As communications technology grows, India, like any other country in the world, is debating data protection and privacy. The debate has become a focal point again after reports of Pegasus, an Israeli spyware, were used by governments around the world to spy on journalists, politicians and other prominent citizens.
Pegasus spyware, developed by Israeli cybersecurity firm NSO Group, has been in the news after reports of alleged surveillance by news portals such as the Washington Post and the Guardian were released. According to reports, the spyware was used in India to attack the phones of several prominent journalists and politicians.
Legal experts tell India Today that in the absence of a clear law, those named on the Pegasus List must turn to the High Court or the Supreme Court to appeal against the parties responsible for sharing their private information .
Indian laws on data protection
With the judgment of KS Puttaswamy in August 2017, the Supreme Court recognized privacy as a fundamental right, including privacy not only of the body, but also of identity in the digital age.
In 2018, a ten-member committee led by retired Supreme Court Justice BN Srikrishna presented a comprehensive report on data protection and proposed a draft data protection law. Even after three years, the draft law is still pending before a joint parliamentary committee.
Read: Pegasus Updated How To: How It Infects Phones, What It Does, How To Detect And Get Rid Of It
Under Indian law, the Telegraph Act of 1885 and the Information Technology Act of 2000 provide the rules and procedures for legitimate government surveillance and wiretapping of communications under strict rules and for specific reasons. But none of the provisions of these two laws appear to apply to the current controversy surrounding Pegasus surveillance.
In a statement to parliament, the central government rejected the allegation of surveillance. Since the two laws only speak of state surveillance as “legal”, everyone who has found their name on the Pegasus list is faced with a legal gray area – where is justice at stake?
What do the experts say?
Speaking to India today, senior attorney Saurabh Kirpal pointed out that the law “has not kept up with technology”.
“The IT law or the telegraph law do not cover wiretapping or hacking of this kind. Only the state may carry out surveillance for a short time for certain reasons,” said Kirpal.
Under applicable law, the request for surveillance of a telephone or other electronic communication must be made on the basis of the criteria that interception, surveillance or decryption of the communication is necessary or appropriate “in the interests of sovereignty or integrity” of India, the defense of India, State security, friendly relations with foreign states or public order or to prevent incitement to the commission of a recognizable criminal offense in connection with the above or to investigate a criminal offense.
Both laws require that the request for surveillance be sent to the Home Secretary by a senior police officer and that final approval be obtained from a committee headed by the chief secretary of the state or the cabinet secretary of the center. In the recent Pegasus series, the center denied that such surveillance took place.
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Kirpal said there needs to be a detailed investigation into how this software was allowed to be used. “There can only be three ways. First, the government authorized the surveillance. Second, a government official abused their power. Third, a private party hacked them. The problem now is the serious violation of the right to privacy,” said Kirpal.
Attorney and cyberlaw expert Pawan Duggal said the existing criminal laws could be used by those on the list to file a complaint. “Any person concerned can report the matter to the cyber cell of the police or the cybercrime reporting office. Investigations can be carried out. You can sue perpetrators and also NSO, ”says Duggal.
However, it is about the role of the government, said Duggal. “The question is whether the government approved the surveillance. If the government has followed all the steps, this is a gray area. How far can the government go,” said Duggal.
Both experts said that in the absence of a clear law, the individuals concerned, or anyone with a public spirit, should turn to the High Court or the Supreme Court. “Since it is a violation of a fundamental right, any citizen can go to the court and request an investigation,” said Kirpal.
“The fact that the IT law does not provide a penalty for such hacker attacks is a violation of the law,” said the experts.
See also: Pegasus sniff series: IT Minister Ashwini Vaishnaw rejects allegations
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