MHA Cites Section 69 Of Infotech Act After It Was Asked If It Used Israeli Spyware To Spy On Citizens Using WhatsApp

The Minister of State for Home, G Kishan Reddy, answered that the government has powers to snoop under Section 69 of the Information Technology Act 2000, after he was asked by DMK MP Dayanidhi Maran if the government had deployed Israeli spyware to spy on Indian citizens.

The government also cited Section 5 of the Indian Telegraph Act, 1885, which authorizes specific individuals to view messages in case of a public emergency or in the interest of public safety.

After citing Section 69 of the Information Technology Act 2000 and cited Section 5 of the Indian Telegraph Act, 1885, the government stated that every case which requires spying on Indian citizens is authorized by the union home secretary in case of the union government and by the concerned state home secretary in case the matter relates to a specific state.

However, the government did not answer if it had purchased or deployed the Israeli spyware Pegasus which was used to hack into WhatsApp messages of human rights activists and journalists, among others, or if there was any specific protocol followed to get permissions for tapping of WhatsApp messages and calls.

While the government’s answer to DMK MP Dayanidhi Maran’s question stated that no agency is given any blanket permission to monitor messages and requires permission for each case, it did not explicitly answer specific questions he asked about whether it had deployed the Israeli spyware Pegasus to spy on Indian citizens.

In this connection, it may be recalled that in August 2019, the Supreme Court had passed a unanimous judgment that in the Justice K S Puttaswamy (Retired) versus Union of India case upholding the Right To Privacy as a fundamental right.

Incidentally, Section 69 of the Information Technology Act 2000, which the government has cited, allows state agencies to monitor and decrypt any information stored on any computer on grounds of internal security and this law has often been criticized by right to privacy advocates.

It may be noted that Section 69 of the Information Technology Act 2000 came under scrutiny in 2018 after the government was found to have given blanket permission to 10 government agencies to intercept information on grounds of “internal security”.

Critics had cited that giving such blanket powers to such state agencies as an extreme measure to deny people their Right To Privacy, and even more so, because government agencies like the Delhi Police, the Central Bureau of Investigation (CBI), and the Directorate of Revenue Intelligence (DRI) cannot be strictly termed as organizations concerned with internal security.

Interestingly, though the Israel-based NSO Group which makes Pegasus spyware had maintained that it sold its spyware only to government intelligence and law enforcement agencies, the Indian government claimed in a recent Right To Information (RTI) reply that it had “no information” about whether it had purchased the spyware.

Besides, all authorization orders to spy on Indian citizens issued by the Indian government under Section 69(1), must be reasoned and written down, and must be subject to the procedure laid down in the Information Technology Rules.

As per these rules, all such orders must be scrutinized by a central government review committee or the state in question. Also, all such review committees set up must comprise only of government secretaries, but the answer given by the Ministry of Home Affairs to DMK MP Dayanidhi Maran has stated nothing about whether or not any such protocol was followed.