Supreme Court should make public the suggestions made by Abhishek Manu Singhvi

Posted on September 12, 2018 by Vijayashankar Na

Yesterday, there was a hearing in Supreme Court about the RFP Tenders released by UIDAI and the objections raised on them by an MLA of TMC by name Mahua Moitra who is known as an “Aggressive” politician. The petition was argued by none other than the senior Advocate Mr Abhishek Manu Singhvi who is a loyal Congress member and also a person who has faced the trouble of black money investigation in the Mohul Chokshi/Nirav Modi case.

On the part of the respondent, the Attorney General Mr K.K. Venugopal appeared. This objection on “Social media Hub” by Mahua Moitra was the second such application as she had earlier opposed another RFP released by the I & B Ministry dated 25th April 2018. In that instance, the Supreme Court bench had made caustic remarks during the hearing which was reported in the press as ” Social media hub: E Spying like a Surveillance State says Supreme Court“.

Fearing that these remarks indicated a pre-conceived state of mind of the bench, Government of India withdrew the proposal to avoid further confrontation and did not allow the trial to take place.

Now  on 18/7/2018, UIDAI released a tender RFP titled “Request for Proposal (RFP) for Hiring of Social Media Agency of UIDAI  HQ New Delhi”  

Again another  RFP Tender was released  on 19/7/2018 titled “Request for Proposal (RFP) for hiring of Media Monitoring Agency of UIDAI HQ, New Delhi

The list of tenders can be seen here below.

It is not clear if the RFP of 18th has been scrapped and replaced with the RFP of 19th though we can go with this presumption.

The petitioner promptly approached the Court once again objecting to the RFP of 18th.  Since the Supreme Court is very sensitive to any Aadhaar related petitions and also since Mr Singhvi is a senior politician of the Congress which can raise an impeachment motion on the Judges in the Parliament the Congress party  is unhappy, the petition was once again heard on 7th September and again on 11th September on an emergent basis.

If the RFP of September 18th has already been scrapped, then the petitioner will have to file a third petition on the RFP of 19th.

The current developments in the Supreme Court does not clarify if three or atleast two separate petitions have been filed or  the discussions are continuing on the old petition only.

If the discussions are continuing on the basis of the first petition as it appears to be from the media reports,  AG need to seek fresh petitions from the petitioner rather than discussing the new RFPs based on the old petition. Supreme Court should also insist on a new petition based on the grounds relevant to the RFP of UIDAI of 19/7/2018.

Even during the current hearings, on September 7th , the bench made instantaneous comments which media was happy to report with headlines such as “SC slams UIDAI tender to conduct online surveillance”.  indicating that the bench is again pre-judging the issue before it hears the arguments of both sides.

Again, the AG was nodding his head in obedience and agreeing without any discussion that the suggestions of the Petitioner would be taken note and the RFP would be revised.

Reserved Aadhaar Judgement is casting its shadow

The way the AG is responding indicates that the fact that the judgement on constitutionality of Aadhaar has been reserved  is holding the Government back.  It is as if the Government is under a perceived threat that if it confronts the Supreme Court at this stage, an adverse Aadhaar judgement may be released immediately which is most likely to bring down the Modi Government .

Even if the judgement is not released immediately, the indication is that the judgement would go against the Government and the Court has to only decide on the timing of the release of the judgement. Just as the previous CJI went out with a bang on a hurriedly released judgement on Privacy in the Puttaswamy case, the current CJI may be holding the Aadhaar judgement as the grand finale of his term and a judgement against the Government will derive a very high praise from the section of the media which is part of the Anti Aadhaar brigade.

We can recall that one judgement against Jayalalitha was reserved and kept under reservation until it was no longer relevant for Jayalalitha and she passed away. Similarly the sensitive judgements like the National Herald case and the Ram Mandir case are being delayed until perhaps this Government exits and the more favourable Congress or a Kichdi Government comes into rule.  We can expect a similar finesse in the timing of the release of the Aadhaar judgement.

If the Aadhaar judgement goes against the Government as it appears to be likely, it will be a big blow for Mr Modi’s black money and corruption elimination drive. Consequently the corruption syndicate which may include men in high places and politicians will be extremely happy and claim that “Democracy is saved”.

It is also possible that scrapping of Aadhaar could completely break down the uneasy calm being maintained by the Government and the Judiciary ever since the friendly Congress Government went out of power and the no-nonsense Modi Government came to power.

It could even make this  confrontation an election issue and the role of politician advocates and their influence on the judiciary will be one of the main points which will have to be debated by the Indian public through the ballot box.

Some may argue that I am unnecessarily giving a political colour to this “Media Monitoring” debate. But we need to take note that the petitioner in this case is a politician and the advocate is a hard core politician and hence it is difficult to keep politics out of the  debate.

Nevertheless, let us keep the politics aside for now and  get back to the legal aspects of the debate.

Next Steps

From the information that is available in the media  (Refer: Deccan Chronicle:“Will file affidavit on UIDAI plan, Center tells Supreme Court”) it is clear that the Government has no defence argument and acting like a school boy before the head master and nodding its head on everything Mr Abhishek Manu Singhvi wants to say through the obliging bench.

What is not clear to us is that there were three RFPs. The first one was from a Government department but the other two are from a statutory body called UIDAI. Out of the two RFPs of the UIDAI, only the latest namely the RFP of 19th is relevant for discussion.

We donot know what are the suggestions that Mr Singhvi has made and what is that which Mr Venugopal will advise the Government to incorporate.

This issue cannot be settled in private discussions between the two advocates Mr Singhvi and Venugopal and in camera discussions with the judges. There is national interest involved and there should be transparency in the proceedings.

We urge the Supreme Court therefore to make public the petitions filed by Mahuta Moitra in respect of each of the three RFP s and the latest suggestions that might have been made. We also would like to know why UIDAI as an authority is not representing itself as an independent body with a Corporate identity.

The conduct of UIDAI  actually gives credence to the opposition charge that UIDAI is nothing but a mouth piece of the ruling Government and does not hold any independent operational freedom.

I would like the CEO of UIDAI to explain whether every corporate decision of UIDAI and every one of its tender documents are subject to the scrutiny of the Ministry and are not professional decisions of the UIDAI.  If this is so, he should resign and let a committee consisting of a Supreme Court judge, the politicians of the Government and the opposition to run the operations.

Why the Media Monitoring by UIDAI is a National Security Issue

As a citizen of India, I would like to place some points of view for the UIDAI and the AG to take note of when it tries to make changes to the RFP based on the suggestions of Mr Abhishek Manu Singhvi.

These views are on the basis of Information Security best practice perspective.

Aadhaar is know to have many enemies. Most of these are those who are unhappy with its ability to track black money. There are also many security professionals and Privacy activists who oppose Aadhaar because of its perceived potential for misuse. Their view point cannot be brushed aside since if Congress comes back to power, they may certainly use Aadhaar to brow beat the citizens into submission like the 1975 emergency days.

Modi may use it for fighting corruption but his control will extend only as long as he is in power but Aadhaar may continue as a system even after Mr Modi is out of office. The Urban Naxalites are trying to push him out of office as early as possible and though they may not succeed for now, there is no guarantee that the Caste corrupt Indian society may gang up against the honest performance oriented Modi and ease him off the power in the elections and bring back a Kichdi Government.

The conspiracy to oust Mr Modi is also reflecting on the opposition to Aadhaar. In fact the current proposal of UIDAI is only to scan the media about how the reputation of UIDAI is getting reflected. Actually these measures which UIDAI is suggesting is insufficient and needs to be bolstered further.

The petitioner, the AG and the Supreme Court is wrong to speculate that this “Media Monitoring” amounts to “Surveillance” and is related to Privacy infringement. It is clear that none of these people have really understood the proposal but are speaking from their prejudiced minds.

The proposal (please refer to the RFP of 19th July)  is to mainly observe what has been published as “News” in the media. It would scan

a) Print Media: All DAVP empanelled national, regional and vernacular dailies and all magazines including news magazines

b) Electronic media: All National and Regional  TV news channels

c) Digital/Online media: online news and magazines, facebook, twitter, blogs, micro-sites, social network sites etc.

The contracting agency  is expected to prepare a media monitoring report on daily basis and post it online to the UIDAI officials as per the list provided by the UIDAI (Media Division) time to time and also provide Newspaper Clippings/ Clips of Electronic coverage as and when asked for within the specified time limits.

I want the Supreme Court to clarify which of these are infringing the Privacy of Indian Citizens and their fundamental rights. This sort of reputation management exercise is a routine media relation management exercise which every sensible public facing organization undertakes and is expected to. By passing adverse remarks on these with reference to UIDAI, the Court is actually passing a judgement on Corporate Media operations and rendering their activities seemingly illegal.

Supreme Court and Mr K K Venugopal has to come to an agreement on what is “Surveillance in violation of privacy of an individual” and what is “Monitoring the reputation of an organization through the media citing”. They cannot go by the interpretation of a Congress politician and make it mandatory for UIDAI and other Corporates in this regard. If this is not challenged then every corporate media house need to re-think on their media scanning contracts and many Public Relations agencies need to close down.

The Supreme Court and Mr Venugopal seem to be confused between monitoring of public information on Facebook and Twitter with the “Private” designated messages like WhatsApp. Intruding into WhatsApp or the Private messages in Facebook will amount to Privacy infringement. But the RFP does not suggest it. It is only in the mind of Mr Singhvi and without further verification has been assumed by the Court. It is a shame that the AG has not pointed this out.

Even in the case of the I &B RFP, the confusion was created because the proposal had two dimensions. On the first dimension it was media scanning (call it monitoring if you like). On the second dimension, the RFP wanted the agency to develop a platform like the “Local Circles” (Check www.localcircles.com). Further we can say that the attempt was to create a captive communication platform between the Government and its citizens where various issues could be discussed. Monitoring this was part of the RFP.

From the news reports it appeared that the SC thought and believed that the RFP was to pry into the private messaging platforms like WhatsApp, private messages in Face book, hack into e-mails of citizens etc. This was no where evident in the proposal and only prejudiced minds could think that the RFP was exactly meant for that. It is acceptable for Mahua Moitra and Singhvi to think and act with such prejudice but the Supreme Court has to raise above such prejudice and evaluate the petition independent of the Media representation of what the intention of the Government could be. It appears so far that the bench has not applied its mind and is reacting to popular perceptions.

It must be brought to the attention of the Supreme Court that since Aadhaar is considered as one of the keys to bringing down Mr Modi and the opposition politicians and motivated hackers are engaging in attacking the Aadhaar system only to deface the reputation of Mr Modi. It is therefore not only necessary for UIDAI to understand the mood of the world opinion on Aadhaar but also engage specialists to scan the deep web to identify specific attack vectors that are being prepared by hackers to break into Aadhaar.

If the Supreme Court places barriers on UIDAI in monitoring even the public media, then UIDAI will have no courage to monitor the deep web. Hence emerging threats may go unnoticed and the responsibility for engineering such a situation may be attributed to the inability of the Supreme Court to understand the intricacies involved in monitoring a system as critical as Aadhaar.

I therefore consider that the current developments are creating a serious national security issues which even Mr Singhvi may not have recognized.  It is the duty of the Government however to bring it to the notice of the Supreme Court that it is part of the recommended Information Security  management strategy of any entity to not  only scan the media but also manage “honeypots” to gather threat intelligence. If UIDAI does not do it, then it will be failing in its duty to the nation to secure the system.

If the Supreme Court does not allow UIDAI to secure the system, then history will hold the members of the bench who are creating a situation where by UIDAI will default on their security obligations.

It is the responsibility of Mr K K Venugopal to make an effort to bring these views to the Supreme Court and let them make an informed choice. By being super obedient, the AG is not serving the interests of either the Government or the general public.

Naavi

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Surveillance and Monitoring are not the same

Posted on September 11, 2018 by Vijayashankar Na

When the honourable Supreme Court considered the issue of Section 66A of ITA 2000/8 and ended up scrapping the section as being violative of the Indian Constitution, we had raised the objection to the decision on the ground that the Supreme Court had failed to distinguish between “Publishing” and “Messaging”.

Section 66A of ITA 2000/8 was all about “Messaging” using “Communication device” and stated that if it is used for certain purposes in a certain manner, it would amount to an offence. At the same time ITA 2000/8 also had section 67/67A/67B which addressed the offence created by “Publishing” and “Transmission” of electronic information.

Under Section 67/67A/67B, publishing and transmission of “Obscene” information was an offence. Other types of publishing were not included in the section. However, since offences regarding publishing in paper form were already covered  under IPC, publishing offences related to electronic publishing could be covered under IPC read with Section 4 of ITA 2000/8.

The problem with “Messaging” was considered different since “messaging” involved a communication from one individual to another and its effect is directly on the recipient individual and could be objected to only by him. If A sends a message to B, C cannot take a view on whether it is harassing or threatening etc unless B is a minor and C is the guardian. It is B and B alone who has to decide whether the message causes him mental disturbance and has to be considered as a “harassment” or “threat” etc. What may be a loving message sent from A to  B may be misconceived by B as a harassment either because a wrong word has been chosen by A or because of any other reason.

Offence under Section 66A was therefore not at all a publishing offence though the police in Palghar and several other places wrongly considered so and filed cases under the section for publishing offences. Several lower courts continued the litigation under the premise that Twitter and Face Book, liking and tweeting or re tweeting are all “Messaging” activities and the matter had reached the Supreme Court for its view.

Not withstanding that the section 66A had been used to harass innocent web users like Aseem Trivedi, the girls of Palghar, the business rival of Karti Chidambaram etc., Supreme Court was obliged to look beyond the politics behind the police action and interpret Section 66A on the basis of law.

Ideally, it should have come to the conclusion that Section 66A is only about sending message from one person to another through a communication device and whether it was causing harassment or threat to the recipient is for the recipient alone to judge and court can intervene if necessary. It should have held that Face Book or Twitter is a “Publishing” activity and the information sent for publishing were technically called “messages” because it was short and went in a burst from the sender to the platform where it was automatically displayed. Otherwise it was actually  content in a web page which was open for view not by the recipient alone but by many and in most cases by the public.

Every web content is a similar “TCP/IP Message which goes from the sender to a server and gets displayed and it should be classified as “Publishing” and not “Messaging”.

The Supreme Court appeared to completely miss this point or did not wish to give a proper interpretation because it was blinded by the mouth watering opportunity to assert its position on upholding “Freedom of Speech” and hence declared that the issue on hand was an issue of “Freedom of Speech” and if Section 66A is allowed to remain in the statute, it would create a “Chilling Effect” etc.

All this is now history and Cyber Jurisprudents can only regret that the then Government advocates did not appraise the Supreme Court properly and remove the widely prevailing ignorance which resulted in Section 66A being ejected from ITA 2000/8  and thereby “harassment by electronic messages and spamming and phishing” went out of the coverage of ITA 2000/8.

Now history seems to be returning to haunt us and the Supreme Court is in the verge of making a mistake similar to what it did in the Shreya Singhal case. This time it is the  case of the Mahua Moitra petition against UIDAI in which instead of the “Freedom of Speech” issue, it is the “Privacy Issue” which is blinding all the people concerned.

Supreme Court has conveniently shifted the responsibility to the Attorney General (AG) and sought his help instead of scratching its own brains and come to a decision. The AG and the Government behind him are wary of the black mail that the media will launch based on false narratives and want to avoid controversies. Just a few weeks back the Government chickened out of the litigation in the objection raised by the same petitioner in respect of an RFP for media monitoring by the I& B Ministry by withdrawing the RFP which was under objection.

It would not be surprising if the Government again adopts the same strategy and forces UIDAI to withdraw the RFP. The “Chilling Effect” created by the Supreme Court through its shrill comments during the preliminary hearings blown up further by the media are too powerful to let the Government stand its legitimate ground rather than chose a tactical withdrawal.

So we can anticipate that Mahua Moitra can claim another victory.  But this will be a victory of the evil forces using black mail technique against the Government and not a victory for justice. It will be a victory of mis-interpretation of the “Privacy” right by mis-interpreting “Media Monitoring” as “Surveillance”. It will be a victory of ignorance of technology platform and failure of the Supreme Court to take the responsibility of interpreting the law.

It will once again show that the Supreme Court instead of collaborating with the Government for the benefit of the Citizens of India will be acting like an adversary asking the Government to interpret the law and then take the high moral ground of saying it is incorrect. Government should avoid this trap and ask the Court itself to interpret the RFP and guide them if it amounts to surveillance.

I wish that the Supreme Court actually uses this opportunity to legally differentiate between “Surveillance” and “Media Monitoring”.

“Media Monitoring” means watching what is published in different media vehicles about a company, about a product, about an issue, about UIDAI, about Government etc. This requires scanning of all media vehicles and if the media vehicles are online, it requires software for the purpose. It is actually the duty of every company to know what others are talking about itself and react it in a positive manner. This is “Due Diligence” under Section 79 of ITA 2000/8. It is “Prudence” in Governance.

What the petitioner is asking the Supreme Court to do is to order the Government to close its eyes to media reports and let opposition continue its fake news campaign and dis-information campaign and donot react to them.

The Judiciary is expected to be blind to public comments about itself and not get influenced. But the Government is expected to be alert to such public opinion and take corrective steps. In the past we are aware that Kings used to travel their kingdom in disguise to know what the citizens think about the King. They also used messengers to report to them about the public opinion. This was prevalent even the days of Lord Rama and during Rama Rajya.

What we are seeing here is “Aadhaar bashing” by political opponents who donot want Aadhaar to be an instrument that prevents them to hold black money and benami properties. Mr Modi is seen as the brain behind this use of Aadhaar to root out black money and hence TMC MLA who is the petitioner and the Congress worker who is the advocate are trying to beat Aadhaar with the hope that it will hurt Modi in the background. These politically motivated advocates are using all their legal intelligence in trying to convince the Supreme Court that “Surveillance” and “Media Monitoring” are synonymous.

If the Supreme Court goes by its earlier record on Section 66A, it may come out with a slamming judgement saying that the Government is causing a “Chilling Effect” through surveillance and gain some brownie points.

But I hope against hope that this will not happen and the Supreme Court shows true character, sees through the opposition game and try to treat the petition only on legal merits and not on speculation.

Surveillance is a term when  an honest citizen without any past adverse history of criminal records is being tracked and using the tracked data to harass him. Unless the tracked data is used against the person, no offence is made out and it will remain an intelligence activity in the interest of security of the state.  Section 69/69A/69B and 70B of ITA 2000/8 has necessary legal controls for such an exercise. The new Privacy law can certainly address this.

But every action of the Government cannot be called “Surveillance” and the Supreme Court cannot be expected to have a daily hearing of the petitions raised by dubious political persons and interfere with the daily functions of the Government.

There is no doubt that journalists and opposition parties can indulge in speculation  that what starts as “Media Monitoring” can become “Surveillance”. But this is speculation that cannot  be indulged in by the Supreme Court.

The Court has to wait until it sees the evidence that the Government misuses “Media Monitoring” and intrudes into the private life of citizens.  It needs hard evidence before intruding into the day to day management of UIDAI and its corporate activities.

The RFP may not be critical to the functioning of UIDAI and the Government may not lose much by withdrawing the RFP. But if this litigation takes that route, then the Government of Mr Modi will show that it is buckling under the pressure of the unfair opposition campaign. It will allow the political opponents to flood the Supreme Court with more litigation leading to the election and make Supreme Court  dysfunctional along with the Government.

If the Supreme Court pushes the Government to such a decision, it would be a tragedy.  Then the differences between the Supreme Court and the Government will no longer be speculative and will become the debate among the citizens.  This should be avoided at all costs and even the Supreme Court has a responsibility in ensuring that it does not come out as a constant threat to the Government causing a “Policy Paralysis”.

On the other hand here is an opportunity for the Supreme Court to clear the air once for all on the difference between “Surveillance” and “Watching the Citizen’s reactions to Government activity as reflected in the media”.

The way Supreme Court responds to the situation will also determine and establish that the supreme Court  is not a servant of the opposition to beat the Government at every turn creating hurdles in the operation of the Government and its agencies.

If the Supreme Court quashes the RFP, the traditional media lead by senior journalists like Shekhar Guta and Sagarika Ghosh may hail it as a ” Victory to Privacy”. The Supreme court and the judges of the bench may also  be hailed as saviours of democracy. But history will judge the judges perhaps differently.

Does the bench have the character to stand up on the side of the justice and fairplay without being bothered by the Media and political opposition which has a threat of impeachment held against the judges? or will it bat for TRP? is what is bothering conscientious citizens like me.

Let us watch the day as the drama at the Supreme Court unfolds.

If the Supreme Court agrees with the arguments of Mr Abhishek Manu Singhvi and quashes the proposed RFP of UIDAI, I will be the first person to congratulate Rahul Gandhi and his advisors that his tactics of Modi Bashing through Aadhar bashing and arm twisting of Supreme Court through the impeachment threat is working well and he may continue the same as his election strategy.

Naavi

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“Supreme Court Slams UIDAI”.. Is it a fake news created by Economic times?

Posted on September 10, 2018 by Vijayashankar Na
  • There are “Mischievous journalists” around today in the media. Some of them are considered senior journalists and include the likes of Shekhar Gupta who try to pick up wrong narratives only with a view to discredit the Government. Mr Shekhar Guta was also seen as the brain behind the Four Supreme Court judges going to the public with the “Democracy in Danger” press release.

There are also few senior advocates of Supreme Court who are active members of political parties some with dubious reputation in meddling with judicial appointments. Some of them are also members of the Parliament who threaten the Chief justice with “Impeachment” and try to create an atmosphere of fear for the judiciary to go soft on the cases in which opposition parties like Congress are involved.

It is a matter of fact that the Supreme Court takes an unreasonably long time to even hear cases like National Herald case against the Congress leaders where as is in a hurry to hold mid night hearings if the cases are against terrorists and urban Naxalites because influential advocates are moving the petitions. I will not be surprised if the Supreme Court does not hear the National herald case until the 2019 elections are over despite Dr Subramanya Swamy trying his best.

The public are confused on why the Supreme Court is more concerned on the rights of the people who belong to the Tukde Tukde Gang rather than those who are on the otherside of the political divide.

We are concerned that Supreme Court should preserve it’s reputation as the last resort for justice in India acting without bias and within the parameters of the role assigned to it under our constitution.

In the recent days, two instances related to the “Social Media hub” have come before the Supreme Court and in both cases, it appears that the members on the bench have passed some comments which have been picked up by the mischievous journalists to create a narrative as if the Government is making a blunder and Supreme Court is trying to save the country’s democracy by intervening.

We would like to highlight why this narrative is wrong and request that Supreme Court to avoid them being used as a tool to adversely affect the Governance of the country by the political opponents.

In our previous article on the “Social Media Hub” proposed to have been created by the I & B Ministry, we had indicated how the comment made by one of the judges at the time of admission led to the Government to withdraw the proposal itself.

The result was neither to the credit of the Government nor to the credit of the Supreme Court because it showed that both the Government and the Supreme Court could be blackmailed into taking decisions without a proper trial.

In this case, even the Attorney General should be considered as having failed in his duty to properly explain the issue and remove the misconceptions of the Judges which were further compounded by the Government withdrawing the proposal itself.

Mr Ravi Shankar Prasad, the honourable minister also seems to have erred in this case. The team of advisors available to the MeiTy seems to be incapable of putting across the Techno Legal issues properly for the executive to take the right decisions.

As we have pointed out, the purpose for which such “Social media Hubs” can be created and perhaps are needed to be created is for “Monitoring the Media for information” and not for “Arm twisting the media”.  Just as the Police and the intelligence gather information, a corporate (in this case the Government) has to also keep watching the Cyber space for information that is floating around itself so that its own reputation is not damaged and its own name is not used to commit frauds.

It is possible to argue that availability of information can be misused but this cannot be the speculation under which the Supreme Court can pass its judgements.

In the last month we have also highlighted how the names of a former Chief Justice of India, along with the Current President of India and an Union Minister in the PMO have been used for a suspected scam and despite this being brought to the attention of the relevant persons, no action seems to have been taken to prevent the public from being mislead through such an exercise.

It is a standard practice in the Corporate sector that their public relation cells monitor the print publications, the TV media as well as the social media to find out what is the positive and negative reporting about their activities that is getting published. In case of stock market sensitive companies, if any report is published, it is even necessary to respond both to the public as well as to the regulatory agencies whether the news is correct or wrong.

As part of the “Due Diligence” under Section 79 of ITA 2000/8, we normally recommend companies to undertake such activities particularly when  similar looking domain names are registered for committing frauds.

This is called “Reputation management Exercise” and the Supreme Court needs to be aware of this.

I donot credit the petitioners like Mahua Moitra who are political workers of parties like TMC whose objectives are well known to understand the difference between “Media Monitoring” and “Media Control”.

But senior advocates like Mr Abhishek Manu Sighvi or Ranjeet Rohtgi should be more intelligent and informed and if they are arguing with the Supreme Court that the I&B ministry’s social media hub and now the UIDAI proposal to monitor the media are attempts to gag the media, then they are dishonest and are misleading the Supreme Court.  If they are really thinking that the measures of UIDAI or I&B ministry are for media control, then they should produce evidence of misuse and make a case out of it.

If information available on Google search, on platforms like Twitter or Facebook (with public view settings) or on open blogs or online news papers are monitored with a specific search engine, then that does not amount to “Curbing the freedom of speech”. It is perfectly legitimate for the Government or UIDAI to monitor the content which are in public domain and in fact as a citizen of India I consider that it is a part of the necessary duties of the Government.

Any judicial interference in this space would amount to interference in the law and order preservation responsibility of the Government of India.

In the case of the I&B ministry, the petitioners projected that “WhatsApp” will be monitored. I did not find evidence of this in the scope of work described in the RFP document.

Now emboldened by  the media effect of comments passed by Judges during admission stage in the presence of the Press which are twisted and  published  with wrong headlines to create “Fake News”, Madam Mohua Moitra has filed another petition, this time against UIDAI taking objection to their releasing a tender proposal for setting up a Social media hub to monitor the online media about what is being written about UIDAI.

I draw attention to the RFP released by UIDAI which is the subject matter of the petition filed by Mahua Moitra  S/D/W/ Thru:- Dwipendra lal Moitra, 74, Judges Court Road, District Alipore, Kolkata, West Bengal, naming the Union of India through the Secretary of the MEITY and the UIDAI as respondents. The petition has been filed by advocate Ranjeeta Rohatgi under Case No W.P. (C) No 000916/2018 dated 02/08/2018.

Last Friday the 7th September 2018, the petition came up for hearing before a bench comprising of CJI Dipak Mishra, AM Khanwilkar and DY Chandrachud.

Economic Times reporting on the hearing reported with a head line “SC Slams UIDAI tender to conduct online surveillance”.  The report is shown below.

The report is attributed to a comment made by Justice Dy Chandrachud who is quoted as saying “You are trying to do indirectly what we told you cannot do directly”.

In the earlier case against I&B ministry, the same bench is quoted as commenting “The Government wants to tap Citizen’s WhatsApp messages”. It is not clear where from the judges got this information because it was not part of the RFC under question. Either the Judge was making a personal unsubstantiated and unrelated comment or the publication was publishing a fake news. It is for the Bench to check with Financial Express why the bench was reported to have made such a statement.

Similarly, in the current case, Economic Times says “Supreme Court Slams UIDAI”

Has Judge Chandrachud “Slammed UIDAI?”  or

“Is it a fake news created by Economic times”

is a point that needs to be sorted out. If Judge Chandrachud had raised a question to UIDAI to clarify, the report should have been clear in representing the context and tone. But by using strong words like “Slamming” and attributing it to the Supreme Court itself, Economic Times has created fake news and there is a need to flag such headlines and bring the persons responsible to book.

Mr Abhishek Manu Sighvi who is more a servant of the Congress party rather than the servant of the Court  (who he is supposed to be) made a reference to the previous case of the I&B ministry and has sought to draw a parallel perhaps suggesting that in the earlier case since the Government withdrew like a coward, it has admitted guilt and hence even in this case the Government should withdraw.

The Attorney General who meekly surrendered the ground in the last instance Mr K.K.Venugopal perhaps has no clue on what he should do and will run back to the Minister Mr Ravi Shankar Prasad who also seems to be confused on what action is to be taken.

Had the AG and the Minister responded properly in the earlier instance, today it would not have put them on a spot.

Now it is necessary for them to defend both the current instance (UIDAI) as well as the earlier instance. (I&B Ministry)

Judge Chandrachud and CJI Dipak Mishra are also part of the bench which has reserved the judgement on the main Aadhaar case and the Government is afraid that if they rub them on the wrong side, the larger battle will be lost. We are therefore seeing that the Supreme Court has created a “Chilling Effect” on the functioning of the Government and even before the Election is to be announced and code of conduct has to come into play, the Supreme Court is imposing its influence in paralyzing the Government into inaction.

For the Government, there may be political reasons to lie low and let the Supreme Court act in whatever manner it deems fit so that Government is not adversely impacted by an adverse judiciary.

But it is a well known principle that if you give into an extortionist once, you will be hounded again and again. Because the Government withdrew from the battle  in the I&B instance , Government will now have to face this complaint against UIDAI  and later they may also face a complaint against the I& B ministry itself.

Hence this trend has to be checked and it is in the interests of the citizens of India to ensure that the Supreme Court realizes where it is going wrong.

I therefore request the Supreme Court to appreciate

“Monitoring what is being published in different media vehicles is a legitimate activity for any individual, corporate or Government. This should not be faulted and not adversely commented to force the Government to change its administrative actions under threat.”

If there is any evidence that the Government is indulging in any illegal activities, the Court can very well intervene, post the occurrence of such an event. Court should not intervene in routine tenders of the Government on a speculative basis with a wrong reading of the tender document or worse still not reading the tender document.

I now draw the attention of Mr K.K. Venugopal and Mr Ravishankar Prasad to kindly refer the Court’s attention to the “Scope of Work” indicated in the tender which is reproduced here:

a. The Agency shall conduct a comprehensive media search on daily basis and present an update report within prescribed time limits in soft copies on appropriate news reports and content with regards to UIDAI, Aadhaar and other related issues as per the requirements of UIDAI. Hard copies of specific news reports/clippings/tracks/content should be provided on demand to UIDAI within the time period specified.

b. The Agency shall also conduct a comprehensive media search on daily basis and present an update report within prescribed time limits in soft copies on UIDAI’S campaign through print, audio video mediums.

c. The summary of daily reportage with regard to print media along with the published clippings should be sent in .jpeg/.pdf format.

d. The Agency shall provide daily update on electronic/web/digital/ Media Monitoring tracks/clips and pendrive of the same shall be provided on demand within the specified time.
e. The update must be a detailed report covering the entire gamut of media that will includes but not limited to, as per UIDAI’s specifications:

i. Print:

a) All DAVP empanelled national, regional and vernaculars dailies (English, Hindi and regional languages).
b) All magazines including news magazines: weekly, fortnightly and monthly/bi-monthly issues.

ii. Electronic: all National and Regional TV news channels.
iii. Digital/Online/Media Monitoring: Online news & magazines, facebook, twitter, blogs,micro sites, social network sites, etc

I would like the  Government to highlight  that by no stretch of imagination, this activity indicated in the scope of work can be considered as “Media Surveillance”. If some corrupt political minds think so and raise objections, it is not possible for the Government to take cognizance of such objections nor the Supreme Court should take cognizance.

The background of the petitioners and the advocates arguing the case is well indicative of their motive and the Supreme Court has to be objective in its evaluation of the petition and dismiss it in the first place. By admitting such flimsy petitions, the precious time of the Court is being wasted.

Additionally by letting media create fake news based on the innocuous comments and questions raised during the conversation in the Court which is a perfectly legitimate exchange of thoughts between the Court and the Servant of the Court (if the role is being played honestly).

If the Government does not defend its position in this case, it will have an adverse impact on the Corporates also since any Public Relation exercise involving systematic monitoring of news by any Company would be termed as a violation of Privacy of citizens and should be considered punishable under the Personal Data Protection Act 2018 (proposed).

I therefore request Mr K K Venugopal and Mr Ravi Shankar Prasad not to succumb to political doubts about what media will write if the RFP is justified. Media consists of motivated writers like Shekhar Gupta and Sagarika Ghosh and will write negatively whatever the Government does. Kindly Ignore and proceed.

Naavi

 

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Social Media Hub… Was the Supreme Court mislead by the political canvas

Posted on September 8, 2018 by Vijayashankar Na

The Supreme Court is the ultimate hope for justice in India and deserves to be respected and supported.

But in recent days, it appears that Supreme Court is spending a disproportionate share of  its time in resolving political issues and policy issues rather than addressing the citizen’s needs. The special treatment shown to the petition against the arrest of the Naxal sympathisers  of the Bhima Koregao agitation who were allegedly plotting the assassination of the Prime Minister of India, has attracted criticism of a differential soft treatment to Naxal sympathizers and unless this trend is checked, the Supreme Court  is in the danger of losing  some of its respect in the eyes of the common citizens.

Sometimes, the comments made by judges during the hearings get blown up in the media and projected as if it is the final judgement. The Court does not seem to exercise proper control over such motivated reporting of the proceedings creating misconceptions in the public posing a challenge to Governance.

After the unprecedented Press Conference by four senior judges commenting that “Democracy was in danger”  the judges have by their own actions painted themselves as having a political leaning of their own. Now with the change in the Chief Justice with one of these judges taking over as the Chief Justice just before the next election, there will be a higher level of public scrutiny of the actions of the Court. After all, the same judges justified the press conference stating that Citizens need to be aware of certain goings on within the Supreme Court management in the interest of democracy and now they should also be open to the scrutiny of  the fairness of their decisions.

If the Supreme Court has to retain its respect amongst the citizens, it is necessary that the judges display an extraordinary sense of restraint when admitting petitions against normal Government actions filed by the political opponents and also passing adverse comments before hearing out the evidence.

The case of the “Social Media Hub” proposed by the Ministry of Information and Broadcasting which was withdrawn by the Government was an example of how the Supreme Court can interfere in the normal functioning of the Government by just passing strong adverse comment during preliminary hearings at the time of admission of a petition.

In the case of the proposal for setting up of the Social Media Hub which was challenged by a TMC MLA, the comment passed during the hearing by one of the Judges was reported to be “the proposal will be like creating a surveillance state”

If we look at the Financial Express report, it clearly indicates that “Supreme Court Says..” and calls the proposal “E Spying”. Has the Supreme Court taken any objection to this type of reporting? …which is more or less repeated in many other media publications also?

Should not the Supreme Court have asked the Journalist to clarify that it is not the statement of the Supreme Court but only an observation or a question put to one side such as “Is it not amounting to surveillance”?..etc. Has the Supreme Court at this stage gone through the RFP in detail and heard the explanation of the Government?…

Without giving an opportunity to the Government to explain its stand for which the Court is bound, the Court should have avoided jumping into conclusion and not allow the Press to report the matter as if the Court has made up its mind.

If this is allowed, why should there be any trial at all? and in what way this “Expression through Comments” different from “Media Trial”?

It is necessary for the Supreme Court to seriously think about its own conduct in such cases and if any journalist has mis-reported, it should be objected to by the Court itself.

However, this requires the Court to monitor what the media is saying about itself  and on specific matters under trial.  Such monitoring means, scanning the public media vehicles to observe what comments have been made. This is not “Surveillance” of the Citizens of the country.

The Supreme Court failed to recognize that there is a difference between “Surveillance over people” and “Scanning of media” before arriving at the conclusions on the social media hub and its objectives.

The Social Media hub proposal was nothing but creating a set up which could scan the online media including Twitter kind of social media to know what is being published. If such publications are subject to legal action in terms of defamation etc., then there is nothing wrong in the Government or any individual or a company monitoring them.

The business calls it as “Reputation Management”. It is necessary for Supreme Court to understand the term “Reputation Management” and how it is done by the industry. If the means used is unethical or in violation of privacy, objection can be taken to the specific methods used. But it was not prudent on the part of the Supreme Court to flag the “Media Monitoring Exercise” as “E-Spying or Surveillance”.

The petitioner was Mahua Moitra, of TMC and neither the party nor the person has an immaculate reputation themselves and the advocate representing them was a Congress leader Mr A.M.Singhvi. The Supreme Court  ought to have considered the background of the petitioner before making judgemental comments and allowing it to be carried by the media as if it is the final view of the Court.

It is possible that political persons make unsubstantiated allegations as part of their political agenda but the Court should stick to evidences and not accept political allegations and pass comments to be reported in the media.

Going by the report of the Financial Express, it is quoted that the bench said “ The Government wants to tap Citizen’s WhatsApp messages”. I wonder where from they got this idea that the Government wants to tap WhatsApp messages from out of the evidence available before it.

I suppose that the petition was filed on the basis of an RFP a copy of which is here.

If we look at the scope of work in the RFP, the following media vehicles have been indicated.

Twitter, You Tube, Google+, Instagram, LinkedIn, Flickr,Tumblr, Pinterest, Playstore, eMail, News, Blogs, Forums, Complaint Websites.

There is no “WhatsApp” in this RFP at all and if the Supreme Court just took the petitioner’s word for it, then it has let itself be mislead by the politically motivated petitioner.

Out of the social media vehicles indicated in the RFP, the only questionable inclusion is eMail. A clarification could have been asked on what it means and the Court could have ordered its removal. Some of the other media mentioned here have “Private” and “Public Settings” and what a user indicates as “Public” is what a media monitoring agency can monitor.

If there is any attempt to break into “Private” messages or eMail, then it would amount to an offence under Section 66 of ITA 2000/8 as “Unauthorized Access” and neither the Government can ask for it nor the service provider can give it. Any prudent service provider responding to the RFP would have pointed out that “EMail and Private messages are out of scope of the service provided”.

Once the information is in public domain and is collected, what software is used to monitor them is left to the intelligence of the service provider. As long as the data analysis is restricted to “Profiling of the general trend on public response to various Government initiatives” and not “Profiling the behaviour of individuals”, the proposal would even go through the current Personal Data Protection Act 2018 (Draft). Privacy infringement would arise if there is profiling of individuals and not otherwise.

One disclaimer that “Monitoring would be restricted to only such circumstances where there is no violation of law or privacy of an individual”, would have taken care of all the concerns which the Supreme Court would have on the matter.

Instead of showing patience to get the views of the Government, the members of the bench appeared to have been unduly influenced by the weight of the counsel representing the MLA and made harsh comments which were not warranted.

It is tragic that Government did not want to contest the observations of the Court and yielded to the wishes of the political opponents by withdrawing the proposal. Perhaps the Government was not confident that a fair and unbiased view could not be taken by the Court in a surcharged  political atmosphere which had left a threat on the judiciary in the form of impeachment motion and softened the judiciary.

In the process, Government expressed its own no-confidence on the highest court of the land and this should be actually considered as an undesirable offshoot of this incident.

In many of the matters concerning the Internet activities, even the senior counsels on either side are not necessarily well informed and hence they are unable to take a principled stand. In this case also as in the earlier incident of Section 66A scrapping, the Government Counsel did not have the self confidence to argue with the Court that their observations were wrong and contested the case to the logical end with an assurance that if the Court wanted any modifications to meet some concerns, it could be accommodated.

Unless the Supreme Court as well as the Attorney General are able to have a reasoned debate based on the points of law and not get swayed by the media reports and the politically motivated advocates and petitioners, and come to practical solutions of Governance, the Citizens of the Country will consider that there is a fight going on between the Supreme Court and the Government .

When cases like National Herald take endless time, Cases against Jayalalitha are shelved until the death of the accused, while cases against terrorists are taken up in the middle of the night, the general perception of the common man is to consider that the Court has some concerns of its own in discharging its duties.

This is not a good perception for the Court to build.

We anticipate more such instances in future as the election day approaches. We appeal to the Supreme Court to take suitable steps to ensure that such a perception is avoided.

Naavi

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PDPA 2018: Is Data Localization related to Privacy?

Posted on August 31, 2018 by Vijayashankar Na

[This is in continuation of earlier articles on PDPA 2018]

There is a strong opposition to the proposal in PDPA 2018 about the Data Localization requirement which has already been discussed in the earlier articles.

There are a few specific questions that are coming up in the discussion about Data Localization, namely

 “Is Data localization has any relation to Privacy”? ..

“If only a copy is being maintained in India and another copy is anyway going to be maintained elsewhere, how does it provide more security”?

” What is the meaning of a Serving Copy”?

I am sure that different view points will prevail on some of these matters but I would like to place my personal views on these.

 “Is Data localization has any relation to Privacy”?

According to the diktat of the Supreme Court in the Puttaswamy judgement, Privacy Right is a fundamental right in India. There is therefore an obligation for the Government to take all measures to ensure that the Privacy of an Indian Citizen is protected.

To repeat what we have said earlier, “Privacy” is an “Individual Preference” of a person on what makes him feel “left alone”. What is “Privacy” for one is “Not Privacy” for another. What is Privacy for a person at one time is not Privacy for the same person at another time. This being the nature of Privacy and it being a matter of  individual preference and choice, it is difficult to provide privacy protection by a law applicable to all.

What we are therefore doing is to focus only on “Information Privacy” meaning that we give control to the data principal to determine how some information can be collected, processed and shared. The entire exercise is therefore only related to “Personal Data Protection” and nothing else. To call this exercise as “Privacy Protection” is perhaps a misnomer but we need to put up with the situation as there may not be an alternative.

In this “Personal Data Protection Approach” to “Privacy Protection”, we need to define what is “Personal Data” and “What kind of protection we should provide”.

In order to design a guideline for such data protection, the PDPA 2018 defines data in different categories namely “Personal Data”, “Sensitive Personal Data”, “Critical Personal Data” and also “Personal Data exempted from some restrictions” for reasons of “necessity” and “strategic interests of the State”.

Coming specifically to the Data Localization, it is felt that if the Government of India needs to protect the personal data of an individual then it should have the control on the personal data. If I send my personal data to some unknown person in Timbaktu and expect the Government of India to take responsibility for its protection, it will be an unreasonable expectation.

Therefore it is reasonable for the Government to propose that “Data Shall Remain In my control” and this translates into the “Data Localization” in the Act. The industry however looks at only the commercial aspect of the requirement and thinks that any change from the current scenario may involve additional cost and therefore they donot want Data localization. If Cost is the only criteria, let us appreciate that the Privacy Protection itself imposes a cost and if there was no PDPA 2018, there would be no cost.

The industry is behaving in a strange fashion by first fighting with the Government for the legislation and now trying to stall its implementation by irrelevant arguments on data localization.

Recognizing this opposition perhaps, Government has actually diluted the Data Localization principle by providing that only the “Sensitive Personal information” is subject to strict data localization. The “Critical Personal Information” will also be subject to similar strict data localization but it will be restricted to some specific categories that the Government may have to notify. On the other hand the “Personal Information” which is not considered sensitive can continue to be processed and stored any where except that one “Serving Copy” has to be kept within the boundaries of India.

This need for local storage is restricted to data that is originating in India or is being processed in India and should therefore first be stored here and then a copy forwarded outside.

The Government has also been considerate in not insisting that the entire processing has to take place in India since only a “Serving Copy” needs to be retained. The processing can still take place elsewhere.

Thus Government is trying to yield to the industry pressure and allowing the cross border outflow of personal information for which it has prescribed under Section 41 the various means such as standard contractual clauses, adequacy of protection in a given country or sector, or upon specific consent and also when there is a “Situation of Necessity”.

The provisions are therefore very flexible and perhaps too flexible for hard core privacy activists.

The objections raised on this ground therefore lacks conviction.

“If only a copy is being maintained in India and another copy is anyway going to be maintained elsewhere, how does it provide more security”?

This is the genuine grievance of a hard core Privacy Activist and needs to be addressed through a proper system of approving of countries on “Adequacy” principle, incorporation of “Standard clauses” and “Informed Explicit Consent”.

The Data protection Authority should be expected to take necessary measures in this regard.

” What is the meaning of a Serving Copy”?

The meaning of “Serving Copy” can be interpreted in any manner based on our expectations. I feel that the intent is to ensure that it should mean a current live copy which is dynamically updated with every transaction and not a back up copy.

Since the Act applies only for data which originates from India, the local server copy can be the first instance of the data which then can be sent outside for back up storage.

Where there is a need for processing abroad, the local server should be the gateway through which the data goes out and it should return to India after processing. The facility outside India should work like a “Processing System” and not a “Processing cum storage system”. After the processing the data can be received back in India and stored here. A back up of this stored copy can be sent outside for back up storage if required.

If any company adopts a different process then they should satisfy the authorities on “Unfailing Synchronization” so that the copy in India is always the latest copy from which further transactions have to take place. The Data Protection officer should take care of this during his impact assessment.

(P.S:. As said earlier, this is only one opinion and it is possible that there may be alternate opinions also. I welcome sharing of any views and comments on the above)

Naavi

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PDPA 2018: Privacy Activists and RTI Activists fight with each other

Posted on August 31, 2018 by Vijayashankar Na

[This is in continuation of the earlier article on PDPA 2018]

There were three major criticisms against the PDPA 2018 (draft) which was presented by the Srikrishna Committee. One was on whether Aadhaar Act was to be amended. Second was on “Data Localization”. The third major objection was raised in respect of the proposed amendment to RTI Act 2005.

According to this report in dnaindia.com  RTI Activists in Mumbai have started a campaign against “Amendments to the RTI Act through the proposed Data Protection Bill” because they believe that this will ensure that officials will not be held accountable and transparency will be affected. A RTI activist named Mr Bhaskar Prabhu has been quoted as stating “As per data protection, it seems they have suggested changes to 8 (1) (j) or strike it odd altogether. If they take that stand and data protection has an overriding effect, then all information will be termed a personal and will not be provided,”

Another activist Mr Shailesh Gandhi has reportedly started a campaign for people to call up law makers and states “”The more serious amendment to RTI Act has been proposed in the Data Protection Bill. It seeks to make Section 8 (1)(j) an omnibus exemption which could be used to deny most information where there is the name of an individual,”

PDPA 2018 proposes that in place of the current clause (j) of sub-section (1) of section 8 of the Right to Information Act, 2005 the following clause (j) of sub-section (1) of section 8 shall be substituted.

Coinciding with these views, comments made by the Central Information Commissioner Sridhar Acharyulu in a lecture in Hyderabad on the Right to Information (Amendment) Bill 2018 stating that it will weaken the Act was super imposed by the media to project as if he has a strong objection to the proposed amendment through the PDPA 2018.

However, if we observe the proposed amendment it appears that this is a propaganda launched by the motivated media to oppose the PDPA 2018.

The two versions namely the present version and the proposed version are provided below:

Present
Version		 Proposed
Version
(j) information which relates to personal information the disclosure of which has not relationship to any public activity or interest, or which would cause unwarranted invasion of the privacy of the individual unless the Central Public Information Officer or the State Public Information Officer or the appellate  authority, as the case may be, is satisfied that the larger  public interest justifies the disclosure of such information: Provided that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.

(j) information which relates to personal data which is likely to cause harm to a data principal, where such  harm outweighs the public interest in accessing such information having due regard to the common good of promoting transparency and accountability in the functioning of the public authority;

Provided, disclosure of information under this clause shall be notwithstanding anything contained in the Personal Data Protection Act, 2018;

Provided further, that the information, which cannot be denied to the Parliament or a State Legislature shall not be denied to any person.

Explanation. —For the purpose of this section, the terms “personal data‟, “data principal‟, and “harm‟ shall have the meaning assigned to these terms in the Personal Data Protection Act, 2018.”

If we study the two versions, it appears that  the proposed amendment is cosmetic and tries to replace the words

“..cause unwaranted invasion of Privacy of an individual…unless the Central Public Information Officer or the State Public Information Officer or the appellate  authority,  is satisfied that the larger  public interest justifies the disclosure of such information “

with the words

“likely to cause harm to a data principal, where such  harm outweighs the public interest”

There does not appear to be any ground to attribute all the motives that the Press reports to have assigned in their reports.

I request Mr Sridhar to clarify if he has any view on this specific amendment proposed by the Justice Srikrishna Committee. It is possible that the other RTI activists quoted in the DNA report might not have studied the bill and might have made an off the cuff remark based on what the journalist might have told them about the proposed bill. If so, they also need to clarify.

It is regrettable that certain sections of the media appear to be hitting out at PDPA 2018 without specific reason. It appears that they have objection to whatever Modi Government does or does not do. First they said there is no Privacy Act in India and now they donot want the Act to be passed. I wish that these Pseudo Data Protectionists should be stopped from spreading mis information about the PDPA 2018 and the Press Council should seek explanation from these journalists on the basis on which they are writing such motivated articles.

It is because of such unscrupulous journalists that Social Media is being relied more than the traditional media which situation is being exploited by the malicious individuals to spread fake news and further blame the Government for its inability to control fake information.

There appears to be a fair amount of “Fake” information in the traditional media itself working under the cover of “Freedom of Press”. This needs to be checked by “Ethical Journalists” who should come together to weed out the bad elements.

If these fake journalists are not stopped, they will prevent the PDPA 2018 from being passed in the next session of the Parliament and then they will lobby with the Supreme Court to release the Aadhaar judgement to strike it down since the Government has failed to pass the Privacy Bill and further attack Mr Modi during the next election for his inability.

Thus we are seeing the playing out of the 2019 election politics in the criticisms of PDPA 2018 that are surfacing now.

Naavi

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