American businesses that sell surveillance products and services could refuse to serve Indian government if they choose to follow the due diligence guidance released by the US State Department and undertake a human rights review recommended in it. Of the 22 laws and policies that the State Department has highlighted as red flags that make a surveillance product susceptible to human rights abuse, India has enacted at least 14 of them. These include mandatory SIM registration, curbs on free media, persecution of dissidents, tracking people's online activities, and a nationwide facial recognition programme amongst others. However, the key point to remember is that the document — officially named as the Guidance on Implementing the UN Guiding Principles for Transactions Linked to Foreign Government End-Users for Products or Services with Surveillance Capabilities — is not a legal or regulatory requirement under the American law. It is meant to guide businesses that do not require US government’s authorisation for export but still want to carry out a human rights review. What products are included in the guidance? It covers all products or services that have intended or unintended surveillance capabilities that include the ability “to detect, monitor, intercept, collect, exploit, preserve, protect, transmit, and/or retain sensitive data, identifying information, or communications concerning individuals or groups”. It includes sensors, biometric identification, data analytics (social media analytics software, predictive policing systems), internet surveillance tools (spyware, penetration testing tools, jailbreaking tools, etc.), non-cooperative location tracking (products used to track people’s locations without their knowledge and…
