This is a criminal invasion of privacy

Union Minister of State for Home Ajay Mishra Teni made a surprise appearance on Monday introduced Criminal Procedure (Identity) Bill 2022, The Bill was neither put up for pre-legislative consultation nor indicated in the legislative agenda of the session in Parliament. Technically, it appears to be a legislative proposal that not only undermines the privacy of persons convicted of a crime but also the privacy of every ordinary Indian citizen as it proposes to replace a more than 100-year-old law. does.

what is the need to check

Let us first understand why it is being offered, and what it is intended to achieve. The bill aims to replace the Identification of Prisoners Act 1920, which has been in need of amendment for several decades. In the 1980s, the Law Commission of India (in its 87th report) and the Supreme Court of India in a decision titled State of UP Vs Ram Babu Mishra Almost simultaneously suggested the need to amend the law. The criticism and the need for amendment were mainly in relation to the limited definition of ‘measurement’ under that Act. This seems to be one of the primary issues that the proposed legislation is designed to address.

editorial | Identity and Privacy: On the Identification of Prisoners Bill

In this respect, it may be exceptional, being an expression of longstanding views within the legal establishment. However, with three expansions in the power of state surveillance (in the name of criminal reforms), the devil is in the details, which deserve further investigation.

First, the definition of measurement is not limited to taking measurements, but also “analysis” of them, when the definition now says “iris and retinal scans, physical, biological samples and their analysis, behaviour”.[u]resin characteristics including signature…” This definition is vague and ambiguous. This is beyond the scope of a law designed to take measurements only and may result in indirectly providing legislative support for techniques that may involve the collection of data from other sources. For example, using facial recognition technology where the measurements of individuals under this law are compared to samples taken from the general public.

There are currently extensive facial recognition technology programs for “smart policing” that are deployed across the country. For example, the Delhi Police also uses facial recognition technology, originally acquired in 2018 to identify missing children, to screen “habitual offenders”. Similarly, Tamil Nadu Police deploys a facial recognition system that is integrated with state and national level databases including CCTV footage. Such experimental technologies lead to mass surveillance and are prone to prejudice, affecting the fundamental rights of the most vulnerable in India.

Data Capture and ‘Like’

A second area of ​​expansion concerns the extent to which such “measurements” can be collected. The existing law allows the capture of data by the police and prison authorities from persons either convicted or arrested for offenses punishable with imprisonment of at least one year. Judges are conferred with parallel powers, who can order measurements to be taken by any person to aid in the investigation. While the judicial power has been left undisturbed, the powers of the police and prison officers are being expanded. The law removes the existing – albeit minimum – limit on the persons whose measurements can be taken. It shall be extended to all persons who have been arrested in any case. It is indeed a breathtaking spectrum, which includes petty offenses such as violating prohibitory orders for not wearing a mask, jaywalking or traffic violations.

Here, the proposed bill also contains slang language that states that a person, “may not be bound to give permission for the taking of his biological sample”. This, on its surface, offers a person an option to refuse. However, the words “cannot be bound” may also be read to provide discretion to a police officer to provide such option. In any instance where the exercise of such “choice” is considered in law, it may not be truly voluntary, given the absence of comprehensive accountability reforms in which existing police practices are coercive.

Even if these objections are disregarded, the “options”, if any, are limited to “biological samples”, that is, from the broad data points captured within the “measurements”. For example, “iris and retinal scan” is mentioned separately for “biological sample”, and therefore a person arrested under any offense or preventive detention law may be required to have their eyes scanned if desired by the police. would be required.

data storage

The third area of ​​concern is the database of “measurements” that are collected. The National Crime Records Bureau (NCRB) shall maintain a digital record “in the interest of prevention, detection, investigation and prosecution of any offence” for a period of 75 years from the date of collection. As Prof. Aparna Chandra (an associate professor of law) said on Twitter, “How will these records be used to prevent crime apart from surveillance?” This becomes clear when the provision allows the NCRB to “share and disseminate such records with any law enforcement agency as may be prescribed”.

It is important to consider that the NCRB already operates a centralized database, namely the Crime and Criminal Tracking Network and Systems (CCTNS), without any clear legislative framework. The interaction between the proposed law and the CCTNS is not clearly defined, although it is likely that the powers conferred on digital records are given to a single government department.

The existence of such legislative power with a technical framework could allow for multiple mirror copies and parallel databases of “measurements” being stored with law enforcement beyond the state police department, which would prosecute the crime, and the NCRB which all records centrally. will be stored properly. For example, in response to a Parliamentary Standing Committee on Police Modernization, Rajasthan has stated that it maintains a ‘RajCop application’ which provides “analytical capabilities in real time with multiple data sources (inter-department and intra-department)”. integrates with. , Similarly, Punjab has stated that “PAIS (Punjab Artificial Intelligence System) app uses Machine Learning, Deep Learning, Visual Search and Face Recognition to identify criminals to assist police personnel. This app helps in storing and carrying information about criminals. Therefore, state government police departments will use multiple copies of “measurements” with different purposes and experimental techniques. It also removes the illusory advantage of annulment that would result in an acquittal and would suffer from weak enforcement due to the absence of a data protection law.

In short, once a person enters their “measurement” within the system, they remain there for the rest of their lives given the average life expectancy in India, which lasts around 70 years, less than the retention period. The end result is a vast database containing innocent individuals treated as persons of interest for most of their natural lives.

While the impact on the privileged may be minimal, the public – many of whom lack social and economic power in Indian society – may face harsh law enforcement. This becomes clear from the primary research-based article, “Settled Habits, New Tricks” by Ameya Bokil, Nikita Sonawane and Sujana Baez from the Criminal Justice and Police Accountability Project (Avanindra Khare and Vaishali Janarthan among other authors). He pointed to caste prejudice against the Pardhi tribal community which was once designated as a criminal tribe. In this context he says, “Indeed since these databases are used by the age-old caste-based system of policing for preventive monitoring and predictive policing (which has already determined who is a criminal and which crimes are habitual offenders often times). -bar do), there is no possibility of a lack of objectivity or caste bias. CCTNS only adds a technical veneer to the caste-based policing model….” It can be inferred that if If the proposed scope of “measurement” is expanded and then put into a database, it will likely target Pardhis as well.

the responsibility lies with the government

Injury to privacy is not just an academic debate and has real, physical and mental consequences for people. To protect individual autonomy and fulfill our constitutional promises, the Supreme Court of India upheld its status as a fundamental right, upheld by Justice KS Puttaswamy. The responsibility of its protection falls on every organ of the government, including the legislature and the executive of the union. India would be better off turning back even from the Prisoners Recognition Act passed by a colonial regime, to fulfill its claims of being a constitutional democracy rather than just an electoral democracy.

Apar Gupta is a lawyer and the Executive Director of the Internet Freedom Foundation. Abhinav Sekhri is a Lawyer practicing in Delhi.