By Praveen Dalal
The central monitoring system (CMS) project of India is both controversial and important at the same time. The CMS project of India is controversial as it has been proposed to be used for the purposes of telephone tapping in India. In the absence of a constitutionally sound telephone tapping law in India and lawful interception law in India, this is simply an encroachment upon the civil liberties of Indian citizens. It is also violation of Human Rights in cyberspace.
India must maintain a balance between civil liberties and national security requirements. India has failed to do so. Whether it is the Indian Telegraph Act, 1885 or the Information Technology Act, 2000, phone tapping in India is not done in a constitutional manner. Similarly, e-surveillance in India and surveillance of Internet traffic in India are also not performed as per the mandates of Indian Constitution. India must understand that the big brother must not overstep the constitutional limits.
The government has to maintain a balance between civil liberties like right to privacy and law enforcement requirements. If a provision mandating compulsory cell phone location tracking for all the phones and others is formulated, it would fell afoul of the constitutional and statutory protections in India.
As on date, phone tapping can be done only through the procedure prescribe under the Indian Telegraph Act, 1885. All passive phone tapings that are not authorised under the Telegraph Act are illegal and punishable. It is immaterial whether a law enforcement agency or private person is indulging in such activity as it would remain illegal and punishable for both in such circumstances.
The real problem is that the law enforcement and intelligence agencies of India are not subject to any practical and effective parliamentary oversight. Indian government must not only make them accountable to the parliament but also formulate new laws keeping in mind the contemporary requirements. The Telegraph Act has long served its purpose and it deserves a complete rejuvenation.
The CMS project of India is also important as it is an indispensable tool in the hands of Indian government and the law enforcement/intelligence agencies of India to manage its law enforcement and intelligence related tasks in a more appropriate and timely manner.
The CMS project is a “centralised mechanism” where telecommunications and Internet communications can be analysed by the Indian government and its agencies. The CMS project of India is a good and ambitious project that is required to manage national security and law and enforcement requirements of the country. However, adequate “procedural safeguards” must also be established in the system so that it is not abused for political and personal reasons.
We at Perry4Law Organisation and Perry4Law’s Techno Legal Base (PTLB) believe that a holistic and comprehensive law on telephone tapping in India as well as governing related aspects must be formulated in India. For instance, the cell site data location laws in India and privacy issues must also be covered by the proposed 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 the new legislation.
A national e-surveillance policy of India must be formulated that should cover both policy and legislative issues pertaining to CMS project and telephone tapping relating issues. Call data record (CDRs) must also be regulated and protected by adequate and strong laws.
Indian government has already started working in the direction of making the CMS project operation in the month of April 2013. A new mechanism will be put in place by the Indian government to eliminate the loopholes in authorised phone tapping by intelligence and enforcement agencies.
Under the proposed framework, a centralised mechanism would be adopted where the need to approach individual telecom service providers would be obviated. This would exclude the interaction with these service providers and make the entire process of telephone tapping more secure and leak proof. However, this would also result in abusing the telephone tapping mechanisms in the absence of adequate procedural safeguards.
The CMS project would be brought under the Department of Telecom (DoT) and will be manned by the Intelligence Bureau (IB). Some procedural changes have also been introduced in this process. For instance, a clear electronic audit trail of the phones tapped would be maintained. This would eliminate the traditional paper based trail procedure that is cumbersome and prone to leak. The entire phone-tapping system will also move to an electronic platform from the current manual system.
The CMS project, based in New Delhi, would also have four hubs in major cities of India. Proposal to curtail the discretionary power of agencies to listen into phone calls may also be implemented. The telegraph act may be suitable amended to reflect these changes.
As per the present regulatory framework, in cases of urgency the agencies can tap phones for seven days without obtaining permission. With the migration to electronic platform and adoption of CMS project, the request for sanctions will also be sent electronically which will cut down the time to obtain permission.
At Perry4Law and PTLB we believe that it would be even better if we ensure parliamentary oversight of intelligence agencies of India as well. Further, we also believe that it is high time to formulate a comprehensive and holistic telephone tapping and related law for India. We also understand that this is a very difficult and delicate task and may face stiff resistance from various quarters but the tough call has to be taken by Indian government immediately.