View: WhatsApp spyware scandal is a chance to fix our snooping laws
The latest controversy relates to the secret installation of spyware on the smartphones of Indian users.
The latest controversy relates to the secret installation of spyware on the smartphones of Indian users. The spyware, developed by an Israeli firm called NSO Group, included the deployment of a sophisticated tool termed as ‘Pegasus’ which could be installed with a missed call on WhatsApp. Statements by the NSO group defend the development and deployment of such spyware by stating it was sold only to agencies authorised by governments. But investigations by CitizenLab, which is based out of the Munk School at the University of Toronto, have shown that their tools have been used to target activists, journalists and human rights defenders. This begs the question as to how we ended up here even after the much celebrated Right to Privacy judgment in 2017? Before prescribing any solutions for the future, it is first necessary to take a step back.
Post-Independence India has always had a chequered history of government surveillance which has only become worse over time. The Government of India did not even craft a bare modicum of an operational standard until forced by the Supreme Court in the 1996 telephone tapping case. And even this procedure has proved to be completely ineffective to rationalise and limit surveillance powers which are concentrated with the executive branch of the central and state governments who also have the additional mandate of checking their abuse. So when these safeguards require any interception to be done on the basis of a written order that is specific and individualised and is further issued by a senior bureaucrat, it is done with absolute secrecy. Little or no information exists even after the surveillance ceases, and hence this has built a culture of impunity and abuse given a lack of any independent oversight.
The existing safeguards need drastic reform for a much more obvious reason. Crafted for an age of analog and wired phone lines, they do not account for the constant floods of personal data over our smartphones. It is for this very reason that earlier this year when several intelligence and law enforcement agencies were authorised to conduct electronic surveillance there was a massive public uproar. This led to several constitutional challenges being filed in the Supreme Court, including one by the Internet Freedom Foundation, asking for reforms such as judicial oversight.
In all this activity which has primarily focused on the role of courts, the legislature has maintained an ominous silence. There has been little to no effort to bring intelligence agencies within the ambit of legality and parliamentary supervision as is practised in most democracies. Further, even the much delayed and critiqued data protection bill does not contain provisions for surveillance reform. On the contrary, demands have been made to break encryption, which ensures a level of technical privacy and security for end users. It is not only the proliferation of technology, but the lack of legal safeguards that have bred a culture of impunity which is demonstrated in each scandal. The costs to this are not only to privacy but the growing level of distrust and cynicism which has replaced the optimism around innovation.
Taking the dangerous analogy of data as the new oil to its logical conclusion, we today run the risk of not only severe injuries resulting from pollution but also climate change. It does not have to be this way but it will require a tremendous realignment of narratives and ways of thinking which exist both within government and the private sector. To start out, while we urgently need an independent inquiry which has members who hold a high degree of credibility into the present spyware scandal, there is also a need to address long pending reforms. There is opportunity in this crisis for both the government and the private sector to do and be better for, this time the people of India are demanding answers and remedy.
Apar Gupta is a lawyer and executive director of Internet Freedom Foundation.