Drop the phone checking, draft surveillance curbing orders

Context:

The hype around the Pegasus case was of allegations that the ‘personal communication devices of a range of people in India, including journalists, civil society activists and politicians were targeted illegally using the Israeli-made spyware.

India and rest of the world:

• As far back as 1986, in the Wiretap Act in the United States, the law prohibited private agencies from engaging in surveillance. When government seeks permission to do surveillance it must apply to a Federal Court, and only when there is “no other option”. Thirty-six years later, in India, corporate houses snoop on activists and competitors at will and collect huge dossiers on “persons of interest”.
• The Patriot Act 2001 of USA enacted to counter international terrorism also required court approval.
• The United Nations contributed to the development of a legal framework evolving the “no secret” rules. For a government to say that it needed to do surveillance in “national interest” was not good enough at all.
• As the European Court of Human Rights held, “a secret surveillance system can undermine or even destroy democracy under the cloak of defending it”.
• Court warrants were required to obtain information, the intrusion was to be supervised by independent bodies, records of all surveillance were to be meticulously kept, and notices were to be given to those under surveillance.
• The principle of maximum disclosure would govern surveillance law. Journalists were recognised as being particularly vulnerable.
• Practice 6 of the UN Good Practices on Oversight Institutions includes the setting up of a civilian independent institution. Practice 7 empowers this institution to carry out an investigation and have unhindered access to information. Practice 9 empowers individuals to complain to a court.

The Indian scene:

• In India, authorities authorise 9,000 interception orders every month, and these orders are not issued by courts but by police officers.
• Facial recognition technology (FRT) that is found to be violative of human rights in several countries is routinely resorted to in India, with hardly any protest. Both the European Union and the United States stopped facial recognition sometime ago.
• The Citizen Lab, a digital surveillance research agency based in Canada, published a report (“Planet Blue Coat: Mapping Global Censorship and Surveillance Tools”) saying “Blue Coat devices are being used around the world … we found these appliances in India”.

Blue Coat devices are what is known as a “dual-use” technology, because they can be used both to defend corporate networks and by governments to censor and monitor the public’s internet traffic. The appliances can see some types of encrypted traffic, block websites or record website traffic.

• The UN General Assembly “Report of the Special Rapporteur” 2013 has said, “Government of India is proposing to install a centralised monitoring system that will route all communications to the central government allowing security agencies to bypass the service provider, thus taking surveillance out of the realm of judicial authorisation and eliminating accountability on the part of the State”.
• In 2013, The Guardian published a news article placing India at fifth position among countries where the largest amount of domestic intelligence was gathered.
• In 2018, the Justice B.N. Srikrishna Committee submitted a report to the Government which stated that “much intelligence gathering does not happen under the remit of the law, there is little meaningful oversight and there is a vacuum in checks and balances to prevent the untrammelled rise of a surveillance society”.
• In 2019, a news and opinion website quoted a former Home Secretary as saying that he was aware that the Israeli tech firm, NSO, had sold spy software to private firms and individuals in the country.
• Instead of wasting time inspecting mobile phones and coming up with hardly any conclusion, the Supreme Court of India could do well to follow the extensive precedents developed abroad and enable binding orders that severely curtail the unlawful surveillance going on in India by the Government and private parties alike.

The Pegasus controversy:

About Pegasus malware:

• Pegasus is a spyware developed by an Israeli firm, NSO Group, to infiltrate smartphones — Android and iOS — and turn them into surveillance devices.
• It is used as a tool to track criminals and terrorists for targeted spying and not mass surveillance.
•  NSO Group has affirmed that it sells the software only  to governments.

A spyware is any malicious software designed to enter into target computer device, gather user data, and forward it to a third-party without user’s consent.

• Pegasus exploits undiscovered vulnerabilities or bugs, which means a phone could be infected even if it has the latest security patch installed.
• In 2016 smartphones were infected using a technique called “spear-fishing”: text messages or emails containing a malicious link were sent to the target and it depended on the target clicking the link.
• By 2019, Pegasus employed zero-click installation without requiring any interaction by the target. It could infiltrate a device with a missed call on WhatsApp and could even delete the record of this missed call, making it impossible for the user to know they had been targeted.
• Pegasus also exploits bugs in iMessage, giving it backdoor access to millions of iPhones. The spyware can also be installed over a wireless transceiver (radio transmitter and receiver) located near a target.

Journalistic investigation into Pegasus:

• The Pegasus Project, an international investigative journalism effort, revealed that various governments used the software to spy on government officials, opposition politicians, journalists, activists and many others.
• It said the Indian government used it to spy on around 300 people between 2017 and 2019.
• A case was filed in the Supreme Court accusing the government for indiscriminate spying. The government refused to file a detailed response to the allegations made by the petitioners citing national security as a reason.

The court’s stand:

• The Supreme Court (SC) has underlined three key imperatives:

1. The right to privacy of citizens
2. Freedom of the press including the right of journalists to ensure protection of their sources
3. Limits on the usage of national security as a shield by the government to block disclosure of facts related to citizen’s rights.

• The court cited the Ram Jethmalani v. Union of India 2011 to say that the Government should not take an adversarial position when the fundamental rights of citizens are at threat.
• The court said that the Union of India may decline to provide information citing security of the State or other specific immunity under a specific statute but they must prove and justify the same.
• It has set seven terms of reference for the committee such as who procured Pegasus and whether the petitioners in the case were indeed targeted by use of the software, etc.
• The court has also asked the committee to make recommendations on a legal and policy framework on cyber security to ensure the right to privacy of citizens is protected.

The constitutional debate:

• The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21. This was held by SC in Aadhar case/ Puttaswamy judgement of 2017.
• The expression “freedom of press” has not been issues in Article 19 but it is comprehended within Article 19(1)(a)
• The 2017 judgment clarified that any invasion of privacy could only be justified if it satisfied three tests aka the Triple Test Rule:

1. Legality: The restriction must be by law
2. Proportionality: It must be necessary (only if other means are not available) and proportionate (only as much as needed)
3. Purpose: It must promote a legitimate state interest (e.g., national security)]

Justice SriKrishna Committee:

• This committee was set up to draft a bill on a data privacy law in India which we still lack. It proposed a set of provisions widely acclaimed to be progressive for citizens.
• In 2018, the Srikrishna Committee on data protection noted that post the K.S. Puttaswamy judgment, most of India’s intelligence agencies are “potentially unconstitutional” because they are not constituted under a statute passed by Parliament.
• However, union government introduced a draft data protection bill which had many provisions opposite of what the original committee has recommended. It led to a controversy and parliamentary debate following which government has recently withdrawn it. It has proposed to come up with a better bill in next parliamentary session.

Way forward:

• Government must ensure that it enacts a data privacy law in parliament which, while ensuring national security, also takes care of citizens’ concerns about data protection- not just from the corporates and hackers, but also from government agencies.
• India must not turn into an Orwellian State in the guise of national security.

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The age of hyper-lapse consumerism

Introduction:

• Consumption is an important element of human civilisation. The success of modern economies is dependent on, and measured a great deal by, the level and nature of consumption.
• From the hunter-gatherers whose consumption was survival-centric to the millennials for whom consumption is about fulfilling aspirations, the nature of consumerism has seen tremendous shifts.

Changes in consumption:

• The notion of consumption has changed and today, several streams of thoughts co-exist. Since the industrial revolution, the rise of the middle class in developed countries has led to a growth in consumption.
• While on the one hand, the acquisition and display of material wealth are acceptable and even appreciated by a large section of society, another stream of thought advocates minimalism.
• The COVID-19 pandemic brought shifts in consumer behaviour. Lockdowns brought more people into the e-commerce fold. Due to the economic impact of the pandemic, the world witnessed a shrinkage of demand. But post-pandemic recovery and suppressed consumerism is now leading to ‘revenge shopping’.

Hyper-lapse consumerism:

• Modern-day consumerism is not only about wanting more but also wanting it fast. We are in an age of ‘hyper lapse consumerism’ — there is a clamour to be the fastest to reach the consumer.
• The ubiquitous growth of the Internet and the rise of e-commerce have fuelled hyper lapse consumerism, which refers not only to the kinds of products being sold but also to the ease with which consumers order them and the speed at which such products are delivered.
• According to a study by Invesp, 56% of online consumers between the age of 18 and 34 years expect the goods they have ordered to be delivered on the same day, whereas 61% want their packages even faster — within 1-3 hours of placing an order.
• After e-commerce companies made delivery their core competence by putting boots on the ground and even drones in the sky, the competition to deliver faster and better is shaping consumer behaviour and industry patterns.
• Recently in India we saw food and grocery delivery companies announcing 10-minute deliveries for consumers in select cities. This is being done by strengthening the hyper-local logistical network, leveraging predictive algorithms, process optimisation and, in some cases, providing incentives and disincentives for delivery partners.
• Example are companies like Blinkit, Big basket, Zomato etc.

Impacts of ‘instant delivery’ services:

• When the 10-minute delivery plan was announced, policymakers and experts raised concerns that delivery professionals might resort to reckless driving and put themselves and others at risk in their rush to stick to timelines.
• Indiscriminate work pressure can lead to fatigue, mental health issues and other health issues among delivery professionals. In an industry which offers little to no social security for gig workers, this could have serious consequences.
• A NITI Aayog report, ‘India’s Booming Gig and Platform Economy’, suggests extending social security for gig and platform workers, including paid sick leave, health access and insurance, and occupational disease and work accident insurance.

Gig economy:

• Gig Economy is the emerging economic model wherein firms hire workers on a part-time flexible basis rather than as full time employees. They’re also known as freelancers who work in a piece-meal rate.
• The Code on Social Security, 2020 defines gig workers as those engaged in livelihoods outside traditional employer-employee relationship.
• The workers work as freelancers or independent contractors. They generally have flexible and adaptable working hours based on individual preferences.

Gig workers:

The jobs in gig economy typically require interacting with the users through online platforms like the drivers engaged with cab hailing platforms (Uber, Ola etc), delivery workers engaged with restaurant aggregators (Zomato, Swiggy etc), or tutors delivering lectures over online platforms. The workers engaged in such jobs are called Gig Workers.

Gig Workers can be broadly classified into two categories —

(a) Platform workers are those whose work is based on online software apps or digital platforms.

(b) Non-platform gig workers are generally casual wage workers and own-account workers in the conventional sectors, working part-time or full time.

Size of Gig Economy in India:

• According to a 2021 NITI Aayog Report, India’s gig workforce currently stands at 77 lakh (2020-21). It is expected to rise to 2.35 crore by 2029-30. By 2029-30, gig workers will form 4.1% of India’s total workforce.
• According to a report by ASSOCHAM (Associated Chambers of Commerce and Industry of India), the gig sector has the potential to grow to US$ 455 billion by 2024.

Advantages of Gig Economy:

• Benefits to Gig Workers: Gig workers have the flexibility to work according to their convenience and availability. There are less restrictions related to fixed work-hours, attendance etc. Workers have some flexibility in choosing their work hours. Some workers take gig jobs on a part-time basis to supplement their income from regular jobs.
• Cost Efficiencies for Companies: The companies are able to save costs on hiring full time employees. They are able to provide services more economically to the users.
• Jobs for Low-skilled workers: Gig economy provides jobs to many low and semi-skilled workforce with minimum conditions.
• Gain Experience: It enables the young undergraduates to gather valuable work-experience before joining formal employment.
• Economical: Many gig workers work remotely and save costs (e.g., on office commute).
   

Disadvantages of Gig Economy:

• Job Security: Most gig workers work on a day-to-day basis, and can be terminated from their jobs without any notice. Many gig workers were laid off during the pandemic
• Lack of Benefits: Gig workers have no social security benefits like ESI, PF or insurance. They have no paid leaves so failure to work means loss of wage. Gig/Platform workers are not covered in all the labour codes, specifically the ‘Code on Wages, 2019’ which prescribes minimum wages for various jobs. There is no wage regulation and the workers are at the mercy of aggregators.
• Work Conditions: Most workers have to put in long hours of work in order to make the job viable. A large components of workers’ wages consists of incentive which coerces workers to work for long hours. This reduces the advantage of ‘flexible work’ in gig economy. There is lack of transparency on incentive structures.
• Hidden Charges: Many aggregators/platforms are burning cash by giving large discounts to users in order to capture larger market share. Companies try to sustain this by charging high commissions on gig workers.
• Low Bargaining Power: Platform workers have little or no voice. Technology has tilted the power and bargaining scales strongly in favour of the platform companies.
• other issues like (a) Frequent and random changes to the commission structure, (b) Delays in payments, (c) Deliberate miscommunication of earnings potential to attract gig workers; (d) Lack of access to basic amenities etc.

Gig economy and Hyperlapse consumerism- advantages:

• According to a report titled ‘Unlocking the Potential of the Gig Economy in India’, by Boston Consulting Group, India’s burgeoning gig economy has the potential to provide up to 90 million jobs in the non-farm economy alone, generate over $250 billion in the volume of work and contribute 1.25% to the country’s GDP in the long term.
• At the core of the gig economy growth are behavioural shifts among consumers. Along with being fast, shopping has become more impersonal. The local kirana store owners have paved the way for ‘delivery buddies’ and OTPs. Many people don’t buy groceries on a monthly basis any more; they buy them in a more piecemeal fashion. Often, they prefer getting meals delivered at home instead of going out.

Way forward:

• Going ahead, there are two paths. Either we continue with hyper lapse consumerism or shift back to a more laid-back delivery model. In the rush to come up with better value propositions for the customer, businesses often tend to ignore the social, ethical, environmental and personal costs of business decisions.
• These decisions get influenced by, and further influence, consumer needs and behaviour. While advertising serves a positive purpose by educating consumers, much attention has been focused on the question of whether advertising is manipulative.
• However, putting the onus entirely on either businesses or on consumers would be unjust. For businesses, the pursuit of valuation, revenue, profits, and the pursuit of equity, social good, good health and environment need not always be mutually exclusive.
• For consumers too, the pursuit of convenience and amusement should not make them ignorant towards the hardships of many.
• While much has been written about the regulatory and technical aspects of 10-minute delivery, we must also analyse it from an ethical, social and behavioural perspective.
• Both consumers and businesses should be mindful of the wide-ranging consequences of their actions, and 360-degree analysis of business decisions must be undertaken for the larger good.
• After all, technology gives us leverage to solve many problems, but only wisdom can tell us which problems are worth solving.