Countries have moved from World War – II and cold war era spy games where human resources were the best source of enemy information. In this era of connected world where everyone and everything is moving through spectrum and waves being on internet, protection of strategic sensitive information and national security is of paramount concern for security agencies. Equally of paramount concern is rights to privacy of citizens, who feel violated on account of snooping or other tools deployed by State Agencies in the name of national security.
The issue of use of Pegasus spyware by many countries including India, violating privacy of individuals is again making both national and international headlines.
Pegasus software has been developed by NSO Group of Israel (NSO), which is made available only to authenticated government agencies by NSO and is not available either to individuals or commercial establishments. In a recent revelation in media, Pegasus spyware has been alleged to exploit loopholes in firmware of IOS on apple devices and Android devices. Few months back Apple has released software patch for all apple devices to plug loopholes exploited by Pegasus. Pegasus is like trojan horse and can be installed remotely on the subjects' device. According to information in public domain Pegasus spyware once installed on any device can read text messages and emails, track location and steal passwords from devices by accessing subjects' camera and microphones.
Pegasus spyware came to limelight in 2016 and since then has managed remain in news for all kind of reasons. On account of recent revelations of phone numbers of certain Indians, the matter is on the front page of Indian newspapers and the Supreme Court is seized of the matter in clutch of petitions. However, the Indian Federal Government has refused to file a detailed affidavit on the issue of usage of Pegasus spyware and the Supreme Court has passed an interim order on October 27, 2021, very apt headline of which read – 'If you want to keep a secret, you must also hide it from yourself by George Orwell, 1984 – and constituted a Committee under the oversight of Hon'ble Justice (R) R.V. Ravindran (Committee), with specific terms of reference to enquire, investigation and determine. The Committee is yet to submit its report.
Interception of phones or emails etc. of targets is not new in India or globally. Already many agencies in India are legally intercepting phones, emails, etc. under Section 5 of the Indian Telegraph Act, 1885. Similarly, Section 69B of the Information Technology Act, 2000 and rules thereof also authorise the Federal Government to monitor and collect data or information generated, transmitted, received or stored in any computer resource for the purpose of cyber security.
Interception of messages or calls on phones for public interest or national security or any other valid reasons permitted under the governing laws, is well within the rights of the State agencies. However, when such interception is done for political or non-permissible reasons, which is being done by the State agencies with impunity, it violate right to privacy of people.
Globally, many Government agencies have also used Pegasus against political opponents, activists, media persons, etc. without the authority of law, some of which are monarchy and not subject to scrutiny by Courts. However, in democratic society, violation of privacy of citizens without the authority of law is crime and Courts come heavily on such State agencies as protectors of rights of citizens.
Indian Constitution guarantees certain fundamental rights to every person which includes right to privacy, and our Courts are protectors of fundamental rights of people. Hence, various petitions have been filed and the Supreme Court is seized of the matter.
On the other hand many nations including India are facing challenges particularly of terrorism and drugs, leading to use of all kind of tools available to the State agencies. While normal inception of phone calls and messages and emails are permissible within domains of law. However, at times these legal methods are not sufficient or do not yield desired results and in such cases experienced officers out of zeal use spyware like Pegasus, which is generally used by National spy agencies. For National spy agencies it is common to use spyware like Pegasus on their day-to-day operations for legitimate purposes but when such use is for purpose other than National security, the same is not permissible. Unfortunately, even for democracies like India, budgets & expenses and activities of National spy agencies like RAW are not available for scrutiny by the Parliament and no one knows on what activity for buying which service, tax payers money has been spent. The whole operations of National spy agencies are opaque and out of bounds for watch dogs, mostly for legitimate reasons. However, when the line between legitimate national security and political reasons gets blurred, it beginning of violation of Constitutional mandate and oath by political masters.
Allegations of snooping or tapping or illegal access to messages and calls of political opponents have been made by every party in opposition against the ruling party in every country and there is nothing new about it. Indian political scenario is no different. While, the safeguards provided under the governing laws are adequate to prevent their misuse, oversight on legitimate use thereof is lacking. When people are conscious of their rights to privacy and judiciary is also proactively protecting fundament rights of citizen, some mechanism of oversight has be developed over spy agencies without compromising national security. A humble suggestion of forming a committee comprising of the Chief Justice of India, the Prime Minister and the Home Minister to have oversight over affairs of the State agencies having powers of interception of computer resources and large budgets for the matter. However, since the Hon'ble Supreme Court is already seized of the issue it is appropriate to wait for presentation and consideration of report of the Committee and thereafter decision by the Supreme Court. Till then media trial will continue to hold the field.
Author is partner with Ashok Dhingra Associates and views are strictly personal
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
