Order on surveillance meant to protect privacy, govt. tells SC

Context: The Centre, in response to a PIL, has told the Supreme Court that its December 20, 2018 notification allowing 10 central agencies to snoop on people is in fact a measure to protect citizens’ privacy.

Centre’s arguments:

• The order aims to restrict the exercise of powers, removing a possible vagueness and specifying the agencies/organisations who only would have the powers to utilise the powers of section 69 of the Act.
• The very purpose of the order is to ensure that surveillance is done as per due process of law; that any interception, monitoring, decryption of computer resource is done only by authorised agencies and with approval of competent authority; to prevent unauthorised use of these powers by any agency, individual or intermediary so that the right to privacy of citizen is not violated.

Need for surveillance:

• Surveillance is necessary in the modern world where modern tools of information communication, including encryption are used. Surveillance is done only in the defence of India, to maintain public order, etc.
• There are grave threats to the country from terrorism, radicalisation, cross border terrorism, cyber crime, drug cartels”, and these cannot be ignored or under-stated. There is a need for “speedy collection of actionable intelligence” to counter threat to national interests.

Background:

The Ministry of Home Affairs (MHA), in December 2018, issued an order authorising ten security and intelligence agencies of the country to access any information stored in any computer for the purpose of monitoring, decrypting and interception.

Who are these agencies?

The 10 agencies include Intelligence Bureau, Narcotics Control Bureau, Enforcement Directorate, Central Board of Direct Taxes, Directorate of Revenue Intelligence;, Central Bureau of Investigation, National Investigation Agency Cabinet Secretariat (RAW), Directorate of Signal Intelligence (For service areas of Jammu & Kashmir, North-East and Assam only), and Commissioner of Police, Delhi.

Highlights of the Order:

• The ministry has vested the authority on the agencies under Section 69 of the Information Technology Act, 2000 and Rule 4 of the Information Technology Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009.
• The order mandates for a subscriber or service provider or any person in charge of the computer resource to extend technical assistance to the agencies.
• Non-compliance will invite seven-year imprisonment and fine.

Concerns raised:

Only data in motion could be intercepted earlier. But now data revived, stored and generated can also be intercepted as powers of seizure have been given. This means not just calls or emails, but any data found on a computer can be intercepted. The agencies will also have powers to seize the devices. The sweeping powers given to agencies to snoop phone calls and computers without any checks and balances is extremely worrisome. This is likely to be misused.

How is it against the judgement of Supreme Court’s right to privacy?

SC in Puttuswamy judgment had asked the government to always carefully and sensitively balance individual privacy and the legitimate concerns of the state.

• However, the recent order does not provide the procedure or the object for such an exercise or the quantum of period for which a person’s private data could be intercepted.
• Government has clarified that existing processes will be followed and every case of interception would continue to require permission from the home secretary and review by a panel headed by the cabinet secretary. However, even these processes do not have adequate safeguards against misuse.
• An individual may not even know if her electronic communications are being intercepted/monitored. If such surveillance comes within the person’s knowledge, due to the obligation to maintain confidentiality and provisions in the Official Secrets Act, the person would not be able to know the reasons for such surveillance. This can make surveillance provisions prone to misuse.

Sources: the hindu.