Surveillance: Threat to Privacy : Daily Current Affairs

Relevance: GS-3: Challenges to internal security through communication networks, the role of media and social networking sites in internal security challenges, basics of cyber security.

Key phrases: Pegasus, Israeli, Surveillance, Right to privacy, New York Times.

Why in News?

A new political storm erupted over an investigation by the New York Times that said the Indian government had purchased Israeli NSO group’s Pegasus software in July 2017 in order to carry out targeted surveillance on citizens, claiming that high-level visits by Prime Minister Narendra Modi and former Israel Prime Minister Benjamin Netanyahu and even a U.N. vote on a Palestinian organisation was part of a larger backroom deal.

Background:

In the report published, the New York Times, At least a 1,000 Indian phone numbers are in a list of potential targets of surveillance using the Pegasus spyware sold by Israeli company the NSO Group to “vetted governments” with the approval of the Israeli government.
Of these, 300 numbers have been verified; 22 phones were subjected to forensic analysis by Amnesty International and peer reviewed by University of Toronto’s Citizen Lab.
In the report published, the New York times said that ties between PM Modi and PM Netanyahu had “warmed” because of their agreement for the sale of “a package of sophisticated weapons and intelligence gear worth roughly $2 billion — with Pegasus and a missile system as the centre-pieces”
The evidence is strong, and the credibility of these revelations is extremely high.
Indian citizens were indeed targets of a vicious, abominable and uncivil surveillance campaign by a government entity, Indian or foreign.
The cohort of people who were potential targets — journalists, politicians, probably a Supreme Court judge and a former Election Commissioner — does not indicate that the surveillance was necessitated by national security or public safety concerns.

What is Pegasus?

Pegasus is a spyware developed by NSO Group, an Israeli company that specialises in what experts call cyber weapons. It is a type of malicious software or malware classified as a spyware.
It is designed to gain access to devices, without the knowledge of users, and gather personal information and relay it back to whoever it is that is using the software to spy.
It first came to the limelight in 2016, when an Arab activist got suspicious after receiving a shady message.
It was believed that Pegasus was targeting iPhone users. Several days after its discovery Apple released an updated version of iOS, which reportedly patched the security loophole that Pegasus was using to hack phones.

Law governing surveillance in India:

Communication surveillance in India takes place primarily under two laws — the Telegraph Act, 1885 and the Information Technology Act, 2000. While the Telegraph Act deals with interception of calls, the IT Act was enacted to deal with surveillance of all electronic communication.
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 authorised in this behalf by the Central Government or a State Government.
IT Act, 2000: Section 69 of the Information Technology Act and the Information Technology (Procedure for Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009 were enacted to further the legal framework for electronic surveillance. Under the IT Act, all electronic transmission of data can be intercepted. So, for a Pegasus-like spyware to be used lawfully, the government would have to invoke both the IT Act and the Telegraph Act.
Significantly, it dispenses with the condition precedent set under the Telegraph Act that requires “the occurrence of public emergency of the interest of public safety” which widens the ambit of powers under the law.

Provisions related to restriction on Surveillance:

Apart from the restrictions provided in Section 5(2) of the Telegraph Act and Article 19(2) of the Constitution, Section 69 the IT Act adds another aspect that makes it broader — interception, monitoring and decryption of digital information “for the investigation of an offence.
Under Telegraph Act, 1885, the government can intercept calls only in certain situations — 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. These are the same restrictions imposed on free speech under Article 19(2) of the Constitution.
Significantly, even these restrictions can be imposed only when there is a condition precedent — the occurrence of any public emergency, or in the interest of public safety.
Additionally, a provision in Section 5(2) states that even this lawful interception cannot take place against journalists. “Provided that 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.”
In Public Union for Civil Liberties v Union of India (1996), the Supreme Court pointed out lack of procedural safeguards in the provisions of the Telegraph Act and laid down certain guidelines for interceptions. A public interest litigation was filed in the wake of the report on “Tapping of politician’s phones” by the CBI.
The court noted that authorities engaging in interception were not even maintaining adequate records and logs on interception. Among the guidelines issued by the court were setting up a review committee that can look into authorisations made under Section 5(2) of the Telegraph Act.
The Supreme Court’s guidelines formed the basis of introducing Rule 419A in the Telegraph Rules in 2007 and later in the rules prescribed under the IT Act in 2009.
Rule 419A states that a Secretary to the Government of India in the Ministry of Home Affairs can pass orders of interception in the case of Centre, and a secretary-level officer who is in-charge of the Home Department can issue such directives in the case of a state government.
In the K.S. Puttaswamy vs Union of India verdict of 2017, the Supreme Court further reiterated the need for oversight of surveillance, stating that it should be legally valid and serve a legitimate aim of the Government. The court also said the means adopted should be proportional to the need for surveillance, and there should be procedures to check any abuse of surveillance.

Surveillance vs Right to privacy

Surveillance is a necessary tool for maintaining the sovereignty, integrity, and security of the State and it helps in the prevention and investigation of these crimes. However, the absence of any Data Protection law overlooking the millions of orders for surveillance, the State has untrammelled access to the private lives of the citizens.

Tapping is a serious invasion of an individual’s privacy. With the growth of highly sophisticated communication technology, the right to sold telephone conversation, in the privacy of one’s home or office without interference, is increasingly susceptible to abuse.

It is no doubt correct that every Government, howsoever democratic, exercises some degree of sub-rosa 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,”

Way forward:

That state agencies can trample upon the lives of citizens in such manner while elected representatives plead ignorance is unsettling for a democracy. This is antithetical to the basic creed of democracy. The truth about these revelations must be unearthed through an investigation by a JPC or by the Supreme Court or any other credible mechanism. A starting point for the Government must be in clearing the air on the foremost question it is skirting around — has any Indian agency bought Pegasus?
A comprehensive data protection law to address the gaps in existing frameworks for surveillance is need of the hour.

Source: The Hindu

Mains Question:

Q. “Spying on the Election Commission, political leaders, Supreme Court and Officers conducting sensitive investigations is a serious subversion of democracy”.Critically analyse the statement. (250words)