A recent Home Ministry order authorising 10 central agencies to monitor and intercept data contained in computer systems throws the spotlight on the laws for such interception, including of data contained in phones:
What law covers tapping phones/computers?
Lawful interception of phones and computers can be done by the governments at the Centre and in the states under Section 5(2) of the Indian Telegraph Act, 1885. If done illegally, it is punishable under sections 25 & 26 that provide for imprisonment up to three years, with or without a fine.
When is tapping by the government lawful or illegal?
This was laid down by the Supreme Court in 1996 (PUCL vs Union of India). While ruling that the right to have telephone conservation in the privacy of one’s home or office is part of the Right to Life and Personal Liberty described in Article 21 of the Constitution, which cannot be curtailed except according to the procedure established by law, the Supreme Court observed that Section 5(2) does not confer unguided and unbridled power on investigating agencies to invade a person’s privacy. The court laid down safeguards:
* Tapping of telephones is prohibited without an authorising order from the Home Secretary of the Union government or of the state government concerned.
* The order unless is valid for two months; if renewed, it cannot remain in operation beyond six months.
* Phone tapping or interception of communications must be limited to the address(es) specified in the order or to address(es) likely to be used by a person specified in the order.
* All copies of the intercepted material must be destroyed as soon as their retention is not necessary under Section 5(2).
Who oversees if interception is done without misuse of powers?
There is no judicial or parliamentary oversight to review cases of lawful interception. The orders of the competent authority clearing lawful interception, however, are reviewed by a review committee under Rule 419-A of the Indian Telegraph Rules, 1951. At the central level, it is headed by the Cabinet Secretary, with the Law Secretary and the Secretary (Telecom) as members. At the state level, it comprises the Chief Secretary, the Law Secretary and another member (other than the Home Secretary) appointed by the state government. Under the SC guidelines, the review committee on its own, within two months of an order, investigates whether its passing is relevant. Rule 419-A provides for the procedure and precautions for handling lawful interception cases to ensure that unauthorised interception does not take place.
What are the rules for monitoring of emails and social media content?
This is done invoking the provisions of “public emergency”, “interest of sovereignty” or “integrity of India”. Under Section 69 of the IT (Amendment) Act, 2008, the central and state governments are empowered to issue directions to intercept, monitor or decrypt, or cause to be intercepted or monitored or decrypted, any information generated, transmitted, received or stored in any computer resources. The Ministry of Home Affairs in 2011 issued standard operating procedures (SOPs) for lawful interception, handling, use, sharing, copying, storage and destruction of records to law enforcement agencies. The Department of Telecom has issued SOPs for lawful interception to the telecom service providers.
What are these SOPs laid down by the Home Ministry?
It requires setting up of an internal evaluation cell that will examine a monthly statement from law-enforcement agencies on the fifth of succeeding month. These statements are to detail the authorisation orders received for interception, numbers and emails intercepted including period of interception, number of telephones and emails authorised but not intercepted, etc. The SoPs also mention the need for destruction of data and phone-tapping records beyond six months and says for surveillance in remote areas, the competent authority should be informed within 3 days and permission must be obtained in 7 days, failing which the interception will not be valid.