28 DECEMBER 2018
Snooping or saving?
Proposed rules for online monitoring should balance legitimate interest with privacy
Laws seeking to regulate online activity, especially on social media, will have to be tested against two fundamental rights: free speech and privacy. Regulations that abridge these rights tend to operate in both positive and negative ways. For instance, statutory norms relating to data protection are seen as essential to protect citizens from any breach of their informational privacy; but attempts to regulate online content are seen with suspicion. The latter category evokes doubt whether they violate their freedom of expression (as enforcement of such rules may involve blocking websites, disabling accounts, removing content and intercepting communication), and amount to surveillance that breaches privacy. Two official documents, one of them a draft proposal, that seek to introduce changes in the way rules for interception and monitoring of computer-based information are applied have caused a furore. The first was an order authorising 10 agencies under the Centre to implement Section 69(1) of the Information Technology Act, as amended in 2008, which allows interception, monitoring and decryption of information transmitted through or stored in a computer resource. The other is a draft proposing changes to the rules framed in 2011 for “intermediaries” such as Internet and network service providers and cyber-cafes. While the order listing 10 agencies does not introduce any new rule for surveillance, the latter envisages new obligations on service providers.
A critical change envisaged is that intermediaries should help identify the ‘originator’ of offending content. Many were alarmed by the possibility for surveillance and monitoring of personal computers that this rule throws up. The government has sought feedback from social media and technology companies, but it appears that even services that bank on end-to-end encryption may be asked to open up a backdoor to identify ‘originators’ of offending material. There is justified concern that attempts are on to expand the scope for surveillance at a time when the government must be looking at ways to implement the Supreme Court’s landmark decision holding that privacy is a fundamental right. Some of these rules, originally framed in 2009, may have to be tested against the privacy case judgment, now that the right has been clearly recognised. It is indeed true that the court has favoured stringent rules to curb online content that promotes child pornography or paedophilia, foments sectarian violence or activates lynch-mobs. While the exercise to regulate online content is necessary, it is important that while framing such rules, a balance is struck between legitimate public interest and individual rights. And it will be salutary if judicial approval is made an essential feature of all interception and monitoring decisions.
Battle for Dhaka
Bangladesh goes to the polls amid allegations of high-handedness by the government
Demands by the Opposition in Bangladesh for the resignation of the Chief Election Commissioner just days ahead of the December 30 parliamentary election reflect the bitter divisions that have undermined the credibility of government agencies. The Bangladesh Nationalist Party, the main constituent of the Opposition Jatiya Oikya Front, claims that 9,200 of its activists have been arrested since the election schedule was announced. The country has seen a spike in political violence, mainly targeting the Opposition. The government of Prime Minister Sheikh Hasina denies the allegations and blames the BNP for violence. Last week, Mahbub Talukdar, an election commissioner, said there was no level playing field between the ruling Awami League and the Opposition. In a report published on December 22, Human Rights Watch said that “arrests and other repressive measures… have contributed to a climate of fear”. Ever since democracy was restored in 1990-91, election seasons have been tumultuous. In the past when the BNP was in power, it had refused to step down after its tenure ended. In 1996, the Awami League led mass movements for elections, while in 2006 a military-backed caretaker government postponed the election, which was finally held in December 2008. Since then, Ms. Hasina has held power.
This time, she is seeking re-election with a formidable record in government. During the last 10 years the economy has seen a relatively high growth rate, hitting 7.8% last fiscal. Bangladesh also improved on social indicators over the past decade. While the Sheikh Hasina government takes credit for this as well as its tough stand on Islamist militancy, it faces criticism for its authoritarian turn. The passing of the Digital Security Bill and the crackdown on student protests in Dhaka drew flak even from Awami League supporters. On the other side, the Opposition is trying to channel the resentment towards the government. Khaleda Zia, BNP leader and a former Prime Minister, is disqualified from contesting as she is in prison for corruption, and the Opposition has brought in Kamal Hossain, a jurist who was a minister in Sheikh Mujibur Rahman’s government, to lead the alliance. But the Opposition’s tacit alliance with the Jamaat-e-Islami, the militant Islamist party whose registration with the Election Commission was revoked after a 2013 court ruling, has been alarming. BNP workers too have been involved in violent incidents. For the Awami League, the election should have been an opportunity to break with the history of violence and seek the mandate based on its performance. But its increasing tendency to use force against the Opposition and the violence by its party activists have already marred the election process.