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20110719

Leave Me Alone: Right to Privacy in a Snooping World




                                                                              By
                                                                                   Sibichen K Mathew



The demise of the News of the World and the apology of Robert Murdock is just a beginning. In a world where the privacy of the individuals is increasingly under attack, there is a need for immediate action to stop all unethical practices in invading the privacy of people.   
Have a look at how we are being snooped.

I
Introduction
 Life in a snooping world

   Have we lost our freedom?: The freedom to talk and the freedom to listen; the freedom to walk and the freedom to rest; the freedom to laugh, or at least the freedom to cry in solitude?  

    Would an ‘open society’ mean a society that encourages individual freedom or a society that eliminates privacy? Don’t you think that, many times, inquisitiveness of others is too much to bear?

    Stories and headlines are constructed, packaged and sold by the tribesmen of Rupert Murdock, by intelligently hacking the personal lives of people to break hot and spicy ‘news of the world’. During the course of which many are devastated and hurt, some are grievously emotionally injured, and a few even have lost their precious lives.

   Wires are tapped using the law, twisting the law and bypassing all norms of social behaviour. Chats, remarks, comments, confessions and advice made in confidence were stored in gigabytes and terabytes to create databases for future use and misuse. Mails are intercepted to blackmail the parties by and through service providers. Our movements are captured by hidden electronic eyes and stored and analyzed in remote locations in the name of security or for mischievous and mysterious reasons. Our personal data are diverted to unintended and undisclosed locations by unscrupulous elements thorough outsourced entities and intermediaries.

    Are our governments helpless or are they parties to the threat to privacy of their citizens? Before venturing to answer that question, one would be shocked to hear that even they are susceptible to ‘Wikileaks’! Thousands of highly confidential, classified and protected exchanges of casual and serious tête-à-tête between top level official functionaries were selectively and shamelessly traded to media barons on ‘public interest’. And the so called public isn’t much amused to hear their leaders and role models talk anything ranging from judgments to filth in private, which would have otherwise never ever even remotely crept into their well prepared scripts carefully delivered to the microphones.

   A democratic society is considered as an open society. And in an open society, people are supposed to enjoy a reasonable amount of freedom: to enjoy their private space without any intrusion, to communicate to other individuals in confidence, to travel and explore the nature around, and spend their spare time engaging in activities that would rejuvenate their mind and body. Any normal person in ordinary circumstances enjoys his freedom and privacy in conformity with the social norms. Any attempt by anyone to infringe upon these basic wants would certainly make the individual insecure and fettered.

   Privacy is a universally valued right in all human societies and cultures at all times. It is part of the common law. Rudimentary form of injury to one’s privacy was through eavesdropping. Eavesdropping (in olden times meant) is standing under the eaves of a house to secretly eavesdrop on conversations inside. This was considered as nuisance as per common law and was punishable. Peeping toms and eavesdroppers were liable for arrest as early as in 1361, when the Justices of peace Act in England had provisions to that effect[i]. From the stage of eavesdropping we have reached much sophisticated stage of ‘gumming’ and bugging. (Remember the allegation that the Indian Finance Minister’s office was bugged and some concluded that what founded was gum and not bug).

    Privacy is a fundamental right recognized in the United Nations Universal Declaration of Human Rights. Article 2 states as follows: ‘No one should be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks on his honour or reputation. Everyone has the right to the protection of the law against such interferences or attacks’.  Right to privacy  is also part of the  International Covenant on Civil and Political Rights. India is a signatory to the International Covenant on Civil and Political Rights, 1966. Article 17 of the said covenant is as under:
1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.
2. Everyone has the right to the protection of the law against such interference or attacks.

Article 12 of Universal Declaration of Human Rights, 1948 is almost in similar terms underscored the right to privacy.

In Kesavananda Bharathi vs. State of Kerala (1973) SCR 1, it was observed as below:
"… in view of Article 51 of the directive principles, this Court must interpret language of the Constitution, if not intractable, which is after all a intractable law, in the light of the United Nations Charter and the solemn declaration subscribed to by India."

    The word ‘Privacy’ is not clearly defined in any statute. Justice Hugo Black wrote in the Griswold vs. Connecticut opinion, "'Privacy' is a broad, abstract and ambiguous concept." But almost all countries have incorporated the right of privacy in their Constitution. Though, the right to privacy is not explicitly provided in the Constitution of India, Courts have held that it is an essential ingredient of right to life, and fundamental freedom.

II
Right to Life includes Right to Privacy


        Thomas M Cooley, Chief Justice of Michigan Supreme Court emphasized the need for privacy as early as in 1888, when he expounded about the man’s right to be alone[ii]. Samuel Warren and Louis D. Brandeis[iii] expanded it further in 1890 and strongly advocated for upholding the right to privacy stating that the prediction, ‘what is whispered in the closet shall be proclaimed from the house-tops’, has become increasingly true. The ‘right to be let alone’ is considered as the ‘most terse definition’[iv] of the right to privacy. William Prosser, who wrote several books on Law of Torts, in the Second Restatement of Torts classified the privacy rights into four kinds in 1950s as follows: a) Unreasonable intrusion upon the seclusion of another, b) appropriation of a person’s name or likeness, c) publication of private facts, and d) publication that places a person in a false light.


       In the case of Kharak Singh vs. The State of U.P. and others (1964) 1 SCR 332, it was observed that ‘surveillance’ under chapter XX of the U.P. Police Regulations Act constituted an infringement of any fundamental rights guaranteed by Part III of the Constitution and the surveillance by ‘domiciliary visits at night’ was held to be violative of Article 21 on the ground that there was no “law” under which the said regulation could be justified. Majority held that ‘right to privacy’ is part of the right to life under Article 21 of the Constitution.

      Justice Subba Rao in the case of Kharak Singh vs. The State of U.P. opined as follows:
 ‘ ..The right to personal liberty takes in not only a right to be free from restrictions placed on his movement, but also free from encroachments on his private life. It is true our Constitution does not expressly declare a right to privacy as a fundamental right, but said right is an essential ingredient of personal liberty. Every democratic country sanctifies domestic life; it is expected to give him rest, physical happiness, peace of mind and security. …If physical restraints on a person’s movements affect his personal liberty, physical encroachments on his private life would affect it in a larger degree. Indeed, nothing is more deleterious to a man’s physical happiness and health than a calculated interference with his privacy. We would, therefore, define the right of personal liberty in Art 21 as a right of an individual to be free from restrictions or encroachments on his person, whether those restrictions or encroachments are directly imposed or indirectly brought about by calculated measures.’[v]

  

     Let us see below, some of the common areas of invasion to privacy.

III
Interception of Communication

   “wiretapping is a dirty business” (Justice Oliver Wendell Holmes)

     Any democratic society should necessarily allow citizens to communicate with each other without any interception or intrusion by anyone else including the state. State should respect the individual’s right to communicate in private.

     168 year old British Tabloid ‘News of the World’, had to shut down its office on 10th July 2011 midst of reports of phone hacking to create ‘exclusive’ stories. Police have reportedly identified 4000 possible targets whose voicemail messages were hacked. Surprisingly, such a massive illegal invasion to privacy of thousands of persons was done by a media house owned by media baron Rupert Murdoch. There is also an allegation[vi] that media has attempted to obtain phone records of victims of the terrorist attacks of September 11 through bribery and unauthorized wiretapping.

   { In the Radia Tapes[vii] issue (where conversations of corporate lobbyist Niira Radia with leading industrialists and officials were tapped), petitions have been filed in the Indian apex court on the legality of interception and the dissemination of data. Mr. Salve, counsel for the leading Indian Industrialist Ratan Tata  has argued that the power of the law enforcement agencies to record telephonic conversations itself was a serious encroachment upon the right of privacy guaranteed by Article 21 of the Constitution. The case was filed to seek redress of violation of the Constitutional rights of a large number of persons, including a host of corporate entities by the indiscriminate publication of wiretap material procured by questionable means[viii].}
Single interception; many victims

    Even when an interception order is issued as per law, its execution invariably results in wider adverse consequences. A single interception order can involve listening into conversations involving several people, who get affected adversely.

   In a recent report on the state of privacy in fifty countries, it was mentioned that there are widespread violations of laws relating to surveillance of communications, in most of the countries[ix].  Interception laws are used not only for surveillance and investigation related to crimes, but also for tracking the political opponents and activists.

The interception of written communication

    We have come a long way from the centuries of handwritten communications. Millions of people increasingly depend on e-mails for all communications. Law enforcement authorities intercept e-mails through the Internet Service Providers (ISPs). There is no guarantee that multitude of ISPs securely maintain the e-mail records of people. Employers also snoop on the mails of employees as a matter policy.

Tracking internet use

   Can you imagine someone keeping a continuous surveillance on you: what you are reading, what you are writing, what your financial dealing are, which bank you operate your accounts, which credit card you are using, how do you spend your money, what are your personal likings, who your close friends are, what you are chatting with them, and what you are searching. You can see autosuggestions such as ‘You might also like[x] (based on your past browsing history), advertisements (based on the key words from your e-mails), and friendship suggestions in the networking sites based on your profile. Many of us would not encourage such unsolicited suggestions in real life from people. Cyber snooping on social networking sites[xi] has been widely reported.

IV
Media is hungry

    Person, his private life and his Intimate environment are the things that interest many people and paparazzi always thrived on such inquisitiveness.   Much of the mainstream media sell plain gossips that mostly centered on the private acts of people framed partially based on facts gathered clandestinely. Sting and under-cover operations are done in the most unethical manner in many cases. It is surprising to note that many such under-cover operations have never seen the light of the day, as the commercial interest of the media house or the particular journalist were served even without feeding the story for public consumption.

   In India, The Cable Television Networks (Regulation) Act, 1995 and the Rules lays down that no programme can be transmitted/re-transmitted on any cable service which contains anything obscene, defamatory, deliberate, false and suggestive innuendos and half truths.

The Committee on Petitions of Rajya Sabha in its report dated 12.12.2008 made the following observations:

“The Committee feels that the electronic media should not air information gathered though Sting Operations (SO) unless and until there is ample evidence to conclusively prove the guilt of the alleged accused; if it is required in public interest, the version of the alleged accused should also be aired simultaneously and with equal prominence…Where a SO is found to be false and fabricated, the media company ought to be given stringent punitive punishment commensurate with the damage caused to the innocent individual…  The Committee observes that even though the right to know takes precedence over the right to privacy, the right of privacy should not be encroached upon, under the garb of freedom of the Press unless prompted by genuine public interest.”


     When an accident occurs, it is the television crew that reaches first to the scene much before the ambulance, police or the fire force. The focus is on covering the persons in whatever condition they are. Same is the case of the injured or crime victims in hospitals. Victims in these cases are not in a mental or physical condition to prevent the video recording or protest against such intrusions.

     Two contrasting views are possible on the rights of the media. One view is that the media can report or telecast anything that interests the readers or viewers. Governments or courts should not get involved in evaluating whether such interests are decent and acceptable as per societal norms. The other view is that State has a predominant role in ensuring certain standards of morality, decency and ethics even if majority of the population encourages the media’s attempt to evoke the prurient interest.

V

Data Protection and Outsourcing

     Most of the large companies have outsourced the customer services and this has resulted in transferring personal data of the customers and clients to totally independent entities. Such a transfer of data is generally not notified to the customers who are under the bona fide belief that no other company is privy to the personal information supplied by them. Often, such personal data are traded to other companies who are in similar businesses or to those who are looking for a target population for marketing their products and services. This is done by the personnel of the outsourced entity with or without the knowledge of their employers.  Consequently, customers get offers from unwanted quarters which would amount to nuisance.

    Many call centres notify through a pre-recorded statement to the callers that the telephonic conversations are recorded for internal monitoring purposes. In the same manner, it is imperative to have a prior notification by the companies to the customers about the transfer of the customers’ personal data to any other entity. There should be a statute making this mandatory to protect the privacy of the personal data.

    The Council of Europe’s Convention for the Protection of Individuals with regard to the Automatic Processing of Personal Data was a landmark step in this area. OECD Guidelines on the Protection of Privacy and Transborder Flows of Personal Data have provided general guidelines on the handling of personal information in the public and private sectors since 1980.

     Following poem by Michael Silverstein[xii]  (reproduced with the permission of author) is worth reading:
“The data brokers probe my life
With my privacy they meddle,
They learn my tastes, my politics,
Which they then proceed to peddle.

I’m just a product to these folks,
Some bytes on their bus’ness ledger,
A jumble of some facts and stats,
Their standard human measure.

In truth, however, I don’t care
How data banks praise or soil me,
I just think when I’m sold as goods
I oughta get a royalty.”


VI

Intrusion to private space in the name of security












For a man's house is his castle, et domus sua cuique tutissimum refugium (Latin maxim: one’s home is the safest refuge’)   -- Sir Edward Coke (1549-1634)

‘A man's house is his castle, and God's law, as well as man's, sets a guard upon it; he that assaults it does so at his peril’[xiii].

     Prof. Phil Crane, who was also a republican member of the US House of representatives for a long period of over 35 years had said:  ‘I certainly respect privacy and privacy rights. But on the other hand, the first function of government is to guarantee the security of all the people’.

    Security is the one of the biggest problems many countries face in the post 9/11 period. Video surveillance and body scan are increasingly being used by the authorities to check persons. Most of these video cameras kept in the public places are covert or hidden. Rarely, one sees a notification that the place is under video surveillance. Placing a video camera without a notification in any place amounts to intrusion into the privacy of the persons present or transiting through such place. Not only Government authorities, many private concerns and individuals install video cameras in the premises which capture movements in the premises and also beyond. In a recent study, it was reported that the average London resident is monitored by 300 different cameras on a single day’[xiv]. Thus it is important to examine whether the security and protection ensured through surveillance cameras in public places outweighs the need for protecting the privacy of individuals.

    There are many instances of nabbing of criminals based on the video records and face recognition software. Video surveillances by authorities in public places have helped in the prevention and control of crime and have also created a feeling of security among public. However, the appropriate strategy should be to evaluate the rationality of indiscriminate use of video surveillance in both public and private places. It is also necessary that the video footages are not used by anti social elements for voyeurism and transmission through the internet. People feel that they have every right to roam around through public roads, enter into any shop or office, eat whatever they want and interact with whomever they like. It is not that they have waived their right of reasonable privacy even in public places. None would like to have a big brother keeping a track over his entire movement without any valid reason. There is a clear difference between merely observing them and continuously recording their movement. The doctrine of reasonable expectation is very relevant here. In a landmark case in the United States (Kats Vs U.S[xv]), it was held that recording by police of conversation in public telephone booth was violation of the Fourth Amendment (concerning privacy), because the speaker had a reasonable expectation of privacy in the telephone booth.

       Therefore, it is necessary to have a statute that authorizes, restricts or regulates installation of surveillance cameras on the basis of the security requirements. Otherwise, it should be publicly notified to everyone that there is an inevitable risk of video capture whenever one step out of his ‘castle’ and that would become slowly the order of the day. In such scenario, right to privacy will get unjustly limited within the walls of his house, if that is also not harmed due to bugging by his kith, kin or by any outsider. The argument that anyone venturing into the public space should reasonably expect such video capturing of his movements cannot be a justification for unauthorized, unrestricted and indiscriminate use of video and audio surveillance. State has the bounden duty to safeguard its misuse by itself or by any other person or concern.

Videos by private persons for black mailing and net uploading

    Even in a private house or building, the visitors might not expect that his every step, emotion, or response is being recorded through a video device by the host or anyone. Unless notified beforehand, such video recording should be made unlawful and be subject to appropriate punishment. In one particular case of a spiritual leader, a video purportedly depicting his intimate scenes with a film actress was aired by television channels. It was reported that the video was sold to the TV channels when the person in whose behest the video was recorded could not obtain a hefty amount from the spiritual leader and the actress for preventing the leakage of the video.   

    YouTube and other video uploading sites contain millions of videos containing visuals taken surreptitiously or authorized videos leaked illegally to harm the reputation of people.

    There need to be protection for emotions and actions of a person as there is protection for his written and oral communication. Emotional and mental injury can be much graver than physical injury in modern society.
    
VII

Search and Seizure

     Searches by Police authorities to nab criminals and to collect evidences are widely prevalent all over the world. But search and seizure action in the residential premises to nab tax evaders is conducted in some of the countries. India, with its huge potential to tap unaccounted income uses the search and seizure provisions in the Income Tax Act to search the premises of suspected tax evaders. However a recent study[xvi] clearly brought to light the social and psychological consequences of search and seizure action on the individuals and their families. Thus there is a need to use the weapon of search and seizure only in exceptional cases and with utmost caution. 

     It is said that the power to search and seizure was originally used by the enforcement authorities for recovering stolen goods from thieves. In India, the Sea Customs Act, 1878 contained powers to search. The Income Tax Act, 1922, the first properly coded direct tax law of the 20th century did not have any mention of the power to search and seizure. The power to detect evasion was exercised as per the Code of Civil Procedure, 1908. The Income-tax Investigation Commission, under the Chairmanship of Sir Srinivasa Varadachariar, ex-judge of the Federal Court, was constituted under the Taxation on Income (Investigation Commission) Act, 1947. The above Commission had recommended for giving the powers of search and seizure to the Income tax authorities. In 1948, the above powers were given but subject to certain safeguards.

     The Taxation Enquiry Committee set up in 1953 recommended that in order to curb tax evasion and to detect tax evaders, the powers of search and seizure should be vested with the Income tax Department itself. Consequently, section 37(2) was introduced by the Finance Act, 1956, conferring such powers on the Department. The powers were to be exercised under the Code of Criminal Procedure. The powers were restricted to search for any books of accounts or documents and seizure of the same if necessary, but seizure of valuables like cash, ornaments, stock, etc were not allowed.

     The Finance Act, 1964, after long deliberations and debates in the Parliament vested the powers of search and seizure with the Income Tax Department. The members had debated threadbare each provision in the proposal and the apprehensions raised were clarified and the bill was passed incorporating the suggestions. It is evident that the above powers have been conferred on the Income tax Department after application of minds of several seasoned parliamentarians and legal luminaries. Thus, the search and seizure provisions are extremely powerful instruments but to be exercised with utmost caution. The Income tax (Amendment) Act, 1965, brought in the powers to seize valuables which represented undisclosed asset or income, under section 132 of the Income Tax Act. Though the Parliament has strongly recognized the need for this extreme enforcement action to unearth incriminating evidences and to nab the tax evaders, it is widely felt that the same should be exercised with maximum caution and only in most appropriate circumstances.

     The following are some of the judicial observations, which point out the sensitive nature of the search provision and the directions for careful use of the same when it is absolutely necessary.

A search and seizure operation involves the invasion of the privacy of an individual or family. The right to privacy and the guarantee that an intrusion into the privacy of an individual   would be prevented is a fundamental right in a constitutional democracy and as valuable as any of the other fundamental rights. In USA, Courts have held that the right to privacy cannot be violated except for the strict purpose of discovering evidence of a criminal act. Constitutional barriers have been erected both at the federal and at the State levels against unreasonable invasion of privacy. It is well recognized in USA as well as in India that the right to be free from unreasonable searches is a constitutional right. — Indeed, it is the essence of constitutional liberty.’[xvii]

“…….Privacy is a very valuable right of a civilized society and violation thereof was not permissible except by authority of law and, therefore , the department should not only be slow but slowest in acting upon the information, being given by an informer…..No action should be taken on information based on surmises or guess…..Therefore, it (information) has not only to be authentic but capable of giving rise to the inference that the person was in possession of undisclosed income which has not been or would not be disclosed. The authorities must comply with basic requirement of the section before they are permitted to invade the secrecy of one’s home which is an inroad on the citizen’s right of privacy  ”[xviii]

  In United States, the fourth amendment to the U.S. Constitution explicitly prohibits “unreasonable searches and seizures” of the residences by the Government. This protection was also extended to the area immediately surrounding the house.

         Search and Seizure of Trash

          It is interesting to find that even there are judicial pronouncements on the harms caused to the privacy of a person when his garbage was searched by authorities. In the case of State of Florida Vs Schultz[xix], by way of obiter dicta, court observed that ‘we expect officers of the state to be more knowledgeable and respectful of people’s privacy than are dogs and curious children’.

    Collecting data through surreptitious methods amounts to illegal search and seizure

        Warrants are issued to search particular persons or premises on the basis of the satisfaction by the court or by the competent authority or by any other person through delegated legislation. Capturing a person’s image or movement or intercepting his conversation amount to search and seizure. Therefore, any such activity should also be done after securing a search warrant and not based on routine authorization. Even if there is a proper warrant to intercept a particular person, the act would result in the invasion of privacy of several other persons who have communicated with the intercepted person. Collection of any voice data of any of the above persons would be against justice. In an important judgment in the United States, the court held that surveillance of a home is a search when the authority uses a specialized device to explore details of the home ‘that would have been unknowable without physical intrusion’[xx]


VIII

Wikileaks and Government’s right to privacy

The historic ‘megaleak’ by Wikileaks raised question marks over the right to privacy  of governments, top diplomats, and political leaders. Over 2,50,000 secret  and ‘protected’ diplomatic cables were leaked to the public domain.

High level gossips

     It is really astonishing to see that casual conversations and opinions of high ranking officials and powerful leaders are obtained through informal chats and they are transmitted to power centres in another country for ‘necessary’ conclusions. What is shocking is that those ‘secret’ data were leaked to the public domain. Statements and gossips like he is authoritarian, he is a mafia boss, and he has weakness for women, uttered by national leaders reached people across the globe. There is a clear debatable issue here. Whether Right to Information or Right to Privacy, which one prevails over in the context of public interest?


IX

Snooping and Technology

    Gadgets for snooping through audio and video surveillance are easily available and affordable at very cheap rates. There are several wearable devices that can secretly record the audio and video of people.  Records of continuous videoing for several months can be stored in storage devices which are available in the market. One terabyte of storage can be bought for less than Rs 4000 ( less than $100). There is easy availability for digital wire tapping equipments, deciphering equipments, scanners, bugs, tracking devices etc. Most of these devices are illegally transported to various countries and sold in grey markets. There is no control over the sales of surveillance gadgets and there is no stipulation that purchase should be for lawful use. There should be trade barriers on in respect of surveillance technologies.

X

Global Initiatives

     Most of the countries have enacted laws to protect privacy and to prevent misuse of personal data. European Union enacted directives to protect the privacy of data of citizens. Some of the key rights for citizens are a) right to know the origin of data, b) right to have the inaccurate data rectified, c) legal remedy for unlawful use of data, and d) the right to withhold permission to use data in certain circumstances. One important measure is the appointment of Privacy Commissioner or establishment of an agency that enforces the privacy rules. In Australia, the Telecommunications (Interception) Act of 1979 strictly regulates the interception of telecommunications. All States have incorporated privacy laws to protect personal information. Austria has enacted laws against unauthorized wiretapping, electronic eavesdropping, and computer searches. European countries have signed and ratified the Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data. Bulgarian Constitution clearly recognizes the right to privacy. It says that  ‘everyone shall be entitled to protection against encroachments on his honor, dignity and reputation’ and ‘no one shall be followed, photographed, filmed, recorded or subjected to any other similar activity without his knowledge or despite his express disapproval, except when such actions are permitted by law.’[xxi] Most of the countries have introduced provisions to protect privacy.

    The OECD has formulated comprehensive guidelines on the Protection of Privacy and Transborder Flows of Personal Data[xxii]. The guidelines ‘represent an international consensus on how best to balance effective privacy protection with the free flow of personal data. It is mentioned that the guidelines are technology-neutral, flexible, allow for various means of compliance, and universally applicable.

XI

The Law: Indian Scenario

   All interceptions in India are mainly governed by The Indian Telegraph Act, 1885. As per the Act, following are the conditions (Section 5(1) and 5(2)). The Act was enacted in the year 1885. The power to make rules for preventing the improper interceptions or disclosure of messages under section 7 of the Act was not laid out for more than one century[xxiii]. (PUCL vs State of India, 1969).  In 1999, comprehensive guidelines were enacted. As per the procedure laid down as it stands now, the Interception orders can be issued only by or on behalf of Union Home Secretary and State Home Secretary (Rule 419 and 419A).

   Interception can be done ONLY on the occurrence of any public emergency, or in the interest of the public safety. But there should be satisfaction by Central or State Government or any officer specially authorized in this regard, that it is necessary and expedient so to do in the interest of sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence.

    One thing is very clear. Interception can’t be done just because of any apprehension of public emergency or to prevent public emergency. It can be done only  on actual occurrence.

In the case of Hukam Chand Shyam Lal vs. Union of India and Others. 1976 (2) ACC 128, it was held as follows:
“ Section 5(1) if properly construed, does not confer unguided and unbridled power on the Central Government/State Government/Specially authorized officer to take possession of any telegraph. Firstly, the occurrence of a “public emergency” is the sine qua non for the exercise of power under this section. As a preliminary step to the exercise of further jurisdiction under this section the Government or the authority concerned must record its satisfaction as to the existence of such an emergency”

    Then the question would be what is ‘public emergency’? Following  decision of the Supreme Court will give an answer to this.

‘Public emergency would mean the prevailing of a sudden condition or state of affairs affecting the people at large calling for immediate action. The expression “public safety” means the state or condition of freedom from danger or risk for the people at large. When either of these two conditions are not in exercise, the Central Government or  a State Government or the authorized officer cannot resort to telephone tapping even though there is satisfaction that it is necessary or expedient so to do in the interest of the sovereignty and integrity of India etc. In other words, even if the Central Government is satisfied that it is necessary or expedient so to do in the interest of the sovereignty and integrity of India or the security of the State or friendly relations with sovereign States or public order or for preventing incitement to the commission of an offence, it cannot intercept the messages or resort to telephone tapping unless a public emergency has occurred or the interest of public safety or the existence of public safety requires. Neither the occurrence of public emergency nor the interest of public safety are secretive conditions or situations. Either of the situations would be apparent to a reasonable person.’[xxiv]
     No interception or hacking can be done in contravention of the law and related rules and procedures. As per the procedure

     Though there is no express provision in the Constitution of India, Courts have held that the right to privacy is implicit in the right to life (Article 21). 

Right to Privacy Bill 2011
The provisions of the bill have not been finalized yet. However, some of the important proposals in the draft Bill have been reported by the media[xxv]. They are as follows:
·          “Every individual shall have a right to his privacy — confidentiality of communication made to, or, by him — including his personal correspondence, telephone conversations, telegraph messages, postal, electronic mail and other modes of communication; confidentiality of his private or his family life; protection of his honour and good name; protection from search, detention or exposure of lawful communication between and among individuals; privacy from surveillance; confidentiality of his banking and financial transactions, medical and legal information and protection of data relating to individual.”
·         There is protection from a citizen's identity theft, financial identify theft (using another's identity to obtain credit, goods and services), etc.
·         There is prohibition of interception of communications except in certain cases with approval of Secretary-level officer. It mandates destruction of interception of the material within two months of discontinuance of interception.
·         There is a provision for constitution of a Central Communication Interception Review Committee to examine and review the interception orders passed and is empowered to render a finding that such interception contravened Section 5 of the Indian Telegraphs Act and that the intercepted material should be destroyed forthwith. It also prohibits surveillance either by following a person or closed circuit television or other electronic or by any other mode, except in certain cases as per the specified procedure.
·         No person who has a place of business in India but has data using equipment located in India, shall collect or process or use or disclose any data relating to individual to any person without consent of such individual.
·         It mandates the establishment of a Data Protection Authority of India, whose function is to monitor development in data processing and computer technology; to examine law and to evaluate its effect on data protection and to give recommendations and to receive representations from members of the public on any matter generally affecting data protection.
·         The Data Protection Authority can investigate any data security breach and issue orders to safeguard the security interests of affected individuals in the personal data that has or is likely to have been compromised by such breach.
·         Contravention of the provisions on interception is an offence punishable with imprisonment for a term that may extend up to five years or with fine, which may extend to Rs. 1 lakh or with both for each such interception. Similarly, disclosure of such information is a punishable offence with imprisonment up to three years and a fine of up to Rs. 50,000, or both.

XII

The need to be proactive in protection of our privacy
Some suggestions


       There is no right without corresponding duty.  It is the duty of every citizen to ensure that he does not invade the privacy of another person in any circumstances, except with the permission of that person. One should avoid the derivation of pleasure from snooping on another’s communication, movement, work, and activities either directly or through third party. Law enforcement agencies that are authorized to do surveillance and interception of communication should use this power only on exceptional circumstances and only after all other avenues are exhausted.

    It is necessary to have clear parliamentary approval for the rules and procedures that permit invasion of privacy and there should be periodic legislative scrutiny over the application of such rules. Exemptions to the interception law should not be made through delegated legislation.  It is imperative to have proper application of mind preferably by a judicial or quasi-judicial authority while permitting any requests for surveillance or interception of communication. Even when public surveillance is inevitable, same should not be indiscriminate, but limited to particular space and time. Similarly, the interception or bugging of oral communication should not be of a long duration. Ideally, such invasion of privacy should not be for more than a fortnight.

     There should be provisions that stipulate that the statistics of all interceptions and surveillance (by which agency, method, duration, results etc.) be placed before the parliament within such time. Alternatively, all interceptions should be subjected to selective audit by an independent agency.     Norms should be stipulated so that there should be minimum intrusion of privacy of third parties, while intercepting communication from one person. Appropriate software should be developed so that any third party data unconnected to the investigation are destructed forthwith. As in the case of a search, where an inventory of search is given to the person searched, there should be notifications to the persons that their private communications have been intercepted. Third party data gathered during the course of an interception should also be notified to respective persons immediately. When letters are intercepted and re-sealed, the matter should be intimated to sender and receiver.

     The sale and possession of all gadgets and software related to spying, surveillance, bugging, and interceptions should be controlled by way of a license. The logic is same as that of the license for a gun. If the gun that possibly used for inflicting physical injury on a person cannot be kept without a license, similar rules are necessary for keeping a gadget that is intended to be used for inflicting mental injury on a person. In fact, mental injury due to intrusion into privacy of a person inflicts irreparable damage in many cases.

   There should be vicarious liability on the employer or the data base administrator if any personal data of any person is leaked outside. They cannot absolve their liability by merely fixing the responsibility on any employee or data manager.

    Though harming of one’s reputation cannot be  adequately compensated, there should be a right to compensation for unlawful interceptions and misuse of data of legal interceptions for purposes other than for which interception order was issued.

     Computer access during searches should be done only by two senior officers as a team and as far as possible in the presence of the owner of the computer or his representative. The computers should be sealed without accessing till such time the owner arrives.


Tail-piece

Your thoughts will be tracked: Bio-tracking is the future

The days are not very far when your thoughts and emotions are detected by exogenous devices which transmit them to public domain. Imagine, court directly pronouncing judgments on seeing the accused, without venturing for evidences to prove the mensrea!

 “Accordingly, whatever you have said in the dark will be heard in the light, and what you have whispered in the inner rooms will be proclaimed upon the housetops” (Luke 12:3)

Only the truth can set us free.

                              ((c) All rights reserved. Do not copy any part of this article)




You may like to read the article Truth Shall Set Us Free. Click here

You may like to read my other articles on the above topic. Click the links below


Julian Assange: A Criminal or a Champion of Open Society?





(Thanks to Sajjive for the Cartoons ) (VIEWS ARE PERSONAL). Comments are welcome

[i] James Michael, Privacy and Human Rights, UNESCO, 1994, P.1
[ii] Cooley Thomas M, ‘A Treatise on the Law of Torts’ 29 (2d ed. 1888)
[iii] SAMUEL WARREN & LOUIS D. BRANDEIS (1890) THE RIGHT TO PRIVACY, Originally published in Harvard Law Review, vol.4, pp 193, Brandeis also used the phrase ‘the right to be let alone’ in his dissent in a wire tapping case, Olmstead v. U.S. 438, 478 (1928).
[iv] Ronald B. Standler (1997), Privacy Law in the USA, http://www.rbs2.com/privcy.html
[v] 1963 AIR 1295
[ix] Privacy and Human Rights: An International Survey of Privacy Laws and Practice’, Global Internet Libert Campaign, http://gilc.org/privacy/survey/
[xiii] Commentary by Matthew Henry of Exodus Ch.22
[xiv] D. Gadher, “Smile, you’re on 300 Candid Camera”, in Sunday Times (London).London,1999
[xv] Katz Vs U.S., 389 U.S. 347,350 (1967)
[xvi] Mathew, Sibichen K. (2010), ‘Making People Pay: The Economic Sociology of Taxation’, New Delhi, Global Vision Publishers
[xvii] Report of  the Raja J Chellaiah Committee.(1991), New Dehi, Govt of India
[xviii]Dr Nanda Lal Tahiliyani vs Commissioner of Income Tax and others, Allahabad High Court, Income Tax Reports (India) Vol 170 Page 592
[xix]  No.388 So.2d 1326,1330 (Fa.Dist.Ct.App.1980)
[xx] Kyllo vs United States, in U.S., Vol.533: U.S. Supreme Court, 2001, pp. 27.
[xxiii] PUCL vs State of India 1969
[xxiv] PUCL vs State of India 1969

4 comments:

  1. Nice read and thats a lot of research gone into one post! Agree snooping is irritating and everybody is a victim at one point or the other and everybody does it once in a while, knowingly or unknowingly! People love watching Big Boss and Big Brother but cant take it if they are being watched!
    Spying, Tehelkas and Sting operations are the words of the day!
    However I guess the truth is out there and u just cant stop it....
    Nice writing sibicha. Do go through my posts and let me know your thoughts!

    ReplyDelete
  2. Very well researched article. These days no one get time to reflect, to ponder over oneself. We are surrounded by technology that makes it almost impossible to expect privacy anywhere. The anti privacy government always asks - why do you want privacy? What do you have to hide? If you have nothing to hide then why do you fear out intrusion?

    What a sad world we live in!? People think we need privacy only to hide stuff! Only a sick mind will think that way. I think "sick" unfortunately is the new normal! Very soon we wont be able to run away to the himalayas also! There will be an airtel board welcoming you to the "unspoiled" himalayas!

    ReplyDelete
  3. Excellent article!! But it is also true that people are interested more into the private affairs of others. That's why when there is a sting(!) operation is done or shown by a TV channel of any Govt Official or Public figures which may be very private affairs like having sex with any partner with consent also being watched with great interest. Eg. Nityananda, where starlet never complained that she was forced to do it but police are running a case against the victims rather than taking up the case of driver(?) who has snooped in to their privacy.

    ReplyDelete
  4. It started by the super-power on a small scale in the beginning. Later, getting emboldened / reinforced by its success , it's circumference got enlarged year to year on specious reasoning and misleadingly innocent justification ! There is a saying 'CURIOSITY KILLED THE CAT' : used to warn of the dangers of unnecessary investigation /inquisitiveness . There is a rejoinder to the saying, CURIOSITY KILLED THE CAT: SATISFACTION BROUGHT HIM BACK ! further sir, cat has EIGHT MORE LIVES !

    ReplyDelete

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