New Delhi: The Delhi high court on Tuesday directed the Union government to file a detailed affidavit on the procedure that is followed to grant permissions to monitor and intercept phones, in response to a plea that opposes generalised surveillance of citizens by the government.
According to Bar and Bench, a bench of Chief Justice D.N. Patel and Justice Jyoti Singh said that solicitor general Tushar Mehta sought time to file a written counter affidavit on behalf of the Union government. “The counsel on behalf of the petitioner… insists that several averments in the petition haven’t been replied to. We direct the respondents to file a detailed reply on the procedure followed for monitoring, interception and decryption of phones,” the court ordered, listed the matter for hearing again on September 30.
The bench was hearing a PIL by two societies which have claimed that citizens’ right to privacy was being “endangered” by surveillance programmes like the Centralised Monitoring System (CMS), Network Traffic Analysis (NETRA) and National Intelligence Grid (NATGRID).
The plea by the Centre for Public Interest Litigation (CPIL) and Software Freedom Law Centre (SFLC) has contended that these surveillance systems allow Central and state law enforcement agencies to intercept and monitor all telecommunications in bulk, which is an infringement of the fundamental right to privacy of individuals and in contravention to the Supreme Court’s Puttaswamy judgment.
Appearing for the NGOs, senior advocate Prashant Bhushan urged the court to constitute a committee under the aegis of a retired judge of the high court or the Supreme Court to find out what the government was doing and that the government reply in the present case was bald.
“They filed an affidavit saying everything is in accordance with law. Government’s reply is a bald reply,” he stated.
Bhushan said that while the apex court is considering a petition about alleged targeted surveillance by Israeli spyware Pegasus, the instant petition is “about general surveillance which is done in three ways through Comprehensive Monitoring System, Netra and Natgrid”, according to Bar and Bench.
The lawyer said that even a simple Google search could lead to tracking by these surveillance systems, on the basis of certain keywords.
Bhushan drew parallels with the US’s Prism surveillance programme, which was revealed by whistleblower Edward Snowden, and which effectively channelled all Internet traffic.
“In India, it’s similar to some extent as they’re putting in place systems through which information will be secured about phone calls, messages, etc. The NETRA system can scan information through key words and NATGRID collects information from institutions. For instance, a person’s travel information can be collected through the airline’s website,” Bhushan said, according to Bar and Bench.
A man types on a computer keyboard in front of the displayed cyber code in this illustration. Photo: Reuters/Kacper Pempel
SG Tushar Mehta said that the petitioners are not aware of the statutory rules. “All instances of interception were carried out with proper permission. It is permissible under Section 69 of the Information and Technology Act, 2000. We will place everything on record in the reply. I also request you to use the word ‘interception’ instead of phone-tapping,” Mehta said.
Bhushan was, however, quick to point out that phone tapping is just one issue. “They’re monitoring the whole internet traffic,” he said.
According to news agency PTI, the Union government had in its earlier affidavit said that no blanket permission has been granted to any agency for interception or monitoring or decryption of any messages or information under the three surveillance programmes i.e. the CMS, NETRA and NATGRID.
The government defended the need for the surveillance systems saying that “grave threats to the country from terrorism, radicalisation, cybercrime, drug cartels, etc, cannot be understated or ignored” and it was imperative, therefore, to have a robust mechanism “for speedy collection of actionable intelligence”.
The two societies have contended that under the existing legal framework there is an “insufficient oversight mechanism” to authorise and review the interception and monitoring orders issued by the state agencies.
Directions are thus sought to the Union government to permanently stop the execution and the operation of the surveillance projects, CMS, NETRA and NATGRID, which allows for bulk collection and analysis of personal data, they submitted.
According to the petition, CMS is a surveillance system under which all forms of communications like telephone calls, WhatsApp messages and e-mails are intercepted and monitored.
NETRA, developed by the Centre for Artificial Intelligence (CAIR) – a lab under the Defence Research and Development Organisation (DRDO), monitors internet traffic for the use of keywords such as attack, bomb, blast or kill in tweets or status updates on social media platforms, emails or blogs, the plea has said.
The petition has claimed that NETRA is essentially a massive dragnet surveillance system designed specifically to monitor the nation’s Internet networks including voice over internet traffic passing through software programs such as Skype or Google Talk besides write-ups in tweets, status updates, emails, instant messaging transcripts, internet calls, blogs and forums.
NATGRID, the plea claimed, is “a counter-terrorism initiative to be undertaken on public-private partnership that will utilise technologies like Big Data and advanced analytics to study and analyze huge amounts of data and metadata’ related to individuals from various stand-alone databases belonging to various agencies and ministries of the Indian government”.
Under the NATGRID system, tax and bank account details, credit card transactions, visa and immigration records and itineraries of rail and air travel would be monitored, the plea has said.
Bhushan had earlier argued before the court that the Supreme Court has held that financial details and travel plans of citizens cannot be intercepted or monitored except in larger public interest and in accordance with the laws.
However, according to a reply received under the Right to Information (RTI) Act, 7,500 to 9,000 permissions were being routinely granted every month for intercepting and monitoring communications of citizens and the committee which is to review such permissions sits only once in two months, he told the high court.
On Tuesday, the lawyer referred to Justice Arun Mishra’s remarks which pointed to an “overwhelming number of applications for phone-tapping that were remarkably silent on reasons for invasion of the citizens’ privacy”, according to Bar and Bench.
“I am suggesting a committee formed under Justice Mishra or Justice Shah which seeks and investigates how these permissions are being given for phone-tapping,” Bhushan added.
The plea has sought the constitution of a permanent independent oversight body, judicial or parliamentary, for issuing and reviewing lawful interception and monitoring orders/warrants under the enabling provisions of the Indian Telegraph Act, 1885 and the Information Technology Act, 2000.
(With PTI inputs)