Surveillance reform is the need of the hour

Context: The recent spyware attack (Pegasus) has fired the debate on controlling tech surveillance and associated risks.

Threat of Pegasus Spyware: As highlighted by a report by The Wire, titled the ‘Pegasus Project’

• Over “300 verified Indian mobile telephone numbers, including those used by ministers, opposition leaders, journalists, the legal community, businessmen, government officials, scientists, rights activists and others”, were targeted using spyware made by an Israeli firm, NSO Group.
• In 2019, the hack targeted lawyers related to the Bhima Koregaon case and Dalit activists.

Risks in the unchecked expansion of tech-surveillance

• Use of hacking software against dissidents and adversaries: Allegations in 2019, as the hack targeted lawyers related to the Bhima Koregaon case and Dalit activists.
  • Chilling effect on free speech: It prevents people from reading and exchanging unorthodox, controversial or provocative ideas.
  • Risk of expanding into state-sponsored mass surveillance: As the technological tools become more sophisticated, cheap and efficient over time.
• Contravention of citizens fundamental rights: 
  • Existence of a surveillance system impacts right to privacy and exercise of freedom of speech and personal liberty under Articles 19 and 21 of the Constitution.
  • Violates ideals of due process and goes against the requirement of procedural safeguards as mandated in K.S. Puttaswamy v. Union of India.
  • No scope for judicial remedy: Surveillance, when carried out entirely by the executive, curtails Articles 32 and 226 of Constitution (empowering Supreme Court and High Courts to issue writs) as it happens in secret.
• Against principle of separation of power: Surveillance extending to Constitutional functionaries like Supreme Court judges gives disproportionate power to executive and threatens separation of powers.
• Threat to press freedom: Amnesty International’s Security Lab was able to confirm that Pegasus was used to compromise phones of journalists 
  • World Press Freedom Index produced by Reporters Without Borders has already ranked India 142 out of 180 countries in 2021.

Gaps in surveillance related laws

• There are no provisions that allow government to hack the phones of any individual since hacking of computer resources, including mobile phones and apps, is a criminal offence under the IT Act
• A legalised misconduct: Even within provisions of existing laws, government has total opacity in respect of its interception and monitoring activities.
  • Section 69 of the IT Act and the Interception Rules of 2009 are even more opaque than the Telegraph Act, and offer even weaker protections to surveilled.
  • A Right to Information (RTI) request in 2013 reveals that the Central government had revealed that 7,500 to 9,000 orders for the interception of telephones are issued by it every month. 
  • RTI requests are now denied citing threats to national security and to the physical safety of persons.
• Lack of comprehensive data protection laws: The proposed legislation related to the personal data protection of citizens fails to consider surveillance and provides wide exemptions to the government.

Way forward

• Revamp the role of the judiciary:
  • Judicial oversight over surveillance systems: To decide whether specific instances of surveillance are proportionate, whether less onerous alternatives are available, and to balance the necessity of government’s objectives with the rights of the impacted individuals.
  • Judicial investigation into the Pegasus hacking: Necessary to ensure justice in state response and investigation regarding the allegations.
• Surveillance reform is the need of the hour: Considering the widespread risks, the only solution is immediate and far-reaching surveillance reform.