“There will come a time when it isn’t ‘They’re spying on me through my phone anymore. Eventually, it will be ‘My phone is spying on me”. - Philip K. Dick
A recent international collaborative research project has revealed in a report that Pegasus Spyware was used as an electronic tool of surveillance against at least 300 individuals in India. The number includes opposition leaders, civil society activists, journalists, and even a sitting Supreme Court Judge. The list also includes some sitting ministers of the ruling government. For now, the government officials have either kept their silence or completely denied the report and are of the contention that there has not been any misuse of it. Human rights activists and opposition leaders have slammed the government on this issue.
This piece of writing is an attempt to analyse the indiscriminate use of Pegasus and how indiscriminate use of this spyware is a clear violation of an individual’s right to privacy.
THE PEGASUS SPYWARE
Pegasus is one of the most dangerous spywares, which gets entered into an electronic device, collects data, and transfers it to a third party without consent. It can even film without the user being aware of it. Pegasus has been developed by the Israeli Company NSO (Niv Shalev and Omri) which sells this software only to Governments. In order to operate the spyware, a license costing around 70 lakh rupees is required. Pegasus is used to track criminals and terrorists and can infect millions of phones. Currently, as the report states, it is being used as a tool of mass surveillance by the Government against politicians, intellectuals, human rights defenders, and many more.
LEGAL PROVISIONS RELATED TO ELECTRONIC SURVEILLANCE
The concept of electronic surveillance has always been a matter of concern. Advocating for national security and integrity, the State generally argues that it has a right to keep an eye on the activities of individuals. On the other hand, various civil society activists believe that electronic surveillance finds no place in any democratic setup as it is a clear violation of human rights.
The Telegraph Act, 1885 and the Information Technology (IT) Act, 2000 contain several electronic surveillance related provisions. For example, section 5 of the Telegraph Act, 1885 empowers the Government to intercept messages only where the main concern is public safety, sovereignty, friendly relations with foreign States, or public order and integrity of India. The Act further provides that the interception cannot be used as a tool for securing political advantage or personal benefits, and that it should only be temporary. The section also restricts the interception of press communications unless that has been prohibited by the law.
A similar provision has been made in section 69 of the Information Technology Act, which empowers the Government to issue directions related to the interception of any information via computer technology. This section is much broader in comparison to the provisions stated in the Telegraph Act 1885, as the only condition required for electronic surveillance is an “investigation of offense”.
A CLEAR INFRINGEMENT ON THE RIGHT TO PRIVACY
Tracing back through constitutional history, privacy did not form a part of Constituent Assembly debates. Due to this, a right to privacy has not been expressly given in Part III of the Indian Constitution yet has been held as an important domain of the right to life (article 21) in the landmark case of Justice K.S.Puttaswamy (Retd) v. Union Of India. Hon’ble Supreme Court held that the unnecessary interruption on people’s lives through surveillance is an infringement of the right to privacy. While examining the Constitutional validity of section 5(2) of the Telegraph Act, a two-judges bench of the Supreme Court held in People’s Union of Civil Liberties v. Union of India held that telephone tapping is an invasion of a person’s privacy. The Court observed; “it is no doubt correct that every Government, howsoever democratic, exercises some degree of Subrosa operation as a part of its intelligence out-fit but at the same time citizen's right to privacy has to be protected from being abused by the authorities of the day”. The Court further issued certain guidelines to be followed while phone tapping and electronic surveillance.
Article 17 of the International Covenant on Civil and Political Rights also upholds a person’s privacy, and provides that “no one shall be subject to arbitrary or unlawful interference with his privacy, family, human or correspondence, nor to lawful attacks on his honor and reputation”. A similar provision can also be found in article 12 of the Universal Declaration of Human Rights; “no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.” As India is bound by these international treaties, it must apply the latter and protect the privacy of its citizens by respecting these provisions.
In this context, the Personal Data Protection Bill (PDB), 2019 was introduced but has not been enacted yet. The proposed legislation aims to safeguard citizen’s personal information and data and prohibits the data fiduciary from misusing data and compels the data processor to maintain transparency.
A WAY FORWARD
Privacy forms an essential part of one’s life. Indiscriminate use of software like Pegasus is an attempt to undermine one’s privacy. The statistic on Pegasus use in India is alarming and requires serious attention: if correct, it is a clear violation of a right to privacy which is now a well-recognised fundamental right. Governments often envoke a defence of national security when questioned on such issues. There must be a proper balance between the nation’s security interest and individual freedom and privacy.
A serious step must be taken to prevent further misuse of any similar spywares, and the Government must come forward and clear all issues relating to it. For example, since the current laws dealing with electronic surveillance fall short to protect citizens’ privacy, a strong step forward would lie in drafting a legislation dealing specifically with electronic surveillance and individual privacy. The proposed Personal Data Protection Bill must be enacted with its full efficiency, aiming to protect citizens’ privacy.