Pegasus scandal shows how lawless India’s ‘lawful interception’ has become

Many democracies understand the need for lawful surveillance against serious crimes. Few provide the executive such sweeping powers like India does.

Illustration: Soham Sen/ThePrint

At once unconstitutional, ungenerous and un-English,” raged the London Times in summer of 1844, as the world’s first great surveillance scandal exploded inside the halls of parliament. Earlier that year, the Italian nationalist Giuseppe Mazzini and member of parliament Thomas Dunscombe, suspecting their mail was being intercepted,  began planting small grains of poppy and sand to trap the spies. They were right: secret orders had been issued by the home secretary for Mazzini’s post to “be abstracted from the mailbags, taken to the Inner Room, opened and copied”.

Even though Mazzini might be “the most worthless and the most vicious creature in the world,” the Times argued, “this is no reason in itself why his letters should be detained and opened.”

Last week, fresh evidence emerged that Israel’s NSO had sold India Pegasus surveillance technology—technology The Wire revealed was used to spy on political opponents and journalists. The media debate has largely centred around the intrusive abilities and potential abuse of Pegasus, which gives governments access to private digital data.

For Indians, though, there ought be a much bigger issue than abuse: The State’s power to engage in surveillance against its own citizens is, unlike in most democracies, exercised with neither judicial oversight nor redress. Like the United Kingdom had learned more than a century and a half ago, the unchecked power to conduct what’s called ‘lawful interception’ now constitutes a real threat to democracy.

The lawlessness of lawful interception

The power to intercept the digital communications of Indians—mobiles, computers, stored data—is assigned, by the rules of the Information Technology Act, to the Union home secretary, or the home secretaries of states and union territories. In certain situations, like an ongoing counter-terrorism operation, an inspector-general of police or a joint secretary to the government, may issue emergency orders. A committee is in place to review these orders, but it has no judicial representation.

In essence, these rules mean that the executive alone decides whether the case for conducting electronic surveillance is compelling, if the results justify continued use, and when disclosure to a judicial authority should take place. The executive, thus, judges its own actions.

Like India, many democracies understand the need for lawful surveillance against serious crimes. Few, though, provide the executive such sweeping powers. The United Kingdom’s laws allow the secretary of state—equivalent to India’s home minister—to authorise nine agencies to conduct lawful interception. But they also prescribe an elaborate system of safeguards, including an independent review tribunal, which includes judges and lawyers.

The United States requires police to secure a warrant from a judge before conducting surveillance against a citizen, who must subject their application to a high threshold of necessity. France and Germany, likewise, need authorisation from a judicial magistrate.

The seduction of unlawful surveillance

For generations now, Indians have known governments use surveillance in ways that subvert the values which bind together the republic—drawing on colonial-era practices and laws. In 1963, former Tripura director general of police K.S. Subramanian has recorded, the Intelligence Bureau ordered the Gujarat Police to initiate wiretaps targeting the centre-right Swatantra Party. Chief Minister Balwantrai Mehta demurred. The Union Home Minister replied that persons “who habitually opposed the policies of the government” had to be kept under watch.

Little documentation on domestic intelligence operations has  been declassified, but surveillance operations against political targets are believed to have expanded dramatically in the 1970s, under Prime Minister Indira Gandhi.

Following the Emergency of 1975-1977, the LP Singh Committee was set up to investigate allegations against the intelligence services. Its findings—never made public—are believed to have acknowledged abuses took place, but assigned neither responsibility nor measures for reform.

The decades since have seen a dismal procession of scandals. In 2013, then-Defence Minister A.K. Antony’s offices were alleged to have been subjected to electronic surveillance; in 2018, famously, evidence surfaced that senior officials in the Central Bureau of Investigation (CBI) had wiretapped each other. Now-Union Home Minister Amit Shah was alleged—though never proved—to have authorised wiretaps against a Gujarat woman in 2013; multiple states are believed to have purchased interception systems for political use.

Imagination is not needed to understand why such technologies are so seductive to governments. The agency—or agencies—which used Pegasus against journalists likely knew there was little of national security importance to be gathered from the exercise; in the event they did not, they would have learned so in short order. Instead, interception offers a tool with which to gather gossip on affairs, financial problems, and personal grievances: In short, the stuff of character-assassination and blackmail.

The problem in India is compounded by the fact that neither of the two major intelligence services—the Intelligence Bureau, and the Research and Analysis Wing—is governed by legislation. As a result, the Intelligence Bureau has historically spent a large part of its resources on tasks with no conceivable national-security bearing, like monitoring political parties and bureaucrats. Indeed, officers have perverse incentives to engage in these activities, to feed their politician-consumers.

Former union minister and Congress leader Manish Tewari, for several years, sought to push a private member’s bill seeking a legal framework for the intelligence services, noting that it would both ensure accountability for abuses of power and push them to focus on their core national security tasks. Even his own party, revealingly, showed little interest.

Ensuring checks on power

Ever since the time of Queen Anne, monarch of Britain from 1702-1714, the crown had enjoyed the right to intercept the communication of its ‘subjects’—and the Mazzini scandal did little to persuade it to give up its powers. In 1959, the interception of phone calls between lawyer Patrick Marrinan and his client led to the appointment of an official investigation; in 1984, antique dealer James Malone moved court after it was found that the police had accidentally taped his phone conversations.

For decades, though, the United Kingdom’s governments dug in their heels—until the European Court of Human Rights finally forced reform on the country’s political leadership.

In the 1960s, the United States’ National Security Agency (NSA) spied on civil rights leaders like Martin Luther King Jr, the actress Jane Fonda, and even the writer of children’s poetry, Benjamin Spock—all this, in a deluded hunt for traitors and subversives. A pathbreaking Congressional investigation of these abuses presciently warned that an unregulated intelligence service might “turn its awesome technology against domestic communications”.

Efforts to restrict interception technologies, like railing against the rising tide, are fated to failure. Nation-states have a legitimate interest in tearing the shroud of their enemies’ secrets. Listening stations run by the Five Eyes—the United States, United Kingdom,  Canada, Australia, and New Zealand—have sucked up and decrypted communication from around the world since the 1970s. Ever since 1993, based on the testimony of whistleblower Fred Stock, it’s been known that the system, code-named Echelon, spied on friends and foes alike.

Firms like HackingTeam, FinFisher, Lokd, and Zerodium offer much the same technology as NSO, moreover—and the intelligence services of countries like China, the United States and the United Kingdom likely have their own, in-house technologies.

Technical evidence suggesting at least some of the Bhima Koregaon case was planted on suspects—using a relatively crude and unsophisticated malware called Netwire—shows what happens when intelligence services operate unregulated and without accountability. Pegasus, and other technologies to come, make it clear that our spies must be bound by law.

The author tweets @praveenswami. Views are personal. 

(Edited by Prashant)