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The Home Ministry’s notification dated 20 December, authorising ten security and intelligence agencies to intercept, monitor and decrypt any information generated, transmitted, received or stored in any computer resource, kicked up a storm.
Opposition leaders and experts have called it “unconstitutional” and “an assault on fundamental rights”.
The controversial notification authorises Intelligence Bureau, Narcotics Control Bureau, the Enforcement Directorate, the Central Board of Direct Taxes, and six other agencies to intercept “any information”.
‘Agencies to Take Home Secy’s Approval Before Intercepting’: MHA Clarifies
After furore over the notification, the Ministry of Home Affairs clarified that all agencies will have to take the approval of the Home Secretary before intercepting or monitoring data stored in computer.
They further said that the order is in accordance with rules framed in year 2009 and it further said that no new power has been “conferred to any of the security or law enforcement agencies”.
“Each case of interception, monitoring, decryption is to be approved by the competent authority i.e. Union Home secretary. These powers are also available to the competent authority in the State governments as per IT (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules 2009.”MHA Statement
The MHA further said, “Similar provisions and procedures already exist in the Telegraph Act along with identical safeguards. The present notification is analogous to the authorisation issued under the Telegraph Act.”
The ministry statement also said the new notification had three benefits:
- It is aimed at ensuring that any interception, monitoring or decryption of any information through any computer resource is done in accordance with due process of law.
- The notification identifies agencies authorised to exercise these powers
- The notification is aimed at preventing any unauthorized use of these powers by any agency, individual or intermediary.
However, the original notification didn’t mention any of this.
Experts Raise Concerns
Meanwhile, a number of internet freedom activists and lawyers have come down heavily on the government’s move.
According to Chitranshul Sinha, a Supreme Court lawyer, the notification is “unconstitutional” and arms the listed agencies with “draconian power”.
“The order empowers the concerned agencies to intercept, monitor and decrypt information but does not provide any reason for exercising this draconian power. So not only is it ultra vires, it is also unconstitutional,” he further said.
According to Sinha, the order is ultra vires, that is beyond the legal ambit of Section 69(1) of the IT Act that the government has invoked.
Delhi-based Internet Freedom Foundation has expressed similar concerns.
“To us, the order is unconstitutional and in breach of the telephone tapping guidelines, the (Right to) Privacy judgment and the Aadhaar judgment,” they tweeted.
The IFF listed reasons why it believes that the Home Ministry order goes much beyond mere telephone tapping:
- Content streams are much richer, pervasive and personal.
- Phrasing of “intercept” in the rules includes traffic diversion. This may permit code injections and malware attacks.
- It permits decryption. Requiring you or any service provider to break encryption.
- Imagine your search queries on Google over years being demanded. Or your Whatsapp metadata, who you talk to when & how much. Add to this layers of data streams from emails and Facebook.
Dangerous Delegation of Power: Raman Chima
Reacting to the Home Ministry's notification, Raman Chima, Policy Director at Access Now and privacy and IT law expert told The Quint that the notification has dangerously delegated its powers to intercept Indian citizens communications under the IT Act to a whole range of agencies.
"It is likely that this is beyond what the Supreme Court has ruled as constitutionally acceptable when it comes to tapping Indians private speech," he said.
"It is especially troubling that instead of improving Indian surveillance standards and requiring judicial oversight over interception, the Ministry of Home Affairs has chosen to drastically loosen control over surveillance without any public consultation or discussion," Chima added.
Former Union minister and Congress leader P Chidambaram told ANI, “Not studied the matter, but if anybody is going to monitor computers then it is an Orwellian state.”
AIMIM President Asaduddin Owaisi, too, condemned the Modi government over the decision and wrote on Twitter, “Who knew that this is what they meant when they said ‘ghar ghar Modi’.”
The notification is being seen as a move to make snooping on individuals far more easy by the relevant authorities.
The notification, signed by Union Home Secretary of Rajiv Gauba, was passed under the Information Technology Act, 2000.
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