Govt’s Social Media Analytics Tool Illegal & Unconstitutional: IFF
On 30 May 2018, the Internet Freedom Foundation (IFF) sent a legal notice to the Ministry for Information and Broadcasting over the ‘invitation to tender’ recently issued for a ‘Social Media Communication Hub’. The government has requested contractors to submit proposals by 16 June to create software that can be used to collect information on individuals from their social media accounts and internet usage, and target them with personalised campaigns to maintain positive opinions.
The IFF, a group of volunteers that advocate for a “free and open internet”, have argued in their notice that the Hub the government plans to set up will become a tool to conduct surveillance of individuals and spread disinformation, which violate our fundamental rights to privacy and free speech. As a result, they have requested the Minister for Information & Broadcasting Rajyavardhan Singh Rathore to intervene and immediately halt the process. If not, they will approach the courts.
The IFF rose to prominence in 2015 for their SavetheInternet campaign urging the protection of net neutrality. The group includes lawyers like Apar Gupta and Raman Jit Singh Chima, as well as technical experts like Nikhil Pahwa and Rohin Dharmakumar.
Why the Hub Is Problematic
The notice expresses concerns about the following features of the project that the government wants to set up:
- Monitoring of Social Media: The software to be created is supposed to be able to collect “digital chatter” all major social media platforms, which can be used to create a 360-degree view of people “who are creating buzz across various topics”.
- Predictive and Sentiment Analysis: The data collected by the software is supposed to be analysed with the purpose of moulding public perception in a positive manner, inculcating nationalistic feelings and improving perceptions of India around the world.
- Automated and Manual Reports: The Hub is supposed to generate daily reports about what’s trending on social media, and district-level operatives are to send in reports on local sentiment from each of India’s 716 districts.
- Knowledge Management System and Private Data Centre: All the data collected is to be stored in a single database, which will include profiling of conversations and individuals.
- Response Management: The platform is supposed to have the ability to “disseminate content”, “create and publish content on various social media platforms of Ministry of I&B” and the district-level operatives will need to conduct “social media publicity”.
- Execution through manpower services: The contractor who will be chosen to run the Hub is not just expected to create software, but also provide the manpower to maintain and operate the system – including the 716 district-level operatives.
Why the Hub is Unconstitutional and Illegal
The IFF have identified the following grounds on which they believe the government’s project would result in constitutional and legal violations:
No Legal Basis
There is no statutory instrument or legislation which can be used to justify the creation of the Social Media Communication Hub. According to the request for proposal, the Hub is supposed to fall under the government’s ‘New Media Cell’. However, the New Media Cell was set up by a notification in 2013, not a law, and the activities of the Hub are beyond the scope of that notification as well.
The request for proposal expressly says that the Hub is to conduct mass surveillance on social media, and even goes so far as to say information from emails is to be collected. The IFF have argued that this cannot be a legitimate state goal, and does not satisfy the tests of proportionality and necessity required for any such programme as per the Supreme Court’s landmark right to privacy judgment in 2017. There is no clearly defined purpose, no distinction between legal and illegal content, or any safeguards in the process.
The aim of building a 360-degree view of influencers on social media, and the maintenance of a database, violate multiple aspects of the fundamental right to privacy, and includes no protections for individuals or their data.
Chilling Effect on Freedom of Speech
The IFF’s notice points out that the Supreme Court has previously held in the 1997 PUCL case that telephone tapping without some specific justification on security grounds would violate the right to freedom of speech, since people who are constantly under the watch of the government would feel threatened and would not be able to speak freely.
The Hub’s proposed plan to monitor social media and emails of all individuals, without warrants or any reason, would have a similar effect and would therefore be unconstitutional.
Misinformation and Propaganda
The fifth and sixth features (see the section above) of the Hub allow for the posting and publishing of content on the basis of surveillance, which is vulnerable to abuse since there is no legislative backing or purpose restriction. This capacity to spread one-sided information, misinformation or disinformation falls foul of legal principles set out by the Supreme Court in the Cricket Association of Bengal case.
India still doesn’t have a data protection law, and the government’s plans for the Hub include no oversight or accountability in any case. In addition to this, the specifications for the software include the ability to erase and manipulate logs, which would allow even misuse of the Hub to be protected from scrutiny.