Do you stay in Delhi? If so, it’s time to recall all the mobile phone conversations you had with friends, family and associates. It’s time to recall the private messages and pictures you shared on WhatsApp and other social networking sites. It’s time to remember the sensitive data meant for your close associates, your lawyer or chartered accountant. If you believe that the secrets you share electronically remain between you and your partner, you are probably wrong! All this while, shadowy figures have been tracking each and every detail you shared, and they work for agencies of the Government of India itself.
Taking a cue from the United States National Investigation Agency (NSA) clandestine surveillance project PRISM, the central government has developed a Central Monitoring System (CMS) in India. The project is designed for ‘lawful interception and monitoring communication’ over phone and internet. While the government is planning to make CMS operational throughout the country by the end of this year, Delhi has been the first to get a taste of it. Documents with TEHELKA show that C-DoT (Centre for Development of Telematics), the State’s telecommunication R&D centre, proposed implementation of the CMS pilot project in Delhi in 2011-12 by two telecom service providers (TSPs). C-DoT’s Result Framework document says lab testing of the CMS was completed in financial year 2009-10. A year after, infrastructure was set up for the pilot project. Milind Deora, former MoS (Communication & IT) informed the Lok Sabha in December 2012: “Development work of the system is largely completed. Pilot project has been completed by September 30, 2011 at Delhi under which C-DoT has installed two ISF servers, one each for MTNL and Tata Communications”
Post the Mumbai terror attack of 2008, the central government felt a need for securing the internet space and keeping tabs on the flow of communication. The UPA government came up with the idea of intercepting and monitoring all platforms of e-communication and C-DoT was ordered to develop a competent mechanism, subsequently laying down the foundations of CMS. In November 2009, the Rajya Sabha was told, “The government proposes to set up a centralised system to monitor communications on mobile phones, landlines and the internet in the country. The CMS is envisaged to be implemented by DoT to strengthen the security environment.” However, neither the Congress government nor the present BJP government took pains to get parliamentary sanction for the Rs 400 crore-plus project. A blind copy of the PRISM project, CMS falls short not only on the legal front but also on its premise of curtailing civil rights by infringing the right to privacy.
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Adding to the unrestrained power of taping phone calls, there is a fogginess around checks and balances. Speaking to TEHELKA, ADG Home Affairs KS Dhatwaliya said, “National security is our priority. Government is authorised to carry such surveillance. Moreover India is not a lone case here; many other countries have a similar arrangement. The CMS will prove to be an asset for national security.”
Unfortunately, the credentials of CMS being fruitful are a big question mark. According to revelations of Edward Snowden, the NSA whistleblower who jolted the world by exposing US’s PRISM, only 1.5 percent of data collected by the clandestine surveillance project is useful for national security. The CMS project aimed at doing away with unnecessary hurdles and unwanted personnel’s involvement in the old phone-tapping process. At present, tapping is governed by the Indian Telegraph Act and IT Act.
“..All the databases with agencies are governed by statutory Acts like in income tax and others. There is no law which allows them to share it with any other state agency. Sharing of information between Income Tax, ED, CBI is per se illegal. You cannot impinge upon civil liberties without getting approval from Parliament for programmes of this nature (CMS). If at all there is a project which assaults civil liberties, irrespective of whichever government might have conceived it, it is illegal and would be challenged and struck down in an appropriate court of law..”
Manish Tewari – former I&B minister, UPA-2
Calls can be intercepted and monitored after due approval of the Home Secretary. The law also states that any TSP not adhering to the instructions given by the law enforcement agencies can be booked. The government’s argument is that CMS cuts down one step. While, as per provisions of the IT Act, any interception can be carried out for maximum period of 60 days, CMS is unrestrained.
Earlier, the authorisation for tapping a suspect’s phone was issued by the Home Secretary and was forwarded to the respective telecom operator. Sources in the National Technical Research Organisation (NTRO) informed TEHELKA that, in the earlier case chances of leakages of information and possibility of alarming the suspect were high. However, fresh amendments in unified license (access services) agreement Law Enforcement Agency (LEAs) will surpass the telecom operators as all the data and speech, i.e., text-internet communication and calls will be directly transferred to Regional Monitoring Centres (RMCs).
Telecom companies cannot challenge these amendments as they are governed by the licence agreement wherein the right to modify terms and conditions is reserved by the central government.
Under the national roll-out, as of today, two central monitoring centres at Delhi and Bengaluru and 14 out of 21 RMCs will track data from servers of all 195 locations. Interestingly, as per reports, Jammu & Kashmir has been left out. Also, Internet Service Provider (ISP) monitoring system was expected to be ready at 45 out of 50 locations by 2012 itself. This suggests our activities on the internet were already being monitored by the LEAs.
In Kharak Singh vs State of UP 1967 verdict, the Supreme Court observed:
The right to privacy is a sacred and cherished right. There must be strong, cogent and legally justifiable reasons for law enforcement agencies to interfere with this right. Even then, proper procedure must be followed as intrusion into a person’s home, professional or family life in the name of investigation or domiciliary visits without a proper basis is not permitted.
In PUCL vs Union of India, a 1997 Supreme Court verdict lay down the following guidelines regarding interception:
1. Tapping of telephones is prohibited without an authorising order from the Home Secretary, Government of India or the Home Secretary of the concerned state government
2. The order, unless it is renewed, shall cease to have authority at the end of two months from the date of issue. Though the order may be renewed, it cannot remain in operation beyond six months
3. Telephone tapping or interception of communications must be limited to the address(es) specified in the order or to address(es) likely to be used by a person specified in the order
4. All copies of the intercepted material must be destroyed soon as their retention is not necessary under the terms of Section 5 (2) of the Indian Telegraph Act, 1882