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Surveillance Reform-Needed

Surveillance Reform-Needed

CONTEXT:

  • Over 300 verified Indian mobile telephone numbers, including those used by ministers, opposition leaders, journalists, the legal community, businessmen, government officials, scientists, rights activists and others”, were targeted using spyware made by the Israeli firm, NSO Group.

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KEY DETAILS:

  • Subsequent reporting showed that the Pegasus spyware had been used to target 37 phones, of which 10 belonged to Indians.

  • These revelations highlight a disturbing trend with regard to the use of hacking software against dissidents and adversaries.

PRESS FREEDOM AT THE STAKE:

  • In 2019, allegations were made about the use of Pegasus against journalists and human rights activists.

    • Most of them were situated in Maharashtra and Chhattisgarh as the hack targeted lawyers related to the Bhima Koregaon case and Dalit activists, respectively.

    • However, despite repeated calls for investigations, the relevant State governments failed to do so.

  • The World Press Freedom Index produced by Reporters without Borders has ranked India 142 out of 180 countries in 2021.

    • The report states that the press requires greater protections on speech and privacy.

    • They protect journalists against threats of private and governmental reprisals against legitimate reporting.

    • In the absence of privacy, the safety of journalists, especially those whose work criticises the government, and the personal safety of their sources is jeopardised.

    • Such a lack of privacy, therefore, creates an aura of distrust around these journalists and effectively buries their credibility.

ISSUES:

  • The government, in its purported undated and unsigned response, relied on existing provisions of law under the Indian Telegraph Act of 1885 and the Information Technology (IT) Act of 2000.

    • Even without the use of Pegasus or any other hacking software and surveillance, these provisions are problematic and offer the government total opacity in respect of its interception and monitoring activities.

    • While the provisions of the Telegraph Act relate to telephone conversations, the IT Act relates to all communications undertaken using a computer resource.

    • Section 69 of the IT Act and the Interception Rules of 2009 are even more opaque than the Telegraph Act, and offer even weaker protections to the surveilled.

  • No provision, however, allows the government to hack the phones of any individual since hacking of computer resources, including mobile phones and apps, is a criminal offence under the IT Act.

    • Surveillance itself, whether under a provision of law or without it, is a gross violation of the fundamental rights of citizens.

  • The very existence of a surveillance system impacts the right to privacy and the exercise of freedom of speech and personal liberty under Articles 19 and 21 of the Constitution, respectively.

    • It prevents people from reading and exchanging unorthodox, controversial or provocative ideas.

    • Regardless of whether a citizen knows that their email is being read by the government, the perceived danger, founded on reasonable suspicion that this may happen, impacts their ability to express, receive and discuss such ideas.

    • There is also no scope for an individual subjected to surveillance to approach a court of law prior to or during or subsequent to acts of surveillance since the system itself is covert.

    • In the absence of parliamentary or judicial oversight, electronic surveillance gives the executive the power to influence both the subject of surveillance and all classes of individuals, resulting in a chilling effect on free speech.

  • In response to a Right to Information (RTI) request in 2013, the Central government had revealed that 7,500 to 9,000 orders for interception of telephones are issued by it every month.

    • However, RTI requests for such information are now denied citing threats to national security and to the physical safety of persons.

  • The government, in its purported response, stated that any surveillance which takes place happens through a “due process of law”.

    • However, the existing provisions are insufficient to protect against the spread of authoritarianism since they allow the executive to exercise a disproportionate amount of power.

    • Such surveillance, when carried out entirely by the executive, curtails Articles 32 and 226 of the Constitution (empowering the Supreme Court and High Courts, respectively, to issue certain writs) as it happens in secret.

CRITICISM OF SURVEILLANCE STATE:

  1. Emotional objectives: Lateral surveillance is used to further emotional objectives such as community building and strengthening relationships with neighbours Where emotional and social factors act as a driving force. Thus, creating a situation where privacy may be undermined for the betterment of the community.

  2. Tool for social control & exclsuion: Surveillance technologies not only act as a tool for social control but also as a tool for social exclusion.

  3. Discrimination: Lateral surveillance thus makes it easier to discriminate between those who conform to the social norms of the majority.

  4. Culture of ‘hate’ & ‘fear’: State-sponsored lateral surveillance is harmful as it creates a culture of ‘hate’, ‘fear’ and ‘constant suspicion’ against an ‘enemy’.

  5. Fear of crime in society: Wherever the state identifies that it “cannot be everywhere”, it deploys this mechanism. This culture places a duty on people to ‘keep an eye out’ for ‘their own safety’ and this heightens the fear of crime in society.

  6. Increase intolerance, prejudice, xenophobia: Such perceived threats have a tendency to increase intolerance, prejudice, xenophobia and casteism in our society.

  7. Violating the fundamental right: Also violating the fundamental right to privacy, and, consequently, the unfettered expression of free speech and behaviour.

SOLUTIONS:

  • Thus, in order to satisfy the ideal of “due process of law”, to maintain an effective separation of powers and to fulfil the requirements of procedural safeguards and natural justice, there needs to be oversight from another branch of the government.

  • Only the judiciary can be competent to decide whether

    • Specific instances of surveillance are proportionate
    • Whether less onerous alternatives are available
    • To balance the necessity of the government’s objectives with the rights of the impacted individuals

INDIAN TELEGRAPH ACT, 1885

  • The Indian Telegraph Act, 1885 is the enabling legislation in India which governs the use of

    • wired and wireless telegraphy

    • telephones

    • teletype

    • Radio communications and digital data communications

  • It gives the Government of India exclusive jurisdiction and privileges for establishing, maintaining, operating, licensing and oversight of all forms of wired and wireless communications within Indian Territory.

  • It also authorizes government law enforcement agencies to monitor/intercept communications and tap phone lines under conditions defined within the Indian Constitution.

  • The act came into force on 1 October 1885.

WAY FORWARD

  • Surveillance reform is need of the hour in order to protect citizen’s rights and freedom of Press. With proper codified legislation and effective cyber security system it can be achieved in a time manner.

SOURCE: The Hind