- MHA Notification: On December 20, 2018, the Ministry of Home Affairs issued a notification authorizing 10 central agencies to intercept, monitor and decrypt any computer information causing a massive outrage on the expanding surveillance powers and the threats to informational privacy.
- IFF's Petition: We along with a batch of other petitioners challenged the MHA Notification. IFF has also challenged the principal power of interception for computer systems under Section 69 of the Information Technology Act and the rules made under it.
- A case of sweeping significance: Our petition is aimed at greater reforms and oversight of surveillance in India. As the worlds largest digital democracy, with the second highest number of internet users, it seeks greater safeguards and is the first substantive judicial challenge on surveillance powers in our new digital society.
- Supreme Court issues notice: Today, i.e. January 14, 2019, the Supreme Court after hearing arguments by lawyers, including IFF's lead counsel, Mr. K.V. Vishwanathan, Senior Advocate was pleased to agree to hear the case. It seeks the government's response in 6 weeks.
Preventing India from turning into a surveillance state
One of our public mandates is to ensure that informational privacy in the digital age is protected. To do this we often engage with the institutions of the state. For instance, on the legislative side, our #SaveOurPrivacy campaign includes a model law called the Indian Privacy Code, 2018 which includes surveillance reform. Given that privacy is a fundamental right, in addition to having a statute (a law enacted by parliament), we also need to check the power of the government to snoop and bring accountability to the process.
Many people wonder and say, that surveillance will not happen to them (click here to see how easy it is). But this is simply not true due to modern technologies which pervasively and persistently gather personal data of individuals. This is a problem which is further compounded by the wide powers of the Government which are concentrated in the executive branch of government to request, retain and collect this data. This power which was originally in place in the Indian Telegraph Act (which would ordinarily apply to telephone conversations) made its way to the Information Technology Act in Section 69.
Now, many commentators in the past have noted that this is a problem. The orders for interception do not have any meaningful checks and balances. The entire process is opaque and this by itself tremendously threatens privacy. Now imagine this pre-existing power applying to all your digital data. It becomes incredibly frightening.
The need for judicial intervention
When the Ministry of Home Affairs on December 20, 2018 issued a notification authorising 10 central agencies under Section 69 to conduct digital surveillance there was massive media outrage. Many termed it as an attack on our online privacy and with good reason. Some of this commentary can be found on our twitter thread and our previous post.
Since these threads did not seem to be any closer to a remedy, it became clear to us that we would have to approach a court for remedy on behalf of the crores of Indians who are online and many more who are joining in every day. It was a question of their autonomy and ability to free from the constant watch of a government, to enjoy liberty and their fundamental rights in a society that is increasingly digitized.
In this case, we joined with other petitioners (who filed their own independent petitions) including, Mr. M.L. Sharma, Mr. Amit Sahni, Mahua Moitra and Shreya Singhal. At present we are not precisely aware of the scope of their challenges, but to a large measure are confident they share cause in a challenge to over-broad, unaccountable surveillance. Our petition challenges, Section 69 of the Information Technology Act; the Interception Rules, 2009; and the MHA Notification and we are providing a public copy as a public charitable organization working on an issue of public interest.
Proceedings in the Supreme Court
Our legal team is lead by Senior Advocate K.V. Vishwanathan who was assisted by a superb team of lawyers including Karan Lahiri, Vrinda Bhandari, Gautam Bhatia and Sai Vinod. Our advocate on record is Prateek Chadha. Working together they were today (in addition to other petitioners and their distinguished senior counsel) able to persuade the Hon'ble Supreme Court in a bench presided by the learned Chief Justice of India, Shri Ranjan Gogoi to issue notice and require the government to file a response. This means this case will get heard by the Supreme Court and indicates hope towards the possibility of surveillance reform in India.
We will keep updating all of you on its progress. This is an incredibly important case for the future of digital privacy and we request everyone to pay close attention to it.