TNN Jun 8, 2013, 02.04AM IST
(In April 2013, the India…)
LONDON: Indians could soon see a repeat of the US scandal of the National Security Agency snooping into phone conversations and social networking accounts, play out in domestic shores.
A leading global rights organization has serious doubts over the intent of India's Central Monitoring System (CMS) and has asked the government to enact clear laws to ensure that increased surveillance of phones and the internet does not undermine rights to privacy and free expression.
In April 2013, the India began rolling out the CMS which will enable the government to monitor all phone and the internet communications. The CMS will provide centralized access to the country's telecommunications network and facilitate direct monitoring of phone calls, text messages, and the internet use by government agencies, bypassing service providers.
Cynthia Wong from Human Rights Watch called the CMC a chilling threat "given its reckless and irresponsible use of the sedition and the internet laws".
"New surveillance capabilities have been used around the world to target critics, journalists, and human rights activists." Wong added "Surveillance tools are often used by governments and bureaucrats for political reasons instead of security purposes, and often in a covert way that violates human rights. If India doesn't want to look like an authoritarian regime, it needs to be transparent about who will be authorized to collect data, what data will be collected, how it will be used and how the right to privacy will be protected." The ministry of communications and information technology announced in January 2011 that "steps will be taken to establish the CMS, which will facilitate and prevent misuse of lawful interception facility".
However, the government has released very little information about this. India at present does not have in place a privacy law to protect against arbitrary intrusions.
Two laws address interception or access to communication data.
HRW says the Information Technology (Amendment) Act, 2008, allows the government to "intercept, monitor, or decrypt" any information "generated, transmitted, received, or stored in any computer resource" in the interest of "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 or for investigation of any offence."
The colonial Indian Telegraph Act, 1885, also allows wire-tapping in conformity with guidelines that are supposed to act as a check on indiscriminate interception by the law enforcement agencies.
An expert group chaired by retired Justice A P Shah was created by the Planning Commission to set out principles for an Indian privacy law.
In its report in October 2012, it concluded that the two laws were inconsistent on the "permitted grounds for surveillance, the type of interception that is permitted to be undertaken (monitoring, tracking, intercepting), the type and granularity of information that can be intercepted, the degree of assistance that authorized agencies can demand from service providers, and the destruction and retention requirements of intercepted material."
These differences, it concluded, "have created an unclear regulatory regime that is nontransparent, prone to misuse, and that does not provide remedy for aggrieved individuals."
Because the CMS was created without parliamentary approval, the government should convene a full public debate about the intended use of the system before proceeding.
In his report to the UN Human Rights Council in April, the special rapporteur on the promotion and protection of the right to freedom of opinion and expression underscored the importance of the role of governments in fully guaranteeing the right to privacy of all individuals, saying that without such guarantees, the right to freedom of opinion and expression cannot be fully enjoyed.
Section 66A of the Information Technology Act - which deals with information that is "grossly offensive" or "has menacing character," or causes annoyance or inconvenience - has been used repeatedly to arrest critics of the government.
The law allows for up to three years in prison under this section.
In April 2012, a university professor was arrested in West Bengal for circulating an email with pictures that poked fun at the state's chief minister. In September, police in Mumbai arrested a political cartoonist, Aseem Trivedi for his work focusing on political corruption. In October, police in Puducherry arrested a businessman for posting messages on Twitter questioning the wealth amassed by the son of the country's finance minister.
In November, two girls were arrested in Maharashtra for a post on Facebook questioning the shutdown of their city following the death of a powerful political leader.
Following the girls' arrest, the central government issued an advisory to all state governments requiring prior approval from senior police officers for all arrests under section 66A. In May 2013, the Supreme Court directed all states to carry out the government's advisory, making it mandatory for police to seek clearance from high-ranking officials.
