Chief Minister of Delhi Arvind Kejriwal recently tweeted  “New Delhi beats cities like Shanghai, New York, and London with the most CCTV cameras per mile”. Delhi is the most surveilled city in the world.

Coronavirus has upended societal norms. It revealed, in Eduardo Galeano’s words, an upside-down world. This pandemic has become a portal, offering an opportunity to re-shape “normal”. Going forward, its most significant legacy will be the way it dovetails with another major global disruption—the rise and spread of digital surveillance.

As coronavirus raged and countries battled to set up healthcare facilities, Prime Minister Modi and other Indian leaders silently erected digital surveillance infrastructure. While gathering data and surveillance is crucial during a pandemic to understand disease trends and frame mitigation strategies, public health objectives cannot be subservient to constitutionally guaranteed civil liberties.

Digital Solutionism

Measures adopted by the Indian government have been ad hoc, reactionary, and outside the framework of any public health legislation. This has resulted in a push to develop and adopt technology-based “solutions” without any consideration of how they may impact civil liberties.

The absence of a well-defined legal regime for public health has given authorities free rein. During a pandemic, state agencies may act in a way that impacts people’s fundamental rights to liberty, free movement, and privacy. Authorities have compelled individuals to undergo testing, enforce quarantine measures, and trace interactions. In the absence of any concrete policy, states in India have resorted to invoking the Epidemic Diseases Act, 1897—colonial-era legislation that confers wide powers on states without any procedural safeguards. States have framed regulations under this statute that allow them to collect vast amounts of personal information.

The most notable of such digital interventions has been the creation of Aarogya Setu, a contact-tracing application used to identify a user’s interactions and social networks. States have also taken to widespread deployment of drones in several cities to enforce lockdown measures. More recently, Broadcasts Engineering Consultants India Limited (BECIL), a state-owned enterprise, expressed interest in inviting bids for a personnel tracking GPS solution and COVID-19 patient tracking tool. The former envisions a wearable device to track health workers’ location and to store the data on a centralized government server. The latter proposes the collation of information from government databases and from telecom and internet data to identify locations, associations, and behavior of patients.

Inherent Limitations and Harms

These sorts of technologies are often rolled out without neither understanding their limitations nor properly examining their potential to harm. More worryingly, an over-reliance on technology also makes the state complacent; technological interventions tend to become the default, replacing efforts to understand and address the underlying causes of the problem.

There is wide consensus that digital contact tracing can’t replace fieldwork. Apps such as Aarogya Setu are inherently limited; their success depends on self-reporting. Given India’s abysmally low testing rate, self-reporting too will be low for them to make a positive impact. Further, such apps assess risk based on Bluetooth signals, which may result in false positives—a woman was forcibly sent to a quarantine facility despite the fact she hadn’t left her home in several weeks.

Drones are being deployed by the police without any legal basis or transparency on how the recorded footage will be used or retained. The data may be stored and used later for other purposes, including targetting specific locations or communities. Reports suggest that this data is already being shared freely amongst various entities of the government without people’s knowledge or consent.

The BECIL tenders are even more dystopian; they aim to combine various invasive technologies like location tracking and facial recognition to create tools for mass surveillance without any need for them.

Architecture of Surveillance

Such technological tools also vastly expand the government’s surveillance architecture, meriting a need to assess whether they are needed and whether any less-intrusive alternatives exist to achieve the same ends. Evidence suggests that these digital interventions only end up ramping up surveillance without achieving any of their stated objectives.

Aarogya Setu, for instance, collects a large amount of personal information from users when they sign up, and constantly builds on this by collecting location and Bluetooth data in real-time. This allows the app to create a social graph of a person’s interactions. Neither the app nor the Data Access and Knowledge Sharing Protocol—which was subsequently issued—provide for a fixed period after which the collected data will be destroyed. The protocol also reveals that the app’s functionality is not limited to contact tracing, but that the data gathered through it will be used to inform government decision-making on almost all aspects related to COVID-19. The government recently relied on the data generated by the app to identify new hotspots.

The government’s surveillance mechanisms have been augmented by the installation of facial recognition-equipped CCTV. Due to the lack of an adequate standard operating procedure to govern its lawful usage, “function creep” sets in, allowing these mechanisms to be further intrusive.

Beyond the Pandemic

The overlap of these two global disruptions—the epidemiological and the technological—will shape the next few years of global history. The exceptional, yet, permanent measures are taken during this crisis strike at the heart of this reality.

The rollout of the draconian IT laws coupled with India’s distinction as the world’s ‘internet shutdown capital’ are paving the way for an Orwellian state and pose threats to freedom of privacy, speech, and expression. The manners in which these institutions can be actively used to stifle dissent and suppress opposition are numerous. Fundamental civil liberties must be protected by creating a comprehensive, transparent framework to accompany these technologies.

Demanding radical changes from a regime that is unwilling to respect rights will not be easy but it is the only way forward.