Human Rights Protection In Cyberspace Must Be Internationally Recognised

Praveen Dalal-Managing Partner Of Perry4Law And CEO Of PTLBHuman Rights and Civil Liberties are witnessing a precarious time where the respective Governments of various Nations are least concerned about them. Governments and their Agencies are openly engaging in Illegal and Unconstitutional E-Surveillance and Eavesdropping. Since there is no clear cut “International Obligations” on the part of our respective Governments to the contrary, these Governments are absolutely free to do whatever they want. The only solace can be found in the form of the text approved by the United Nations regarding Right to Privacy in the Digital Age.

This situation is further made worst due to Conflict of Laws in Cyberspace that allows the Nations to adopt and use their own Policies regarding E-Surveillance and Eavesdropping. Take the example of India. There is nothing like Civil Liberties Protection in Cyberspace in India. On the contrary, India is one of the most Endemic E-Surveillance Nation of the world. India has been engaging in numerous Illegal and Unconstitutional E-Surveillance Project that also without any Parliamentary Oversight and Judicial Scrutiny. The Privacy Rights in India in the Information Age have no meaning as we have no dedicated Laws in the fields of Privacy and Data Protection (PDF).

As on date, Mass Surveillance in India is omnipresent. For instance, projects like Aadhaar, Central Monitoring System, Network and Traffic Analysis System (NETRA), National Intelligence Grid (NATGRID), National Cyber Coordination Centre (NCCC), etc are E-Surveillance Projects that are not supported by any Legal Framework and Parliamentary Oversight. In fact, Vodafone has confirmed that India has been using “Secret Wires” in the Telecom Infrastructure to indulge in E-Surveillance. Indian Department of Telecommunications suppressed the whole incidence with a mere assurance of “Investigation” that never took place. As per my personal information, no “Public Report” was made available in this regard by Indian Government so far.

Intelligence Agencies like GCHQ and NSA intercepted and stored webcam images of millions of innocent Internet users. The Command and Control (C&C) Servers of Malware FinFisher were found in 36 Countries, including India. There are also strong grounds to believe that India and United States are collaborating on Illegal and Unconstitutional E-Surveillance and Eavesdropping. There is an urgent need to take up the issues of Civil Liberties Violations at the International Level among various stakeholders.

A good initiative in this regard has been taken by the Hague Institute for Global Justice. The Hague Institute has constituted a High Level Commission known as the Commission on Global Security, Justice and Governance (PDF). The official website of the Commission states that Humanity is facing unique and growing range of challenges like political violence, environmental decay, cyber insecurity and cross-border economic shocks. These issues have global security and justice implications that need urgent attention but far exceed state and global institutional capacities.

To overcome this capacity deficit, The Hague Institute for Global Justice and the Stimson Center have convened a Commission on Global Security, Justice, and Governance. The Commission also brings together a select group of eminent statespersons and public intellectuals to draft and recommend reforms in this regard that would be considered during the 70th Anniversary Summit of the United Nations in September 2015.

This can be a good opportunity to consider and debate about Civil Liberties Protection in Cyberspace by various Nations. There is an urgent need to bring Transparency, Accountability and Parliamentary Oversight of the Illegal and Unconstitutional E-Surveillance activities of various Nations, including India.  The United Nations and its Affiliates/Agencies can play a pro active role in this regard.

I hope and wish that the Commission on Global Security, Justice, and Governance would consider all these issues so that Governments can behave in a “Responsible and Accountable Manner”.

E-Surveillance Projects Of India Need Parliamentary Oversight And Judicial Scrutiny

Praveen Dalal-Managing Partner Of Perry4Law And CEO Of PTLBThe National Intelligence Grid (NATGRID) Project of India is an intelligence related project of Indian Government that is intended to give Intelligence Agencies a “Centralised Access” to information of Indian Citizens/Residents. It is part and parcel of other Centralised E-Surveillance Projects of India like Central Monitoring System (CMS) Project of India, Internet Spy System Network and Traffic Analysis System (NETRA) of India, Crime and Criminal Tracking Network and Systems (CCTNS) Project of India, Aadhaar Project of India, etc. All these Projects are operating without any Legal Framework and without any Parliamentary and Judicial Scrutiny.

Although the BJP Government has not decided about the fate of National Counter Terrorism Centre (NCTC) of India yet it is supporting the NATGRID project. BJP seems to be following the Congress tradition of Non Transparency and Non Accountability regarding Law Enforcement Agencies and Intelligence Agencies of India. Conferring any sort of Legal Immunity upon such Agencies would further complicate the scenario.

It is not the case that BJP Government is not aware of these circumstances. However, BJP has preferred not to take any action in this regard and this may create serious “Constitutional Issues” in the near future. Indian Citizens, Organisations and Entities are also well within their “Constitutional Rights” to refuse to cooperate with these e-Surveillance Projects as a compliance with illegal demands of projects like NATGRID, CCTNS, CMS, NETRA, Aadhaar, etc would  make them liable for various Civil and Criminal Liabilities. Similarly, Privacy Rights in India and their violations would also raise serious “Legal and Constitutional Issues”.

Recently Banks in India refused Aadhaar based authentication for banking purposes. Reserve Bank of India (RBI) has also postponed the implementation of biometric authentication for credit card swipe machines and ATMs due to protest by Banks of India. Now Banks in India refused to give direct access to NATGRID Project of its Customer’s Details.

Indian Laws and Polices are heavily leaning in favour of Illegal E-Surveillance, Phone Tapping and Eavesdropping. For instance, there is an urgent need to repeal the Telegraph and Cyber Law of India. There is also an urgent need to formulate a Lawful and Constitutional Interception Law of India as Phone Tapping in India is widely done in an Illegal and Unconstitutional Manner. E-Surveillance Policy of India is also required to be formulated that can specify the modes, manner and scope of E-Surveillance in India.

The Telecom Policy of India and Telecom Security Policy of India must also be aligned with the Constitutional Protections and must be clean from E-Surveillance Oriented Approach. India’s International E-Surveillance Collaborations must be subject to “Constitutional Restrictions and Judicial Scrutiny”. India has been using Illegal E-Surveillance and Secret Wires to indulge in Surveillance related activities. Even the claim of investigation by Indian Department of Telecommunications (DOT) regarding Government Snooping Allegations by Vodafone proved to be a Sham and Façade only as no “Public report” has been shared by DOT and Indian Government in this regard so far. The matter seems to have been “Put Under the Carpet” forever.

Clearly Illegal E-Surveillance, Phone Tapping and Eavesdropping would continue to exist in BJP led regime and Indian Citizens must protect their Civil Liberties in Cyberspace and real space on their own.

Supreme Court Of India Must Immediately Declare Aadhaar Project As Unconstitutional

PRAVEEN-DALAL-MANAGING-PARTNER-OF-PERRY4LAW-CEO-PTLB4Any Government holds the Public Resources in a “Fiduciary Capacity” as a Trustee for the future generation. This is the gist of the Public Trust Doctrine that is frequently applied by Courts around the World while dealing with Environment and natural resources related issues. Can this Doctrine be applied to “Public Money”? I believe it should be made applicable to the hard earned Public Money as well that is given to our Government in the form of various Taxes.

Can Politicians misappropriate Public Money through corrupt means and deposit the same in foreign banks out of the reach of Indian Government? Can Indian Capital be kept out of the reach of Indian Government so that it is not used for Development and Reforms in India? Can Indian Government spend enormous financial resources upon Projects that have no Parliamentary Oversight and are actually violating the protections conferred by the Indian Constitutions?

We all know that the answers to these questions cannot be anything except No. Still all of these Evils and Corrupt Practices are happening in India. When the latest BJP led Government was formed, the Supreme Court of India directed it to Constitute and Notify a Special Investigation Team (SIT) to probe Black Money deposited in Foreign Jurisdictions. The same we promptly done by the Narendra Modi led Government and I really appreciate this “Alacrity and Commitment” of Modi. Now the SIT has been constituted and it has already started functioning.

On the one hand India has recovered $310 million from Finmeccanica helicopter deal while on the other hand a sum of Rs 2,039 crore has been granted in the budget for the Aadhaar Project. India terminated the helicopter deal in January 2014 citing a breach of integrity after allegations of bribery emerged in Italy against executives at Finmeccanica’s helicopter unit. Surprisingly, the Modi Government did not find anything wrong with the Aadhaar Project that has already consumed thousand of Crore of hard earned Public Money without any Parliamentary Oversight, Transparency, and Accountability.

Those who have wasted Crore of hard earned Public Money upon the Illegal and Unconstitutional Aadhaar project must be made answerable to Indian Courts as soon as possible instead of granting further funds to the Aadhaar. This is giving a “Negative Signal” that “Constitutional Norms” are just Paper Words and the Powerful are simply beyond the reach of “Rule of Law”. This is also giving an indication that Politicians are beyond the Scrutiny and Reach of Indian Courts. This is a “Dangerous Trend” that has to be stopped immediately by the Supreme Court of India.

The only solaced for the Modi Government is a promise to formulate Legal Framework for the Aadhaar Project. However, this promise must not face the similar fate as witnessed during the Congress led Government. Even if the Modi Government succeeds in formulating a Law for Aadhaar Project, the same must be Just, Fair and Reasonable. It should not be of the type suggested by the Congress Government as that would not pass the “Test of Constitutionally” before the Supreme Court of India.

The Aadhaar Project is suffering from many “Vices and Illegalities”. These include Civil Liberties Violations, Unconstitutional E-Surveillance Issues, Data security and Cyber Security Issues, Compulsory Nature of Aadhaar, Unaccountable Intelligence Agencies, Foreign E-Surveillance Threats, Telecom Security Issues, Integration with Surveillance projects like NATGRID, Unconstitutional Biometrics Collections, etc. All these aspects make the Aadhaar Project an Unconstitutional Project that was required to be Scrapped by the Modi Government.

The Illegality of Aadhaar Project has already been Challenged before the Indian Courts. The Supreme Court of India has even held that the Aadhaar Number/Card cannot be made Compulsory for availing Public Services in India. The Supreme Court has also prohibited UIDAI from sharing Biometric Data with Indian Government Agencies without Data Owner’s Consent. This may have prompted the Modi Government to suggest Legislation for Aadhaar.

Our readers can access the Interim Order of the Supreme Court at Unique Identification Authority Of India And Anr. v. Central Bureau Of Investigation, SLP (Cr) No(s).2524/2014 (PDF).

Among all this Chaos and Illegalities one this is very clear. The current allocation of Public Funds to Aadhaar Project by the Modi Government has been done at a time when there is neither a Parliamentary Oversight nor any Techno Legal Measures to protect Civil Liberties of Indians. Of course, this is a mere allocation at this time and it would be a totally different story if no fund is utilised till the “Constitutional Roadblocks” are removed by the Modi Government. Till that time the funds must be kept intact.

As per media reports, the UIDAI is planning to spend precious 30 Crore of hard earned Public Money on “Convincing Indians” that Aadhaar is a “Welfare Scheme Project”. This is absurd to even suggest much less accepted as Aadhaar has no “Welfare Elements” attached to it whatsoever. From its present form one can easily deduce that Aadhaar Project is a Draconian E-Surveillance Project that has been launched along with other E-Surveillance Projects like Central Monitoring System (CMS), Internet Spy System Network and Traffic Analysis System (NETRA), etc. The fact is that Indian Government, Aadhaar Project and UIDAI are hiding truth from Indians.

Obviously, the Modi Government would approach the Supreme Court of India to make the Aadhaar Number/Card Compulsory for availing Government Services in India. The scenario has already changed in India as Government Departments are insisting upon use of Aadhaar as the “Exclusive Identity” for availing various Schemes and Services from them. They are making Aadhaar Mandatory despite the “Clear Directions” of Supreme Court. This is not only violation of various statutory provisions but is also a “Contempt of Court” as the Supreme Court’s order is binding upon all Government Authorities.

No Government Agency, Authority or Department can dare to flout Supreme Court’s order unless it has backing of Indian Government either directly or indirectly. If Government Departments and Authorities are insisting upon Aadhaar despite Supreme Court orders and the Indian Government is not taking any “Strict Action” against such Government Departments and Authorities, this is a clear indication that the Modi Government is not interested in following the orders of Indian Supreme Court regarding Aadhaar Project.

It is high time for Indian Supreme Court to declare the Aadhaar Project Unconstitutional and scrap the same till it is in conformity with “Constitutional Norms”. It is equally imperative for the Modi Government to not waste even a single Rupee upon Aadhaar till it is clear of various “Infirmities and Illegalities”.

Aadhaar Project And UIDAI May Be Backed By A Legislation To Give It Legitimacy And Legal Sanctity

Aadhaar Project And UIDAI May Be Backed By A Legislation To Give It Legitimacy And Legal SanctityAadhaar project has been suffering from numerous legal and technical infirmities. This has made the Aadhaar project and UIDAI an illegal and unconstitutional project and authority respectively. In its present form Aadhaar project was a fit case for its scrapping by the Narendra Modi government.

However, the Modi government made a policy decision to continue with the Aadhaar project. The government has also shown its inclination to remove the legal infirmities by which the Aadhaar project and UIDAI are suffering. As per media reports the Modi government is planning to formulate a legislation to make aadhaar project and UIDAI legal.

At the same time, Privacy rights in India must also be protected by Modi government. Modi government must not forget that Privacy is our Human Right and not a government charity. Till now the Modi government has not shown any political will to formulate the privacy law of India.

On the other hand, the Modi government has been continuing with unconstitutional e-surveillance projects like Central Monitoring System and NETRA. There is also no indication that Privacy law of India would be formulated soon. In these circumstances, it would be a tough task for Indian government to formulate a legal and constitutionally sound law for Aadhaar project and UIDAI.

It would also be a futile exercise to make a law for Aadhaar project by simply arranging few provisions here and there. The proposed law must be strictly constitutional in nature to avoid legal challenges before the courts. The illegality of Aadhaar project has already been questioned before Indian courts. The Supreme Court of India has already held that Aadhaar cannot be made mandatory for availing public services in India. The Supreme Court has also prohibited UIDAI from sharing biometric data with Indian Government Agencies without data owner’s consent.

Meanwhile, the Modi government may approach the Supreme Court and seek clarification regarding the stay on government’s move to use Aadhaar for availing benefits of welfare schemes and direct benefits transfer (DBT) schemes. Modi has already asked finance minister Arun Jaitley to try and resolve all legal issues surrounding Aadhaar. However, this is not an easy task and there is no sense in launching Aadhaar project before resolving all these issues.

The Modi government’s first budget has allocated a huge amount of public money for the Aadhaar project. However, not even a single rupee must be spent till Aadhaar project and UIDAI are made legal and constitutional. Much public money has already been wasted and the Modi government must not repeat the mistake committed by Congress government.

Narendra Modi Must Scrap Aadhaar Project As Well Along With The Cabinet Committee On UIDAI

PRAVEEN-DALAL-MANAGING-PARTNER-OF-PERRY4LAW-CEO-PTLB4The Aadhaar Project is the most “Obnoxious” and “Evil” Project that Indian Government has been pursuing till now. In my personal opinion, the very foundation of Aadhaar Project is based upon “Lies and Deception” and this Project should have been “Scrapped” long before. However, the previous Government not only deliberately kept this “Illegal and Unconstitutional Project” alive but also wasted crore of “Hard Earned Public Money” on a Project that is clearly Illegal and Unconstitutional.

I still hold the same opinion about Aadhaar Project, i.e. Aadhaar Project must be “Scrapped Immediately” by the new Government. The Truth is that Aadhaar Project has no “Welfare Elements” involved but it is a “Purely E-Surveillance Project” that is operating in great disregard to “Constitutional Rights” of Indian Citizens.

Fortunately, the Constitutional Validity of Aadhaar Project has been questioned in the High Courts and Supreme Court of India. The Supreme Court has even held that Aadhaar Card/Number cannot be made mandatory for availing public services in India. The Supreme Court has also prohibited UIDAI from sharing biometric data with Indian Government Agencies without data owner’s consent. Even a Parliamentary Committed rejected the proposed National Identification Authority of India Bill 2010 finding it “Inadequate and Unsuitable”.

What is surprising is that despite all these “Illegalities and Irregularities”, the previous Government did not deem it fit to scrap the Aadhaar Project. Now it is the “Constitutional Duty” of the Narendra Modi led Government to scrap Aadhaar Project as soon as possible. Both the Judiciary and Parliament have shown their “Displeasures” against Aadhaar Project and this is sufficient hint for the present Executive to scrap this Unconstitutional Project.

Prime Minister Narendra Modi has already scrapped all the Empowered Groups of Ministers (EGoMs) and Groups of Ministers (GoMs). Now it has been reported that Prime Minister Narendra Modi on Tuesday scrapped four Cabinet Committees, including one on Unique Identification Authority of India (UIDAI), as part of his efforts to minimise decision-making processes. The Prime Minister will also be reconstituting the Appointments Committee of the Cabinet, the Cabinet Committee on Economic Affairs, the Cabinet Committee on Parliamentary Affairs, the Cabinet Committee on Political Affairs and the Cabinet Committee on Security.

This is a “Bold and Good Decision” in the “Right Direction”. The next step should be Scrapping of Aadhaar Project of India as it is a “Remedy Worst than Malady”. Narendra Modi Government must get rid of burdensome projects like Aadhaar and save valuable financial resources for useful public projects alone.

Natgrid Project Of India Needs Techno Legal Implementation

PRAVEEN-DALAL-MANAGING-PARTNER-OF-PERRY4LAW-CEO-PTLB4With the new Government in power, National Security and Internal Security Projects and Initiatives were on the cards. However, none could have anticipated that they would be taken up so early. In some positive developments, the efforts to strengthen the Internal Security of India have already been started. The appointment of the duo of Mr. Nripendra Mishra and Mr. Ajit Kumar Doval was the most crucial step in this direction.

The present efforts to streamline the establishment and running of the National Intelligence Grid (NATGRID) Project of India is another step in this direction. As per media reports, the contractual term of NATGRID CEO Mr. Raghu Raman have come to an end as his tenure has not been extended by the Government. However, avoidance of the establishment of a National Counter Terrorism Centre (NCTC) of India is a major setback for India’s Internal Security. Similarly, Indian Cyberspace must also be protected on a priority basis that has been neglected for long.

The NATGRID Project of India is a very ambitious Intelligence Gathering and Processing mechanism. NATGRID Project of India has gone through numerous stages and finally it is ready to be rolled out. However, from the very beginning NATGRID Project has not been implemented in a coherent and systematic manner due to internal turf wars and bureaucratic hurdles.

There is no doubt that NATGRID Project of India is of tremendous importance for the National Security of India on the one hand and Law Enforcement and Intelligence Requirements on the others. In fact, NATGRID is an essential part of the Law Enforcement Technologies in India.

NATGRID Project of India is not by itself “Intelligence Related Project” but a Project to facilitate Law Enforcement and Intelligence related inputs. Its purpose is to transform raw intelligence information and inputs in a more meaningful “Intelligence Lead”.  The present times is a time of do or die for NATGRID Project. This is more so when its counterpart Crime and Criminal Tracking Network and Systems (CCTNS) Project of India is performing much better.

NATGRID may be a good platform for India to strengthen its Intelligence and Law Enforcement Initiatives. However, it cannot survive in the absence of “Political Will” to make it an effective and responsible tool. With the benefits of NATGRID come the issues of “Accountability and Fairness” in its operation. India must formulate adequate “Safeguards” before making NATGRID functional. NATGRID is an essential requirement for robust and effective Intelligence Agencies and Law Enforcement Functions in India. The only requirement is to ensure that its “Abuses can be Anticipated, Prevented and Remedied”. The NATGRID project must not die like the other projects handled by India from time to time. NATGRID would also require skilled workforce and for that Skills Development for Intelligence Workforce is need of the hour. This would also be required to perform Open Source Intelligence through Social Media Platforms and Internet.

However, above all we have to make necessary changes at the Policy and Legislation Levels. For instance, the National Security Policy of India and Telecom Security Policy of India must be Techno Legal in nature that must “Balance” the National Security and Civil Liberties Requirements in India. There must be “Severe Punishment” for Illegal Phone Tapping that is rampant in India. The Intelligence Agencies of India Need Parliamentary Oversight and the Intelligence Infrastructure of India needs Transparency and Strengthening. There should not be any “Legal Immunity” to Intelligence Agencies of India in the absence of Parliamentary Oversight and the system of “Using Executive Orders” to confer “Legitimacy” upon Intelligence Agencies must be abandoned as soon as possible by the Government.

Enough time has already been wasted for the implementation of NATGRID Project and it is high time to deliver results. Once this is successfully done, the way to constitute National Counter Terrorism Centre of India would also be clear. I hope and wish that NATGRID Project of India would be operational very soon.

Intelligence Agencies Of India Need Parliamentary Oversight

PRAVEEN-DALAL-MANAGING-PARTNER-OF-PERRY4LAW-CEO-PTLBLaw enforcement and intelligence agencies of India are operating in a manner that cannot be considered to be legal and Constitutional in nature. The truth is that intelligence infrastructure of India needs transparency and strengthening. Privacy rights in India in the information age are blatantly violated that also with the aid of unconstitutional laws. Surprisingly India has no e-surveillance policy in effect and illegal e-surveillance projects like NETRA and Central Monitoring System (CMS) are openly operating in India with great disregard to our “Constitutional Norms”.

Firstly, there is an urgent need to repeal draconian laws like Telegraph Law and Indian Cyber Law. Secondly, there is a dire need to formulate dedicated telephone tapping law of India as soon as possible. Unfortunately, Indian Government is not serious about formulating a dedicated privacy law for India. Data protection and privacy rights in India are in real bad shape.

There is no second opinion that a lawful interception law is urgently needed in India. There have been some efforts in this direction in the form of a privacy law for India. It has been proposed that illegal phone tapping in India may attract Rs 2 crore penalties in future. However, before this provision becomes a part of any future law, the intelligence agencies of India have already expressed their apprehensions and reservations in this regard. Intelligence agencies of India are also demanding legal immunity against cyber deterrent acts without any transparency and accountability.

It is also true that the intelligence agencies of India are also not subject to Parliamentary Oversight that is need of the hour. This is more so when even the Right to Information Act, 2005 is not applicable to intelligence agencies and many law enforcement agencies of India. India “must reconcile” the civil liberties and national security requirements but the same is presently missing.

India’s own Projects like Aadhar, National Intelligence Grid (NATGRID), Crime and Criminal Tracking Network and Systems (CCTNS), National Counter Terrorism Centre (NCTC), Central Monitoring System (CMS), Centre for Communication Security Research and Monitoring (CCSRM), Internet Spy System Network And Traffic Analysis System (NETRA) of India, etc are violative of civil liberties protection in cyberspace. None of them are governed by any legal framework and none of them are under Parliamentary scrutiny.

If this is not enough, phone tapping in India can be performed as a “Purely Executive Act” without any “Procedural Safeguards”, including the absence of a “Judicial Scrutiny”. India is one of the few Nations where phone tapping can be done without a “Court Warrant” at the “Executive Level” itself.  The digital life of Indian citizens is not at all safe and is open to various forms of e-surveillance and eavesdropping. In the absence of support form Indian Government, self defence is the only viable option left before Indian citizens to safeguard their digital lives.

Intelligence Infrastructure Of India Needs Transparency And Strengthening

PRAVEEN-DALAL-MANAGING-PARTNER-OF-PERRY4LAW-CEO-PTLB4The intelligence infrastructure of India is not in a very good shape. It is suffering from numerous evils and deficiencies that are impacting its effectiveness and utility. These shortcomings of intelligence infrastructure of India are, primarily, administrative, legal, financial, technological and human resource oriented. There are other related problems as well. For instance, the intelligence infrastructure of India is in big mess.  We need to develop intelligence gathering skills development in India so that effective intelligence can be generated, processed and used in real time.

On the administrative side there is lack of coordination among various intelligence agencies of India. This is further widened by the bureaucratic hurdles that forbid effective coordination and collaboration among various intelligence agencies of India. In fact, intelligence agencies and their functioning were bifurcated among different Government Departments instead of making them accountable to a single Department.  Now we have a chance to bring them together under a single Ministry/Department under Mr. Narendra Modi’s led BJP Government as the proposed Prime Minister’s Office (PMO) would emerge as a “Centralised National Reforms Point” of India.

On the legal side, there is no Parliamentary oversight of these intelligence agencies as well. The 10 points legal framework (PDF) has already been provided by Perry4Law in this regard. On the legislation front, a legal framework on the lines of Intelligence Services (Powers and Regulation) Bill, 2011 must be formulated and enacted by our Parliament. The National Intelligence Grid (Natgrid) Project of India has already been launched. However, a legal framework for Natgrid project of India is also needed as an unaccountable Natgrid is not a panacea for intelligence failures of India.

Further, we need to repeal the laws like Information Technology Act, 2000 (IT Act 2000), Indian Telegraph Act, 1885, etc and come up with better laws so they remain Constitutional. These laws have become an instrumentality to violate Civil Liberties in Cyberspace of Indian Citizens by both our Politicians and intelligence agencies of India. Even private detectives have been exploiting the loopholes present in these laws to violate Constitutional Rights of Indian Citizens. Similarly, crucial laws are absent from Indian statute books. These include law regarding Privacy, Data Protection (PDF), Telecom Security, Encryption, Cloud Computing, etc. that must be formulated urgently.

On the financial side, proper allocation of funds at appropriate time is need of the hour. Intelligence agencies of India need to upgrade their infrastructure, especially technological ones, and in the absence of adequate and timely funding, this usually receives a setback. Bureaucratic hurdles and Inter-Department rivalries have affected intelligence agencies funding in the past and this mistake must not be repeated now.

The technological challenges before the intelligence agencies are very vexing in nature. There has been very negligible technological upgradation and modernisation of intelligence infrastructure of India. Further, there are numerous Cyber Security Challenges before the Narendra Modi Government as on date. Thus, Indian cyberspace must be protected on a priority basis. Both offensive and defensive cyber security capabilities of India must be developed to tackle any future cyber espionage and cyber warfare activities against India and her critical infrastructures (PDF). If done in a legal and “Constitutional Manner”, even legal immunity can be granted to people working to deter cyber attacks against India.

Similarly, to protect India’s interests, the National Counter Terrorism Centre (NCTC) of India must be constituted urgently. The Unsolvable Terrorism Dilemma of India cannot be resolved in the absence of a NCTC and coordinated efforts in this regard. In short, Indian counter terrorism capabilities need rejuvenation by one means or other.

On the human resources front, the intelligence agencies of India should recruit more manpower, especially the tech savvy and young officers. Young field operatives must be trained to do intelligence works.

In short, intelligence agencies of India must not only be strengthened but they must be made more transparent and accountable.

Right To Be Forgotten Enforced Against Google By Court Of Justice Of The European Union (ECJ)

Right To Be Forgotten Enforced Against Google By Court Of Justice Of The European Union (ECJ)Recently the Court of Justice of the European Union (ECJ) held that Google must ensure “Right To Be Forgotten” to its users. This is a significant and landmark judgment against Google that would have world wide ramifications.

Before we proceed further with the judgment, it would be pertinent to analyse the background documents in this regard. These documents are as follows:

(1) Directive 95-46-EC Of The European Parliament And Of The Council On The Protection Of Individuals With Regard To The Processing Of Personal Data And On The Free Movement Of Such Data (PDF) (Directive 95/46/EC)

(2) Regulation (EC) No 1882-2003 Of The European Parliament And Of The Council Of 29 September 2003 (PDF)

(3) Reference For A Preliminary Ruling From The Audiencia Nacional (Spain) Lodged On 9 March 2012 — Google Spain, S.L., Google Inc. v Agencia Española de Protección de Datos, Mario Costeja González (PDF)

(4) Judgment Of The Court (Grand Chamber) (PDF)

(5) Google Spain SL, Google Inc. v Agencia Española de Protección de Datos Judgment in Case C-13112 (PDF) (Press Release)

The ECJ held that Article 2(b) and (d) of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data are to be interpreted as meaning that, first, the activity of a search engine consisting in finding information published or placed on the internet by third parties, indexing it automatically, storing it temporarily and, finally, making it available to internet users according to a particular order of preference must be classified as “processing of personal data” within the meaning of Article 2(b) when that information contains personal data and, second, the operator of the search engine must be regarded as the “controller” in respect of that processing, within the meaning of Article 2(d).

Article 4(1)(a) of Directive 95/46 is to be interpreted as meaning that processing of personal data is carried out in the context of the activities of an establishment of the controller on the territory of a Member State, within the meaning of that provision, when the operator of a search engine sets up in a Member State a branch or subsidiary which is intended to promote and sell advertising space offered by that engine and which orientates its activity towards the inhabitants of that Member State.

Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 are to be interpreted as meaning that, in order to comply with the rights laid down in those provisions and in so far as the conditions laid down by those provisions are in fact satisfied, the operator of a search engine is obliged to remove from the list of results displayed following a search made on the basis of a person’s name links to web pages, published by third parties and containing information relating to that person, also in a case where that name or information is not erased beforehand or simultaneously from those web pages, and even, as the case may be, when its publication in itself on those pages is lawful.

Article 12(b) and subparagraph (a) of the first paragraph of Article 14 of Directive 95/46 are to be interpreted as meaning that, when appraising the conditions for the application of those provisions, it should inter alia be examined whether the data subject has a right that the information in question relating to him personally should, at this point in time, no longer be linked to his name by a list of results displayed following a search made on the basis of his name, without it being necessary in order to find such a right that the inclusion of the information in question in that list causes prejudice to the data subject. As the data subject may, in the light of his fundamental rights under Articles 7 and 8 of the Charter, request that the information in question no longer be made available to the general public on account of its inclusion in such a list of results, those rights override, as a rule, not only the economic interest of the operator of the search engine but also the interest of the general public in having access to that information upon a search relating to the data subject’s name.

However, that would not be the case if it appeared, for particular reasons, such as the role played by the data subject in public life, that the interference with his fundamental rights is justified by the preponderant interest of the general public in having, on account of its inclusion in the list of results, access to the information in question.

We at Perry4Law and Perry4Law’s Techno Legal Base (PTLB) would analyse the legal implications of this decision in our subsequent post(s) at either this blog or other blogs of Perry4Law/PTLB.

DOJ Announces New Reporting Methods For National Security Orders

DOJ Announces New Reporting Methods For National Security OrdersCivil liberties protection in cyberspace is attracting the attention of civil liberty advocates around the world. There is a growing disharmony between national security and civil liberties protection around the world. The national security agency of United States (U.S.) has been targeting foreign nationals and organisation for e-surveillance and eavesdropping. Even malware and radio waves have been used by NSA for engaging in e-surveillance. If this was not enough, Google system managing lawful interception and e-surveillance issues was compromised by crackers.

Meanwhile, the telecom and technology companies in U.S. have been forced with gag orders to not to disclose information pertaining to national security related information requests. Federal Bureau of Investigation (FBI) has been issuing the national security letters (NSLs) for long by showing national security requirements. FBI is maintaining that not only the contents of these NSLs but also the mere fact of its receipt must be kept secret by the recipient of such NSLs.

However, Google’s challenge to FBI national security letters was narrowed down by a U.S. Court. Nevertheless, Google and Microsoft sued U.S. government regarding user data requests under FISA law. Now the U.S. government has realised that this litigation can produce adverse effects for its surveillance activities.

The U.S. government and various technology companies have now decided to take a mid path. A Notice of Declassification by U.S. Government (PDF) has been issued in this regard accompanied with the Deputy Attorney General Letter Regarding New Reporting Methods for National Security Orders (PDF). A Joint Statement by Attorney General Eric Holder and Director of National Intelligence James Clapper on New Reporting Methods for National Security Orders (PDF) has also been issued. The technology companies also filed a Stipulation of Voluntary Dismissal of Action (PDF) in the Court. Thus, for the time being, the litigation has been put on hold without prejudice to the right of these technology companies to raise the issue in future.

Attorney General Eric Holder and Director of National Intelligence James Clapper released the following joint statement Monday:

“As indicated in the Justice Department’s filing with the Foreign Intelligence Surveillance Court, the administration is acting to allow more detailed disclosures about the number of national security orders and requests issued to communications providers, and the number of customer accounts targeted under those orders and requests including the underlying legal authorities. Through these new reporting methods, communications providers will be permitted to disclose more information than ever before to their customers.

“This action was directed by the President earlier this month in his speech on intelligence reforms. While this aggregate data was properly classified until today, the office of the Director of National Intelligence, in consultation with other departments and agencies, has determined that the public interest in disclosing this information now outweighs the national security concerns that required its classification.

“Permitting disclosure of this aggregate data resolves an important area of concern to communications providers and the public.  In the weeks ahead, additional steps must be taken in order to fully implement the reforms directed by the President.

“The declassification reflects the Executive Branch’s continuing commitment to making information about the Government’s intelligence activities publicly available where appropriate and is consistent with ensuring the protection of the national security of the United States.”