Do Our Wiretapping Laws Adequately Protect the Right to Privacy?

Communications surveillance constitutes an important component in maintaining the sovereignty, integrity, and security of the state, and in aiding in the prevention and investigation of crimes. However, there are reports of tools of mass surveillance being deployed by the government. This article argues for a mechanism which institutionally provides greater checks, and does not provide untrammelled access to the state in our private lives.

Introduction

The Justice Puttaswamy v Union of India (2017) judgment has set the ball rolling for evolving a new privacy paradigm, strengthening the case for individual privacy protection, and touching upon varied facets of the right, encompassing everything from the kitchen to the bedroom to the closet. One of the most common and well-known state-sanctioned intrusions into our privacy is the interception of our telephonic conversations. 

 

Telephonic interception is one of the oldest forms of surveillance employed by the state. It is no surprise thus, that the bulk of its regulations continue to stem from colonial laws. Now that doubts regarding the nature and existence of the right to privacy have been put to rest, it is time for the government, members of parliament, and various privacy law advocates to begin a comprehensive relook at the interception architecture in place. 

 

Privacy advocates indeed have a reason to celebrate. Apart from the recent historical nine-judge bench decision recognising the right to privacy as a fundamental right, it has also been two decades since another very historical decision, People’s Union for Civil Liberties (PUCL) v Union of India (1997), commonly known as the wiretap case. This judgment is significant because it was here that the Court found that powers of law enforcement agencies (LEAs) to intercept telephonic communications, must be guided by duly established legal procedures, because interception involves an intrusion into an individual’s freedom to exercise rights conferred under articles 19 and 21 of the Constitution. The Court laid down guidelines for how requests for authorisation of interception are to be carried out, the period of interception, and so on. These guidelines were subsequently notified by the government.

 

India's communications surveillance framework has several problems. First, there is divergence between the various statutes that govern the interception frameworks of different communications (such as posts, telephone, and the internet) in terms of the varying grounds that they provide to the state to intercept such communications (Kharbanda 2015). Second, the actual procedure governing the authorisation of the interception calls for closer examination. The efficacy of present systemic safeguards against abuse in this regard is doubtful. Third, there is a paucity of data in the public domain pertaining to various facets of the interception architecture. Little information exists in the public domain as to the extent of state surveillance over our communications. 

 

Tying in with this problem of information asymmetry between the state and its citizens is the fact that there are reports of tools of mass surveillance being deployed by the government (Prakash 2013). The legality of such interception measures is untested in courts of law, which may find that they fall foul of the overarching constitutional standards for derogation of fundamental rights. This article examines certain aspects of the second and the third problems stated above. 

 

Rules of the Game: Well Intentioned but not Practical 

While the power to intercept telephonic communications comes from Section 5 of the Telegraph Act, 1885 the procedure regulating how the competent LEAs are to carry out this interception is governed by the Telegraph Rules, 1951. Under rule 419A, the union home secretary in case of central LEAs, or the home secretary of the state governments in case of the state police grants authorisation to such agencies to intercept telephonic conversations. The rules also provide for delegation to an officer of the rank of joint secretary in unavoidable cases. In exigent circumstances, however, the concerned LEA may itself, with the permission of its head or the second highest ranking officer (not below the rank of inspector-general), carry out emergency interception, but must notify the home secretary within three days and also explain the circumstances. Failing subsequent ratification by the home secretary within seven days, this interception must cease immediately. 

 

The central agencies authorised to carry out telephonic interception include the Research and Analysis Wing, Intelligence Bureau (IB), Directorate of Revenue Intelligence, Central Bureau of Investigation, National Investigation Agency, Narcotics Control Bureau, Directorate of Enforcement, Directorate of Signals Intelligence, and the Central Board of Direct Taxes. In addition, similar powers have also been provided to the state police forces (Singh 2014). 

 

The Rules also provide for a review mechanism. Under these rules, a review committee headed by the cabinet secretary in case of the centre and the chief secretary in case of the states has been established. This committee is to receive a copy of every authorisation of interception by the concerned home secretary within seven days of him/her doing so, and must meet at least once every two months to review the same. In case they find the reasons wanting, the interception must cease with immediate effect. 

 

Prima facie, these rules appear comprehensive enough and padded with sufficient safeguards. Yet, based on central government responses to right to information (RTI) requests, annually, the union home ministry approves close to 1 lakh requests for interception, while some estimates place the number between 7,500–9,000 requests per month (SFLC 2014). Even if we assume the lower number at 7,500 interception requests per month to be true, it would mean that the home secretary has to scrutinise about 250 requests for authorisation per day. It is pertinent to note that whilst considering requests for interception by LEAs, the secretary/joint secretary must mandatorily consider whether there are alternate means to acquire the information sought, and if not, then the reasons requiring interception should be recorded in the order authorising interception. The order must also specify which officer is authorised to carry out the interception, to whom such officer may disclose details revealed in the course of the interception, and so on. 

 

Clearly, the rules contemplate a near quasi-judicial application of mind, and not merely a clerical process of blindly approving or rejecting such requests. It may be noted that the mandate of the union home ministry includes matters relating to border management, internal security, Jammu and Kashmir affairs, census, official language, centre–state relations, union territories administration, human rights, police, prison management and freedom fighters' pensions (MHA 2015). The union home secretary, thus, is responsible for the overall functioning of all these matters. One can only imagine how he/she can do justice to every application that infringes upon citizens’ essential freedoms given the quantum of interception requests, and the wide variety of affairs the home secretary must see to on a daily basis. All of this does not even consider how many home secretaries in the past have had any legal training or technical competence to make such decisions. 

 

Home secretaries at both the central and state level are drawn from the Indian Administrative Service. Thus, a decision regarding a fit case for authorising interception is not made by judicial officers or individuals with experience in law enforcement and intelligence gathering, but by a generalist bureaucrat. This has serious ramifications, not just from the point of view of individuals’ right to privacy being violated, but also even from the point of view of the state. Imagine a bureaucrat, bereft of any legal, judicial or technical training, afraid of being pulled up for sanctioning too many authorisations for interception, who chooses to err on the side of caution and rejects the majority of such applications en masse. Considering the mandate of the concerned LEAs, such a decision of the home secretary authorising or rejecting requests for interception would have implications on national security, terrorism-related matters, smuggling of arms and fake Indian currency notes, and possibly also massive revenue losses for the exchequer.

 

It is thus clear that the present model needs a major overhaul. Attempts have been made to bring about reforms. The aforementioned PUCL judgment was the starting point of such attempts. Recently, a bill touching upon this aspect was introduced in Parliament. It envisages a separate authority to deal specifically with such requests. It would be interesting to note the direction of the parliamentary debates over this bill in light of the recent Puttaswamy judgment. Given the fate of earlier bills of a similar nature in the parliament, there is not much cause for optimism. 

 

Another model which may be considered is that of the United States, which sees prior judicial intervention, wherein a judge authorises a wiretap, much like how a judge would issue a warrant to make searches and seizures, or to arrest accused persons (Solove 2007). This model, while certainly more attractive from a human rights perspective, may be debatable in the Indian context considering that the judiciary is already overburdened with high rates of pendency combined with huge vacancies (Gowda 2015). It is pertinent to ask whether it is wise to have multiple judges accessing sensitive details of ongoing investigations versus having a single home secretary. There is also a question on whether the subordinate judiciary (if made part of this architecture) is competent to make such determinations. 

 

It is clear that whichever model is ultimately chosen, be it an independent authority or a privacy commissioner as some suggest (Justice A P Shah (Retd) Committee 2012), this authority should draw its staff from the judiciary, LEAs, the intelligence community and the civil society. In the interim, while different models are considered, at the very least, the home secretary may be provided a dedicated team of joint secretaries, having prior experience in intelligence, investigations and security. 

 

Data for Robust Privacy Protection Regime

 

Another concern in this respect is the lack of information that the government is willing to part with. On an RTI application to the union home ministry seeking information on the agency-wise and month-wise break up of the number of requests for authorisation of interception, the response stated that such information was not available, and even if it were, the information would be denied under Section 8 of the RTI Act. Interestingly, information had been provided to the applicant in a similar RTI request in 2014 (SFLC 2014). These RTI requests filed were carefully drafted so as to not seek information which would compromise India's security, or any ongoing investigations. The intention was to simply discern how many such requests there have been in the past, and what principles guide the home secretary’s decision-making process. Unfortunately, replies were not provided, and where they were, they were vague.

 

Without adequate data about the nature and extent of interception, reform measures cannot adequately target current institutional flaws. Any proposed oversight mechanism would only find itself stifled, and reasoned public discussion on the same would not be possible. The Delhi High Court’s recent decision in CPIO, Intelligence Bureau v Sanjiv Chaturvedi (2017), is significant because it brought intelligence agencies such as the IB into the fold of the RTI Act when the information sought pertains to allegations of corruption or human rights violations. Considering that the Supreme Court recognised the right to privacy as a fundamental right, and that this right figures in several international human rights instruments (such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights), it could now be argued that data with respect to interception, so long as not compromising national security, intelligence gathering, and ongoing investigations, ought to be provided. The justification given by the union home ministry therefore may no longer hold good. Given the importance the judiciary has accorded to this right, data in this respect is not only useful for academic pursuits, but also for the realisation of the citizens’ fundamental human rights. 

 

Conclusions

A note of caution—this article recognises that communications surveillance constitutes an important component in maintaining the sovereignty, integrity, and security of the state, and also in aiding in the prevention and investigation of crimes. It simply argues for a mechanism which institutionally provides greater checks, and does not provide untrammelled access to the state in our private lives. Such fears of abuse are not unfounded, as cases of illegal wiretaps have been reported in the press, discussed in Parliament, and even taken to court (Khetan et al 2010; Singh 2014). 

 

Similarly, access to information pertaining to our interception architecture is also understandably scarce. This paper does not argue for a regime of privacy where all data relating to interception is made publicly available. Rather, it argues for making data available in order to aid both policymakers and courts of law in understanding and limiting overbroad state intrusions into citizens’ private lives without compromising on the purpose behind legitimate interceptions.

 

Some argue that those who have nothing to hide need not be afraid of surveillance.  This argument is flawed since it does not consider how pervasive surveillance influences human behaviour, inducing what is termed as the “chilling effect,” making people alter their behaviour due to their expectation of constantly being watched (Solove 2007). This in turn affects the exercise of essential liberties such as the freedoms of speech, expression, and association. It can even be used as tool to curb legitimate activities and to stifle dissent (Solove 2012). Such concerns must never be allowed to persist in a country with a democratic ethos as strong as India’s. 

 

While the right to privacy has been termed by many as the “most cherished right” of individuals, yet its enjoyment suffers from what is termed as the privacy paradox (Blank et al 2014). This theory suggests that while an individual cares about her theoretical right to privacy, when it comes to the actual exercise of the right, the right-holders are willing to contractually alienate the right based on other considerations such as peer pressure and social norms. Despite this seemingly paradoxical situation, the widespread acceptance of the recent Supreme Court decision has shown that people do indeed value this right. Consensus largely exists that state-based intrusions into our private lives are not permissible, barring a few cases. It is apt thus, to make the most of this heightened public awareness of our constitutional liberties and freedoms. These energies must be channelled to reform the existing surveillance architecture as well.

 

 

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