Opposition leaders are calling it Orwellian and the government is calling it routine. Where lies the truth?
The Ministry of Home Affairs on Thursday issued and notified an order that gave 10 security and intelligence agencies the power to intercept, monitor and decrypt of any information on any computer. The move has been roundly been attacked by opposition parties as an attack on the Right to Privacy, civil liberties and personal freedoms, and as a move that opened the doors for mass electronic surveillance.
However, the Ministry of Home Affairs has said the order does not confer any new powers.
Here is what you need to know:
What happened?
Union Home Secretary Rajiv Gauba on Thursday issued an order authorising 10 security and intelligence agencies access to any information that was created, sent, received or stored on any computer resource. The definition of 'computer resource' in the IT Act is wide enough to include not just computers, laptops and tablets, but also smartphones and smartwatches.
So, what exactly can they access?
The 10 agencies can access this information with or without your cooperation. If an authorised official of one of these agencies asks you to hand over your device, you could face seven years in prison and/or a fine. Your service provider, if asked for information or traffic data pertaining to you, will have to comply or face three years in prison and/or a fine.
Can they access anybody's information?
Technically, yes. But each and every individual case will require prior approval. The Ministry of Home Affairs says it has not delegated the power to approve these applications to any of the 10 agencies. That means each individual or entity that has to be intercepted or placed under surveillance will need to be approved beforehand by the Home Ministry.
Why was this order issued?
The law allows such an order to be passed if the Union Home Secretary feels it is in the interest of the sovereignty or security of India, its relations with other countries, the maintenance of public order, or the prevention or investigation of any related acts. The reason for issuing the order has to be recorded in writing, though there is nothing to say the reason has to be made public.
The law also allows the Union Home Secretary to pass this order only when he/she determines that it is not possible to obtain the information in other reasonable and legal means.
What's different about this order?
This is difficult to address. Such orders are pretty routine. The Ministry of Home Affairs has insisted that it confers no new powers. So, it may only have been giving a greater number of agencies the go-ahead to carry out monitoring or surveillance operations. The government is yet to clarify. However, three weeks ago, DNA had reported that the Delhi Police was going to be empowered with 'one touch' tracking system to track radicalisation on social media platforms. This order seems procedural, to enable other decisions.
What agencies that now access your information?
The 10 agencies that can now access any data you have are the Intelligence Bureau (IB), Narcotics Control Bureau (NCB), Enforcement Directorate (ED), Central Board of Direct Taxes (CBDT), Directorate of Revenue Intelligence (DRI), Central Bureau of Investigation (CBI), National Investigation Agency (NIA), Research and Analysis Wing (RAW), the Delhi Police Commissioner and the Directorate of Signal Intelligence (Only for Jammu and Kashmir, Northeast and Assam).
How long will these sweeping powers be in place?
The Union Home Secretary's order has not lined out a specific time period. That means the order will remain in force for 60 days, unless it is revoked earlier. It will then have to be renewed for another 60 days, and cannot be in force for more than 180 days at a stretch.
Are there any checks and balances?
The order could also be set aside by a Review Committee, if the reason for its issue or the way it is being implemented are at odds with the law. The Union Home Secretary is required to submit the details of the order to the Review Committee within seven working days. The Review Committee will consist of the Cabinet Secretary, Telecommunications Secretary and the Legal Affairs Secretary.
What are the laws and rules that are involved in this order?
Section 69 (1) of the Information Technology Act of 2000 empowers the Union Home Secretary to issue the order.
Rule 4 of the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules of 2009 allows the Union Home Secretary to authorise government agencies to carry it out.
Rule 11 dictates the period for the order to be in place. Rule 13 makes it mandatory for service providers to provide full co-operation and assistance. Rule 8 says this order can be passed only if the information in question cannot be obtained by other reasonable or legal means.
Rule 7 mandates the Union Home Secretary to ensure that a copy of the order is sent to the Review Committee within seven working days. Rule 22 says the Review Committee needs to meet at least once every two months and place on the record if the implementation of the order is in accordance with all the related laws and rules. The Review Committee is constituted under Section 419 (A) of the Indian Telegraph Rules of 1951, which was notified on February 2, 2014.
What devices and information are covered by this order are dictated by the definitions of 'computer', 'computer system', 'computer network', 'computer resource' and 'data' as per the Information Technology Act of 2000.
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