Pegasus and Privacy: The Recent Controversy
Written By:- Hrishika Rawat
The government has maintained that all surveillance in India is legal, following the discovery by a worldwide collaborative investigation effort that Israeli spyware Pegasus was used to target at least 300 people in India. So, what are the laws in India that govern surveillance?
The Telegraph Act of 1885 and the Information Technology Act of 2000 are the primary regulations in India that govern communication surveillance. Following the Supreme Court’s involvement in 1996, the IT Act was created to deal with the interception of all electronic communication. A comprehensive data protection law to address the gaps in existing frameworks for surveillance is yet to enact.
Telegraph Act 1885
Section 5(2) of the Telegraph Act reads: “On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorized in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of an offence, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order…”
The government can only intercept calls under this legislation if it is in the interests of India’s sovereignty and integrity, the state’s security, cordial relations with other nations, or public order, or if it is preventing incitement to commit a crime. These are the same limits on free speech that the Constitution imposes under Article 19(2).
Even these limitations can be imposed only if a condition antecedent exists, such as the occurrence of a public emergency or in the interest of public safety.
A proviso in Section 5(2) further specifies that this legitimate interception cannot be used against journalists. “Provided, however, that press messages intended for publication in India by reporters accredited to the Central Government or a State Government will not be seized or held unless their transmission has been forbidden under this sub-section.”
Supreme Court Intenvention
The Supreme Court in Public Union for Civil Liberties v Union of India (1996) pointed out a lack of procedural protections in the Telegraph Act’s provisions and established some standards for interceptions. Following the CBI’s findings on “tapping of politicians’ phones,” a public interest lawsuit was launched.
The court pointed out that officials conducting interception were not even keeping sufficient documents and logs. The court issued recommendations that included the formation of a review committee to investigate authorizations granted under Section 5(2) of the Telegraph Act.
“Tapping is an egregious violation of one’s privacy. With the advancement of extremely sophisticated communication technologies, the right to a private telephone call in the privacy of one’s home or business is becoming more vulnerable to abuse. It is no doubt correct that every Government, howsoever democratic, exercises some degree of subrosa operation as a part of its intelligence outfit but at the same time citizen’s right to privacy has to be protected from being abused by she authorities of the day,” the court said.
The Supreme Court’s recommendations served as the foundation for adopting Rule 419A in the Telegraph Rules in 2007 and then in the IT Act’s rules in 2009.
A Secretary to the Government of India in the Ministry of Home Affairs, or a secretary-level person in charge of the Home Department in the event of a state government, can issue interception orders, according to Rule 419A. Such orders may be issued by an officer, not below the level of Joint Secretary to the Government of India who has been lawfully sanctioned by the Union Home Secretary or the state Home Secretary under unavoidable circumstances, according to Rule 419A.
It Act, 2000
To strengthen the legal foundation for electronic surveillance, Section 69 of the Information Technology Act and the Information Technology (Procedure for Safeguards for Interception, Monitoring, and Decryption of Information) Rules, 2009 were adopted. All electronic data transmissions can be intercepted under the IT Act. So, for Pegasus-like spyware to be used lawfully, the government would have to invoke both the IT Act and the Telegraph Act.
Apart from the limitations imposed by Section 5(2) of the Telegraph Act and Article 19(2) of the Constitution, Section 69 of the IT Act adds a new wrinkle: the interception, monitoring, and decryption of digital data “for the purpose of investigating an offence.”
R Rajagopal alias RR Gopal and another Vs State of Tamil Nadu (1994), the Supreme Court held that the right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21.
Puttaswamy vs Union of India (2017), The judicial debate on the status of the right to privacy was, however, settled in August 2017 when a nine-judge bench held that the right to privacy is a fundamental right. The court added that telephone tapping and internet hacking by the State, of personal data, is another area that falls within the realm of privacy.
Pegasus Affair Is An Assault On Privacy
Last week, it was found that over 300 Indians were being monitored by Israeli spyware named Pegasus, according to a startling worldwide news story. This program has the capacity to hack into phones and gain access to the compromised person’s data, documents, voice calls, and movies. Journalists, opposition figures, campaigners, and cabinet members were among those on the roster. Most of the names were anti-establishment and their investigative stories uncovered the various failures of the government.
The Pegasus affair has reopened the debate about privacy and the extent to which the government may misuse privacy rights. While spying has a long history in India, this is the first time that sophisticated equipment intended for defence and national security has been unethically exploited to get access to all anti-government communications. Anyone defending this will be slipping down a steep slope of undermining the basic rights of an individual and also the democratic principles of the nation.
Smartphones have become a need rather than a privilege as India has accelerated digital communication and business, and Covid-19 has accelerated the digitization process. The availability of practically anything at the touch of a finger necessitates the establishment of a blanket institutional framework by a sovereign country.
The issue has become political since the names of many opposition leaders also cropped up in the surveillance investigation and have rocked every single day of parliament since the monsoon session began. The government, in the interest of transparency, instead of agreeing to look into these charges, is busy rejecting the report altogether and going so far as to say that this is an anti-India conspiracy. This is ridiculous, to say the least; while various countries named in the snooping investigation have launched an inquiry, France has initiated it while Israel has formed a senior inter-ministerial group to look into it but the Indian government continues to tie itself up in knots by defending it.
Conclusion
Hence, governments like India need to take more holistic viewpoints on how to prevent cybersecurity breaches and also to prevent the unlawful exploitation of monitoring and interception.
As time passes, it will become increasingly important for the country as a whole to strike a golden balance between safeguarding the sovereign interests of the sovereign government on the one hand, and civil freedoms and individual rights on the other. As we approach the point where we will lose one by one the liberties established in the Constitution, it is necessary to speak up loudly in support of protecting our rights while carrying out our responsibilities. The government cannot absolve itself of all responsibility by relying on deception and lies to escape accountability.
The government should remember that power is never permanent and that breaking all rules of democratic and constitutional governance allows others in power to pay back in kind – the only people who suffer in power politics are the people of the country, who helplessly watch their freedoms being trampled on one by one. For those who remain silent and defend this assault on democracy, I would just reiterate Benjamin Franklin’s quote: “Those who are willing to give up fundamental liberty in exchange for a smidgeon of temporary safety deserve neither liberty nor safety.”
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