Minister Rathore: Please don’t snoop about my Facebook page

In a notification dated April 15th, 2018 the Information & Broadcasting Ministry invited Request for Proposals(tenders) for a Social-media Communications Hub. The social media communications hub among other things, provides for the creation of devoted data analytics team, which would collect and analyse information on the social media about various ‘influencers’ and ‘people who create a buzz about various issues’. The information thus created would be analysed and analysis provided as to how ‘public perceptions could be moulded in a positive manner’ and among other things ‘nationalistic feelings be created among the people’. It also mandates the creation of a database of such information. If the creation of such a innocuous sounding ‘hub’ has not troubled you and triggered an urge to delete all social media accounts, this post will argue why it is deeply dangerous, not least because it can hinder you from using social media as per your wishes.

Before venturing into the details of how exactly this notification is antithetical to the right to privacy and free speech, it is important to discuss what privacy really means. The 9-judge bench of the Supreme Court in K.S. Puttaswamy v. Union of India unequivocally said, there exists and has always existed a right to privacy in India. The court found its genesis in the right to personal liberty(Article 21) and stated that ordered liberty would mean the right to enjoy one’s privacy and not live in the constant fear of being watched/monitored or have one’s decisional autonomy intereferd with. But one question which naturally arises and arose in my discussion on the social media with a data analytics-entrepreneur is whether information on social media which is supposed to be public, warrants such a protection? I would argue that it does.

Privacy: Of people, not places

A common misconception in viewing privacy is that it is limited to places. The phrase commonly bandied about is that ‘A man’s house is his castle’ and that ‘Bedrooms and kitchens are off-limits for the state’. While it may seem intuitively correct, privacy actually belongs to people and not places. For instance, a person who is walking in the public, may feel really violated by being stared at continuously and this may constitute a civil intrusion of a person’s privacy. This was made clear by the Supreme Court in the case of District Registrar v. Canara Bank, wherein it was held that information given over to the bank, does not become public, and thus cannot be accessed by the District Collector, without proper procedure. What follows from this conception of privacy as belonging to persons and not places, is that the disclosure of a ‘secret’ information to a third party(or a group of people of the public) does not preclude you from claiming a reasonable expectation of privacy with regard to that information. This conception of privacy in India, is arguably stronger than it is in the United States of America, which follows the Third Partly doctrine. According to the third-party doctrine, once information is done over by one party to another, the party which divulged that information can no longer claim the protection of privacy. In India however after Canara Bank, it has been made clear that the state may not collect information, even after it has been shared with a third party, unless it does so under some pre-conditions(discussed later). Thus the essence of privacy lies in the person who claims the infringement, not in a particular physical bounded area. The limited disclosure of a secret information to a given person/ groups of person or for a given reason, still protects that divulged information from unwarranted access. The modern jurisprudence of privacy thus recognises that people may turn down their privacy-guard to a limited extent, infront of a given audience and still enjoy privacy as against the wider world. To expect privacy protection, complete secrecy is not essential.

How does this apply in this case? The information in your social media profile was shared for a given purpose and for a target audience. The purpose of giving out your name, location, education etc on social media, is to be identified by potential friends and co-workers. It was intended for the viewership of the people of that social media website, not for running data-analytics operation to gauge whether you approve of things like cow slaughter-ban or the Prime Minister’s latest clever abbreviation. What is more, the information according to the proposed notification will be used to publish content which may ‘change public perception’. As it can be clearly seen, this is against the principle in Canara Bank, as a) the information is taken from a third-party, and not the user, in clear violation of the aforesaid principle b)it is taken for a purpose unlike what it was intended to be used for.

Data Aggregation: Whole is more than sum of its parts

Another concern in allowing free-wheeling surveillance of public data on social media is the threat of aggregation. Often we share information publicly which may seem innocuous and unworthy of protection. But once this information is aggregated over several social media profiles including facebook, instagram, youtube, linkedn, swiggy and maybe even dating apps, an accurate digital counterpart of the person appears, which may reveal more about the person that a stray publication of personal information. Several cases in the US like United States Department of Justice v. Reporters Committee for Freedom of the Press, courts have recognised this threat of aggregating publicly available information.

The Social media communications hub  provides for using ‘all social media sites’ for creating a granular and individual collection of ‘conversational logs’ of ‘people who create a buzz’. It is clear that if a profile of a person who sways public opinion is created and his data aggregated, the government will have the leverage of knowing a lot about his private life, by piecing together this information. This has the potential to silence ‘people who create buzz’ against government policies.

Informed Consent

Another basic tenet not just for privacy, but also for data-protection, which most operators and service providers have to abide by is the idea of informed consent. Information cannot be accessed, except by explicit ‘notice’ to the person and ‘express and informed consent’ by the person. It is easy to see how the Social media communications Hub violates this key tenet, in that it encouraging access to information without consent.

When can a state infringe privacy? And why is privacy important?

Some might argue that a few aims which this project seeks to secure, like increasing ‘nationalistic sentiments’ are reasonable goals which should be allowed. But is it true? Of course, there are exceptions to privacy, which allows law-enforcement to intercept calls of alleged terrorists, etc. The standard the Supreme Court in K.S. Puttaswamy set for any breach of privacy is that it should adhere to a doctrine of proportionality. This means it must necessarily follow two pre-requisites: a) It should be for a legitimate State aim i.e it should be for a compelling public interest.  b) it should be narrowly tailored, that is it should infringe the least possible right and the degree of infringement should have a rational correlation to the legitimate state aim sought to be achieved. However in this case, the aims of the government includes changing perception of people about policies of the government, creating nationalistic feelings in the people and identifying news items which create ‘buzz’(actual word in the notification). Further the degree of infringement is unimaginable. Not only is the data collected, it is analysed and targeted campaigns maybe run on the basis of it. It also authorises creating a database of such information, one which can possibly be misused.

Immense scope for misuse

Another dangerous idea of adhering to the ‘public-private’ divide’ when it comes to informational privacy, is that it ignores the immense scope for misuse of information collected from public surveillance. Even public surveillance of social-media by the government, may have a direct effect on what people choose to post online, thereby inhibiting expression and narrowing scope for democratic discussion. In this proposed hub, there are no contours set as to what information can and cannot be collected. The government may, if it wants to, use it to create a caste/religious profile of the people living in a given constituency(information which a lot of people put on social media). One does not have to conjure up the image of riots, and communally charged campaigns to put that in perspective. And this is exactly why privacy is so important. The infringement of privacy in such a huge scale, one may daresay, a social media mass surveillance, has the capacity to profile people(there is to be a database, no clarity on what database) and is particularly detrimental for minorities and dissidents who campaign against government policies and challenge societal norms.

Orwellian Tragedy

In George Orwell’s classic 1984, the state called the Big Brother has a thought police. They use surveillance techniques to find out dissidents who commit thought-crimes and think what is called ‘unapproved thought’. The Ministry of Thought in 1984 is similarly tasked with the task of editing out unfavourable information from newspapers and replacing it with favourable ones. One sees a striking parallel here. This is the Ministry of Information attempt to become a Big-brother, to crack down on dissent in the worst possible way, to use government resources(43 crores) to tackle free ideas from finding their expression on social media and running of campaigns using exchequer money to counteract the anti-government feelings of people.

As the resent Cobrapost expose reveals the politician-media nexus has captured most of the conventional media. The movies have long been subject to the tyrant Censor Board for approval, which orders cuts with its own whims and fancies. The last refuge of the thinking and the last refuge of expression is the Internet. By standing up against this attempt we must show the government that internet cannot be regulated/stifled like conventional media. People have argued that this comparable to Cambridge-Analytica. I think it is much worse, for the involvement of the State brings huge power, which means greater potential for misuse. The Internet-freedom foundation which stopped the facebook juggernaut of free-basics( which was against net-neutrality) has served a notice to the I&B ministry. One hopes the notification is withdrawn, and this Social Media ‘Suppression’ hub never fructifies.

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