Data security & data privacy have always been subjects of heated arguments & debates. In today’s world technology is the boom due to which human evolution is growing from time to time & is aiding as an element of change & assistance to this world in its various aspects. But this usage of technology as well as authorization of such usage has a bad side & a vindictive nature. In India, lawful interception is used by the state executive to oversee the interests of national security, aid in investigations & prevent the commission of offences but the transparency of these agencies in the usage of this information through such interceptions is a matter of grave concern since there is no proper & accountable legalistic framework to monitor & foresee such usage of information obtained by these investigating agencies & whether such legally guaranteed provisions to them are being used by them only for justifiable & reasonable purposes & not some other purpose which is illegal & which is not authorized by the law for such usage provided.
WHAT IS LAWFUL INTERCEPTION?
After highlighting the necessary reasons for a well-founded statutory framework guiding & regulating the interception process let’s understand what lawful intervention is all about. One of the regulatory criteria that Telecom Service Providers (TSPs) must meet as a duty to the Law Enforcement Agencies (LEA) and Government Authorities of the nation in which they are operating their businesses is Lawful Interception (LI). The act of discreetly monitoring the phone calls & SMS of individuals or parties who are of interest to law enforcement agencies is known as “lawful interception.”
SOVEREIGNTY OF INVESTIGATING BODIES CLASHES WITH THE POLITICAL MOTIVATIONS OF KEY ENFORCERS:
Investigating agencies in India fall under & are directed and controlled by the Home Affairs Department of the Indian government which is a state under Article 12 of the Indian Constitution& it is expected to render its functions in a sovereign way i.e. in interests of general good since sovereignty principle laid down in the preamble has to be abided by the state in its functioning or else it would be a disrespect to the framers & enactors of the constitution. Due to such authorization by law vested upon the Home Affairs Department of the Indian Government may misuse its powers in political interests & make use of this interception by obtaining through investigating agencies in a wrong way as the political party with the majority in Parliament forms the UnionGovernment as they are the ultimate enforcers of such agencies.
STATUTES GOVERNING LAWFUL INTERCEPTION:
There are three legislations mainly dealing with this aspect of lawful interception which are as follows:
- Indian Telegraph Act, 1885- As per this act under Section 5 Sub-section(2)Any message or class of messages brought for transmission by or transmitted or received by any telegraph or relating to any particular subject, or any officer specially authorised in this regard by the Central Government or a State Government, may, by order, direct that they are intercepted or be disclosed to the Government making the order or an officer thereof mentioned in the order.
- Code of Criminal Procedure, 1973- As per this act under Section 92 Sub-section (1) If a postal or telegraph authority is holding a document, parcel, or another item that higher-ranked state executives or courts believe is needed for an inspection or inquiry, the concerned bodies may order the appropriate authorities.
- Information Technology Act, 2000- As per this act under Section 69 Sub-section (1) if it is satisfying to the concerned authorities that it is needed to uphold the sovereignty or integrity of India, defence of India, security of the State, friendly relations with foreign states or public order or to prevent incitement to the commission of any cognizable offence then such authorities can order any agency of the relevant Government subject to the restrictions of subsection (2), to cause such interception, monitoring, or decryption.
LAWFUL INTERCEPTION IN OTHER COUNTRIES ACROSS THE GLOBE:
- United States of America-There are primarily three legislations in the US that permit interception (CALEA). The US government may also request the disclosure of communications that have been saved.
- United Kingdom- Ministers of high ranks are given the authority to pass a decree under the Regulation of Investigatory Powers Act of 2000 (RIPA) based on a request from law enforcement or intelligence agency. High-ranked state executives may issue a warrant for the interception of a “wireless telegraphy” service.
- Germany- The German Telecom Act permits electronic surveillance. Only when the possibility of a serious criminal offence is surfaced, an order for receiving first-hand electronic transmissions can be passed.
- France-There are primarily three legislations in France that allow electronic communications.
HOW CAN LAWFUL INTERCEPTION BE USED AS A WEAPON BY THE INVESTIGATING AGENCIES & IN WHAT WAY:
Without denying the very fact that lawful interception helps in investigating an offence, preventing an offence & maintaining peace & tranquillity it can be used as a tool of malpractice whose control lies at the hands of the investigating agencies& their discretion to use it either to benefit directly or indirectly from it & in turn fulfil their vested interests. One such instance was when a charge was filed in 2021 at Mumbai under the Official Secrets Act against unnamed individuals for allegedly illegally tapping phones and disclosing private documents. At the time of lodging the complaint, Sitaram Kunte, the highest-ranked executive of state then, claimed in his investigation report that Rashmi Shukla, an IPS officer, had leaked the secret information. Since then, Shukla has been under investigation for reportedly tapping the phones of NCP leader Eknath Khadse and Rajya Sabha MP Sanjay Raut in 2019 while she was in charge of Maharashtra’s State Intelligence Department.
In India, as every minute passes by crimes keep on occurring &to aid such investigations lawful interception plays a crucial role. In 2018 the government led by Narendra Modi authorized ten agencies to intercept or monitor any “information generated, transmitted, received or stored in any computer” and the individual will be required to give the agencies access and technical support. If that doesn’t happen, there may be a seven-year sentence. The directive was given by Rajiv Gauba, the home secretary. This calls for knocking on the door to raise the valid issues of such interceptions.
Author(s) Name: Raunak Majumdar (Amity University, Kolkata)
Stefan Rommer& Catherine Mulligan, ‘Security’ (2020) Science Direct <https://www.sciencedirect.com/science/article/pii/B9780081030097000089> accessed on 5 July 2022.
Indian Telegraph Act, 1885, s 5
Code of Criminal Procedure, 1973, s 92
Information Technology Act, 2000, s 69
Regina Mihindukulasuriya, ‘Who legally authorises data interception & on what grounds: A study of 5 democracies’ ( The Print, 30 January 2022 )<https://theprint.in/india/who-legally-authorises-data-interception-on-what-grounds-a-study-of-5-democracies/816613/> accessed on 6 July 2022.
‘Come anytime: Fadnavis after Mumbai Police notice in phone tapping case’ ( Livemint, 12 March 2022 ) <https://www.livemint.com/news/india/come-anytime-fadnavis-after-mumbai-police-notice-in-phone-tapping-case-11647086698454.html>accessed on 8 July 2022.