Was Pranab Mukherjee's Office Bugged For E-Surveillance?

Last September, finance minister Pranab Mukherjee complained that his office was bugged. Mukherjee requested the PM to order a secret inquiry into the "serious breach of security in his office" in the form of "planted adhesives" in 16 locations in a possible surveillance attempt. Though no live microphone devices were found, he had reported it to the PM. Realising the seriousness of the issue, Intelligence Bureau (IB) immediately swept into action.

However, IB found nothing wrong at Mukherjee’s office and no surveillance equipment was found. To be on the safer side, IB increased the frequency of its “technical sweeping” in high offices.

Technical sweeping is a more advanced form of surveillance detection than the ordinary surveillance detection technique. Now instead of occasional anti-bugging exercise inside finance ministry, the IB has now included this ministry in North Block as part of its regular “technical sweeping” work like what it does for its own premises and offices of the PM in South Block and home minister in North Block.

E-surveillance has become a nuisance for not only Indian citizens but also for the government itself. Private individuals have been doing e-surveillance and phone tapping in India with or without governmental orders. We have no constitutionally sound e-surveillance and phone tapping law in India. Further, even the e-surveillance policy of India is missing. We urgently need a lawful interception law in India.

There is no provision for “judicial scrutiny” of e-surveillance and “phone tapping orders in India and this is giving lots of room for private individuals and those who have no authority of law to indulge in illegal e-surveillance and phone tapping.

Indian government must urgently do something about this serious problem that has already taken a gigantic shape. A system devised by Indian government is itself proving a nuisance for it. Time has come for the Indian government to clean the mess created by itself.

Blackberry, G Mail And Skype May Not Be Banned In India

Blackberry, Gmail and Skype have been asked to provide encryption free services in India. When these companies conveyed their inability to do so, Indian government warned them of banning their services in India. Subsequently, India issued directions to telecom service providers forcing them to drop Blackberry’s services if Blackberry does not provide free and unencrypted access to its services in India.

This episode has happened because we have no lawful interception law in India, no encryption policy in India, no effective telecom policy in India, a draconian and ineffective cyber law of India that needs urgent repeal and many more such factors.

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.

While none can doubt about the National Security and Law Enforcement Requirements yet they must be “Reconciled” with Fundamental Rights of Indians, says Dalal. Further, Intelligence Infrastructure of India also needs urgent rejuvenation, suggests Dalal. Recently the Home Ministry of India 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.

DoT has now clarified its stand in this regard and it is against the proposal of discontinuing about 14 communication services that intelligence agencies cannot track currently. Further, DoT is also not in favour of imposing responsibility upon mobile phone companies to provide assistance to decrypt all the services they provide.

Keeping in mind this latest development, it can be assumed that services of Blackberry, Gmail, Skype, etc would not be banned in India for some more time.

However, Indian intelligence agencies and law enforcement agencies must concentrate upon skills development in India. Further, one thing that Indian intelligence agencies must develop on priority basis is techno legal Intelligence gathering skills development. Encrypted services in India are going to stay and law enforcement and intelligence agencies must develop skills to deal with the same in future.

CBDT Phone Tapping Powers Under Fire

Phone tapping is a very controversial and serious issue. If phone tapping is not supported by a constitutionally sound law, it amount to gross violation of basic human rights. A very common requirement for engaging in phone tapping is taking the prior permission form a court in this regard.

Although we have laws for phone tapping and e-surveillance in India yet according to techno legal experts of India none of them are constitutionally sound. Similarly, we have no constitutionally sound lawful interception law in India.

In the past the phone tapping powers have been abused in India by both Indian Government and private individuals alike. Even the contents obtained from such phone taps have been circulated in public with great disregard to the privacy rights of various individuals. The matter has been pending before the Supreme Court of India. The Supreme Court has even admitted that with the technological advancement, privacy is virtually disappearing.

There is an urgent need to formulate effective and constitutional lawful interception law in India. Lawful Interception is a process that “Reconciles” the Law Enforcement 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 the present “Self Serving Laws” of India, says Praveen Dalal, managing partner of New Delhi based Law Firm Perry4Law and leading cyber law expert of India.

The Home Ministry of India is mulling a law on lawful interception in India. Even the Telecom Policy of India 2011 may have some provisions regarding the same. In a recent development in this regard, the Prime Minister’s Office (PMO) has authorised the Home Ministry to take the final call on the contentious issue of withdrawing the CBDT’s powers of phone-tapping.

A committee headed by the Cabinet Secretary, with Secretaries of ministries concerned as members, had unanimously recommended that the CBDT be taken off the list of agencies which can file phone-tapping requests. The committee had then sent its recommendations to the PMO, which recently finalised them and routed them to the Home Ministry, the nodal ministry for authorising telephone interception.

However, these initiatives of Home Ministry may not be sufficient. India is the only country of the World where phone tapping is done without a Court Warrant and by Executive Branch of the Constitution of India, says Praveen Dalal. Phone tapping in India is “Unconstitutional” and the Parliament of India has not thought it fit to enact a “Constitutionally Sound Law” in this regard. 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.

It is clear that without a constitutionally sound lawful interception law of India, things are not going to improve in India. The earlier it is done the better it would be for the national interest of India.

Is United Nations Serious About Human Rights In Cyberspace?

Human rights protection in cyberspace is a concept whose time has come. What is most surprising is why United Nations has still not considered cyberspace as an essential part of human life. If we analyse the trend world over, technology has been increasingly used to violate civil liberties and human rights. United Nations (UN) must urgently protect human rights in cyberspace.

After all human rights like right to speech and expression, right to information, right to know, privacy rights, etc are similar in an electronic environment. Even governmental intrusions are similar, rather easier, in an electronic environment.

The world community on Human Rights must start thinking in this direction as issues like Cyber Warfare, Cyber Terrorism, Cyber Espionage, Cyber Crimes, E-Surveillance, Unlawful Interceptions, etc are “Transnational” in nature, suggest managing partner of New Delhi based law firm Perry4Law and CEO of the exclusive Cyberspace Human Rights Protection Centre of India. If different countries would have different laws for these issues, it would be very difficult to truly enforce protective provisions against these menaces, opines Dalal.

Similarly, growing use of surveillance, e-surveillance and interceptions is also challenging the human rights world over. In order to protect human rights in cyberspace, at least constitutionally sound lawful interceptions laws must be enacted. These laws must have sufficient safeguards to protect violation of civil liberties and human rights.

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 the present “Self Serving Laws” of India, says Praveen Dalal.

The problem is that there are no internationally acceptable standards that protect human rights in cyberspace. Countries world over are taking advantage of this lacuna. Even United Nations has failed to make suitable regulations and framework in this crucial field. It would be better if United Nations makes a “Harmonised Framework” for Protection of Human Rights in Cyberspace, opines Dalal.

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.

National Telecom Policy Of India

National telecom policy of India is in need of urgent rejuvenation. Talks and plans are in the process to formulate national telecom policy 2011 of India. The new telecom policy of India 2011 is expected to solve many problems from which its predecessor policy was suffering. Surrounded by various scams and controversies, the ministry of communication and information technology (MCIT) decided to formulate new telecom policy.

The national telecom policy of India 2011 is still not ready as we come across many declarations and schemes regarding the same. We usually come across new factors and constituents of the new telecom policy on regular basis. This means the telecom policy is still under deliberations and there is no final version of the same till April 2011.

The Telecom Policy of India 2011 must incorporate important matters like Spectrum Allocation, Telecom Security, Maximum Broadband Penetration, Encryption Policy, Central Monitoring System of India, etc. says Praveen Dalal, managing partner of New Delhi based law firm Perry4Law and leading techno legal expert of India. Further, issues like Lawful Interception and maintaining a “Balance” between Security Concerns and Fundamental Rights must also be a part of the same, suggests Dalal.

India is the only country of the World where phone tapping is done without a Court Warrant and by Executive Branch of the Constitution of India, says Dalal. Phone tapping in India is “Unconstitutional” and the Parliament of India has not thought it fit to enact a “Constitutionally Sound Law” in this regard. 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.

Telecom policy is a very crucial policy for India and every effort must be made by MCIT to make it as effective as possible. Of late, many good suggestions have been given by department of telecommunication (DoT) and the same would be part of the new telecom policy of India. DoT must incorporate the suggestions of as many stakeholders and experts as possible before coming up with the final draft of the telecom policy of India 2011.

Homeland Security In India

Homeland security in India is an essential part of the overall security and national security of India. Recent events such as the Mumbai terror attacks and other security concerns have forced Indian government to not only modernise the law enforcement and intelligence infrastructure of India but also to establish homeland security infrastructure in India.

However, homeland security of India needs urgent rejuvenation as the same is not up to the mark. Experts have even suggested for the establishment of a centralised ICT control system in India for this purpose.

Homeland Security is in infancy stage in India, says Praveen Dalal, Managing Partner of Perry4Law and leading techno legal expert of India. Further, India also needs a separate Framework for Cyber Security, Critical Infrastructure Protection (CIP) and Homeland Security issues, suggest Praveen Dalal.

Homeland security is also an important aspect of India’s cyber security. India is increasingly facing issues like cyber crimes, cyber terrorism, cyber security breaches, cyber warfare, cyber espionage, etc. This is the main reason why we are considering establishment of cyber warfare capabilities in India.

Further, another area that has been ignored by India pertains to lawful interception law in India. India presently has no lawful interception law and enacting a constitutionally sound law in this regard is the need of the hour.

Lawful e-surveillance capabilities have also assumed importance in India these days due to growing concerns of civil liberties protection in cyberspace. If the e-surveillance conducted by the Indian government and its agencies is beyond what is approved by the laws of India and Indian Constitution, the same may be challenged before a court of law.

Homeland security is a very tricky issue and Indian government must keep in mind all the aspects pertaining to the same. It must also maintain a delicate balance between civil liberties and national security requirements in India. Giving primacy to one over another without any balancing exercise would be counter productive for India, says Praveen Dalal.

Although homeland security issues have already been discussed in India yet they need a direction and policy support. Indian government must work in the direction of formulating a homeland security policy of India.

CMS As The Internet Kill Switch Of India

Internet censorship in India has increased tremendously and that also without a constitutionally sound lawful interception law in India. Internet censorship requires a good balance between civil liberties and law and order and national security requirements. Presently, the approach of Indian government is leaning heavily towards e-surveillance and Internet censorship without much regard to civil liberties of Indians in cyberspace.

Take the example of Internet kill switch (IKS) that has been in limelight these days. Lots of people are talking about IKS without knowing where it exists and how it can be used. The Indian equivalent of IKS can be found in the form of central monitoring system (CMS), which is a centralised mechanism that can assist in lawful interception of communications from landline, mobile and Internet. Although it can be used only if there is a lawful interception law in India yet it seems to have been tested recently without any lawful interception law in India at place.

According to Praveen Dalal, leading techno legal expert of India and managing partner of New Delhi based law firm Perry4Law, the present Cyber Law of India is incorporated in the Information Technology Act, 2000 (IT Act 2000), as amended by the Information Technology Amendment Act 2008 (IT Act 2008). It also carries provisions regarding Internet Censorship and Website Blocking but without any “Procedural Safeguards and Guidelines”. This amounts to taking away “Fundamental Rights” of Indians without Reasonable Restrictions and without prescribing any “Procedural Safeguards” to prevent use of this abusive power, says Dalal.

Recently the Blogspot domain (hosted services) and sub domain (free blogs) were systematically blocked by many of the internet service providers (ISPs) of India. Even Google did not give any reason as to the cause of this outage. Google had enough time to analyse the traffic reports and respond back yet it preferred to keep a mum due to commercial interests it has in Indian market.

This outage may be an “experimental blockage” that took place at the point where Internet traffic enters and exits India. This exercise may have different names. Some may call it an Internet kill switch whereas others may call it a centralised monitoring system. At this stage it is not the nomenclature that is important but the need to put measures and safeguards to prevent its abuse in India.

So next time when we discuss about Internet kill switch of India, we must keep in mind the central monitoring system project of Indian government. If Indian government is not committed to safeguard our civil liberties, we must use self defence measures to protect our civil liberties in cyberspace.