Introduction
In recent times, Indian cities have seen an expansion of state deployed CCTV cameras. According to a recent report, in terms of CCTVs deployed, Delhi was considered as the most surveilled city in the world, surpassing even the most surveilled cities in China. Delhi was not the only Indian city in that list, Chennai and Mumbai also made it to the list. In Hyderabad as well, the development of a Command and Control Centre aims to link the city’s surveillance infrastructure in real-time. Even though studies have shown that there is little correlation between CCTVs and crime control, deployment of CCTV cameras has been justified on the basis of national security and crime deterrence. Such an activity brings about the collection and retention of audio-visual/visual information of all individuals frequenting spaces where CCTV cameras are deployed. This information could be used to identify them (directly or indirectly) based on their looks or other attributes. Potential risks associated with the misuse, and processing of such personal data also arise. These risks include large scale profiling, criminal abuse (law enforcement misusing CCTV information for personal gains), and discriminatory targeting (law enforcement disproportionately focusing on a particular group of people). As these devices capture personal data of individuals, this article seeks data protection safeguards available to data principals against CCTV surveillance employed by the State in a public space under the proposed Data Protection Bill, 2021 (the “DPB”).
Safeguards Available Under the Data Protection Bill, 2021
To use CCTV surveillance, the measures and compliance listed under the DPB have to be followed. Obligations of data fiduciaries available under Chapter II, such as consent (clause 11), notice requirement (clause 7), and fair and reasonable processing (clause 5) are common to all data processing entities for a variety of activities. Similarly, as the DPB follows the principles of data minimisation (clause 6), storage limitation (clause 9), purpose limitation (clause 5), lawful and fair processing (clause 4), transparency (clause 23), and privacy by design (clause 22), these safeguards too are common to all data processing entities/activities. If a data fiduciary processes personal data of children, it has to comply with the standards stated under clause 16.
Under the DPB, compliance differs on the basis of grounds and purpose of data processing. As such, if compliance standards differ, so do the availability of safeguards under the DPB. Of relevance to this article, there are three standards of compliance under the DPB wherein the standards of safeguards available to a data principal differ. First, cases which would fall under Chapter III and hence, not require consent. Chapter III lists grounds for processing of personal data without consent. Second, cases which would fall under exemption clauses in Chapter VIII. In such cases, the DPB or some of its provisions would be inapplicable. Clause 35 under Chapter VIII gives power to the Central Government to exempt any agency from the application of the DPB. Similarly, Clause 36 under Chapter VIII, exempts certain provisions for certain processing of personal data. Third, cases which would not fall under either of the above Chapters. In such cases, all safeguards available under the DPB would be available to the data principals. Consequently, safeguards available to data principals in each of these standards are different. We will go through each of these separately.
First, if the grounds of processing of CCTV information is such that it falls under the scope of Chapter III of the DPB, wherein the consent requirement is done away with, then in those cases, the notice requirement has to reflect such purpose, meaning that even if consent is not necessary for certain cases, other requirements under the DPB would still apply. Here, we must note that CCTV deployment by the state on such a large scale may be justified on the basis of conditions stated under clauses 12 and 14 of DPB – specifically, the condition for the performance of state function authorised by law, and public interest. The requirement under clause 12 of “authorised by law” simply means that the state function should have legal backing. Deployment of CCTVs is most likely to fall under clause 12 as various states have enacted legislations providing for CCTV deployment in the name of public safety. As a result, even if section 12 takes away the requirement of consent for certain cases, data principals should be able to exercise all rights accorded to them under the DPB (chapter V) except the right to data portability under clause 19.
Second, processing of personal data via CCTVs by government agencies could be exempted from DPB under clause 35 for certain cases under the clause. Another exemption that is particularly concerning with regard to the use of CCTVs is the exemption provided under clause 36(a). Section 36(a) says that the provisions of chapters II-VII would not apply where the data is processed in the interest of prevention, detection, investigation, and prosecution of any offence under the law. Chapters II-VII govern the obligations of data fiduciaries, grounds where consent would not be required, personal data of children, rights of data principals, transparency and accountability measures, and restrictions on transfer of personal data outside India respectively. In these cases, the requirement of fair and reasonable processing under clause 5 would also not apply. As a broad justification provided for CCTVs deployment by the government is crime control, it is possible that section 36(a) justification can be used to exempt the processing of CCTV footage from the above-mentioned safeguards.
From the above discussion, the following can be concluded. First, if the grounds of processing fall under Chapter III, then standards of fair and reasonable processing, notice requirement, and all rights except the right to data portability u/s 19 would be available to data principals. Second, if the grounds of processing fall under clause 36, then, in that case, consent requirement, notice requirement, and the rights under DPB would be unavailable as that section mandates the non-application of those chapters. In such a case, even the processing requirements of a fair and reasonable manner stand suspended. Third, if the grounds of processing of CCTV information doesn’t fall under Chapter III, then all obligations listed under Chapter II would have to be followed. Moreover, the data principal would be able to exercise all the rights available under Chapter V of the DPB.
Constitutional Standards
When the Supreme Court recognised privacy as a fundamental right in the case of Puttaswamy v. Union of India (“Puttaswamy”), it located the principles of informed consent and purpose limitation as central to informational privacy. It recognised that privacy inheres not in spaces but in an individual. It also recognised that privacy is not an absolute right and certain restrictions may be imposed on the exercise of the right. Before listing the constitutional standards that activities infringing privacy must adhere to, it’s important to answer whether there exists a reasonable expectation of privacy in CCTV footage deployed in a public space by the State?
In Puttaswamy, the court recognised that privacy is not denuded in public spaces. Writing for the plurality judgement, Chandrachud J. recognised that the notion of a reasonable expectation of privacy has elements both of a subjective and objective nature. Defining these concepts, he writes, “Privacy at a subjective level is a reflection of those areas where an individual desire to be left alone. On an objective plane, privacy is defined by those constitutional values which shape the content of the protected zone where the individual ought to be left alone…hence while the individual is entitled to a zone of privacy, its extent is based not only on the subjective expectation of the individual but on an objective principle which defines a reasonable expectation.” Note how in the above sentences, the plurality judgement recognises “a reasonable expectation” to be inherent in “constitutional values”. This is important as the meaning of what’s reasonable is to be constituted according to constitutional values and not societal norms. A second consideration that the phrase “reasonable expectation of privacy” requires is that an individual’s reasonable expectation is allied to the purpose for which the information is provided, as held in the case of Hyderabad v. Canara Bank (“Canara Bank”). Finally, the third consideration in defining the phrase is that it is context dependent. For example, in the case of In the matter of an application by JR38 for Judicial Review (Northern Ireland) 242 (2015) (link here), the UK Supreme Court was faced with a scenario where the police published the CCTV footage of the appellant involved in riotous behaviour. The question before the court was: “Whether the publication of photographs by the police to identify a young person suspected of being involved in riotous behaviour and attempted criminal damage can ever be a necessary and proportionate interference with that person’s article 8 [privacy] rights?” The majority held that there was no reasonable expectation of privacy in the case because of the nature of the criminal activity the appellant was involved in. However, the majority’s formulation of this conclusion was based on the reasoning that “expectation of privacy” was dependent on the “identification” purpose of the police. The court stated, “Thus, if the photographs had been published for some reason other than identification, the position would have been different and might well have engaged his rights to respect for his private life within article 8.1”. Therefore, as the purpose of publishing the footage was “identification” of the wrongdoer, the reasonable expectation of privacy stood excluded. The Canara Bank case was relied on by the SC in Puttaswamy. The plurality judgement in Puttaswamy also quoted the above paragraphs from the UK Supreme Court judgement.
Finally, the SC in the Aadhaar case, laid down the factors of “reasonable expectation of privacy.” Relying on those factors, the Supreme Court observed that demographic information and photographs do not raise a reasonable expectation of privacy. It further held that face photographs for the purpose of identification are not covered by a reasonable expectation of privacy. As this author has recognised, the majority in the Aadhaar case misconstrued the “reasonable expectation of privacy” to lie not in constitutional values as held in Puttaswamy but in societal norms. Even with the misapplication of the Puttaswamy principles by the majority in Aadhaar, it is clear that the exclusion of a “reasonable expectation of privacy” in face photographs is valid only for the purpose of “identification”. For purposes other than “identification”, there should exist a reasonable expectation of privacy in CCTV footage. Having recognised the existence of “reasonable expectation of privacy” in CCTV footage, let’s see how the safeguards mentioned under the DPB stand the constitutional standards of privacy laid down in Puttaswamy.
The bench in Puttaswamy located privacy not only in Article 21 but the entirety of part III of the Indian Constitution. Where transgression to privacy relates to different provisions under Part III, the tests evolved under those Articles would apply. Puttaswamy recognised that national security and crime control are legitimate state objectives. However, it also recognised that any limitation on the right must satisfy the proportionality test. The proportionality test requires a legitimate state aim, rational nexus, necessity, and balancing of interests. Infringement on the right to privacy occurs under the first and second standard. The first requirement of proportionality stands justified as national security and crime control have been recognised to be legitimate state objectives. However, it must be noted that the EU Guidelines on Processing of Personal Data through video devices state that the mere purpose of “safety” or “for your safety” is not sufficiently specific and is contrary to the principle that personal data shall be processed lawfully, fairly and in a transparent manner in relation to the data subject. The second requirement is a rational nexus. As stated above, there is little correlation between crime control and surveillance measures. Even if the state justifies a rational nexus between state aim and the action employed, it is the necessity part of the proportionality test where the CCTV surveillance measures fail (as explained by this author). Necessity requires us to draw a list of alternatives and their impact on an individual, and then do a balancing analysis with regard to the alternatives. Here, judicial scrutiny of the exemption order under clause 35 is a viable alternative that respects individual rights while at the same time, not interfering with the state’s aim.
Conclusion
Informed consent and purpose limitation were stated to be central principles of informational privacy in Puttaswamy. Among the three standards we identified, the principles of informed consent and purpose limitation remain available only in the third standard. In the first standard, even though the requirement of consent has become unavailable, the principle of purpose limitation would still be applicable to the processing of such data. The second standard is of particular concern wherein neither of those principles is available to data principals. It is worth mentioning here that in large scale monitoring activities such as CCTV surveillance, the safeguards which the DPB lists out would inevitably have an implementation flaw. The reason is that in scenarios where individuals refuse consent for large scale CCTV monitoring, what alternatives would the government offer to those individuals? Practically, CCTV surveillance would fall under clause 12 standards where consent would not be required. Even in those cases, would the notice requirement safeguard be diminished to “you are under surveillance” notices? When we talk about exercise of rights available under the DPB, how would an individual effectively exercise their right when the data processing is not limited to a particular individual? These questions arise because the safeguards under the DPB (and data protection laws in general) are based on individualistic notions of privacy. Interestingly, individual use cases of CCTVs have also increased with an increase in state use of CCTVs. Deployment of CCTVs for personal or domestic purposes would be exempt from the above-mentioned compliances as that would fall under the exemption provision of clause 36(d).
Two additional concerns arise in relation to processing of data concerning CCTVs – the JPC report’s inclusion of Non-Personal Data (“NPD”) within the ambit of DPB, and the government’s plan to develop a National Automated Facial Recognition System (“AFRS”). A significant part of the data collected by CCTVs would fall within the ambit of NPD.With the JPC’s recommendation, it will be interesting to follow the processing standards for NPD under the DPB. AFRS has been imagined as a national database of photographs gathered from various agencies to be used in conjunction with facial recognition technology. The use of facial recognition technology with CCTV cameras raises concerns surrounding biometric data, and risks of large scale profiling. Indeed, section 27 of the DPB reflects this risk and mandates a data protection impact assessment to be undertaken by the data fiduciary with respect to processing involving new technologies or large scale profiling or use of biometric data by such technologies, however the DPB does not define what “new technology” means. Concerns around biometric data are outside the scope of the present article, however, it would be interesting to look at how the use of facial recognition technology with CCTVs could impact the safeguards under DPB.
This article has been authored by Ms. Anamika Kundu, Research Assistant at the Centre for Internet and Society, and Digvijay S. Chaudhary, Researcher at the Centre for Internet and Society. This blog is a part of RSRR’s Blog Series on the Right to Privacy and the Legality of Surveillance, in collaboration with the Centre for Internet & Society.
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