‘December 20 notice was to ensure that only authorised agencies accessed data’

The Centre told the Supreme Court on Friday that its December 20, 2018 notification allowing 10 central agencies to snoop on people is in fact a measure to protect citizens’ privacy.

The government was responding to a PIL filed by advocate M.L. Sharma, challenging the December 20 notification as a violation of the fundamental right to privacy.

The order allows central agencies, from the Intelligence Bureau to the Central Board of Direct Taxes to the Cabinet Secretariat (RAW) to the Commissioner of Delhi Police, to intercept, monitor and de-crypt “any information” generated, transmitted, received or stored in “any computer resource”.

The order is based on Section 69 (1) of the Information Technology Act of 2000 and Rule 4 of the Information Technology 2009 Rules (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009.

Turning the argument on its head, the Centre said the order, in fact, limits the power of surveillance to these 10 central agencies and none other.

“What has been done under the December 20 order is in fact restricting the exercise of powers, removing a possible vagueness and specifying the agencies/organisations who only would have the powers to utilise the powers of section 69 of the Act,” the Centre said.

‘Restricted powers’

It said the very purpose of the December 20 order is to ensure that surveillance is done as per due process of law; that any interception, monitoring, decryption of computer resource is done only by authorised agencies and with approval of competent authority; to prevent unauthorised use of these powers by any agency, individual or intermediary so that the right to privacy of citizen is not violated.

The government said surveillance is necessary “in the modern world where modern tools of information communication, including encryption, is used”. Surveillance is done only in the defence of India, to maintain public order, etc.

“There is no blanket permission to any agency,” the government explained. Permission for surveillance needs to be got from the Union Home Secretary. Besides, the law mandates the Centre and States to constitute a review committee with the Cabinet Secretary.

The affidavit explained how there are “grave threats to the country from terrorism, radicalisation, cross border terrorism, cyber crime, drug cartels”, and these cannot be ignored or under-stated. There is a need for “speedy collection of actionable intelligence” to counter threat to national interests.

“It is therefore imperative that requests for lawful interception or monitoring must be dealt with by the executive authority to maintain speed in taking decisions. A well laid down procedure for oversight by a panel headed by the Cabinet secretary doubtlessly ensures that provisions of law, rules and SOP are adhered to,” the Centre said in its counter-affidavit.