A nation is more than just a government and its citizens. It thrives on its socio-economic and political cultures that have dominant influences over society. It's an amalgamation of news agencies holding governments accountable through critical journalism, governments passing bills and policies to suit their convenience, activists protesting, or business tycoons pocketing a lion's share of the economy’s wealth. However, one common factor shared among almost all of them concerns their vulnerability to threats. Individuals and institutions alike are constantly either plotting strategies to infiltrate into the systems of their interest groups or strengthening their own defense mechanisms to deter any form of insecurity. This can be seen in diplomatic relationships and also in geopolitical relations in the forms of a nuclear arms race and so on.
Amid all this, a government’s primary incentive lies in keeping itself in power. Their power, however, is consistently vulnerable to internal as well as external threats. Therefore, in order to continue to exercise their influence within the country, a sustained refuge is taken by them more often than not, in the buzzword - ‘National Security'. National security is supposed to be a government’s first and foremost duty. It ensures the protection of a nation’s fundamental and enduring needs such as protection from terrorist attacks. This also extends to ensuring financial security as well as protecting the existing resources of the country through protectionist policies. However, in the present circumstances, it has often been misrepresented and retrofitted to align the concept of nationalism with the prevalent political party’s ideologies. If any action has the potential that would lead to the fallibility of the standing government, it is deemed as a potential threat to national security, an exposé of the corrupt means of the state. For instance, during the time of President Nixon, the National Security Council (NSC) was instrumentalized to limit the activities of entities such as The Washington Post from letting them shed light on public forums regarding the Watergate Scandal. The Scandal concerned President Nixon, engaging his men in corrupt means such as breaking into democrat offices, wiretapping their phones, and stealing their confidential documents following elections in 1972.
National Security, Constitutional Rights, and Spyware
In a similar context, ‘National Security’ is often seen as a ruse to constrain the Right to Privacy and the Right to Information. Afforded, at different degrees, to every citizen of a country both rights stand compromised by governments in the name of ‘National Security’. A state often attains extra privileges which include but are not limited to suspension of certain fundamental rights if they claim a “threat to National Security”. What the political leaders often end up doing is - play fast and loose with what actually qualifies as a threat. As a result, they often end up limiting the rights of individuals who demand transparency regarding the workings of the present government by claiming sensitive and vulnerable information that cannot be disclosed so as not to risk national security or violate the privacy of those who engage in public dissent against the prevailing political party in the hope to find incriminating evidence to put them behind bars such as grounds for filing UAPA or acquisition of drugs again claiming national security. Use of high-tech gadgets to infiltrate the privacy of citizens and not allow any information regarding the same to the public on grounds of national security is just another means for the government to get their way and continue to stay in power under pretentious democracy.
Spyware is a gadget that enables a user to obtain covert information concerning another’s computer activities by transmitting data anonymously from their hard drive. Government officials justify using such software among many other military-grade technological equipment to protect themselves from external virtual perils in the interest of National Security. Mueller’s Report concerning Russian interference in US elections via hacking is a testament to that end.
Understanding the Pegasus Scandal
Pegasus is one such spyware that was originally licensed by Israeli cyber arms firm NSO Group Technologies (NSO standing for Niv, Shalev, and Omri- founders of the company) to help the vetted western governments target terrorists and major crime syndicates. It can be covertly installed on mobile phones running most versions of iOS and Android. However, in 2019, WhatsApp had sued NSO in a United States court for engaging in breach of privacy of their users through the Pegasus spyware. There was no hard evidence and the case failed to draw any popular attention at that time.
The issue then resurfaced very recently in July 2021, which took the world by storm. The international community realised that they were at the precipice of technological catastrophe when Forbidden Stories (a Paris-based journalistic nonprofit group), and Amnesty International (a human rights group) released a list in public forums. The list claimed to contain a leaked database of 50,000 phone numbers from an unknown source, which were the potential and alleged targets for surveillance by clients of NSO Group.
The targets included influential portfolios from all over the world belonging to journalists, human rights activists, and business executives. Famous Indian personalities like Rahul Gandhi (Member of Indian Parliament and Indian National Congress), Alok Verma (former chief Central Bureau of Investigation), K.K. Sharma (Head of Border Security Force, India) were a few mentioned in the list. Additionally, there were two women, who had been deemed close to the infamous murdered Saudi journalist- Jamal Khashoggi, according to an investigation led by The Washington Post and 16 other media houses in a joint operation known as The Pegasus Project. Further research and forensic lab reports conducted on the targeted mobile phones confirmed legitimate tampering of a subset of the devices.
Nowadays, every sensitive aspect of an individual’s life has some sort of imprint of it on their phones- such as passwords, bank details, private information vulnerable to being used as leverage as well as extortion. Access to the same could be a monumental feat for institutions and governments who were trying to keep lobbyists such as political oppositions at bay. Hence, while the whole world was grappling with the idea of their privacy being compromised and their autonomy potentially restricted, this scandal was given a political lens in India. It was alleged by the concerned public and fuelled by the opposition parties on the revelation of the list that the Indian government had, for all intents and purposes, used pegasus to spy on its influential citizens to curb the threat to their seat of power by potentially exploiting their sensitive information.
The Indian Context
On June 18, 2021, The Wire (an Indian news outlet) published a report on the Pegasus-gate concerning the Indian background where they inferred that most of the judges, activists, and journalists were targeted between 2018 and 2019, in the run-up to the 2019 Lok Sabha elections.
Three main entities come to be highlighted via the report and the scandal, namely:
1. The Opposition party, namely, Congress and Editors Guild of India: Addressing a press conference, Congress chief spokesperson Randeep Singh Surjewala held Home Minister Amit Shah responsible for the alleged infringement and demanded his resignation while the investigation was going on, for failure to ensure domestic security. In the meantime, they pressed on the government to release information regarding their engagement with Pegasus on grounds of RTI. The government however refused to cooperate with the demand, citing national security issues on disclosure of any of their military equipment. The Editors Guild on the other hand filed a petition before the Supreme Court seeking a court-monitored probe by a Special Investigation Team (SIT) into the reports of the alleged hacking by government agencies using the particular spyware. The case is currently pending and scheduled for a court hearing in the near future, the date being still under deliberation.
2. The National Government: A lot of conjectures plausibly concerning Pegasus spyware have been used in toppling the Congress-JDS government in Kerala by BJP (the ruling party in India). Additionally, more than 25 residents of Kashmir Valley being targets of the said list have raised explicit skepticism regarding BJP’s democratic integrity.
Information Technology and Communications Minister, Ashwini Vaishnaw dismissed the concerns by claiming all allegations as conspiracies to besmirch the stronghold of the central political party among the voters, given the Monsoon session of the Parliament was knocking at the door. The refusal of the Modi government to take any accountability in this matter or acknowledge the same might arise from the sheer lack of evidence that would link the spyware to the ruling party.
The only comment made by the Government of India entailed an assurance of an efficient check and balance mechanism within the administration (Times of India, 2021). This check monitors that certain safeguards are being followed to avoid overboard surveillance, the details of which remain confidential. While other countries including the French government have ordered a thorough investigation into the matter, the Indian response to the chaos in terms of its resistance to the investigation proves to be an outlier.
3. NSO Group, Israel: The firm has denied all allegations of any misuse of the technology on unassuming civilians, which means that they continue standing their ground on the spyware only being sold for the unipolar purpose of countering terrorism in western countries. However, they are not at liberty to reveal the names of their clients. They have claimed the reports to be uncorroborated and misleading even though the exposé has been led by household names in the sphere of journalism such as Washington Post, The Hindu, and so on. The company is also considering filing a defamation lawsuit against the sources of this row if the situation escalates further (The Wire, 2021). The Israeli government had raided the NSO offices following the revelation of the list by the media houses. This involved entities from multiple governments, the information regarding which could possibly sabotage the geopolitical relations of Israel on the international platform. The company spokesperson has claimed that the search would prove their innocence.
Is India prepared to become a surveillance state?
Communication surveillance in India takes place primarily under two laws - the Telegraph Act, 1885 and the Information Technology Act, 2000. While the Telegraph Act deals with interception of calls, the Information Technology Act has been enacted to deal with surveillance of all electronic communication, following the Supreme Court’s intervention in the Act in 1996. However, even though the aforementioned statutory acts exist, a comprehensive data protection law to address the gaps in the existing framework of surveillance is yet to be enacted. Right to Privacy, a vital component of freedom, has the ability to potentially distort and exploit one’s personal data to the extent that it can restrict one's autonomy. Personal details turn into vital commercial information for private service providers. Hence the absence of laws protecting the privacy of individuals would pave a way for ambiguity and loopholes in public policies which would be taken advantage of and exploited by concerned authorities. For instance, China, known for mass surveillance and consequently encroachment on civil liberties, has made individuals trapped in a manner that they cannot even use social media unauthorized and generated by the Chinese government. Therefore, this very nature of mass surveillance is contradictory to the autonomous principles of democracy making China a semi-authoritarian state wherein democracy exists only as a virtual concept.
At this juncture, India needs to be cognisant of the safeguards that are in place to resist overstep in surveillance from the state and check their efficiency to avoid becoming the next China. As rightly pointed out, “Privacy is not about the wish to hide, as is often asserted. It is about having a space of one's own where our thoughts and being are not the instrument of someone else's purposes. It is an essential component of dignity and agency”- Advocate ML Sharma in the plea filed for SIT Probe.
Author’s Bio: Anwesha Bhajan is currently pursuing her graduation at Symbiosis School of Economics. She takes interest in topics pertaining to philosophy, political economy, and social issues.
E-mail: anwesha.bhajan.2020@sse.ac.in