The decision of the United Progressive Alliance government to increase surveillance of phones and the Internet has come under flak from human rights groups, reports Vicky Nanjappa.
In April 2013, the government began rolling out the Central Monitoring System, which will enable the government to monitor all phone and Internet communications in the country. The CMS will provide centralised access to the country’s telecommunications network and facilitate direct monitoring of phone calls, text messages, and Internet use by government agencies, bypassing service providers.
Cynthia Wong, senior Internet researcher at the Human Rights Watch, says that the Indian government’s centralised monitoring is chilling, given its reckless and irresponsible use of the sedition and Internet laws. New surveillance capabilities have been used around the world to target critics, journalists, and human rights activists.
The Union ministry of communications and information technology announced in January 2011 that steps will be taken to establish the Central Monitoring System, which will facilitate and prevent misuse of lawful interception facility.
However, the government has released very little information about which agencies will have access to the system, who may authorise surveillance, and what legal standards must be met to intercept various kinds of data or communications.
India does not have a privacy law to protect against arbitrary intrusions on privacy, which might have addressed some of these issues.
Two laws address interception or access to communication data. 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 AP 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 etc.), 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, Human Rights Watch said.
The right to privacy is guaranteed under the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, to which India is a state party. Article 17 of the covenant provides that, “(1) no one shall be subjected to arbitrary or unlawful interference with his privacy, family, home, or correspondence, nor to unlawful attacks on his honour and reputation; (2) everyone has the right to the protection of the law against such interference or attacks.”
The term “correspondence” has been broadly recognised to cover all forms of communication, including via the Internet. The right to private correspondence thus gives rise to a comprehensive obligation on the part of the government to ensure that text messages, emails, and other forms of electronic communication are actually delivered to the desired recipient without arbitrary or unlawful interference or inspection by the government or by third parties.
Indian activists have raised concerns that the CMS will inhibit them from expressing their opinions and sharing information. India has a poor record of protecting free expression on the Internet.
In recent years, authorities have repeatedly used the Information Technology Act to arrest people for posting comments on social media that are critical of the government, put pressure on websites such as Facebook and Google to filter or block content, and impose liability on private intermediaries to filter and remove content from users.
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. The Department of Information Technology promulgated vague implementing rules in 2011 that further required online service providers to restrict a range of information, including content that is “grossly harmful,” “disparaging,” “harm(ful to) minors in any way,” or that “threatens the unity, integrity, defence, security, or sovereignty of India.”
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 October, police in Mumbai arrested a political cartoonist, Aseem Trivedi, for his work focusing on political corruption.
The same month, 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.
In March 2013, a parliamentary standing committee on the 2011 Information Technology rules also noted how vague and ambiguous language such as “grossly harmful,” “defamatory,” and “obscene” could lead to harassment. It recommended defining terms in the rules to ensure that no new categories of crimes or offenses were created.
It also noted that ambiguity in the rules regarding the liability of intermediaries, such as online service providers, encourages them to take down any content that could run afoul of vaguely worded prohibitions to avoid legal penalties. The standing committee expressed concern that this ambiguity could lead to censorship without due process.