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In a rather bewildering tweet today, Madhu Kishwar asked, "Do champions of #RightToPrivacy realise that if 2 women hadn't complained, #babaRamRahim doings in his "Gufa"covered under right to privacy?" The tweet was so absurd that she was met with a barrage of retorts and taunts by people she was taunting.

I guess if we are a country just growing into our rights, there will be a lot of debates of this sort needed, where clear talking will help more than sarcasm at someone's ignorance. It also isn't an alien concept. We have a right to privacy already. Whether it was stated or not, we had protection against someone violating our space. That is how stalking or spy cams or leaking passwords and such is already illegal, even though the right itself was explicitly stated just recently. The world has not changed all that much in terms of what is "right" and "wrong". Privacy cannot make criminal things legit all of a sudden. That was just propaganda to influence the case into denying our right. Even the government now agrees we have a right to privacy. What has changed is for those whose privacy gets invaded by powerful players like big companies or the government (this judgment emerged directly from a constitutional challenge to Aadhaar on the grounds of privacy), who have the power to fudge an unstated right and interpret it to convenience. Now that it is explicit, they will no longer be able to fudge easily.

What the right to privacy will actually entail and exclude as per law will soon be determined, but the general meaning of the term endorses the right of a person to withhold or reveal information about themselves. There is also an implicit requirement that information revealed in confidence must not be shared beyond the purpose it was explicitly authorized for. This is the rock Aadhaar will flounder on - a mandatory and unaccountable database of private information on citizens cannot coexist with even the most shoddily defined privacy. And this 9 judge bench has given a most excellent verdict. But I digress.

Publicly available information is not covered by the right to privacy. For example, board results (because there seem to be a lot of jokes about keeping marksheets private from parents). You may refuse to reveal, but if the information is public, they will have access to it anyway. Certifications (no, the Prime Minister and Smriti Irani's degrees don't get covered by privacy either - they have stated the information themselves, what they are refusing to do is provide proofs for officially filed documents). This also goes for information submitted as proofs, etc. For example, if you have to provide proof of address to start a bank account, your right to privacy does not include starting a bank account without proof of residence. But yes, it definitely includes an obligation on the bank to not share it with third parties or use it for purposes other than verifying your address (for example, sending credit card spam).

As a fundamental right, Ram Rahim still has the right to privacy. Just because he is a convicted rapist does not mean you can make personal and confidential information about him public without his consent (public functions are public). The access to personal information can also be mandated for various reasons - This is where the grey areas lie. You have a right to withhold your bank balance and what you spend your money on from me, but do you have the right to withhold it from the income tax department? The standard understanding is no, because tax is your duty as a citizen. Others, more extreme argue that we voluntarily provide our information to the tax authorities and others don't and choose to be raided instead. The government will, no doubt soon be launching some form of propaganda to create a way to impose Aadhaar in spite of the recent clobbering in court through such grey areas. But it won't be easy, because there really is no way to prove that the information is necessary in the manner knowing income would be directly necessary to assess income tax. It is still not arbitrary or unlimited. you need warrants, to enter and search premises, for example. You can't randomly check whoever you suspect.You have to prove the need for it and get a warrant.

Similarly, your right to privacy is about you having the right to reveal at your discretion what personal information you choose to share. To apply that to sex and rape, it would protect homosexuals, for example. That is why they got all excited about the clarity of the wording. Or at least those who are not engaging in "unnatural sex" in a situation that could be called "public", unless one of them revealed their "crime". Short of homosexuality explicitly being legal, this is considerably better than their previous precarious position of not knowing what boundaries and personal rights they could count on. However, it doesn't protect Ram Rahim from his two victims who complained, because as their personal experience, the victims were perfectly entitled to reveal it to anyone they wished - even if it were consensual. And it wasn't, which makes it a flat out crime. Crimes are mostly private. But if there is enough evidence of it or a complaint, an investigation will attempt to access all relevant information. The most robustly defined right to privacy in the world cannot protect a rapist from conviction if his crime is proved and it cannot prevent an investigation against an accused either. It is a thin edge of what is a legit investigation or ethical whistleblowing and what is a breach of privacy - which is why exposes are so often accompanied by defamation suits.

Right to privacy is a right of persons, not organizations. If it were not the victims and a third party who came to know about the rapes and complained, the action being illegal would make it count as whistleblowing.

Organizations too can have requirements of confidentiality, but they don't have a right to information about them requiring consent to be shared - because they aren't people. Confidentiality requirements of organizations are usually explicit. There are things you can talk about (work timings, coffee maker sucks) and things you can't (trade secrets, business strategies). If the organization was willing to own the rapes as official business of the organization and not a crime that could not be revealed without breaching confidentiality agreements, they are free to sue the whistleblower or the complainants, but a crime that gets exposed remains a crime. An organization that claims it to be its official business would be a criminal organization.

This is also why you have (and need better) whistleblower protection laws - so that confidentiality cannot be used as an excuse to cover up crimes and persecute whistleblowers.

Hope all is clear now.

In a landmark challenge to Aadhaar on the grounds of privacy being an inalienable fundamental right, a 9 judge bench of the Supreme Court of India upholds Right To Privacy as an Intrinsic Part Of Right To Life And Personal Liberty

Supreme Court of India has once again come to rescue the citizens of India by declaring that right to privacy is a fundamental right. This is a big jolt to a government which was turning itself to a surveillance state by intruding every aspect of the life of the individual. This decision was made unanimously reflecting the absolute legal voice on the issue.

The decision was given by a big bench of nine judges who ruled that right to privacy is an intrinsic part of Right to Life and Personal Liberty under Article 21 and entire Part III of the Constitution.

The part III is related to the fundamental rights which have been given to people to live their life as they wish for and develop their personality in full manner. The decision is linked to the government’s effort to make Aadhaar mandatory for the social welfare policies; government also amended Income Tax Act to make Aadhaar mandatory for the IT which SC accepted as valid but government was attempting to extend Aadhaar based surveillance almost in all aspects of the individual’s life. The decision may help to halt this process though SC has to deliver decision on Aadhaar later but is now established that Indian government cannot be a surveillance state as the privacy of the individual cannot be explored and penetrated in absolute manner extending in all aspects of private domain of the person.

The decision has thus overruled the M P Sharma verdict of 1950( six judges judgment) and that of Kharak Singh of 1960 (eight judges) judgments of the same court that right to privacy is not protected under the Constitution..

The decision has been based on article 21 of the fundamental rights. The article is the most interpreted article of the constitution as SC has interpreted it in different dimensions of human life. The article states that “No person shall be deprived of his life or personal liberty except according to procedure established by law.” In the same article by 86th Constitution Amendment, 2002 the 21A was added stating that ‘under 21A the State shall provide free and compulsory education to all children of the age of six to fourteen years in such manner as the State may, by law, determine.’

The Supreme Court has taken a wider view of the right to personal liberty that it cannot be controlled by the administrative fiats and the legislations. Aadhaar issue will be heavily impacted after the decision and its decision will be dealt during the coming time but the recent decision has illuminated the hopes that SC will also limit the government powers with respect to Aadhaar. It was felt by the citizens that compulsion of Aadhaar was unnecessarily placing them under stress. From banks to entrance examinations Aadhaar was becoming a compulsory identity. In several places the old person s were faced with the problem of not getting their pensions as they were not in a position to attach the Aadhaar cards. The practical problem was that they were so old that their fingerprints did not appear or were not in position to Aadhaar camp where these cards were being prepared due to old age or no one support them to take them to the camps. Several old women have complained about this sorry state of affairs.

Government did not take a flexible view and attempted to monitor every action of the individual. The fear was that Aadhaar compulsion might put the person always under stress. That day was not far away when government could ask the person attach Aadhaar whenever anyone you purchased a newspaper or visited a restaurant for a dinner or stayed in a hospital or was hanging out in a park.

In the societies where governments are fearful of the force of the citizens such steps are contemplated. Supreme Court by its decision has placed the limits on any malafide intention and has empowered the citizens of the country.

Supreme Court is really a custodian of humane values and lives of the Indian citizens. Constitution is paramount and so the WE THE PEOPLE OF INDIA. Supreme Court has upheld it and no power can dilute it is now a well established fact.

Originally published on CounterCurrents.org

After false Aadhaar benefits claims perjury to deny citizens right to privacy in case, R S Prasad claims govt always saw privacy as a fundamental right after landmark defeat in judgment by 9 judge bench.

R S Prasad makes another Aadhaar and privacy related false claim.

The Supreme Court gave a landmark 9 judge bench judgment upholding privacy as a fundamental right of citizens. The government was among the defendants and had vigorously stated that privacy was not a fundamental right.

Today, after the judgment, R. S. Prasad, Union Minister holding Law and Justice and Ministry of Information Technology portfolio in the Government of India tweeted:

Govt was of the view that #RightToPrivacy should be a fundamental right.

This is complete nonsense, of course. If the government was of the view that privacy was a fundamental right, why was the case in court at all and fought vigorously all through to the top till a 9 judge bench provided a judgment on a matter of crucial importance to the rights of citizens that the government was violating?

Attorney General Mukul Rohtagi, who represents the Union Government presented the government's stand in the Supreme Court as privacy was not a fundamental right of Indian citizens and that the Constitution makers would have put it there if they had intended it to be. The government's stand was that privacy is a right, but not a fundamental right (normal rights can be overruled by the government in various circumstances, while fundamental rights cannot).

Constitution makers did not intend to make right to privacy a fundamental right.

~ Attorney General Mukul Rohtagi while representing the Union government in Supreme Court before a 9 judge bench.

The government wants to be able to overrule a citizen's right to privacy in order to force them to enroll for Aadhaar or lose their right to essential services, subsidies, and documents. Aadhaar, imposed by the government on citizens was being challenged in court in this landmark case by citizens against their government. What R S Prasad is claiming is a flat out lie.

The Union Government actually made the ridiculous claim that citizens don't have absolute right over their bodies, sparking massive outrage on social media with hashtags like #MyBodyMyRight #RightToPrivacy starting to trend and remaining popular from then to now.

Advocate General Mukul Rohtagi cited two cases that supported this view. Rohtagi additionally falsely claimed in court that Aadhaar was foolproof and that the court should balance the right of the petitioners against those of the 700 million people it allegedly serves (which was also a false claim, because having an Aadhaar does not entitle you to anything, but in fact a lack of Aadhaar can prevent you from availing rights and services you already had access to). This outrageous falsehood has also been robustly challenged.

So the Attorney General committed perjury to defend the government's obsession with surveillance of citizens and when they got soundly defeated anyway, now R S Prasad is claiming that they supported the peititoners who fought against them? This is so absurd as to make no sense. If the government respects privacy as a fundamental right, why does Aadhaar exist at all? Why are people being forced to get an Aadhaar if they want to use essential services like the subsidies they are entitled to or to pay tax or to hold a bank account or even a phone?

Conclusion: R S Prasad is lying. It is the beginning of the usual jumble of words you see around this government and particularly around Aadhaar cover ups that turns their actual meanings into their opposites.

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A do not disturb sign at a Gol Course emphasizing private propertyIt took me a while to figure out what the project was. O-sint? Then another source published it without the hyphen. OSint? OSINT! Far from being the code name of some newfangled Op by Delhi Police, it is a term straight out of the US_NSA penchant for alphabet soup acronyms. Right up there with SIGINT, USMIL and CONUS. Another source is of the belief that Osint stands for Open Source Intelligent system or something.

Regardless of what it stands for, some things are crystal.

  1. Cops are not going to give up on collecting intel.
  2. Nor should they. If cops don't monitor openly available intelligence, they are fools. The surprising part is that it took such a long time, while they were ****ing about with privacy invasions.
  3. Corporate puppeteers of the government see this as a money earning opportunity, and there are talks of bids by IT companies. I suppose this will get call centerized, unless smarter people can mess it up.
  4. Fundamentally, Open Source Intelligence is publicly available information. The source of the information is public - open. Get it? Neither cops nor the supposed IT companies do, apparently, because several news reports talk about confusions about the extent to which privacy will be invaded, private websites open to members only, and such things. Clearly non-public info. I think by this point the need to invade privacy must be overwhelmingly compulsive. I don't think any arm of sarkar can bear to not try and find out the color of your underwear.

Now here are the pitfalls. Or in other words, here is why elevated citizens of the world must attempt to wreck this project before it spends too many public funds.

  • Considering the confusions about extent of invasions of privacy on a project named OSINT, it is clear that the cops or their lackeys (or owners, depending on how you see it) monitoring the internet is like the good, isolated, naked tribals of Andaman islands coming to Delhi to protest the Uttarakhand flood. In other words, what the fuck? Notice, no one will question the *right* of the Andamanese to go and protest where they like, just like the cops have their self given right to mess with whoever they want, but it is neither their area of knowledge, nor their normal role in the scheme of things.
  • The talk about purchased data and access to Facebook, etc clearly mean that special, non-public access will be seeked and whatever entity ends up winning the bid will have the kind of access to information that governments get. Yep, a freaking call center will have the comments ou made about your boss when drunk. Bye bye job (or pay - a way will be found to monetize this opportunity. Capitalism works thus). Combine this with the information that a lot of these entities have sister concerns with utilities like phones, electricity and soon banking, your guess is as good as mine what the "collection calls" of the future will be like.
  • And before someone points out that it will be illegal to grab private inormation for the purpose of making threats, well, making threats and harrassment for extortion is illegal already. Not that it stops our revered collection agents. Who is to say that collection departments will not be outsourced specially to IT companies with access to your jugular vein? Surely recovering pending payments (heck random extortion too) will be easier if your deep secrets are known to the guys making threats? Just good business sense, I guess. Not like ethics or rights matter here. This is yet another instance where private entitites are poised to have alarming access to private information about citizens. And this time, it is not even something as inconvenient to use as biometrics.
  • Considering the state of our media house monopolies and mouthpiece politics, who is to protect anyone from those guilty of breaking laws from the firm (and its owners, and sister concerns, and their neighbours, friends and the niece's dog)? Hain? Notice the bright treatment Amaresh Misra got after his death threats and rape threats? Yep. Zero censure. Now we can extend this list to owners of the call centers and whoever else "knows someone's uncle or politician" - this is Delhi we are talking of, after all.
  • Delhi Police setting up the agenda for any online policing is absurd, because they are not internet savvy, they are not democracy or human rights savvy and they are extremely likely to upload porn clips and child torture clips themselves and will probably destroy anyone who objects (they have the password to your jugular, remember?). Delhi Police and law enforcement is already like an axe in the hands of a monkey.

So what can be done? Something clearly needs to be done and neither a Dilli Pulis approach nor a call center approach will be *effective*. I mean imagine a reply like "We are really sorry, but the person who is posting naked photos of you could not be found. Change your passwords and call us again if the problem continues, we live to serve, etc" or worse "girls want their photos admired on porn sites, but say harrassment if someone recognizes them" or something.

A better way would be to create a two step fix that is truly democratic and, actually capitalist as well. Incidentally, it makes no sense for this to be a Delhi Police project. The internet hardly knows boundaries. A national level something that collaborates with CBI/NIA or some such would be better. Or it can be autonomous.

The first step is the creation of a body that is truly familiar with the internet. A good balance of security consultants, coders, bloggers, activists (of all hues), e-commerce/banking specialists and social media ninjas will be ideal. It should be more a collective (as in everyone works hands on and has a specialization) as opposed to sarkari organization of anonymous interchangeable drones (babu-dom). Anyone whose voice doesn't reach a few thousand people a day using the internet should not even be considered (there goes the sarkari crony-capitalist plan).

This collective must be organized to address the variety of security issues on the internet - beyond mere collecting public info (call center method). There is a need for proactive assessments, intuitive support design, assessment of complaints or observed issues, assigning to appropriate action - tracking to real life identities, including organizing brute force retaliation (deleted profiles, bocked accounts or trolling into oblivion) on the internet for entities that cannot be traced to real identities for arrest.

The other step would be to create a bounty system for what Anyonymous calls dox-ing for people whose real identities cannot be traced by regular methods. Post an online bounty to be paid to whoever can provide real identity (with evidence). If the accused is arrested, the money gets paid. If the bounty is paid in bitcoins, far superior talent is likely to be found, not to mention incentive for youth to develop serious skills, awareness and ethics for pocket money. Bounties should also be offered for discovering of online pedophiles, cyber criminals, terrorists and such. Always on the basis of actionable evidence.

Such a system would cost far less than what a corporation would bid (someone has to pay for air-conditioned buildings and every scrap of new tech). It would also engage the most skilful and optimally placed talent in tasks they specialized in, as opposed to 50 hackers backed by a revolving door team of 5000 stenographers and nice voices on phone who take a week to answer email.

The notification of the Information Technology (Intermediaries Guidelines) Rules 2011 in April 2011 has resulted in the creation of a mechanism whereby intermediaries (such as Google, Facebook, Yahoo, etc) receive protection from legal liability in return for trading away the freedom of expression and privacy of users.

The Rules demand that intermediaries, on receiving a complaint that any content posted online is considered grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, paedophilic, libelous, invasive of another’s privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner, have to disable the content within 36 hours of receipt of complaint. The rules also require the intermediaries to provide the Government agencies information of users without any safeguards.

Under these Rules intermediaries will be forced to disable any and all content that falls foul of the incredibly broad and ambiguous criteria laid above, as non-compliance with such requests will result in their losing the liability protection afforded to intermediaries. In short, the Rules will result in private policing of the internet.  Any content that is critical of state policy, any organization or even any individual could run the risk of being censored, thanks to the Rules.  The Rules violate the right to freedom of speech and expression and the right to privacy of citizens guaranteed by the Constitution of India.

There is no due process of law, any attention to principles of natural justice or a redressal mechanism for the aggrieved victim, whose content is taken down.  The Rules are also ambiguous and arbitrary, disjointed, legislate on disparate areas and are beyond the rule-making power of the Government.

After the Avnish Bajaj case, the Legislature wanted a safe harbor for intermediaries with safeguards and not a system of back door censorship for the Government.  In view of the possible deleterious effects of the Rules, the Honorable Member of Parliament, Shri P. Rajeeve has moved a statutory motion to get the aforesaid Rules annulled. This motion has been admitted and will be coming up before the Rajya Sabha during the second half of the Budget session of the parliament that starts on 24th of April, 2012.

We urge all MPs to support the annulment motion. We also request the Government to draft new rules, that will protect our freedom and  privacy, after holding consultation among all stakeholders.

Further Material:
There is an online petition in favor of the annulment motion at:
http://www.it2011.in

FAQ's of SFLC
http://softwarefreedom.in/index.php?option=com_content&view=article&id=129:faq-on-intermediary-rules&catid=1:latest-news&Itemid=50

http://www.youtube.com/watch?v=HtA194jig3s

Names of Organisations

Knowledge Commons
Software Freedom Law Center, India
Delhi Science Forum
Save Your Voice Campaign
Internet Democracy Project
Center for Internet and Society
Free Software Movement India
IT for Change
Alternative Law Forum