TOPIC- FACING ETHICAL DILEMMA: PUBLIC SAFETY VS INDIVIDUAL PRIVACY

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The Context: Facial recognition technology (FRT) is rapidly developing and gaining widespread use in recent years. Its ability to identify individuals has been used in various fields, from law enforcement (Policing in Jaipur) and security (DigiYatra App at the airports) to marketing and social media. While the technology has the potential to revolutionize these fields, there are also concerns about its impact on privacy and human rights. This article analyses the ethical dilemmas involved from the UPSC perspective.

Mass surveillance: Mass surveillance refers to the widespread or large-scale spying or monitoring of vast groups of people, often carried out by governmental agencies, but also by corporations, especially in the context of collecting and storing large amounts of personal data. This surveillance can be executed through various means, including but not limited to:

• CCTV Cameras: Positioned in public areas to monitor movements and activities. These can be used in public spaces such as restaurants, metro rails, music festival or protest gatherings etc.
• Digital Communication Monitoring: Intercepting emails, text messages, and other forms of digital communication; for instance, Internet Surveillance (Tracking online activities, including browsing habits, search histories, and social media interactions), phone tapping etc.
• Drones and Aerial Surveillance: Using drones to monitor areas and track movements from the air.
• Biometric Surveillance: Using facial recognition, fingerprinting, and other biometric techniques to identify individuals.

SURVEILLANCE STATE AND ORWELLIAN STATE

A surveillance state refers to a government that engages in extensive monitoring of its citizens. In such a system, authorities use technology, laws, and other mechanisms to keep track of the activities, communications, and movements of individuals, often in the name of national security or public order. The surveillance might involve CCTV cameras, phone tapping, internet activity tracking, etc.

While surveillance states justify these actions as necessary for crime prevention and national defense, critics argue that they infringe upon individual privacy rights, curb freedoms, and can lead to an environment where citizens feel constantly watched and controlled.

An “Orwellian state” is derived from George Orwell’s dystopian novel “1984,” depicting a totalitarian regime characterized by pervasive governmental surveillance, public manipulation, and oppression. In such a society, the government exercises control over every facet of public and private life.

Citizens are constantly monitored, history is rewritten to suit the state’s narrative, and independent thought is suppressed and deemed criminal.

This term, in modern discourse, is used to describe any state action reminiscent of the novel’s oppressive practices, particularly those involving surveillance, misinformation, and suppression of dissent.

A “surveillance state” and an “Orwellian state” share overlapping features, but they are not synonymous. A surveillance state primarily refers to a government or regime that engages in extensive monitoring and data collection of its citizens. The motives can vary from ensuring national security to maintaining political power, or both. While an Orwellian state, on the other hand, is broader in its oppressive measures. Though pervasive surveillance is a key feature, an Orwellian regime also encompasses information and history manipulation suppression of dissent and independent thought propaganda dissemination to control and shape public perception.

INSTANCES WHICH MADE THE WORLD AWARE OF THE MASS SURVEILLANCE IN PRESENT TIMES

In 2013, computer expert and former CIA systems administrator, Edward Snowden released confidential government documents to the press about the existence of government surveillance programs. Snowden argued that he had a moral obligation to act. He gave a justification for his whistle blowing by stating that he had a duty to inform the public.

Since then the society as well as the technology has evolved and the potential use/misuse of the technology have become more concerning.

1. In the USA, the primary concern around facial recognition technology is the infringement on individual privacy. While there are legitimate uses for the technology, such as in locating missing persons or identifying suspects in criminal cases, critics argue that its widespread use can turn public spaces into zones of constant surveillance. There is also the issue of racial bias; studies have shown that some facial recognition systems misidentify people of color at higher rates than white individuals, leading to fears of racial profiling, wrongful arrest and other such ills.

2. In China, facial recognition technology is ubiquitous and considered a norm in society. Cameras are placed in public places, schools, and even residential areas, with the stated aim of maintaining public safety. However, this widespread deployment has serious ethical implications concerning privacy and state control.

      There is little public debate on its ethical use, largely because dissent is not well-tolerated. In regions like Xinjiang, there are reports that facial recognition technology has been used as part of a broader state surveillance apparatus to monitor and control the Uighur Muslim minority, raising human rights concerns.

3. The United Kingdom has one of the highest numbers of surveillance cameras per capita in the world. While there are regulations governing their use, including a “Data Protection Act”, concerns about public surveillance remain. Police in London and Wales have conducted trials using facial recognition cameras in public spaces to identify individuals wanted for serious crimes.

RECENT INSTANCES IN INDIA GIVING RISE TO APPREHENSIONS

1. Most recently in September 2023, the Jaipur city police have adopted Artificial Intelligence (AI) technology to monitor potential miscreants.

2. Manipur Chief Minister launched facial recognition system for Inner Line Permits in May 2023.

3. In December 2022, the government launched the app ‘DigiYatra’ which envisages that travelers pass through various checkpoints at the airport through paperless and contactless processing, using facial features to establish their identity.

4. In March 2020, the union Home Minister, Amit Shah, told the Rajya Sabha that the Delhi Police had used facial-recognition technology to identify nearly two thousand individuals as instigators of violence in the aftermath of Delhi riots. Interestingly even as there is no legal framework to regulate the use of the tool in the country, the infrastructure is already in place.

5. In 2021, 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. Such spywares not only infringes the individual rights but also raises the concerns of the legitimacy of the government of the day.

6. In Telangana, there are numerous facial recognition datasets that are being integrated into a “smart governance program,” called Samagram, which gives the state government a full picture of every resident’s life, including their employment status and other personal information. The goal isn’t only to track down criminals, but to build up a ‘360 degree view’ of every single person. This goes against the individual privacy.

PRIMARY ARGUMENTS FOR BOTH THE SIDES

In Favor of Individual Privacy

• Right to Privacy is considered a fundamental human right in many societies and is often enshrined in constitutions and human rights declarations. It’s integral to personal liberty and dignity.
• Potential for Abuse: Concentrating surveillance powers can lead to misuse. History is replete with examples where governments abused their surveillance capabilities to suppress dissent, control populations, or persecute minorities.
• Chilling Effect: Widespread surveillance can deter people from expressing themselves freely, associating with others, or participating in political activities, leading to a stifled society.
• Data Security Concerns: Accumulating vast amounts of personal data poses a risk if there are breaches, potentially exposing individuals to harm.

In Favor of Public Safety

• Protecting the public interest: The primary role of the state is to protect its citizens. If surveillance or data collection can prevent terror attacks, reduce crime, or generally ensure public safety, it might be deemed a necessary compromise.
• Changing Nature of Threats: The global rise in terrorism, cyber threats, and sophisticated crime networks necessitates advanced surveillance and data collection to protect nations and their citizens.
• Consent and Social Contracts: By being part of a society and enjoying its benefits, individuals implicitly agree to certain compromises on personal freedoms for the greater good.
• Transparency and Oversight: Proponents argue that as long as there’s rigorous oversight, judicial checks, and transparency in surveillance operations, the rights of citizens remain protected.
• Technological Evolution: As technology becomes an integral part of life, there’s an inherent reduction in privacy. Public spaces, online platforms, and commercial entities all engage in some form of data collection, making state-led efforts not significantly different.

Thinkers Perspective:

The debate between individual privacy and public safety has been a central theme in democracies around the world, especially with the rise of digital technologies and counter-terrorism measures. Though the tug-of-war between individual privacy and public safety isn’t new; it’s been a subject of contemplation for many political thinkers throughout history.

Kautilya’s views were deeply rooted in the welfare of the state and its people, and his thoughts can provide insights into the balancing act between individual rights and public safety. For Kautilya, the state’s stability and security were paramount. He believed that an orderly and prosperous state would naturally ensure the well-being of its people. While Kautilya did not discuss “individual rights” in the manner of contemporary Western philosophy, his focus on state welfare, rule of law, and individual duties indirectly touched upon the balance between public safety and individual well-being.

Thomas Hobbes, in his work “Leviathan,” opined that individuals cede some rights to a central authority (or a ‘sovereign’) to gain protection and maintain social order, which can be construed as an endorsement of state surveillance for safety.

On the other hand, John Locke, the 17th-century philosopher, argued that individuals have natural rights, like the right to “life, liberty, and property.” He contended that governments are formed to protect these rights, suggesting a boundary to governmental intrusion.

Jean-Jacques Rousseau, in his writings hint at concepts related to individual freedom. Rousseau emphasized the “state of nature” where individuals were free and independent, suggesting a form of inherent personal autonomy and space. In his “Social Contract”, while he advocated for the collective “general will” as a guiding principle of governance, he also delineated the transition from natural freedom to civil freedom, emphasizing the sanctity of individual rights within a societal framework. Thus, Rousseau’s ideas indirectly promote the importance of personal space and autonomy, concepts intrinsic to contemporary notions of individual privacy.

John Stuart Mill’s “On Liberty” staunchly champions individual freedom. Central to his argument is the “harm principle,” positing that one’s liberty should only be restricted to prevent harm to others. Mill asserted that absolute freedom of thought and expression is vital for intellectual and societal advancement, even seeing value in false opinions as they sharpen the truth through refutation. He warned against the “tyranny of the majority,” wherein societal norms could oppress individual’s as much as governmental laws. For Mill, individual autonomy was essential, not just as a right, but as a pathway to personal development and societal progress.

The Analysis:

In present times the tension between individual privacy and public safety is a pivotal debate in modern democracies. Many argue that unchecked surveillance can deter free expression and association, leading to a society where individuals constantly self-censor. There’s also the looming danger of state misuse of surveillance capabilities, historically evidenced by regimes that suppressed dissent or targeted minorities. Furthermore, the technological accumulation of personal data heightens risks of data breaches and misidentifications.

On the other side, proponents of public safety argue that the state’s primary responsibility is to protect its citizens. In a world grappling with global terrorism, cyber threats, and intricate crime networks, enhanced surveillance and data collection become indispensable tools. They contend that with robust oversight, transparency, and legal checks, it is difficult to ensure public safety without trampling on individual rights.

In this debate, balancing Locke’s emphasis on individual rights with Hobbes’s stress on collective security gives rise to ethical dilemmas, even more so in our technologically advanced age. A balanced approach requires ongoing dialogue, transparent governance, and a commitment to upholding democratic values.

The Way Forward:

• Public surveillance undoubtedly entails substantial human rights risks and can substantially undermine the right to privacy. It is thus essential that States resorting to the use of public surveillance assess the potential human rights impacts of their actions and strictly ensure compliance with international human rights law.
• Despite the far-reaching impacts of the various forms of public surveillance, adequate applicable legal frameworks are largely missing in many countries. Data protection laws are often missing, inadequate or make broad exceptions for law enforcement and intelligence services. Laws and regulations need to have clearly determined and strict limitations on the access and merging of government databases.
• General monitoring of people in public spaces is almost invariably disproportionate. Surveillance measures in public spaces should be targeted and should address a concrete legitimate aim.
• The General Data Protection Regulation (GDPR), implemented by the European Union in 2018, stands as a landmark legislation prioritizing individual privacy in the digital age. The state should have legitimate concerns to subject the citizens under surveillance for the larger good.
• In the Puttaswamy Case (2017) while holding that the right to privacy is not absolute in nature, the judgment also gave the three-fold requirement of limiting the privacy. These shall be strictly adhered to by the state until the concrete law is enacted to regulate the use of surveillance tools for public safety in the country. These are:
  • legality, which postulates the existence of law;
  • need, defined in terms of a legitimate state aim; and
  • proportionality which ensures a rational nexus between the objects and the means adopted to achieve them.
• In the Manohar Lal Sharma vs Union of India (2021) (Pegasus case), the Supreme Court set up a committee of experts to recommend amendments to the existing law around surveillance to secure the right to privacy. The need to regulate surveillance activities, especially in light of privacy concerns, backed by a judicial push in India should be a wakeup call for the government.
• The DPDP Act 2023 is a welcome step where personal data may be processed only for a lawful purpose upon consent of an individual.  Consent may not be required for specified legitimate uses such as voluntary sharing of data by the individual or processing by the State for permits, licenses, benefits, and services. It is for the government to secure such data from the thefts and unauthorized usages.

The Conclusion: As a country that is home to the largest democracy, our duty to empower our citizens towards their rights is as important as our duty to preserve national security. National security and privacy have largely been viewed as competing interests over the years; however, with the advent of technology and means of digital surveillance, protecting citizens’ information is also important. It is perhaps the best time to resolve the ethical dilemma and begin to view ‘protecting the privacy and information of citizen’s’ as a facet of ‘preserving national security’.

Mains Practice Questions:

Q.1 National security is important but it should not compromise the privacy of the individuals. Analyze in the context of the ethical dilemma between national security and the right to privacy.

Q.2 The current state of surveillance reform in India is on an uneven keel between national security and privacy. Comment.

Q.3 The recent technological developments have changed the surveillance architecture, where the tools have become more intrusive and damaging to our democratic safeguards. Discuss.