Social Media Monitoring Hub: Do We Want To Create A Surveillance State?

The Supreme Court of India has severely criticised the government’s decision to set up a social media communication hub (SMCH), observing that it will be like “creating a surveillance state”.

A writ petition filed by Mahua Moitra, Trinamool Congress MLA from Karimpur constituency, before the Supreme Court under Article 32 of the Constitution, sought to redress her grievance that the impugned request for proposal (RFP) violates her fundamental rights guaranteed under Articles 14, 19(1)(a) and 21 of the Constitution, as much as the same aims to establish a SMCH which is being set up with the clear objective of surveillance of activities of individuals on social media platforms. Such intrusiveness on part of the government was not only without the sanction of law but also infringes fundamental right to freedom of speech provided under Article 19(1)(a) of the Constitution, the petition said.

Proposed SMCH Will Create A Surveillance State

The major concerns raised by specialists in the field are:

a. The proposed SMCH aims to create a technology platform “to collect digital media chatter from all core social media platforms as well as digital platforms”. Such mass collection of data is collected right up to an individual level. It will also develop channels to help facilitate creating a 360-degree view of the people who are creating a buzz across various topics. The technology will not only collect data from social media platforms, but also from email, with specific capabilities including live search, monitoring, collecting, indexing and storage of personal data including location-based data and “meta-data”.

b. The software will be inbuilt with a crawling feature which has the ability to crawl social media and the world wide web for data mining. Crawling will cover all the major websites and social media handles.

c. The new media command room will have the ability to analyse as well as visualise large volumes of data across diverse platforms in real time.

d. The SMCH is intended to influence social media conversations. The aim is to use predictive analysis to mould public perception positively in national interest, inculcation of nationalist feelings in the masses, and improvement in India’s global branding.

e. There will also be software to measure the effectiveness of hashtag campaigns and compare the performance of a brand campaign with competitors by ingesting relevant keywords.

Constitutionality Of SMCH

The Constitutionality of setting up of the SMCH bears a question mark, as the very act of surveillance in and of itself constitutes a “restriction” on free speech and expression and does not satisfy the requirement of reasonableness. Due to the threat of monitoring each and every word uttered by an individual by the state and its agents, the individual cannot exercise its right to free speech guaranteed under the Constitution. The question whether mere surveillance constitutes a restriction on the freedoms was examined by the apex court in “Kharak Singh vs State of UP” case, which purportedly upheld surveillance by the state. The verdict was overturned in “K S Puttaswamy vs Union of India” case, which extensively deals with this question and concludes that the freedoms under Article 19 and the right under Article 19(1) (a) in particular cannot be separated from its psychological content. The right to free speech meant no value under constant surveillance of state.

The court observed:

Whether Surveillance Has Authority Of Law?

Article 19(2) provides that reasonable restrictions can be imposed by the state on the exercise of the right under Article 19(1) (a) only by a valid law. Further, it is a well-settled principle that in order to meet the requirement of law under Article 19(2), it must be an act of Parliament or state legislature or subordinate legislation under the authority delegated by an act and no restriction can be imposed on the fundamental rights guaranteed under Article 19 by executive action.

Mass surveillance as a restriction of rights under Article 19(1) (a) is sought to be mounted without any law permitting such surveillance. Therefore, setting up of an SMCH is illegal.

SMCH Activities Versus Privacy Judgment?

It is clear from the bare perusal of the SMCH project that it aims to create nationalistic feelings among individuals by customising the expression of free speech by the citizens, particularly speech critical of the government.

The Supreme Court in the K S Puttaswamy judgment elaborately discussed privacy concerns of individuals against the state at great length, while upholding privacy as an inherent and inalienable right protected under Part III of the Constitution.

Para 323 of the Justice Chandrachud Judgment said:

Thus, it amply made clear that once privacy is recognised, it refrains the state from intruding upon it as well as to take active steps to protect such privacy. Article 19(1)(a) guarantees freedom of speech and expression and it is the duty of the state to protect an individual right whether exercised by itself on social media or the ground.

Project Violates Article 14

As contemplated, the SMCH will help the government aggregate power in its hands to monitor the online activities of users, which accordingly lacks the valid authority of law. From the dimensions of Article 14, it is settled law that the placing of unguided and uncontrolled discretionary power in the hands of the executive is a violation of the fundamental right to equality under the Constitution. As the extent, nature and scope, and data collection about individuals contemplated bears no rational nexus to the purported object sought to be achieved, the move, therefore, suffers from the vice of manifest arbitrariness.

The project is intended at targeting voices critical of the government, and is expected to listen to conversations on all major digital channels, including Facebook, Twitter, Instagram, LinkedIn, Tumblr, as well as blogs and news channels.

The deployment of this project involving nearly 800 employees across 716 districts of India is to mould public perception in favour of the present establishment and to counter “media blitzkrieg” of India’s adversaries. The aggregation of such unbridled power in the hands of a single person would lead to arbitrariness.