As per my last article which issued in winter season, I am writing here in reference to the same issue. And can be found here . So the last article we have seen that what are the technical capabilities of National Security Agency and its power to acquire as much the information they can. The program name PRISM and its CMS (central monitoring system) are some part of it to intercept and collect the metadata and content regarding to the telephone, internet, wireless etc. from the whole world and India is also part of it.

What they can do?

With the CMS they can listen to your calls, listen it, track a mobile phone and location, read all your text messages and personal emails and chat conversations, can see Google search, website visit and even your username and password if not encrypted. Although, NSA denied about content monitoring, they say we just monitor the context information i.e. metadata.

What can we do to prevent ourselves?

Like for an email if you are sending any mail then the information about the sender and recipient ip address, location and Gmail id etc. are monitored by the NSA previously and these type of information falls in context portion. But now Gmail adopted the encryption for the context portion also done in the last month to prevent the privacy of any user from the snooping. And that’s the reason why Security experts and hackers use PGP like software to send the mail in encrypted form.

What makes us concern?

So this time I am quite tensed about what are the rules, regulation and Privacy in India for the surveillance. Can we stop them?  Can we enforce any punishment for doing illegal? Does any act really favors? Or it is just favors non technological?                         So there are many questions arise when we deal with this and this is really a big issue now a days for the government and law enforcement that how we can stop anybody for such kind of illegal activities. Is there any Warrant required before any wiretapping or surveillance to the network of victim? or not?

What Case Law and Legislation says?

The CMS is not sanctioned by parliamentary legislation. It also raises serious privacy concerns. In order to understand the constitutional implications, therefore, we need to investigate Indian privacy jurisprudence.

The first case to address the issue was M.P. Sharma v Satish Chandra, in 1954.In that case court sustained search and seizure in following: “A power of search and seizure is required for the protection of social security by the state and it should necessarily be regulated by law. But when constitutional maker thought of it by recognition of fundamental right to privacy, corresponding to American Fourth we have no justification to import it. Although, court did not reject the right to privacy altogether but some specific because our Constitution does not expressly declare a right to privacy as a fundamental right, but the said right is an essential ingredient of personal liberty.

The very next case to it, In Kharak singh v UP, the UP police conferred surveillance power upon certain “history sheeters” (though not necessarily convicted yet). The surveillance include secret inspection of his house, monitoring his movements, enquiries, domiciliary visits at night etc. These were challenged on Article 19(1)(d) (freedom of movement) and Article 21 (personal liberty) grounds. It is the second ground that particularly concerns us.

After a while in a debate between police and legislation court agreed that “restrictions were reasonable and required for social security”. Therefore, this issue was quite hypothetical that on one hand we apply some restrictions by legislation while on other laws like right to privacy (article 21) and all are violated because neither privacy has not mentioned in the constitution completely nor our IT ACT has exactly prevent this . So the question arises what makes surveillance by NSA reasonable under Article 19?

What Indian and US court decides?

So Indian court has found on the basis of above laws and regulations that surveillance is unconstitutional. Last year in December, US Federal court has also held that NSA’s bulk metadata telephony, internet surveillance in “unlikely unconstitutional” under the fourth amendment (which defined to protect the citizens against “Unreasonable  search and seizure” by the federal government).

The basis for the judgment was on two step, first people have reasonable expectation of privacy and second court has found that infringement was unreasonable, because there was no evidence to demonstrate that the suspected victim is really convicted and done on interest of national security.

What we need?

Law enforcement guys and government have to closely studied, as the two step American fourth amendment is substantially similar to Article 21’s right to privacy. And in the interest of it, court’s conclusion if done from other country:

(a) Everybody have a reasonable expectation of privacy in our telephone records or wiretapping issues also.

(b) The government cannot simply assert national security and can’t do bulk surveillance under the shadow of it.

(c) The approval for mass surveillance is required from court.

Now we will see how the privacy issues regarding surveillance or wiretapping handled in the future by the course of time in courts.

References:

1. Stephen B. wicker and Schrader IEEE paper – Privacy Aware design principles

2. http://indconlawphil.wordpress.com

Ayush Gupta
MSCLIS IIIT Allahabad