Snooping is intolerable in a democratic society
It is vital to recognise that phone tapping impinges on democracy and the protection of every citizen’s fundamental right to privacy
In civilised societies, snooping on an individual, either out of curiosity or to make money, is considered unethical, disgraceful, and, in many circumstances, illegal. But a clutch of recent incidents has shown that listening to private conversations, either electronically or by other means, for blackmail or demanding ransom is becoming alarmingly common.
Many outfits across the world will do your bidding for a fee. This no-holds-barred phenomenon is also a favourite, with many governments that rely heavily on collecting intelligence on political rivals and citizens. Many corporate firms, battling stiff competition, are also in the game. Unfortunately, only a few such scandals are ever unearthed, and even then, indifferent implementation of laws hamper any effective deterrence. This poor detection and even poorer conviction for the criminal offence encourages unabated electronic transgressions.
The latest instance of plundering of sensitive commercial information came from the National Stock Exchange (NSE), an organisation one wouldn’t expect to be associated with underhand dealings. We should take lessons from this shocking episode.
The Central Bureau of Investigation (CBI) has rightly stepped in by registering cases against the then top administration of NSE, including former CEO Chitra Ramkrishna. However, what is shocking is that apart from NSE officials, a former director-general of police (DGP) figures in the alleged conspiracy to monitor the telephones of NSE officials. It is alleged that this was done on the orders of the CEO. Whether or not collusion is proved is not the point. The facts that have emerged smack of recklessness, and a lack of disregard for the law. The law prohibiting unauthorised monitoring of telephones cannot be clearer, yet many of those in power disregard it with recklessness — some argue the needs of national security and some do so to protect corporate wealth.
The NSE investigation falls under the Indian Telegraph Act, of 1885, and the Indian Wireless Telegraphy Act of 1933. There are similar pieces of legislation in most countries, particularly the United States. where you can go to jail for even a hint of misconduct and dishonesty in this area. The United Kingdom also has stringent rules. In most countries, the law permits you to record private telephonic conversations, provided it is only for your use. However, employers cannot record telephonic conversations of their employees without the latter’s consent.
The sum and substance of the law and judicial pronouncements across nations is that an official cannot intercept an electronic communication not intended for public consumption, without authorisation from a designated official. The latter is the home secretary in India and a competent judge in the US. There should be a written request for permission to monitor specific telephones, and such requests should cite compelling grounds for the monitoring. There should also be a declaration that the agency concerned was coming to the granting authority only after exhausting all other avenues. Most importantly, the request should be for a specific, and not an indefinite, period.
What stands out in the NSE case is that the illegal operation to intercept messages was allegedly facilitated technologically by the former DGP. He allegedly owned an information security company, confirming that the execution of the conspiracy required high technical skill. Also necessary was confidentiality since the exercise was illegal and tricky to the core.
It is vital to recognise that phone tapping impinges on democracy and the protection of every citizen’s fundamental right to privacy. That is why we need strict enforcement of guidelines to restrict surveillance. The problem arises when such invasion of personal space is off-the-record and without the clearance of competent officials.
The law is clear — official surveillance of a rival’s phones cannot be done without official knowledge. But today, there is technology available to help authorities skip official channels and conduct surveillance of telephones and electronic communications on the sly, rendering centuries-old laws in the field out of date and unable to keep up with technological advancements.
This is the most foreboding aspect of the current scene. Like public servant corruption, which cannot be eradicated, arbitrary invasion of cyberspace in the form of telephonic communication is a reality. The only prescription is adequate discretion while transmitting voice messages. This cynical attitude undoubtedly dwarfs our ability to protect what we consider personal possessions. Will we ever reach a time when snooping on our communication will cease (or at least be tempered), and a sense of respect for another’s privacy will prevail? The possibility appears bleak.
RK Raghavan is a former CBI director. The views expressed are personal.