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Governments have always snooped in the name of national security

Earlier in January 2006, then politician Amar Singh had moved the Supreme Court crying foul that his telephones were being snooped upon by government agencies. The SC barred the media from publishing any leaks from the so-called telephone intercep...

Nov 04, 2019, 12.23 PM IST
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(This story originally appeared in on Nov 04, 2019)
From time immemorial, spying and snooping have been powerful tools. Even in democracies, those in power have used it, selectively and also brazenly, to pulverize competitors within their own party and against opponents by making public discomfiting details of secretly recorded private acts or conversations.

In January 2006, then powerful politician Amar Singh had moved the Supreme Court crying foul that his telephones were being snooped upon by government agencies.

The SC had barred the media from publishing any leaks from the so-called telephone intercepts. In 2011, the SC dismissed the petition saying Singh had not come to the court with clean hands as he had suppressed several vital facts.

No one felt threatened by the then government’s action to snoop on a politician’s telephone. Probably, most privacy activists and politicians privately rejoiced at Singh’s telephones being intercepted and awaited possible titillating leaks from intercepting agencies.

In August 2008, the Congress-led UPA government authorised the tax department to intercept corporate lobbyist Nira Radia’s telephones for a period of 120 days, which was extended by another 120 days in May 2009. Portions of the Radia tapes were leaked to the media.

These gave a glimpse of the lobbyist’s reach in politics, industry, high society, legal field and journalism. Leak of the tapes coincided with disclosures of the 2G spectrum scam and this strengthened the perception of ‘crony capitalism’ and fixing of government decisions.

Stung by revelation of his conversations with Radia, then Tata Group chairman Ratan Tata moved the SC blaming intercepting agencies for leaking the Radia tapes and sought a ban on publication of the contents, pleading that it violated his right to privacy.

But an NGO, ‘Centre for Public Interest Litigation’, joined issue with Tata and sought a direction that all conversations in the Radia tapes be made public except those which were purely personal in nature.

The SC is yet to render a judgment on Tata’s petition, which has been pending since May 2010. When the court eventually decides this petition, it will confront a clash between right to privacy, which a nine-judge bench in K S Puttaswamy case ruled to be a fundamental right and part of right to life guaranteed under Article 21 of the Constitution, and the right to information guaranteed under Article 19 as well as the RTI Act.

The Radia tapes showed how journalists, who pontificate on everything, could be pliant when in the company of powerful politicians, socialites and lobbyists. A top national TV anchor was heard on the tapes attempting to play a political diva’s role in distribution of portfolios in the Manmohan Singh cabinet after UPA was re-elected in 2009.

Another seasoned journalist was heard rather uncomfortably pleading with Radia to introduce his colleague, a woman journalist, into the lobbyist’s elite social circle that would help better her already fascinating curriculum vitae.

But the question remains – why did the intercepting agency not destroy Radia’s private conversations with numerous other illustrious personalities who had nothing to do with any dubious transaction or deal? If the agencies did not, then it was surely their duty to keep them in safe custody.

Now, copies of all the 5,851 telephone intercepts of Radia, with their transcripts, are safely stored in the SC registry. Will it be made public some day when the court decides Tata’s petition?

After the Radia tape controversy, the government in 2012 put in place the ‘Lawful Interception and Monitoring’ (LIM) mechanism. In 2013, the same government proposed creation of a National Cyber Coordination Centre (NCCC), mandated to “collect, integrate and scan (internet) traffic data from different gateway routers of major internet service providers at a centralised location for analysis”.

All top government spy and technical agencies were made part of the proposed NCCC, which will give law enforcing agencies direct access to all internet accounts, be it your emails, blogs or social networking data. No rights activist perceived it as a threat to right to privacy.

On January 25 this year, the SC entertained a PIL by ‘People’s Union for Civil Liberties’ seeking judicial overview of the existing surveillance mechanism to ensure protection of citizens’ right to privacy. Citing data collected through RTI Act, the petitioner said, “In 2013 (during UPA regime), up to 9,000 orders for interception of phone calls were issued and in addition, about 500 orders were issued every month for interception of emails.”

It requested the SC to quash Section 5(2) of the Telegraph Act, Section 69 of the IT Act and Information Technology (Procedure for Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009, passed under Section 69 of the IT Act.

Now, the WhatsApp revelation about spyware Pegasus snooping on politicians, rights activists, lawyers and journalists has brought us back to the Radia tape days. It is an enigma why the NDA government, which has sought a response from WhatsApp, has not come out with a categorical statement that it never used or authorised the use of this spyware by any of its agencies.

Will CPIL or PUCL file a PIL in the SC seeking details from WhatsApp for making public the conversations and text messages which were snooped upon by the spyware, as they did in Radia controversy?

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