Justice and the future of technology regulation
ON 4 August 4 2019, all telecommunications and internet services were suspended in Jammu and Kashmir, which would become the longest communications siege effected by the Government of India on its citizens. The orders were not made public, were passed without public deliberation, and provided no mechanism of redress. January 10, 2020, 159 days after the shutdowns, the Supreme Court of India reviewed the Internet suspension orders and found them legally infirm. Despite this, secretive and unaccountable internet shutdowns in Kashmir have continued, in violation of the Supreme Court order, without parliamentary or judicial oversight, and in brazen defiance of the rule of law.
This story encapsulates a broader trend in technology regulation in India – an area increasingly driven by boundless executive discretion and decision-making. This discretion has been buoyed by the failure of democratic and constitutional institutions – courts and the legislatures – to effectively contend with the dynamics of emerging technologies and their impact on legal and constitutional rights. This article explores how this came to be, its implications for democratic and constitutional values, and how we may re-centre justice in technology regulation.
The Constitution of India attempts to ensure the delicate act of checks and balances on state power by providing for the separation of powers between various organs of government. Subject to narrow exceptions, the power to make laws is vested within Parliament and state legislatures, the power to apply and enforce legislative policy is vested with the executive and the bureaucracy, and the power of judicial review and oversight of legislative and executive action lies with the judiciary. The modern history of developments in the regulation of technologies, however, have seen both the legislature and judiciary abdicate their respective function as checks on unbridled executive power.
Take the example of the Information Technology Act, which provides the central government wide powers to regulate the internet and related technologies. The IT Act exemplifies the abdication of crucial lawmaking functions to the executive. The legislation provides wide deference to the central government to establish norms of technology regulation – ranging from data protection to online speech and the conduct of social media platforms. This wide delegated power has recently been wielded for the censorship of hundreds of mobile phone apps by the central government; or the recent proposal by the Ministry of Information Technology to require all social media platforms to use algorithmic systems to censor any content deemed ‘unlawful’.
This unfettered executive fiat over matters of technology regulation has extended over other crucial domains, exemplified particularly by the use of technology by government agencies. For example, matters crucial to the policy and schema of the Aadhaar project – from determining the scope of the use of digital identification, to data protection norms, to the very architecture and technical design of the project – have been delegated to rules and regulations made by the executive.1 Similarly, technologies like biometric identification and predictive policing have proliferated in policing agencies, in the absence of clear legal norms of criminal procedure through which they may be assessed.
Several of India’s large technology projects have been implemented without individual and social legal protections which are fundamental to realizing justice in the use of information about citizens. Between 2009 and 2016 Government of India’s Aadhaar digital identification project existed without any legislative sanction. The Aarogya Setu mobile application has been developed and deployed pervasively, without any anchoring legislation, relying instead on the broad power of the National Disaster Management Act, 2005.
The development and deployment of both Aadhaar and Aarogya Setu had serious consequences for constitutional rights. There are demonstrable concerns about informational privacy and misuse of intimate personal data, as well as about punitive action and exclusion resulting from the legal mandates for use of the technology, including preventing access to welfare and government services on which millions are dependent. In spite of this, their governance is unbound by legislatively determined rules or policy.
The judiciary has also failed to act as a check on executive discretion, by failing to apply constitutional frameworks to emerging socio-technical issues and failing to interrogate the claims about technology forwarded by the government. The Supreme Court’s judgement deliberating upon the Aadhaar project followed upon the heels of a landmark 9-judge decision in KS Puttaswamy v Union of India, which had affirmed the fundamental right to privacy, particularly in the context of emerging information technologies and biometric technologies.2 However, when the court had the opportunity to apply this precedent to the Aadhaar project, it did not interrogate the government’s claims about the technical architecture of Aadhaar, particularly in relation to the claims about the failure rate of biometric identification, as well as its claims of appropriate data protection mechanisms.3
The court’s inaction in the case of Kashmir’s internet shutdowns provides another example of judicial evasion. In Anuradha Bhasin v Union of India,4 mentioned above, as well as Foundation for Media Professionals v UT of J&K,5 the court had the opportunity to consider the arbitrary manner in which internet communications were shut off on executive whim (notably, through executive rules made under the Telegraph Act of 1885). Even while it recognized that the internet shutdowns were unlawful, and did not even abide by the executive’s own rules under the Telegraph Act, 1885, the court refused to hold the executive to account for its illegality, and delegated even the act of oversight and review to the executive itself.
Deficits in both legislature and courts are interlinked. In the absence of clear legislative standards against which to substantively evaluate the impact of emerging technologies, the court bows uncritically to scientific or technical evidence forwarded by the executive in determining matters of technology regulation, as is evident in claims about the infallible nature of biometric identification in the Aadhaar case; or the claims about how online media influences extremism and violent mobilization in Kashmir.
Digital technologies and systems built on ‘data’ and computational analysis are increasingly becoming embedded within every facet of public life. Crucial domains of civic life, such as the criminal justice system, are increasingly adopting emerging technologies like ‘data-driven’ predictive policing, or mass surveillance technologies like facial recognition, without acknowledging how they are transforming, and in some cases, debilitating long held norms like presumptions of innocence, or fairness and equality, which are at the heart of criminal procedure.
The use and regulation of these technologies have consequences which go to the very heart of democratic ideals and constitutional rights. Without a course correction, these ideals and rights could easily be forsaken. These technologies have material effects on democratic participation – for example, through enabling or disabling freedom of expression and communication in an increasingly online society; and can fundamentally alter the relationship between the citizen and the state – for example, how Aadhaar determines who is capable of holding and exercising rights to government welfare.
Visions of social justice have always co-evolved with technological developments, and require us to re-evaluate and reshape claims to individual and collective rights and interests. These claims are expected to be clarified and upheld by institutions like the legislature and courts, through the legislative commitment to democratic accountability, and the judicial commitment to constitutional justice. In their absence, however, technocratic and bureaucratic values of technological regulation have taken hold. These prioritize claims to efficiency over claims of justice. They cast emerging technologies as legitimate and unbounded instruments for furthering state power and managing populations. This deference to the executive over claims of scientific and technological knowledge has to be seen in light of the political economy of emerging information technologies and the re-making of regulation to achieve goals and values identified by the ‘free market’, which relegates claims which lie outside the paradigm of the market to the domain of the non-expert and non-technical, liable to be cast aside.6
What, then, can an agenda for social justice for the future of technology, foregrounded in democratic and constitutional ideals look like? How can and should the law evaluate and respond to claims of justice in how the state regulates emerging technologies? I offer two approaches towards reorienting regulation towards social justice.
First, the use and regulation of technology must be critically assessed on the touchstone of its impact on constitutional rights and freedoms. Technology regulation must adopt a rights-based approach, as opposed to an approach which unilaterally assumes control over this domain. Substantive rights in information technology can manifest through different legal instruments, and should approach information technologies both as enabling individual rights like privacy and freedom of speech and expression, and also foster their status as socially valuable public goods – encouraging fairness and equity in their development and use. There is important precedence which adopts this approach – for example, in the Supreme Court’s recognition of the right to informational privacy in Puttaswamy I, or the Kerala High Court’s pronouncement on the right to internet access in Faheema Sharin v State of Kerala.7
Second, the concept of due process must be reinvigorated as a touchstone on which to judge matters of technology regulation. The Constitution already recognizes that fair hearings to affected individuals or populations are instrumental to achieving what has been termed ‘natural justice’, for example, by providing for clear notice to affected persons, providing justifications for specific regulatory decisions and allowing them to be challenged through a fair hearing.
A due process standard incorporates justice through evaluating the fairness of the procedure used to achieve a particular result, without necessarily adjudicating on the merits of the result itself. Administrative processes which target specific entities or individuals are generally held to this standard, but claims to procedural justice can be invoked across the administrative process – from seeking input from affected populations as part of rule-making processes, to conducting post-facto impact assessments.
Further, by establishing standards for providing notice and hearing of affected individuals and groups, a due process standard requires technology regulation to specifically consider incorporate evidentiary claims of individuals and populations which may be affected by the use and regulation of technology. Procedural fairness can also be invoked within government procurement processes for technology systems and project, to allow public oversight and interrogation of the technologies deployed by public agencies.
Evolutions and transformations in technology materially impact the exercise of legal rights and freedoms and also change the frameworks by which we evaluate just processes and outcomes, which requires democratic participation and is rooted in constitutional values. We must constantly reconfigure our expectations from science and technology, measure and balance conflicting conceptions of what justice entails in this domain, and critically engage with technologies not only as matters of technical ‘expertise’, but equally as social and political constructions where democratic and constitutional engagement is necessary.
2. Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
3. Justice K.S. Puttaswamy v. Union of India, (2019) 1 SCC 1.
4. Anuradha Bhasin v. Union of India, 2020 SCC OnLine SC 25.
5. W.P. (D) 10817 of 2020, Supreme Court of India.
6. Linnet Taylor, ‘What is Data Justice’, Big Data & Society 4(2), available at https://journals.sagepub.com/doi/10.1177/2053951717736335.
7. Kerala High Court Declares ‘Right to Access Internet’ as a Fundamental Right’, SFLC, available at https://sflc.in/kerala-high-court-declares-right-access-internet-fundamental-right.