ABSTRACT
People are now closer than ever thanks to the significant advancements in technology in recent years. Everything is easily executed, for which technology should be credited. And, the commission of crimes is not excluded. The conspiracies for terrorist activities are easily planned through present sophisticated means. Governments around the world will therefore continue to use technology to snoop for investigation and other purposes as long as criminals and terrorists attempt to misuse it to promote their ulterior motives. Hence, this brings us to the question: Moreover, should States jeopardize the freedom and the right to privacy of entire people to catch a minuscule portion of dangerous criminals? The research paper focuses on this question more along with other questions such as how surveillance is important for national security, how far the law allows this, whether the government using it legitimately or as per established law, do the present rules suffice, or if any changes needed, and many more. A deep insight into surveillance by government agencies and its effect on privacy is given in this research paper.
Keywords: Surveillance, National security, phone tapping, interception, Pegasus, Right to Privacy.
INTRODUCTION
In the present world scenario, the phone became, ironically, another body part. This means that this technology has become a part and parcel of our lives. The gold has connected in such a way that management of the small business is also running without physical form, because everything from dealing, and investments to transactions and sales can happen virtually. And crimes, conspiracies, and terrorist activities are no exceptions. In today’s world, it is so easy for a terrorist organization to conspire even with an unknown man and conduct illegal activities. This situation dragged many government and law enforcement agencies and authorities to start surveilling the social media and phones of those criminals. That’s where the word “surveillance” arose to counter crimes and terrorism. But, as every coin has two sides, the government authorities are spying not only on criminals but also on their rivals including journalists, academicians, lawyers, former Supreme Court judges, and many other officials and private citizens. This is famously known as “the Pegasus scandal” which undermines the privacy of a person’s life. Protecting people’s privacy, as a corollary, became more crucial than ever.
RESEARCH METHODOLOGY
This paper is descriptive and the research is based on secondary sources for the deep analysis of the surveillance laws in India and how far right privacy is at threat. Secondary sources of information like newspapers, journals, and websites are used for the research.
REVIEW OF LITERATURE
- https://www.lawctopus.com/academike/law-phone-tapping-india/#:~:text=Unauthorized%20tapping%20is%20in%20violation,the%20knowledge%20of%20the%20person.(last visited on Sep 14, 2022)
- https://www.scconline.com/blog/post/2022/04/08/telephone-tapping-as-an-investigation/ ((last visited on Sep 13, 2022)
METHOD
The importance of surveillance
Before knowing whether surveillance is needed to detect criminal plans, etc., let us get to know what is the true meaning of surveillance and what its essence speaks. In common parlance, surveillance refers to keeping a close eye on someone or something, which can also be done online. Different governments utilize distinctive software or spyware to monitor their citizens around the world, particularly in developed nations. These kinds of actions are taken by governments to safeguard citizens against threats coming from external forces, to deter crime and criminal activity, to conduct investigations, and for a variety of other reasons.
In this modern IT-supported world, Surveillance means close observation of a person or group, particularly one who is being suspected, by investigative agencies of the government. It includes activities like reading one’s WhatsApp chats, and SMSs, recording one’s calls, monitoring the phone numbers you have dialled, accessing one’s photos, getting one’s location by tracking their GPS, secretly turning on one’s phone’s camera or microphone to record, accessing all contact details and passwords and so on, implicitly, without alerting the offender that they are being watched. Doing all these things will largely benefit investigative agencies to prevent crimes from commissioning or detect criminals and put them behind bars. For instance, if a drug dealer or peddler communicates or makes the deliveries by phone and not by going on the streets, the cops intercept the calls and track him down, it will help police to catch him and arrest him. If the case is of big drug dealers, this surveillance hugely benefits as a lot of drugs will be seized and many drug addicts will be reduced. In addition, since no tangible evidence of these crimes could have been found, it will stand as crucial evidence. As has already been stated that many crimes and their conspiracies are being planned online, this makes it very imperative for the investigative authorities to do surveillance on them by spying on their devices.
There is another benefit of this spying system. That is, saving the lives of many officials. Crimes like terrorism and human trafficking are dangerous, and the people involved in the investigations are in high danger. The risk to the investigators’ and police officers’ lives is mitigated through wiretapping, which enables the investigation to be carried out without physical contact. Additionally, telephone tapping serves as proof of a major offense in situations where there is no physical involvement. Additionally, governments believe that using the information gathered through electronic eavesdropping operations properly to prevent any terrorist attacks is the most efficient way to tackle the threat of terrorism.
The government-corporate behemoth now increasingly relies on digital surveillance as its primary method of operation. The purchasing and selling of aggregated data, as well as widespread surveillance, have become routine. Many contend those laws severely infringed civil rights and highly restricted freedom of speech. In this text, we examine the nature of laws and the extent to which they impose restrictions.
Laws concerning surveillance by authorities
Two important statutes empower the government, whether it be at the central or state levels, the authority to keep a close eye on any individual in this nation. The Indian Telegraph Act of 1885[1] and the Information Technology (IT) Act of 2000[2] are the two laws in consideration. The Telegraph Act deals with the interception of calls, whereas the IT Act was passed to deal with the surveillance of all electronic communication.
Section 5 of the Indian Telegraph Act of 1885 permits message interception in two circumstances by either the state or national governments:
- When a public emergency or issue involving public safety arises
- If doing so is deemed necessary or desirable
Besides these two, there have been other cases where governments have permitted message interception. In the PUCL Case[3], the Supreme Court established some guidelines and drew attention to the provisions of the Telegraph Act’s lack of procedural protections. These guidelines outline the circumstances under which telephone tapping is permissible as per Section 5(2)[4]. The instances include: when India’s sovereignty and integrity are in danger; when the State’s security is threatened; when friendly relations with other countries are threatened; when public order is in peril; or when it is necessary to stop incitement to commit an offense. Only in these emergency circumstances, the breach of privacy of any individual is legitimized as there is a lawful justification. The Supreme Court further ruled that tapping is a serious violation of a person’s privacy. It is undeniably true that every government engages in some form of surveillance as a part of its intelligence service, yet the right to privacy of citizens must also be secured[5].
Rule 419A[6] was added to the Telegraph Rules in 2007 and thereafter to the rules specified under the IT Act in 2009 based on the aforementioned Supreme Court observations. In accordance with Rule 419A of the Telegraph (Amendment) Rules, 2007, the Union Home Secretary, in the context of the central government empowered to authorize an agency for lawful interception or tapping. Likewise, the State Home Secretary is under the authority of state governments. The Review Committee will also receive a copy of such an approved tapping, and it will decide in two months whether the order enabling the telephone tapping will remain valid. Furthermore, the Government must demonstrate that there are no other ways to obtain the demanded data. In addition, the Court ordered the creation of a special committee that can examine the legality of each tapping activity[7].
The guidelines laid down in the PUCL case had a significant impact, and as a result, the Information Technology Act of 2000 now grants broad authority to intercept digital communication devices without the four criteria required by the Telegraph Act, making it simpler to intercept and tap information. The Information Technology Act of 2000, for instance, grants the central and state governments the authority to direct the interception, monitoring, and decryption of any data sent over a network or retained in a computer resource. This inclusion of Section 69 is through a major amendment in 2008[8]. And the surprising fact is the amendment was passed in Lok Sabha without any debates[9] and the very next day, it was passed by Rajya Sabha[10]. The grounds given in the IT Act of 2000 are broader and more ambiguous than those in the Telegraph Act of 1885. It covers every circumstance covered by the Telegraph Act, but it goes even further. These rules are troublesome because they give the government absolute secrecy over its surveillance and interception operations.
Following this change to the IT Act, the Ministry of Home Affairs issued a notification allowing 10 Central agencies, including the Directorate of Revenue Intelligence, the Central Bureau of Investigation (CBI), and the Delhi Commissioner of Police, to monitor specific computers and their transmissions and receipts in accordance with Section 69(1) of the Information Technology Act, 2000, read along with Rule 4 of the Information Technology (Procedure and Safeguards) Regulations. These “security and intelligence agencies” have been permitted to monitor, decode, and intercept any “information generated, transmitted, received or stored in any computer resource”. This is regarded as an extreme method of denying people their right to privacy because institutions like the Delhi Police, the CBI, and the Directorate of Revenue Intelligence cannot properly be categorized as entities concerned with homeland security. Internal security is the primary argument for issuing such a directive.
It is evident that terror has taken shape from the MHA order giving these 10 agencies carte blanche to act however they please. This anxiety poses a danger to democracy as a whole. This is just one more rationale for the urgent need for the enactment of a data protection law. Not only this announcement but also India’s surveillance architecture and the IT Act as a whole need to be reviewed, especially in light of the historic judgment on the right to privacy in the K Puttaswamy case from the year 2017.
The other side of the government’s claims
Although governments have many logically acceptable justifications for conducting surveillance operations, it is unquestionably a violation of privacy and personal information. The powerful investigative agencies of the Indian government have begun weaponizing the private phones of ordinary residents, setting a terrifying new bar for violating their right to privacy. Ironically, people who think they are safeguarding national security are now the real threat to it. The South Asia Human Rights Documentation Centre stated, in 2014, that the “Indian state’s agencies’ unrelenting surveillance of citizens and censorship shows an alarming disregard towards matters of privacy” in response to several privacy violations by public officials[11]. The Centralized Monitoring System (CMS), which was put in place in 2009 and gave the government access to location data and phone conversation listening, was of particular concern to the organization.
In the recent past, an apt example is the alleged ‘Pegasus scandal’ that happened in July 2021[12]. This alleged scam is so outrageous that this level of scam has never been seen before anywhere in the world. Not just India is worried about this, but many countries are in the process of investigations through their investigative agencies. Even France’s President Macron changed his phone ever since his name was on the list then. So, what is this Pegasus? And why has everyone worried ever since it arrived? Pegasus, spyware, is developed by an Israeli company named NSO Group. The primary purpose of this spyware is to use for fighting against crime and terrorism by government and law enforcement agencies. But there’s a twist in the story. Serious concerns about targeted monitoring are raised by reports that the Indian central government may have been using this Pegasus to eavesdrop on at least 100 private individuals on WhatsApp[13]. Pegasus which was created to spy on criminals and terrorists is allegedly being used to spy on opposition politicians, journalists, activists, former Supreme Court judges, and even Election Commissioners. And, the surprising fact is the center denied all the allegations and declined to supply any facts in the matter at the same time. Is this justifiable in a democratic country like India? Absolutely not.
That is the reason why the Supreme Court has made the most significant decision to form a committee, headed by Justice Raveendran, to investigate the Pegasus case in October 2021[14]. When the Supreme Court declared that its committee would be looking into the Pegasus case, it made significant statements. It stated that spying on journalists and politicians was not permissible in the name of national security. It argued that the “specter of national security” cannot always be invoked to block judicial review of issues like the unauthorized monitoring of common citizens. Fast forward to August 2022, the Supreme Court submitted its interim report on pegasus’s investigation stating that there’s no conclusive evidence yet on the government’s snooping[15]. However, it also pointed out that expectedly the government did not cooperate with the committee[16]. The final report is yet to be released.
The right of journalists to protect their information is essential to press freedom, the Supreme Court ruled in the Pegasus case. Imagine what will happen if the government is not harshly penalized for purchasing this anti-terrorism software from Israel and deploying it against political opponents and journalists if Pegasus’ technology can already be used to utilize our telephones to spy on us. We certainly hope that the committee of the Supreme Court is given complete freedom to carry out its duties.
The significance of the right to privacy: a dire need to safeguard
These events urge us to consider what defines the right to privacy and how these surveillance practices affect our freedom of expression, privacy, and fundamental rights.
Life and liberty are not just complex concepts; they contain all the components that give them value. According to our Constitution, a person’s privacy is an element of his life and freedom. Only by the constitutional provisions may this fundamental right be violated.
According to Article 21[17] of the Indian Constitution, each citizen is guaranteed the right to life and personal liberty. No individual should be deprived of his or her life or personal liberty unless under the established legal procedure. The right to privacy is included in the term “personal liberty.” A citizen has a right to protect his or her privacy as well as that of their family, friends, spouses, mothers, children, and procreation, among other things.
In Justice K.S. Puttaswamy v. Union of India (2017)[18], even the Supreme Court determined that privacy is a fundamental right. One point that comes up in this context is whether or not the right to privacy is absolute. In the case of Ritesh Sinha v. the State of Uttar Pradesh[19], and Anr., the Hon’ble Supreme Court declared, in 2019, that while the right to privacy is a fundamental right, it is not an absolute one. It is restricted, just like other fundamental rights. The court’s ruling declared explicitly and unanimously that the right to privacy is not absolute and must submit to the compelling public interest.
A person’s right to privacy can be compromised only in cases of securing the public interest in certain extreme situations. The significance of reserving such rights to conduct surveillance in the present, given the prevalence of fake news, and illegal activity, such as cyberterrorism, on the dark web, cannot be exaggerated. Authorities cannot, however, secretly observe somebody without a valid and legitimate reason.
Nevertheless, the court acknowledged that the right to privacy was not absolute, but the court failed to follow the procedure of identifying the underlying public interests. The court did not establish any specific criteria for determining whether a certain case’s right to privacy is absolute or not. Several judicial rulings are still required to establish how the right to privacy would function in present-world situations.
SUGGESTIONS
In the Puttaswamy Case, the Hon’ble Supreme Court of India issued a decision saying that according to Articles 14, 19, and 21 of the Indian Constitution, the right to privacy is a basic right. However, there is no adequate data protection law. Without this type of data protection regulation, the government’s agencies are only allowed to intercept and monitor the information of its people by executive order. Additionally, there is no process for judicial review of these orders. It’s also crucial to remember that most people who are being watched by authorities are not aware that they are being watched.
To begin or demand an authorization for an interception by State authorities, there must be some justifiable grounds or concrete evidence. In the US, this is the position. Courts would determine that any action taken without such permission was arbitrary or violated someone’s right to privacy. As a result, the prescribed procedure’s structure must be followed, and its execution must conform to both its letter and its spirit. Any deviation from the moral and legal boundaries set by the law would constitute a legitimate invasion of residents’ privacy which is termed as undemocratic and uncivilized.
CONCLUSION
Both sides of the argument can defend their positions with sensible justifications. Regardless of whose point of view is deemed to be “correct,” electronic surveillance is a reality. In this era of advanced technology, the threat to privacy is genuine and has grown. One’s privacy is violated because the information is accessible to organizations other than those authorized by the State. In such a delicate situation, it is necessary to take appropriate precautions and strike a balance between the rights of the citizens and the interests of the State. When it comes to the violation of citizens’ rights, these interests should take priority over others, such as maintaining national security and preventing catastrophic damage. If an agency needs to get data or information through wiretapping or interception, there must be a compelling cause for doing so.
When it comes to intelligence agencies, phone tapping has developed into a highly dependable task, and all precautions and guidelines should be followed to guarantee everyone’s safety and that no rights are violated. A legal framework defining the scope of permissible phone tapping and the motives for which it may be carried out is now necessary for a democracy like India in light of recent issues. More importantly, the Courts need to establish guidelines and norms governing its acceptance as proof. As we work towards a new legal framework for surveillance, we don’t need to dispute whether or why it should be done. Instead, we should talk about who, what, when, and how monitoring is conducted. The surveillance can be done only when there is a genuine cause or when national security is involved as well as the conduct of spying should be by the protocols and guidelines which are laid down by the government. Therefore, if the functioning of the government authorities is backed by lawful justification, surveillance, which is very significant nowadays, is said to be lawful and useful for protecting the general public.
Full name: Pujari Dharani
College Name: Pendekanti Law College, affiliated to Osmania University, Hyderabad.
[1] The Indian Telegraph Act, 1885, No. 13, Acts of Parliament, 1949 (India).
[2] Information Technology (IT) Act, 2000, No. 21, Acts of Parliament, 1949 (India).
[3] People’s Union for Civil Liberties v. Union of India, (1997) 1 SCC 301.
[4] The Indian Telegraph Act, 1885, § 5(2) No. 13, Acts of Parliament, 1949 (India).
[5] Puneet Dhanoa, An Analysis of Telephone Tapping as an Investigation, SCC ONLINE BLOG (Apr. 8, 2022), https://www.scconline.com/blog/post/2022/04/08/telephone-tapping-as-an-investigation/.
[6] Indian Telegraph (Amendment) Rules, 2007, Rule 419A (India).
[7] Sudarshan Roy, The state of surveillance in India : is it a threat to privacy, IPLEADERS (Apr. 5, 2021), https://blog.ipleaders.in/state-surveillance-india-threat-privacy/.
[8] Amended IT Act to prevent cyber crime comes into effect, THE HINDU (Oct. 27, 2009, 4:51 PM), https://www.thehindu.com/news/national/Amended-IT-Act-to-prevent-cyber-crime-comes-into-effect/article16888817.ece.
[9] Id.
[10] Supra note 9.
[11] Protection vs Privacy: The Debate on Surveillance and Digital Rights in India, EPW ENGAGE (Nov. 12, 2019), https://www.epw.in/engage/article/protection-vs-privacy-debate-surveillance-and-digital-rights-india.
[12] Akarsh Verma, Pegasus spyware scandal: What did WhatsApp say earlier, what is NSO Group saying, INDIA TODAY (Jul. 18, 2021, 10:46 PM), https://www.indiatoday.in/technology/features/story/pegasus-spyware-scandal-what-did-whatsapp-say-earlier-what-is-nso-group-saying-1829645-2021-07-18.
[13] Nandagopal Rajan, Surveillance via WhatsApp: The case against Israeli spyware firm NSO, and how attack happened, THE INDIAN EXPRESS (Nov. 5, 2019, 7:12 AM), https://indianexpress.com/article/explained/whatsapp-nso-group-pegasus-spyware-attack-6101443/.
[14] Krishnadas Rajagopal, Supreme Court forms committee to examine Pegasus allegations, THE HINDU (Oct. 27, 2021, 10:59 AM), https://www.thehindu.com/news/national/supreme-court-judgment-on-pegasus/article37184269.ece.
[15] Malware found in 5 out of 29 phones, no conclusive evidence of Pegasus: SC, BUSINESS STANDARD (Aug. 25, 2022, 3:32 AM), https://www.business-standard.com/article/current-affairs/malware-found-in-5-out-of-29-phone-no-conclusive-evidence-of-pegasus-sc-122082500444_1.html.
[16] Explained: The findings of the Pegasus committee, and what we know about the use of the Israeli malware, THE INDIAN EXPRESS (Aug. 26, 2022, 7:40 AM), https://indianexpress.com/article/explained/explained-sci-tech/supreme-court-verdict-pegasus-spyware-case-explained-8110710/.
[17] INDIA CONST. art. 21.
[18] Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors., AIR 2017 SC 4161.
[19] Ritesh Sinha v. State of Uttar Pradesh, (2013) 2 SCC 357.