[Editorial Analysis] Surveillance reform is the need of the hour

Mains Paper 3: Security
Prelims level: Pegasus Project’ report
Mains level: Reforms in surveillance regime of India

Context:

• India’s The Wire, titled the ‘Pegasus Project’ report says that 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 the Israeli firm, NSO Group.

Threat to freedom of press:

• Subsequent reporting showed that the Pegasus spyware had been used to target 37 phones, of which 10 belonged to Indians.

• This time, a large percentage of Indians purportedly impacted by Pegasus are journalists.

• This is hardly surprising, given that India was ranked 142 out of 180 nations in Reporters Without Borders’ World Press Freedom Index in 2021.

• What is surprising, though, is that the press requires (and is allowed) greater speech and privacy safeguards in democracies.

• As a result, the absence of privacy puts a cloud of suspicion surrounding these journalists, essentially burying their credibility.

Legal Basis:

• The Indian Telegraph Act of 1885 and the Information Technology (IT) Act of 2000 were used by the government to justify its actions.

• These provisions are dangerous even without the employment of Pegasus or any other hacking programme or surveillance, as they give the government complete opacity concerning its interception and monitoring activities.

• While the Telegraph Act regulates telephone calls, the IT Act regulates all communications that take place through a computer network.

• The Interception Rules of 2009 and Section 69 of the IT Act are much more opaque than the Telegraph Act, and the surveilled have even fewer protections.

• However, as hacking of computer resources, including mobile phones and apps, is a criminal offence under the IT Act, no provision authorises the government to hack into the phones of any individual.

• Nonetheless, surveillance, whether legal or not, is a flagrant infringement of persons’ fundamental rights.

• Because the method is covert, there is no way for someone who has been subjected to surveillance to go to court before, during, or after acts of surveillance.

• Electronic surveillance, in the absence of parliamentary or judicial scrutiny, gives the administration the authority to affect both the subject of surveillance and all classes of citizens, chilling free speech.

• In 2013, the Central government reported that it issues between 7,500 and 9,000 orders for telephone interception every month in response to a Right to Information (RTI) request.
• RTI requests for such information are increasingly being turned down, citing national security and personal safety concerns.

• According to the government’s ostensible response, any surveillance is carried out in accordance with “due process of law.”

• The existing restrictions, on the other hand, are insufficient to prevent the growth of authoritarianism since they allow the executive to wield disproportionate power.

• Because such surveillance is conducted in secret, it violates Articles 32 and 226 of the Constitution (which empower the Supreme Court and the High Courts, respectively, to issue certain writs).

Role of Judiciary:

• Only the judge has the authority to determine whether specific instances of surveillance are proportionate, if less onerous alternatives exist, and how to balance the government’s interests with the rights of those affected.

• Because the disclosed database of targeted numbers included the phone number of a sitting Supreme Court justice, judicial
monitoring of surveillance systems in general, and judicial investigation into the Pegasus breach in particular, is critical.

• In India, surveillance reform is urgently required. Not only are existing safeguards inadequate, but the proposed legislation relating to the protection of Indian individuals’ personal data ignores surveillance while granting broad exemptions to government officials.

• When spyware is expensive and interception is ineffective, the people being watched will be prioritised based on their perceived threat level to the current administration.

• Shortlisting people will become obsolete as spyware grows more affordable and eavesdropping becomes more effective.

• Everyone could be subjected to state-sanctioned mass surveillance.

• The only way to solve this problem is to implement immediate and comprehensive surveillance reform.

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Prelims Questions:

Q.1) With reference to the Vman Aviation Services, consider the following statements:

1. It is based out of International Financial Services Centre (IFSC) at Gujarat’s Gift City and became the first company from the business district to sign an aircraft purchase agreement after placing an order for an Airbus H125 helicopter.

2. A dry lease is a leasing arrangement where an aircraft lessor provides an aircraft without crew, ground staff, etc to an airline or corporation.

Which of the statements given above is/are correct?
(a) 1 only
(b) 2 only
(c) Both 1 and 2
(d) Neither 1 nor 2

Answer: C

Mains Questions:

Q.1) Discuss the need for reforms in surveillance regime of India in context of ‘Pegasus Project’.

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