This article was originally published in www.nepallivetoday.com on April 09, 2023 by Anjila Shrestha. Ms. Shrestha is a researcher at Samriddhi Foundation, an economic policy think tank based in Kathmandu. The views expressed in this article are the author’s own and do not represent the views of the organization. Author can be reached at [email protected]
The government’s persistent attempts to increase surveillance on its citizens have raised concern time and time again. The most recent outcry is due to the Ministry of Communication and Information Technology’s proposed amendment to the Telecommunication Bill, which includes provisions for recording personal conversations on mobile phones and accessing individuals’ information without a court order. This lack of a requirement for a court order not only endangers the doctrine of checks and balances, but also means that the administrative body can extract a person’s data at will if they are deemed to be “suspicious”. Moreover, the bill also gives the administrative body direct access to the systems of service providers to obtain any piece of information they want which is a direct violation of individuals’ right to privacy undermining protection enshrined in the constitution.
Right to Privacy is a fundamental right that instills the democratic values of a society. It is the right to be left alone, keeping one’s personal life free from unwarranted intrusion whether it be government intrusion, corporate intrusion or any third party intrusion. Anytime a state infringes upon a fundamental right, not only is this a direct attack on the democratic values of the nation, but is also an alarming progression towards an authoritarian regime.
Laws versus reality
The Constitution of Nepal has enshrined the Right to Privacy as a fundamental right under Article 28. Furthermore, the existence of the Individual Privacy Act, 2075 and the Individual Privacy Regulation, 2077 also reinforce the right by stating information in relations with caste, race, or origin of an individual, political affiliation, religious faith or belief, sexual orientation or an event relating to one’s sex life or particulars relating to property as sensitive information in Section 27(2) of the Act. Regardless, this act fails to protect all forms of data from all sorts of violators, which includes the state. Even the data collected by the state using biometrics and personal data from national IDs, voter cards, smart driving licenses, passports, and many other sources are not protected. Official government websites have such poor cyber infrastructure that its main server has faced multiple cyberattacks. Rather than investing all their focus on protection of such vital information, the government is dead set on extracting more data from the citizens.
We have case laws that establish a strong precedent for the protection of the right to privacy in Nepal. Baburam Aryal et al v The Government of Nepal declared that privacy is a fundamental right that cannot be violated by the State or third parties. It stated that organizations or departments responsible for collecting and safeguarding personal information are inviolable and must not use it at their discretion and must protect it at all costs (except as permitted by law). Similarly, in Sapana Pradhan Malla v Office of the Prime Minister and Council of Ministers et al, the Supreme Court ruled that personal information may not be shared with third parties without the prior consent of the concerned person. These cases establish that the right to privacy is a crucial right that must be protected.
In most legal systems, precedents are not higher in the hierarchy as codified laws are generally considered to be the primary source of law. Precedents are decisions made by courts in specific cases and are only binding on future cases that involve similar facts or legal issues. The introduction of these amendments is ultra vires as they directly undermine the constitutional protection guaranteed by the supreme law of the land.
The “reasoning” is wolf in sheep’s clothing. In the name of national interest, conversations about activities considered contrary to national interests, treason, organized crime, or criminal offenses can be recorded by investigating agencies authorized by the government. It is only a leeway for the government to strengthen their surveillance systems. The amendments allowing investigating officers to request telecommunication details for investigative purposes are concerning, as the information obtained could potentially be used against citizens in other scenarios beyond the scope of the investigation. This raises questions about the privacy rights of individuals and the potential misuse of such information by those in power.
On the other hand, the government seems to curtail the right to information as much as possible when it comes to their own side of the bargain. Recently, the government attempted to classify 87 types of information to be kept as a secret for up to 30 years, which evidently received a lot of backlash.
The increasing prevalence of surveillance states has become a growing concern worldwide. The concept of national security has been invoked by numerous governments to justify their actions, sometimes in ways that are unjust or abusive. The American case of Apple v FBI is an excellent example of how data privacy can be compromised in the name of national security. In 2015, the FBI requested Apple to create a backdoor in its Operating System (OS) to allow them to access the data of the San Bernardino shooter’s phone. Apple refused to comply. It stood its ground by stating that creating a backdoor would compromise the privacy and security of all its users. Not only would this backdoor be used for this particular case but it would definitely be used and abused by the government and hackers alike for many other devices and purposes. The case went to court, and Apple won. This case highlights the importance of data privacy.
As Edward Snowden put it: “Arguing that you don’t care about the right to privacy because you have nothing to hide, is no different than saying you don’t care about free speech because you have nothing to say.”
The authors of “Surveillance State”, Chin and Lin challenged the notion of Chinese people not having the concept of privacy—and the brainwashing that goes into making the people accept the encroachment of their right to privacy. They have explained how China has sold a new social contract proposing the fulfillment of what the people need in exchange for extensive collection of citizen’s data. Chin and Lin also share Tahir Hamut Izgil, a Uyghur poet and filmmaker’s story. The Xinjiang police had taken the blood, iris, fingerprints, and voice recordings of Hamut and his family and entered them into a biometric database. The authorities have detained or imprisoned hundreds of thousands of Uyghurs, often based on weak evidence, which includes their use of messaging apps like Whatsapp, reports from officials sent to monitor Uyghur households, or algorithmic analyses that indicate religious extremism.
The Chinese government has also used pandemic as the perfect ploy to expand on their surveillance technology. In the name of covid tracking tools, they have effectively tracked people’s movements as well. They have given a fair warning to all states, reiterating the importance of strengthening the democratic private institutions, further cautioning that China won’t be the only country that will turn into a surveillance state, as it can happen anywhere.
The Right to Privacy is a fundamental right that ensures the democratic values of a society. Encroaching on fundamental rights is a direct attack on democracy.
Taking the example of China’s surveillance state, the proposed amendments on the Telecommunication Bill in Nepal can also be linked to attacks on right to privacy, freedom of speech/assembly and even right to movement and seek asylum. If the government has unchecked access to citizens’ private phone calls, it can use the information gathered to suppress dissenting voices and punish individuals who speak out against the government. A democracy where you cannot criticize your government is no democracy at all. This can have a chilling effect on citizens’ freedom of expression and will deter people from speaking out against the government in fear of retaliation from the government.
Safeguarded the rights
The Right to Privacy is a fundamental right that ensures the democratic values of a society. Anytime a state encroaches on fundamental rights, it is a direct attack on democracy. The Nepal government must consider these concerns and ensure that the proposed bill does not violate citizens’ fundamental rights. They must balance the need for national security with citizens’ right to privacy and ensure that the laws are not misused to suppress dissenting voices against the state or violate citizens’ privacy. The choice of information that a user decides to share with those who receive it is entirely at their discretion. Any interference with the confidentiality or smoothness of dissemination of such messages, whether they are personal, confidential, or professional, constitutes a direct violation of their right to privacy.