Drop the phone checking, draft surveillance curbing orders

Source: The post is based on an article “Drop the phone checking, draft surveillance curbing orders” published in the “The Hindu” on 31^st August 2022.

Syllabus: GS 2 Important Provisions of the Constitution of India; GS 3 Indian Security

Relevance: Surveillance and Intelligence Reforms in India

News: Recently, the Supreme Court has looked into the findings of the apex court-appointed committee which probed into the allegations raised in the Pegasus Case.

There are allegations that the personal communication devices of a range of people in India, including journalists, civil society activists, and politicians, were targeted illegally using Israeli-made spyware.

Surveillance-related issues in India 

There are allegations that the Centre and the States operate like a police state when it comes to surveillance. Further, there are allegations that the corporate houses are also involved in surveillance or snooping on activists and competitors at will and collect huge dossiers on “persons of interest”.

There is a lack of checks and balances in the legal framework related to surveillance and intelligence gathering in India. For example, the law allows police officers to authorize interception (rather than the Court).

Various technologies are being used in India for surveillance. For example, facial recognition technology (like “PacketShaper software”). Surveillance software called “FinFisher” has also been used by law enforcement and intelligence agencies.

The UN General Assembly “Report of the Special Rapporteur” 2013 mentioned that the Indian Government will install a centralized monitoring system. It will route all communications to the central security agencies. This was meant to bypass the service provider and also to take surveillance out of the realm of judicial authorization. It will also eliminate the accountability on the part of the Central government.

In 2013, The Guardian placed India at 5th rank among countries where the largest amount of intelligence was gathered. For instance, the Delhi police issued a tender inviting a technology company to supply Internet monitoring equipment in 2014.

In 2018, the Justice B.N. Srikrishna Committee submitted a report to the Government which said that much intelligence gathering in India does not happen under the remit of the law. Further, there is little meaningful oversight over surveillance in India.

What are the issues with state surveillance?

As per the European Court of Human Rights, “a secret surveillance system can undermine or even destroy democracy under the cloak of defending it”.

International legal regime for surveillance -Check and Balances

In 1978, the US Congress enacted the Foreign Intelligence Surveillance Act (FISA). Consequently, the United States Foreign Intelligence Surveillance Court was established.

In1986, the Wiretap Act was enacted in the US to prohibit private agencies from engaging in surveillance. Further, the government must apply to a Federal Court to seek permission to do surveillance.

The Patriot Act 2001 (or Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001) was enacted to counter international terrorism in the US. The act required court approval.

The New South Wales Law Reform Commission, 2005 established the office of the privacy commissioner. The office had dedicated inspectors to investigate complaints.

The United Nations contributed to the development of a legal framework evolving the “no secret” rules. The governments cannot do surveillance only in the name of the “national interest”.

As per the Venice Commission Report, 2015, independent control and oversight are necessary over the executive, parliamentary oversight, judicial review, and oversight of expert bodies.

The UN Good Practices on Oversight Institutions requires the setting up of a civilian, independent institution that can carry out an investigation and have unhindered access to information. Further, individuals are empowered to complain to a court.