Enhancing due process rights of individuals who are subject to surveillance

The present legal regime for communications surveillance regulation in India has been subject to heavy criticism. Several stakeholders have called for an overhaul of the legal framework. Some have even attempted to provide a draft legislation complete with substantive and procedural rules. This article attempts to lay out broad but minimum substantive safeguards that should form a part of any new legal framework or statute intending to replace the current one. The safeguards are drawn from experiences in jurisdictions across the world and related commentary. Wherever possible, the principles are contextualised with developments in India.

SUBSTANTIVE SAFEGUARDS

Prescribed by law – Although the requirement is guaranteed by the Indian Constitution, a new legal framework must reiterate that surveillance may be undertaken only in the manner prescribed under the framework and notwithstanding any other law.

Reports suggest that the Indian government routinely requires third parties to retain communications data, including, in some cases, the content of communications. For instance, in licenses granted to telecommunication enterprises by the Indian government, broadly worded terms require such enterprises to retain communication data en-masse. Government agencies, it appears, subsequently request for specific information from such enterprises without having to comply even with the current safeguards under the Indian Telegraph Act and the Information Technology Act.

Accordingly, this suggested safeguard will ensure that (a) the law stipulated in the new framework will be the only means available to government agencies to conduct communications surveillance and (b) the powers of the government under other laws (such as the ability to issue telecommunication licenses) are not cited to escape the rigours of the framework.

Prescribed by law, as a principle, should also guide the drafters of the new framework to ensure that the framework is publicly accessible and that the language of the framework permits individuals to clearly foresee under what conditions might government authorities be permitted to undertake communications surveillance.

Legitimate aim – The present framework articulates broad state interests which may justify surveillance. As is now acknowledged, “vague and unspecified” phrases such as ‘public order’ or ‘national security’ are routinely asserted by states casually (without further explanation) to justify surveillance measures in individual cases. The new framework must mandate a requesting government authority to “precisely and concretely” demonstrate how the person sought to be surveilled threatens, for instance, ‘national security’ or ‘public order’. Further guidance, in the form of illustrations, on how phrases such as ‘national security’ or ‘public order’ may be understood and (more significantly) not understood should be provided.

Proportionality – The Indian Supreme Court, in Puttaswamy v Union of India (2017), endorsed the applicability of the proportionality doctrine in examining permitted interferences to an individual’s privacy. The new framework should codify this requirement. The language of the codification should ensure that it resolves some contemporary issues in the field without room for doubt.

For instance, the Madras High Court currently appears to be struggling to decide on a petition that effectively requests the Court to ensure the communication service provided by WhatsApp? is not truly “end-to-end” encrypted. Any measure that prevents individuals from using encrypted communication methods should always fall foul of the proportionality doctrine. As captured succinctly elsewhere:

“Just as it would be unreasonable for governments to insist that all residents of houses should leave their doors unlocked just in case the police need to search a particular property, or to require all persons to install surveillance cameras in their houses on the basis that it might be useful to future prosecutions, it is equally disproportionate for governments to interfere with the integrity of everyone’s communications in order to facilitate its investigations or to require the identification of users as a precondition for service provision [..]”

In similar vein, when properly understood, the proportionality principle will prohibit policies mandating default or en-mass communications related data retention by third parties. A new legal framework must articulate the proportionality doctrine appropriately to ensure that scenarios such as the ones discussed above are readily and conclusively answered.

Due process rights – Ex-ante judicial authorisation, the availability of ‘public advocates’ (lawyers representing the interests of the individual sought to be surveilled without getting in touch with the individual) and post-facto user-notification are three important means that strengthen an affected individual’s due process rights. A new legal framework must capture these three measures. Procedural and allied rules must ensure that the spirit of these measures is not destroyed.

Effective remedies – The new framework must provide for specific remedies available to an individual when it is adjudged that her communication was intercepted in breach of the framework. At a conceptual level, no remedy for the improper breach of one’s privacy can be fully compensatory – but at a minimum they must explicitly provide for (a) destruction of any unlawfully obtained communication, (b) substantial safeguards that prevent any information gathered from the unlawfully obtained communication from being used or shared further, (c) where relevant, appropriate repercussions for government officials or others responsible for the illegality, and (d) monetary compensation for the individual without any proof of ‘actual harm’.

Public oversight mechanism – A new framework must incorporate a democratic oversight mechanism where the overseeing body has legitimate power to review the government's use of surveillance measures. Publication of reports from such an overseeing body will foster democratic engagement and debate on the state’s surveillance activities. This measure might encourage the government to limit surveillance activities to genuine scenarios, keep ‘public advocates’ accountable to the larger public and deter an ex-ante reviewing judicial authority from turning into a rubber-stamp.

Prohibit circumvention of domestic law by seeking co-operation from foreign governments – It is now widely believed that states sometimes seek surveillance material in relation to their own citizens or subjects from foreign intelligence agencies when the applicable domestic law does not permit the state to do so directly. The new framework should explicitly prohibit such attempts to circumvent applicable domestic law. As a corollary, the framework must stipulate that Indian authorities will not aid their foreign counterparts when these counterparts attempt to circumvent their own domestic law.

First Draft of Second Essay