The Central
Monitoring System (CMS) Project of India is a “centralised
mechanism” where telecommunications and Internet communications can
be analysed by the Indian Government and its Agencies.
The CMS project of India is a good and ambitious
project that is required to manage national security and law and
enforcement requirements of the country. However, adequate
“procedural safeguards” must also be established in the system so
that it is not abused for political and personal reasons.
The telephone
tapping laws in India are already weak and violative of
constitutional protections. We are still following the colonial
telegraph act that requires an urgent repeal. Further, the
information technology amendment act 2008 made e-surveillance
in India a regular phenomenon. The big brother in India
must not
overstep the limits.
We at Perry4Law
Organisation and Perry4Law’s
Techno Legal Base (PTLB) believe that a holistic and
comprehensive law
on telephone tapping in India as well as governing related
aspects must be formulated in India. For instance, the cell
site data location laws in India and privacy issues must
also be covered by the proposed law. Similarly, the cell
site location based e-surveillance in India and
surveillance
of internet traffic in India must also be part and parcel
of the new legislation.
A national e-surveillance
policy of India must be formulated that should cover both
policy and legislative issues pertaining to CMS project and telephone
tapping relating issues. Call data record (CDRs) must also be
regulated and protected by adequate and strong laws.
Indian government has already started working in the
direction of making the CMS project operation in the month of April
2013. A new mechanism will be put in place by the Indian government
to eliminate the loopholes in authorised phone tapping by
intelligence and enforcement agencies.
Under the proposed framework, a centralised mechanism would be adopted where the need to approach individual telecom service providers would be obviated. This would exclude the interaction with these service providers and make the entire process of telephone tapping more secure and leak proof. However, this would also result in abusing the telephone tapping mechanisms in the absence of adequate procedural safeguards.
The CMS project would be brought under the
Department of Telecom (DoT) and will be manned by the Intelligence
Bureau (IB). Some procedural changes have also been introduced in
this process. For instance, a clear electronic audit trail of the
phones tapped would be maintained. This would eliminate the
traditional paper based trail procedure that is cumbersome and prone
to leak. The entire phone-tapping system will also move to an
electronic platform from the current manual system.
The CMS project, based in New Delhi, would also have
four hubs in major cities of India. Proposal to curtail the
discretionary power of agencies to listen into phone calls may also
be implemented. The telegraph act may be suitable amended to reflect
these changes.
As per the present regulatory framework, in cases of
urgency the agencies can tap phones for seven days without obtaining
permission. With the migration to electronic platform and adoption of
CMS project, the request for sanctions will also be sent
electronically which will cut down the time to obtain permission.
At Perry4Law and PTLB we believe that it would be
even better if we ensure parliamentary
oversight of intelligence agencies of India as well.
Further, we also believe that it is high time to formulate a
comprehensive and holistic telephone tapping and related law for
India. We also understand that this is a very difficult and delicate
task and may face stiff resistance from various quarters but the
tough call has to be taken by Indian government immediately.
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