What is just a procedural order of ‘monitoring’ as per the IT Act, is again turned into a fake narrative of ‘snooping’ for political purpose
On December 20, 2018, the Ministry of Home Affairs (MHA) of the Union Government issued an order naming ten agencies that could intercept, monitor and decrypt any information that is generated, transmitted, received or stored in any computer resource. This is as per the section 4 of the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009 that allowed the competent authority to name such agencies for the purpose. This step was just a procedural step with no fresh powers being conferred on the government or the agencies to expand the scope of the actions prescribed on October 27, 2009 under the above mentioned IT Rules. This action also in no way implied that some imminent surveillance exercise would be undertaken by the government.
However the political opposition started its protests and Rahul Gandhi with his poor homework went on Twitter to the extent of tweeting ‘insecure dictator’ about PM Modi little realising that the rule under which these agencies have been named, were part of the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009 (IT Rules) that were brought in place by the UPA Government led by his own party under Manmohan Singh on October 27 , 2009. A few other frenzied corners tried to break this news of India turning to a surveillance state under Modi government. Most of these irresponsible vituperative comments come due to ignorance of the law and a tendency to criticize the NDA Government for everything. Now even a PIL has been filed in the Supreme court by advocate ML Sharma asking for the quashing of the abive referenced notification.
“An ill-informed campaign that government has allowed snooping on computers and is violating the Right of Privacy has been carried out. The Congress Party has got into the habit of speaking out first and understanding the issue only subsequently” — Arun Jaitley, Minister of Finance and Corporate Affairs
It is thus very pertinent to realise the actual reality around laws and online surveillance and also understand that checks and balances are very much there in the available laws and rules in place for any form of interception, monitoring and decryption of any online content. Similarly the laws and procedures for blocking of content are also clearly laid out and no individual or agency can whimsically monitor or block any online content without following the comprehensively procedures laid out.
Ever since the Information Technology Act 2000 (IT Act) was amended with new and revised provisions and became a law in February 2009, the provisions of Section 69 with relation to the interception, monitoring and decryption any information generated, transmitted, received or stored in any computer resource were criticised in a few circles. However the basic premise for such action was exactly the same as defined in Article 19 (2) of the constitution of India where the exclusion of the fundamental right of the freedom of expression applied. These were in the interest of the sovereignty or integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above. For almost a decade since the laws with the accompanying procedures have been in place, no incident or avenue has happened where the misuse in terms of blatant surveillance has happened to raise concerns that the laws were bad in place.
RTI reveals that between 7,500 to 9,000 orders for interception of telephones and 300 to 500 orders for interception of emails are issued by the UPA Government per month
The procedures laid out for such interception, monitoring and decryption is also very thorough and have sufficient checks and balances much more than any other country in the world who also have provisions for internet content monitoring. These set of IT Rules clearly state that each such case is to be approved by the competent authority which is the union home secretary for centre and the respective home secretaries in the states. The procedures define clearly as and when any form of action can happen and call for written explanation as to why alternate mechanism was not explored. Even under emergency situation if such action has to be undertaken and necessary approval from the relevant competent authority not available, the procedures are well defined on who can authorize and the officer who approved such interception, monitoring or decryption has to explain in writing to the competent authority within 3 days the reason for such an act under emergency and obtain approval within 7 days. Likewise the states needing to do such action beyond its jurisdiction have to approach the union home secretary who can only issue directions for such activity. Also all such cases of interception, monitoring or decryption are to be placed before the review committee headed by cabinet secretary, which shall meet at least once in 2 months to review such cases and in the case of state governments, such cases are reviewed by a committee headed by the respective chief secretaries.
In the current scenario the union home secretary’s signed order is just naming of the ten agencies that would be eligible to carry out the interception, monitoring or decryption. These 10 agencies are the (i) Intelligence Bureau; (ii) Narcotics Control Bureau; (iii) Enforcement Directorate; (iv) Central Board of Direct Taxes; (v) Directorate of Revenue Intelligence; (vi) Central Bureau of Investigation; (vii) National Investigation Agency; (viii) Cabinet Secretariat (RAW); (ix) Directorate of Signal Intelligence (For service areas of Jammu & Kashmir, North-East and Assam only) and (x) Commissioner of Police, Delhi. No new powers were conferred to any of the security or law enforcement agencies by this order. On the other hand with the extra need for preparations for online onslaughts by terrorist and other anti-national organisations that see cyberspace and online medium as the best way to spread propaganda and recruits, many of the steps require a readiness on the online surveillance aspect and all these agencies over the years have actually invested in capacity building to be able to deliver within the confines of the prevailing laws.
While the spontaneous hysterical response to the MHA order has been effectively dealt with in Parliament by the Finance Minister Arun Jaitley, what is crucial is for citizens to realise that the politics by some of the political parties around national security issues have to be rejected.
(The writer is a defence and cybersecurity analyst, is former country head of General Dynamics)