There are various ways of hiding the camera -- inside a briefcase, a pager, a cigarette lighter, a cellular telephone, a fountain pen, a smoke detector or in the nose frame of sunglasses or other spectacles, etc.

Where a briefcase is used, the recording equipment, the transmitting cord and the battery can be concealed in it. In other cases, the remaining components are generally attached to the body of the user. In the sunglass/ spectacles version, the connecting cord looks like the safety cord which some people use with their glasses.
In other cases, an observant person can notice the telltale connecting cord. Most of these gadgets have a mechanism that is either self-activated or has to be activated manually. The briefcase camera, for example, gets activated when the briefcase is kept in a particular position.

The visuals of Bangaru Laxman, recorded by tehelka.com, indicate that the camera was probably at a level higher than the waist of the journalist. The use of a briefcase, which would normally have been kept on the floor, seems unlikely. It was probably concealed in some other object of day-to-day use which he kept on the table without the connecting cords, since that might have made Laxman suspicious or, most probably, in the sunglasses/spectacles worn by the journalist, in which case the cord would not have attracted suspicion.

In Western democracies, there are no curbs on the sale or purchase of hidden recording equipment and using them in one's own house or office. But, in many countries, it is illegal to use them clandestinely against another person in his or her house or office. Watergate is a famous example of a President leaving office in disgrace and his lieutenants being jailed for trying to have recording equipment clandestinely installed inside the office of a political adversary.

The only exceptions to this in the US are the law enforcement agencies and police-licensed private detectives, who are allowed to use them under certain circumstances in carefully controlled conditions. Licensed private detectives can use them for the collection of evidence, but not in a sting operation. Only the FBI can mount a sting operation. No private individual, not even a journalist, can do so.

Reputed companies manufacturing and selling clandestine miniature cameras generally carry the following warning in their advertisements: 'Individuals, any and all entities, must and shall comply with all applicable local, state and federal laws and regulations before performing or engaging in any recording, covert surveillance or any transmission of radio frequencies. Some products require licensing prior to using these items. We will mark these items and will require your understanding prior to purchase. We shall NOT be held responsible for the user's criminal or civil misuse. It is your responsibility to be informed of the law. A lot of these products have covert purposes. You need to be careful and aware of how you can use these items. It is your responsibility to know how and when you use the items you want. Visit or contact your local government entity for laws and regulations on uses. It is your responsibility to be aware before you buy. Refunds will not be given due to lack of knowledge of local, state and federal laws or licensing requirements. Be aware of your local laws prior to using ANY covert devices.'

If tehelka.com had done in the US what it has done in India, its owners and their journalists would, most probably, have been liable for arrest and prosecution and for damage suits from those interviewed for damaging their reputation through covert means. In India, though, there are no laws regulating the use of covert investigative/surveillance equipment by private individuals.

Despite the legal safeguards in the US, there have been growing complaints about the misuse of such covert equipment not only by private individuals, but also by the law enforcement agencies, resulting in a violation or distortion of the rules of natural justice and particularly of the basic constitutional or legal guarantee that no person can be made to incriminate himself by using force or deceitful means.

The Washington-based Privacy International, a non-governmental organisation, has, since 1990, been drawing attention to the dangers of an uncontrolled use of clandestine video and audio equipment and closed circuit television sets. It says: "In a very short time, the systems have challenged some fundamental tenets of justice and created the threat of a surveillance society. Other more traditional approaches to law enforcement and social justice are being undermined without due process. Privacy International believes the government should immediately appoint a watchdog to investigate the industry and recommend appropriate legislation."

Every year, the FBI conducts about 175 sting operations to investigate complaints of bribery, extortion, narcotics smuggling, sale of cigarettes to minors, child sex, etc. In two famous 1992 sting operations involving the use of hidden cameras, it arrested 18 Chicago public servants and a member of Bill Clinton's election campaign team in Indiana on charges of bribery.

Strict ground rules for such sting operations have been laid down over the years through departmental instructions and rulings of the judiciary. Amongst such ground rules are:

• Sting operations could be mounted only against persons against whom some evidence of criminality already exists and a sting operation is considered necessary for getting conclusive evidence.
• Permission for sting operations must be obtained from appropriate courts or the Attorney-General.
• This safeguard has been laid down since those who mount a sting operation themselves commit the offences of impersonation, criminal trespass under false pretences and making a person commit an offence.
• There must be a concurrent record in writing of the various stages of the sting operation.
• While the transcript of the recordings can be edited, the films and the tapes themselves should not be edited. Where there is evidence of editing, there is an automatic presumption that the recording is probably not authentic.

In many judgments, the US Supreme Court has condemned certain FBI sting operations for taking advantage of the naivety, carelessness and negligence of the possibly innocent in order to make them appear possibly guilty.

The Supreme Court has ruled: 'The first duties of the officers of the law are to prevent, not to punish crime. It is not their duty to incite to and create crime for the sole purpose of prosecuting and punishing it. Such a gross abuse of authority given for the purpose of detecting and punishing crime, and not for the making of criminals, deserves the severest condemnation... While there are those who do harbour an actual criminal predisposition, the reality is that the majority do not fit this description. These sting operations are constructed so as to take advantage of the fact that everyone makes mistakes. They refuse to discriminate between the 'unwary innocent' who are legitimate victims of human nature, predisposed to eventually making a mistake and nothing more, and the 'unwary guilty' who are looking for the opportunity to commit the crime, or the 'unwary negligent' who just don't care enough one way or the other.'

There have been complaints from US human rights organisations that a number of FBI sting operations have caused serious harm to innocent citizens, since they were accidental victims of the make-believe criminal organisations set up by the bureau. They have pointed out that an even bigger risk associated with sting operations aimed at public corruption is the destruction of the public's confidence in government institutions. This concern was the central focus of a 1984 report by the House Judiciary Subcommittee on Civil and Constitutional Rights after a four year investigation of sting operations. 'While investigations of public corruption may be intended to restore the public's faith in the integrity of the affected institutions,' the subcommittee's report said, 'ill-conceived and poorly managed undercover operations are likely to have precisely the opposite effect.'

Against this background, certain disturbing questions arise with regard to the tehelka.com tapes:

• Was there a metal detector in any of the places visited by the journalists? If so, how was it they didn't sound the alarm on detecting the batteries and the transmission cord?
• Was the activation mechanism automatic or manual? If manual, it must have been activated before the journalists entered the presence of those interviewed and the equipment must have video-recorded their conversations with others too such as the security guards, the personal assistants, etc. Where are those recordings?
• Was there an editing of the recordings? If so, to what extent and for what purpose? That there has probably been considerable editing is apparent to even a lay observer. Modern cameras automatically record the dates on which the shots were taken. The dates seem to have been edited. Why?
• Is there a concurrent written record of the various stages of the sting operation from which one could see how many times a person was interviewed and what subjects figured during each conversation?
• Has there been a morphing, interposing, substitution, etc, of the images/conversations and were these done manually or were they computer-generated?

The possible dangers to national security from alleged attempts of foreign intelligence agencies to use such covert and computer-generated techniques to destroy public confidence in their political leadership and administration had figured in past testimonies and statements of officers of foreign intelligence communities. Writing in the Foreign Policy (Fall 1997), John Deutch, director of the CIA during Clinton's first term, referred to the dangers of morphed images and messages being introduced into a country's radio and television systems, spreading lies and inciting people to violence.

Keeping these in view, the first step in the investigation should be for the Central Vigilance Commissioner to ask tehelka.com to submit all its films and tapes unedited along with the camera with which they were recorded. He should ask a foreign expert on the examination of purported covert recordings for expert opinion on the following questions:

• Were the recordings done with the equipment produced by the company?
• If so, is there any evidence of editing, interposing, morphing, etc, and of the use of computer-generated techniques?

B Raman additional secretary (retd), cabinet secretariat, government of India, is currently, director, Institute For Topical studies, Madras.

Design: Lynette Menezes

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