Is the government hearing our personal communications?

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A recent Home Ministry order has authorized central agencies to monitor and intercept data contained in computer systems. This makes one think of how safe our personal data is, including the data contained in phones.

In 2013, Edward Snowden, a former CIA employee, uncovered a vast regime of government surveillance programs in the United States. This led to a global conversation around privacy and data protection that is still unfolding to this date.

Being aware of the specifics puts us one step ahead in shaping conversations and participating in creating better policies. Here is a lowdown on what the Indian rules and procedures say about our personal life being monitored:

What do the Indian laws say?

The right to have a telephonic conversation in the privacy of one’s home falls under the Right to Life and Personal Liberty described in Article 21 of the Constitution. This fundamental right cannot be curbed except according to the procedures laid down by law. For example, lawful interception of phones and computers can be done under Section 5(2) of the Indian Telegraph Act, 1885.

Check on misuse of power and unauthorized perception

However, certain safeguards are available if such interception is done illegally as the investigating agencies cannot be given unbridled power. Tapping of telephones is allowed only when an order is received from the Home Ministry, Union government of the concerned state government. Such an order is valid for only two months and cannot extend beyond 6 months even after renewal. Moreover, the interception of communication has to be carried out by a specified authority and all copies of the material should be destroyed once the purpose has been met. Under Supreme Court guidelines, a review committee clears what constitutes as lawful perception under Rule 419-A of Indian Telegraph Rules, 1951. Within two months of an order, this review committee investigates whether its passing is relevant.

Rules on monitoring of social media content

Emails and social media content can be intercepted by the government by invoking the provisions of “interest of sovereignty”, “integrity of India”, and “public emergency”. According to Section 69 of the IT (Amendment) Act, 2008, any information generated, transmitted or stored in any computer resources can be intercepted, monitored or decrypted by the central and state governments, and they can issue directions in this regard.

What are the standard procedures?

In 2011, the Ministry of Home Affairs issued Standard Operating Procedures or SOPs for law enforcement agencies with regard to intercepting, using, sharing, copying, handling storing, and destroying the records. Similarly, the telecom service providers have to follow the SOPs provided by the Department of Telecom.

According to the Home Ministry, an internal evaluation cell has to examine a monthly statement from law enforcement agencies. These statements—to be reviewed on the 5th of the succeeding month—include details of authorisation of the orders, numbers of telepjones and emails intercepted during the period of interception, etc. Moreover, the phone tapping records and other data cannot be retained beyond six months. The SOPs also mention that surveillance in remote areas will not be valid in remote areas unless the competent authority is informed within 3 days and permission is obtained in 7 days.

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