Showing posts with label Surveillance Of Internet Traffic In India. Show all posts
Showing posts with label Surveillance Of Internet Traffic In India. Show all posts

Thursday, March 1, 2012

Cell Phone Laws In India

Legal enablement of ICT systems in India is posing big challenge before India. Cell phone laws in India are just one of the examples of such legal enablement. Although we have a cyber law for India yet we have no dedicated mobile phone law and mobile phone laws in India are needed. Similarly, efforts must also be made to strengthen the mobile cyber security in India.

With the launch of projects like central monitoring system (CMS), national cyber coordination centre (NCCC) of India, etc the requirements to have valid e-surveillance and cell phone laws are imminent.

Cell phone or mobile phone laws in India have still to evolve. Presently provisions pertaining to cell phones are scattered under various statues and governmental guidelines and rules. However, we have no dedicated cell phone laws in India.

Cell phones are playing important role in day to day activities of Indians. They are used for multiple purposes that cover both personal and commercial transactions. We cannot ignore the commercial, contractual and legal significance and consequences of cell phone transactions in India. This necessities enactment of dedicated cell phone laws in India.

However, positive developments in this direction are not happening in India. On the contrary, negative development infringing civil liberties in cyberspace are taking place in India. Human rights protection in cyberspace cannot be ignored the way Indian government is doing presently.

For instance, the proposal to allow department of telecommunication (DoT) to monitor cell phone locations in India is one such controversial issue. Big brother must not overstep its limits in India. Even proposed cell site based e-surveillance in India has crossed this limit well beyond those permitted by Indian Constitution.

We must have well defined procedure and cell site data location laws in India. As we have no dedicated privacy laws, data protection laws, data security laws, anti telemarketing laws, anti spam laws, etc, cell phones monitoring in India is not legally sustainable.

Even the proposed central monitoring system (CMS) project of India is not legitimate and legally sustainable as there is no legal framework that justifies its operation in India. Currently there is no phone tapping law in India that is constitutionally sound and we urgently need a lawful interception law in India. Similarly, the colonial phone tapping laws of India must be repealed and new and constitutionally sound phone tapping laws in India must be formulated.

DoT is excessively favouring e-surveillance in India and surveillance of Internet traffic in India. We need a legally valid e-surveillance policy of India to address these issues. Internet censorship in India has greatly increased and now the intelligence agencies of India want to ensure monitoring of cell phone usages in India as well. This is troublesome as parliamentary oversight of intelligence agencies of India is missing and this clearly violated the constitutional safeguards.

It is high time that Indian government must enact constitutionally sound cell phone laws in India so that civil liberties and law enforcement requirements can be reconciled.

Saturday, February 25, 2012

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.

Tuesday, December 20, 2011

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.