Monthly Archives: July 2014

Privacy Is Your Human Right Not A Government Charity

PRAVEEN DALAL MANAGING PARTNER OF PERRY4LAW AND CEO OF PTLBBenjamin Franklin has rightly said that those who would give up Essential Liberty, to purchase a little Temporary safety, deserve neither Liberty nor Safety. This expression is applicable to all the Countries of the World that are dedicated to kill Privacy Rights under the false pretext of Security/National Security. India is no exception to this practice as Privacy Right in India is, perhaps, “Lowest and Most Negligible” in the World.

The starting point to protect the Privacy Rights in India is to understand that Privacy is your Right not a Charity. We expect our Government to protect our Privacy Rights rather than protecting same ourselves. We are very comfortable in surrendering our Privacy in exchange of slightest “Convenience” and our Governments take advantage of this attitude of ours. This has also made India a “Sitting Duck” in the fields of Cyberspace and Civil Liberties Protection Regime.

For those who care for their Privacy Rights, our Indian Government has introduced “Technological Methods” to invade our Privacy. For instance, India has been using, and is still using right now, the Unconstitutional E-Surveillance Projects like Central Monitoring System and NETRA. The Narendra Modi Government has still not “Cleared its Stand” on these Unconstitutional E-Surveillance Projects that must have been done long before. This means that the BJP led Government would also continue with CMS, NETRA, etc.

Further, there are little chances of getting Parliamentary Oversight of Intelligence Agencies of India. Similarly, there are almost no chances of Intelligence Agencies Reforms in India that can bring their functioning in lines with Constitutional Requirements. Illegal and Unconstitutional E-Surveillance and Phone Tapping is rampant in India with no Judicial and Parliamentary Oversight.

However, nothing can match the “Draconian and Unconstitutional Project” named Aadhaar as managed by UIDAI. In fact, the illegality of Aadhaar Project has been questioned before the Constitutional Courts of India. The Supreme Court of India has been critical about the Aadhaar Project and its implementation. The Supreme Court has held that “Aadhaar cannot be made Mandatory” for availing public services in India. Similarly, the Supreme Court has also prohibited UIDAI from Sharing Biometric Data with Indian Government Agencies without data owner’s consent.

These were sufficient hints that the Aadhaar Project, in its present form, must be scrapped by the Narendra Modi Government. Nevertheless, as per media reports, the Modi Government has decided to continue the Aadhaar Project. Some hints have been given by the Government that a “Legal Framework” would be formulated to grant “Legal Status” to Aadhaar/UIDAI but that is just “Part of the Solution”. Other considerations like Cyber Security, Data Security and Civil Liberties Implications of Aadhaar Project and Unconstitutional Biometric Collection by UIDAI in India have still to be resolved. It is high time for the Modi Government to sort out these issues before rolling out the Controversial and Unconstitutional Aadhaar Project in India.

Privacy Is Your Right Not A Charity And National Security In India Is A White Lie Not A Reality

PRAVEEN DALAL MANAGING PARTNER OF PERRY4LAW AND CEO OF PTLBWhat would you do if somebody tries to invade your Privacy or the Privacy of your Family? Most of us would fight back to protect the same. However, almost none of us fights back if the same violation is done by or own Government or Government of Foreign Nations. Even our own Government ditches us and supports such foreign Governments in their illegal E-Surveillance activities.

India is one such Country that is not only indulging in Illegal and Unconstitutional E-Surveillance upon Indian Citizens but is also allowing other Countries like United States to do the same. For instance, India has been using, and is still using right now, the Unconstitutional E-Surveillance Projects like Central Monitoring System and NETRA. The Narendra Modi Government has still not “Cleared its Stand” on these Unconstitutional E-Surveillance Projects that must have been done long before.

After more than a month of being in power, it is safe to presume that the Modi Government “Intends to Continue” with these Illegal and Unconstitutional Projects just like its predecessor Congress Government. This may prove that the Modi Government is worst than Congress Government as far as Civil Liberties Protection in Cyberspace is concerned. Atleast Congress Government was “Honest Enough” to admit launch and use of these E-Surveillance Projects. But Modi Government is “Notoriously Silent” on these Issues and Projects.

In fact, India is Collaborating with other Countries to facilitate “Mutual E-Surveillance” in an Illegal and Unconstitutional manner. Recently, Telecom Company Vodafone confirmed that Secret Wires have been used around the World to indulge in Illegal Eavesdropping. India is also doing the same but all that Modi Government has done in this regard is ordering a Sham, Ineffective and Casual Analysis of the situation. After more than two weeks, the Department of Telecommunication is still not been able to provide a “Public Report” in this regard and the same may never see the light of the day as well.

On the contrary, the Modi Government has given hints that it is not at all willing to let go the Illegal and Unconstitutional E-Surveillance Projects like CMS, NETRA, etc. These hints can be found in the proposed National Telecom Security Policy of India 2014 wherein Snooping and Eavesdropping have found mention without any Privacy and Procedural Safeguards.

For instance, the draft Telecom Security Policy prescribes that cellular operator will mandatorily have to allow Law Enforcing Agencies to intercept calls, messages, and any other communications and the access to monitor it in real time, while keeping the communications secured. However, there is no Constitutional Lawful Interception Law in India as on date and this requirement would be a violation of Fundamental Rights of Indian Citizens.

If all this is not enough, the U.S. Foreign Intelligence Surveillance Act (FISA) Court has been Issuing Orders to allow U.S. National Security Agency (NSA) to indulge in E-Surveillance at a “Global Scale”. This includes conducting E-Surveillance upon Indian Citizens, Political Organisations like Bharatiya Janata Party (BJP), etc. It is really surprising how India allows a local U.S. Court to play with its “Sovereignty and Constitution”.

The fact is that India is a Sitting Duck in the Cyberspace and Civil Liberties Protection Regime. Similarly, India is also a Sitting Duck in the Cyber Security Field. This position is “Serving Indian Government’s Purpose” and this is not going to change very soon. So there must be an “Alterative” to this whole chaos and “Civil Liberties Violation Fiasco”.

It is well understood that those who surrender their Liberty in exchange for “False Promises of National Security” would loose both. This equally applies to Indian Citizens as well. Privacy is your Right and not a Charity and National Security of India is a White Lie and not A Reality.

Indian Government is not going to safeguard our Privacy Rights and we have to “Reclaim” the same ourselves. There are little chances of getting Parliamentary Oversight of Intelligence Agencies of India. Similarly, there are almost no chances of Intelligence Agencies Reforms in India that can bring their functioning in lines with Constitutional Requirements.

We cannot “Enact Laws” but we can use “Counter Technologies” to prevent Illegal and Unconstitutional E-Surveillance and Eavesdropping. Self Defence and Privacy Protection in India must be ensured by us at our own levels. The initiatives titled PRISM Break and Reset the Net are the “Starting Point” in this regard. I would come up with detailed articles dedicated to protection of Civil Liberties of all those who care for their Privacy and Right to Speech and Expression in Cyberspace and this Information Era.

US Foreign Intelligence Surveillance Act (FISA) Court Is A Trouble For Indian Privacy Rights And Civil Liberties

PRAVEEN DALAL MANAGING PARTNER OF PERRY4LAW AND CEO OF PTLBThere are many “Double Standards” that United States Government is adopting vis-à-vis India in general and Indian Citizens in particular. There is no second opinion that U.S. is the biggest and most blatant violator of Civil Liberties in Cyberspace. Whether it is use of Malware of the types of Stuxnet or Duqu or a combined use of Radio Wave and Malware, U.S. is on the top in the list.  U.S. Government is also the biggest purchaser of Malware in the World. In short, U.S. is the most prominent and notorious purchaser and user of Malware at the Cyber Warfare and Cyber Espionage levels.

U.S. has been indulging in “Illegal and Unconstitutional” E-Surveillance and Eavesdropping in India for long. Sometimes it is “Covert” while other times it is “Overt” and with the “Active Collaboration of India”. In fact, James Clapper had confirmed that NSA has been targeting Foreign Citizens for Surveillance. Surprisingly, this is happening despite the fact that the Constitutions of both Countries forbid such blatant “Privacy Rights Violations”. Recently, the U.S. Supreme Court in Riley v. California, No. 13–132, 573 U. S. (2014) held that “Digital Data” requires protection from “Warrantless Searches” and generally a warrant is required to conduct search of a cell phone of an arrested person.

However, the Supreme Court of India and U.S. Supreme Court are “Helpless and Powerless” when it comes to exercise of “Extra Territorial Powers” by the U.S. Foreign Intelligence Surveillance Act (FISA) Court. What is frustrating is how a local court like FISA can exercise “Powers” over an “Independent and Sovereign Nation” like India. What gives a FISA Court power to violate provisions of Indian Laws and Indian Constitution? Either this is happening with the “Active Assistance of India” or our Indian Government is a “Sitting Duck” incapable of protecting the Civil Liberties of its Citizens from foreign players and foreign Intelligence Agencies like NSA.

Not only the U.S. Government is indulging in double standards but even U.S. Companies are doing the same. For instance, if information is sought from U.S. Companies they insist upon following U.S. Laws. However, if the same Companies are asked by U.S. Government or U.S. Intelligence Agencies to provide data and details stored even in Foreign Jurisdictions and Data Centres, they are more than willing to help them. This is happening despite the fact that the Laws of such Foreign Jurisdictions also forbid sharing of such data or information but they become simply “Inapplicable” in such cases. Many U.S. Companies have been providing information and data about Indian Citizens even in active violation of Indian Laws and our Government is not doing anything in this regard. All that is required for such U.S. Companies is an order from a FISA Court that, in most cases, is not even “Public” but is shrouded in complete “Secrecy”.

According to leading Academics of U.S. the Secret Loopholes Exist that could allow the NSA to bypass Fourth Amendment protections to conduct massive domestic surveillance on U.S. citizens. For instance, the Research Paper released on Monday by researchers at Harvard and Boston University details how the U.S. Government could “conduct largely unrestrained surveillance on Americans by collecting their network traffic abroad,” despite Constitutional protections against warrantless searches. U.S. surveillance Laws presume Internet traffic is non-American when it is collected from overseas. This is a “Very Convenient Arrangement” as India can “Collect” information and data in India on behalf of U.S. and U.S. can collect information and data on behalf of India in U.S. This way “Constitutional Protections” available in both the Countries can be “Bypassed” without attracting the wrath of Courts of both Countries. And this is exactly what is happening as per my personal opinion.

The ultimate effect of this situation is that both India and U.S. can “Collect Information” about their own Citizens as well as those of other Nation’s. It would be a “White Lie” if India and U.S. suggest that they are not indulging in E-Surveillance and Eavesdropping that is violative of the Constitutional Protections.

As per media reports, the Bharatiya Janata Party (BJP) was one of the six non-US political parties across the Globe that the NSA received official permission in 2010 to covertly spy upon. So U.S. cannot deny anymore that Indian Citizens and Indian Political Organisations are under “Constant Scrutiny” of her Intelligence Agencies like NSA.

The natural question is should we “Trust” U.S. Companies, Software and Hardware while providing “Sensitive and Crucial Information” and utilising the same for Critical Infrastructures (PDF). The Cyber Security Trends in India (PDF) clearly indicate that we must stress more upon “Indigenous Capabilities” when it comes to Cyber Security and Cyber Technologies. When Anti Virus updates are themselves source of Malware India cannot trust Foreign Cyber Security Products in this regard.

The Security Agencies of India have stressed upon using “Indigenously made Cyber Security Softwares”. Similarly, Indian Government has also given approval to establish two Semiconductor Wafer Fabrication Manufacturing Facilities in India (PDF). This would benefit Companies of Japan and Korea in expanding their bases in India. The Electronic System Design and Manufacturing (ESDM) Policy of India has also been streamlined by Indian Government. The U.S. Companies must be allowed to sell their Products and Services in India only once their Products or Services are “Rigorously Tested” before being used in India, Government Departments or Public Services providing Organisations.

U.S. Companies are hiding behind the veil of Conflict of Laws in Cyberspace and India must pierce the same to ascertain the true identity of “Rouge Companies”. Internet Telephony and VOIP Service Providers must “Mandatorily Establish Servers in India”. The Intelligence Bureau (IB) is also expediting the testing of VOIP Interception System in India. The ultimate solution is that India Must Ensure Techno Legal Measures to Regulate Indian Cyberspace that can prevent Illegal and Unconstitutional E-Surveillance and Eavesdropping from Foreign Nations. Otherwise, Judicial Orders from Courts like FISA would keep on violating the Civil Liberties of Indian Citizens.