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Experts question legality, lack of safeguards if ECI implements a video analytics system at poll booths

Serious concerns flow from the analytics-based profiling and monitoring of voters being considered by the Election Commission.

Following news reports of the Election Commission of India (ECI) looking to commission a video analytics-based system to monitor behaviour of voters in polling booths, Sanjeev Kumar, chairman of state-owned Telecommunications Consultants India Limited (TCIL) spoke to MediaNama about it in an exclusive interview earlier this week.

Kumar revealed that there were plans to conduct a Proof-Of-Concept (PoC) of the system at a few polling booths during the ongoing state assembly elections. Although the project did not materialise in time for the state assembly elections, Kumar told MediaNama that:

  • They would try to do PoC during the next elections
  • They will look for a private company whose expertise could be roped in to build such a system. TCIL looks after procuring and commissioning IT resources for various government projects.
  • The idea was inspired by the use of AI-based systems being used to conduct examinations.

Read excerpts from the interview with Kumar here.

However, experts have raised concerns about the impact that such a system will have on the right to vote and the safeguards that would need to be put in place. Speaking to MediaNama, Anushka Jain*, associate counsel at the Internet Freedom Foundation, and Sankarshan Mukhopadhyay, technologist and curator at OneVote, questioned whether there was a legal standing for such a system, would it ensure the sanctity of elections, and more.

What are the risks?

Chilling effect on the right to vote: The collection and analysis of behaviour, without safeguards against access by anyone outside the ECI, could “have a chilling effect on the right to vote”, Jain said. “Because voters would worry that if they are not voting in favour of the current government then they could be identified and there could be any kind of negative reaction or negative action that could be taken against them so it could lead to a violation of a fundamental right in that situation,” she added.

Lack of safeguards: In light of the IT Ministry’s Draft India Data Accessibility and Use Policy, 2022, Jain expressed concerns about how the ECI would ensure any other department will not access the data, or that it will not be breached otherwise. She also said that the development was worrying because of the lack of any regulation for such AI systems.

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“Even though we know that the Election Commission is independent, however what the issue is that because there are no safeguards in place on the other hand there are new regulations that talk about data sharing inter-departmentally and all those things,” Jain said.

Lack of legislative backing: According to the 2017 Puttaswamy judgement, which laid down three tests for privacy- necessity, proportionality, and legality, there needs to be a legislative backing to the collection and processing of such data by the ECI. Referring to the same, Jain said: “..If this is happening, there needs to be a law based on which this is happening. So, this is violative of the right to privacy judgement as well because if you’re collecting such data and processing it there should be a law which ensures there are procedural safeguards in place to prevent misuse.”

What can the ECI do? According to Mukhopadhyay, the ECI would have to demonstrate actual utility of such a system without creating any new possibilities of data breaches. He further identified the following areas of concern:

  • Governance – (i) What is the criteria for success of the PoC? (ii) Who enforces data governance and data management flows? (iii) handling of disputes – when parties contest the outcome of the analysis (iv) consent regime for videography and analysis
  • Technical – (i) accuracy of the behavior and sentiment analysis approach (ii) handling data integrity issues (tampering etc)
  • Data – (i) management, storage and retention of data (ii) data access regime (iii) how is report generated and who has access

*Anushka Jain is not related to the author of this report.

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Written By

I cover health technology for MediaNama but, really, love all things tech policy. Always willing to chat with a reader! Reach me at anushka@medianama.com

MediaNama’s mission is to help build a digital ecosystem which is open, fair, global and competitive.

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