Are India And United States Collaborating On Illegal And Unconstitutional E-Surveillance And Eavesdropping?

PRAVEEN DALAL MANAGING PARTNER OF PERRY4LAW AND CEO OF PTLBCivil Liberties Protection in Cyberspace is a complicated techno legal field that requires a techno legal orientation and framework. Neither technological nor legal method alone is sufficient to manage Civil Liberties issues in Cyberspace. Conflict of Laws in Cyberspace adds further complications and techno legal challenges for various stakeholders. As a result, the approach towards Civil Liberties and Conflict of Laws in Cyberspace is largely “Territorial and National” in nature.

This has given a wide range of “Options for E-Surveillance” and “Illegal Searches” that is otherwise not possible in a “Constitution bound Nation”. For instance, James Clapper has confirmed that NSA has been targeting foreign Citizens for Surveillance. Similarly, many believe that NSA has been doing E-Surveillance and Eavesdropping through Utah Data Center though it is denied by the NSA. Similarly, NSA has also been using Radio Waves and Malware to indulge in Unconstitutional and Illegal E-Surveillance around the World. If this is not enough, Anti Virus Updates are being used as a potential tool to install Malware, steal information and launch Cyber Warfare Attacks. These activities have serious Civil Liberties implications that are also “Teasing and Testing” the Constitutional Safeguards and Protections.

It is not at all possible to indulge in “Global E-Surveillance and Eavesdropping” till other Nations approve the same. For instance, FinFisher is a Global Electronic Spying, E-Surveillance and Eavesdropping Malware. The Command and Control Servers for FinFisher were found in 36 Countries including India. Similarly, Vodafone has confirmed existence of “Secret Wires” for Government E-Surveillance and Eavesdropping Worldwide, including in India. The Department of Telecommunication (DOT) has already ordered an Investigation in this regard but the same is just a tactics to ward off criticism of blatant and endemic E-Surveillance activities of India.

There are “Strong Reasons to Believe” that India and United States are “Collaborating” on Illegal and Unconstitutional E-Surveillance and Eavesdropping on a “Mutually Beneficial Basis”. This is happening with great disregard to the Constitutions of India and United States. There is an urgent need to “Investigate” about this “Unholy Nexus” between India and United States that is striking at the very root of Civil Liberties Protection in Cyberspace.

Intelligence agencies of India are working in a condition that required immediate Parliamentary Oversight and Intelligence Reforms in India.  The Intelligence Infrastructure of India needed Transparency and Strengthening in these circumstances. However, Congress Government was not interested in bringing such reforms and it kept on violating the Civil Liberties of Indians in a blatant manner.

Till now there is no “Public Report” of the investigation made by DOT against the Vodafone’s allegations. In fact, the Narendra Modi Government has still not cleared its stand regarding “Illegal and Unconstitutional Projects” like Central Monitoring System (CMS) Project of India and Internet Spy System Network and Traffic Analysis System (NETRA) of India. In these circumstances, it is safe to presume that the Modi Government would continue with the Illegal and Unconstitutional E-Surveillance activities of the Congress led Government.

The proposed National Telecom Policy of India 2014 is also “Silent” on Protection of Civil Liberties in Cyberspace and Illegal E-Surveillance and Eavesdropping. In fact, it is “Neither Balance nor Constitutional” as on date. The Narendra Modi Government must ensure Privacy to Indians on a priority basis. This must be done by formulating and enacting a dedicated Privacy Law of India as soon as possible. The Parliamentary Committee has already slammed Indian Government for Poor Privacy Laws in India.

There are many problems that Modi Government would face while ensuring Privacy to Indians. We have no E-Surveillance Policy (PDF) and Encryption Policy (PDF) in India. We have no dedicated Data Protection and Privacy Laws in India (PDF). We have Draconian and Colonial Laws like Cyber Law and Telegraph Law that deserve immediate repeal. We have Bad Cyber Security Conditions (PDF) and a missing Telecom Security Policy of India. This would raise serious Cyber Security Challenges before the Modi Government in near future and would adversely impact the Privacy Rights of Indians in the Cyberspace.

Whatever the case may be, we need to ensure Civil Liberty Protection in Cyberspace for Indian Citizens “At All Costs and By All Means”. The digital life of Indian Citizens is not at all safe and is open to various forms of E-Surveillance and Eavesdropping. In the absence of support form Indian Government, Self Defence is the only viable option left before Indian Citizens to safeguard their digital lives. The initiatives titled PRISM Break and Reset the Net are worth exploring in this regard as a “Starting Point”.