Illegal and unlawful e-surveillance is very common in countries like United States, United Kingdom and India. All these countries have been managing many e-surveillance oriented projects even at the cost of Human Rights violations. Their operations have become omnipresent and pervasive and even Judiciary of these countries has become helpless. India has taken this exercise at a level that even U.S. and U.K. cannot match. India has launched the ultimate and unconstitutional e-surveillance tool named Aadhaar and has created a “Digital Panopticon” named Digital India.
There is a universal lack of parliamentary oversight of intelligence agencies and this has given them a free hand to indulge in illegal and unconstitutional e-surveillance and eavesdropping. Google has already opposed the proposal to expand the FBI’s search warrant powers but at this point of time civil liberty activists and technology companies are fighting a lost battle. This is so because there are no laws at place that can make the governments and their agencies accountable for their wrongs. Even many companies have little respect for civil liberties and cyber security of their end consumers. Of course there are some companies like Microsoft that have adopted a robust cloud privacy framework to protect the privacy of its customers.
Communications between two individuals or entities are presumed to be private and confidential and the government and its agencies have no business to eavesdrop the same. This is more so in case of “privileged communications” like those taking place between a lawyers and his client. In shocking news it has been reported that U.K. intelligence agencies have been monitoring conversations between lawyers and their clients for the past five years in an unlawful manner and the U.K. government was well aware of the same. This has happened because there is no international recognition of Human Rights in Cyberspace as on date. Even United Nations has failed on this front to protect Human Rights of citizens in cyberspace.
Recently a British court ruled that the U.S. – U.K. surveillance regime was unlawful for seven years. This means that the regime has also failed to comply with the European convention on human rights. U.K. government is already facing a trial where it has been accused of unlawfully intercepted conversations between lawyers and their clients. The case is due to be heard before the Investigatory Powers Tribunal (IPT). It is being brought by lawyers on behalf of two Libyans, Abdel-Hakim Belhaj and Sami al-Saadi, who, along with their families, were abducted in a joint MI6-CIA operation and sent back to Tripoli to be tortured by Muammar Gaddafi’s regime in 2004.
A government spokesman said that the intelligence agencies would now work with the interception of communications commissioner to ensure their policies satisfy all of the UK’s human rights obligations. Nevertheless the incidence is sufficient to raise questions about violation of right to fair trial of the victims. A draft interception code has also been recently published to streamline interception related issues. The government spokesman said the draft code set out enhanced safeguards and provided more detail than previously on the protections that had to be applied in the security agencies handling of legally privileged communications. The draft code makes clear that warrants for snooping on legally privileged conversations, emails and other communications between suspects and their lawyers can be granted if there are exceptional and compelling circumstances. They have to however ensure that they are not available to lawyers or policy officials who are conducting legal cases against those suspects.
We at Centre of Excellence for Protection of Human Rights in Cyberspace (CEPHRC) believe that similar protections must exist in India where there is no constitutional lawful interception law in existence. There is an urgent need to bring intelligence agencies reforms in India so that civil liberties of Indians can be safeguarded.