Pegasus & Cyber Surveillance

Syllabus: General Studies Paper 2

Context:

The revelations about the misuse of Pegasus spyware have shaken the world and India has also felt its reverberations. There has not been any investigation on the matter and also a parliament session was allowed to be washed away as discussion on the issue was denied. The issue resembles the Watergate scandal in the 1970s which brought down US President, Richard Nixon.

PEGASUS

About Pegasus

• NSO Group, an Israeli cyber security firm founded spyware called Pegasus in 2010
• Founders of NSO group arr from Unit 8200, elite defence force of Israel. It is probably the foremost technical intelligence agency and also Israel’s largest military unit
• Any iOS or Android device can be hacked and a variety of data can be stolen from the infected devices using the spyware
• An exploit link is sent to the target user and if the user clicks on the link the code or  malware gets installed in the phone which allows complete surveillance

Pegasus in 2019

• The use of Pegasus to target journalists and human rights activists was confirmed by Facebook’s WhatsApp in India
• There was an allegation of the target of around 1400 WhatsApp users Pegasus by NSO group
• Human rights activists , lawyers working in tribal areas, an  Elgar Parishad case accused, Bhima Koregaon case lawyer etc were some of those who were targeted in India

NEED OF SURVEILLANCE

Surveillance state- when all actions, locations etc of citizens are surveilled legally by the state to prevent crimes and to solve the cases at a faster pace 

To prevent organized crime – there has been increasing use of media to facilitate organised crime, provocation of extremism, money laundering etc 

Combat Terrorism- Surveillance can help in getting prior information about terrorist activities and thus help to counter the potential terror attacks 

Misinformation by Fake News- There have been many incidents of riots, mob lynching due to the spread of odd fake messages across social media platforms

LAWS FOR SURVEILLANCE IN INDIA

Telegraph Act (1885)

• It allows interception of calls related to a telephonic conversation
• Section 5(2)  of the act allows central and state agencies to  intercept electronic communication in case of any public emergency or to ensure public safety
• According to law, the device can be put under surveillance if officials are satisfied that it is necessary to do so so to maintain sovereignty and integrity of the country, security of the state, friendly relation with other countries, public order or prevention of incitement to an offence

Indian Telegraph Rules

• Officers who can order surveillance of messages are identified under Rule 419 A of Telegraph Rules
• Directions of interception can be passed by the secretary to the government of India in the Ministry of Home affairs
• At the state level, an officer of secretary-level who has in charge of the home department can pass such orders
• Officer rank of joint secretary duly authorised by union home secretary or state home secretary can under unavailable circumstances issue directions under the rules

Information Technology Act (2000)

• Section 69 of IT Act and IT Rules, 2009 deals with surveillance of all electronic communications 
• Interception, monitoring and decryption of information through any computer resource including mobile phones is authorised to agencies under these provisions
• According to Section 69 of IT Act -sovereignty and integrity of the country, defence of India, security of State, friendly relations with other countries, public order, prevention of incitement to any cognizable offence, investigation of any offence are grounds for which interception can be done by the government agencies

Indian Post Office Act (1898)

• Central and state governments have the power to intercept postal articles for the maintenance of public safety as well as in cases of public emergency.

CONCERNS ASSOCIATED WITH STATE SURVEILLANCE

Freedom of the press- 

• World press freedom index (2021) by Reporters without Borders has ranked India 142 out of 180 countries
• There is an atmosphere of distrust because the safety of journalists as well as their sources are threatened

The chilling effect on the right to Freedom of Speech 

• Surveillance can hamper the vital public watchdog role of the press which would undermine its ability to provide accurate and reliable information

Right to privacy

• Puttaswamy judgement in 2017 has made the right to privacy sacrosanct and it forms an intrinsic part of the right to life and personal liberty under Article 21 of the Indian constitution
• The supreme court also reasoned that there is a positive application on the state to protect the privacy of individuals

Lack of oversight mechanism

• The power goes into the hands of the executive due to a lack of parliamentary or judicial oversight, the disproportionate use of power may lead to the spread of authoritarianism
• A review by a three-member committee consisting of a cabinet secretary and two other bureaucrats is the only safeguard mechanism against misuse

Violation of Articles 32 and 226

• Since there is secrecy involved in surveillance citizens are not able to show their breach of rights hence Article 32 and 226 which empowers the Supreme Court and High Court to issue writs is taken away.

WAY FORWARD

Role of the judiciary- to ensure that due process of law is followed judiciary has to play the role of an oversight mechanism where it can decide the proportionality of cases of surveillance and if alternatives to that are available.

Fine Balance – there needs to be a balance between the objectives of the Government and the rights of the individuals.

Both securities of the nation and fundamental rights granted to the citizens are essentials for a country to work a fine balance between them is the need of the hour

Data protection law- a strong data protection law ensuring the right to privacy surveillance protection and unauthorised data collection is of grave importance in this digital era

The Hindu Link:

https://www.thehindu.com/opinion/lead/pegasus-inquiry-must-reverse-the-chilling-effect/article37511279.ece

Question:

Recently Pegasus spyware has shaken the world, in this context describe Pegasus spyware And how it is against fundamental Right Article 21 of the constitution?