India is in a habit to indulge in phone tapping and e-surveillance without court warrants and it expected similar treatment from United States. However, U.S. made it very clear that in order to obtain information and data, the judicial route cannot be ignored.
Previously, U.S. refused to serve summons upon Google, Facebook, etc citing civil liberty concerns. This process of serving summons upon U.S. websites through U.S. government was adopted as the Indian subsidiaries of these foreign companies took the defence that they are just sales outlets in India and nothing more.
Naturally, India had to serve summons upon the parent companies by invoking the Indo-US mutual legal assistance treaty but the same failed to materialise in India’s favour. Frustrated by these attempts, India tried to explore all possible courses of actions. These include setting up of servers in India by VOIP providers and other providers providing encryption services, launching India’s own social media platforms, launching of e-surveillance projects like Aadhaar, central monitoring system, national intelligence grid, etc.
The idea is to route all the traffic through Indian servers and systems so that they can be analysed at will and without any intervention of ISPs, social media platforms, etc. However, in its zest to gain unrestricted information access, India has failed to maintain a balance between national security requirements and civil liberty protections. The refusal by U.S. is a good wake up call for India in this regard.
As on date we have no constitutionally sound lawful interception law in India. For instance, the cell site data location laws in India and privacy issues must be suitably regulated by a new law. Similarly, the cell site location based e-surveillance in India and surveillance of internet traffic in India must also be part and parcel of a new legislation.
Indian security agencies are now exploring their options in this regard. One of them is to amend the Information Technology Act, 2000 so that global internet operators providing IT services in India are represented by a duly registered legal entity in India. They believe that this would facilitate them to serve summons upon Indian entitles.