Phone Tapping Laws In India Required

Phone Tapping in India has never been a smooth ride. While Phone Tapping procedures essentially require a “Judicial Order” in most Jurisdictions of the World yet India preferred to keep Phone Tapping Procedure out of the reach of Indian Judiciary. The entire procedure of Phone Tapping is an “Executive Action” devoid of Judicial Interventions and Judicial Reviews.

Big Brother in India is Overstepping the Constitutional Limits. Neither there is a “Constitutionally Sound” Lawful Interception Law in India nor are the existing Laws like Indian Telegraph Act, 1885 strictly in compliance with Indian Constitution. Interestingly, Phone Tapping by “Private Individuals” in India is rampant and the Phone Tapping by Indian Government is “Practically Unaccountable”.

We have no Constitutionally Sound Lawful Interception Law in India. Even the Home Ministry of India has considered enactment of a Lawful Interception Law in India. A Constitutional Phone Tapping Law in India is needed to prevent Unconstitutional Phone Tapping in India.

However, the worst affected area seems to be Parliamentary Oversight of Intelligence Agencies of India and various E-Surveillance Projects of India. We have no E-Surveillance Policy in India as well. Further, the National Counter Terrorism Centre (NCTC) Project of India, National Intelligence Grid (Natgrid) Project of India, Aadhar Project of India, Crime and Criminal Tracking Network and System (CCTNS), etc are not governed by any Legal Framework and Parliamentary Oversight. Indian Government is not willing to understand and accept that Intelligence Work is not an excuse for Non Accountability.

The Central Monitoring System Project of India (CMS Project of India) is also not supported by any Legal Framework. Surveillance of Internet Traffic in India is also another area that requires a sound Legal Framework. The Phone Tapping Law proposed by the Home Ministry is a history now. Intelligence Services (Powers and Regulation) Bill, 2011 and Draft Central Bureau of Investigation Act, 2010 have long suggested and gone. The Constitutionality of the National Investigation Agency Act 2008 (NIAA 2008) is still doubtful. Even we have no dedicated Privacy Laws in India, Data Security Laws in India and Data Protection Laws in India.

In short, the Legal Regime in these crucial areas is in “Real Mess” and without these “Crucial Legislations”, the Projects and Initiatives of Indian Government cannot be considered to be Constitutional. Project s like Aadhar, NATGRID, NCTC, CCTNS, CMS, etc are “Violating Constitutional Safeguards” and are therefore “Unconstitutional”.

It is high time for the Parliament of India to interfere as the “Legislative Function” is about to be transferred to the “Executive Branch” of Indian Constitution and Indian Judiciary is looking at it in a helpless manner. The precious Human Rights in Cyberspace are under grave risks as there is none in India that can presently enforce Fundamental Rights and Human Rights in Indian Cyberspace. Perhaps, Proactive Self Defense in India Cyberspace must be exercised by Indian Citizens to “Safeguard” their Civil Liberties themselves as our own Executive, Legislature and Parliament have failed to do so.

Constitutional Phone Tapping Law In India Is Needed

Phone tapping in India is regulated by outdated and ancient law known as Indian Telegraph Act 1885 and corresponding rules there under. As per section 5 of the telegraph act, the central government or state government is empowered to order interception of messages. Rule 419 and 419A sets out the procedure of interception and monitoring of telephone messages.

As per Rule 428 of the India telegraphic rules, no person without the sanction of the telegraph authority, use any telephone or cause or suffer it to be used, purposes other than the establishment of local or trunk calls.

However, in practice whatever little safeguards provided by the act are seldom followed. Phone tapping by private individuals in India is rampant and even governmental phone tapping is unaccountable. We have no constitutionally sound lawful interception law in India. Even the Home Ministry of India is considering enactment of a lawful Interception Law in India.

It is suffice to say that this unconstitutional phone tapping in India and illegal e-surveillance in India is a “constitutional failure of India”. India urgently needs a valid phone tapping law. The central monitoring system project of India (CMS Project of India) is also not supported by any legal framework.

This is the real problem for the CMS Project of India. We have no dedicated privacy laws in India, data security laws in India and data protection laws in India. Further, the CMS Project of India is also beyond the “parliamentary scrutiny”.

Further, we have no e-surveillance policy in India. Even phone tapping in India is done in an “unconstitutional manner” and even by private individuals with or without governmental approval.

Recently even the Supreme Court of India took a serious note of the growing and blatant incidences of privacy violation in India by Indian government and private individuals/companies supported by it. Supreme Court went upto the extent of saying that no person living in India is safe from privacy violations and omnipresent forgeries prevalent in India.

The present practice of Indian government regarding phone tapping, e-surveillance and e-interceptions is far from being legal and constitutional. India urgently needs a constitutionally sound lawful interception law. Let us hope the Supreme Court would bring some order in the otherwise chaosed banana republic of India.

CCS Did Not Approve Natgrid Project Absolutely

National Intelligence Grid (NATGRID) Project of India is still in troubled waters as lack of Privacy Laws and Data Protection Laws has put it in doldrums. Media reports are full of rumours that the Cabinet Committee on Security (CCS) has cleared the NATGRID Project. However, this is not true as CCS has just granted the “in principle approval” to NATGRID Project and nothing more.

In the past as well in principle approval was given to NATGRID Project but it was not able to proceed as it lacks the basic Planning, Management and Legal Framework. Even today and after the in principle approval of CCS, NATGRID Project is still without any Legal Framework and Parliamentary Oversight.

Further, the CCS has granted its approval to NATGRID Project for “Limited Purposes” only. CCS has allowed NATGRID to operate for “Limited Phases” only that also where the same can operate within the limits of present Legal Framework. For subsequent stages, NATGRID has “not been approved” till “Suitable Amendments” are made in the Laws of India.

Experts in India have been saying that NATGRID Project of India must comply with Civil Liberties in order to be Legal and Constitutional. Fortunately, the CCS has also “Endorsed” this view and this is the reason why it did not give permission for subsequent and “Final Phases” of NATGRID Project. The CCS has just cleared first two “non-controversial phases” and it is still holding back nod for later phases that require Legal Alterations

The real problem with India is that it is not respecting Human Rights in Cyberspace. We have no E-Surveillance Policy in India and Lawful Interception Law in India is missing. Phone Tapping in India is not done in a Constitutional manner and Laws like Information Technology Act 2000, Official Secrets Act, Indian Telegraph Act 1885, etc are “no more constitutional” and deserve to be repealed.

It is only now that India has started paying attention towards issues like Privacy Laws but even these efforts lack Protection of Civil Liberties in Cyberspace and Protection of Privacy Rights in the Information Era.

NATGRID Project of India would not be finished before Five Years in these circumstances. This is despite the claims of Home Minister P. Chidambaram. If NATGIRD Project is finished before that time period and within the present Legal Framework it means only two things. Either the CCS has “forsaken” the Civil Liberties of India Citizens or Home Ministry is operating the NATGIRD Project “Illegally and Unconstitutionally” and without the knowledge of CCS.

Call Data Records Storage Policy Of India

India is not very good at law making. This is more so regarding technology related laws. For instance, consider the cyber law of India incorporated in the information technology act 2000 (IT Act 2000). IT Act 2000 is a classical example of bad drafting that has created more problems than solutions. This is the reason why experts have been suggesting that it should be repealed.

Similarly, we have no lawful interception law in India. Even phone tapping in India is not done in a constitutional manner and illegal phone tapping in India is under scrutiny. There is no e-surveillance policy in India. India does not bother to maintain a balance between national security and fundamental rights of Indians.

India has launched projects like Aadhar, National Intelligence Grid (NATGRID), Crime and Criminal Tracking Network and Systems (CCTNS), National Counter Terrorism Centre (NCTC), Central Monitoring System (CMS), Centre for Communication Security Research and Monitoring (CCSRM), etc. None of them are governed by any Legal Framework and none of them are under Parliamentary Scrutiny.

In this background, the news that Intelligence Bureau (IB) wants all mobile phone companies to store call data records, or details of all phone calls made by their customers, for a period of five years is really surprising. Indian law enforcement agencies and intelligence agencies are practically governed by no law. In fact, intelligence infrastructure of India is in big mess and India is not at all ready for projects like CCTNS, Natgrid, NCTC, etc.

It is no surprise that the central bureau of India (CBI) is also not governed by any law and it is operating in India without any law. It is only now that the central bureau of investigation act 2010 was drafted. Till now it is a mere draft and has not become an enforceable law. Even the constitutional validity of the national investigation agency act 2008 is doubtful. The recent circulation of the draft Intelligence Services (Powers and Regulations) Bill, 2011 (Draft Intelligence Bill 2011) in the Lok Sabha shows how our Parliament of India took the matter very casually.

We must start formulating the call data storage policy of India as soon as possible. The one suggested by IB is neither feasible nor desirable. Issues like increased costs to operators, privacy safeguards, legal framework requirements, etc cannot be ignored the way they have been ignored so far. Presently, an inter-ministerial group is looking into monitoring of both internet services and networks in the country. This matter may also be refereed to the same. However, in all probability, this demand would be refused.

Illegal Phone Tapping In India Under Scrutiny

Phone Tapping in India has been in controversies for long. Whether it is Illegal Phone Tapping by Private Individuals or Unaccountable Phone Tapping by Indian Government and its Agencies, Phone Tapping in India has never been smooth.

On the front of Legal Framework as well we have no Dedicated and Constitutionally Sound Lawful Interception Law in India. The Indian Telegraph Act, 1885 and other similar Laws are not in “Conformity” with the Constitution of India, especially Fundamental Rights of Indians. Even the Home Ministry of India is considering enactment of a Lawful Interception Law in India.

On the top of it we have Central Monitoring System of India (CMS of India). It is suffice to say that this Unconstitutional Phone Tapping in India and Illegal E-Surveillance in India is a “Constitutional Failure of India”. India urgently needs a Valid Phone Tapping Law.

Now the Central Government has shown some concerns regarding Illegal Phone Tapping happening openly in India. The Centre has asked the Government Agencies and State Governments to return all surveillance equipment. The Home Ministry of India has now issued directions in this regard.

All Central and State Monitoring Agencies have been told to return any GSM equipment used for illegal tapping of phones back to the Department of Telecommunications (DOT). A secret MHA advisory to all State Police Departments says there will be crackdown on private individuals as well, which means Corporate India is included.

A DOT advisory dated December 31, 2010 to return the illegally imported equipment had evinced a poor response. In fact, till six months ago, passive interception machines could be easily imported under the Open General Licence. It's now been placed in the restricted list.

The Department of Revenue Intelligence suspects there are over 1100 machines that have been imported in the past 3 years alone. But the exercise could be a shot in the dark as the end users of these machines are still being traced. In fact, an internal audit by the CAG of the NTRO had revealed that these machines were placed more frequently in cities rather then the international borders or even in naxal or insurgency hit areas - for which they were acquired. This has given rise to suspicion that they were being used for tapping political and corporate rivals. Let us see how effective these directions of Home Ministry would be in preventing Illegal Phone Tapping and E-Surveillance in India.

CBDT Can Continue To Request Phones Tap In India

Phone tapping in India has been in controversies recently. Whether it is phone tapping by private individuals or public distribution of tapped conversations, Indian government has been in controversies.

In a recent development, the Prime Minister’s Office (PMO) has authorised the Home Ministry to take the final call on the contentious issue of withdrawing the CBDT’s powers of phone-tapping.

Now it has been reported that the CBDT will continue to enjoy the power to request telephone tapping despite a strong recommendation by a Committee of Secretaries against it. However, it is not immediately clear the conditions the CBDT will have to fulfill before requesting the tapping of telephones of any individual.

Suggestions for removal of CBDT from the agencies that can request phone tapping were given believing that tax evasion cases neither have criminal liability nor any national security issue as these were only civil matters.

The panel recommended either removal of the CBDT from the list of authorised agencies that can request telephone interception as the income tax laws fall within civil jurisdiction and do not always impinge on the public safety or to specify stipulations regarding the extent of surveillance allowed to the agency, including the level at which requests are to be made for authorisation by the Home Secretary. However, we have still to deal with lawful interception law in India.

There is an urgent need to formulate effective and constitutional lawful interception law in India. Lawful Interception is a process that “Reconciles” the Law Enforcement requirements and Civil Liberties of a Nation. In the Indian context, we have no Lawful Interception Law in India. By Lawful Interception Law it means a “Constitutionally Sound” Lawful Interception Law and not the present “Self Serving Laws” of India like Indian Telegraph Act 1885.

If we have a clear cut law, this turf war between various Ministries of India can be avoided. Presently, phone tapping is not regulated by a clear cut and constitutional law.

Is Cloud Computing A Viable Solution In India?

India is a country that is weak privacy, data protection and data security laws. India is also infamous for its e-surveillance and eavesdropping exercises without any constitutional laws backing the same. Phone tapping in India is not done in a strictly constitutional manner and we also lack a lawful interception law in India.

With the information technology amendment act, 2008 (IT Act 2008), the cyber law of India has been amended and this has also made it vulnerable to constitutionality attacks. With projects like national intelligence grid (Natgrid), crime and criminal tracking network and systems (CCTNS), central monitoring system (CMS), etc e-surveillance in India has reached its zenith.

In this background we have to analyse the use of cloud computing in India. Cloud computing in India cannot succeed till we have trust in the service provider. We cannot trust a service provider who can be forced to disclose even the most sensitive information and data without a court order.

In India a mere order from the Indian government or its agencies is enough for the service provider to share sensitive information. There is no judicial scrutiny of a warrant that is absolutely required in these circumstances. So you cannot be even sure what government agencies are looking at and what information they are taking from the service provider.

Any business model must essentially balance profit motives and risks associated with the business. Similarly, the users of cloud computing services must ensure that the convenience of software as a service (SASS) and cloud computing is much greater than the risks of data leakages and manipulations.

Till now the legal opinion is weighting against the use of cloud computing and SAAS in governmental departments and for governmental projects. Without a conducive legal framework, user’s data in India is not safe. Let us create a conducive commercial and legal environment before we jump upon cloud computing wagon.