What is the role of consent in conducting targeted surveillance on individuals?

Introduction
Targeted surveillance involves the deliberate monitoring of specific individuals or groups based on a predetermined suspicion or objective, such as national security concerns, criminal investigations, or insider threat detection. It is significantly more intrusive than bulk surveillance because it seeks to observe particular behaviors, locations, communications, or patterns of activity. In democratic societies and under global data protection regimes, consent plays a central role in ensuring that surveillance practices are lawful, ethical, and respectful of individual rights. However, the applicability and limitations of consent in the context of targeted surveillance can vary depending on the legal framework, the nature of the surveillance, and the actor conducting it (e.g., government vs. private organization).

Understanding Consent in Privacy Law
Consent is a foundational principle of data protection laws worldwide. Under laws like the General Data Protection Regulation (GDPR) in the European Union, the Digital Personal Data Protection Act (DPDPA) in India, and the California Consumer Privacy Act (CCPA) in the United States, valid consent must be:

  • Freely given

  • Informed

  • Specific

  • Unambiguous

  • Revocable

Consent empowers individuals to control how their personal data is used, which is crucial in a digital world where data can be easily collected, stored, and exploited. However, surveillance, especially state-led, often involves covert data collection—making it difficult, or even impossible, to obtain informed consent in advance.

1. Consent in State-Led Targeted Surveillance
Governments conduct targeted surveillance to investigate criminal activity, protect national security, or monitor high-risk individuals. In such cases, consent is typically not sought, for several reasons:

  • The subject may be a suspected criminal or terrorist who would evade detection if informed.

  • Consent could jeopardize the investigation.

  • Legal frameworks often provide specific exceptions to the consent requirement for law enforcement and intelligence activities.

Legal Basis Instead of Consent:
Instead of consent, state surveillance must be grounded in:

  • Legislation authorizing surveillance

  • Judicial oversight or warrants

  • Proportionality and necessity standards

  • Accountability mechanisms and post-facto review

Example:
In India, Section 69 of the Information Technology Act, 2000 allows the government to intercept or monitor data in the interest of sovereignty, security, or public order, but does not require individual consent. Instead, surveillance must be approved by a competent authority, such as the Home Secretary, and reviewed by a high-level oversight committee.

Similarly, under the U.S. Foreign Intelligence Surveillance Act (FISA), intelligence agencies may conduct targeted surveillance of foreign nationals without consent, provided they obtain a warrant from the Foreign Intelligence Surveillance Court.

2. Consent in Corporate and Organizational Surveillance
In contrast to governments, private entities and employers are generally required to obtain consent before conducting targeted surveillance of individuals—especially employees, customers, or partners. Surveillance in these settings often involves:

  • Email or chat monitoring

  • Location tracking

  • Biometric access controls

  • Device or keystroke logging

  • Behavioral analytics

Importance of Consent in Non-Governmental Surveillance:
When businesses or institutions monitor individuals, especially in workplaces or public spaces, they must follow privacy laws and employment standards that require:

  • Clear policies and notices

  • Explicit consent for sensitive data collection

  • Purpose limitation and data minimization

  • Secure data handling and limited access

Example:
An IT firm using software to monitor employee productivity must include that practice in its employment contract or workplace privacy policy and obtain written consent. Failure to do so could result in complaints under the DPDPA or labor law violations.

3. Consent for Surveillance in Digital Services
Online platforms often engage in targeted tracking of users for personalization, content moderation, or fraud detection. While this is not traditional surveillance in the national security sense, it can be equally invasive.

Regulatory Requirement:
Digital services must obtain explicit consent for cookies, behavioral tracking, and geolocation monitoring, particularly when used to build behavioral profiles. This is enforced under:

  • GDPR (EU)

  • ePrivacy Directive (EU)

  • DPDPA (India)

  • CCPA/CPRA (California)

Consent Management Tools like cookie banners or privacy dashboards help users understand and accept or decline specific types of surveillance.

4. Challenges in Obtaining Consent in Surveillance Contexts
Even in contexts where consent is legally required, several challenges arise:

  • Power Imbalances: In employer-employee or government-citizen relationships, consent may not be truly free or voluntary.

  • Lack of Awareness: Individuals may not fully understand what they’re consenting to, especially in technical or opaque systems.

  • Non-Negotiable Terms: Platforms may force users to accept surveillance in order to access services, a practice criticized as “take-it-or-leave-it” consent.

  • Consent Fatigue: Repeated requests for consent may lead users to ignore warnings or agree without reading, weakening informed choice.

These challenges necessitate stronger enforcement, transparency, and alternative legal safeguards in cases where consent is insufficient or infeasible.

5. Role of Privacy Notices and Policies
Where direct consent cannot be obtained, providing clear and accessible privacy notices becomes crucial. Privacy notices should include:

  • What data is collected

  • Why it’s collected

  • Who will have access to it

  • How long it will be retained

  • What rights the individual has

Example:
A smart city initiative deploying facial recognition for traffic management should publicly disclose its purpose, data handling methods, retention policies, and avenues for redress—even if it cannot ask for each pedestrian’s explicit consent.

6. Informed and Contextual Consent as Best Practice
Even where surveillance may be legally exempt from consent requirements, adopting informed and contextual consent as a best practice reinforces public trust. This involves:

  • Layered consent forms that are readable and understandable

  • Granular controls that let users choose specific types of monitoring

  • Real-time notifications when surveillance tools are active

  • Easy opt-out mechanisms wherever possible

7. Ethical Dimensions of Consent in Targeted Surveillance
Beyond legal frameworks, consent has significant ethical value in targeted surveillance:

  • It respects human autonomy and dignity

  • It fosters transparency and accountability

  • It builds trust in systems and institutions

  • It reduces the risk of discrimination and abuse

Using consent ethically means recognizing when it is impractical and replacing it with equally robust procedural safeguards, such as data minimization, audit trails, and human oversight.

8. Alternative Safeguards When Consent Is Not Feasible
When consent is waived in public interest or national security contexts, the following alternative safeguards become critical:

  • Judicial authorization before initiating surveillance

  • Strict access controls and role-based data management

  • Regular audits by independent bodies

  • Mandatory data deletion timelines

  • Compensation mechanisms for unlawful surveillance

  • Transparent disclosures about the scope and purpose of surveillance programs

These alternatives help preserve legitimacy, accountability, and compliance even when consent is absent.

Conclusion
Consent plays a crucial but context-sensitive role in targeted surveillance. While it is a legal necessity and ethical obligation in corporate, digital, and interpersonal surveillance settings, it is often waived or replaced in state-led security operations where notice could undermine legitimate objectives. In such cases, consent must be substituted by strong legal authorizations, transparent procedures, and robust oversight mechanisms.

Organizations and governments must approach consent not just as a checkbox for legal compliance but as a living principle that reflects respect for individual autonomy and trust in democratic systems. Whether directly sought or ethically accounted for, consent remains a cornerstone of responsible surveillance in the digital age.

Priya Mehta

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