State, business and surveillance: finding the right balance


Mass surveillance – whether carried out by state agencies or large corporations – is becoming an inevitable, pervasive and universal phenomenon. Its many benefits include detecting and preventing crime, developing better business solutions, and mitigating the effects of pandemics and natural disasters.

Many countries have successfully used surveillance and big data to monitor and contain Covid-19 outbreaks in recent months. Surveillance has been used as an effective instrument in the fight against terrorism over the past two decades.

While surveillance in itself is not universally sinister, without adequate safeguards, it can be used as a tool for abuse. Over the years, various surveys have revealed it: invasive software is increasingly used to mass monitor rights activists, lawyers, political opponents, journalists, businesses and users.

So where does Bangladesh’s legal framework sit on the issue of surveillance?

On the one hand, Bangladesh recognizes freedom of thought, conscience, speech and expression, as well as the secrecy of correspondence and communication, as constitutional rights. On the other hand, laws give extensive mandates to state agencies to exercise oversight over citizens.

Under Section 97Ka of the Bangladesh Telecommunications Regulatory Act 2001, the government has the power to authorize any national security, intelligence or law enforcement agency to intercept, record or collect data. information belonging to any person for reasons of national security or public order without any warrant.

In addition, guidelines, policies and licenses issued by the Bangladesh Telecommunications Regulatory Commission require licensees to facilitate oversight efforts of state agencies.

Such surveillance and interception activities, without adequate checks and balances, would erode public confidence in businesses as well as in government authorities.

The High Court Division of the Supreme Court of Bangladesh in The State vs. Oli [2019] observed that the systematic collection of call details and audio recordings from service providers by regulators without following due process and informing clients violates the fundamental right guaranteed by article 43 of the Constitution of Bangladesh.

The government of Bangladesh is also introducing a new data privacy law, which contains provisions on data mirroring. Under the new law, local and offshore data controllers will be required to store “at least one service copy of the data” in servers or data centers located in Bangladesh.

Any new data privacy law should have the capacity to curb rampant surveillance. Illustration: Bloomberg

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Any new data privacy law should have the capacity to curb rampant surveillance. Illustration: Bloomberg

This requirement will further strengthen the powers of security agencies to monitor and intercept locally stored data, which runs counter to the supposedly confidentiality-centric framework of the proposed legislation.

Minister Mustafa Jabbar alluded to the use of this legislation to ensure that non-resident social media and video-on-demand platforms comply with his instructions.

Unfortunately, using a data privacy law as a tool to enforce a digital security agenda is not the most ideal route, especially in the context of how the Digital Security Law of 2018 and the Information and Communication Technology Act of 2006 were used. over the past decade.

Especially now, in the age of the digitization of services and digital consumerism where datasets are constantly redesigned and reused, state surveillance unchecked, with little to no relief for privacy breaches, is a serious privacy issue.

Our institutions suffer from a scourge of fluctuating law enforcement and there is a dearth of privacy jurisprudence in Bangladesh. While the problem is not confined to a single country, it could nevertheless have a deleterious impact on Bangladesh’s investment prospects: it is well established that one of the obstacles to capital inflows is the national security policy and public order of the host country (which broadly encompasses its laws and state surveillance practices).

It is therefore absolutely crucial that legal mandates on surveillance are guided by the principles of necessity, proportionality, transparency and accountability in their design.

Moreover, trade surveillance is fraught with increased mistrust and hypersensitivity, even when the underlying motives are admirable. For example, a recent announcement from Apple for a new tool that will scan iOS devices for images of child abuse drew serious public backlash.

Many privacy advocates have argued that the only thing stopping the company from using this tool for any other purpose is their words, and furthermore, it could give governments a back door to monitor citizens and persecute dissidents. It is therefore equally important that the new data protection law incorporates sufficient safeguards against abuses by non-state actors.

Shahzeb Mahmood is a partner at Syed Ishtiaq Ahmed & Associates and a research associate at the Center for Governance Studies. He can be contacted at [email protected]

Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions and views of The Business Standard.


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