Guestpost: Privacy laws and legal interception in India

India needs to evolve comprehensive privacy laws that protect individual rights before implementing a framework for legal interception, argues Ranjeet Rane, who works with the Public Affairs team at Edelman India and is a Research Assistant at Takshashila Institution.

In my previous post, I had stressed on the need for an urgent debate between the government and citizens on privacy rights and limitations in India, given the recently implemented Centralized Monitoring System (CMS). A counter agreement being presented is that the CMS will be a better option for  the Indian citizen as it provides a legal framework for lawful interception, against the current practice of content monitoring and filtering through unregulated, ad-hoc processes involving intermediaries such as telecom companies and ISPs.

The CMS is intended to ensure that each interception request is tracked and the recorded content duly destroyed within six months as required under law.   In this post, however, I will try to present a case against the implementation of the CMS by looking at the existing provisions in the Information Technology Act 2000 (and subsequent amendments) that make an effort to address issues of privacy.

Section 72 of the Information Technology Act 2000 in its original form penalized the breaches of confidentiality and privacy of data. Essentially, the scope of the provision covered those empowered by the Act to gain access to any electronic record, book, register, correspondence, information document or other material seized for investigation. It was aimed at preventing accidental leaks of such information during the course of investigations.

This was later amended to include Section 72A to penalize “any person” (including an intermediary) who has obtained personal information while providing services under a lawful contract and discloses the personal information without consent of the person, with the intent to cause, or knowing it is likely to cause wrongful gain or wrongful loss.

When this clause is read together with Section 69B of the Act, it squarely puts the responsibility of securing personal data on the intermediary, which in this case could be a wide spectrum of actors from cyber cafes to telecom companies and ISPs. Indeed, if this Act is used to justify the implementation of CMS, it would need significant amendments to clearly identify those central and state agencies authorized to access such information. The recent case of National Technical Research Organization being at the forefront of snooping activities is still fresh in public memory.

The next set of amendments came into force by the addition Section 43A which obliges corporate bodies which possess, deal or handle any sensitive personal data to implement and maintain “reasonable security practices,” failing which they would be liable for disclosure.  The Act defines “corporate bodies” as those involved in “commercial or professional activities.”

The definitions of “sensitive personal data” and “reasonable security practices” are narrow and hence prevents courts from interpreting a contextual definition.  Most importantly, government agencies and non-profit organizations are entirely excluded from the ambit of this section.

The act further lays down the Rules for:

  • Privacy Policy
  • Collection of Information
  • Transfer of Information
  • Reasonable Security Practices and Procedures

Elaborate rules to address the points above are still only in draft phrase.

It is only in the Section 66E (Violation of Privacy) that we find privacy concerns addressed.  The euphoria doesn’t last long as this section only covers electronic voyeurism and penalizes acts of capturing, publishing and transmission of images of the “private area” of any person without their consent, “under circumstances violating the privacy” of that person.

This section falls short of acknowledging the importance of protecting personally identifiable information (name, passport number, date of birth, biometric information, etc.) and deals only with disclosure of potentially compromising photographs.

It is clear that the status of a legal framework to protect the privacy of citizens in India is inadequate. The Information Technology Act does not have any provision for penalizing government agencies for overreach. Implementing any program like the CMS in the absence of clauses on privacy, regulation and oversight over government conduct will be concerning.  Indeed,  recent media controversies point to the possibility of political misuse of new tools and resources.

The government ought to consider bringing a comprehensive Privacy Bill to the floor for debate, instead of piecemeal additions to the Information Technology Act. This Bill should ensure adequate oversight for all activities of surveillance. This oversight should be coupled with providing information in public domain about convictions happening through such monitoring.

This will not only make it mandatory for the agencies concerned to justify their actions but will also lead to more efficient results than those expected from blanket monitoring. Such a bill will seek to also limit political abuse of resources at the disposal of national security & investigation agencies.

The United Nations Declaration of Human Rights mentions under Article 12 that:

No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.

As a signatory and one of the founding nations behind the UN Human Rights Declaration, we haven’t set the kind of example in our commitment to individuals’ privacy expected from a liberal democracy like ours. The need of the hour is for India to develop adequate and effective privacy legislation based on a set of clearly defined principles. Privacy as an entitlement ought to be an end result of this comprehensive reform.

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GEOPolitics

The attack on Hamid Mir and its aftermath.

Propagandists in Pakistan move in mysterious ways their wonders to perform.  Those who once exercised creative license to ascribe any and all acts of terror in Pakistan to India’s external intelligence agency R&AW are now being labeled agents of that same agency.  Hamid Mir, senior journalist with the GEO Group, was attacked this past Saturday by unidentified persons while on his way to a special broadcast on GEO TV in Karachi.  Mr. Mir was shot six times in the abdomen and legs, but miraculously survived the attack.

In the ensuing outrage, Amir Mir, brother to Hamid and a journalist of repute himself, accused the ISI of orchestrating the attack on his brother.  GEO TV, as part of its coverage of the attack, broadcast a photograph of DG ISI Lt. Gen. Zahir ul-Islam, while Ansar Abbasi, investigative editor of the Jang Group’s English-language newspaper The News, demanded his resignation.

Big mistake.  One does not simply accuse the DG ISI on national television and get away with it.  The ISI dismissed the allegations as “baseless” (as all allegations usually are in Pakistan). Pakistan’s Defense Ministry, in its complaint against GEO TV, accuses it of bringing the ISI into disrepute and demands that Pakistan’s Electronic Media Regulatory Authority (PEMRA) cancel GEO TV’s license to broadcast.

With the PEMRA verdict still pending, GEO TV took to Twitter yesterday, indicating that its channel had been blocked by a few cable operators.  This may of course be true, but some of us may be forgiven if we suspect this to be a reenactment of the last time GEO TV claimed to have been taken off air. In that particular instance, a GEO official privately confirmed that they had “taken themselves off the air in order to blame [a] political party, and garner support for the station.”

GEO TV and Mr. Mir are now under attack from many quarters.  Rival media houses are in an all-out war.  Many of them are unable to appreciate the fact that the price one now pays for defying the Deep State is no longer censorship, it is death.  And it wouldn’t matter if it were GEO, Express or Dawn.  The rules of the game have changed.

Of course, propaganda theories of Indian involvement are never very far when hell breaks loose in Pakistan, which is always.  The Awami Muslim League’s Sheikh Rasheed, who was “detained” in the U.S. in 2012 for his links with Lashkar-e-Taiba and Hafiz Saeed, opined that the attack on Hamid Mir benefited India, which was looking to malign the Pakistani Army and ISI. Hafiz Saeed also took to Twitter to level vague and uncreative accusations at India and the U.S. 

Mr. Mir himself had been particularly distressed in the recent past at being labelled an “Indian agent.” But how things change.  It wasn’t too long ago that Mr. Mir did the bidding of higher powers in Rawalpindi and Islamabad before he managed to find his liberal conscience (though possibly not his “liberal fascist” conscience).

Indeed, he was for the ISI before he was against it.  After all, not every journalist in Pakistan gets to interview Osama bin Laden.  And that too not once, but on three occasions. But the nature of that relationship changed in 2010 when a tape surfaced of Mr. Mir allegedly conversing with the TTP’s Usman Punjabi, in which he relayed false information that may have contributed to the death of ISI official Khalid Khawaja.  The recorded conversation, still available online, also has Mr. Mir talking disparagingly about Pakistan’s persecuted Ahmedis. Quite the liberal indeed.

So where does this all end? It is hard to see how PEMRA could fly in the face of the ISI’s demands and recommend anything other than revoking GEO’s license. But in time, the brouhaha will be forgotten.  Ansar Abbasi and the GEO crew will probably show up somewhere, somehow on some national TV show in which they will proceed to eulogize the Pakistani army, thereby underscoring their hubb ul-watan (patriotic) credentials. Couple this with private undertakings to comply with the red lines now drawn and order will be restored. Licenses will be reinstated, and talk show hosts and their guests will be yelling at each other, competing for the soundbite of the day on GEO TV soon enough.

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INS Sindhuranta and beyond

The casual attitude towards India’s defense preparedness at all levels is worrying.

An incident on board Indian Navy submarine INS Sindhuratna resulted in the unfortunate deaths of two officers and injuries to several other sailors.  Navy chief Adm DK Joshi has resigned, “taking moral responsibility” for the incident.  There have been as many as four major incidents pertaining to Indian Navy submarines in as many years. In August last year, a fire onboard INS Sindhurakshak resulted in explosions causing its sinking and the deaths of 18 sailors onboard.

There are similarities between the two ill-fated submarines.  INS Sindhurakshak and Sindhuratna are diesel-powered, Sindhughosh-class submarines first introduced in 1986.  INS Sindhuratna was commissioned in 1988, while Sindhurakshak was commissioned in 1997.  Both submarines were retrofitted at the same ship yard in Russia.  In 2010, a faulty battery value on board INS Sindhurakshak is alleged to have leaked hydrogen, resulting in fire and explosion that killed one sailor and injured two others.  Reports, although preliminary, now indicate that a battery leak could have also caused yesterday’s explosion on board INS Sindhuratna.

The reasons for Wednesday’s incident could be many, including failure of the crew to follow standard operating procedures, poor maintenance, technical malfunctioning or failure due to obsolescence.  Indeed, a 2008 CAG report highlighted delays in induction and refitting of submarines and projected, at the time, that 63 percent of India’s submarines would have completed their prescribed life by 2012.  However as of 2014, continued delays in India’s Scorpene-class submarine project are further straining the Navy’s submarine force levels and the serviceability of its aging fleet.

To be clear, incidents are bound to occur in even the most sophisticated, well-maintained and well-equipped of navies.  However, what should be concern for India is the casual approach to investigation and remedial action when incidents do occur.  The Navy announced the constitution of a Board of Inquiry to investigate the August 14, 2013 incident involving INS Sindhurakshak.  It was later determined that a full inquiry could not be conducted until the submarine was salvaged.

Going by news reports, it has taken 6 months for the Navy just to identify a company to salvage the vessel.  It is expected that it will take another 4 months after a contract is signed and work commences, to retrieve the sunken submarine.  An official inquiry will commence only then.  It is unlikely, then, that we will understand what happened to INS Sindhurakshak any time before 2015.  Where, other than in India, can these delays appear to be reasonable?  And what is the Navy and the political leadership supposed to do with its other Sindhughosh-class submarines in the interim?  Ground them pending inquiry, thereby reducing the number of operational Indian submarines to a grand total of 4, or continue to operate them and risk further accidents?

It is unfortunate that, with the exception of a few media houses, these questions are not being put to the people entrusted with India’s national security.  Mainstream media coverage of Adm DK Joshi’s resignation and his apparently acrimonious relationship with Minister of Defense AK Antony has overwhelmed questions on the root causes of these incidents and the general apathy at both political and military levels with which they have been dealt.

Some former servicemen have, perhaps rightly, rallied around Adm DK Joshi on TV news channels.  No doubt, there is a chasm, deep and wide in civil-military relations in India.  These are issues that the mainstream media must follow-up on.  However, to allow subplots pertaining to personality conflicts – the honorable and upright Navy officer vs. a much-pilloried Defense Minister — to dominate issues relating to the state of defense preparedness just because the former makes good viewing is to do disservice to the country.

General elections in 2014 could, by design, address the issue of the lack of political stewardship in defense.  A mere change in political leadership, however, cannot guarantee that we will be any closer to identifying or resolving the issues plaguing our submarine fleet.  What happens when these issues resurface, then? Lather, rinse, repeat?

 

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Urdunama: Jaish-e-Mohammed

Pakistan’s Dawn reported on January 27 that Maulana Masood Azhar, founder of the terrorist group, Jaish-e-Mohammed, held a rally in Pakistan Occupied Kashmir, where he criticized India of “killing Kashmiri Muslims” and warned India of “dreaded revenge” for its execution of Afzal Guru.   This was Masood Azhar’s first public rally in years after Pakistan ostensibly banned Jaish-e-Mohammed, first  after the 2001 attacks on the Indian Parliament and subsequently after the 26/11 attacks in Mumbai in 2008.

However, while this may have been his first major public rally since 2008, Masood Azhar appears to have been reactivated as far back as at least 2011, per a report in the Islam Times.  Masood Azhar’s return to his headquarters in Bahawalpur and  the resumption of terror training camps had the blessings of the Pakistani establishment.

Azhar’s resurfacing should give pause to those who believe that Pakistan, after the recent transitions in political and military leadership and very public debates on terrorist groups targeting the state, was any closer to reining in its terrorist assets targeting India.  Exerpts of the September 2011 article in the Islam Times follow:

When India, in December 2008 declared Maulana Masood Azhar, Dawood Ibrahim and Hafiz Saeed as wanted men, Pakistan was forced to ban the Jaish-e-Mohammed.  Under pressure from Islamabad, Masood Azhar moved out of his Model Town headquarters in Bahawalpur –where hundreds of fighters were being trained — and relocated to South Waziristan.

Islam Times’ military source now reports that Masood Azhar has returned his Bahawalpur headquarters and resumed the training of militants there.  Masood Azhar also openly operates madrasas where hundreds of children are being instructed in new interpretations of Islam.

According to our source, Masood Azhar is constructing bunkers and tunnels similar to those that existed  in the madrasas of Lal Masjid and Jamia Hafza before they are destroyed by Pakistani military action in 2007.   Masood Azhar has been granted permission by the Pakistani establishment to resume his activities in Bahawalpur.

Masood Azhar’s associate Rashid Rauf escaped while under trail in Pakistan and ended up in Europe.  After flying to London in August 2007, he was involved in a failed attempt to blow up a trans-Atlantic flight.  It is alleged that Rashid Rauf was killed in a drone attack in North Waziristan in November 2008.

Pakistan’s senior security officers indicate that Jaish-e-Mohammed has ties with al-Qaeeda, the Taliban and the Haqqani Network and is working with these outfits to target kaafirs (presumably U.S. and NATO troops) along the Pakistan-Afghanistan border.  After being released by India (as part of a swap for hostages aboard a hijacked IC-814 flight) in 1999, Masood Azhar organized a rally in Karachi with over 10,000 participants and declared that Muslims will not rest until India and the U.S. were dismembered and destroyed.

When the trajectory of talks between India and Pakistan slowed in 2007, Jaish-e-Mohammed lauched many successful attacks in “Occupied Kashmir” under the leadership of Mufti Abdul Rauf, Masood Azhar’s younger brother.  Mufti Abdul Rauf was subsequently also given facilities in Rawalpindi to train terrorist organizations from South Punjab.

Jaish-e-Mohammed has the support of many prominent Deoband organizations in Pakistan, including Jamia Binori’s Mufti Nizamuddin and Sipah-e-Sahaba’s Yusuf Ludhianvi.  British intelligence agencies investigating the 2005 terrorist attack in London indicate that two of the suicide bombers were known associates of Jaish-e-Mohammed’s Faisalabad trainer Osama Nazir.  [اسلام ٹائمز]

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