Tl;dr
Today, we sent a legal notice for a tender released by BECIL for procurement of fact verification and disinformation detection tools which will lead to mass surveillance of social media users. In its current form, this tender and the proposed project are an unconstitutional and illegal violation of privacy, freedom of expression and freedom of association of citizens, and it must be halted immediately.
Background
On 13.05.2020, Broadcast Engineering Consultants India Limited (BECIL) released a tender for procurement of ‘Solution and Services related to fact verification and disinformation detection.’ As per the tender documents, the scope of work for the project includes:
- Detecting and analyzing coordinated disinformation campaigns.
- Identifying key influencers behind disinformation and their geographical location.
- Carrying out link analysis between different entities spreading fake news.
- Sentiment analysis for large scale disinformation.
- Monitoring activities of individuals who upload disinformation across social media platforms.
- Rapid verification of claims and images through an Artificial Intelligence and machine learning based tool.
- Creating corrective responses with accurate facts.
- Establishing an archive for long term retention of data.
These proposed features raise concerns about mass surveillance and could have a chilling effect on online speech. Due to advancement in technology and decrease in marginal costs, it is now possible for governments to monitor the social media activity of millions of citizens without their knowledge or consent. The kind of social media monitoring tool that BECIL seeks to procure would collect and process personal data of users from social media platforms and then use automated technology like artificial intelligence to aggregate, organize and analyse the large amount of data collected. While we share the government’s concern about misinformation which is a genuine and serious problem, we maintain that mass surveillance of millions of Indian internet users without any legal safeguards is not a proportionate solution.
Digital India should not become a Digital Panopticon
In today’s world, people share a large amount of information on social media platforms about their political views, religious beliefs, sexual orientation, gender identity, mental health etc. For this reason, some companies like Facebook and Twitter prohibit automated scraping of data from their platform without prior written permission of the company. When individuals share sensitive personal information with their friends, family and followers, they cannot reasonably foresee that such information will be collected from their social media profile by government agencies and stored indefinitely.
Further, there exists a real risk of harm because sensitive personal information collected from social media platforms will be processed by opaque algorithms to build a probabilistic profile of the individual which can make the person a target for law enforcement agencies. In this context, it is pertinent to note that any profiling based on social media activity is particularly susceptible to misinterpretation because the use of likes, shares or hashtags may not represent endorsement. Therefore, individuals could be wrongly classified as disinformation spreaders by algorithms.
Finally, the data which is used to train artificial intelligence and machine learning tools will determine what information is considered true or false by these tools. Therefore, if the training data is flawed or biased, it could lead to discriminatory censorship of particular groups.
Violation of Fundamental Rights of Internet Users
Legality: At present, India does not have a data protection legislation in place to regulate tools such as those sought to be procured by BECIL via the tender. In the absence of any underlying data protection legislation, Indian internet users do not have any mechanism to seek deletion, modification or correction of their data, remedy for misuse of their data or remedy for miscategorization by opaque algorithms. The Hon’ble Supreme Court has consistently held that restrictions on fundamental rights can only be imposed through a statutory provision or rule. Therefore, in the absence of a general data protection law, a specific legislation must be enacted to provide a legal basis to the tender.Privacy: In 2017, a 9 judge bench of the Hon’ble Supreme Court in K.S. Puttaswamy v. Union of India (2017 10 SCC 1) unanimously held that privacy was a fundamental right under the Constitution of India. In fact, Kaul J.’s opinion in the case explicitly recognized that there may exist a reasonable expectation of privacy even over social media posts in the following words: “If the posting on social media websites is meant only for a certain audience, which is possible as per tools available, then it cannot be said that all and sundry in public have a right to somehow access that information and make use of it." Collection and processing of public social media posts is also subject to regulation as noted by the European Court of Justice in Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (SABAM) v. Netlog NV, where the Court held that “the injunction requiring installation of the contested filtering system would involve the identification, systematic analysis and processing of information connected with the profiles created on the social network by its users. The information connected with those profiles is protected personal data because, in principle, it allows those users to be identified (see, by analogy, Scarlet Extended, paragraph 51).”
Freedom of Speech & Expression: The fundamental right to freedom of speech and expression is guaranteed under Art.19(1)(a) of the Constitution of India, and the Hon’ble Supreme Court in **** Shreya Singhal v. Union of India (2015 5 SCC 1) has held that overbroad restrictions which have a chilling effect on online speech are unconstitutional. The chilling effect of surveillance technologies has also been recognized by the Hon’ble Supreme Court in PUCL v. Union of India ( 1997 1 SCC 301) where the Court held that telephone tapping could infringe freedom of speech and expression since people may feel reluctant to speak under the watchful gaze of the government. Mass surveillance of social media activity will lead to self-censorship by individuals and especially deter disclosure of information by journalists, activists and whistleblowers. Freedom of Association: Social media platforms have helped individuals collectivize and form communities around their shared professional, political, social or cultural interests. Pervasive social media monitoring would undermine the right to form such associations which is guaranteed by Article 19(1)(c) of the Constitution of India. This is especially relevant since the tender states that vendors must provide a tool which can detect coordinated campaigns and carry out link analysis between different entities.
It is worth noting that in 2018, BECIL had sought to create a more ambitious version of this project in the form of a Social Media Communication Hub (Read more here). Thankfully, the Social Media Communication Hub was scrapped after public outrage and litigation before the Supreme Court. The present tender must also meet the same fate since it suffers from similar problems but this will required sustained advocacy by citizens and civil society groups to ensure we do not sleep walk into a surveillance state.
Important Documents
- Legal Notice to BECIL dated 19.06.2020 (link)