In need of Privacy Laws in case of State Surveillance?

By Amrita Dasgupta, South Calcutta Law College.

The historic landmarks, the 2008 Mumbai terror attack and 9/11 attack, induced the governments of both the countries, India and America, to implement the state surveillance programmes. They brought with them the perks of interception of emails, text and multimedia messages, video calls, phone calls, fax messages, website visits, vehicle registration details, CDMA, GSM and 3G networks and passport data and so on to cut down the rate of aggrandizement of terrorism activities or crimes happening in India.

The Indian Ministry of Home Affairs first proposed the creation of NATGRID (National Intelligence Grid) to track down the terrorist activities. Later, the Cabinet Committee of Economic Affairs introduced CCTNS (Crime and Criminal Tracking Network and Systems) for the same work. The government also introduced various interception systems as data surveillance was not the only way the terror could be curtailed. So it secretly started operating Lawful Intercept and Monitoring Systems (LIM). In addition to these, the Orwellian Central Monitoring System (CMS) since couple of years helps the government to carry on with its net work. The agencies having the access to the CMS are: the Research and Analysis Wing (RAW), Central Bureau of Intelligence (CBI), the National Investigation Agency, the Central Board of Direct Taxes, the Directorate of Revenue Intelligence, the Intelligence Bureau, the Narcotics Control Bureau and the Enforcement Directorate.¹

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It is revealed that the CMS is being set up by C-DoT — a government enterprise located on the outskirts of New Delhi — will have the capability to monitor and deliver Intercept Relating Information (IRI) across 900 million mobile (GSM and CDMA) and fixed (PSTN) lines as well as 160 million Internet users, on a ‘real time’ basis through secure Ethernet leased lines. The CMS will have unfettered access to the existing Lawful Interception Systems (LIS), currently installed in the network of every fixed and mobile operator, ISP, and International Long Distance service provider. Mobile and long distance operators, who are required to ensure interception only after they were in receipt of the “authorisation,” will no longer be in the picture. With CMS, all authorisations remain secret within the government departments.²

The capability-enhancing technology and database like CMS has been critically compared to the US National Security Agency’s Prism programme, the leak of which sparked a conversation throughout the world.³ There are no laws that safeguard the information of every person. The privacy is definitely being infringed.

The question is whether a person has anything to hide if that is not incriminating? Privacy advocates viz. Casper Bowden has rightfully stated that this rhetoric is fundamentally flawed and that we should all indeed “have something to hide”. But is privacy just about “having something to hide”? Jacob Appelbaum has stated that this rhetoric is merely a psychological copying mechanism when dealing with security.⁴ The world’s largest democracy is implementing various data surveillance programmes without any legal backing. In India, privacy laws are lacking and it needs to implement privacy laws along with the terror tracking laws.

But unlike countries in the European Union, Australia, etc. who have a formal privacy law, India does not have a particular privacy law which protects the rights of the individuals. It has laws for protection of personal liberty or right to some extent, i.e. Right to life, liberty and freedom under Article 21 of Indian Constitution and few sections of I.T. Act, 2000 which was amended in 2008, but that is also not an adequate privacy law which should have existed. Government do have a right to intervene for national security but there should be some limit to it.

Though Minister Arun Jaitley pointed the flaws of the appalling Section 66A of I. T. Act, it was disregarded in the Parliament. Thus, the section being struck down earlier this year by the Apex Court, it contributed to and restored the much needed privacy laws for the individuals.

But there is no escaping the state surveillance. This is going to be the world where one of the main ways to collect information is to electronically hark to every conversation till the suspected terrorist can be separated from the innocent. Terrorism follows no rules and is not likely to disappear all of a sudden. Counter-terrorism can be harsh. But it is required to follow some rules. We need state-of-the-art intelligence. But we also need the freedoms.⁵ Thus, accordingly, government should act for the benefit of both the government body as well as the individuals.

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