EYES IN THE SKY: WHY UNTRAMMELED SATELLITE SURVEILLANCE IS AN ANATHEMA TO THE FUNDAMENTAL RIGHT TO PRIVACY BY - SHIRAZ AHMAD KHAN
EYES IN THE SKY: WHY UNTRAMMELED
SATELLITE SURVEILLANCE IS AN ANATHEMA TO THE FUNDAMENTAL RIGHT TO PRIVACY
AUTHORED BY - SHIRAZ AHMAD KHAN
Abstract
The existence of a
robust surveillance apparatus is crucial to any modern state for protecting its
national security interests, both at home and abroad. However, with the
inexorable march of technology and an almost constant state of innovation, the
methods and tools of conducting such surveillance have acquired proportions of
intrusiveness hitherto unseen. One such problematic area is the use of
satellites and other space-based systems to surveil populations on Earth. In
the Indian context, the ineffectiveness of existing laws in preventing abuse of
citizens’ fundamental right to privacy by state as well as non-state actors has
been well documented. Moreover, such laws are confined to regulating
communications surveillance, i.e., interception of communications between
individuals. The traditional concept of imaging surveillance, understandably
overlooked in legislation due to the inherent limitations of ground-based
sources, has become quite powerful with the advent of reconnaissance
satellites. As such, this paper argues that allowing the government to carry on
unfettered surveillance through satellites is an anathema to the idea of
privacy and autonomy enshrined under Article 21 of our Constitution, and therefore
advocates the formulation of a comprehensive new legislation for regulating all
space-based surveillance.
I.
Introduction
If ancient human history
is categorised according to the important discoveries or technologies of each
corresponding period of time, such as the Stone Age and Bronze Age, the latter
half of the 21st Century may very well be dubbed as the “Space Age”.
Increasing international prowess in space exploration and utilisation comes
with a raft of benefits for spacefaring nations, and indeed all of humankind.
However, as with all new discoveries and inventions, there always exist certain
groups which develop their own unscrupulous uses for the advancement of narrow
interests and priorities. In the domain of space, this is most evident from the
increasing phenomenon of satellites being deployed as potent tools of
reconnaissance and intelligence gathering. Major military powers, which
concurrently are also major space powers, have built up a vast worldwide
network of surveillance vis-à-vis satellites and ground stations along the
decades, all to purportedly serve national security interests, or for other
seemingly benign purposes such as weather observation and prediction.
As a result, the concept
of a surveillance state, previously only confined to certain totalitarian
regimes and their citizens, has metamorphosed into global mass surveillance
wherein even non-citizens are subject to constant transnational monitoring by
other countries. Recent events, such as India’s ambitious announcement of
planning to launch a whopping 50 spy satellites in the span of five years[1],
exemplify the transformation of space into an arena of competition and
dominance. Conducting surveillance
through satellites in space is not explicitly covered by the two extant laws
regulating surveillance in India, and as such, the government has effectively
found a legal loophole for it to snoop on its citizens without any fetters and
qualms. Therefore, this paper argues there is a serious need for a new
comprehensive statutory law covering space-based surveillance, in order to make
sure that safeguards against citizen’s fundamental right to privacy are not
outstripped by fast paced technological advancements. By commencing nuanced
discourse on the potential contours of such a law, this paper hopes to set the
ball rolling and contribute to the growing pool of scholarly writing on
privacy, civil and political liberties, and their tumultuous relationship with
national security.
II.
A Brief Overview of Spy
Satellites as Tools of Surveillance
The modern reconnaissance
satellite is a highly sophisticated and able piece of spaceware capable of
capturing high resolution pictures or intercepting signals, and thereafter
relaying information back to the Earth for analysis and processing. At this
juncture, it would be pertinent to bifurcate surveillance satellites into
either imaging satellites or electronic reconnaissance satellites; the former
make use of either high resolution spectral imaging cameras or radars to
construct images of Earth from space, while the latter use advanced interception
tools to gather signals intelligence on communications between actors on Earth.
However, this present state is a culmination of decades of evolution and
advancements in space technology, and for much of the period that is now
referred to as the Space Race, as well as the Cold War, the great bulk of
military intelligence was supplied by satellites markedly different from the
ones in service today.
Commencing with the
CORONA program of the United States in the late 50s, the earliest imaging
satellites were film-based reconnaissance satellites equipped with panoramic
cameras.[2]
They carried film canisters that would be ejected from the satellite, re-enter
the Earth's atmosphere, and be captured mid-air by aircraft or recovered from
the ground. In 1961, the Soviet Union launched its own program to gain
dominance in the realm of photoreconnaissance satellites, that is, the Zenit
series.[3]
These two programs ran parallelly opposite each other, and the desire of each
side to remain ahead of the other catalysed rapid innovation and improvements
in satellite technology. The images produced by these early “eyes in the sky”
fundamentally changed the tide of the Cold War. Providing critical information
required for national security and diplomatic interests, spy satellites gave a
strategic edge to whichever side that managed to launch a preponderance of
them. After CORONA, subsequent reconnaissance satellites continued to use
film-based systems for a period; incremental improvements in film technology
allowed for higher resolution and better image quality.[4] The
transition from film-based to digital imaging marked a significant advancement,
wherein digital sensors allowed for real-time data transmission and onboard
processing, reducing the need for film recovery missions. The development of electro-optical
sensors and synthetic aperture radar enhanced the capabilities of
reconnaissance satellites, providing all-weather, day-and-night imaging
capabilities.
The Keyhole series of
satellites, including KH-7, KH-8, and KH-11, represented significant advancements
in reconnaissance technology.[5] Namely,
KH-11, launched in the late 1970s, was the first electro-optical reconnaissance
satellite with high-resolution imaging capabilities. Modern reconnaissance
satellites often integrate multispectral and hyperspectral sensors, allowing
for enhanced analysis of various materials and terrain. Consistent with the
inexorable march of technological diversification, spy satellites today are no
longer confined to solely imaging or visual reconnaissance.[6]
Signals intelligence satellites have the capability of intercepting and
listening on exchanges of information and conversations between parties on
Earth, which may include governments, militaries, or even private actors. Not
only that, by making use of jamming and other electronic warfare tools, a
spacefaring country can also disrupt communication between other satellites and
their ground stations, thus potentially acquiring a monopoly like status in the
collection of intelligence from space.
A) The Revolutionary
Impact of Satellites on Traditional Spying and Surveillance
Gone are the days when
governments and agencies had to rely solely on ground-based agents and other
electronic surveillance devices, which often entailed great financial
expenditure as well as an element of uncertainty and risk. Other drawbacks of
such intelligence networks also include the ever-present possibility of human
error and the corresponding scourge of faulty intelligence leading to wrong and
often costly, both in terms of human life and financial capital, policy
decisions. One of the best examples from history where traditional spying and
intelligence gathering failed to predict an impending breach of national
security is the Pearl Harbor attack during the second World War. The massive
investigation and overhaul conducted in the aftermath concluded that failure of
intelligence agencies to share their respective inputs with each other, as well
as the White House, was the root cause of this blunder.[7]
And the reason why there was hesitation in bringing crucial intelligence to
light was the perceived uncertainty of where the attack would happen, as
different agencies ended up with conflicting accounts. In other words, due to
the absence of satellite technology at that time and a sole reliance on ground
sources, the veracity of intelligence obtained was questionable.[8]
Specifically speaking, reconnaissance images from satellites would have clearly
shown the movement of Japanese aircraft carriers around the ocean in
anticipation of the attack. It need hardly be said that the attack
fundamentally altered the course of the war, and perhaps history, by propelling
the United States into the fold. One of the more endearing effects of the
attack can be seen in the shift that occurred in the military strategy and
foreign policy of America. It shifted the focus of U.S. foreign policy toward a
more active and interventionist stance in global affairs, with a commitment to
preventing aggression and promoting international security. The subsequent
victory of the American led allies in the war also played a substantial role in
moulding public opinion at home, one which can very well be attributed to the
succeeding decades of foreign policy decisions.[9]
Through no stretch of imagination, the war led to the United States discovering
its true military and economic potential, by pitting it against major global
powers and states.[10]
Therefore, hypothetically speaking, had the attack been thwarted by use of
crucial inputs from satellites, the plethora of instances where American
intervention and involvement proved disastrous could have been avoided.
This brings us to the
most significant area where satellite surveillance trumps all other forms of
spying and surveillance, namely, the absence of a geographical limitation in
terms of the area surveilled as well as a safe location to conduct said
surveillance from. For example, the geographic limitation alone can be overcome
by use of aircraft and drones, however, such methods always run the risk of
violating international law, and consequently being shot down, by operating in
foreign airspace. Space, on the other hand, is not under the jurisdiction of
any nation and there is much greater flexibility in positioning intelligence
collecting sources, i.e., satellites. These sophisticated machines are placed
in a geosynchronous orbit which allows them to match the Earth’s rotation speed
and consequently eliminate the need for antennas on the ground to be shifted
constantly. Imbued with the capability of capturing images or intelligence from
practically anywhere on the surface of the Earth, as well as the ability of
transmitting such data to receiving antennas on the ground, reconnaissance
satellites foster an ecosystem of rapid intelligence collection and analysis,
leading to prompt responses by policymakers. Apart from the obvious military
implications of such a tool, such as real time awareness of enemy troop
movements, constructions and even monitoring nuclear testing, such satellites
also contribute to diplomacy and international cooperation on key issues such
as cross-border terrorism, illegal immigration, smuggling, etc. Another rapidly
evolving area in which surveillance by satellites is proving its mettle in the
21st century is in the domain of climate change. A reliable,
constant flow of climate patterns and meteorological phenomena across the world
enables countries to undertake meaningful assessments of climate policies in
other countries, as well as the potential impact of such policies on their own
country, providing adequate time to make requisite changes and mitigate
unfavourable environmental consequences of global warming.
B) The Existence of a
“Surveillance State” in India
With these myriad
advantages of operating surveillance satellites in mind, it is no surprise that
they are immensely popular with governments, intelligence agencies and even
commercial organisations throughout the world. India is no exception. With the
advent of Bhaskara 1 and 2 launched in 1979 and 1981 respectively, India has
built up the largest constellation of remote sensing satellites in the world
today, with 14 dual military use satellites currently in operation.[11]
The data and imagery collected by these satellites is transmitted back to Earth
and disseminated, analysed, and distributed to various agencies by the National
Remote Sensing Centre in Hyderabad, which itself has various regional receiving
stations in the country.[12]
Of the Earth Observation
Satellites part of India’s surveillance fleet, the CARTOSAT (Cartographic
Satellite) series use state-of-the-art panchromatic cameras for gathering
images, while the RISAT series use synthetic aperture radars (SARs) for all
weather radar imaging. Additionally, the HySIS (Hyperspectral Imaging
Satellite) also provides high quality images across the electromagnetic
spectrum. Particular attention must be drawn towards the four operational
RISATs (Radar Imaging Satellite), which are dedicated to providing all-weather
surveillance of India’s borders and internal areas in national security
interests. The last of these satellites was launched only in 2019, within the
span of a decade from 2009 when the first RISAT was launched.[13]
The timing and circumstances of the commencement of this program bears
significant weight, as the first RISAT was launched in the aftermath of the
2008 Mumbai attacks, which was only successful due to lapses in India’s coastal
surveillance systems.
With respect to electronic
reconnaissance satellites, the country only has one which is fully dedicated to
this cause: EMISAT (Electromagnetic Intelligence Satellite), which was launched
in 2019 as part of DRDO’s Project Kautilya to provide the country with space
based electronic intelligence.[14]
All the aforementioned satellites, as well as other ground-based radars,
listening posts, and aerial surveillance, are operated under the aegis of the
National Technical Research Organisation (NTRO). Recently, the NTRO was brought
under The Intelligence Organisations (Restriction of Rights) Act, 1985, which
now puts the agency on the same pedestal as the Intelligence Bureau (IB) and
the Research and Analysis Wing (RAW).[15]
This basically means that the employees of NTRO will now be subject to the same
restrictive and secretive conditions which IB and RAW have been practising
since the passage of the act, thereby reducing transparency and oversight in
the working of the country’s premier technical intelligence agency. In a
watershed moment, the government announced this year that the country’s first
domestically produced spy satellite will be launched in April with the help of
Elon Musk’s SpaceX.[16]
This satellite is particularly noteworthy as it is the first time that ISRO has
collaborated with a private company, TATA Advanced Systems Ltd., in the
construction and development of a satellite. These developments exemplify a
surge in the government’s focus on satellite-based surveillance tools and the
emergence of an organisational structure to accommodate the intelligence from
these new sources within the existing national security framework in India.
III.
National
Security: Do the Ends Justify the Means?
Despite the raft of benefits that operating an intra-national
surveillance network through the use of satellites, as well as other tools,
provide countries, the argument most frequently employed to vindicate such
invasive activity is that it is necessary for national security interests of
the state. There is, strictly speaking, some truth, and certainly logic, in the
contention that in order to undertake the none too easy task of preserving the
security of the state and defending it from external as well as internal
actors, a substantial degree of “awareness” is required. However, the weight
behind the powerful term “national security” is increasingly being misused by
the government to repudiate claims of human rights violations, particularly the
fundamental right to privacy, which is guaranteed by the Constitution, as well
as numerous international covenants and agreements to which India is a party
to.[17]
Even countries which have in place robust domestic surveillance laws, often
limit the operation of these laws with provisos containing the terms “public
security”, “defence”, or “national security”. And where non-citizens are
concerned, there are practically no restraints on intelligence agencies for
respecting privacy, an activity which is often undertaken in full collaboration
with the agencies of the state whose citizens are being surveilled.
“The ends justify the means” is perhaps the bedrock of intelligence
agencies and other actors who engage in acts which they know are morally, and
in certain cases, legally questionable. The belief that the end goal of
achieving a safe and stable state should be pursued even at the cost of
individual fundamental rights is a controversial one, and needs to be
critically examined in the context of mass surveillance. Attempting to provide
a “yes” or “no” answer to the question would not be feasible, as an absolutist
stance towards either of the two, that is, privacy and national security, only
results in compromising the sanctity of the other. Understandably, the premise
that the state is continuously monitoring and surveilling citizens invokes an
emotional response; the very term “mass surveillance” or “surveillance state”
has now acquired profoundly negative connotations, understood as having close
correlations with totalitarian and oppressive regimes. However, the fact
remains that there are multiple ways in which communications surveillance has
stymied the rise and occurrence of terrorist activities, as also the existence
of certain exigencies which have necessitated a more intrusive approach towards
intelligence gathering and analysis. Generally speaking, through the use of
mass surveillance, states seek to achieve two objectives: prevent a possible
terrorist attack from happening in the first place, and if it has not been
possible to thwart such an attack, track down the perpetrators to be brought to
justice. In the pursuit of these objectives in the 21st Century, it
would be imprudent for the authorities to shy away from modern forms of
communications interception and analysis, when the terrorists themselves have
adopted nuanced and sophisticated techniques of communication and planning. A
good example of the effectiveness of such programs operated by states is
reflected in the reduced incidence of major terrorist attacks in the United
States after the overhaul of their entire intelligence apparatus post-9/11.[18]
Also, terrorists no longer confine themselves and their camps to the country,
or even continent of the intended attack. By making strategic use of sponsor
states and complex decentralisation structures, the scale of
internationalisation which modern terrorism has acquired warrants the adoption
by states of tools and weapons capable of keeping watch over all parts of the
world. As stated earlier, spy satellites, by virtue of their inherent
qualities, play a large role in this. However, there is certainly considerable
risk involved in giving carte blanche to security agencies in conducting
the requisite surveillance when it comes to non-citizens.
Although national
security is often narrowly interpreted to refer to measures aimed at protecting
the country from human threats, a wider understanding is also said to encompass
threats from other sources, such as natural disasters and viral pandemics.[19]
In the former, earth observation satellites monitor weather patterns and
changes on Earth, with the data often being simultaneously analysed and
extrapolated by artificial intelligence programs. It might appear foolish to
the layman that surveillance of weather phenomenon is a concern for privacy of
individuals. However, contrary to popular belief, weather satellites do more
than just observe clouds or wind systems. They also include within their ambit,
the task of monitoring pollution, whether it be air pollution, water pollution,
or even light pollution; detecting forest fires and other natural phenomena
such as sand and dust storms; mapping snow cover, etc.[20]
The latter area which is also included in a wider understanding of national
security is the prediction and identification of outbreaks of infectious
diseases and pandemics. Surveillance assists in this endeavour by analysing
public health databases, google searches, and intercepting communications.[21]
With the Covid-19 pandemic still fresh in the collective national mindscape, it
is easy to see how national security extends to the prevention and
identification of outbreaks.
IV.
Identification and Elimination
of Lacunae in the Existing Legal Framework
In the words of former US president Barack Obama, who was also a civil
rights attorney and constitutional law professor, "we have to make choices as a
society";[22] that
is, it is perfectly acceptable, and perhaps even necessary, for a state to make
at least some trade-offs of civil liberties for security. However, a certain
level of proportionality has to be maintained for the ends to justify the
means, and to ensure this, as also to combat the inadequacies of solely relying
on extant domestic laws, a comprehensive framework for placing checks and
balances on the functioning of state and non-state actors, insofar as they are
involved in surveillance of citizens, is required. In the Indian context, the legal position is tilted in the
favour of the state and national security. Even though there are two laws which
deal with interception of calls (The Telecommunications Act, 2023)[23]
and electronic communications (The IT Act, 2000),[24]
they do little more than to provide the authorities with legal backing for
their invasive acts against the citizens of the country. Lack of adequate
oversight mechanisms and supervisory rules, coupled with the extremely broad
range of circumstances under which private communications may be intercepted by
the government, have nudged the country towards the brink of being classified
as a “surveillance state.
Aside from the aforementioned two statutes, there is a complete absence
of any legislative framework at all for imaging-based surveillance in the country.
That is, while there is regulation for electronic intelligence satellites
insofar as they intercept, decrypt, and analyse communications between Indian
citizens, there is no corresponding regulation for satellites which collect
images and pictures of locations on Indian territory. The urgency of the
situation is magnified as there is only currently one electronic surveillance
satellite operated by the government, while there are countless dual-use as
well as dedicated optical imaging and radar imaging satellites operated by the
government. Even though the professed function of these satellites is to deter
terrorist activities and maintain border security, it is an inescapable
conclusion that during the discharge of these functions some or the other data
on ordinary citizens and their activities will be captured by the satellites.
This is exemplified by the Pegasus snooping scandal, which demonstrates how the
government can misuse sophisticated spying equipment in order to fulfil narrow
political interests and subvert the democratic machinery in the country.
Therefore, there is a sore need for Parliament to enact a comprehensive
law dedicated to drawing the contours of acceptable practices as well as
safeguards for all kinds of surveillance activities conducted by both state and
non-state actors. This is crucial in order to lend credence to the citizen’s
fundamental right to privacy under Article 21 of the constitution.[25]
The fountainhead of this principle, the Puttaswamy case, is an excellent
benchmark and starting point for formulating any law with the purported aim of
protecting citizen’s privacy. Particularly, Kaul J’s opinion in that case
offers a holistic understanding of the concept of privacy in the 21st
century and its interrelatedness with technology and surveillance. However, if
there is one thing which can be extrapolated from Kaul J’s opinion in
Puttaswamy, it would be the four-pronged test to determine whether an action
which infringes the privacy of individuals is justified in light of the
fundamental right to privacy or not, as the said right is not absolute and must
give way to other competing rights and interests.[26]
Therefore, a law for regulating satellite based surveillance could condition
such surveillance on the fulfilment of the four prerequisites under the test.
Firstly, the said act of infringement by surveillance must be expressly
or impliedly authorised by law, whether it be constitutional law or a specific
statute, and must not be such so as to deliberately exploit loopholes and
lacunae. Secondly, the action must be essential in a democratic society, that
is, the objective of the action must serve the interests of the society as a
whole, like national security or public safety, and must not be a tool for
narrow interests. Thirdly, the infringement or interference afforded by the act
must be proportionate to the objective sought. All less intrusive alternatives
must be explored beforehand and sincere efforts must be made to minimise the impact
on civil liberties of citizens. Lastly, procedural safeguards must be in place
to prevent abuse of powers in the name of governmental functions. A redressal
mechanism for citizens aggrieved by the violation of their rights must be
provided, and accountability and transparency must be fostered by comprehensive
legislation towards this end. Only then will there be a state of equilibrium
between privacy and autonomy of individuals and the state’s obligations to
protect and defend its citizenry.
V.
Conclusion
To conclude, satellites are undoubtedly a force multiplier in any
nation’s surveillance arsenal and intelligence apparatus. However, an equitable
and just balance must be struck between national security considerations and
individual privacy of citizens. Formulating a comprehensive law dedicated to
this subject and the constitutional ethos of privacy and autonomy would be a
much-needed step in the right direction, and perhaps the only way to put an end
to the hegemony of the state in surveilling its citizens. Inspiration may be
sought from other countries, such as the UK’s Regulation of
Investigatory Powers Act, 2000,[27]
which provides detailed guidelines to government bodies for surveillance and
investigation, and is also used as a model for many EU member countries.[28]
The potential of this new law to become a bulwark against the
high-handed approach of government agencies is contingent on the inclusion
herein of effective safeguards and mechanisms. Failure to do so would result in
a position which is largely similar to the IT Act, which makes a passing
reference to the grounds under which personal data of individuals can be
intercepted, but provides no accountability mechanism or procedural safeguards.
The same lackadaisical approach towards privacy is reflected in the Drone Rules
2021, which gloss over privacy considerations entirely in favour of a more
liberalised regime for unmanned aircrafts in the country.[29]
At the end of the day, we as a society will have to make certain choices;
whether we want complete security or whether we want complete privacy. However,
we cannot have both and expect there to be no inconveniences.
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[4] Pat Norris, Spies in the Sky: Surveillance Satellites in
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[5] Jeffrey Richelson, America's
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[6]
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[8] Jennifer
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[10] Charles Burress, ‘Biased history helps feed U.S.
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accessed 25 March 2024 .
[17] Universal Declaration of Human
Rights Article 12, United Nations Convention on Migrant Workers Article 14, UN
Convention of the Protection of the Child Article 16, International Covenant on
Civil and Political Rights, International Covenant on Civil and Political
Rights Article 17, and Article 8 of the European Convention for the Protection
of Human Rights and Fundamental Freedoms.
[18] Peter Bergen, The Rise
and Fall of Osama bin Laden, p.
103 (New York, Simon and Schuster, 2021).
[19] Arvind Dahiya, ‘Mass
surveillance: Enhancing national and human security’ (2017) 3 International
Journal of Applied Research 1052.
[21] M. Mientka, ‘The NSA's
Controversial Mass Surveillance Could Help Thwart Disease Outbreaks’ (Medical
Daily, 19 January 2014)
accessed 25 March 2014 .
[22] Peter
Baker and David E. Sanger, ‘Obama Calls Surveillance Programs Legal
and Limited’ The New York Times (New York, 7 June 2013)
accessed 25 March 2024.
[26] Ibid.
[28] Andrew Roberts, ‘Court of Appeal Regulation of Investigatory
Powers Act 2000: Private Surveillance’ (2006) 70 Journal of Criminal Law
286.
[29] Renu Gupta & Akshat Bhushan,
‘How the Drone Rules 2021 threaten the Right to Privacy’ (The Leaflet, 22
October 2021)