The Centre has sought to justify its December 20, 2018, notification on monitoring of computers, saying that the rules existed since 2009 and what it had done was to restrict the exercise of powers and specify which agencies were authorised to do this. It further told the Supreme Court that its order was passed keeping in mind “legitimate state interest” and threats like “terrorism”, and it did not violate the right to privacy.
In an affidavit filed in the Supreme Court, the Union Home Ministry said the “amended provisions of section 69 (of the Information Technology Act, 2000), as well as Rules made under the Act providing for the safeguards, existed since 2009. What has been done under the Order dated 20.12.2018 is, in fact, restricting the exercise of powers, removing a possible vagueness and specifying the agencies/organisations who only would have the powers to utilise the powers of Section 69 of the Act”.
The affidavit was filed in response to petitions challenging the Constitutional validity of Section 69 of Information Technology Act, 2000, Section 5(2) of the Indian Telegraph Act, 1885, the order dated December 20, 2018 issued under Section 69(1) of the IT Act and Rule 4 of the Information Technology Rules, 2009.
The Ministry pointed said that “Section 69 applies to interception, monitoring, or decryption of any information generated, transmitted, received or stored in any computer resource”. As per the Act, “information includes data, message, text, images, sound, voice, codes, computer programs, software, data message, micro film or computer generated micro fiche,” it said, adding. “therefore use of powers under Section 69… is necessitated in the modern world where modern tools of information communication, including encryption, are being used”.
The Centre said the “question as to which agency of the appropriate government can be authorised to exercise the power under Section 69 of the Act was never defined till December 20 2018” and the order “not only streamlines but restricts the use of Section 69 of the Act and confines it to the cases of legitimate state interest”.
On the purpose of issuing the December 20 order, it said this was “to ensure that any interception, monitoring or decryption of any information through any computer resource is done only as per due process of law; to ensure that any interception or monitoring or decryption of computer resource is done only by the authorised agencies for purposes specified in Section 69 of the IT Act, as per due process of law, and with the approval of competent authority; to prevent unauthorised use of these powers by any agency, individual or intermediary;” and “to ensure that right to privacy of law-abiding citizens is not violated by any intermediary, agency or person”.
The government said it had communicated to all the 10 agencies “that each case of interception or monitoring or decryption under the Section 69…shall mandatory require prior approval of the competent authority, i.e. Union Home Secretary; and that such cases shall be restricted strictly to the purposes mentioned in Section 69 (1) of the Information Technology Act, 2000, viz., in the interests of the sovereignty of India, defence of India, security of the State, friendly relations with foreign states or public order, or for preventing incitement to the commission of any cognisable offence relating to above or for investigation of any offence.”
The Home Ministry submitted that “there is no blanket permission to any agency for interception or monitoring or decryption, as the authorised agencies still require permission of the competent authority i.e. Union Home Secretary in each case as per due process of law and justification for interception or monitoring or decryption.”
Underling the “legitimate state interest” behind the law, the government said “grave threats to the country from terrorism, radicalisation, cross border terrorism, cyber crime, organised crime, drug cartels cannot be understated or ignored and a strong and robust mechanism for timely and speedy collection of actionable intelligence, including signal intelligence, is imperative to counter threats to national security”.