Why the Draft National Encryption Policy is likely to return

The government won’t give up listening in on private communications.

WrittenBy:Saikat Datta
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Just three over-worked officials occasionally meet in the corridors of power in Delhi to ensure that the Indian Republic does not turn into a police state. These officials – the Cabinet Secretary, the Union Law Secretary and the Union Telecom Secretary – are tasked with the onerous mission to ensure that the power to intercept private communications is not misused. Currently, there are 10 law enforcement agencies that are authorised to intercept private communication in India.

The burden that these officials carry would have increased exponentially if the Draft National Encryption Policy, issued by the Department of Telecommunications (DoT), had come through. Designed by junior officials of the DoT, the policy is meant to protect the privacy of communications between common citizens. Instead, it emerged as a deliberate road map to strengthen the government’s right to snoop proactively on private communications under the garb of “national security”.

Fortunately, the order came and vanished in less than 48 hours following a widespread online protest, forcing the government to beat a hasty retreat.

A government that’s all ears

The Centre may have withdrawn the proposed rules for now. But if senior government officials are to be believed, this is a tactical retreat.

The rules will return under the guise of opaque frameworks that will be slipped in licensing conditions that allow companies to set up communication networks. “Rest assured, the government will not give up its right to intercept all forms of communication. If this is not included in the proposed encryption policy, then it will be included in a new set of rules and regulations that govern over-the-top [OTT] applications,” a senior government official overlooking cyber security issues in the Prime Minister’s Office (PMO) told me on the condition of strict anonymity.

A few months ago, when a furious debate erupted on Net Neutrality, major telecom companies fought back by raising the bogey of security threats posed by OTT services like WhatsApp and Facebook Messenger. Telecom companies claimed that OTTs were eating into their revenues and giving consumers a means to use Internet services for free, at their cost. What they conveniently avoided mentioning was the fact that, according to telecom companies’ declared revenue earnings, their earnings had actually gone up owing to greater use of data services.

With their backs to the wall, telecom companies, then, raised the issue of “regulating OTTs” so that “national security” was not compromised. According to them, since OTTs were based abroad and used high levels of encryption, this would prevent Indian security agencies from listening to conversations taking place between terrorists planning major strikes against India. While most experts rejected the argument as alarmist, officials in the DoT took the bait.

“Telecom companies had a point,” a senior DoT official familiar with security-related issues told me last week. “If OTTs can’t be intercepted, how will our security agencies listen into terrorists using them,” he said.

In the name of national security

While surveillance is a necessity for counter-terrorism, there is no data to establish how effective it really is. A fact that is cleverly kept vague so that the government of the day can retain its right to tap into the private communications of its citizens at will.

A year ago, in response to a Right to Information (RTI) application, which I had filed earlier, the Union Ministry of Home Affairs admitted to an astounding number of phone calls being tapped every year. It admitted that, on average, the Union Home Secretary would sign on 7,000 to 9,000 orders every month allowing some agency or the other to tap phone calls.

This meant that the Union Home Secretary had to sign nearly 300 such orders every day, amid the hundred other official duties he has to discharge. Clearly, the process is a mechanical ritual with little or no scope for applying any judicious thought.

Worryingly, the only safeguard against the Union Home Secretary’s authorisation orders is a three-person committee that was set up in 1987. This committee, headed by the Union Cabinet Secretary along with the Union Telecom and Law Secretaries, is supposed to review the orders signed by the Union Home Secretary authorising phone and email interceptions.

But faced with such massive numbers, this committee routinely clears all such orders, and refuses to reveal any data about the anomalies they may have spotted in their review meetings. I filed several RTI applications seeking this data, but I was repeatedly told that revealing the data on any possible misuse would be “prejudicial to the national interest”. I fail to see how revealing meta-data on instances of misuse of interception powers could be “prejudicial to the national interests” of India.

Under the existing laws, Indian citizens are already vulnerable to the state’s intrusion. Here’s a sample of the powers and mechanisms that already exist. The United Progressive Alliance government introduced the Central Monitoring System (CMS) that makes surveillance even more opaque than what it was earlier. They also created NATGRID, a body that would connect 22 databases of information that can be used by security agencies to track citizens. The Aadhar programme, a passive surveillance programme, which was never cleared by Parliament, ended up collecting biometric data of citizens.

Conversely, India does not have a privacy law that could offer some protection to Indian citizens against the passive and active forms of surveillance to which they are currently subjected. A few years ago a Privacy Bill was circulated by the Department of Personnel & Training (DoPT) but it never surfaced again.

In May last year, it was reported that intelligence agencies, which have the powers to legally intercept communications, had sought a blanket exemption under any future privacy law.

More recently, on Sunday, Prime Minister Narendra Modi gave public assurances in Silicon Valley that his government would give the “highest importance to data privacy and cyber security”. Judging from his government’s actions, he seems to be addressing “data privacy” and not privacy per se. This means there are no assurances on the privacy of citizens against surveillance, but data security and privacy of corporations investing in India would be guaranteed.

The proverbial Big Brother flexing its muscle

Under this existing opaque and intrusive regime comes the now withdrawn the Draft National Encryption Policy that would have added to the vast intrusive powers that the government already holds. It proposed that “…users in India are allowed to use only the products registered in India”. Which meant that OTTs like WhatsApp and Facebook Messenger would have to be registered in India if they are to be used by Indians.

Ironically, while the NDA government came to power on the promise of “maximum governance and minimum government”, this policy would have ensured maximum government in even private and personal WhatsApp messages between citizens.

It also threatened that the “…government reserves the right to take appropriate action as per Law of the country for any violation of this Policy”.

Understandably, common citizens are outraged. Law researcher and a veteran privacy activist, Usha Ramanathan, was horrified at what the government had almost enacted. “What is this? An attempt to be a know-all state? It would be a mistake to not see this desire to control the thoughts and conversations of people as a privacy issue. And, maybe those who think privacy is irrelevant as a value today will also baulk at a state that is saying ‘I want to know everything about you and if you don’t let me know all, it must mean you have something diabolic to hide’.”

A few months ago the NDA government submitted an affidavit in the Supreme Court rejecting privacy as a fundamental right for citizens in India. Clearly, this was more than coincidence.

To be fair, security agencies do have a difficult task at hand. Two years ago, when the Intelligence Bureau (IB) launched an operation in neighbouring Nepal to nail Yasin Bhatkal, one of India’s most wanted terrorists, it was left groping in the dark. Bhatkal was a clever fugitive, and as his subsequent interrogation revealed, he was adept at using different forms of encrypted chat platforms to communicate key messages with his compatriots.

For the IB, the only means to get this information was by using the Mutually Legal Assistance Treaty (MLAT) to get the information from servers in the United States of America. “Everyone accepts that the MLAT process is irreparably broken. The information we seek is rarely shared and even if the Americans do share something, it is too late before it arrives,” a senior intelligence official told me last week.

While this argument has merit, it fails to address the dangers that unfettered surveillance powers can pose to a democratic polity. Information is power and a rogue government could easily use legitimate laws, such as those proposed by the Draft National Encryption Policy to snoop on citizens. Every totalitarian state has always used the bogey of national security and national interest to accumulate such intrusive surveillance powers. The results have always been disastrous.

In India, had this policy gone through, it would have taken a step closer to becoming a police state where citizens spy on citizens.


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