The MidWeek Essay: Condemning the Indian government's totalitarian surveillance

Published by MAC on 2020-07-29
Source: Rosa Luxemburg Stiftung

All in the name of the Pandemic

Revisiting the Panopticon and the Synopticon: An inquiry into the naturalisation of totalitarian surveillance in the name of the COVID-19 pandemic

Gopal Krishna

Rosa Luxemburg Stiftung

24 July 2020

Ideas and ideologies can kill.[i]Derived from two Greek words that together mean "all-seeing", the panopticon was initially conceived as a prison designed to ensure the perfectly complete surveillance of all prisoners. Panopticon refers to “the few seeing the many”. In this architecture, all those who have been turned into sub-humans by being categorized as prisoners are placed under the surveillance of few wardens. Its reincarnation in digital form has made it capable of enveloping the entire human population and to subject it to eternal surveillance. This scale of the idea has vastly increased. Its merger with the idea of the synopticon is paving the way for a 360Ëš surveillance of every imaginable human activity.

Synopticon refers to “the many seeing the few”. Unlike the panopticon, in the synopticon a small “risk group” is put under the constant gaze of a large section of the population simply because they are considered to belong to the “risk group”. For a long time, the synopticon has been deemed the reverse of the panopticon. But this does not mean the two cannot work in tandem. After profiling through panoptic mass-surveillance, the “risk group” is singled-out and subjected to a synoptic regime. The latter is also used to legitimize the former in the public sphere through a supposed kind of ground truthing that sets the agenda of “what people think about” and “how they think about it”.

The emergence of computers, smartphones and social media platforms like Facebook as an “information panopticon and synopticon” has enabled the work and behaviour of individuals to be subjected to eternal scrutiny. Individuals and groups can always be watched but they cannot see the eyes that watch them. The poor and “risk groups” are being profiled for the umpteenth time by identification technologies. The cumulative effect of both gazes is generalized disempowerment: human agency is eroded, leading to an inability to assert human personhood amidst manufactured hostile discourse.

Automatic identification technologies and applications are facilitating stigmatization, discrimination, and physical assaults on “risk groups”. A growing convergence between those who own and profit from these technologies and the state is creating a technopolis where the curtailing of natural rights through ever greater panoptic and synoptic scrutiny and the manipulation of public behaviour is deemed natural and normal. In the present era, the panoptic gaze focuses on the entire human population but its specific focus on minorities, migrants, and their defenders is particularly disconcerting, especially as their fate is also what awaits the rest of society.

In the name of the pandemic

In India, the current crisis is being exploited for commercial profit in a manner akin to fishing in troubled waters with the help of donors to the ruling parties and the owners of big data technology companies.

Amidst the Covid-19 public health disaster, the Indian government has decriminalized numerous corporate crimes by an ordinance[ii] amending the Companies Act, 2013. In fact, over 700 notifications, known as delegated legislation, have been issued by the federal government alone. This has been done in a situation where legislative oversight has been non-existent. During the pandemic, executive work has been rushed through the legislature with no concern for the well-being of legislators, who were ordered by the Chairman of the Rajya Sabha (the upper house of parliament) to remove their masks against their wishes.[iii] Besides the central notifications, state governments have also passed hundreds of such notifications in the absence of any legislative scrutiny. These unilateral legislative measures are likely to have deleterious impacts on the natural rights of present and future citizens.

In one of its most worrying decisions, the government of India launched AarogyaSetu [“Healthy Bridge”], an application for disease surveillance which is supposed to connect citizens with health services and provide information regarding Covid-19. The government claimed that people could use it to assess their risk of being infected with Covid-19. It was launched on 2 April 2020.

The government claimed that the use of AarogyaSetu was voluntary, but now downloading the app has been made mandatory. India’s Ministry of Home Affairs ordered that its use be mandatory in order to obtain “100 percent coverage”. It made not using the app an offence. The strategy of declaring something voluntary and then making it mandatory has already been deployed in the case of 12-digit unique identification (UID)/Aadhaar numbers assigned to the residents of India. The Money Bill, which makes its usage mandatory, was found to be constitutionally questionable by a 5-Judge Constitution Bench of the Supreme Court of India.

AarogyaSetu does not factor in the salutary provisions of the proposed Digital Information Security in Healthcare Act, which makes anonymization and de-identification of patients’ data mandatory.

Responding to its launch, leader of the biggest opposition party in the Lower House of Parliament, Rahul Gandhi observed, “The ArogyaSetu app is a sophisticated surveillance system, outsourced to a private operator, with no institutional oversight—raising serious data security & privacy concerns. Technology can help keep us safe; but fear must not be leveraged to track citizens without their consent.” In doing so, he articulated the concerns expressed in a joint statement to the Prime Minister’s Office against the mandatory use of AarogyaSetu, which was endorsed by 45 organizations and more than 100 individuals.

The enforcement of AarogyaSetu has also been challenged in the High Courts, which have issued notice to the government in the matter. Justice BN Srikrishna, former Supreme Court of India judge and Chairman of the Expert Committee on Data Protection Framework has labelled it “utterly illegal”. It is apparent that such applications are being pushed by e-commerce and platform economy czars who profit from the monetization of sensitive personal information. The Supreme Court of India’s verdict has emphasized that while the government may collect and process the health data of individuals during epidemics to design appropriate policy interventions, such data must be anonymized.

But the AarogyaSetu app could be misused for profiling and mass surveillance even after the COVID-19 outbreak is over.[iv] It has increased the vulnerability of the communities, migrants, and their defenders who are profiled. Profiling facilitates the emergence of a police state. Here, ‘profiling’ means any form of automated personal data processing where such data is used to evaluate certain aspects of the life of a natural person, in particular to analyse or predict aspects of that natural person’s performance at work, their economic situation, health, preferences, interests, reliability, behaviour, location, or movements.[v]

Such profiling, which is based on the apparent rationality or system rationality of the proponents of panoptic and synoptic technologies, is founded on intelligence and predictability inferred from metadata.[vi] Profiling has resulted in violence and discrimination based on religion, ethnicity, caste, and class.[vii] There is anecdotal evidence that reveals how existing databases like the census[viii] and electoral roll, which are in the state’s possession, have been leaked to assist the perpetrators of mass violence. Such violence also aims at the disruption of the economic activities of minorities, migrants, and those who are portrayed as being of a different race, religion, ethnicity, from a different region, or holding different beliefs. Resentment against the relative economic prosperity of supposed “non-natives” or those in “risk groups” manifests when their economic activities are subjected to the panoptic and synoptic gaze.

Victim blaming syndrome

After 96 days of lockdown, as of 28 June 2020, as many as 203,051 Covid-19 active cases have been detected, 309,713 cases have been cured/discharged/transferred and there have been 16,095 deaths. This situation reveals that unplanned lockdown has not resulted in effective health outcomes. India has become one of the worst-hit nations, along with the US, Brazil, and Russia, because it is yet to learn lessons from countries which have successfully dealt with Covid-19.

The social stigma suffered by victims of Covid-19 in general and minority communities and migrants in particular has culminated in increased hostility, chaos, and unnecessary social disruption. In complete disregard of objective reason, the uncritical and unreasoned narratives that have been fostered by the ruling parties have wider ramifications. It goes beyond victims of the disease and communities which have been deviously categorized as “risk groups”.

By now it is clear that the minority communities and internal migrants who are suffering the most from the Covid-19 public health disaster were in no way responsible for the spread of the disease. Despite this it is evident that “risk groups” have been singled out for discriminatory treatment. The government has admitted that “Cases have been reported of people affected with COVID-19 as well as healthcare workers, sanitary workers and police, who are in the frontline for management of the outbreak, facing discrimination on account of heightened fear and misinformation about infection. Even those who have recovered from COVID-19 face such discrimination. Further, certain communities and areas are being labelled purely based on false reports floating in social media and elsewhere”. This is recorded in an unsigned note by the Ministry of Health and Family Welfare addressed to “all responsible citizens”. The ministry advises “all responsible citizens” to “never spread names or identity of those affected or under quarantine or their locality on social media… Do not label any community or area for spread of COVID-19. Avoid addressing those under treatment as COVID victims. Address them as ‘people recovering from COVID’”. In this way, the government has acknowledged that the stigmatization of certain communities has reached such an alarming level that it felt compelled to issue an unsigned note

Portraying victims as a “risk group” helps to cover up the inadequacies of the government’s “war” on Covid-19. The fact remains that war narratives cannot defeat public health disasters. Like the “risk group” narrative, it diverts attention from the core public policy issues. It creates a situation where the government can wield unlimited coercive power. It obscures issues of the accountability of democratic public institutions which seem to have been put in an illegitimate quarantine.[ix] It acts as a political escape route for the government’s colossal failure to recognize the Covid-19 health disaster. As late as 13 March 2020, the government kept declaring that there was no public health emergency.

There is an identifiable historical pattern in India and elsewhere wherein minority groups, migrants, and dissenters have been portrayed as “risk groups”, which serves to justify their complete subjugation. In the present scenario, mapping the vulnerability of those subjected to registration, classification, and profiling reveals that the dominant narrative in India is fostering an aggressive and intimidating public sphere wherein the “existing civil society space is fast shrinking”.[x]

Conclusion

It is significant that the proposed Digital Information Security in Healthcare Act permits the use of digital health data for epidemic control only after it has been anonymized or de-identified.

It prohibits employers from accessing the health data of employees under any circumstances. AarogyaSetu fails to comply with data protection standards because there is a lack of consent, transparency, and algorithmic accountability, besides a lack of data minimization. It is noteworthy that the terms of service for AarogyaSetu exempt the government from any liability arising out of the incorrect diagnosis of an individual’s Covid-19 status, leaving individuals at the mercy of opaque algorithms which perform risk assessment and have no remedy in the case of false positives.

Instead of addressing the fiscal needs of the health system and the social security system, the government seems intent on misleading people by promoting applications like AarogyaSetu and UID/Aadhaar. The data collected by AarogyaSetu is being integrated with other databases that can be used for discriminatory purposes. It can adversely impact citizens’ autonomy by subjecting them to permanent surveillance as if it were natural to do so.

In India, serious issues of civil liberties, privacy, and security have been dealt with in a cavalier manner, ignoring the fact that new digital technology companies are undermining all democratic public institutions. India’s leadership seems enamoured of a political order that ends up promoting the free flow of citizens’ data that enriches transnational elites and widens inequalities. The Covid-19 pandemic appears to provide an excuse for India’s social policies to be guided by the biometric and genetic determinism and eugenic thinking of party donors and the owners of unaccountable and undemocratic economic institutions.

The impropriety in the use of vacuous terms like identification and authentication with regard to “risk groups” and individuals leads to a decline of an objective sense of truth. “This whole practice exemplifies the hegemony of instrumental reason wherein ‘reasonable’ things are things that are obviously useful” through “classification, inference, and deduction… the abstract functioning of the thinking mechanism.”[xi] Usefulness is deemed to be whatever works in favour of one’s self-preservation. Such instrumental or subjective reason adversely impacts human consciousness because it entails an artificial rupture of our interrelatedness, of the fact that the human being manifests in its experience of its inseparability from other human beings and nature.[xii]

Unless the structure that has emerged from this rupture is comprehended, it is possible for people to become eternally subjugated by the vast amounts of data created by information, communication, identification, and surveillance technologies. The offences committed by deploying new automatic identification technologies to determine, capture, and subvert the public sphere and civil society are yet to be categorized as a new class of offences in a comprehensive remedial justice framework.

In The Origins of Totalitarianism (1973), Hannah Arendt writes,“Comprehension does not mean denying the outrageous, deducing the unprecedented from precedents, or explaining phenomena by such analogies and generalities that the impact of reality and the shock of experience are no longer felt”. It entails an unprejudiced and attentive facing up to reality as it is and resisting it. An ecosystem has emerged where there is an unprecedented, data-driven power asymmetry between ruling parties and their donors, and unsuspecting and innocent communities. Its adequate comprehension can be helpful in rectifying the abuses that occur during the pandemic.

References

[i] Sabina Alkire, “Development: A Misconceived Theory Can Kill”, Oxford Poverty and Human Development Initiative, Working Paper 11, University of Oxford (2008).

[ii] Pinak Ghosh, “Companies Act: 58 offences decriminalised”, The Telegraph, Calcutta, 18 May 2020.

[iii] “Masks make their debut in the Rajya Sabha, Chairman objects to it saying ‘it is against rules‘”, Press Trust of India, The Week (18 March 2020).

[iv] A joint statement to the Indian Prime Minister’s Office.

[v] EU General Data Protection Regulation, 2016/679, 27 April 2016.

[vi] Metadata harvesting refers to “indiscriminate and disproportionate data collection” regarding all aspects of a person (telephone number, Internet Protocol address, biometric information, demographic details, authentication records, transactions, etc). Such a rationality is callous towards the truthful inquiry into the human condition and confines itself to subjective–instrumental inquiry. It is blind to the far-reaching implications of the permanent storage of metadata. These technologies are being used without adherence to the principles of consent, purpose and storage limitation, data differentiation, data exception, data minimization, substantive and procedural fairness, safeguards, transparency, data protection, and security. Metadata is a soft target for internal, external, domestic and foreign attacks. It admittedly creates the biggest risk of a single point of failure.

[vii] Justice K.S.Puttaswamy (Retd) v Union of India, Surpreme Court of India, 24 August 2017.

[viii] Historically, a census enumerates and records information about an entire population, including individuals, businesses, farms. etc. Now it has expanded to include the gathering of data, usually by national authorities in the name of the National Population Register, from the civil registers of a person’s life events, such as birth, marriage, or death, their health and tax records, or trade flows, with the ultimate goal of combining all preexisting databases through the use of electronic and biometric unique identifiers.

[ix] If you visit https://www.icmr.gov.in/index.html, the home page of the official website of the Indian Council of Medical Research, India’s peak body for the formulation, coordination, and promotion of biomedical research, it provides a URL labelled “Visit the Main Website”. Following this link takes you to https://main.icmr.nic.in/. Here you find the URL for “Information on COVID-19”: https://www.icmr.gov.in/. Clicking on this link, you are presented with a message that reads: “You are about to proceed to an external website. Indian Council of Medical Research has no control over the content of this site. Click OK to proceed.” If you click “OK”, you are taken to https://www.icmr.gov.in/. This appears to be abnormal. Coincidentally, the India unit of the US Boston Consulting Group (BCG) has noted that it does not “talk about what we are doing with any client, anywhere. But in the Ministry of Health, they have acknowledged there is a team that is working”.

[x] Guiding Document, Adopted in the First National Convention of People’s Commission on Shrinking Democratic Space, 21–22 May 2016, New Delhi (August 2016).

[xi] Max Horkheimer, Eclipse of Reason, Oxford University Press (1947).

[xii] Bin-ky Tan, “A Chinese Conception of the Nature of Man”, Main Currents in Modern Thought 31, No. 5 (1975), p. 145-148.

Gopal Krishna is a researcher and writer on the subject of earth, economy, science, justice, and the role of communicating myriad forms of data and narratives. He formally studied literature, philosophy, journalism, public health, and law, and is a trained researcher, lawyer, and science journalist.