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.

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