The Nation must address the WhatsApp breach: Kapil Sibal

Technology allows access to multifarious forms of information making it a unique medium of empowerment. Yet, technological outreach through social media platforms, using mobiles and computers, has its drawbacks. While we, through technology, can access the world, the same technology can be used to access us. And while individuals’ access to the world may be transparent, access to the private lives of individuals may well be surreptitious. Such surveillance technologies are now available.

In the commercial world, hackers will constantly develop unique means to access information qua their competitors. Businesses will be required to develop technology protection walls to frustrate malicious invasions. The business of multifarious forms of access and diverse forms of enabling protections will thrive in the years to come. But the real challenge lies in the government’s ability to track its own citizens. According to Kapil Sibal, Governments have the habit of stalking them for political advantage. The recent revelations by WhatsApp that an Israeli firm, NSO, a private entity, hacked into an end-to-end encrypted WhatsApp platform is a matter of great concern. The spyware, Pegasus, through which governments invaded the privacy of citizens, was sold by this entity only to governments around the world, and such spyware was misused in several countries. WhatsApp has revealed that some journalists and human rights activists in India were also accessed through their mobile phones with the use of Pegasus.

According to Sibal, there are several questions that need to be addressed by the government. “We need not go into the question as to whether the government was duly informed of the misuse of Pegasus. One thing is quite clear that Pegasus can only be used by governments. While the present government may seek answers from WhatsApp, it is time for us to seek answers from the government.”

• When was the Pegasus purchased?
• Who negotiated the deal?
• NSO, a private entity, must have been paid a handsome sum. What was that amount?
• Who authorized the use of Pegasus, and under whose instructions were journalists and human rights activists accessed?
• Was this access limited only through WhatsApp or were other platforms with end-to-end encryption also accessed?

Pegasus is designed to gain remote access to mobile devices using Android, iOS and Blackberry operating systems. Lastly, was citizens’ privacy violated even prior to the 2019 Lok Sabha elections? If yes, since when? Another question that comes to mind is whether Pegasus is still in use?

WhatsApp has filed proceedings in the Northern District of California for redress. It should be directed to file similar proceedings in India, impleading the Israeli NSO and seek redressal. If not, proceedings in public interest should demand that government comes out with definitive answers arising from the misuse of Pegasus. Since there have been violations of the provisions of Information Technology Act, 2000, and the constitutional right to privacy, a criminal investigation be commenced to bring the guilty to book.

Governments, by their very nature, do not easily respond to the questions raised. While they operate in secrecy, they are reluctant to get exposed through such proceedings. It is time for the courts to become protective, for no one is safe. The protection of individual freedom is a constitutional imperative. It is time for the courts to stand up for our citizens.

Kapil Sibal is former Union Cabinet minister. This is an updated version of an article published in the Hindustan Times.
The views expressed are personal.