- Sriyansh Mohanty
Considering the immense credibility that the New York Times carries as far as critical disclosures are concerned, it's important to not just understand what the Pegasus revelations are but also to analyze how it impacts the private space of individuals.
A government that has access to your personal information is powerful enough to control the narrative, navigate your actions, keep track with whom you converse and use different surveillance techniques for political purposes and whatnot. The recent New York Times revelations concerning Pegasus has brought us to a climacteric where we need to comprehend what this is, and why you and I should be bothered after such disclosures Project Pegasus or Pegasus spyware as it's commonly referred to, is by the Israeli firm NSO group. It's one of the most preferred surveillance tools used by governments around the world. Irrespective of you using an Android/iOS smartphone, this spyware can easily sabotage your phone and act as a surveillance tool. What's more interesting, rather the defence of the NSO group is that it only sells this spyware to vetted governments, law enforcement agencies and intelligence agencies of the country they are dealing with. It doesn't sell it to private companies or individuals. Digital forensics concerning Pegasus give us a basic indication that there have been cases of targeted surveillance, basically against those who are critical of the government. And there should be no surprises by the government's response in this regard. They didn't shy away from rejecting the earlier allegations if they've used Pegasus spyware on its citizens. The GOI claims that they have always followed the way of lawful surveillance in the due process of law. The veracity of this stands under huge scrutiny after NYT's Pegasus revelations.
An old trick in a new bottle
Surveillance is the new weapon that someway exemplifies one's strength. The earlier versions of Pegasus like surveillance tools had to follow a social engineering technology that worked like bait which will kind of force you to click on it. It could be in the form of a message/email. Right now, with the advancement of technology and software mechanisms, it is capable of engineering zero-click attacks, which requires no user action. It could be operated from any place in the world without the user even knowing anything. It gives data control of the user's messages, call logs, camera, microphone, and the spyware is well competent in downloading any document or installing any kind of falsified evidence it wishes to place in the phone. This is just another form of espionage. A tool of surveillance like Pegasus could also be used for manipulation by planting false evidence in their supposed Targets' phones, something that was evident in Bhima Koregaon investigation.
If we are to examine State surveillance in general, we need to analyse the upfront debate of National Security versus the Right to free speech/liberty/privacy (which primarily constitutes Article 19 and 21). Such a collision is always termed as a breach of the basic fundamental rights guaranteed to the citizen.
The permission that enables surveillance
Under Section 5 of the Indian Telegraph Act of 1885, the state can do lawful interception of telephones and Section 69 of the Information Technology Act (IT Act) of 2000 allows the state to carry out interception using computer resources. Now both the provisions mentioned have to undergo the due process of law. As per earlier reports, the ones targetted for surveillance included ministers, opposition leaders, journalists, the legal community, businessmen, government officials, scientists, members from the judiciary, rights activists, etc. The process of surveillance in India is generally clandestine and opaque as interception orders are approved by the Union Home Secretary. Even if we assume for a moment that the GOI didn't use Pegasus for surveillance, that doesn't erase the fact that these provisions offered by the Indian Telegraph Act and IT Act are disturbing. Section 69 of the IT Act and the Interception Rules of 2009 are very much murkier than the Telegraph Act and offer very little protection to the one getting surveilled. That being said, there's no such provision that allows the government to hack into the phones of its citizenry since the hacking of computer resources, including mobile phones and applications is considered a criminal offence under the IT act.
In any functional democracy, Prime Minister Narendra Modi would have been charged with treason. Luckily for him, it’s India. There is a grave concern among the educationally sound individuals who tend to understand the case of infringement of privacy in the modern world. Apart from impacting an individual's right to privacy, it also puts constraints on the exercise of freedom of speech and personal liberty under Articles 19 and 21 of the Indian Constitution respectively. This further worries an individual in merely checking his/her email, something that has become a necessity in recent times. This further prevents one from reading and exchanging nonconformist and contentious ideas. If a citizen gets to know that his/her email or call is being watched over or tracked by the government, imagine the fear in even sharing certain ideas about things, be it about work or merely having an opinion regarding a government policy. This impacts an individual's ability to express his/her idea or mere opinion about something. In a way, we are stripping them off their basic inquisitive skills. Surveillance brings about a big threat to press freedom as it greatly impacts the right to privacy and free speech of journalists. In Dec 2021, the Chief Justice of India NV Ramana while speaking at a book launch, pointed out the vanishing concept of investigative journalism in present times. With journalists under surveillance, investigative journalism may look like a far fetched dream at this juncture. There has also been a considerable lack of oversight both from the parliament and the judiciary regarding the surveillance activities undertaken by the government. It violates not only the ideals of due process but also goes against the requirement of procedural safeguards as mandated in the K.S.Puttaswamy judgement(2017). The government even has its way of dealing with Right to Information (RTI) requests concerning surveillance. As apparent since 2014, the government's best shield is to cite National Security for pushing its regressive policies. The kind of surveillance that we've been mentioning till now, is generally done by the executive branch of the government which curtails Article 32 and 226 of the Constitution (provisions empowering the SC and HC to issue certain writs) as such executive authorized surveillance happens in a classified manner. Apart from all these issues, there's an even bigger threat posed by technological advancements. With increasing affordability and accessibility of spyware and heightening sophistication in their modus operandi, there's a considerable risk that looms over the citizenry as far as they being put under surveillance in future is concerned.
Surveillance as a threat
There's a big threat attached to excessive surveillance because of the technological capacity that the intelligence agencies have provided the government with, something that carries every potential in imposing absolute tyranny. However, a small amount of surveillance is crucial for national security and to prevent terrorist activities from taking place. Excess and arbitrary surveillance should worry all of us as it is very much destructive in hampering the privacy of individuals, freedom of thought, of speech, and has a chilling effect on people's behaviour. It goes against the Rule of Law. In the current scenario of Pegasus, one cannot help but realise that the surveillance powers have been misused for personal and political gain only to harm the opponents and have nothing to do with National Security or tackling Organised Crime.
Intelligence agencies and their programmes have been established under the executive orders of the government and not by any law, so there's no such parliamentary supervision, hence zero accountability. Post-K.S. Puttaswamy judgement (2017), most of India's intelligence agencies are potentially unconstitutional i.e. not constituted under any statute passed by the parliament, with the National Intelligence Agency being the only exception. But if we compare the same thing with countries like the United Kingdom and the United States of America, we find a very contrasting image, despite the USA running one of the strongest coordinated intelligence networks around the world. In the UK, the MI5 (Security Service) and the Mi6 (Secret Intelligence Service) are very much accountable to the British Parliament. Similarly, the Central Intelligence Agency (CIA) and National Security Agency (NSA) in the US are answerable to their Senate and House of Representatives. However, there's no such accountability in the Indian context.
But, it's wrong on our part to ignore the few measures that were taken by the GOI in bridging the accountability aspect as far as surveillance is concerned. In 2010, the then VP of India, Hamid Ansari had proposed a legal basis for effective and accountable functioning of our intelligence agencies, in a way recommended the creation of a Parliamentary Standing Committee whose work would be to exert oversight powers over intelligence agencies. In 2011, the Cabinet Secretary had questioned about the interception powers being given to the Central Board of Direct Taxes (CBDT). Parliamentarian from the INC Manish Tewari had also introduced a Private Member's Bill to bring in a certain legal framework for intelligence agencies. It however got lapsed. Even in 2013, the Institute for Defence and Strategic Studies (IDSA), a government-funded think tank had published a report based on intelligence reforms where the priority was given to legal framework and parliamentary oversight. The INC as a national party went on to call for parliamentary oversight of intelligence agencies in its 2019 election manifesto, a first of its kind.
Dealing with a messed up thing
Spyware like Pegasus can potentially hamper relations between countries as well, no matter how much bilateral talks may have taken place. Hence there's a need for international regulation of the sale of tools like the Pegasus spyware. There's a necessity to reform the intelligence and surveillance system in India by making it more accountable. Intelligence agencies need to be brought under parliamentary oversight and scrutiny. The gathering of intelligence needs to be done proficiently and in a non-partisan way. Essential measures must be taken to ensure that civil liberties and rule of law are protected and balanced against the need for surveillance activities in the national interest.
The Supreme Court had earlier formed a committee whose work is to look into the allegations of unauthorised surveillance using Pegasus. The final report of the committee is expected to be out in a couple of weeks, as the nation and its citizenry await what could be considered as a watergate moment for India.
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