Newslaundry:
Natiional: Wednesday, 30 September 2015.
Just three
over-worked officials occasionally meet in the corridors of power in Delhi to
ensure that the Indian Republic does not turn into a police state. These
officials – the Cabinet Secretary, the Union Law Secretary and the Union
Telecom Secretary – are tasked with the onerous mission to ensure that the
power to intercept private communications is not misused. Currently, there are
10 law enforcement agencies that are authorised to intercept private
communication in India.
The burden
that these officials carry would have increased exponentially if the Draft
National Encryption Policy, issued by the Department of Telecommunications
(DoT), had come through. Designed by junior officials of the DoT, the policy is
meant to protect the privacy of communications between common citizens.
Instead, it emerged as a deliberate road map to strengthen the government’s
right to snoop proactively on private communications under the garb of
“national security”.
Fortunately,
the order came and vanished in less than 48 hours following a widespread online
protest, forcing the government to beat a hasty retreat.
A government
that’s all ears
The Centre
may have withdrawn the proposed rules for now. But if senior government
officials are to be believed, this is a tactical retreat.
The rules
will return under the guise of opaque frameworks that will be slipped in
licensing conditions that allow companies to set up communication networks.
“Rest assured, the government will not give up its right to intercept all forms
of communication. If this is not included in the proposed encryption policy,
then it will be included in a new set of rules and regulations that govern
over-the-top [OTT] applications,” a senior government official overlooking
cyber security issues in the Prime Minister’s Office (PMO) told me on the
condition of strict anonymity.
A few months
ago, when a furious debate erupted on Net Neutrality, major telecom companies
fought back by raising the bogey of security threats posed by OTT services like
WhatsApp and Facebook Messenger. Telecom companies claimed that OTTs were
eating into their revenues and giving consumers a means to use Internet
services for free, at their cost. What they conveniently avoided mentioning was
the fact that, according to telecom companies’ declared revenue earnings, their
earnings had actually gone up owing to greater use of data services.
With their
backs to the wall, telecom companies, then, raised the issue of “regulating
OTTs” so that “national security” was not compromised. According to them, since
OTTs were based abroad and used high levels of encryption, this would prevent
Indian security agencies from listening to conversations taking place between
terrorists planning major strikes against India. While most experts rejected
the argument as alarmist, officials in the DoT took the bait.
“Telecom
companies had a point,” a senior DoT official familiar with security-related
issues told me last week. “If OTTs can’t be intercepted, how will our security
agencies listen into terrorists using them,” he said.
While
surveillance is a necessity for counter-terrorism, there is no data to
establish how effective it really is. A fact that is cleverly kept vague so that
the government of the day can retain its right to tap into the private
communications of its citizens at will.
A year ago,
in response to a Right to Information (RTI) application, which I had filed
earlier, the Union Ministry of Home Affairs admitted to an astounding number of
phone calls being tapped every year. It admitted that, on average, the Union
Home Secretary would sign on 7,000 to 9,000 orders every month allowing some
agency or the other to tap phone calls.
This meant
that the Union Home Secretary had to sign nearly 300 such orders every day,
amid the hundred other official duties he has to discharge. Clearly, the
process is a mechanical ritual with little or no scope for applying any
judicious thought.
Worryingly,
the only safeguard against the Union Home Secretary’s authorisation orders is a
three-person committee that was set up in 1987. This committee, headed by the
Union Cabinet Secretary along with the Union Telecom and Law Secretaries, is
supposed to review the orders signed by the Union Home Secretary authorising
phone and email interceptions.
But faced
with such massive numbers, this committee routinely clears all such orders, and
refuses to reveal any data about the anomalies they may have spotted in their
review meetings. I filed several RTI applications seeking this data, but I was
repeatedly told that revealing the data on any possible misuse would be
“prejudicial to the national interest”. I fail to see how revealing meta-data
on instances of misuse of interception powers could be “prejudicial to the
national interests” of India.
Under the
existing laws, Indian citizens are already vulnerable to the state’s intrusion.
Here’s a sample of the powers and mechanisms that already exist. The United
Progressive Alliance government introduced the Central Monitoring System (CMS)
that makes surveillance even more opaque than what it was earlier. They also
created NATGRID, a body that would connect 22 databases of information that can
be used by security agencies to track citizens. The Aadhar programme, a passive
surveillance programme, which was never cleared by Parliament, ended up
collecting biometric data of citizens.
Conversely,
India does not have a privacy law that could offer some protection to Indian
citizens against the passive and active forms of surveillance to which they are
currently subjected. A few years ago a Privacy Bill was circulated by the
Department of Personnel & Training (DoPT) but it never surfaced again.
In May last
year, it was reported that intelligence agencies, which have the powers to
legally intercept communications, had sought a blanket exemption under any
future privacy law.
More
recently, on Sunday, Prime Minister Narendra Modi gave public assurances in
Silicon Valley that his government would give the “highest importance to data
privacy and cyber security”. Judging from his government’s actions, he seems to
be addressing “data privacy” and not privacy per se. This means there are no
assurances on the privacy of citizens against surveillance, but data security
and privacy of corporations investing in India would be guaranteed.
The
proverbial Big Brother flexing its muscle
Under this
existing opaque and intrusive regime comes the now withdrawn the Draft National
Encryption Policy that would have added to the vast intrusive powers that the
government already holds. It proposed that “…users in India are allowed to use
only the products registered in India”. Which meant that OTTs like WhatsApp and
Facebook Messenger would have to be registered in India if they are to be used
by Indians.
Ironically,
while the NDA government came to power on the promise of “maximum governance
and minimum government”, this policy would have ensured maximum government in
even private and personal WhatsApp messages between citizens.
It also
threatened that the “…government reserves the right to take appropriate action
as per Law of the country for any violation of this Policy”.
Understandably,
common citizens are outraged. Law researcher and a veteran privacy activist,
Usha Ramanathan, was horrified at what the government had almost enacted. “What
is this? An attempt to be a know-all state? It would be a mistake to not see
this desire to control the thoughts and conversations of people as a privacy
issue. And, maybe those who think privacy is irrelevant as a value today will
also baulk at a state that is saying ‘I want to know everything about you and
if you don’t let me know all, it must mean you have something diabolic to
hide’.”
A few months
ago the NDA government submitted an affidavit in the Supreme Court rejecting
privacy as a fundamental right for citizens in India. Clearly, this was more
than coincidence.
To be fair,
security agencies do have a difficult task at hand. Two years ago, when the
Intelligence Bureau (IB) launched an operation in neighbouring Nepal to nail
Yasin Bhatkal, one of India’s most wanted terrorists, it was left groping in
the dark. Bhatkal was a clever fugitive, and as his subsequent interrogation
revealed, he was adept at using different forms of encrypted chat platforms to
communicate key messages with his compatriots.
For the IB,
the only means to get this information was by using the Mutually Legal
Assistance Treaty (MLAT) to get the information from servers in the United
States of America. “Everyone accepts that the MLAT process is irreparably
broken. The information we seek is rarely shared and even if the Americans do
share something, it is too late before it arrives,” a senior intelligence
official told me last week.
While this
argument has merit, it fails to address the dangers that unfettered
surveillance powers can pose to a democratic polity. Information is power and a
rogue government could easily use legitimate laws, such as those proposed by
the Draft National Encryption Policy to snoop on citizens. Every totalitarian
state has always used the bogey of national security and national interest to
accumulate such intrusive surveillance powers. The results have always been
disastrous.
In India, had
this policy gone through, it would have taken a step closer to becoming a
police state where citizens spy on citizens.
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