Revelations about how Pegasus spyware has been used to snoop on ministers, journalists, opposition leaders, businesses and others have prompted calls for surveillance reforms. The spyware tool, which had also been flagged in 2017 and 2019 by security firms, was used to spy on as many as 40 Indian journalists.
In a blog post, privacy advocate Internet Freedom Foundation (IFF) called for urgent surveillance reforms in India. “Use of such surveillance technology on journalists leads to a chilling effect as it precludes them from working and reporting on sensitive matters, some of which may also be against the government, without jeopardising themselves and the personal safety of their sources,” the organization said in a statement.
In a series of 10 tweets, the IFF took stock of new IT minister Ashwini Vaishnaw’s statements in Parliament about the incident. “The review committee consists of officers of the executive branch of the government. The oversight committee, to enable a working separation of powers, must consist of other branches of government, i.e. the legislative and judiciary,” one tweet said.
“There is an established oversight mechanism in the form of a review committee headed by the Union cabinet secretary. In case of state governments, such cases are reviewed by a committee headed by the chief secretary concerned. The law also provides an adjudication process for those adversely affected by any incident,” Vaishnaw said during his address.
IFF said neither the IT Act, nor the 2009 Interception Rules provide a grievance redressal mechanism for surveilled persons. “Due to the strict confidentiality provisions, surveilled persons will find it impossible to ascertain and prove whether they were being surveilled,” it added.
According to Akash Karmakar, a partner at the Law Offices of Panag & Babu, the law allows for surveillance for reasons including “the interest of public safety” where it is “necessary or expedient so to do in the interests of the sovereignty and integrity of India” and for “public order or for preventing incitement to the commission of an offence”.
“These are legislative vestiges of a police state which allow for the abuse of such wide and discretionary powers. It begs judicial intervention to set checks in the form of guidelines of what would constitute abuse of such powers, specifically for private or political gain,” he said, adding that to check abuse, these laws should be amended and narrowed by providing an indicative list of what constitutes abuse of surveillance or interception powers, with stringent penal consequences.
The lack of surveillance rules adequate to global standards is also hindering India’s ability to enter data sharing agreements, which allow government agencies to access data stored overseas when required, with other countries. Such agreements are seen by many as an alternative to data localization rules expected in the upcoming Personal Data Protection (PDP) bill.
“First, updating our surveillance laws would allow India to normatively call out extraterritorial surveillance practices that violate human rights by the likes of China, and even the US,” Arindrajit Basu, Research Lead at the Centre for Civil Society (CIS), said. “Second, it would allow India to enter into executive data sharing agreements with countries like the US which require judicial review of surveillance-thereby solving the inequitable present data access scenarios where law enforcement authorities in India have to deal with a long and arduous process to access data stored abroad,” he added.
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