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.

Intelligence Gathering Is Not Above Right To Privacy In India

Right to privacy in India is a constitutional right. Efforts are in the process to make it a statutory right as well. A dedicated statutory right to privacy in India is in pipeline in the form of right to privacy bill of India 2011. The proposed Bill must protect human rights in cyberspace to be valid and constitutional and it must respect the privacy rights of Indians in the information age. The proposed draft right to privacy bill 2011 of India may confer some form of privacy rights to Indians. However, its true scope is yet to be made public.

Privacy laws in India and privacy rights in India have always been ignored. We have no national privacy policy in India as well. Data protection laws in India are missing and so are data privacy laws in India. Privacy, data protection and India seems to be separable and unrelated concepts.

Indian government 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.

Further, there are some very crucial issues that are posing constitutional problems for the intelligence and security agencies of India. For instance, intelligence gathering in India is unconstitutional. Similarly, counter terrorism capabilities of India are not sufficient and Indian counter terrorism capabilities needs rejuvenation. Finally, parliamentary oversight and constitutional safeguards are missing in the functions of these agencies.

India does not have a constitutionally sound lawful interception law. Phone tapping in India is still done in an unconstitutional manner and at times by private individuals as well. Further surveillance of Internet traffic in India is now openly acknowledged by Indian government.

The intelligence infrastructure of India has become synonymous for non accountability and mess. There is neither any parliamentary oversight nor and transparency and accountability of the working of intelligence agencies of India. Intelligence infrastructure of India needs rejuvenation keeping in mind the constitutional obligations.

The draft Intelligence Services (Powers and Regulation) Bill, 2011 has failed to take the shape of a law in India and it has been announced that law on intelligence agencies would be formulated soon. Even the Draft Central Bureau of Investigation Act, 2010 has failed to become an applicable law.

E-surveillance in India, websites blocking in India, Internet censorship in India, etc are also not done a strictly constitutional manner. Till now Indian courts have not tested the acts of intelligence agencies. Recently Indian research and analysis wing (RAW) was granted e-surveillance powers without any legal framework. Now the home ministry of India is demanding that intelligence and law enforcement agencies must be kept out of the purview of the proposed Privacy law, and should be allowed to continue monitoring the activities and carry out electronic surveillance of citizens.

Home ministry is suggesting that the way intelligence and investigation agencies are exempted under schedule 2 of the Right to Information (RTI) Act, they should be kept out of the proposed privacy Bill in view of national security.

Under schedule 2 of the RTI Act, citizens are restricted from seeking information from agencies such as the Intelligence Bureau (IB), the Research and Analysis Wing, the Central Bureau of Investigation, the National Investigation Agency, the National Intelligence Grid and the National Technical Research Organisation.

Home ministry do not wants the privacy Bill to interfere with intelligence gathering activities even if means accommodating more safeguards in line with the sprit of the privacy Bill.

This seems to be an unreasonable demand as we must now stress upon great parliamentary scrutiny of intelligence agencies and law enforcement agencies. On the contrary we are diluting the constitutional freedoms and procedural safeguards. It is high time for parliament of India to interfere and enact constitutionally sound laws in this regard.

Right To Privacy In India In Pipeline

Privacy law in India is the need of the hour. This is more so where privacy rights in India are frequently violated through various e-surveillance projects of Indian government. India has no dedicated privacy law. The Supreme Court of India interpreted it by expanding the scope of Article 21 of the Constitution.

Meanwhile, Indian government 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.

These projects have also raised serious privacy violations issues as well that have still not been redressed by Indian government.

Realising that this may cause problems in future, the Law Ministry of India is working on a proposal to make right to privacy a fundamental right in the Indian Constitution. This is the right approach as without privacy safeguards all the recently launched projects of Indian government are “unconstitutional”.

We are working on making right to privacy a fundamental right. It is likely to be tabled in the monsoon session of Parliament. However, it's difficult to commit the timeframe, law minister Veerappa Moily said.

The right to privacy would include the right to confidentiality of communication, confidentiality of private or family life, protection of his honour and good name, protection from search, detention or exposure of lawful communication between individuals, privacy from surveillance, confidentiality of banking, financial, medical and legal information, protection from identity theft of various kinds, protection of use of a person's photographs, fingerprints, DNA samples and other samples taken at police stations and other places and protection of data relating to individual.

Many of these are already observed at a practical level. For example, it's a part of professional ethics of a lawyer or a doctor not to reveal details about clients or patients. The same applies for the banking sector. Apart from strengthening norms for interception of communication, the proposed Act will guarantee an individual's right to privacy. It's similar in the way the Constitution guarantees existing fundamental rights like right to equality, right to freedom of expression etc," explained a senior law ministry official.

The proposed legislation must be enacted keeping in mind the techno legal aspects. Technology would create serious challenges before Indian government and necessary provisions must be incorporated to deal with the same in future.

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.

National Intelligence Grid Of India In Doldrums

National intelligence grid (Natgrid) is a pilot project of Home Ministry of India. Natgrid has been launched to tackle growing terrorist attacks and terrorism cases in India. Besides, Natgrid can also be used to prevent serious crimes and cyber crimes.

Natgrid project is accompanies by national counter terrorism centre (NCTC) of India. However, till now neither Natgrid nor NCTC has been able to see the light of the day. Bureaucratic hurdles and lack of proper planning is the main reason why these crucial projects are not even able to take a start.

After 26/11, India vowed it would never be caught napping again and the ambitious idea of National Intelligence Grid was born. It was widely believed to be Home Minister P. Chidambaram's visionary plan, a powerful real-time 24X7 networking of 21 databases to stitch all information and raise alarm. It has now been almost two years and there is no sign of any implementation of Natgrid project.

There seems to be two main reasons for non functional Natgrid and NCTC projects. The first is the fear that Home Ministry would become all powerful Ministry to deal with intelligence related works. If sensitive information is left at the disposal of Home Ministry other Ministries may not like the idea. Further, this is the reason why NCTC project has not moved an inch forward.

The second reason for the failure of Natgrid and NCTC projects is absence of privacy, data security and data protection safeguards in these projects. In a zeal to deal with terrorism related cases, Home Minister P Chidambaram ignored the civil liberties requirements altogether. To make the matter worst we have no e-surveillance policy in India and our intelligence agencies and law enforcement agencies are practically governed by no law and without any Parliamentary oversight. Thus, fears of privacy violations have also plagued Natgrid and NCTC projects.

Although the intentions of Home Ministry are good yet they have not been executed in a planned and coordinated manner. In these circumstances the Cabinet Committee on Security (CCS) may not clear these much needed projects. I wish the Home Ministry would take care of all these issues so that both Natgrid and NCTC may be operational in India.

India-US Homeland Security Dialogue

India and United States (US) have in the past worked in the direction of homeland security. In fact a cyber security forum was started between India and US that faced some troubles and it became obsolete. Now talks are in progress to revive Indo US homeland security dialogue once more.

A special emphasis has been laid upon counter-terrorism co-operation, intelligence sharing, technology transfers and capacity building. Homeland security in India is at the infancy stage. Issues like cyber law, cyber security, cyber espionage, cyber terrorism, cyber warfare, etc are still not considered while formulation national policies of India.

At Perry4Law Techno Legal Base (PTLB) we are managing the exclusive techno legal cyber security research and training centre of India (CSRTCI). The centre is covering areas like cyber law, cyber security, cyber forensics, critical ICT infrastructure protection, cyber warfare, cyber terrorism, cyber espionage, national counter terrorism centre (NCTC), national intelligence grid (Natgrid) of India, crime and criminal tracking networks and systems (CCTNS), etc.

CSRTCI is supported by Cyberspace Human Rights Protection Centre of India that is working in the direction of reconciling the conflicting interests of national security and civil liberties protection.

The proposed Indo US homeland security dialogue must address many crucial issues ranging from cyber law to cyber security. Issues like encryption, technology transfer, international cooperation to fight cyber crimes and terrorism, etc must also be a part of national policies of both US and India.

PTLB believes that besides addressing these issues the proposed India US dialogue must also concentrate upon mutual trainings and skills development issues in the abovementioned fields. India particularly needs skill development trainings for intelligence gathering and their analysis. In all probability, this would be a fruitful and productive dialogue between India and US.

Lack Of Privacy Laws Stalled Natgrid Project

National intelligence grid (Natgrid) has been in news from time to time. Although the intentions behind the Natgrid project are good yet it planning and management is really bad. We have been stressing that Natgrid is an essential project for robust and effective intelligence agencies and law enforcement functions in India. The only requirement is to ensure that Natgrid’s abuses can be anticipated, prevented and remedied.

There are many challenges that Natgrid must successfully meet in order to be finally established. For some strange reasons, the Home Ministry of India failed to consider these challenges. Further, experts have been suggesting that Natgrid project of India must comply with civil liberties in order to be valid and constitutional. Even this aspect has been ignored by Home Ministry. Even Home Ministry has been cautioned that Natgrid project of India may fail if it is not managed properly.

By not acting in a proper manner, Home Ministry of India has created a trouble for itself. Now the Natgrid project has been struck at the last stage of securing final approval by Prime Minister Manmohan Singh, who is, apparently, in a dilemma whether it would be wise to give overarching power to the agencies to infringe upon individual privacy, allowing tracking of all their activities. Raghu Raman is managing the Natgrid project and his term is expiring this month after he sat idle for 18 months.

Natgrid project, if approved, would ask the telecom and internet service providers to compulsorily link up their databases with it. Even the rail and air travel, phone calls, bank accounts, credit card transactions, passport and visa records, PAN cards, land and property records, automobile ownership and driving licences and many more such data would be linked.

What Home Ministry failed to understand is that civil liberties cannot be violated at will in a blatant manner as has been suggested by it. Civil liberties are violated world over through use of technology and Natgrid project seems to be no exception to the same. Now a section of government suspects such a move as a dangerous precursor to an autocratic state having overarching power of keeping an eye on its citizens all the time and eroding their privacy.

They claim that with the National Counter Terrorism Centre (NCTC) would give unbridled powers to the Home Minister which can prove detrimental to freedom and privacy of common man. This has even put in jeopardy the very Natgrid project itself.

In the ultimate analysis the fault lies with the approach of Home Ministry. Natgrid project cannot be taken as casually and in an unplanned manner as has been done by Home Ministry. If at all the Home Ministry wishes this project to see the light of the day. It must immediately start working in a planned and systematic manner.