The State must address the WhatsApp breach, writes Kapil Sibal

Technology is a great benefactor. Its ability to allow access to multifarious forms of information makes it a unique medium of empowerment. It opens up limitless options for the future. Its capacity to generate data (the new oil) has already changed the way we communicate. The nature of warfare in the future will change. Through technology, we can transform the way we provide health care and education. In times to come, the young may be connected to global classrooms, transcending physical barriers. Phenomena at present beyond reach may be easily accessible to future generations. The nature of providing community services will also be transformed. We need to embrace technology for national and global good.

Yet, technological outreach through social media platforms, using mobiles and computers, has its pitfalls. While we, through technology, can access the world, the same technology can be used to access us. And while our access to the world may be transparent, access to our private lives may well be surreptitious. Others may be privy to our most precious private moments. Such surveillance technologies are now available. As the march and embrace of technology gets more sophisticated, the nature of that invasion into our private lives has the potential to breach the fundamentals of our existence. All forms of data in respect of our being can be exposed.

In the commercial world, hackers do, and will, develop unique means to access information qua their competitors. Businesses will be required to develop technology protection walls to thwart malicious invasions. The business of multifarious forms of access and diverse forms of enabling protections will thrive in the years to come. But the real worry lies in the government’s ability to track its own citizens. Governments have the habit of stalking them for political advantage. The recent revelations by WhatsApp that an Israeli firm, NSO, a private entity, hacked into an end-to-end encrypted WhatsApp platform is a matter of great concern. The spyware, Pegasus, through which governments invaded the privacy of citizens, was sold by this entity only to governments around the world, and such spyware was misused in several countries. WhatsApp has revealed that some journalists and human rights activists in India were also accessed through their mobile phones with the use of Pegasus. This is alarming, to say the least.

We need not go into the question as to whether the government was duly informed of the misuse of Pegasus. One thing is quite clear that Pegasus can only be used by governments. While the present government may seek answers from WhatsApp, it is time for us to seek answers from the government.

There are several questions that need to be addressed by the government.

First, when was the Pegasus purchased?

Second, who negotiated the deal?

Third, NSO, a private entity, must have been paid a handsome sum. What was that amount?

Fourth, who authorised the use of Pegasus, and under whose instructions were journalists and human rights activists accessed?

Fifth, was this access limited only through WhatsApp or were other platforms with end-to-end encryption also accessed?

Pegasus is designed to gain remote access to mobile devices using Android, iOS and Blackberry operating systems. Lastly, was citizens’ privacy violated even prior to the 2019 Lok Sabha elections? If yes, since when? Another question that comes to mind is whether Pegasus is still in use?

WhatsApp has filed proceedings in the United States district court, Northern District of California for redress. It should be directed to file similar proceedings in India, impleading the Israeli NSO and seek redressal. If not, proceedings in public interest should demand that government comes out with definitive answers arising from the misuse of Pegasus. Since there have been violations of the provisions of Information Technology Act, 2000, and the constitutional right to privacy, a criminal investigation be commenced to bring the guilty to book.

Governments, by their very nature, do not easily respond to the questions raised. While they operate in secrecy, they are loath to get exposed through such proceedings. It is time for the courts to become protective, for no one is safe. The protection of individual freedom is a constitutional imperative. It is time for the courts to stand up for our citizens.