77
F
REEDOM ON THE
N
ET
2013
I
NDIA
Singhal.
144
Despite this activity, the sole, insufficient reform was a government advisory requiring
senior police officers to approve arrests for social media postings, which the Supreme Court
enforced in mid-2013, outside the coverage period of this report.
145
State surveillance, like content control, is growing in scale and sophistication, and India’s
inadequate legislative framework provides almost no privacy protections. A 2007 Supreme Court
ruling held that wiretapping would potentially violate constitutional protections under Article 19,
the right to freedom of speech and expression and Article 21, the right to life and personal liberty,
unless it was “permitted under the procedure established by law.” The court ordered the creation of
a government committee to review phone tap orders, which are governed by the Telegraph Act,
but did not require judicial oversight.
146
A 2007 amendment was made to 419A Rules which govern
the act, elaborating the procedure and limiting national and state home ministry officials of a certain
rank to order phone taps.
147
The amended 2008 IT Act also allowed both central and state officials to intercept, monitor or
decrypt electronic communications or direct others to do so. Both this and the Telegraph Act
stipulate surveillance should be done to protect defense, national security, sovereignty, friendly
relations with foreign states, and public order, and that it should be subject to approval, limited to
60 days—fewer in emergencies—and renewable for a maximum of 180 days.
148
Yet the IT Act
adds a clause allowing surveillance for “investigation of any offense;” moreover, while the
procedure for high-level government authorization seems to involve a case-by-case assessment,
systematic, mass surveillance is not prohibited.
149
Additional requirements followed in 2011. The government authorized eight separate bodies to
issue surveillance-related orders directly to service providers, from intelligence agencies to the tax
bureau.
150
IT Act regulations required cybercafe owners to copy and retain customers’ photo ID
and browser history for a year.
151
Officials railed against international providers that prevent the
government from tracking users by encrypting communications,
152
and required some, such as
144
Bhadra Sinha, “SC Slams Facebook Arrests, Takes Up 66A,” Hindustan Times, November 29, 2012, http://bit.ly/QOlCy2;
Cordelia Jenkins, “Who is Shreya Singhal?” Live Mint, November 29, 2012, http://bit.ly/RkLiCm .
145
J. Venkatesan, “No Blanket Ban on Arrests for Facebook Posts, says SC,” The Hindu, May 16, 2013, http://bit.ly/1839Eou.
“PUCL Leader Gets Bail in Facebook Post Case,” The Hindu, May 14, 2013, http://bit.ly/129FnAB.
146
Privacy International, “Chapter ii: Legal Framework,” in India, November 14, 2012, http://bit.ly/17cVl1Q; Justice Ajit Prakash
Shah, “Report of the Group of Experts on Privacy,” October 16, 2012, http://bit.ly/VqzKtr.
147
Jadine Lannon, “Rule 419A of the Indian Telegraph Rules, 1951,” Center for Information and Society, June 20, 2013,
http://cis‐india.org/internet‐governance/resources/rule‐419‐a‐of‐indian‐telegraph‐rules‐1951.
148
Jadine Lannon, “Indian Telegraph Act, 1885, 419A Rules and IT (Amendment) Act, 2008, 69 Rules,” Center for Information
and Society, April 28, 2013, http://bit.ly/14N1qCT.
149
Pranesh Prakash, “How Surveillance Works in India,” New York Times, July 10, 2013, http://nyti.ms/164b2sm.
150
Research and Analysis Wing, the Intelligence Bureau, the Directorate of Revenue Intelligence, the Enforcement Directorate,
the Narcotics Control Bureau, the Central Bureau of Investigation, the National Technical Research Organization and the state
police. See, Privacy International, “Chapter iii: Privacy Issues,” in India Telecommunications Privacy Report, October 22, 2012,
https://www.privacyinternational.org/reports/india/iii‐privacy‐issues#footnoteref1_ni8ap74.
151
“Information Technology Act, 2000,” Ministry of Communications and Information Technology, April 11, 2011,
http://www.mit.gov.in/sites/upload_files/dit/files/RNUS_CyberLaw_15411.pdf.
152
Joji Thomas Philip, “Can't Track Blackberry, Gmail: DoT,” Economic Times, March 16, 2011, http://bit.ly/1bhkFo8; Joji Thomas
Philip and Harsimran Julku, “E‐services like Gmail, BlackBerry, Skype Can't be Banned for Lack of Scrutiny: Telecoms Security
Panel,” Economic Times, June 16, 2011, http://bit.ly/16TBotD.
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