Phone Tapping Law In India

Phone tapping laws in India is in real bad shape. Rather, it cannot be properly termed as a valid and constitutional phone tapping law. The Indian telegraph act 1885 carries few provisions under which the Indian government and its agencies can tap phones in India.

However, these provisions and outdated law are clearly in violation of constitutional provisions and constitutional safeguards. As on date, we have no constitutionally sound lawful interception and phone tapping law in India. Even the proposed the central monitoring system project of India (CMS Project of India) is also not supported by any legal framework.

As on date, phone tapping in India is not performed constitutionally and this unconstitutional phone tapping in India is a “constitutional failure of India”. Constitutional phone tapping law in India is urgently needed to be formulated so that this illegality and unconstitutionality can be cured.

Instead of bringing suitable laws to curtail illegal and unconstitutional phone tapping and e-surveillance in India, Indian government is doing the exact opposite. Big brother in India is overstepping the constitutional limits. Not only the phone tapping has been increased in India by both governmental and private players but even surveillance of Internet traffic in India and Internet censorship in India has been increased.

Now it has been reported that very soon the Centre would have direct access to the telephone conversations of Indian citizens and organisations as the Department of Telecommunications (DoT) has developed capabilities to intercept phones without phone operator’s assistance. At present the central monitoring system (CMS) is at trial stage where Delhi and Haryana regions would be covered by establishing the main server in New Delhi. It would take another 12 months before the system is officially operational.

With this we may have two separate telephone tapping systems in India. The first is managed by the Home Ministry of India and now the DoT would have its own telephone tapping system at place. The DoT would be required to set up separate servers in each State, depending upon the requirements and the number of subscribers. While the facility in Delhi and adjoining States are likely to be ready by year-end, it might take at least another couple of years before servers are established across India.

An interesting functionality of the CMS is that irrespective of operators, lines would be tapped at one centralised location, which will be manned round-the-clock by officials of the government agencies.

While this may help in proper law and order enforcement yet the misuse of this facility is very much possible. This is more so when there is neither a legal framework nor constitutional safeguards to prevent abuse of CMS in India. It would be appropriate if a constitutional lawful interception law is formulated in India immediately.

Abuse Of State Secrecy And National Security: Obstacles To Parliamentary And Judicial Scrutiny Of Human Rights Violations

The Council of Europe has issued many important and far reaching resolutions and notifications in the year 2011. One such important resolution is titled as abuse of state secrecy and national security: obstacles to parliamentary and judicial scrutiny of human rights violations. This is in addition to the concerns shown by the European Council regarding cyber attacks and political pressures upon cyber dissidents. It seems European Council is stressing upon protecting human rights in cyberspace and civil liberties protection in cyberspace.

This also shows that the international community is getting serious about protection of civil liberties in cyberspace. For instance, the connection between United Nations and human rights in cyberspace is also well known where UN declared that access to Internet is a basic human right. However, the efforts of United Nations regarding cyber laws and human rights in cyberspace need to be further expedited as they are slow in nature.

As far as India is concerned the situation is really alarming. Law enforcement and intelligence agencies of India are practically working with no legal framework. Parliamentary scrutiny of law enforcement and intelligence agencies of India is still missing. Although draft bills for central bureau of investigation (CBI) and intelligence agencies of India were made, they were never considered by Indian parliament. Till now agencies like CBI, research and analysis wing (RAW), etc are working with no constitutionally sound law governing their operations.

Further, numerous e-surveillance oriented projects like Aadhar, national intelligence grid (Natgrid), central monitoring system (CMS), national counter terrorism centre (NCTC), crime and criminals tracking and networks system (CCTNS), etc have been launched without any legal framework and parliamentary scrutiny. Phone tapping in India is also not done in a constitutional manner. E-surveillance in India and Internet censorship in India has also increased a lot. Clearly, parliament has failed to address abuses of state secrecy and national security powers in India.

Even judicial scrutiny of e-surveillance and Internet censorship issues in India is not up to the mark. Fortunately, the Supreme Court of India is dealing with privacy violations through illegal phone tapping in India. While doing so the Supreme Court has observed that with the present state of technology used in India by law enforcement agencies and private individuals, privacy rights of Indians are at grave risk. The Supreme Court also recommended reformation of official secrets act of India keeping in mind the contemporary requirements and environment. This is a good sign but the Supreme Court of India must expedite these matters as they have been pending for long.

Parliamentary oversight and judicial scrutiny are the twin safeguards that can prevent excessive abuse of state secrecy and national security powers in India. Unfortunately, presently both of them are missing and this has resulted in an intelligence mess in India. Further, India is desperate to control technology rather utilising it.

We need dedicated and separate privacy laws, data privacy laws and data protection laws in India to tackle state abuse of its sovereign powers. The sooner these procedural and constitutional safeguards are adopted in India the better it would be for the larger interest of India.

Indian Research And Analysis Wing (RAW) Granted E-Surveillance Powers

Indian government is in controversies these days. Controversial functions like e-surveillance in India, websites blocking in India, Internet censorship in India, etc are performed by Indian government and its agencies without any procedural and constitutional safeguards and without any constitutionally sound legal framework supporting these functions.

India does not have a constitutionally sound lawful interception law. Phone tapping in India is still done in an unconstitutional manner and at times by private individuals as well. Further surveillance of Internet traffic in India is now openly acknowledged by Indian government.

Recently Internet intermediaries in India were asked to pre screen contents before they are posted on their platforms by the account holders. Before that Yahoo took Indian government to court over e-surveillance. In its petition, Yahoo has raised questions on the right to privacy of a company that stores such sensitive data and to what extent authorities can coerce it to part with the information considered necessary to either track terror perpetrators or thwart future attacks.

The intelligence infrastructure of India has become synonymous for non accountability and mess. There is neither any parliamentary oversight nor and transparency and accountability of the working of Intelligence Agencies of India. Intelligence infrastructure of India needs rejuvenation keeping in mind the constitutional obligations. As on date, intelligence gathering in India is performed unconstitutionally.

Among all these controversial issues, now the Ministry of Home Affairs has added and notified the intelligence agency, the Research and Analysis Wing (RAW) in the list of eight agencies to intercept phone calls, e-mails and data communications. This would give RAW a cover for intercepting phone calls, e-mails and voice and data communication domestically.

RAW would not be able to deploy its communication interception equipment at international gateways to snoop on all forms of data, be it international telephony emanating from India, or any form of electronic data including e-mails. However, this notification has failed to mention how such interceptions would be in conformity with civil liberties protection in Indian cyberspace.

Intelligence Gathering In India Is Unconstitutional

Intelligence gathering and fighting terrorism are essential national security and sovereign functions. They cannot be equated at par with other governmental functions. That is the reason why every country provides some extra protection and immunity from public scrutiny to such functions.

None can doubt that Indian counter terrorism capabilities need rejuvenation. We have an obvious but unresolvable terrorism dilemma in India. With the growing use of social media by cyber criminals and terrorists, the intelligence agencies world over are engaging in open source intelligence through these social media and platforms.

However, the real problem is that in India intelligence agencies and law enforcement agencies are practically governed by no law. Whether it is Central Bureau of Investigation (CBI) or Intelligence Agencies of India, none of them are presently “accountable” to Parliament of India.

Even the constitutional validity of national investigation agency act, 2008 is still doubtful. Further, India does not have a constitutionally sound lawful interception law. Phone tapping in India is still done in an unconstitutional manner and at times by private individuals as well.

E-surveillance in India, websites blocking in India, Internet censorship in India, etc are also not done a strictly constitutional manner. Till now Indian courts have not tested the acts of intelligence agencies of India on the touchstone of constitutional protections. There is no e-surveillance policy in India and protection of human rights in Indian cyberspace has still not been considered by Indian government.

In fact, intelligence infrastructure of India has become synonymous for non accountability and mess. There is neither any parliamentary oversight nor and transparency and accountability of the working of Intelligence Agencies of India. Intelligence infrastructure of India needs rejuvenation keeping in mind the constitutional obligations.

A private Bill titled Intelligence Services (Powers and Regulation) Bill, 2011 was circulated in the last session of the Parliament. However, instead of discussing the same in the current Monsoon Session (August 2011) and winter session (December 2011) of the Parliament, Indian Prime Minister Dr. Manmohan Singh has announced that Law on Intelligence Agencies would be formulated soon.

The national intelligence grid (Natgrid) project of India is also without any constitutional safeguards. The Cabinet Committee on Security (CCS) has also given only “Partial In Principle Approval” to NATGRID Project. Since NATGRID Project is not supported by any Legal Framework and Parliamentary Oversight, the “Crucial Stages” of NATGRID Project has not yet been approved by the CCS. Thus, NATGRID Project of India is still in troubled waters as lack of Privacy Laws and Data Protection Laws has put it in doldrums.

On top of it we have the proposed central monitoring system (CMS) project of India that has been proposed without any parliamentary oversight. Further, stress upon Internet kill switch is also given by India without realising that Internet kill switch is not a solution to cyber threats. Anti Internet kill switch measures are needed to prevent Indian government from taking recourse of any such unconstitutional and draconian action.

Finally, intelligence gathering skills developments in India are far from satisfactory. Intelligence agencies of India are insisting upon use of 40 bits encryption level in India. This has been suggested so that surveillance of Internet traffic in India is possible. However, e-surveillance is not a substitute for cyber skills. Encryption policy of India is urgently needed to resolve all these issues.

Presently, Indian government and intelligence agencies of India are engaging in many unconstitutional activities that are not subject to any parliamentary or judicial scrutiny. It is high time to bring some order in the chaos created by this situation unless it is too late.

Cyber Law On Social Media And Networking Sites In India

Social media and networking sites have a crucial role to play. Now even governments across the world acknowledge this importance of social media websites. India is one such country that is currently trying to deal with social media sites. However, we have no dedicated social media laws in India. It has even been reported that guidelines for social media contents monitoring in India would be issued very soon.

However, till now we have no social media policy in India. Even we do not have dedicated social networking laws in India that can take care of the misuses of social platforms. However, the framework and guidelines for use of social media for government organisations has been recently suggested by department of information technology. Theses guidelines provide an Indian social media framework for governmental departments and organisations that employees of these organisations must follow.

Social media is considered to be an Internet intermediary as per Indian cyber law. The recent controversy of Internet censorship in India has once again reiterated the importance of effective social media laws in India.

Cyber law due diligence in India has become very stringent. This applies to various fields and to multiple stakeholders. For instance, cyber due diligence for banks in India is now a well known requirement for banks in India. However, Internet intermediaries are the most widely covered stakeholders in this regard. Intermediaries liability for cyber law due diligence in India is really tough.

Indian government is very keen in regulating the contents of social media in a constructive manner. This occasionally results in censorship of Internet in India. Further, Indian government is now openly acknowledging surveillance of Internet traffic in India.

Recently Internet intermediaries in India have been asked to pre screen contents before they are posted on their websites. India wants companies like Google and Facebook to censor users’ contents before they are posted.

In a related incidence, Yahoo has filed a petition raising the questions regarding the right to privacy of a company that stores sensitive data of its customers and users and to what extent authorities can coerce it to part with the information considered necessary to either track terror perpetrators or thwart future attacks. The Google’s outcry for lack of Internet intermediary law in India is another example of growing dissatisfaction towards Indian cyber laws, especially Internet intermediary laws of India.

However, social media sites have certain techno legal obligations and liabilities as per Indian laws. For instance, social networking sites are liable for online IPRs violations, including online copyright violations in India. Although we have no law on the lines of online copyright infringement liability limitation Act (OCILLA) of United States yet the “safe harbour” provisions protecting intermediaries are not available under certain conditions as per Indian laws. Social networking sites must be aware of these limitations while operating in India. However, if social media sites are working within the framework of Indian laws, unreasonable e-surveillance, Internet censorship and websites blocking should not be by Indian government.

The corporate environment of India is changing rapidly as per global; requirements. Corporate laws in India are proposed to be streamlined with the introduction of the proposed Companies Bill 2011. The foreign direct investment (FDI) in India has been liberalised in many sectors. Even FDI in pharmaceuticals sector in India has been liberalised. Securities and Exchange Control Board (SEBI) has also proposed an electronic Initial public offer in India (E-IPO in India). These steps are pointing towards and open and transparent governmental functioning and not e-surveillance and Internet censorship oriented model.

Internet censorship in India can create problems for not only FDI in India but also for the growth of various sectors including banking sector of India. An integrated modern banking law for India is already in pipeline and an e-surveillance model of India would not be beneficial for the same.

Perry4Law and Perry4Law Techno Legal Base (PTLB) strongly recommend that Indian government must enact strong and effective social media laws, e-governance laws and e-commerce laws in India. Social networking laws in India must be so drafted as would benefit all the stakeholders.

Cyber Laws All Over The World Are Becoming Unreasonable And Oppressive

Cyber Laws all over the World are intentionally designed to violate civil rights like privacy, speech and expression, etc. They are also intentionally formulated to facilitate “Internet Censorship” and “E-Surveillance” beyond the legitimate limits of “National Security”. This approach is more dangerous and is detrimental to the national security in the long run.

The Google’s episode regarding China’s censorship shows the growing hunger of various nations for Internet censorship and e-surveillance. India is no different from China when it comes to “Internet Censorship” and “E-Surveillance”, though the extent and degree may be somewhat lesser. The Information Technology Act 2000 (IT Act 2000) is the sole cyber law of India that was amended by the Information Technology Act 2008 (IT Act 2008). From here starts the real problem.

According to Praveen Dalal, Managing Partner of Perry4Law and the leading Techno-Legal Expert of India, “The IT Act 2008 made India a “Safe Heaven” for cyber criminals on the one hand and an “Endemic E-Surveillance Society” and “Internet Censorship State” on the other hand. It seems the main aim of the proposed IT Act 2008 was to strengthen the “Internet Censorship” and “E-Surveillance Capabilities” of India.

With the passage of IT Act 2008 India has now officially become an endemic e-surveillance society. The amendments have provided unregulated, unconstitutional and arbitrary e-surveillance and Internet censorship powers to Government of India and its agencies and instrumentalities, says Praveen Dalal. The fact is that India has become an E-Police State, states the ICT Trends of India 2009.

Surprisingly, Minister of State for Communication Sachin Pilot believes that Indian cyber law is strong enough to meet the challenges posed by technology-assisted terrorism and cyber-terrorism. It seems he has not gone through the present IT Act 2000 after its 2008 amendments.

Some observers in India have rejoiced the exit of Google from China believing that it may be a good opportunity for India. However, they fail to understand the “ground reality” that India is no different from China when it comes to Internet Censorship and E-Surveillance. If India does not abdicate its alliance to Internet censorship and e-surveillance similar incidence may happen in India as well.

SOURCE: ITVOIR