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Surveillance reform: The need of Hour

  • Category
    Science & Technology
  • Published
    26th Jul, 2021

Recently a report named ‘Pegasus Project’ was published that says that over “300 verified Indian mobile telephone numbers were targeted using spyware made by the Israeli firm, NSO Group.

Context

Recently a report named ‘Pegasus Project’ was published that says that over “300 verified Indian mobile telephone numbers were targeted using spyware made by the Israeli firm, NSO Group.

Background

Surveillance in India

  • In India the government can surveillance through existing laws that offer impunity for surveillance. However, there are several issues associated with the surveillance regime.
  • The Indian surveillance government relies on existing provisions under the Indian Telegraph Act of 1885 and the Information Technology (IT) Act of 2000.
  • These provisions are problematic and give the government complete anonymity regarding its capture and monitoring functions.
  • While the provisions of the Telegraph Act relate to telephone conversations, IT Act deals with all communications made using a computer application.
  • Section 69 of the IT Act and the Restrictions Act of 2009 does not work better than the Telegraph Act, and it provides even the weakest protection against those tested.
  • There is no provision, however, that allows the government to hack into anyone's phones as hacking of computer equipment, including cell phones and applications, is a criminal offense under the IT Act.
  • However, self-monitoring, whether under the law or outside of it, is a gross violation of the fundamental rights of citizens.

What is Pegasus?

  • Pegasus is a spyware that works by sending an exploit link.
  • If the target user clicks on the link of spyware, the malware or the code that allows the surveillance is installed on the user’s phone.
  • Once the Pegasus is installed, the attacker has complete access to the target’s phone.
  • The first case on Pegasus’s spyware operations emerged in 2016, when Ahmed Mansoor, a human rights activist in the UAE, was targeted with an SMS link on his iPhone 6.
  • Apple responded by making out an update to “patch” or fix the issue.
  • Pegasus delivers “a chain of zero-day exploits to penetrate the security features on the phone and installs Pegasus without the user’s knowledge or permission.

About the Pegasus Malware Attack

  • The surveillance was carried out on users in 20 countries, “between in and around April 2019 and May 2019”.
  • The surveillance was carried out by using a spyware tool called Pegasus that was developed by an Israeli firm, the NSO Group.
  • Only a missed call on the app was all that was needed to install the software on the device.
  • No clicking on a misleading link was required.
“Zero-day exploit”
  • It is a completely unknown vulnerability. Even the software manufacturer is not awareof it, and there is, thus, no patch or fix available for it.

Impact

  • Threat to Freedom of the Press: Monitoring affects media freedom. In 2019, similar allegations were made about Pegasus' use of journalists and human rights activists.
  • The World Press Freedom Index produced by Reporters Without Borders ranked India in 142 out of 180 countries by 2021.
  • Privacy and free speech are what enable good reporting. They protect journalists from the threat of private and public sanctions through official reporting.
  • Contrary to the Right to Privacy: The very existence of a security system affects the right to privacy and the exercise of freedom of speech and personal freedom under Articles 19 and 21 of the Constitution, respectively.
  • Fear of citizens knowing that their email is being read by the government could affect their ability to express, accept and discuss unfamiliar ideas.
  • In the absence of secrecy, the safety of journalists, especially those whose work criticizes the government, and the personal safety of their sources are at stake.
  • State of Authorization: Employment promotes the spread of dictatorship in the public service because it allows managers to exercise an unequal amount of power in the citizenry and have an impact on their lives.
  • Against Procedure: Employment, when fully implemented by an authority, reduces Articles 32 and 226 of the Constitution as is the case in private.
  • Therefore, the affected person cannot show a violation of their rights. This violates not only the purposes of proper procedure and separation of powers but also violates the requirement of process protection as mandated in Puttaswamy v. Union of India (2017).

Analysis

Issues with Surveillance system

  • Monitoring itself, whether under the law or outside of it, is a gross violation of the fundamental rights of citizens.
  • Violations of freedom of speech: The existence of a system of surveillance affects the right to privacy and the exercise of freedom of speech and personal freedom under Articles 19 and 21 of the Constitution, respectively.
  • It prevents people from learning and exchanging strange, controversial or provocative ideas.
  • There is no element of legal scrutiny: There is also no space for the intended person to go to court of law before or during or after or acts of observation as the system itself is confidential.
  • No oversight: In the absence of parliamentary or legislative oversight, electronic surveillance gives the council the power to influence both subject matter and all categories of people, resulting in a negative impact on free speech.
  • Opposition to the separation of powers: Constitutional officials such as the sitting judge of the Supreme Court have been reported to be under the control of Pegasus.
  • The acquisition of immeasurable power by a single branch of government threatens the separation of state power.
  • Existing provisions are not enough to prevent the spread of dictatorship because they allow the authorities to use an unequal amount of power.

What measures are required?

  • Administrative Justice: In order to satisfy the principle of "proper legal process", to maintain the separation of powers effectively and to meet the requirements of procedural protection and environmental justice, it is necessary to consider judgments.
  • Only the judiciary can determine whether certain conditions of oversight are equal, whether there are other complex mechanisms in place, and balancing the need for government objectives with the rights of the people affected.
  • The need to oversee the processes of general surveillance systems, as well as the investigation into Pegasus burglary, is also important because leaked details of the target numbers contained the telephone number of a sitting High Court judge sitting, which also casts doubt on Indian independence.
  • Monitoring conversion is a need for an hour in India as a complete overhaul of the monitoring framework is outdated.
  • Not only is the existing security weakened but the proposed law relating to the protection of personal data of Indian citizens fails to address scrutiny while providing extensive relief to government officials.
  • There needs to be greater clarity in the system as in the current system, organs of state are not accountable to anyone other than government itself.
  • The current argument, therefore, is not about 'whether to be watched at all', but about 'how, when, and what kind of surveillance'.
    • If the purpose g. Protecting national security can be achieved through minor violations of fundamental rights, the government is constitutionally obliged to implement a mechanism that, in fact, involves minor violations.
  • Changes in the Indian surveillance regime should include code of conduct that looks at the ethical aspects of employment.

Conclusion

This is also the right time across the world, there is an increasingly urgent debate about how to protect basic rights against encroachment by an aggressive and intrusive state, which wields the rhetoric of national security like a sword. The only way to solve this problem is to implement immediate and comprehensive surveillance reform.

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