Supreme Court petition

Trinamool Congress legislator Mahua Moitra’s petition in the Supreme Court captures a key concern with the tender — the capacity for mass surveillance. The tender, the petition points out, is seeking the ability for the ministry to “Monitor individual social media user/account”, a phrase that is used in the actual tender. The tender seeks detailed individual information about ‘influencers’ and emerging trends. “The very act of surveillance in and of itself constitutes a “restriction” on free speech and expression,” the petition argues. “If a man is shadowed, his movements are obviously constricted,” the petition quoted a Supreme Court judgement as observing.

No legal basis

The petition further argues that there is no legal basis on which the tender was issued. “Widespread surveillance amounting to restriction of the right under Article 19(1)(a) [of the Constitution] is sought to be mounted without any law permitting such surveillance,” the petition argues, saying that this alone is enough reason to stop the tender.

Chilling of speech

“While Article 21 affords an individual the personal liberty to develop to the full extent of her potential, given the changing times and the leaps made by technology and particularly the social media technology, such achievement can only be possible if the individual’s privacy in expressing her views, speeches and expression before a select audience, is respected and secured from intrusion,” the petition argues.

Defeats value of privacy

The petition argues that the government was doing the opposite of what it was directed to do in the Puttaswamy judgement that upheld privacy as a fundamental right. “Without putting in place a law to strengthen the data protection regime in the country, the Union Government has hastily proceeded to implement a project which is aimed to defeat the avowed values of privacy recognised by a bench of […] this court,” the petition said.

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Robs individual of identity

“The [Social Media Communications Hub] project robs the individual of her identity,” the petition argues. “It is clear from its self-proclaimed scope that it seeks to establish a subservient populace deprived of its natural ability to express itself.”

“It is clear that the Union Government’s understanding of ‘nationalistic feelings’ is limited to an individual’s submissiveness to the diktats of the incumbent government,” the petition argues. Strategies for ‘inculcating nationalistic feelings’ is a part of the Predictive Analysis requirements sought by the tender. “It is submitted that the entire exercise is intended at targeting voices which are critical of the government,” the petition says.

Manifest arbitrariness

The petition argues that on manifest arbitrariness alone, the Supreme Court is empowered to strike down a government policy. Pointing to the fact that a third party company will be tasked with social media monitoring in every single district, the petition argues, “The aggregation of such unbridled power in the hands of private persons at the behest of the Government reeks of manifest arbitrariness.” While the tender’s stated purpose is to oversee and assess the success of the government’s social media communications, the petition argues that the requirements detailed in the tender “bear no nexus” with that aim.

All emphasis is added.

The tender

Here are a few features of what the MIB wants from bidders, as described in the 66-page tender:

— The hub needs to create a “analyze as well as visualize large volumes of data across diverse digital platforms in real time”.
— It needs to “listen” and respond to online trends on Facebook, Twitter, Instagram, blogs, complaint websites, and email.
— On top of Indian languages, it needs to support Chinese, German, French and Arabiccontent.
— It should provide a visualization of location-based trends.
— Influencer insights should be readily available, and archives of conversations should be kept and be searchable
— Provide tools for identifying and managing crises in real time
— Crawl social media and the internet at large for ‘data mining’
— Create analytic reports and generate predictive analyses

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The document then goes on to describe, in lengthy detail, the specifications for achieving the above goals.

* Nikhil Pahwa, editor and publisher of MediaNama, is founding member and chairman of the Internet Freedom Foundation.