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PRIVACY AND SURVEILLANCE CONFLICT:
A COMPARATIVE ANALYSIS OF THE LAWS IN THE USA AND INDIA
VAIBHAV CHADHA
vchadha@jgu.edu.in
Assistant Professor of Law at Jindal Global Law School, O.P. Jindal Global University (India). He
holds a master’s degree in law from Queen Mary University of London on a Chevening
Scholarship. Vaibhav also has a bachelor’s degree in law as well as commerce from the University
of Delhi and a diploma in International Law and Diplomacy from Indian Society of International
Law. In the past he has written international articles on anticipatory bail law in India, copyright
law, freedom of speech and expression, privacy and surveillance, and on laws enacted to curb
the practice of child marriage. Before moving to academia, Vaibhav worked at the Office of
Advocate General of State of Nagaland, India, and Additional Solicitor General of India. His areas
of interest include free speech, media law, and criminal law.
THAJASWINI COIMBATORE BALASUBRAMANIAN
thajaswini.cb@gmail.com
A qualified lawyer, who is currently pursuing her Masters of Law at the University of Cambridge.
She holds a Bachelor of Arts and a Bachelor of Law (BA.,LLB (Hons.)) degree from the School of
Law, SASTRA Deemed University (India). She was assisting a Senior Advocate at the Hon’ble
Supreme Court of India for over a year, before pursuing her Masters. She is keenly interested in
subject matters like Constitutional Law, Public Law, Commercial Taxation, Intellectual Property
and Privacy Laws.
ANSHUL BHUWALKA
anshul.bhuwalka@induslaw.com
Associate (Transactions), IndusLaw, Mumbai, India. He holds a bachelor's degree in Law as well
as Business Administration from Symbiosis Law School, Hyderabad (India) - Symbiosis
International (Deemed University). He has written articles on constitutional law and contractual
law, with specific reference to the corporate domain. His areas of interest are constitutional law,
corporate and commercial laws
Abstract
The Right to Privacy and the need for Surveillance has always remained a contentious issue
between citizens and law enforcement agencies. This paper attempts to analyse the various
laws relating to Surveillance in the largest and oldest democracies of the world, India and the
United States of America. Regardless of vast variances in socio-economic and political
realities, these two countries qualify as intriguing focuses for study. Though the Right to
Privacy is generally accepted as a fundamental right throughout the nations of the world, the
primacy given to ‘National Security’ and simultaneously balancing it with individual liberties
seems to be a recognised phenomenon in both these jurisdictions.
Keywords
Privacy; Surveillance; Unlawful Activities (Prevention) Act 1967; National Security; Kharak
Singh v. State of Uttar Pradesh; Telegraph Act; Terrorism and PATRIOT Act.
Resumo
O Direito à Privacidade e a necessidade de Vigilância têm permanecido sempre como uma
questão controversa entre os cidadãos e as agências de aplicação da lei. Este documento
tenta analisar as várias leis relativas à Vigilância nas maiores e mais antigas democracias do
mundo, a Índia e os Estados Unidos da América. Independentemente das grandes variações
nas realidades socioeconómicas e políticas, estes dois países qualificam-se como intrigantes
focos de estudo. Embora o Direito à Privacidade seja geralmente aceite como um direito
fundamental em todas as nações do mundo, a primazia dada à "Segurança Nacional" e,
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e-ISSN: 1647-7251
Vol. 13, Nº. 2 (November 2022-April 2023), pp. 201-219
Privacy and surveillance conflict: a comparative analysis of the laws in the USA and India
Vaibhav Chadha, Thajaswini Coimbatore Balasubramanian, Anshul Bhuwalka
202
simultaneamente, o seu equilíbrio com as liberdades individuais, parece ser um fenómeno
reconhecido em ambas as jurisdições.
Palavras-chave
Privacidade; Vigilância; Lei das Actividades Ilícitas (Prevenção) de 1967; Segurança Nacional;
Kharak Singh v. Estado de Uttar Pradesh; Lei do Telégrafo; Lei do Terrorismo e Lei PATRIOT.
How to cite this article
Chadha, Vaibhav; Balasubramanian, Thajaswini Coimbatore; Bhuwalka, Anshul (2022). Privacy
and Surveillance Conflict: A Comparative Analysis of the laws in the USA and India. Janus.net, e-
journal of international relations, Vol13 N2, November 2022-April 2023. Consulted [online] in date
of last visit, https://doi.org/10.26619/1647-7251.13.2.8
Article received on 17 April 2021, accepted for publication on 6 October 2022
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
Vol. 13, Nº. 2 (November 2022-April 2023), pp. 201-219
Privacy and surveillance conflict: a comparative analysis of the laws in the USA and India
Vaibhav Chadha, Thajaswini Coimbatore Balasubramanian, Anshul Bhuwalka
203
PRIVACY AND SURVEILLANCE CONFLICT:
A COMPARATIVE ANALYSIS OF THE LAWS IN THE USA AND INDIA
VAIBHAV CHADHA
THAJASWINI COIMBATORE BALASUBRAMANIAN
ANSHUL BHUWALKA
1. Introduction and Background
“States are utilizing technology in the most imaginative ways particularly in view of increasing
global terrorist attacks and heightened public safety concerns”.
1
Surveillance typically means to closely observe an individual or a group of individuals,
especially ones who are suspected by law enforcement agencies.
2
Currently, there exist
various types of mechanisms for the government for surveillance. An efficacious
government surveillance regime necessitates the assortment and handling of large scale
personal data which includes sensitive and crucial information as well. Such laws and
programmes raise vital concerns relating to data protection and privacy of millions of
citizens which would be at stake. An effective government policy is one which efficiently
lays a foundational balance between National Security through strategic surveillance and
individual and collective privacy without compromising the rights Constitution provides.
While the United States of America considers Electronic Surveillance as search under the
Fourth Amendment which provides protection to individuals from unreasonable search
and seizure, in India, it is still a growing concern.
3
It is seen that majority of the people do not deter surveillance, stating they do not
particularly have anything to hide. It is the very ideology behind this argument that is
typically flawed, considering there is no rational assessment of how surveillance
influences the behavior of a human. It is due to this that the “chilling effect” is induced,
which makes people behave differently due to the apprehension of being watched,
intercepted, or surveilled in any other way.
4
The chilling effect is said to occur when
people seek to engage in activities that are well within their rights but are deterred due
1
Justice K. S. Puttaswamy (Retd.) and Anr. v. Union of India and Others [2017] 10 SCC 1 503, [585]
2
SAHRDC, ‘Architecture of Surveillance’ [2014] 49 EPW 10, 12
3
Chinmayi Arun, ‘Paper-thin Safeguards and Mass Surveillance in India’ [2014] 26 NLSIR 105, 114
4
Solove, Daniel J, ‘The First Amendment as Criminal Procedure’ [2007] 82 NYU L Rev 112, 154–59
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to governmental restrictions.
5
Therefore, surveillance directly affects an individuals’
rights of essential liberties, like their right to privacy and freedom of speech or
expression. Surveillance by the government can lead to curbing legitimate activities and
restrain disagreement.
6
Concerns like these tend to startle public peace and must not be
allowed in a country like India, which has vibrant democratic ethos.
2. Existing Surveillance Laws in India
One of the gravest breaches and threats to one’s right to privacy is by having an
individual surveilled. This surveillance can be of different forms, involving physical
surveillance, telephonic surveillance, digital surveillance, or any other way to know
everything about a person. As correctly pointed out by George Orwell, it leads to situation
where the mere fact that an individual is aware of their activities being surveilled by
another would cause them to change their conduct.
The two main laws that govern and regulate digital and telephonic surveillance in India
are the Indian Telegraph Act, 1885 and the Information Technology Act, 2000. The Indian
Telegraph Act, 1885 deals with interception of calls wherein under section 5, the act
empowers the Central or the State government to order for interception of messages in
case of occurrence of any public emergency or in the interest of public safety. Rule 419
B was included to the Indian Telegraph Rules, 1951 in the year 2007 which authorised
an officer (not below the rank of a Joint Secretary to the Government of India) to pass
an order for interception in unavoidable circumstances.
The interception of data is dealt with in the Information Technology Act, 2000. Section
69 of the Act empowers the government to intercept, monitor or decrypt any data or
information stored on any computer resources for the reason of public safety, public
order etc. The Information Technology (Procedures and Safeguards for Interception,
Monitoring and Decryption of Information) Rules framed under section 69 of the Act in
2009 explicitly states that only the competent authority can issue an order for
interception, monitoring or decryption of any information generated, transmitted,
received, or stored in any computer resource which include mobile phones as well.
Section 69A of the Act provides the authority to the government to issue directions to
block public access of any information through a computer resource. Section 69B gives
the Central government the power to monitor and collect traffic information or data
through any resource from the computer.
7
One of the noteworthy amendments to the
Information Technology (Amendment) Act, 2008 was the removal of the preconditions of
“public emergency” and “public safety” which are laid down in the Indian Telegraph Act,
1885, and extended the Government’s power to order the interception of communications
for the “investigation of any offense”.
8
The Information Technology (Procedures and
Safeguards for blocking for access of Information by Public) Rules 2009 prohibits
5
Frederick Schauer, ‘Fear, Risk and the First Amendment: Unraveling the “Chilling Effect”‘ [1978] 58 BU L
Rev 693
6
Solove, Daniel J, ‘I’ve Got Nothing to Hide and Other Misunderstandings of Privacy’ (2007) 44 SD L Rev 771
7
Ashok Kumar Kasaudhan, ‘Surveillance and right to privacy: Issues and challenges’ [2017] 3 IJL 73, 81
8
The Information Technology (Amendment) Act 2008
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Privacy and surveillance conflict: a comparative analysis of the laws in the USA and India
Vaibhav Chadha, Thajaswini Coimbatore Balasubramanian, Anshul Bhuwalka
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interception or monitoring or decryption of information without authorisation. However,
under both these laws, only the government is authorized to conduct surveillance.
9
Apart from the above major laws on surveillance, there are other statutes which provides
for interception of communication and lays grounds upon their usage. The Unlawful
Activities Prevention Act, 1967 (UAPA),
10
the prominent anti-terror law in India, proved
to be a departure from some of the traditional criminal justice administration system and
allowed legally intercepted information as an admissible evidence for an offence under
the Act.
11
The Act has tried to strengthen anti-terrorism measures by redefining the term
‘Terrorism Act’ and providing stringent punishments for the same under sections 15 to18.
The Act also conferred special powers for arrest, search, and seizure under sections 43A
to 43D.
Section 26 of the Indian Post Office Act, 1898 also authorises the Central and State
government to intercept postal articles in case of public emergency or for the interest of
public tranquillity; Section 91 of the Indian Code of Criminal Procedure, 1973 monitors
targeted access to stored data and information. Under rule 4(2) of the Information
Technology Guidelines for Cyber Cafes Rules 2011, cyber cafes are required to retain
copies of user identification for a period of one year and rule 5 mandates that the cyber
cafes must retain logs of user information and browsing history for a period of one year.
The Personal Data Protection Bill 2019,
12
(PDP Bill) which was introduced in the Lok Sabha
on 11th of December 2019 aims at striking a reasonable balance between security and
privacy. Section 35 of the PDP Bill assures for an exemption for carrying out surveillance
activities by government agencies for the reasons of national security, public order,
friendly relations with foreign states, integrity and sovereignty, and for preventing any
cognizable criminal offences.
13
2.1. Analysis of the Indian Laws
Although it has been established that the authority to intercept a telephonic
communication is provided under Section 5 of the Telegraph Act, in pursuance to the
prescribed procedure, Rule 419A of the Telegraph Rules, 1951 restricts such authority to
the Union Home Secretary in case of the Central law enforcement agencies, and the
Home Secretary to the State Government, in case of the State law enforcement agencies.
However, in unavoidable circumstances, the concerned law enforcement agencies with
the permission of its head or the second highest ranking officer who is not below the rank
of an Inspector General are permitted to carry out emergency interception. In such cases,
9
Maria Xynou, ‘Policy Recommendations for Surveillance Law in India and an Analysis of Legal Provisions on
Surveillance in India and the Necessary & Proportionate Principles’ [2015] CIS <https://cis-
india.org/internet-governance/blog/policy-recommendations-for-surveillance-law-in-india-and-analysis-of-
legal-provisions-on-surveillance-in-india-and-the-necessary-and-proportionate-principles.pdf> accessed
06 March 2021
10
The Unlawful Activities (Prevention) Act 1967
11
The Unlawful Activities (Prevention) Act 1967, s 46
12
Personal Data Protection Bill 2019
13
Kazim Rizvi, ‘Personal Data Protection Bill 2019 and Surveillance: Balancing Security and Privacy’, [2020]
INC42 <https://inc42.com/resources/personal-data-protection-bill-2019-and-surveillance-balancing-
security-and-privacy/> accessed 06 March 2021
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the said law enforcement agencies are bound to notify the Home Secretary in not more
than three days to explain their quick action.
14
Considering possible loopholes in the procedure, which may lead to breaching multiple
fundamental rights of another, the Telegraph Rules 1951 also prescribe for a review
mechanism
15
. The said review committee is headed by the Cabinet Secretary, Law
Secretary, and the Secretary Telecommunications in case of Central law enforcement
agencies and the Chief Secretary, Law Secretary, and another member other than the
Home Secretary, appointed by the State Government in case of the State law
enforcement agencies
16
. This committee is entrusted to review the copies of every
authorisation of interception as received from the concerned Home Secretary within
seven days. In case the review committee finds any authorization unreasonable or
wanting, the respective interception is to cease with immediate effect.
On the face of it, these Rules followed by the stringent laws and protections seem
comprehensive, having sufficient safeguards. However, on the basis of the Central
government’s response to various Right to Information (RTI) applications dated back in
2014, the Union Home Ministry annually approves about one lakh (one hundred
thousand) requests of interceptions of telecommunications.
17
In this case, if we were to
assume an average of about 8,000 requests per month, it would sum up to over 250
requests per day. It is important to note that while considering and reviewing such
requests by the law enforcement agencies, the respective authority is to lay emphasis on
a possibility to acquire the said information by alternate means, and if not, only then the
reasons for such interception shall be recorded in the Order allowing it.
18
It is apparent that law contemplates a quasi-judicial application of mind while deciding
the request of interception and surveillance, and not a mere clerical process of
ambiguously rejecting or approving such requests. It is however pertinent to note that
the matters allowing jurisdiction to the Union Home Ministry include internal security,
border management, affairs pertaining to Jammu and Kashmir and Ladakh,
administration of union territories, Centre-State relations, national language, police,
human rights, prison management and pensions.
19
However, it is far from imagination
as to how one can do justice to all applications requesting to infringe the citizens’
essential fundamental rights, considering the large number of such applications along
with the variety of affairs of the Home Secretary, on an everyday basis. Furthermore,
the fact that how many Home Secretaries have previously had technical competence or
legal training to make such important decisions, has also been neglected.
Home Secretaries for the Union and the State are selected from the Indian Administrative
Service. Although the extreme intelligence and the level of intellectual experience in
14
Stakeholder Report, ‘The Right to Privacy in India’ [2016] UPR CIS India and Privacy International,
<https://www.upr-info.org/sites/default/files/document/india/session_27_-
_may_2017/js35_upr27_ind_e_main.pdf> accessed 08 March 2021
15
Indian Telegraph Rules 1951, Rule 419A
16
Indian Telegraph Rules 1951, Rule 419A (16)
17
Zubin Dash, ‘Do Our Wiretapping Laws Adequately Protect the Right to Privacy?’ [2018] 53(6) E&PW
<https://www.epw.in/engage/article/can-government-continue-unhindered-wiretapping-without-flouting-
right-privacy> accessed 06 October 2020> accessed 16 February 2021
18
SFLC, ‘India’s Surveillance State: Communications Surveillance in India’ [2014] SFLC <http://sflc.in/wp-
content/uploads/2014/09/SFLC-FINAL-SURVEILLANCE-REPORT.pdf.> accessed 22 September 2020
19
Ministry of Home Affairs, Government of India, 2020 <https://www.mha.gov.in/departments-of-mha>
accessed 06 October 2020
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matters pertaining to Home and State pertain in the said candidates, the judicial
application of mind while considering requests for interception or surveillance remains
missing. The decisions regarding fit cases for interception are not made by the judicial
officers, but by a generalist bureaucrat with little to no experience in law enforcement
and intelligence gathering. This may not only result in serious violation of rights of the
citizens, when taken from the citizens’ point of view, but may also result in serious
ramifications for the State. For instance, if an officer entrusted with such duty being
bereft legal, technical, and judicial training, scared of repercussions like being pulled for
sanctioning too many requests for surveillance then chooses to reject other set of
applications en masse, it can have grave implication on the security and integrity of the
State.
3. Right to Privacy in the Indian Legal Framework
India’s journey towards finally having the ‘right to privacy’ as a recognized fundamental
right has rather been a long one. Starting from the roots of the Kharak Singh case,
20
which was decided in 1962, to the 2017 Justice K. Puttaswamy judgment,
21
the right to
privacy has finally been declared as an inclusive part of Article 21 of the Indian
Constitution.
22
The right to privacy in its full context was considered by the bench for the
very first time, in the Kharak Singh case, although it was not recognized to be a right
guaranteed by the Constitution.
23
The bench had connected the effect of law enforcement
agencies’ surveillance mechanisms on the petitioner’s right to privacy. However, the
bench in the PUCL case
24
pronounced the judgment in support of Justice Subba Rao’s
dissenting opinion in the Kharak Singh case, which lead to the expansion of the scope of
Article 21, to include “right of an individual to be free from restrictions or encroachments
on his person”.
25
The Kharak Singh judgment further went on to relate physical restraint with physical
encroachment, stating, if the former affects one’s personal liberty, the latter is equally
set to affect their private life. It clarified that nothing remains more important to an
individual holding a calculated interference with their privacy. And in this context, the
bench had declared,
“we would, therefore, define the right of personal liberty in Art. 21 as a right
of an individual to be free from restrictions or encroachments on his person,
whether those restrictions or encroachments are directly imposed or indirectly
brought about by calculated measures”.
26
The Kharak Singh case closely followed the examination of the American Fifth and
Fourteenth Amendments, which guarantees life, liberty and property, and is followed by
the examination of the Fourth Amendment, which protects a person from unreasonable
20
Kharak Singh v. State of Uttar Pradesh [1964] 1 SCR 332
21
Justice K. S. Puttaswamy (Retd.) and Anr. v. Union of India and Others [2017] 10 SCC 1 503
22
Constitution of India 1950, a 21
23
Kharak Singh v. State of Uttar Pradesh [1964] 1 SCR 332, [15]
24
People’s Union for Civil Liberties v. Union of India [1997] 1 SCC 301, [18]
25
Kharak Singh v. State of Uttar Pradesh [1964] 1 SCR 332, [28]
26
Ibid 28.
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Vaibhav Chadha, Thajaswini Coimbatore Balasubramanian, Anshul Bhuwalka
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searches and seizures. The Fourth Amendment ambiguously admits that the Constitution
contains no like guarantee,
27
but holds nonetheless that
“an unauthorised intrusion into a person’s home or the disturbance caused to
him thereby, is as it were the violation of a common law right of a man - an
ultimate essential of ordered liberty”.
28
This jurisprudence, however, has been based on the common law of trespass, where a
person’s property was held sacrosanct, and not open to be trespassed against. Almost
four years after the Kharak Singh case was decided, in Katz,
29
the US Supreme Court
shifted its own jurisprudence to hold that the Fourth Amendment protected zones where
persons had a “reasonable expectation of privacy", as opposed to simply protecting listed
items. Kharak Singh case was handed down before Katz, yet it expressly showed that
the rulings in Katz were well anticipated in expressly grounding article 21’s personal
liberty right within the meaning of dignity.
In the coming decades, the PUCL case then highlighted the issue of the right to privacy
in the context of elevating it to a Constitutional status. The bench, therefore, relied on
the decision in R. Rajagopal v. State of Tamil Nadu (‘Rajagopal’),
30
which held that the
right to privacy was an implicit aspect under the right to life and liberty, as was
guaranteed to all the citizens of the country, under Article 21.
31
The Court in Rajagopal’s
case also went a step forward to expand the concept of the right to privacy, and included
the “right to be let alone” and “safeguarding the privacy of another”.
32
The PUCL case, hence, succeeded in showing the evolution of the Supreme Court’s
conception of privacy. In this way, the ‘right to privacy’ was expanded beyond the
physical realm to include personal communications. It was held that an individual’s right
to have a telephonic conversation in the privacy of their home or office without any
interference could be claimed as their right to privacy.
33
However, in the contemporary
context, it can rightfully be understood that this evolving paradigm of privacy equally
encompasses online communications under its bracket.
3.1. Indian Judiciary and Surveillance
Indian Judiciary in its various judgements has dealt with surveillance issues, which have
been highly prominent in determining the privacy landscape in India. The Indian Supreme
Court in Hukam Chand Shyam Lal v. Union of India interpreted the scope of section 5 of
the Telegraph Act and held that the existence of “emergency”, which is a prerequisite for
the exercise of power to take possession of any telegraphs must be a “public emergency”
and not any other kind of emergency. The court further clarified that the scope of “public
emergency” relates to the situations contemplated under the sub-section pertaining to
“sovereignty and integrity of India, the security of the State, friendly relations with
27
Wolf v. Colorado [1949] 338 US 25, [2]
28
Kharak Singh v. State of Uttar Pradesh [1964] 1 SCR 332, [15]
29
Katz v. United States [1967] 389 US 347
30
R. Rajagopal v. State of Tamil Nadu [1994] 6 SCC 632
31
R. Rajagopal v. State of Tamil Nadu [1994] 6 SCC 632, [28]
32
R. Rajagopal v. State of Tamil Nadu [1994] 6 SCC 632, [26]
33
People’s Union for Civil Liberties v. Union of India [1997] 1 SCC 301, [18]
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foreign States or public order or for preventing incitement to the commission of an
offence”.
34
Alongside the same, one other major issue with the prevailing laws on surveillance is its
concentration of power exclusively within the executive branch of the government. The
Court in PUCL v. Union of India did not impose the prior requirement of a case-by-case
judicial standing for requests of surveillance, and left this important gatekeeping to the
executive branch.
35
However, the need to revisit this considering it contravenes the very
principle of separation of powers, creating a conflict of interests within the executive, as
the executive itself is responsible for both, surveillance of an individual and deciding
whether intercepting of that individual’s telecommunication would be just in law and
reasonable of his fundamental rights. Therefore, with the most basic rights of lakhs of
citizens being at stake, which was not arguably the case when the PUCL was decided, it
remains important that every application of request of surveillance be evaluated
individually with a broader application of judicial mind, to determine whether the said
application is legitimate towards justifying an infringement of one’s rights or not.
The constitutional validity of Section 69A of the Information Technology Act, 2000 read
with the Information Technology (Procedures and Safeguards for Blocking for Access of
Information by Public) Rules, 2009, which allows blocking of access to information was
upheld by the Supreme Court in the case of Shreya Singhal v. Union of India.
36
In Anuradha Bhasin v. Union of India,
37
the Hon’ble Supreme Court has reiterated and
explained the scope of ban/restriction on Internet imposed by the State and its rationality
and constitutionality. The court also laid emphasis and recognized the fact that modern
terrorism heavily relies on internet and realized the need to be vigilant and careful in
handling such a powerful and effective tool.
38
The Hon’ble Supreme Court has implicitly upheld selective government action and
interception through internet to stop terrorism using the means of internet and its
regulation and surveillance rather than to impose a blanket ban on internet over any area
or to adopt stringent law for counter-terrorism measures. Even though the Indian
Judiciary has felt the importance of imposing reasonable restrictions on the right to
privacy and the importance of the evidentiary values of such information obtained
through Interception and Surveillance, it has still shown reluctance in realizing the raising
need for stringent Surveillance laws in the country to curb the incessant increase in
threats to National Security.
39
34
Hukam Chand Shyam Lal v. Union of India [1976] 2 SCC 128, [13]-[16]
35
People’s Union for Civil Liberties v. Union of India [1997] 1 SCC 301, [35]
36
Shreya Singhal v. Union of India (2015) 5 SCC 1, [116], [119]
37
Anuradha Bhasin v. Union of India (2020) 3 SCC 637 [150]
38
Anuradha Bhasin v. Union of India (2020) 3 SCC 637 [43]
39
Anuradha Bhasin v. Union of India (2020) 3 SCC 637 [45]
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4. Surveillance Laws in the US and the role of US Judiciary:
“Terrorism is escalating to the point that citizens of the United States may soon have to choose
between civil liberties and more intrusive forms of protection”.
40
Ratified in 1791, the Fourth Amendment of the US Constitution provided the basic
framework for the protection of citizen’s personal communication from intrusion by the
government. Right to Privacy was first recognised as a part within the Fourth Amendment
in 1886 by the US Supreme court in the case of Boyd v. United States,
41
where the court
held that it is inappropriate to trespass a person’s liberty through inspection of his
personal communications.
At first, the US Judiciary did not recognise the need to ensure a proper separation of
powers and its role in protecting in the rights of individuals from “unreasonable searches
and seizures” from the government as provided by the Fourth Amendment.
42
However,
with the raising growth of the field of electronic surveillance, the United States Judiciary
realised its role to balance substantial constitutional concerns between the right to
personal liberties and privacy of its citizens with the security concerns and interests of
the US government.
The US Judiciary initially held that electronic surveillance/eavesdropping was not a search
or seizure implicated in the Fourth Amendment in the case of Olmstead v. U.S (1928)
43
as the government intercepted information without entering the place of surveillance.
The Supreme Court held that due to the essential elements of entry, search and seizure
involved in the interception of the communication, the Fourth Amendment did not protect
telephonic conversations.
44
Following the Court’s decision in this case, the Congress enacted the Communications
Act
45
in 1934, which states that no person (unless authorised) shall intercept any radio
communication and divulge or publish the existence, contents, substance, purport, effect
or meaning of such intercepted communication to any person, and that anyone
possessing such intercepted communication shall not make use of the same for their own
benefit or for the benefit of another not entitled thereto. However, in Katz v. United
States,
46
the Supreme Court overruled Olmstead and held that electronic surveillance is
constitutional but only when such measures are bound by procedural safeguards which
justifies the same and held that the Fourth Amendment protects any place maintainable
as an exception of privacy which is reasonable. The Court held that “the Government's
activities in electronically listening to and recording the petitioners' words violated the
40
Col. Thomas W. McShane, ‘Life, Liberty and the Pursuit of Security: Balancing American Values in Difficult
Times’ [2001] PA. LAW 46
41
Boyd v. United States [1886] U.S. 616, [116]
42
Jie Xiu, ‘The Roles of the Judiciary in Examining and Supervising the Changing Laws of Electronic
Surveillance’ [2003] 28 Seton Hall Legis J, 229
43
Olmstead v. United States [1928] 277 U.S. 438, [465]-[466]
44
Olmstead v. United States [1928] 277 U.S. 438, [466]
45
Pub. L. No. 73-416, 48 Star. 1064 [1934]; 47 U.S.C. § 605 [2000].
46
Katz v. United States [1967] 389 U.S. 347, [359]
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privacy upon which he justifiably relied while using the telephone booth and thus
constituted a 'search and seizure' within the meaning of the Fourth Amendment”.
47
As a legislative response to this case, Title III was enacted by the Congress.
48
Pursuant
to this legislation, before engaging in activities of surveillance, law enforcement agencies
are required to obtain warrants for investigation
49
and for such a warrant to be granted
by the judge, he must be convinced that an apparent cause exists and that a grave crime
has been or is about to be committed,
50
thus laying a substantial ground of protection
against unreasonable searches and seizures. Title III provided a broader scope of not
interfering the surveillance activities of the executive over matters of foreign
intelligence.
51
Initiating the establishment of Surveillance Laws in the US, in 1968, Congress passed a
federal wiretapping statute in Title III of the Omnibus Crime Control and Safe Streets Act
in response to the Supreme Court's criticism of the statute in Berger v. New York,
52
where
the court struck down the New York statute which authorized the law enforcement
agencies to eavesdrop electronic communications and mounting public awareness of the
government's illegitimate use of wiretaps.
53
By passing Title III, the Congress authorized
law enforcement officers with the ability to efficiently be vigilant towards anti-
governmental activities, while balancing the corresponding privacy of innocent people.
54
In order to keep itself in level with the perpetual advances and improvements made to
communication technologies, the Congress continually kept amending Title III.
55
It was not until 1972, in the case of United States v. United States District Court,
56
the
US Supreme Court first addressed the problems related to national security and
surveillance and allowed the Congress to formulate standards and guidelines for domestic
security wiretaps, however holding that the President should exercise his executive
authority within the limitations under the Fourth Amendment.
57
The Court, while
examining the Fourth Amendment considering the executive authority of warrantless
foreign intelligence surveillance, recognised an inherent national security exception in
exercising such authority and held it to be constitutional.
58
The Congress enacted the Foreign Intelligence Surveillance Act of 1978 (FISA), which
widened the executive branch’s Title III powers for search and seizure with regards to
foreign enemies, responding to the inclined threat to national security from abroad.
59
By
passing FISA, the Congress authorized the Executive Branch to conduct authentic
47
Katz v. United States [1967] 389 U.S. 347, [353]
48
Jie Xiu, ‘The Roles of the Judiciary in Examining and Supervising the Changing Laws of Electronic
Surveillance’ [2003] 28 Seton Hall Legis J, 229
49
18 U.S.C. 1994, s 2518(3)(a)
50
18 U.S.C. 1994, s 2516(1)
51
18 U.S.C. 1994, s 2511(2)(e)(f)
52
Berger v. New York [1967] 388 U.S. 41, [44], [51], [59]-[60]
53
Pub. L. No. 90-351, Title 111, 82 Stat. 197, 211 [1968]
54
Barry D. Roseman, ‘Electronic Platform, E-mail and Privacy Issues’, [2001] SGO16 A.L.I.-A.B.A. 1165, 1166-
67
55
Barry D. Roseman, ‘Electronic Platform, E-mail and Privacy Issues’, [2001] SGO16 A.L.I.-A.B.A. 1165, 1167-
68
56
United States v. United States District Court [1972] 407 U.S. 297, [299]
57
United States v. United States District Court [1972] 407 U.S. 297, [321]-[323]
58
United States v. Truong Dinh Hung [1980] 629 4th Cir. 908, [912]-[913]
59
Pub. L. No. 95-604, at 3904, 3916 [1977].
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212
electronic surveillance for foreign intelligence
60
tenacities within the context of the
nation's obligation to privacy and individual rights. When such inherent powers given for
foreign intelligence activities were challenged based on its constitutional validity in the
case of United States v. United States District Court,
61
the Supreme Court emphasized
on the necessity of judicial interventions in concerned matters of Surveillance conducted
for National Security pursuant to FISA and provided more effective checks and balances
on the executive authorities. However, the court also provided a discrete justification for
surveillance activities nevertheless leaving many issues unanswered.
62
Title III was further amended by the Congress by passing the Electronic Communications
Privacy Act of 1986 (ECPA) which served as a domestic surveillance legislation in
response to the increasing technological developments and use of computers, internet
and cellular telephones for emails and other communication purposes. The ECPA
institutes a judicial controlled procedure to permit surveillance and interceptions for law
enforcement purposes.
63
The Act made Title III applicable to trap-and-trace devices,
voice mail and e-mail messages, and other forms of electronic and digital
communications, such as radio transmissions, telegraphs, wire communications, etc. In
its Second Report and Order of 2006, the Communications Assistance for Law
Enforcement Act of 1994 (CALEA) mandated the telecommunications companies to
cooperate and support all the efforts taken with the targeted
electronic surveillance initiatives of the Government and such cooperation may include
modifications to the design of equipment, facilities, and services.
64
On October 26, 2001, United States President George W. Bush signed the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 (hereinafter PATRIOT Act)
65
within 6 weeks of the 9/11 terror
attacks, which provided autonomy to investigating agencies to employ surveillance
measurers to counter anti-national and terrorist activities, while instantaneously
dropping judicial regulation and accountability for the same. By expanding the ability and
authority of the government for carrying out electronic surveillance, the PATRIOT Act
ensured the government’s authority to monitor and sabotage indefinable terrorist
network groups domestically and across international borders.
66
The PATRIOT Act
removed the enforcement barriers for the intelligent agencies by granting additional
wiretapping and surveillance authority. For example, section 106 of the PATRIOT Act
allows the President to summarily confiscate and sell the assets and property of foreign
nationals he determines were responsible for attacks on the United States; section 210
of the Act allows investigators to intercept telephone and ISP records and section 214
allows governmental trap and trace orders.
60
50 U.S.C. 1994, s 1804(a)(4)(A)
61
United States v. United States District Court [1972] 407 U.S. 297, [299]
62
Michael F Dowley, ‘Government Surveillance Powers under the USA Patriot Act: Is It Possible to Protect
National Security and Privacy at the Same Time - A Constitutional Tug-of-War’ [2002] 36 Suffolk U L Rev
165
63
18 U.S.C. 2510-2522
64
‘Electronic Surveillance’, Legal Information Institute, Cornell Law School
<https://www.law.cornell.edu/wex/electronic_surveillance#footnote2_nhopdas> accessed 30 August 2020
65
Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act of 2001 (USA PATRIOT Act), Pub. L. No. 107-56, 115 Stat. 272 [2001].
66
Lt. Col. Joginder S. Dillon & Lt. Col. Robert Smith, ‘Defensive Information Operations and Domestic Law:
Limitations on Government Investigative Techniques’, [2001] 50 A.F. L. REV. 135, 148
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213
Even in its most recent instance, the US Supreme Court in Timothy Ivory Carpenter v.
United States
67
measured the state's exercise of police powers against a citizen's right to
privacy and held that government access of mobile phone records was indeed a Fourth
Amendment search, which include the safeguard of certain expectations of a person's
privacy. This proves that the US Judiciary felt the need and importance of inculcating
stringent measures of Surveillance for protecting the interests of the state and for
national security and to balance the same with the individual’s right to privacy.
68
Thus,
the US government possesses significant amount of authority over matters of national
security, public welfare, state’s interest, and defence although there exists certain radius
of constitutional limitations.
69
5. The need for the enactment of stringent laws in India
In comparison to the laws in India, the model followed in the United States requires a
prior judicial intervention for the authorization of wiretapping, interception or other ways
of surveillance. The procedure for the same is followed in similar lines to that of a judge
issuing warrants of search or arrests.
70
Although the scheme as followed in the United
States can seem to be the most content to protect the rights of the citizens and attractive
on the human rights’ front, however, it could be debatable to have this followed in the
Indian context considering the overburdened segment of the judiciary with higher rates
of pendency than ever along with the vacancies.
71
The purpose for recognizing the US legal system as a frame of reference to equate and
analyze the Indian position is primarily because much like India, America has also been
facing a tremendous revolutionary change in its legal system with respect to privacy
issues and surveillance post the 9/11 attacks, which laid the foundation of the PATRIOT
Act. Similarly, post 26/11 Mumbai terror attacks, India observed unprecedented changes
in its anti-terrorism measures to provide greater autonomy to the investigating agencies.
5.1. The Menace of Terrorism and absence of effective Surveillance laws
“The Internet is a prime example of how terrorists can behave in a truly transnational
way; in response, States need to think and function in an equally transnational
manner”.
72
67
Timothy Ivory Carpenter v. United States [2018] 585 U.S.
68
Nehaa Chaudhari, Smitha Krishna Prasad, ‘Carpenter v. United States: State Surveillance and Citizen
Privacy’ [2019] 13 NALSAR Stud L Rev 129, 133-135, 143-146
69
Col. Thomas W. McShane, ‘Life, Liberty and the Pursuit of Security: Balancing American Values in Difficult
Times’, [2001] PA. LAW 46
70
Solove, Daniel J, ‘The First Amendment as Criminal Procedure’ [2007] 82 NYU L Rev 112, 154–59
71
Gowda, Sadananda, ‘Pending Court Cases: Written Reply by Union Minister of Law and Justice, Government
of India in the Lok Sabha, 3 December, 2015, 16th Lok Sabha’ [2015] Lok Sabha Debates, Parliament of
India
72
Ban Ki-moon,
<https://www.unodc.org/documents/frontpage/Use_of_Internet_for_Terrorist_Purposes.pdf> accessed 04
March 2021
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“Terrorist organizations have also begun to employ websites as a form of information
warfare which disperses inaccurate material which triggers scandalous
consequences”.
73
Contemporary terrorism heavily depends on internet. Operations on the internet are not
easily traceable and this funds fallacious proxy wars and an easy inroad to young and
impressionable minds. Social media platforms serve as an efficient weapon to reach
young minds, to spread anti-national ideologies and recruit members. For example, the
Al-Qaeda’s websites carry manuals on how to construct explosive devices.
74
India is devoid of a concrete Surveillance Law to curb this imminent issue. India requires
a solid foundational law on Surveillance, which also protects the personal data and
information. In fact, the gaps, and loopholes in the National Security ecosystem in India
aided as an advantage for the terrorists who attacked Mumbai on 26/11.
75
There is a
rising need for a wholesome law in the country, which covers the broader facets of
national security and counter-terrorism measures. The laws must meet all the technical
requirements based on the available capability and endure for a proper use of all the
surveilled material.
The aftermath of Justice K.S. Puttaswamy judgement saw the uprooting of the Personal
Data Protection Bill in 2019 which aims at balancing National Security and Privacy and
restricted the authority to permit surveillance only to the Home Secretary, Ministry of
Home Affairs and to the Government of India.
Richard A Posner, Senior lecturer in law at the University of Chicago, rightly observes:
Privacy is the terrorist's best friend, and the terrorist's privacy has been
enhanced by the same technological developments that have both made data
mining feasible and elicited vast quantities of personal information from
innocents: the internet, with its anonymity, and the secure encryption of
digitized data which, when combined with that anonymity, make the internet
a powerful tool of conspiracy. The government has a compelling need to
exploit digitization in defense of national security.
76
Comparing the U.S. Supreme Court’s decision in Thomas Ivory Carpenter v. United States
and the Indian Supreme Court’s decision in Puttaswamy v. Union of India, it is evident
to note that the Indian Judiciary has not yet identified a broad exception to the right of
privacy corresponding to that of the U.S. Judiciary.
77
The United States enacted the USA PATRIOT Act sensing the importance of a National
Surveillance regime witnessing the aftermath of the 9/11 attacks in 2001. The revelations
73
Gregory S. McNeal, ‘Cyber Embargo: Countering the Internet Jihad’, [2007] 39 Case W Res J Int’l L 789
74
Jason Burke, ‘Al-Qaeda launches online terrorist manual, [2004] The Guardian
<https://www.theguardian.com/technology/2004/jan/18/alqaida.internationalnews> accessed 30
December 2020
75
Dhaval D. Desai, Parjanya Bhatt, ‘Securing India’s Cities: Remembering 26/11, Learning its
Lessons’, [2019] ORF Special Report No. 92
76
Richard A. Posner, ‘Privacy, Surveillance, and Law’, [2008] 75 Uni. of Chicago L Rev. 251
77
Nehaa Chaudhari, Smitha Krishna Prasad, ‘Carpenter v. United States: State Surveillance and Citizen
Privacy’ [2019] 13 NALSAR Stud L Rev 129
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215
made by Edward Snowden, the whistle-blower, in 2013 tells us about the usage of phone
companies by the US Government to collect relevant information on millions of citizens.
78
The disclosures made by Snowden were responsible for exposing the US government’s
scope of surveillance activities of which it became evident that India was their prominent
target.
79
On December 13, 2001, five terrorists attacked the Indian National Parliament, which
resulted in killing of seven persons and placing the country into a heightened state of
alert.
80
The Government of India, in March 2002, like its American counterpart, passed
the Prevention of Terrorism Act (POTA), to augment India's ability to crack down on
conceivable terrorist threats.
81
The Government reiterated that its action was a response
to “an upsurge of terrorist activities, intensification of cross border terrorism, and
insurgent groups in different parts of the country”.
82
Section 45 of Act provided for the
admissibility of evidences collected through the interception of communication. All
evidence collected through the interception of wire, electronic or oral communication
were made admissible as evidence against the accused in court during the trial of the
case. The act also laid down various safeguards to prevent the misuse of powers by
authorities against innocent persons. However, on the 17 September 2004, the act was
repealed by the successive government, which came to power after the national
elections.
Similarly, considering the 2008 Mumbai terror attacks, India adopted a wide range of
schemes and data sharing methodologies for surveillance to enhance public safety and
security and to tackle the growing crime and terrorism in the country. The Government
of India amended the Information Technology Act, 2000 to provide for the offence of
cyber terrorism under section 66F.
A July 2020 United Nations’ Report on Terrorism revealed that there are “significant
numbers” of Islamic State (IS) terrorists in India.
83
This indicates the need for strong
surveillance laws. The contention of the authors is that while the U.S. Patriot Act placed
new regulations on the use of governmental surveillance and sought to curtail and avoid
future terrorist acts by intensifying the federal government’s powers, India is yet to
design a strategic framework in shape of a vigilant law to curb such activities against the
state.
It is therefore clear that whichever model of governing such concerns is ultimately
chosen, either an independent authority or a privacy commissioner as suggested by
78
Sriram, Jayant, ‘What are the surveillance laws in India?’ [2019] The Hindu,
<https://www.thehindu.com/news/national/what-are-the-surveillance-laws-in-india/article29993602.ece>
accessed 01 December 2020
79
Glenn Greenwald, Shobhan Saxna, ‘India among Top Targets of Spying by NSA’ [2013]
<http://www.thehindu.com/news/national/india-among-top-targets-of-spying-by-
nsa/article5157526.ece> accessed 10 December 2020
80
Rediff News Serv., ‘The Attack on Parliament (2001)’ <http://www.rediff.com/news/pat2001.htm>
accessed 01 December 2020
81
Prevention of Terrorism Act 2002
82
Christopher Gagné, ‘POTA: Lessons Learned from India’s Anti-Terror Act’ [2005] 25 B.C. Third World
L.J. 261
83
PTI, ‘U.N. report flags Islamic State threat in Karnataka, Kerala’ [2020] The Hindu
<https://www.thehindu.com/news/national/kerala/un-report-flags-islamic-state-threat-in-karnataka-
kerala/article32189443.ece#> accessed 09 December 2020
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Vaibhav Chadha, Thajaswini Coimbatore Balasubramanian, Anshul Bhuwalka
216
Justice A P Shah (Retd.) Committee in 2012,
84
the body shall thread its staff from the
law enforcement agencies, civil society, intelligence community and the judiciary.
However, while the best model is yet to be examined and designated, it would be wise
to have the respective Home Secretaries be provided with a dedicated team of joint
secretaries, with prior experience in security, investigations, and intelligence.
6. Conclusion
While the prospect of fashioning a model surveillance framework, which protects the
privacy of individuals without compromising national security, continues to be debated,
currently this seems to be the only remaining reconciliation possible between the two
seemingly conflicting yet necessary ideals.
85
The government of India carries out
surveillance by various authorities through its numerous laws and license agreements for
service providers under its legal framework. Though the legalised, defensible, and
targeted surveillance can be an effective tool in ministering law enforcement agencies in
attempting to tackle crime and terrorism, an umbrella surveillance law which
encompasses all requisite anti-terrorism mechanisms while adequately safeguarding
individual’s right to privacy and data protection is the need of the hour in India. Though
the Government of India has been deploying various strategies and projects for mass
surveillance activities, details of such operations and their legal safeguards are uncertain
due to lack of proper verified information and lack of specific statutory backing.
86
There is a need for a robust and comprehensive law which synchronises synergy between
the states and citizens, providing undivided attention to significant problems of
composing effective governmental measures and enforcement of the same. While the US
has taken cognizance of the impact of technological developments which pose a major
threat to national security by framing “near perfect surveillance laws”,
87
India, on the
other hand, has very limited safeguards protecting the privacy of its citizens and
relatively less effective surveillance laws to protect its national security.
References
I. Cases
Anuradha Bhasin v. Union of India, (2020) 3 SCC 637
Berger v. New York, [1967] 388 U.S. 41
Boyd v. United States, [1886] ] U.S. 616
Hukam Chand Shyam Lal v. Union of India, [1976] 2 SCC 128
84
Justice A P Shah (Retd.) Committee, ‘Report of the Group of Experts on Privacy’ [2012] Planning
Commission, Government of India. Available online at:
<https://pib.gov.in/newsite/PrintRelease.aspx?relid=88503>
<http://www.planningcommission.nic.in/reports/genrep/rep_privacy.pdf> accessed 03 March 2021
85
Agnidipto Tarafder, ‘Surveillance, Privacy and Technology: A Comparative Critique of the Laws of USA and
India’ [2015] 57(4) ILI J. 550, 578
86
Chaitanya Ramachandran, ‘PUCL v. Union of India Revisited: Why India’s Surveillance Law Must Be
Redesigned for the Digital Age’ [2014] 7 NUJS L Rev 105
87
Timothy Ivory Carpenter v. United States [2018] 585 U.S., [13]
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
Vol. 13, Nº. 2 (November 2022-April 2023), pp. 201-219
Privacy and surveillance conflict: a comparative analysis of the laws in the USA and India
Vaibhav Chadha, Thajaswini Coimbatore Balasubramanian, Anshul Bhuwalka
217
Justice K. S. Puttaswamy (Retd.) and Anr. v. Union of India and Others, [2017] 10 SCC
1
Katz v. United States, [1967] 389 US 347
Kharak Singh v. State of Uttar Pradesh, [1964] 1 SCR 332
Olmstead v. United States, [1928] 277 U.S. 438
People’s Union for Civil Liberties v. Union of India, [1997] 1 SCC 301
R. Rajagopal v. State of Tamil Nadu, [1994] 6 SCC 632
Shreya Singhal v. Union of India, [2015] 5 SCC 1
Timothy Ivory Carpenter v. United States, [2018] 585 U.S.
United States v. United States District Court, [1972] 407 U.S. 297
Wolf v. Colorado, [1949] 338 US 25
II. Articles
Arun C., ‘Paper-thin Safeguards and Mass Surveillance in India’ [2014] 26 NLSIR 105
Chaudhari N., Smitha Krishna Prasad, ‘Carpenter v. United States: State Surveillance
and Citizen Privacy’ [2019] 13 NALSAR Stud L Rev 129
Desai D., Parjanya Bhatt, ‘Securing India’s Cities: Remembering 26/11, Learning its
Lessons’, [2019] ORF Special Report No. 92
Dillon J. & Smith R., ‘Defensive Information Operations and Domestic Law: Limitations
on Government Investigative Techniques’, [2001] 50 A.F. L. REV. 135
Dowley M., ‘Government Surveillance Powers under the USA Patriot Act: Is It Possible to
Protect National Security and Privacy at the Same Time - A Constitutional Tug-of-War’
[2002] 36 Suffolk U L Rev 165
Gagné C., ‘POTA: Lessons Learned from India’s Anti-Terror Act’ [2005] 25 B.C. Third
World L.J. 261
Kasaudhan A., ‘Surveillance and right to privacy: Issues and challenges’ [2017] 3 IJL 73
McNeal G., ‘Cyber Embargo: Countering the Internet Jihad’, [2007] 39 Case W Res J Int’l
L 789
McShane T., ‘Life, Liberty and the Pursuit of Security: Balancing American Values in
Difficult Times’ [2001] PA. LAW 46
Posner R., ‘Privacy, Surveillance, and Law’, [2008] 75 Uni. of Chicago L Rev. 251
Ramachandran C., ‘PUCL v. Union of India Revisited: Why India’s Surveillance Law Must
Be Redesigned for the Digital Age’ [2014] 7 NUJS L Rev 105
Roseman B., ‘Electronic Platform, E-mail and Privacy Issues’, [2001] SGO16 A.L.I.-A.B.A.
1165
SAHRDC, ‘Architecture of Surveillance’ [2014] 49 EPW 10
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
Vol. 13, Nº. 2 (November 2022-April 2023), pp. 201-219
Privacy and surveillance conflict: a comparative analysis of the laws in the USA and India
Vaibhav Chadha, Thajaswini Coimbatore Balasubramanian, Anshul Bhuwalka
218
Schauer F., ‘Fear, Risk and the First Amendment: Unraveling the “Chilling Effect”‘ [1978]
58 BU L Rev 693
Solove, Daniel J, ‘I’ve Got Nothing to Hide and Other Misunderstandings of Privacy’
(2007) 44 SD L Rev 771
Solove, Daniel J, ‘The First Amendment as Criminal Procedure’ [2007] 82 NYU L Rev 112
Tarafder A., ‘Surveillance, Privacy and Technology: A Comparative Critique of the Laws
of USA and India’ [2015] 57(4) ILI J. 550
Xiu J., ‘The Roles of the Judiciary in Examining and Supervising the Changing Laws of
Electronic Surveillance’ [2003] 28 Seton Hall Legis J
III. Online Sources
‘Electronic Surveillance’, Legal Information Institute, Cornell Law School
<https://www.law.cornell.edu/wex/electronic_surveillance#footnote2_nhopdas>
accessed 30 August 2020
Ban Ki-moon,
<https://www.unodc.org/documents/frontpage/Use_of_Internet_for_Terrorist_Purpose
s.pdf> accessed 04 March 2021
Burke J., ‘Al-Qaeda launches online terrorist manual, [2004] The Guardian
<https://www.theguardian.com/technology/2004/jan/18/alqaida.internationalnews>
accessed 30 December 2020
Dash Z., ‘Do Our Wiretapping Laws Adequately Protect the Right to Privacy?’ [2018]
53(6) E&PW <https://www.epw.in/engage/article/can-government-continue-
unhindered-wiretapping-without-flouting-right-privacy> accessed 06 October 2020>
accessed 16 February 2021
Greenwald G. & Saxena S., ‘India among Top Targets of Spying by NSA’ [2013]
<http://www.thehindu.com/news/national/india-among-top-targets-of-spying-by-
nsa/article5157526.ece> accessed 10 December 2020
J. Shah A. (Retd.) Committee, ‘Report of the Group of Experts on Privacy’ [2012]
Planning Commission, Government of India,
<https://pib.gov.in/newsite/PrintRelease.aspx?relid=88503> and
<http://www.planningcommission.nic.in/reports/genrep/rep_privacy.pdf> accessed 03
March 2021
Ministry of Home Affairs, Government of India, 2020
<https://www.mha.gov.in/departments-of-mha> accessed 06 October 2020
PTI, ‘U.N. report flags Islamic State threat in Karnataka, Kerala’ [2020] The Hindu
<https://www.thehindu.com/news/national/kerala/un-report-flags-islamic-state-threat-
in-karnataka-kerala/article32189443.ece#> accessed 09 December 2020
Rediff News Serv., ‘The Attack on Parliament (2001)’
<http://www.rediff.com/news/pat2001.html> accessed 01 December 2020
JANUS.NET, e-journal of International Relations
e-ISSN: 1647-7251
Vol. 13, Nº. 2 (November 2022-April 2023), pp. 201-219
Privacy and surveillance conflict: a comparative analysis of the laws in the USA and India
Vaibhav Chadha, Thajaswini Coimbatore Balasubramanian, Anshul Bhuwalka
219
Rizvi K., ‘Personal Data Protection Bill 2019 and Surveillance: Balancing Security and
Privacy’, [2020] INC42 <https://inc42.com/resources/personal-data-protection-bill-
2019-and-surveillance-balancing-security-and-privacy/> accessed 06 March 2021
SFLC, ‘India’s Surveillance State: Communications Surveillance in India’ [2014] SFLC
<http://sflc.in/wp-content/uploads/2014/09/SFLC-FINAL-SURVEILLANCE-
REPORT.pdf.> accessed 22 September 2020
Sriram J., ‘What are the surveillance laws in India?’ [2019] The Hindu,
<https://www.thehindu.com/news/national/what-are-the-surveillance-laws-in-
india/article29993602.ece> accessed 01 December 2020
Stakeholder Report, ‘The Right to Privacy in India’ [2016] UPR CIS India and Privacy
International, <https://www.upr-
info.org/sites/default/files/document/india/session_27_-
_may_2017/js35_upr27_ind_e_main.pdf> accessed 08 March 2021
Xynou M., ‘Policy Recommendations for Surveillance Law in India and an Analysis of Legal
Provisions on Surveillance in India and the Necessary & Proportionate Principles’ [2015]
CIS <https://cis-india.org/internet-governance/blog/policy-recommendations-for-
surveillance-law-in-india-and-analysis-of-legal-provisions-on-surveillance-in-india-and-
the-necessary-and-proportionate-principles.pdf> accessed 06 March 2021
IV. Legislations and Statutes
Constitution of India, 1950
Indian Telegraph Act, 1885
Personal Data Protection Bill, 2019
Prevention of Terrorism Act, 2002
The Information Technology (Amendment) Act, 2008
The Unlawful Activities (Prevention) Act, 1967
United States Code, 1994
