Vivian Fernandes is a senior journalist with nearly 30 years of practice, 19 of them in television, all of which he spent at TV18. Vivian’s last assignment was as executive editor of a book on India and China written by the founder of the Network 18 group, Mr Raghav Bahl. He has been an observer of Indian business and politics, and had reported on economic policy making as reporter, chief of Delhi bureau of correspondents and economic policy editor. Vivian has traveled abroad with Prime Ministers Narasimha Rao, Atal Behari Vajpayee and Manmohan Singh. He was also reported on the World Trade Organization’s trade talks from Cancun, Hong Kong and Geneva. He continues his association with the Network18 group, but not as an employee.
There are nine Indian agencies that have the authority to monitor our calls, emails and chats but none of them is under independent oversight. There is no accounting for the information they are collecting. The possibility of misuse is immense. So inured is the Indian government to the pervasive intrusion of its citizens' privacy that it reacted inertly to American defense contractor Edward Snowden's disclosure that the US National Security Agency had collected 12.61 billion pieces of metadata (Ref Point 1) about Indians through information technology tools like Prism and Boundless Informant. Public outrage has to be worked up so that the Indian government does not compromise the liberty of its citizens in the name of preventing terrorism. This is juice squeezed out a debate on 'Surveillance: Privacy Vs Security,' at India International Centre, New Delhi, on Saturday, August 17, organized by the (Ref Point 2) Foundation for Media Professionals.
In 1996, the Supreme Court had laid down the procedure to be followed for tapping phones (Ref Point 3). Though central and state government can tap phones for various reasons under the Indian Telegraph Act of 1885, the Court said that there has to be a precondition of public emergency or threat to public safety, both of which are obvious events. But Saikat Datta, resident editor of DNA, says governments intercept calls and emails routinely. The review committee that meets every three months cannot possibly vet every single case because of the sheer number of devices under surveillance.
In May, (Ref Point 4) Gujarat DGP Amitabh Pathak told the Times of India that when he asked mobile service providers to disclose details of call data records supplied to the state police in the previous six months, he was told that about one lakh phones were under surveillance. Some of these were of senior police and administrative officials, suggestive of political interest. Datta said there were (unverifiable) reports of about 20,000 phones being monitored nationally..
The Niira Radia tapes which contain recordings of 5,800 phone calls show the extent of overreach. Radia, a corporate communications consultant to the Tata Group of companies, among others, was initially put under watch in September 2008 for alleged tax evasion. No case has been filed, which shows that the monitoring committee comprising the cabinet, law and telecommunications secretaries, was sleeping on its job. In December 2010, these privileged conversations were made public as grist for corporate rivalry, obviously by officials who had been bought over. After combing the tapes and finding that government transactions involving allocation of spectrum or purchase of aircraft were mediated by middlemen, the Supreme Court has directed the Central Bureau of Investigation to file cases.
Accountability and audit was necessary, Datta said, so that there is just as much surveillance as is necessary to ensure people's security. Audit will improve efficiency and the effectiveness of surveillance methods. Till that happens, public opinion must be created for a check on the governments' powers and people must take precautions like encryption of their emails.
Pranesh Prakash, who works at the interstice of human rights and technology said the misuse of surveillance provisions had a history going back at least to Prime Minister Indira Gandhi and the 1976 Emergency. Karnataka Chief Minister Ramakrishna Hegde had to resign following reports of telephone taps of political rivals. But little came of disclosures in 2010 that Bihar Chief Minister Nitish Kumar and Congress leader Digivijay Singh were under surveillance. When there was a regime change in Himachal Pradesh that year, Prakash said the new government confiscated the hard drives in the CID office reportedly containing recordings of political leaders and the director general of police. But there was no demand for external oversight except from Vice President Hamid Ansari and Information and Broadcasting Minister Manish Tewari who had tabled a private members bill to bring the intelligence agencies under Parliament's scrutiny. (Ref Point 5) Communications Minister Kapil Sibal had said in August 2012 that he would introduce changes to the Information Technology Act (Ref Point 6) for checks on the government's powers of interception but he has not walked the talk.
A misunderstanding of sovereignty was at nub of the problem, said Usha Ramanathan, a research fellow on human rights law at Delhi's Centre for Study of Developing Societies. In a democracy it is the people and the not the government who are sovereign. Laws are not meant to confer limitless power on the government but to curb them. The breakdown of the criminal justice system and the inability of the routine policing to ferret out useful information that can prevent terrorism had legitimized torture, scapegoating and the excessive use of phone intercepts, Ramanathan said.
In a perverse manner, the police and intelligence agencies were being rewarded for their incompetence with yet more powers that diluted the right to liberty. Anja Kovacs, a fellow of the Centre for Internet and Society said the American Civil Liberties Union (which has sued the Obama adminstration for the National Security Agency illegally warehousing call data of American citizens) has found from a study of media reports that most terrorist attacks were solved using traditional police intelligence.
Ramanathan said people were asked to give up personal security for the sake of national security. Multiple agencies were being set up. The deep surveillance ware which the government was buying would help keep a comprehensive watch on people. (Ref point 7) She was concerned at the lack of public outrage.
Prakash said his Centre for Internet and Society had drafted a people's right to privacy bill, which is being debated. The departments of law and personnel have also crafted a bill. The Planning Commission had set up a committee under former Delhi Chief Justice AP Shah to vet the government bill. Shah had suggested a nine point code to protect privacy, including the appointment of privacy commissioners. (Ref point 7) Curiously, speakers at the debate said the government wants to keep itself out of the ambit of the proposed law!
1. Metadata is such information as time of a call, duration, number called, frequency of calls and location of conversing cellphones
2. Foundation for Media Professionals www.fmp.org.in
3. Union of India Vs PUCL. http://indiankanoon.org/doc/87862/
4. What Gujarat DGP Amitabh Pathak told the Times of India http://articles.timesofindia.indiatimes.com/2013-05-20/ahmedabad/39391788_1_police-officer-police-inspector-gujarat-police
5. Manish Tewari introduces Bill on Intelligence Agencies Reforms http://www.observerindia.com/cms/sites/orfonline/modules/report/ReportDetail.html?cmaid=25156&mmacmaid=20327
6. Section 69 of the Information Technology Act 2000 gives the government the authority to intercept communications. See http://indiankanoon.org/doc/1439440/
7. Centre buying deep surveillance ware http://www.thehindu.com/todays-paper/tp-national/centre-buying-deep-surveillance-ware/article5031247.ece