E-Surveillance, Civil Liberties Protection In Cyberspace And Conflict Of Laws

PRAVEEN-DALAL-MANAGING-PARTNER-OF-PERRY4LAW-CEO-PTLBNational Security is a “Vague and Misguided Concept” and under the “Guise of National Security”, the Civil Liberties of Citizens is violated World over, including India. As more and more Technology is being used by Citizens and Netizens, the Law Enforcement Agencies and other Government Agencies have started “Targeting” the Online Dealings of various Netizens.

In almost all of these cases, the Civil Liberties in Cyberspace are violated “Without any Judicial Scrutiny and Legal Framework”. Whether it is United States, United Kingdom, India or any other Country, Intelligence and Security Agencies are openly violating various Constitutional and Human Rights in Cyberspace.

Civil Liberties like Privacy, Free Speech, Right to Know, Right to Share Information, etc are at “Serious Peril” of being compromised forever if immediate steps are not taken right now. None would suggest that Privacy should be given prominence over National Security but at the same some none would say that Privacy Rights and other Civil Liberties can be compromised and infringed for the sake of some “Presumed and Artificial National Security Requirements”.

A “Balance” must be maintained between Civil Liberties and National Security Requirements and they must be “Reconciled” to have the best results. If we give unnecessary importance to either Privacy or National Security, the end result would be “Counter Productive” in the long run.

As on date we have no “Globally Acceptable” Cyber Law Treaty, Cyber Security Treaty and Civil Liberties Protection Treaty for Cyberspace. As a result we have no protection at the International Level against Cyber Crimes, Cyber Attacks, Cyber Espionage, Cyber Terrorism, E-Surveillance, Cyber Warfare, etc. Even the Tallinn Manual on the International Law applicable to International Cyber Warfare is not an Internationally Acceptable Legal Framework. As such it is “Not Binding” upon other Countries and they are free to not to follow the same and its Principles.

Among the respective National Legal Frameworks as well there is neither a “Harmony” nor “Accountability” for violation of Civil Liberties in Cyberspace. Intelligence and Security Agencies are operating without “Parliamentary Oversight”. In Countries like U.S., U.K., India, etc, Intelligence Agencies are either operating “Without a Law” or in “Clear Violation of Constitutional Norms”.

Further, “Surveillance Mechanisms” have been adopted and used to indulge in “Illegal E-Surveillance” World over. E-Surveillance in India has crossed all the “Procedural Safeguards Limits” and these E-Surveillance activities are violating both Constitutional Provisions and Civil Liberties in Cyberspace.

We have “Grossly Offensive” Projects like Aadhaar, Central Monitoring System, National Intelligence Grid (NATGRID), Crime and Criminal Tracking Network and System (CCTNS), etc without any “Parliamentary Oversight” and “Legal Framework”.

In India there is “No Requirement” to obtain a Court Warrant to engage in E-Surveillance and Eavesdropping. Further, with the introduction of Central Monitoring System of India, the scope for “Judicial Intervention” has been absolutely ruled out. The present position reiterates that when Rights are outlawed only outlaws would have Rights. Similarly, the present Cyberspace environment has also proved that Self Defence in Indian Cyberspace and Internet is need of the hour.

The Conflict of Laws Scenario in Indian Cyberspace has reached a stage where immediate Government action is required. India must ensure Techno Legal Measures to Regulated Indian Cyberspace so that both National Security and Civil Liberties can be respected and protected equally.

Strict Laws against Technology Companies and Social Networking Websites like Google, Facebook, etc must also be framed in India so that they can be forced to comply with Indian Laws.

International E-Surveillance Exercises targeted against India and its Citizens must be rebuked and strongly taken care of by India especially when the Intelligence Agencies are “Targeting Foreign Nationals”, including Indian Nationals.

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