Rules for Tapping a Phone : Daily Current Affairs

Relevance: GS-3: Awareness in the fields of IT, Space, Computers.

Key Phrases: Fixed-line phones, mechanical exchanges, Intelligence Bureau, The Indian Telegraph Act, Rule 419A, sovereignty and integrity, Central Board of Direct Taxes, PATRIOT Act, Indian POTA.

Why in News?

Recently a political party has accused the Centre of protecting an IPS officer under probe for tapping the phones of political leaders in 2019.

Phones Tapping in India

In the era of fixed-line phones, mechanical exchanges would link circuits together to route the audio signal from the call.
When exchanges went digital, tapping was done through a computer.
Today, when most conversations happen through mobile phones, authorities make a request to the service provider, which is bound by law to record the conversations on the given number and provide these in real time through a connected computer.
In the states, police have the powers to tap phones.
At the Centre, 10 agencies are authorised to do so: Intelligence Bureau, CBI, Enforcement Directorate, Narcotics Control Bureau, Central Board of Direct Taxes, Directorate of Revenue Intelligence, National Investigation Agency, R&AW, Directorate of Signal Intelligence, and the Delhi Police Commissioner.
Tapping by any other agency would be considered illegal.

Laws Governing Phone Tapping

Phone tapping in India is governed by the The Indian Telegraph Act, 1885.
Section 5(2) says that “on the occurrence of any public emergency, or in the interest of the public safety”, phone tapping can be done by the Centre or states if they are satisfied it is necessary in the interest of “public safety”, “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”.
There is an exception for the press: “press messages intended to be published in India of correspondents accredited to the Central Government or a State Government shall not be intercepted or detained, unless their transmission has been prohibited under this sub-section”.
The competent authority must record reasons for tapping in writing.
Rule 419A of the Indian Telegraph (Amendment) Rules, 2007, says phone tapping orders “shall not be issued except by an order made by the Secretary to the Government of India in the Ministry of Home Affairs in the case of Government of India and by the Secretary to the State Government in-charge of the Home Department in the case of a State Government”.
The order has to conveyed to the service provider in writing; only then can the tapping begin.

What Happens In an Emergency?

In unavoidable circumstances, such an order may be issued by an officer, not below the rank of a Joint Secretary to the Government of India, who has been authorised by the Union Home Secretary, or the State Home Secretary.
In remote areas or for operational reasons, if it is not feasible to get prior directions, a call can be intercepted with the prior approval of the head or the second senior-most officer of the authorised law enforcement agency at the central level, and by authorised officers, not below the rank of Inspector General of Police, at the state level.
The order has to be communicated within three days to the competent authority, who has to approve or disapprove it within seven working days.
The rule says if the confirmation from the competent authority is not received within the stipulated seven days, such interception shall cease.
For example, during the 26/11 attacks in Mumbai, the authorities had no time to follow the complete procedure, and so a mail was sent to the service provider by the Intelligence Bureau, and phones of terrorists were put under surveillance.
“The proper procedure was followed later. Many times, in grave situations such as terror attacks, service providers are approached with even verbal requests, which they honour in the interest of the nation’s security,”.

Checks Against Misuse

The law is clear that interception must be ordered only if there is no other way of getting the information.
The directions for interception remain in force, unless revoked earlier, for a period not exceeding 60 days. They may be renewed, but not beyond a total of 180 days.
Any order issued by the competent authority has to contain reasons, and a copy is to be forwarded to a review committee within seven working days.
At the Centre, the committee is headed by the Cabinet Secretary with the Law and Telecom Secretaries as members.
In states, it is headed by the Chief Secretary with the Law and Home Secretaries as members.
The committee is expected to meet at least once in two months to review all interception requests. “When the Review Committee is of the opinion that the directions are not in accordance with the provisions referred to above it may set aside the directions and orders for destruction of the copies of the intercepted message or class of messages,” the law says.
Under the rules, records pertaining to such directions shall be destroyed every six months unless these are, or are likely to be, required for functional requirements.
Service providers too are required to destroy records pertaining to directions for interception within two months of discontinuance of the interception.

Conclusion

The fact remains that everyone condemns telephone tapping but no one refrains from using it when needed.
The best that can be done is to evolve comprehensive regulatory mechanisms to soften the impact of the State’s intrusion into our private spaces.
Telephone conversation is an important facet of a man's private life. Right to privacy would certainly include telephone-conversation in the privacy of one's home or office.
Telephone-tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law.

Source: Indian Express

Mains Question:

Q. What laws govern tapping a phone? What are the checks Against its Misuse? (250 words).