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Journalism of Courage
AS former advocate general of Madhya Pradesh, Delhi-based Vivek Tankha is not new to high profile cases. A few months ago, he even argued in a Bhopal court against allowing Jagmohan Dalmiya the office of patron-in-chief of the Board of Control for Cricket in India.
Yet, Tankha says, no petition has brought him the sort of peer attention than the one he brought before the Supreme Court on February 7. It asked for telemarketing firms to be checked from calling people randomly, harassing them with offers of credit cards, loans, phone connections.
8216;8216;Every professional colleague has thanked me,8217;8217; Tankha says, 8216;8216;other lawyers, judges, even executives at banks and phone companies. All of them have suffered such calls.8217;8217;
Drafted on behalf of petitioner Harsh Pathak 8212; a lawyer associate of Tankha 8212; the petition is,well, vox e-populi: 8216;8216;Practically every cell phone user is getting paranoid about privacy. If telemarketing calls are today8217;s scourge, it is only a matter of time before spam starts inundating the cell phone.8217;8217;
THIS case is actually a window to a more complex issue: India8217;s lack of a privacy law. While the United States, the United Kingdom and the European Union, for instance, have well-defined privacy protection codes, India has looked at the issue only fitfully.
There are two Supreme Court judgments, says Delhi infotech law specialist Pavan Duggal, that address privacy:
Kharak Singh vs State of Uttar Pradesh, 1963: The petitioner objected to his house being searched by the police after midnight. The verdict examined privacy in the context of the Fundamental Rights. It held the police could search a person8217;s house only during reasonable daytime hours.
8216;8216;In the last resort,8217;8217; the judgment read, 8216;8216;a person8217;s house, where he lives with his family, is his castle, it is his rampart against encroachment on his personal liberty.8217;8217;
People8217;s Union for Civil Liberties vs Union of India, 1996: Alarmed that 8216;8216;the right to hold telephone conversation, in the privacy of one8217;s home or office, without interference, is increasingly susceptible to abuse8217;8217;, the court objected to gratuitous tapping of phones by state agencies.
It said tapping could only be resorted to in case of exigencies such as national security. Here too it had to follow a procedure of permissions.
| nbsp; | 8216;If telemarketing calls are today8217;s scourge, it is only a matter of time before spam starts inundating the cell phone8217; |
WHAT has all this got to do with: 8216;8216;Good morning, Sir, I am Ankit from Silly Bank. Which credit card do you use?8217;8217; It8217;s related and it8217;s not. Phone solicitation can be tackled in a narrow focused manner. Else, it can be dealt with in conjunction with other potential weapons of 8216;8216;technology trespass8217;8217; 8212; using an overarching privacy law.
Take the limited approach first. As Tankha points out, a telemarketing call targets an 8216;8216;unwary subscriber8217;8217;: 8216;8216;When I get a call, I don8217;t know whether it8217;s friend or foe. It8217;s not like an 8216;8216;offer-inside8217;8217; letter or spam e-mail that I can delete without opening.8217;8217;
He points to the American 8216;8216;do not call8217;8217; DNC registry. Under a 2003 US federal law, anyone registering under DNC will not receive a telemarketing call. Violators can be fined upto 11,000 per call. Interestingly, there was some controversy as politicians and charitable bodies were exempt from the law. So if you8217;re banning 8216;8216;I8217;m from XYZ Bank8217;8217;, will 8216;8216;Mein Atal Behari Vajpayee bol raha hoon8217;8217; still be okay?
IN India, Tankha says, 8216;8216;Let8217;s treat every subscriber as a DNC subscriber. Only if they want to receive calls, should they register.8217;8217; Should a subscriber be willing to inflict these calls upon himself, his service provider could offer him a discounted tariff. For instance, ISPs are known to provide free Internet access to subscribers who agree to view a certain number of ads.
Another approach is 8216;8216;to have these numbers show on your caller ID with a commercial insignia, as a warning8217;8217;. The appropriate agency for putting in place such a system is probably the Telecom Regulatory Authority of India TRAI. Tankha warns though, 8216;8216;This will require changing TRAI8217;s charter. It was set up to regulate service providers, not commercial or consumer issues.8217;8217;
CYBERLAWYER Duggal prefers a larger framework. 8216;8216;One purpose of the IT Act, 2000,8217;8217; he says, 8216;8216;is to preserve the integrity of a computer network and prevent its misuse.8217;8217; Since the mobile phone is defined as a computer under the IT Act, Duggal would rather have privacy provisions for a gamut of IT instruments, not merely junk calls on mobile phones.8217;8217;
Physical violations of privacy are easy to identify and tackle. If someone barges into your house, simply complain about criminal trespass. Technology trespass can be as obvious as unsolicited calls, as innocuous as pop-up ads 8216;8216;that curtail your browsing experience8217;8217;, as everyday as camera phones, or as surreptitious as fine-tuned Net search programs that can reveal more of you than you would want to.
Duggal points to tools such as BitTorrent http://www.bittorrent.com that have search engine possibilities and can 8216;8216;pick up pieces of information about you from a variety of sources, including hard disks, and package them together8217;8217;.
Tankha nods in agreement. 8216;8216;The law can8217;t be static,8217;8217; he says, 8216;8216;it has to change with technology. In moving the petition, we8217;re only catalysts.8217;8217; For the moment, he8217;s catalysed privacy8217;s journey into public domain.
