7 min readNov 2, 2023 10:29 AM IST
First published on: Nov 1, 2023 at 08:24 PM IST
On October 31, we were alerted to the grave national crisis of “compulsive critics”. Public attention was drawn to it by the Minister for Telecom and Electronics and IT, Ashwini Vaishnaw, responding to reports of spyware attacks on members of Parliament and political parties mostly from the Opposition. During the press conference, he claimed to have “already ordered an investigation” as Apple has issued a “vague advisory” that was “issued in 150 countries”. He dismissed prior attacks on the phones of the Opposition and journalists by the Pegasus spyware stating, “we conducted a proper investigation that was also supervised by the judiciary… nothing came out of that”. The statement ended with calling the Opposition bereft of “substantial issues”, attempting to, “distract the country from the progress being made under the leadership of Narendra Modi ji’s leadership”. As a compulsive critic, let me contrast the statement against the facts and law.
The first statement indicates facial earnestness through prompt action. He has ordered an investigation by the Indian Computer Emergency Response Team (CERT) that is anchored under the Ministry of Electronics and IT. Here, there exists ministerial discretion in appointments, promotions and postings. Suspicion about the outcome of the investigation arises given that their boss has revealed his bias against the charges.
This investigation has a myopic scope and is designed to fail. It will concentrate on a technical evaluation of smartphones, with notices to Apple and a call to Opposition leaders for submission of their smartphones. Even if they turn them over, the examination of code and network behaviour is a limited path of inquiry which avoids direct examination through summoning witnesses and sworn testimonial statements. Will CERT have the power/motivation to summon the cabinet secretary, who is the senior-most civil servant and oversees the intelligence agencies of the Government of India? Can it ask him to submit a sworn statement on the money trail? How and if India procures spyware, who are the targets and what safeguards are in place?
Do we establish crimes only through technical or forensic evidence, or does a proper investigation require testimony from witnesses and persons who are accused? These obvious issues of autonomy, jurisdiction and conflict of interest could have been mitigated by taking recourse to the Commissions of Inquiry Act, 1952. Instead, we have a charade.
The minister’s second line of defence was to cite support for his position from statements by Apple. So what are these statements? The first is a direct notification by Apple to Opposition leaders whose first line states, “Alert: State-sponsored attackers may be attacking your phone”. This is the basis of the allegation rather than a suo motu conspiratorial call. Such a notification system was put in place after the Pegasus files disclosures by Apple in 2021. Over a period of time, it has been historically used in the 150 jurisdictions Apple has sold smartphones. This alert links to a support page managed by Apple, published on August 22. Each sentence indicates that this is a specific alert rather than a general, “advisory”. It lists urgent steps a notified user should take and place their phone in, “lockdown mode”. This support page was summarised in a press release and circulated yesterday.
Even before this, a disinformation campaign was launched to sow doubt and cause confusion. This started with claims of the alert being an “algorithmic malfunction” and in the later hours of the day turned into twisting the language of a press release issued by Apple. Emphasis was placed on the word, “false alarm” conveniently erasing the sentence and paragraph in which it appears. It states, “State-sponsored attackers are very well-funded and sophisticated, and their attacks evolve over time. Detecting such attacks relies on threat intelligence signals that are often imperfect and incomplete. It’s possible that some Apple threat notifications may be false alarms, or that some attacks are not detected. We are unable to provide information about what causes us to issue threat notifications, as that may help state-sponsored attackers adapt their behaviour to evade detection in the future.” Hence, the second leg of defence when placed under examination, develops a limp.
The final attempt at substantive response is taking recourse to precedent and proceedings in the Supreme Court of India on the spyware attacks by Pegasus. In an article, (‘Slowing justice, the committee way’, IE, August 27) I extensively cited parliamentary and court proceedings to demonstrate that the GoI has been evasive and has not denied producing and using it. Further, the minister’s statement is curious for the petitioner’s apprehension that given they suspect the government itself of hacking their phones was accepted by the Supreme Court. This is the reason it set up its own committee of inquiry as per an order dated October 27, 2021.
It is a curious claim by the minister that, “we conducted a proper investigation”, as the government was a witness, or even an accused. Further, the report of this committee is still kept in sealed cover. It has neither been made public nor available to the petitioners. While excerpts of it have been read out in Court, these by themselves cannot lead us to conclude, that “nothing came out of it”.
Viewed forensically, the statements in yesterday’s press conference reveal a weak defence and a lack of good faith to investigate the invasion of personal privacy and democratic functioning of Opposition parliamentarians. Hence, the label of, “compulsive critics” ends with a homage to the vision and progress under the Prime Minister. Such rhetorical flourish will not prevent calls for accountability when required by reason and evidence. The loyalty of an Indian citizen is not to this government but to their Constitution.
The writer is an advocate based in New Delhi
Union Minister for Communications and Electronics & Information Technology Ashwini Vaishnaw addresses a press conference, on Tuesday, Oct. 31, 2023. (PTI Photo) 
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