Home Ministry Mulls Lawful Interception Law Of India

Lawful Interception is a process that “Reconciles” the National Security requirements and Civil Liberties of a Nation. In the Indian context, we have no Lawful Interception Law in India. By Lawful Interception Law I mean a “Constitutionally Sound” Lawful Interception Law and not just any “Self Serving Law”- Praveen Dalal.

World over civil liberties are infringed using information and communication technology (ICT). In the past, Indian telecom companies have used private individuals to do phone tapping. Experts like Praveen Dalal have been suggesting enactment of a “constitutionally sound” lawful interception law in India. Till now we do not have a constitutionally sound lawful interception law in India and the same is urgently required.

On the top of it we have projects like central monitoring system (CMS), national intelligence grid (Natgrid), Aadhar, crime and criminal tracking network and systems (CCTNS), etc that are not governed by any legal framework and procedural safeguards.

We also do not have any encryption laws in India nor do we have any encryption standards in India. Further, India has a poorly drafted and decayed cyber law in the form of information technology act, 2000 that needs urgent repeal, inadequate cyber security, missing cyber forensics capabilities, inadequate critical infrastructure protection and so on.

In this background, the home ministry has asked the departments of telecommunication (DoT) and department of information technology (DIT) to examine the existing legal framework and recommend appropriate amendments of the laws to ensure smooth access to services like BlackBerry and Skype.

The home ministry has asked DoT and DIT to examine the Indian Telegraph Act 1885, Information Technology (Amendment Act), 2008, rules under the Telegraph and IT Act and provisions in the licence agreements and recommend appropriate amendments so that requirements, to the extent possible, are incorporated in the Act itself. However, India needs a dedicated lawful interception law and not just few amendments in the present outdated laws.

According to Praveen Dalal, managing partner of New Delhi base law firm Perry4Law and leading techno legal expert of India, India is the only country of the World where Phone Tapping and Interceptions are done without a Court Warrant and by Executive Branch of the Constitution of India. Phone Tapping in India is “Unconstitutional” and the Parliament of India has not thought it fit to enact a “Constitutionally Sound Law” for Phone Tappings and Lawful Interceptions. Even the Supreme Court’s directions in PUCL case have proved futile and presently the Court is dealing with the issue once more, informs Dalal.

The present action of home ministry seems to be in response to these developments that are “unconstitutional” in nature. These activities of Indian government and its agencies can be challenged in Indian higher courts as unconstitutional as violative of fundamental rights of Indians. Let us hope the Parliament of India would soon come up with a constitutionally sound lawful interception law of India.

Encryption Policy Of India

Any field that is not supported by any policy or strategy is bound to fail and encryption is one such area. We have no encryption policy of India and neither do we have encryption laws in India. It seems encryption is a concept that is beyond contemplation and understanding of Indian government.

In the name of encryption laws, we have a single and redundant provision in the cyber law of India, i.e. information technology act 2000. Further, some guidelines have been issued by the department of telecommunication (DoT) that are of ancient nature and not meeting the requirements of contemporary times.

India must deal with encryption issues as soon as possible. To start with, we must formulate good encryption policy of India. Once this is achieved, we must ensure effective encryption laws and regulations in India. Further, according to techno legal experts telecom security of India and encryption issues is also correlated.

India is compromising the Mobile Security of India and Mobile Governance in India by insisting upon a Weak Encryption Infrastructure, says Praveen Dalal, managing partner of New Delhi based law firm Perry4Law and leading techno legal expert of India. Mobile Cyber Security in India is not upto the mark and unencrypted communication would further increase the risks, claims Dalal. New Telecom Policy of India 2011 is in pipeline and it would be a good idea if Mobile Security Policy of India is also made a part of the same, suggests Dalal. The proposed Telecom Security Council of India can take this issue when constituted, suggests Dalal.

One of the reasons for weak encryption usage in India is due to fear among the intelligence agencies of India. Intelligence agencies of India are not technologically sound to crack strong encryption hence they are insisting upon weak encryption usage in India. However, India must realise that e-surveillance is not a substitute for cyber security expertise and cyber forensics capabilities.

Law enforcement and intelligence agencies of India need modernisation initiatives. Further, they must also get good quality techno legal trainings in fields like cyber law, cyber security, cyber forensics, etc. Perry4Law Techno Legal Base (PTLB) is providing world class techno legal trainings to law enforcement and intelligence agencies.

If encryption related knowledge and training is provided to law enforcement and intelligence agencies of India, they would be less skeptical to the use of encryption in India. While formulating the encryption strategy of India, these factors must also be kept in mind.