Pegasus spyware issue – concerns and way forward

Relevance: Possible future course of action for India after the recent revelations under Pegasus spyware issue.

Synopsis: Dealing with the implications of the Pegasus spyware issue and the policy challenges involved in existing laws.

Background

Under the revelations made in the Pegasus spyware issue, it is clear that many Indian citizens were targets of a vicious surveillance campaign by a government entity, Indian or foreign. The composition of the people targeted include journalists, politicians, probably a Supreme Court judge and a former Election Commissioner

Is surveillance necessary?

Yes and no.

• To enjoy liberties provided to us by the Constitution we need national security to be maintained. This requires a small degree of surveillance. But, that national security is not meaningful if it comes at the cost of the very liberties such security is supposed to allow us to enjoy.
• Excessive and unaccountable surveillance is dangerous to privacy, freedom of thought, of speech, and has a chilling effect on people’s behaviour. It also shatters the very foundation of the rule of law upon which a constitutional liberal democracy is built. Like with everything, balance is necessary.

Laws & programmes dealing with surveillance

Currently, the laws authorizing interception and monitoring of communications are

• Section 92 of the CrPC (for call records, etc)
• Rule 419A of the Telegraph Rules
• Rules under Sections 69 and 69B of the IT Act
• Programmes such as CMS, TCIS, NETRA, CCTNS, and so on exist (They have not been authorized by any statute as of now)

Issue: It is unclear when the Telegraph Act applies and when the IT Act applies.

Who can monitor?

• A limited number of agencies are provided powers to intercept and monitor. The Intelligence Organisations Act, which restricts the civil liberties of intelligence agency employees, only lists four agencies, while the RTI Act lists 22 agencies as “intelligence and security organisations established by the central government” that are exempt from the RTI Act.
• In 2018, the Srikrishna Committee on data protection noted that post the K.S. Puttaswamy judgment, most of India’s intelligence agencies are “potentially unconstitutional”, since they are not constituted under a statute passed by Parliament — the National Investigation Agency being an exception

Thus, it is unclear which entities count as intelligence and security agencies.

Suggestions

The intelligence agencies in India must be provided with a legal framework for their existence and functioning; their functioning must be under Parliamentary oversight and scrutiny”. This will also ensure civil liberties and rule of law are protected.

Conclusion

The truth about these revelations must be unearthed through an investigation by a JPC (Joint Parliamentary Committee) or by the Supreme Court or any other credible mechanism.

Terms to know: 

• Section 69 of the IT Act 
• Intelligence Organisations Act
• Telegraph Act
• Srikrishna Committee on data protection