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.”

Radio Waves And Malware Used By United State’s NSA For World Wide E-Surveillance

PRAVEEN-DALAL-MANAGING-PARTNER-OF-PERRY4LAW-CEO-PTLBE-Surveillance and Eavesdropping is on rise World over.  It is wrong to blame United States (U.S.) alone for E-Surveillance as it is difficult to accept that other Nations, including India, are not engaging  in such activities. Spying and E-Surveillance has many decades of history and only the form has changed with the advent and use of Information and Communication Technology.

However, what is problematic is the “Fact of Denial” of such E-Surveillance by various Countries. Even worst is the fact that almost all of these E-Surveillance and Eavesdropping activities are performed in an “Unconstitutional Manner”.

In the past it has been reported that U.S. is the biggest buyer of Malware in the World. It is well known that Global Cyber Espionage Networks are being actively and covertly used to Spy on other Nations. This is evident from the fact that the Command and Control Servers of Malware FinFisher were also found in 36 Countries, including India.

Countries across the World have started to strengthen their Cyber Security Capabilities. While protecting their own Cyberspace domain, various Countries must understand that Cyber Security is an International Issue (PDF) and not a National one. Therefore, an International Cyber Security Treaty is Required (PDF). As far as India is concerned, the Cyber Warfare Policy of India (PDF) and E-Surveillance Policy of India (PDF) must be urgently drafted and implemented. Similarly, Self Defence and Privacy Protection in India must be ensured.

During the exposure of engagement of E-Surveillance by the National Security Agency (NSA) of U.S., James Clapper confirmed that NSA is targeting Foreign Citizens for Surveillance. This E-Surveillance is further “Combined” with Tactics and Techniques of Cyber Warfare, Cyber Espionage and Cyber Terrorism, etc. Highly Sophisticated Malware like Stuxnet, Duqu, Flame, etc have been made and used by Nations as Cyber Tools to launch Stealth Cyber Attacks against other Nations.

These Malware used Cyber Attack Methods and Vectors that are far beyond the Capacity of Traditional Cyber Security Mechanisms to Trace and Prevent. This becomes a serious Cyber Security Issue when Critical ICT infrastructures are at stake. For instance, the critical Infrastructure Protection in India and its Problems, Challenges and Solutions (PDF) are still to be looked into with Great Priority by Indian Government. It is only now that India has declared that NTRO would protect the Critical ICT Infrastructures of India. Similarly, a Tri Service Cyber Command for Armed Forces of India is in Pipeline. Nevertheless, the Cyber Security Infrastructure of India is Weak and it must be improved as soon as possible.

Recently, Defence Research and Development Organisation (DRDO) Computer Systems were breached and sensitive files were leaked. India must ensure both Offensive and Defensive Cyber Security Capabilities. Cross Border Cyber Attacks, Authorship Attribution and Cyber Crimes Convictions are very “Difficult to Prove”. This gives lot of space for “Blame Game” and denying the “Culpability” for Cyber Attacks. Countries around the World are blaming each other for Cyber Espionage and Cyber Attacks while not admitting their own Acts and Omissions.

The present Cyber Attack Techniques and Methods are not only “Evolving” but they are “”Specifically Designed” do that they remain “Untraceable” and “Anonymous”. For instance, it has been reported that NSA has been using Radio Waves and Malware for engaging in world wide E-Surveillance. Thus, whether a Computer System is Online, Offline or an Isolate one, the “Combined Technique” of Malware Imbedded Hardware, Spyware and Malware and Radio Waves can allow NSA to get the “Relevant Information” with some effort in this regard.

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.

Recently United Nations (UN) Third Committee Approved Text Titled Right to Privacy in the Digital Age. However, this is not “Deterring” Countries to engage in E-Surveillance in an “Unconstitutional Manner”. Privacy Rights in India in the Information Age need to be protected at the “Constitutional Level” otherwise Privacy would have no meaning in India. This equally applies to other Countries and something must be “Seriously Done” in this regard so that Civil Liberties in Cyberspace can be protected. We must not forget that When Rights are Outlawed only Outlaws will have Rights.

Privacy Rights In India In The Information Age

PRAVEEN-DALAL-MANAGING-PARTNER-OF-PERRY4LAW-CEO-PTLB4We have no Dedicated Privacy Laws in India and Data Protection Laws in India. In fact, when it comes to respecting Privacy of Indian Citizens, Government of India tries its level best to avoid the same.

For instance, India has launched 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. None of them are governed by any Legal Framework and none of them are under Parliamentary Scrutiny.

Further, India is the only country of the World where Phone Tapping and Interceptions are done without a Court Warrant and by Executive Branch of the Constitution of India. Phone Tapping in India is “Unconstitutional” and the Parliament of India has not thought it fit to enact a “Constitutionally Sound Law” for Phone Tappings and Lawful Interceptions. Even the Supreme Court’s directions in PUCL case have proved futile and presently the Court is dealing with the issue once more.

Phone Tapping in India has been in controversies for long. Whether it is Illegal Phone Tapping by Private Individuals or Unaccountable Phone Tapping by Indian Government and its Agencies, Phone Tapping in India has never been smooth.

There is a blessing in disguise in Ratan Tata’s Petition before Supreme Court of India. This is a golden chance for the Supreme Court of India to analyse the “Implementation” of its decision in the PUCL case (Phone Tapping Case). The Supreme Court must “Widen” the scope of Privacy Rights in India not only in the context of Phone Tapping but in an “Overall Manner”. The Supreme Court must formulate and lay down the widest possible “Guidelines” regarding Privacy Protection in India as it has done in the Vishaka’s Case (Guidelines against Sexual Harassment). The Supreme Court has even said that with the Technological Advancement, Privacy is virtually disappearing.

On the front of Legal Framework as well we have no Dedicated and Constitutionally Sound Lawful Interception Law in India. The Indian Telegraph Act, 1885 and other similar Laws are not in “Conformity” with the Constitution of India, especially Fundamental Rights of Indians. Even the Home Ministry of India is considering enactment of a Lawful Interception Law in India.

However, what is more surprising is the fact that the Law Enforcement Agencies and the Intelligence Agencies that indulge in Unconstitutional E-Surveillance and Phone Tapping are themselves Governed by No Law. It is no surprise that the Central Bureau of India (CBI) is also not governed by any Law and it is operating in India Without any Law. It is only now that the Central Bureau of investigation act 2010 was drafted. Till now it is a mere draft and has not become an enforceable law. Even the Constitutional Validity of the National Investigation Agency Act 2008 is doubtful. Even the Draft Intelligence Services (Powers and Regulations) Bill, 2011 has been recently circulated in the Parliament of India. India must urgently formulate E-Surveillance Policy so that the E-Surveillance conducted by Intelligence Agencies and Law Enforcement Agencies of India can be regulated.

Surprisingly, we have no E-Surveillance Policy in India and Legal Framework in this regard. This is despite the fact that many Indian Projects are so E-Surveillance Oriented that they cannot pass the scrutiny provisions of Indian Constitution. Of all these E-Surveillance Projects Aadhar Project of India or Unique Identification Project of India (UID Project of India) is the most “Dangerous Project” that should not be there at the very first place. It is based upon Deceit and Deception and both Indian Government and Unique Identification Authority of India (UIDAI) are Hiding Truth from Indians. There is no Legal Framework, no defined Policies and Guidelines and most importantly no Procedural and Civil Liberty Safeguards.

If this was not enough the sole Cyber Law of India (Information Technology Act 2000) was amended through the Information Technology Amendment Act 2008. The IT Act 2008 made the Cyber Law of India an “Unregulated and Unaccountable” piece of E-Surveillance Legislation. It is now wide open to misuses by Indian Government and its Agencies. Further, the IT Act 2008 also violated various provisions of Indian Constitution and hence is “Unconstitutional” as well. Ideally Cyber law Of India must be repealed as soon as possible.

If Parliament of India has abdicated its duties and Indian Judiciary is watching as a moot spectator, it becomes of paramount importance for Cabinet Committee on Security (CCS), Union Cabinet and Prime Minister’s Office (PMO) to “Disallow” all such Projects till proper Civil Liberty Safeguards and Legal Frameworks are at place.

E-Surveillance Policy Of India Is Needed

PRAVEEN-DALAL-MANAGING-PARTNER-OF-PERRY4LAW-CEO-PTLB4E-Surveillance in India is rampant that also without any Constitutionally Sound Legal Framework and parliamentary Oversight. The issues of E-Surveillance, Civil Liberties Protection in Cyberspace and Conflict of Laws have further complicated the scenario. Recently United Nations (UN) Third Committee approved text titled Right to Privacy in the Digital Age. However, India is treading on a totally different path of E-Surveillance and defiance of Privacy Rights of Indian Citizens.

India has no E-Surveillance Policy and Legal Framework. This is despite the fact that many Indian projects are so e-surveillance oriented that they cannot pass the scrutiny provisions of Indian Constitution.

India has launched 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. None of them are governed by any Legal Framework and none of them are under Parliamentary Scrutiny.

If this was not enough the sole Cyber Law of India (Information Technology Act 2000) was amended through the Information Technology Amendment Act 2008. The IT Act 2008 made the Cyber Law of India an “unregulated and unaccountable” piece of E-Surveillance Legislation. It is now wide open to misuses by Indian Government and its Agencies. Further, the IT Act 2008 also violated various provisions of Indian Constitution and hence is “Unconstitutional” as well.

Parliament of India has been increasingly abdicating its “Constitutional Duties” of Parliamentary Oversight and Law Making. The way Indian Executive takes decisions on behalf of Indian Parliament is really surprising. Some have validly questioned the very purpose and existence of Parliament of India.

We have been suggesting that E-Surveillance Projects like NATGRID must be suitably regulated and they must comply with Civil Liberties Protection Requirements. The Home Ministry of India did not pay heed to these suggestions and now a stage has reached where NATGRID Project may become redundant. So is the status of NCTC.

India has been imposing Projects like NATGRID and Aadhar on false pretexts of National Security and Welfare Schemes. However, this is not the truth. As far as Aadhar Project is concerned, it is an Endemic E-Surveillance Project. Similarly, Projects like NATGRID must Reconcile National Security interests with Protection of Fundamental Rights.

If Parliament of India has abdicated its duties and Indian Judiciary is watching as a moot spectator, it becomes of paramount importance for Cabinet Committee on Security (CCS), Union Cabinet and Prime Minister’s Office (PMO) to “disallow” all such Projects till proper Civil Liberty Safeguards and Legal Frameworks are at place. Further, India must also formulate an E-Surveillance Policy as soon as possible.

Internet Spy System Network And Traffic Analysis System (NETRA) Of India Proposed

Internet Spy System Network And Traffic Analysis System (NETRA) Of India ProposedCivil liberty protection in cyberspace is a crucial area that international community and Internet stakeholders must urgently raise before the United Nations. E-surveillance, civil liberties protection in cyberspace and conflict of laws are some of the crucial issues that United Nations must consider on a priority basis Recently, United Nations passed a resolution approving right to privacy in the digital age.

However, India is in no mood of complying with that resolution. India has launched illegal and unconstitutional projects like Aadhar, central monitoring system (CMS), national intelligence grid (Natgrid), crime and criminal tracking networks and systems (CCTNS), etc without any parliamentary oversight and legal frameworks.

In this entire chaos, Indian government is engaging in e-surveillance in India and surveillance of Internet traffic in India. India must reconcile civil liberties and national security requirements that it is otherwise neglecting for long. Instead of achieving this objective, Indian government has declared that an internet surveillance system known as Network and Traffic Analysis System (NETRA) will soon be launched by the Ministry of Defence to detect words like ‘bomb’, ‘blast, ‘attack’ or ‘kill’ within seconds from emails, instant messages, status updates and tweets reports Indian Nerve. The system will also be capable of gauging suspicious voice traffic on Skype and Google Talk.

The spy system has been developed by the Center for Artificial Intelligence & Robotics (CAIR) laboratory under the Defence Research & Development Organisation (DRDO). It is currently being tested by Intelligence Bureau and Cabinet Secretariat and will be deployed to all national security agencies. In fact the Ministry of Home Affairs will soon ask DRDO to deploy more men at CAIR (working with the Centre for Development of Telematics (C-DoT)) to come up with a solution on how to track the internet so that the system can be brought into play as soon as possible.

“Intelligence Bureau and Cabinet Secretariat are currently testing ‘Netra’, which will be deployed by all national security agencies,” says a telecom department note. In a recently held meeting attended by top officials of Cabinet Secretariat, Home Ministry, DRDO, CAIR, Intelligence Bureau, C-DoT and CERT-In the strategy for deployment of Netra was discussed. Also steps to be taken to counter cyber security incidents, vulnerabilities of a system were discussed along with ways to promote safe IT security practices in the country.

A Maximum of three security agencies, including Intelligence Bureau and Cabinet Secretariat, would be allotted storage of 300GB to accommodate intercepted data while an extra space of 100GB will be assigned to other agencies of law enforcement. The establishment of a national scanning and coordination centre is also in the offing it is learnt.