Surveillance, unavoidable but…

Miftah Fadhli, The Jakarta Post 6 December 2015

“Surveillance is a system of social relations […] a form of governance not only by the state but by non-state actors as well. The surveilled citizen trained by the cultures of surveillance believes that a better life is possible within the framework of CCTV, biometrics identification and IP tracking.” (Pramod K. Nayar, Citizenship and Identity in the Age of Surveillance)

When the world has been technologizing in a more sophisticated way, Pramod K. Nayar, in his book entitled Citizenship and Identity in the Age of Surveillance (2015), comprehends the practice of surveillance as more than a matter of science and communications technology. The practices of surveillance, as in Nayar’s account, come as a culture, a way of life as he alternately puts René Descartes’s renowned proposition: I am surveilled therefore I am.

As a culture, Nayar is convinced that the surveillance phenomenon creates three “interlinked and sequential discourses that constitute the principal ideological and ideational foundations of surveillance culture”, namely vulnerability, safety and surveillance. Modern practices of surveillance — communications surveillance, video surveillance, location monitoring, etc. — lead to a very new life space and a new lifestyle, which are unavoidable on one side but dilemmatic on the other.

How can it happen? First of all, people need to believe that they live in a risky world and, therefore, are vulnerable. That is what Torin Monahan, professor of communication at the University of North Carolina at Chapel Hill mentioned in 2010 as “insecurity subjects”.

As people feel insecure in public areas, they will believe that public space must be sterilized from every allegedly threatening manner it probably has. In turn, people will tolerate more with every surveillance policy undertaken in the name of public safety. That can be the use of biometrics technology, mass usage of CCTV in public areas, watch-list monitoring and the like.

As they become common measures, surveillance regimes misdirect the questions of social security — economic inequality, poverty, social injustice — into questions of public safety, as according to Nayar. In a way, social security is merely taken into account as a public safety issue, tackled, for example, either through establishing interception technology or by enhancing video monitoring over public spaces.

Internet surveillance, as a part of mass surveillance, has been unprecedentedly rising in Indonesia since 2008. As online extremism increases, surveillance-related measures have become popular in all forms, such as internet blocking and filtering, internet communications interception, encryption breaking, etc.

While the public benefits from such measures, online surveillance becomes more and more aggressive so that it causes other rights to be violated by unclear as well as unaccountable policies. Indonesia has been experiencing such a rights-affectable practice since the implementation of Law No. 11/2008 on electronic information and transactions (ITE) and its derivative regulation named the Ministerial Decree No. 19/2014 on negative-content internet sites. Surveillance-oriented policies have resulted in online extremism being taken away from its essential debate: to wit, intolerant values that society really needs to address.

Although surveillance can prevent many potential crimes, it may cause several unpleasant effects related to the enjoyment of human rights. Mark Scheinin, in his report as UN Special Rapporteur in 2009, identified four side effects of surveillance.

First, it may profoundly terrify people and prevent them from enjoying their other fundamental rights, such as freedom of expression and freedom to access information from the internet.

Second, surveillance powers may impede people from assembling and associating with each other in public.

Third, surveillance has the capability to monitor people’s movements from one place to another so that it limits people’s freedom of movement. Fourth, it may lead to miscarriages of justice and violate due process guarantees.

Surveillance practices are empowering the authorities to infringe on a citizen’s privacy so that they have a direct effect on the enjoyment of the freedom of expression and opinion. Privacy, as Scheinin stated, is necessary to create zones to allow individuals and groups to be able to think and develop ideas and relationships. On the contrary, privacy disclosure in surveillance practices shallowly divides individuals into two categories: either someone who is desired or undesired based on publicly acceptable standards.

For example, the surveillance-nuanced policy of registering official religions on ID cards has constrained traditional believers from expressing their faith in public. Another example is that being identified as gay or atheist through the interception of private communications will be catastrophic for the alleged individuals or groups.

Immeasurable interception on behalf of legal investigations, as a last example, has led to private as well as unnecessary disclosures putting defendants into situations of public embarrassment.

Indonesia nowadays has already stipulated 20 surveillance-related regulations, including national laws, ministerial decrees and National Police circulars. With regard to those regulations, interception on communications can legally be undertaken for the interests of intelligence, law enforcement or ethics code violation inquiries.

Such regulations authorize nothing less than seven government agencies to broadly intercept communications with different mechanisms and durations one to another, which jeopardize the enjoyment of human rights. Ideally, surveillance-related measures should be regulated into one single law integrally and comprehensively.

Apart from that, the recent Paris attacks have been responded to in terms of surveillance measured by European countries, the US and several Asian countries like Indonesia. Those Islamic State (IS) movement attacks have even raised the debates around encryption code restrictions in the US.

Today, encryption is considered as a means to protect privacy and to empower individuals or groups to gain their freedom of expression and opinion without interference, according to David Kaye, UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression. Arbitrary restriction of encryption is considered as a violation of fundamental human rights.

Indonesia seems to draw a bead on surveillance as a succinct tool to overcome its contemporary problems, particularly those related to extremism and corruption. Surveillance is an inevitable face of the technologized modern era in which people are capable of accelerating their performances both online and offline.

However, most importantly, surveillance must be regarded as one of the democratic methods of promoting human rights guaranteed by the 1945 Constitution. Lastly, surveillance should not be treated as a way to dodge social security debates.

The writer is a human rights researcher at the Institute for Policy Research and Advocacy (ELSAM). The views expressed are his own.