India ′snooping′ order leaves citizens exposed to surveillance | Asia| An in-depth look at news from across the continent | DW | 17.01.2019
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India 'snooping' order leaves citizens exposed to surveillance

The Indian government has recently passed an order that allows intelligence agencies to access data stored on computers anywhere in the country. A petition filed in the Supreme Court is opposing the move.

In December, India's interior ministry passed an order authorizing 10 intelligence agencies to intercept and decrypt any data stored on any computer in the country. The agencies include India's internal watchdog, the Central Bureau of Investigation (CBI), New Delhi Police, and the external spy agency, Research Analysis Wing (RAW).

The order was executed as part of section 69 of the Indian Information Technology Act 2000 (IT Act), which deals with "the power to issue directions for interception, monitoring or decryption of any information through any computer source."

Under the order, surveillance groups will have the authority to examine any information "received or stored on any computer." While the agencies have carte blanche to examine any suspicious person's computer, suspects will also have to cooperate with an investigation. Failure to do so could result in a seven-year jail sentence. 

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Rohini Lakshane, director of research at the Bachchao Project, a women's rights NGO working to promote open-source technologies, told DW that India's Interior Ministry published a statement following the order.

According to Lakshane, the statement said that "no new powers" have been conferred on any of the security or law enforcement agencies in question since the IT Act was passed in 2000.

Read more: Concern grows at Indian 'cyber snooping agency'

The clarification also stated that these agencies require the approval of the Union Home Secretary, the highest-ranking bureaucrat in the Interior Ministry, and a review committee comprising several senior officials and central government representatives.

"The surveillance of telecommunications is more pervasive than accounted for," Lakshane told DW, adding that the use of the phrase "computer resource" in the IT Act could include "most smartphones and semi-smartphones."

The right to privacy

Soon after the order was passed on December 20, lawyers Manohar Lal Sharma, Shreya Singhal and the NGO, Internet Freedom Foundation, filed a petition contesting its legality. 

The petition is an attempt to annul the order, arguing that the "blanket surveillance order must be tested against the fundamental right to privacy."

Meanwhile, India's Supreme Court has issued a notice to the government, which must respond to the petition's claims within six weeks.

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Lawyer Shreya Singhal told DW that the wording "and any other offence" in section 69 is problematic, as it "could mean any petty crime, even a traffic violation," adding that something so small could lead to a person being surveilled by state agencies.

Rohini Lakshane Bloggerin aus Indien Bobs Jurymitglied (cc-by-sa-3.0/Rohini)Rohini Lakshane, Director (Emerging Research), Bachao Project

Activist Lakshane says India lacks a comprehensive law on data and informational privacy

"Our reasoning for challenging it [the government order] is that it violates fundamental rights as enshrined by the Indian constitution and protected by the courts," she said, citing Article 19 of the Indian constitution protecting free speech, and Article 21, which protects the right to privacy. 

Concerning the order's impact on the average citizen, internet activist Lakshane said there "is fear that the order will allow the government to abuse its power through surveillance agencies." 

"In the absence of legal safeguards against illegal surveillance, the free speech of an average citizen could be compromised. Surveillance without safeguards for citizens is detrimental to democracy," Lakshane added.

Counter-productive?

Affordable mobile phones and low data tariffs have contributed to the rise in internet use in India. The government has also been pushing for a "Digital India plan" and a "cashless economy." These initiatives may suffer if people are afraid of being monitored, Lakshane said.

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Lawyer Shreya Singhal said that Indian citizens are unprotected from such orders and have no option other than filing a petition, also known as a Public Interest Litigation (PIL).

Lakshane added that India's Supreme Court recognized the right to privacy as a fundamental right in 2017. However, she said that the country still lacks a comprehensive law on data and information privacy.

Recently, Indian journalist Saikat Datta used the Right to Information Act to ask how many phones are being tapped by the Ministry of Home Affairs (MHA).

Other activists have also raised concerns about spy agencies snooping on citizens' computers. In 2013, an official response to a right to information query by activist Prosenjit Mondal revealed that around 7,500-9,000 e-mails had been intercepted by the former ruling coalition headed by the Congress party.

India's current government, led by Prime Minister Narendra Modi of the BJP, has also been severely criticized for monitoring citizens' social media accounts and arresting suspects on charges of sedition.

Read more: Security leaks trouble India's ambitious ID scheme

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