Pegasus Controversy: How To Get An Independent Investigation

Over July 18 and 19, a consortium of global media organisations published investigative reports that said Israeli company NSO Group’s Pegasus spyware was used to target phones of a wide array of public figures worldwide. More than 50,000 numbers were possible targets for surveillance by governments using Pegasus.

These reports prompted a furore in India on Monday, where the Narendra Modi government was accused of drawing up surveillance plans on political leaders, constitutional authorities, journalists, and activists.

Speaking in Parliament, newly-installed Minister for Information Technology Ashwini Vaishnaw, whose name, too, reportedly appeared on the list, denied any illegal surveillance attempts by the government.

BloombergQuint spoke with experts on India’s technology laws and intelligence systems about the way toward an independent investigation on the matter and the surveillance framework.

‘Such Surveillance Is Illegal On Many Counts’

Karuna Nundy – Advocate, Supreme Court

The Pegasus spyware hasn’t enabled legal surveillance, if the reportage is correct. A lot of people believe that it is legal — that it is bad law but legal. Government may intercept , monitor, or decrypt communication under the Telegraph Act or Section 69 of the Information Technology Act, and approval may be given to do so if — at the lowest threshold — an offence is being investigated. So there has to have been an offence committed.

There, however, is a distinction to be drawn when you are spying on leaders of the opposition, a Supreme Court judge, the person that the then Chief Justice of India allegedly sexually harassed, and an Election Commissioner where there is no First Information Report or the faintest whiff of illegality.

This kind of espionage would benefit the ruling party and not the government. Here, the ruling party is using government apparatus for its own goals, which are not governmental goals. Where is the national security angle here, where is the crime being investigated? Unless, they come up with this after the fact, which is something that the ruling party has been known to do, ‘international conspiracies’ abound when they are criticised if never proven. So, let’s not rule that out, we’ve seen people go to jail for many years based on concocted allegations.

The illegal purpose of the surveillance would be one type of illegality. That government apparatus is being used for a political party, and the fact that this collusion to hack is political and not governmental is the second illegality. The third illegality is that you can intercept communication but you can’t hack a phone, contrary to Section 43 of the IT Act, even if you are government.

Obviously, the ramifications of this are massive. You are using criminal techniques in order to win elections, and suborning citizens’ apparatus paid for by their own money to win elections. When you are potentially covering up for and assisting the Master of the Roster of the Supreme Court, we know that he’s been subsequently appointed as a Rajya Sabha member of Parliament. What is the quid pro quo there?

It appears that through various criminal means what is being done is with regard to theft of data, hacking, etc., this is basically a subversion of the entire democratic and justice machinery in order to serve one political party.

Unfortunately, what has become clear is that various elements of the rule of law and the separation of powers have been potentially coopted.

Nowadays our phone has part of our minds, our hearts, our most intimate thoughts, it’s an extension of who we are. Everyone has something that they don’t want someone else to know about. If you are whispering things to your lover, you don’t want the world to know about it. Or you may be ill and may want to protect your child from news of your impending death. There are legally privileged conversations, proprietary information too that you’d want private.

In the case of two journalists, Jamal Khashoggi’s wife was surveilled and then it led to his death, and the Mexican Cecilio Pineda Birto’s phone is reported to have been selected as a possible target for surveillance a few weeks before he was murdered. The other name that interested me is that of the journalist Rupesh Kumar Singh in Jharkhand. He reported on the killing of an Adivasi, I think by Jharkhand police. Will you hear about him if he is murdered, and they say that his cousin who hated him did it? When we look at violence against journalists, a large number have been killed in India and we don’t hear about that because they are not in Lutyens’ Delhi. Jamal Khashoggi’s case is an international example of what might be happening in places that don’t have adequate scrutiny from the media.

There’s one more interesting aspect on the legality of the alleged surveillance in the case of person who accused then Chief Justice Ranjan Gogoi of sexual harassment. If you intend to insult the modesty of a woman, under Section 509 of the Indian Penal Code, and violate her privacy, that’s an independent criminal offence. Given that 11 phone numbers connected to Gogoi’s alleged victim were spied on, the government officials who do this lose their protective cover and FIRs can be filed against them.

I think that the Chief Justice of India and the senior most judges along with him should set up a special investigation team. This needs also a joint parliamentary committee and state-level criminal prosecutions. It will take people with serious courage because who is to say that their phones will not be tapped. We can’t leave our constitutional authorities open to blackmail, the most cherished parts of our lives are at stake.

‘Urgent Need For Surveillance Reform’

Yashovardhan Azad, IPS (Retd.) – Former Special Director, Intelligence Bureau and Secretary - Security, Government of India; and former Central Information Commissioner

India urgently needs surveillance reform as well as oversight for our intelligence and police organisations. Countries like the United Kingdom, from whom we inherited these laws, reformed their surveillance laws and also did a multiple layer oversight mechanism. They have internal mechanisms as well as judicial and parliamentary oversight. In the U.K., the Intelligence and Security Committee of Parliament is selected from all parties by the prime minister. All intelligence agencies with surveillance powers now have an Act of Parliament to define and charter them. It is high time India as a modern and constitutional republic did the same.

We need a data protection law that provides for adequate checks and balances for government access to data. Following the Supreme Court’s right to privacy judgment, Parliament must pass a privacy law as soon as possible.

‘Lack Of Any Oversight’

Mishi Choudhary – Founder, SFLC.in.

India is witnessing a massive cyberattack against its civilians, citizens who incarnate democracy and the rule of law. The world’s largest democracy has no parliamentary or judicial oversight on surveillance or carried out on its citizens. It needs surveillance reform. No one should underestimate the seriousness of the threat to democracy or what is at stake. The constitutional principle is that the government is responsible for protecting us against spying on the people, wholesale or retail, by outsiders and must subject its own domestic digital surveillance to rule of law. This is illegal in every sense of the way and a total failure of the government.