Public health surveillance in India: concerns of an individual’s liberty and privacy amid a pandemic

(This article extensively borrows from another article that authors wrote for and first published on the Leaflet)

The world is grappling with the kind of situation that it has never seen before. The rapid pace of COVID-19 spread made it necessary for the governments around the world to use extreme means and measures that would otherwise be considered Orwellian. These emergency measures by the governments are attempts to effectively enforce a lockdown and strictly prohibit movement of the citizens in a bid to break the chain of infection.

As Governments are attempting to contain the contagious virus, the use of technology for monitoring people undergoing quarantine has doubled in order to combat the spread of the virus. Ordinarily, under such developing Orwellian state of affairs, civil liberty activists and privacy advocates stir commotion; considering the scale of the crisis, they seem to tacitly embrace these measures. It is obvious that this pandemic is reshaping our relationship with surveillance technology, albeit to the fear of some the surveillance that could become a norm.

World under surveillance

Across the globe, countries are expansively deploying tech-enabled surveillance infrastructure of Face Recognition Technology (FRT) based CCTVs, drones and cell phone tracking devices for contact tracing and enforcing quarantine. Growing number of countries such as Israel and South Korea are ‘contact tracing’ using mobile applications or cell phone records. It is a process of mapping travel history of an infected person by analyzing location records of the cell phones. It is followed by pinpointing the other contacts for quarantine that might have come in contact with such a person. Meanwhile, Taiwan has gone a step further in quarantining the traced contacts by deploying an ‘electronic-fence’. If a mobile user’s SIM card is tracked beyond the reach of a network station or found to be switched off, law enforcement authorities quickly approach the suspect.

In India, law enforcement authorities across the nation are increasingly using technology to monitor and restrict the spread of the virus. In several states such as Rajasthan, Punjab and Delhi, local authorities have published a list of personal details, in online media and newspaper, of those suspected or infected of COVID-19. The Karnataka government has taken this to an inordinate level by mandating all quarantined persons to send a selfie with geo-tags through an official app named ‘CoronaWatch’ every hour, except between sleeping time 10 PM to 7 AM. Now, the Ministry of Electronics and Information Technology (MeitY) has also launched an app- ‘Aarogya Setu’, which uses Bluetooth and GPS to alert an individual if they come within six feet of a Covid-19 infected person.

The case of “Public Health Surveillance”

Law enforcement agencies of different countries are carrying out tech-enabled surveillance on their citizens to ensure compliance with the rules of social distancing and lockdown. In normal times, such measures are targeted against terrorists or criminals; while also scrutinized vide privacy and civil liberty concerns.

However, even the World Health Organisation (WHO) has sought to play down privacy concerns in these unprecedented times, by terming the measure as “public health surveillance”. The WHO has simply legitimized the governments’ argument that the extraordinary situation of COVID-19 pandemic necessitates the use of an extraordinary measure of mass surveillance. The public health emergency of such magnitude is being touted as a valid justification for deploying tech-enabled mass surveillance and subversion of individual rights.

Is surveillance a matter of concern for India?

There are certain unique reasons due to which implementation of these emergency measures, in India, are worrisome.

No clarity on the legal basis for surveillance measures

Firstly, in India, neither the central government nor the state governments have provided any legal basis for directing such tech-enabled surveillance measures. For instance, neither of the official press release of the Aarogya Setu app and Karnataka’s ‘mandatory selfie direction mention any legal grounds for such directions nor have they provided any privacy policy with it. The absolute abandonment of civil liberties and privacy in the interest of public health, without the bare minimum legal foundation, portends negative consequences

The government has invoked the Epidemics Diseases Act, 1897 and Disaster Management Act (DMA), 2005 to deal with the COVID-19 outbreak. Both, the colonial era Epidemics Diseases Act and NDMA, do not cover surveillance in their scope. Although, there is an argument that basic residuary power to take ‘necessary’ steps to curb the spread of virus, under the mentioned laws accord a legitimate authority to government for surveillance.

It is unclear why the government has not availed these very basic residuary powers to also notify the standing rules on privacy or lawful manner of deployment of tech-enabled surveillance measures. As a natural consequence, government directives infringing an individual’s right to privacy cannot be tested for their legality without any standing rules for arbitrariness and lack of accountability. This is particularly dangerous in a country like India where a data protection statute does not exist.

The use of unregulated novel technologies for surveillance provides no legal checks and oversight

Secondly, the details regarding the technological capabilities of the government for surveillance are largely a secret. It is the sudden outbreak of pandemic that has forced the government to openly introduce a deluge of unregulated, contemporary and emerging technologies for mass surveillance. There is a growing concern among certain privacy advocates that the tech-enabled surveillance could persist beyond the pandemic once it gets accepted and normalized in the present emergency times. History is witness that world’s most dictatorships and authoritarian regimes emerge amid the crises.

There is no information available about the extent and scope of the government’s capability and techniques. The secrecy about the techniques of surveillance impedes the legislative checks or institutional audits. If the public is unaware of how a technology works (due to non-disclosure by the Executive), the said manner of surveillance then cannot be even challenged in a court of law. Therefore, such secrecy is nullifying the system of checks and balances in favor of the ever-augmenting executive power.

Several surveillance techniques are disproportionate and unnecessary

Thirdly, due to the use of technologies of varying level of invasiveness, there are doubts regarding the necessity and proportionality of such measures in relation to the right to privacy and individual liberty.

The Puttaswamy (I) judgment upheld, explicitly recognized in reference to public health, that to legitimately restrict fundamental rights such as privacy and liberty for implementing a measure, such measure should be proportionate in nature. In the case, the SC held that a government measure is proportionate if it satisfies following four criteria: 1) that the measure should pursue legitimate purpose; 2) that the measure should be rationally connected to the purpose; 3) that there should no less intrusive alternative measure available; 4) that the measure should accrue public benefit greater than the extent of infringement of a constitutional right.

More than half of the population of the country doesn’t have access to the internet services. In the context of such a scenario, how is surveillance through mobile application is a necessary measure? Further, several state governments are taking extreme measures of disclosing the home addresses and other personal details of infected and suspected persons, which grossly fall afoul of three prongs of the constitutional test upheld in the Puttaswamy I judgment. An obviously lesser intrusive measure such as informing at a locality level about the presence of infected cases in areas could have sufficed. Allahabad HC also held such practices, publishing personal details of anti-CAA protestors in public, of the UP government as “arbitrary invasion of privacy”.

Karnataka has rolled out a mobile application which comprehensively discloses the location history and home addresses of persons infected and quarantined. Also, some of the states are publicly listing such details wide in social media channels. Such invariable disclosure of private information of infected and suspected persons has prompted concerns and possibilities of social intimidation.

There have already been reports from across the nation of infected and suspected patients facing the stigmatisation, and various forms of discrimination which are further resulting in a negative social impact. For instance, in Maharashtra, public listing of coronavirus suspects on social media led to several cases of forceful eviction of quarantined people by their landlords.

Such events question the proportionality and necessity of the measure as it would have been a satisfactory measure if the government has alternatively chosen a lesser intrusive measure.

Ways to resolve the concerns

There is no denying that certain limitations can be imposed on civil liberties given the urgency of the COVID-19 crisis. However, in a democratic set up like India it is expected from the government that its actions should be transparent and provide a window to the public to assess the government’s accountability. All the worrisome aspects related to public health surveillance measures can be subdued by making concerted efforts to introduce legal backing for its actions, to establish institutional oversight and to use the least intrusive means.

For providing the legal basis, the government can issue the standing rules that would lay down the legal and accountability measures for the responsible local authorities undertaking public health surveillance. The governments should avail the residual powers under the NDMA and the Epidemic Diseases Act to also issue the ad-hoc rules and guidelines in addition to the emergency surveillance measures. These rules and guidelines will provide the mechanism under which surveillance can be carried out without causing deterrence to an individual’s privacy and liberty.

The government can presently provide such ad-hoc rules for privacy protection based on similar principles as delineated in the Personal Data Protection Bill 2019 (“PDPB 2019”) for the data collection during health emergencies. Clause 12 of the PDPB 2019 exempts the data fiduciaries from taking consent under urgencies like pandemic, but strictly imposes requirements of data minimization or purposes limitation, lawful processing, transparency and accountability. Introduction of such principles will ensure that the information collected surveillance is being handled under the constitutional checks to maintain privacy as much as possible

Such ad-hoc rules will obligate the government as a data fiduciary to follow principle of purpose limitation such that the authorities should only collect the minimum possible data which is sufficient for tracing contact, enforcing quarantine and any other lawful and specific purpose. The government shall use the anonymised data only and adopt all security measures to prevent leaks and maintain confidentiality of personal data of data subject. The rules will also mandate the government to delete the collected data at the earliest after it has been used for the specified purpose. This will automatically shun away the emerging concern that the surveillance’s effect could persist beyond pandemic. Further, it will inhibit the misuse of personal data and abuse of surveillance measures.

The surveillance measures aim to keep people in quarantine and check the spread of infection for their benefit, therefore it is suggested that the government should hold no secrets about its surveillance techniques and manners. It should adopt a method of “Public Notice” system such that the local district administration has to notify the model of surveillance to the public before conducting surveillance.

At the very least, this notice should disclose the legal rules governing the tech-enabled surveillance measure, and its purpose. It should be clear on the authorization required for the retention, access, and use of information collected through the use of such novel technology. Such a notice would provide the transparency in the process of imposition of surveillance and allow the legislature and public to exercise meaningful control and oversight over the manner of deployment of unregulated technologies for surveillance.

Parting note

Unarguably, the present situation calls for the governments to take substantial measures to protect the lives and health of public at large, but this should not happen in the utter disregard of constitutionally recognized rights to privacy and individual liberty. The policies and techniques of government should be legitimate and proportionate in order to maintain the democratic principles of public trust and transparency. There is no hard choice between public health and individual’ right to privacy and liberty. Both can mutually co-exist under the legal framework that guarantees the challenge to unnecessary expansion of the surveillance regime.

As pointed out by Deborah Brown, senior digital-rights researcher at Human Rights Watch, “surveillance measures should come with a legal basis, be narrowly tailored to meet a legitimate public health goal, and contain safeguards against abuse”.

Therefore, the government should definitely focus on the situation of urgency for many, instead of investing focused efforts in ensuring rights for few but should not absolutely ignore its accountability towards any section of the community. These fundamental rights are lung to the edifice of our entire constitutional system. The government should make efforts to prevent any injuries to it as much as possible.

COVID-19 crisis is changing Tech related Law and Policy: Surveillance, Fake news, Telemedicine, and Internet

As I view things and events around the world from the comfort of my home, this blog is my take on how regulations related to technology will get impacted due to the COVID-19 pandemic. As they say, sudden and unexpected events often lead to systematic and permanent changes.  Work from home is a mandate now, as the fear of personal contact and surface contact is prevalent, everyone has uncertainty about the impact of infection. There are even doubts on the globalization given the infection is spreading from one corner of the world to another.

Given the fact that COVID-19 is a pandemic, the authorities have commanded us to practice ‘social distancing’ (trending buzz word on social media) under the twenty-one days lockdown. Hence, there is an unwillingness to engage socially among masses now. As there are shifts in perceiving the world now, there is a shift in the understanding of technology as well. Governments around the world are now valuing its role more than ever and understanding the need for the well-drafted technology policy, as they rush to contain the spread of COVID-19.

Following are the potential changes that we can see in the technology policy of India during and after the COVID-19 crisis.

Increase in the adoption of internet services

With the reach of the internet increasing up to 500 million users and over 660 million broadband subscriptions, internet penetration in India is much evident. However, the present situation is proof that it has been a boon for us that Jio entered the market and made the internet more accessible than ever. The internet is an essential service and something that has kept the masses engaged and sane in their homes during the nationwide lockdown. India has the cheapest internet access in the world, but still, as the crisis gets over, the government will definitely consider more options of making internet services more accessible to the poor of the country which is largely suffering in this crisis. In the present lockdown state, it is important to mention the situation that exists in Kashmir where just the 2G internet is available with the speed which is good for nothing.

India has the cheapest mobile data in the world with 1GB costing just Rs 18.5 (USD 0.26) as compared to the global average of about Rs 600, research by price comparison site Cable.co.uk showed. Average Wireless Data Usage per wireless data subscriber per month is 10.37 GB.

Work from Home

Zoom, a video-meeting app, has seen a significant rise in its download over the last week. With employees are unable to attend offices, video conferencing services that work over the internet has become significant. Again, such applications make access to internet an essential service for operating the business online (a fundamental right). As the employment laws are being discussed these days to understand the place of Work from Home in the law, post the crisis policymakers will definitely deliberate on this and provide a permanent solution for it.

Certain important points for reference of readers from the advisory issued by the government in relation employment laws:

The Ministry of Labour & Employment, Government of India advised on March 20, 2020, that all public and private organizations are to refrain from terminating the services of their employees or reducing their wages.

The Ministry of Labour & Employment has extended the deadline for filing the Unified Annual Return for 2019 under eight laws that were filed on the Shram Suvidha Portal to April 30, 2020 (the previous deadline was February 1, 2020). The notification further states that authorities are not to take action against any entity that did not meet the earlier deadline.

The Employees’ State Insurance Corporation (ESIC), through its communication dated March 16, 2020, has extended the dates for filing of ESI contribution and payment. Accordingly, all contributions for the months of February 2020 and March 2020 can be filed and paid up to April 15, 2020 and May 15, 2020, instead of March 15, 2020 and April 15, 2020, respectively.

The Government of India will contribute the employer contribution (on behalf of companies) and employee contribution (on behalf of employees of those companies) towards the Employee Provident Fund Organization (EPFO) for the next three months for establishments with up to 100 employees meeting certain base salary thresholds.

All EPFO members (employees) will now be able to withdraw up to 75 percent of their total EPFO fund or an amount equivalent to three months of their salary, whichever is lower. The amount withdrawn from EPFO shall be non-refundable, and the employees do not need to return the same to their EPFO account.

Streaming services and regulations

In the process of home quarantine, the dependence on the streaming services is so much that the internet service providers have asked streaming platforms like Netflix and Amazon Prime to reduce the bits rate, in order to lower the stress on networks. The streaming platforms have duly conceded to this demand considering the continuous requirement of providing services to consumers. Consumers are realizing the benefits of streaming platforms and hence there is going to be a potential increase in subscriptions going forward, converting to paying users. In terms of policy-making, if streaming services have the potential to displace traditional entertainment services, the Indian government will look for regulating the content more than ever. Government is already in consultation with the stakeholders regarding options of self-regulation or government regulation.

Increase in demand for spectrum to meet the consumer demand

The percentage of connections that are based on a wireless medium is a staggering 96% approx. Therefore, in the light of increased adoption of the internet for continuous entertainment and work at home has led to increased stress on telecom operators. Therefore, with the 20% sudden increase in demand, telecom operators have sought more spectrum allotment from the government.

A new perspective for e-commerce

The government has rightly considered E-commerce as the provider of essential services during the present situation. Their adequate performance under the lockdown can provide them with a deep sigh of relief, as for the past few months, their food and grocery delivery services have been under the strict supervision of the government. There are several lobbies representing the brick and mortar retailers of groceries and food that have targeted e-commerce market and posed it as a threat to the business of offline retailers across the country. The opportunity for them to legitimize the need for online service during the lockdown has done what demonetisation did for digital payments.

Offline print becomes the victim

Online media channels are also opportunists that are gaining certain traction in terms of consumers. The newspaper industry seems to have been hurt by contact to contact the spreading nature of the COVID-19. Various online posts and WhatsApp threads are flowing in the online media that newspapers are potential vectors of COVID-19. In one of the cases, the Times Group has sent a legal notice to The Print for an article which suggested that COVID-19 can potentially spread through newspapers as well. Therefore, there could be a rise in online media usage and could lead to a rift between offline and online media.

A struggle to contain fake news or misinformation

The sensational way in which COVID-19 crisis has led to the nationwide lockdown is much due to the sensationalized content related to COVID-19 which is spreading through the social media across the country faster than the virus itself. The amount of misinformation spreading about COVID-19 is at large scale, and platforms are struggling to deal with it, especially given the lack of continuous moderation by social media platforms which are not warranted legally. This has given several blows to the effectiveness of lockdown given the people believed on certain misinformation such as cow urine is the cure of COVID-19, the religious congregation will protect from the disease etc, which led to people not take lockdown seriously. Understanding the struggles with automatic moderation of the content on the internet, the government can sooner than before enforcing its strict moderation policy which undermines the right to free speech.

The twenty-one days lockdown recently faltered when an exodus of the large number of migrant workers from urban cities like Delhi and Jaipur came in light. The Supreme Court’s division bench in a hearing on Tuesday, while reviewing the steps that the central government has taken to provide relief to the poor migrant workers during the lockdown, expressed serious concern over spread of fake news or misinformation regarding lockdown’s duration on social, electronic and print media causing the mass exodus of migrant worker from cities to their homes in villages. Read the SC’s order here. Centre in this light has sought direction from SC that no media stakeholders should publish COVID-19 news without ascertaining facts with government. Although, The constant and close monitoring has been held as not warranted by law as per various precedents of Indian courts.

Privacy, necessity and proportionality

While the right to free speech could be threatened in the future due to the present crisis, the right to privacy has already dealt with several blows. Considering the situation of emergency and lack of any comprehensive law protecting the privacy, the privacy of a number of citizens have been compromised. The health status of quarantined/ or infected is open to all as their homes are being marked and personal details are being made public on social media. Governments are openly surveilling quarantined people for ensuring the enforcement of quarantine and inviting bids from technology companies to procure technology that can make continuous surveillance more effective. In India, several governments are already tracking citizens by keeping a tab on their phones or utilizing geofencing. The crisis has legitimized much longing plans of the government to create an infrastructure which can assist in surveilling its citizens whenever the need arises. Given the opportunity, the Department of Science and Technology has invited proposals and has set up a task force for building surveillance, AI and IoT tools.

As several privacy activists have opinions against the government’s plan to keep track of infected persons. If litigation arises, the question is whether the present circumstances will meet the necessity and proportionality test in order to justify the violations of privacy?

Drones as part of law enforcement

Drones, in some cities, are being used for surveillance to ensure that the current curfew is not violated. Drones allow the police to surveill and document, in a low risk manner. In cities like Chennai, they are being used to disinfect areas. If all goes well in these difficult times of crisis, then expect that police will place more orders for drones going forward, and many tasks will be automated.

Telemedicine guidelines

One of the prime examples of the proposition that experience of COVID-19 crisis will pace up the policy-making with respect to regulate technology is the rollout of a set of guidelines for telemedicine or remote delivery of medical services. Telemedicine practice means that doctors will now be allowed to use information and communication technologies as per guidelines for the exchange of valid information for diagnosis and treatment of ailments with patients. In order to assure steady and quick medical services during the nationwide lockdown, Ministry of Health and Family Welfare finally sanctioned the guidelines that have been proposed ten years ago. Globally, telemedicine has emerged as a front-line weapon against the COVID 19 pandemic. The situation under present crisis motivated the government to provide the concept of telemedicine among masses explaining that the unnecessary exposure of people involved in the delivery of healthcare can be avoided using telemedicine, as patients can be screened remotely.