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LETTER FROM THE EDITOR

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THE EFFICACY AND LEGALITY OF MASS SNOOPING


DURING this period of unusual national turbulence over the primacy of the constitution over partisan politics, we tackle two separate but related stories, across two continents and the huge security tribulations created in our world by mass terrorist attacks like the recent carnage in Paris. We all know this was not one of a kind. Ever since 9/11, terrorism has been ubiquitous. It has become worse and widespread notwithstanding the use of an ever widening range of deadly weapons.

One bludgeon in this armamentarium has been the sharpening of intelligence gathering through snooping and surveillance and the preventive arrest and prolonged interrogation of suspects. But are these methods which, arguably, impinge on human rights and privacy, effective? The jury is still out on that one, but there is a raging debate in India and other democratic countries on how much freedom can be sacrificed at the altar of building a wall of impenetrable security.

In fact, there is considerable debate in the US about the efficacy of mass surveillance. Lauren Kirchner recently reported in ProPublica that government officials have been pointing to the terror attacks in Paris as justification for mass surveillance programs. CIA Director John Brennan accused privacy advocates of “hand-wringing” that has made “our ability collectively internationally to find these terrorists much more challenging”. Former National Security Agency and CIA director Michael Hayden said: “In the wake of Paris, a big stack of metadata doesn’t seem to be the scariest thing in the room.”

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But evidence, according to Kirchner, points to the startling conclusion that these programs may indeed have limited value in unearthing useful information. The word “useful” was defined by the US’s FBI general counsel as “those leads that made a substantive contribution to identifying a terrorist, or identifying a potential confidential informant”. An internal review of the Bush administration’s warrantless program—called Stellar Wind—reports Kirchner “found it resulted in few useful leads from 2001-2004, and none after that. In 2006, says ProPublica, she conducted a comprehensive study of all the leads generated from the content basket of Stellar Wind between March 2004 and January 2006 and discovered that zero of those had been useful.

Wrote The New York Times reporter Charlie Savage: “The program was generating numerous tips to the FBI about suspicious phone numbers and e-mail addresses, and it was the job of the FBI field offices to pursue those leads and scrutinize the people behind them. (The tips were so frequent and such a waste of time that the field offices reported back, in frustration, “You’re sending us garbage.”)

Several other intelligence gathering programs under review by reporters created no more than garbage. They included the US National Security Agency’s (NSA) bulk collection of phone records or were disguised as intelligence “intercepts” when, in fact, they were gathered from online databases.

In 2014, New America Foundation echoed those conclusions, says Kirchner. It described the government claims about the success of surveillance programs in the wake of the 9/11 attacks as “overblown and even misleading”

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An in-depth analysis of 225 individuals recruited by al-Qaeda or a like-minded group or inspired by al-Qaeda’s ideology, and charged in the United States with an act of terrorism since 9/11, demonstrates that traditional investigative methods such as the use of informants, tips from local communities and targeted intelligence operations provided the initial impetus for investigations in the majority of cases, while the contribution of NSA’s bulk surveillance programs to these cases was minimal.

Edward Snowden’s leaks about the scope of NSA’s surveillance system in the summer of 2013 put government officials on the defensive. Many politicians and media outlets echoed the agency’s claim that it had successfully thwarted more than 50 terror attacks. ProPublica examined the claim and found “no evidence that the oft-cited figure is accurate”.

Like in all functioning democracies, the debate over privacy versus security is also robust and a matter to which our justice system, particularly the Supreme Court, have paid much-needed attention. The matters to which I shall now refer may not be related directly to terrorism or security, but have often been cited as tools which will help prevent attacks and track down culprits. One significant and wellpublicized case that comes to mind is justice K.S. Puttaswamy (Retd)…vs Union of India (August 2015). It was ruled on by Justices J Chelameswar, SA Bobde and C Nagappan.

I discuss this important issue in this article because not all readers are familiar with its implications and concerns for the basic concept of the right of citizens to be rotected against gratuitous intrusions on their rights and liberties. The initial order in this case, points to the compassionate involvement of our judicial system in ensuring that “law and order” and the exigencies of “data gathering” cannot be used indiscriminately to urtail the rights of people living in this land.

The Puttaswamy case relates to the government of India collecting and compiling both the demographic and biometric data of residents of this country (Aadhaar card) to be used for various purposes. The petitioners argued that the very collection of such biometric data is violative of the “right to privacy”. Some of the petitioners asserted that the right to privacy is implied under Article 21 of the constitution of India while other petitioners assert that such a right emanates not only from the Article but also from various other articles embodying the fundamental rights guaranteed under Part-III of the constitution of India.

Contrarily, Attorney-General Mukul Rohatgi submitted that in view of the judgments of the apex court in M.P. Sharma & Others v. Satish Chandra & Others—AIR 1954 SC 300 and Kharak Singh v. State of U.P. & Others, AIR 1963 SC 1295—(decided by eight and six judges respectively), the legal position regarding the existence of the fundamental right to privacy is doubtful. He also submitted that in several subsequent decisions, the Supreme Court referred to “right to privacy”, contrary to the judgments in the above mentioned cases which resulted in a jurisprudentially impermissible divergence of judicial opinions.

The state argued: “A power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that power is necessarily regulated by law. When the Constitution makers have thought fit not to subject such regulation to constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it, into a totally different fundamental right, by some process of strained construction.[See: M.P. Singh & Others v. Satish] Chandra & Others, AIR 1954 SC 300, page 306 para 18] “… Nor do we consider that Art. 21 has any relevance in the context as was sought to be suggested by learned counsel for the petitioner. As already pointed out, the right of privacy is not a guaranteed right under our Constitution and therefore the attempt to ascertain the movement of an individual which is merely a manner in which privacy is invaded is not an infringement of a fundamental right guaranteed by Part III.”

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The contrarians submitted that world over where Anglo-Saxon jurisprudence is followed, “privacy” is recognized as an important aspect of the liberty of human beings. Additionally, they said, it was too late in the day for the Union of India to argue that the constitution of India does not recognize privacy as an aspect of the liberty under Article 21. At least to the extent that the right of a person to be secure in his house and not to be disturbed unreasonably by the State or its officers is expressly recognized and protected in Kharak Singh (supra) though the majority did not describe that aspect of the liberty as a right of privacy, “it is nothing but the right of privacy”.

The judges opined: “We are of the opinion that the cases on hand raise far reaching questions of importance involving interpretation of the Constitution. What is at stake is the amplitude of the fundamental rights including that precious and inalienable right under Article 21. If the observations made in M.P. Sharma (supra) and Kharak Singh (supra) are to be read literally and accepted as the law of this country, the fundamental rights guaranteed under the Constitution of India and more particularly right to liberty under Article 21 would be denuded of vigor and vitality. At the same time, we are also of the opinion that the institutional integrity and judicial discipline require that pronouncement made by larger Benches of this Court cannot be ignored by the smaller Benches without appropriately explaining the reasons for not following the pronouncements made by such larger Benches. With due respect to all the learned Judges who rendered the subsequent judgments – where right to privacy is asserted or referred to their Lordships concern for the liberty of human beings, we are of the humble opinion that there appears to be certain amount of apparent unresolved contradiction in the law declared by this Court.

“Therefore, in our opinion to give a quietus to the kind of controversy raised in this batch of cases once for all, it is better that the ratio decidendi of M.P. Sharma (supra) and Kharak Singh (supra) is scrutinized and the jurisprudential correctness of the subsequent decisions of this Court where the right to privacy is either asserted or referred be examined and authoritatively decided by a Bench of appropriate strength.

“We, therefore, direct the Registry to place these matters before the Hon’ble the Chief Justice of India for appropriate orders.”

In the interim, the Court instructed the government to give publicity in the electronic and print media, including radio and television networks, that it is not mandatory for a citizen to obtain an Aadhaar card. Additionally, the Court held that the Unique Identification Number of the Aadhaar card “will not be used by the respondents for any purpose other than the PDS Scheme and in particular for the purpose of distribution of foodgrains, etc. and cooking fuel, such as kerosene. The Aadhaar card may also be used for the purpose of the LPG Distribution Scheme…The information about an individual obtained by the Unique Identification Authority of India while issuing an Aadhaar card shall not be used for any other purpose, save as above, except as may be directed by a Court for the purpose of criminal investigation.”

How seriously the Court takes matters of personal liberty and privacy is evident in some of the footnotes and citations in the judgment. One reads: “The right to privacy is not enumerated as a fundamental right in our Constitution but has been inferred from Article 21…The right to privacy — by itself — has not been identified under the Constitution. As a concept it may be too broad and moralistic to define it judicially. Whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case. But the right to hold a telephone conversation in the privacy of one’s home or office without interference can certainly be claimed as ‘right to privacy’. Conversations on the telephone are often of an intimate and confidential character. Telephone conversation is a part of modern man’s life. It is considered so important that more and more people are carrying mobile telephones in their pockets. Telephone conversation is an important facet of a man’s private life. Right to privacy would certainly include telephone conversation in the privacy of one’s home or office. Telephone-tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law.

“Right to freedom of speech and expression is guaranteed under Article 19 (1)(a) of the Constitution. This freedom means the right to express one’s convictions and opinions freely by word of mouth, writing, printing, picture, or in any other manner. When a person is talking on telephone, he is exercising his right to freedom of speech and expression. Telephone-tapping unless it comes within the grounds of restrictions under Article 19(2) would infract Article 19(1)(a) of the Constitution.”

To come back to the American experience of mass surveillance, ProPublica reports that local police departments have also acknowledged the limitations of this technique. Boston Police Commissioner Ed Davis admitted that federal authorities had received Russian intelligence reports about bomber Tamerlan Tsarnaev before the Boston Marathon bombings, but had not shared this information with local law agencies. Davis observed: “There’s no computer that’s going to spit out a terrorist’s name. It’s the community being involved in the conversation and being appropriately open to communicating with law enforcement when something awry is identified. That really needs to happen and should be our first step.”

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