#137 Opening Up And Closing Down 🎧

India Policy Watch #1: A Winged Horse And A Prison  

Insights on burning policy issues in India

- RSJ

Heh! Let’s start in the most unoriginal way possible:

Behind Winston’s back the voice from the telescreen was still babbling away…..

The telescreen received and transmitted simultaneously. Any sound that Winston made, above the level of a very low whisper, would be picked up by it, moreover, so long as he remained within the field of vision which the metal plaque commanded, he could be seen as well as heard. There was of course no way of knowing whether you were being watched at any given moment. How often, or on what system, the Thought Police plugged in on any individual wire was guesswork. It was even conceivable that they watched everybody all the time…..

You had to live—did live, from habit that became instinct—in the assumption that every sound you made was overheard, and, except in darkness, every movement scrutinized.

—- 1`984, George Orwell

The Pegasus spyware story broke this week. Coordinated investigations by 17 media organisations revealed governments, mostly authoritarian, used Pegasus, a product sold by Israeli surveillance company NSO, and hacked into over 50,000 phones to read messages, access mails and photos, record calls, activate microphones or even plant incriminating data into them. The NSO continues to maintain it sells Pegasus exclusively to governments for the sole intention of tracking criminals and terrorists. The analysis of the phone numbers so far suggests governments of Saudi Arabia, Hungary, Mexico, Rwanda, Azerbaijan, Bahrain, Kazakhstan, Morocco, UAE and India have been users of Pegasus. The list has over 300 Indian names and counting.

NSO has denied the story in its own way. It claimed it “does not operate the systems that it sells to vetted government customers, and does not have access to the data of its customers’ targets”. Further it “does not operate its technology, does not collect, nor possesses, nor has any access to any kind of data of its customers. Due to contractual and national security considerations, NSO cannot confirm or deny the identity of our government customers, as well as identity of customers of which we have shut down systems.”

There’s a nice boilerplate ring to that response.

The government of India’s response has been a mixed bag. The IT minister took shelter in the official statement of NSO to rubbish the claims. He told the Parliament there’s been no unauthorised surveillance because India has time-tested processes for lawful interception of electronic communication. There wasn’t a clear, unambiguous statement made about not being a customer of NSO and Pegasus. Or, if there indeed was any authorised surveillance on any of these numbers. We soon moved into the familiar narrative terrain of anti-national forces destabilising India and stopping its inevitable rise as a global superpower. This is a fairly routine manoeuvre by now. There was also the bizarre defence mounted by the former Union IT minister who suggested this to be some kind of a global conspiracy to cut India to size after its spectacular success in managing Covid second wave. This was one of those logical sentence puzzles. You couldn’t decide which factually inaccurate part should you challenge without making it appear you are accepting the other.

The Genie Is Out

I think there are a few truths that one can take away so far from this episode:

* There’s a spyware (cyberweapon) like Pegasus that can enter undetected into any phone, stay there and relay back information to a central monitoring unit. This is true for iPhones too. Apple confirmed it (don’t believe those ads). If you remember following the San Bernardino attack in 2015, the US security agencies had recovered the iPhone of one of the terrorists. They couldn’t unlock it and Apple claimed there was no way they could create a ‘backdoor’ into the iPhone. The matter went to court before FBI (or NSA) withdrew from the case because they had unlocked the phone. The rumour then was an Israeli company had helped them. It shouldn’t take a lot of imagination to put two and two together. Also, so far nobody has denied that there’s a tool called Pegasus and it has these capabilities. And that NSO sells them to governments.

* One only has NSO’s word that it sells exclusively to national governments. There’s no guarantee the software hasn’t fallen into private hands. Also, who decides which kinds of governments will be eligible to buy from NSO? There are rogue regimes around the world. There are regimes that are at war with one another. A security threat of one client country could be an asset for another client and vice versa. What control does NSO have on the end use for their software? My guess is very little. Like we have mentioned in an earlier edition, we mix up anti-government, anti-state and anti-nation in India (and elsewhere) quite often. So, the potential targets for authorised surveillance can be a wide, open field in any country.

* Lastly, it is difficult to believe there’s only a single Pegasus-like software in the world. Technology talent and capital are both available with others to build an equivalent product. If it isn’t built so far, it will be in works after this investigation. In any case, the secretive nature of NSO’s work precludes any patents or IP rights for their products. So, this genie is now out of the bottle.

It is a bit of a surprise how lukewarm the response in India media, political circles and public to this has been so far. The ‘anti-India’ and ‘chronology’ remarks from the Home Minister have been adequate for the partisans to dismiss the investigation and its significance. The opposition lacks the voice and the strength to make this a public debate. And surprisingly the Indian right and the conservatives who should champion individual rights and privacy have been quiet, The spectre of a surveillance state in the long-run when someone else could be in power and abuse this capability doesn’t seem to exercise them.

Surveillance And Democracy

There are the usual arguments to dismiss surveillance concerns these days. It is all pervasive in current times. That privacy is chimera in this connected world. I will make four points on how this time it is different and why a liberal democratic setup should think more deeply about this.

Firstly, the tired defence about any government snooping is that it has been happening for ages. Everyone did it in the past. And the governments will continue doing so when they see perceived national security threats or for political reasons. There are two key differences now.

One, the size and scale of digital footprint that we leave unknowingly or in the belief we are secure makes snooping easy and deeply intrusive. This is not the open postcard or ‘search your garbage bin’ era where your data in public was limited. Two, a Pegasus like spyware goes beyond the third-party doctrine which itself was an encroachment of individual privacy. The government now doesn’t even have to depend on a third-party to ask for information legally that’s been voluntarily handed over by users to them. They can eliminate the intermediary and directly source the information from the phones. This takes out even the iota of a check or restrain that was inbuilt into the third-party doctrine.

Secondly, there’s the dumb argument that if you have nothing to hide, you have nothing to worry about any kind of surveillance. This is what is expected from the citizens. On the flips side, the governments expect less transparency about their conduct. There’s an ever increasing trove of government work that’s categorised as secret or confidential which makes it inaccessible to citizens as part of any of their rights. This is an inversion of one of the fundamental principles of a democratic setup. That the elected must work under the spotlight while the electorate has the privilege of anonymity.

There is a reason why we have a secret ballot. The fundamental act of voting in a democracy is done in secrecy. Shine a light on the choices of electorate, knowingly or otherwise, and you begin your descent into totalitarian state. The elected though should have no such privilege. Their actions cannot seek the cover of darkness barring a few exceptions. This is what the Washington Post masthead means when it screams out ‘Democracy dies in darkness’.

Thirdly, we are caught in a pincer move in our battle for privacy. On one hand we have private companies (big tech) harvesting our data, with or without permission, to sell advertising slots or offer targeted news on our feed. On the other, we have the government conducting sophisticated surveillance on its citizens in the name of national security. We are often asked by those supporting government snooping if we can give away our data to a Google or a Facebook or to the thousands of CCTV cameras all around us so easily, why do we agitate when we hear of government keeping an eye on us?

This isn’t an equally weighed argument. We choose to be on the platforms of private companies and we give a voluntary consent to their terms. We outrage when we find they are abusing our information. There is both a free market and a regulatory solution that can be expected on how our private data will be used by these companies. The GDPR regulation in EU is an instance of this. But these options aren’t true for government tracking its citizens and using its data. There’s no consent sought and beyond a point it is difficult to have checks and controls imposed on state which has created those in the first place. This is a key reason why we should be careful about any proposed regulation of Big Tech that places the responsibility of user data with the state. The state is all powerful. And history has shown it can be more vindictive. For users, it will be like jumping from frying pan to fire.

Lastly, and to end this piece on another cliché, let me invoke Foucault and panopticism. In his 1975 work Discipline & Punish: The Birth of the Prison, Foucault used the panopticon (a prison system designed by Jeremy Bentham in late 18th century) to show how surveillance or the mere intuition of someone watching us changes something fundamental in us.

Like he wrote:

“Hence the major effect of the Panopticon: to induce in the inmate a state of conscious and permanent visibility that assures the automatic functioning of power.

So to arrange things that the surveillance is permanent in its effects, even if it is discontinuous in its action; that the perfection of power should tend to render its actual exercise unnecessary; that this architectural apparatus should be a machine for creating and sustaining a power relation independent of the person who exercises it; in short, that the inmates should be caught up in a power situation of which they are themselves the bearers. To achieve this, it is at once too much and too little that the prisoner should be constantly observed by an inspector: too little, for what matters is that he knows himself to be observed; too much, because he has no need in fact of being so.  

Faoucault establishes the moral challenge of this asymmetry between the observer and the observed using Bentham’s language for the original design.

“Bentham laid down the principle that power should be visible and unverifiable. Visible: the inmate will constantly have before his eyes the tall outline of the central tower from which he is spied upon. Unverifiable: the inmate must never know whether he is being looked at at any one moment; but he must be sure that he may always be so….

The Panopticon is a machine for dissociating the see/being seen dyad: in the peripheric ring, one is totally seen, without ever seeing; in the central tower, one sees everything without ever being seen.”  

Like Foucault concludes the one who is in the field of visibility, knowing he is always being observed, places the onus of following the norms of power on himself. He surrenders himself to the power of the observer without any additional coercion. He becomes “the principle of his own subjection.”

Seeing through Foucault’s lens, the fact that we now know there could be a Pegasus like spyware that governments could use on us actually plays into the hand of a surveillance state. The knowledge of being observed will change us. We will place constrains on ourselves and we will follow norms that’s expected from us mechanically till we turn into what the state wants us to become.

That we are being watched is the truth.

And this isn’t the kind of truth that will set us free.

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India Policy Watch #2: Thirty Years of Economic Reforms

Insights on burning policy issues in India

— Pranay Kotasthane

We look back at transformative moments in the past either to cajole ourselves into believing that the future can get better or to escape the cynicism that pervades the present. This week marks thirty years of one such transformative moment — the 1991 economic liberalisation reforms.

These reforms got nearly 300 million Indians out of poverty and propelled the lives of people at the margin of poverty. The importance of economic growth in transforming people’s lives got internalised to such an extent that we started taking it for granted. Within fifteen years after the reforms, India seemed to have moved on from economic growth. Ideas such as ‘inclusive’ growth became mainstream, indicating that it was okay to sacrifice some growth as long as it lifted everyone’s boats equally. And in 2021, after a full decade of tardy economic policies, growth and inclusion both, are imperilled.

Given that more than half of India hasn’t even experienced what life was like in an economy strangulated by governments, this is a good week to reflect on economic reforms. Thankfully, some terrific articles and anecdotes have already been written on how the Indian economy transformed. In this post, I’ll link to those I found useful.

Launched five years ago, Centre for Civil Society’s IndiaBefore91.in portal has an excellent set of stories on lives in an overwhelmingly controlled economy. Mercatus Center’s the1991project has an interactive timeline of events that happened close to the reforms. The portal also has some key government speeches and documents that formed the basis of these reforms.

My favourite reading on the topic is Jairam Ramesh’s To the Brink and Back because it provides a ringside view of government decision-making in a crisis situation. Such accounts are rare in the oversensitive Indian political discourse. Moreover, the book captures several key political debates of the time, some of which continue to be relevant today. For example, Manmohan Singh’s response in the Rajya Sabha addressing the fears of devaluation of the rupee needs to be read and re-read even today:

Let me say that in this country there seems to be a strange conspiracy between the extreme left and extreme right that there is something immoral or dishonourable about changing the exchange rate. But that is not the tradition. If you look at the whole history of India’s independence struggle before 1947 all our national leaders were fighting against the British against keeping the exchange rate of the Rupee unduly high. Why did the British keep the exchange rate of the Rupee unduly high? It was because they wanted this country to remain backward and they did not want this country to industrialise. They wanted the country to be an exporter of primary products against which all Indian economists protested. If you look at Indian history right from 1900 onwards to 1947, this was a recurrent plea of all Indian economists—not to have an exchange rate which is so high that Indian cannot export, that India cannot industrialise. But I am really surprised that something which is meant to increase the country’s exports and encourage its industrialisation is now considered as something anti-national.

And yet, the fallout of the 1966 devaluation coloured the perception of observers and politicians. So much so that the finance minister and the RBI governor consciously avoided using the word ‘devaluation’ and instead used an anodyne phrase — ‘an adjustment of the exchange rate of the rupee’. That apart, an egregious PolicyWTF by the name of items reserved for manufacture exclusively by the small-scale sector also finds a mention in the book.

This is a good week to reflect on what the next version of economic reforms should look like.

HomeWork

Reading and listening recommendations on public policy matters

* [Article] The Pegasus Project: complete coverage of the investigation by the Guardian. A great Sunday read.

* [Article] Rohan V in the Scroll on the one phrase missing in India’s response to the Pegasus story.

* [Article] A thorough technical overview of the whole NSO issue.

* [Podcast] Puliyabaazi completed a century this week. So the hundredth puliyabaazi is on puliyabaazi. Listen in.

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