Digital Surveillance

Digital Surveillance

There is a great deal of justifiable concern over last Thursday’s notification relating to digital surveillance since it bears the stamp of a notification that takes away at one sweep even the vestiges of the right to privacy that the Constitution had preserved for us. The Centre’s notification relating to the government’s right to intercept and decrypt information from any computer is no less than a power of attorney to nine government agencies to snoop over what anybody sends or receives through the computer without citizens being able to anything about it. This, apart from taking away almost all personal freedom in respect of what we communicate to others, reduces the status of the Indian citizen to that of citizens of totalitarian countries or dictatorships. What needs to borne in mind is that in the 21st Century the computer has virtually replaced all hand-written letters however intimate or private the correspondence might be. Last Thursday’s notification would seem to put an end to a lot of personal correspondence that is intended solely for an individual. Last Thursday’s notification relates to Rule 4 of the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009. The document gazetted last Thursday does not mention what Rule 4 says, for which citizens are expected to do their own research. But according to a gazette notification of October 27, 2009, Rule 4 says: “The competent authority may authorise an agency of the government to intercept, monitor or decrypt information generated, transmitted, received or stored for the purpose specified in sub-section 1 of Section 69 of the Act (namely, the Information Technology Act, 2000).” A perusal of the law itself will reveal that sub-section (1) lists the offences that can justify surveillance. Thursday’s notification does not mention any other rule. One omission is rather significant. It is Rule 3 preceding Rule 4. Rule 3 details “directions for interception or monitoring or decryption of any information” in any computer “except by an order issued by the competent authority”. Thereafter, Rule 3 lists in detail the procedure to be followed in case of emergencies or unavoidable circumstances. Thursday’s notification mentions none of the provisions in Rule 3. When there was controversy over the notification last Friday, the Union Home Ministry issued a press release to insist that each case of interception, monitoring or decryption needs to be approved by the Union Home Secretary. The ministry also said that all cases for interception, monitoring or decryption are to be placed before a review committee headed by the State chief secretary.

Since there is no addendum to the notification specifying the requirement to seek approval of the review committee, the latest move of the Centre confers significant powers on the following agencies of the government: Intelligence Bureau, Narcotics Control Bureau, Enforcement Directorate, Central Board of Direct Taxes, Directorate of Revenue Intelligence, Central Bureau of Investigation, National Investigation Agency, Research and Analysis Wing and the Delhi Police Commissioner. They can intercept and decrypt information on all computers.

It is necessary to ask the Union government why it felt the need to issue the notification of last Thursday when it had the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009 and the Information Technology Act, 2000 to intercept and decrypt information from any computer in any case. Last Thursday’s notification was perhaps as redundant as the Citizenship (Amendment) Bill, 2016. Perhaps the only difference is that while the Amendment Bill on citizenship was a step towards relaxing the existing laws, last Thursday’s notification had the effect of making the existing laws more draconian. Arun Bhagat, a former chief of the Intelligence Bureau is perhaps one of the few persons who has sought to justify last Thursday’s notification. “Every country does this. Without these tools, how do you expect to fight terrorism?” he said. Not many people will agree that the notification could make any significant impact on fighting terrorism. What was perhaps more important than issuing a notification was proper implementation of the existing laws relating to information technology. In any case, it is heartening to learn that two public interest litigation (PIL) cases challenging last Thursday’s notification have already been filed in the Supreme Court.

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