgement, “Thus, for e.g. , if the posting on social media websites is meant only for a certain audience, which is possible as per tools available, then it cannot be said that all and sundry in public have a right to somehow access that information and make use of it.”
More worryingly, there are no limitations or protections for individuals under the RFP. This will violate multiple facets of the right to privacy, including informational determination, consent, purpose limitation and collection limitation. As stated in the RFP repeatedly, the collection is agnostic to purpose and only general guidelines are provided, such as to “instil nationalistic feelings”, which are all to be determined on the “directions of the Ministry of Information and Broadcasting”.
The SMCH is symptomatic of the government's desire to exercise power over individuals. Given that personal data can be used in a digital environment to determine allowances, entitlements and functionality, people need to be put back in control through a user rights-focused data protection law. One attempt to articulate this in the form of a civil society model draft is the Indian Privacy Code, 2018, under the SaveOurPrivacy campaign, which is being supported by the Internet Freedom Foundation. This draft expressly states that it will apply equally to government and private companies. A core feature of this draft is that it articulates seven core principles that put individuals at the centre of a data protection law. This is then articulated and applied through doctrines such as purpose limitation, necessity and proportionality in data collection by any agency. These doctrines of data protection would be applied by a regulatory body such as a Privacy Commission which would be empowered to pass orders and restrain misconceived programmes such as the SMCH.
Many government programmes are made with the best intentions for greater social order but, in effect, they undermine individual rights, the bedrock of our Constitution. It is plain that the proposed SMCH will be nothing more than an instrument to police and influence our minds. George Orwell’s ‘1984’ nightmare did not happen in 1984, but it may well happen in 2019, in India. Are you ready for mind control?
(The writer is an advocate and volunteer trustee, Internet Freedom Foundation)
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