On December 20, government India issued a notification in the Gazette of India, which seems to give various investigating agencies sweeping powers to snoop on any computer device. The order issued by Ministry of Home Affairs authorises ten listed Security and Intelligence Agencies to intercept, monitor and decrypt any information generated, transmitted, received or stored in any computer resource under the Information Technology Act, 2000.
Expectedly, this caused massive outrage on social media and even in the parliament. This was termed as a violation of the privacy of citizens by Modi government. Congress party alleged that police have been given sweeping power to tape any phone and intercept any computer communication. They said that India is being turned into a police state by this order.
If we look into the MHA order carefully, we can see that there is no basis to these allegations. The government has not issued any new order, rather they have reiterated an order which is already there in the law books. The order cites that is has been issued under sub-section (1) of section 69 of the Information Technology Act, 2000, and Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009.
It is important to note that the Information Technology Act, 2000 was passed by the parliament without any discussion or opposition in the parliament. This is what section 69 of the said act says:
The sub-section 1 of section 69 makes it very clear that authorities will be allowed intercept any information transmitted through any computer device only in cases of threat to integrity and security of the country, a threat to law and order and incitement to any cognizable offence. This is not a general snooping on all citizens as Congress party and others are alleging.
Speaking in Rajya Sabha, finance minister Arun Jaitley also said that this power has been given only for specific cases as mentioned in the IT Act. It is important to note that the order clarifies powers to investigating agencies under the IT Act, it does not amend the Act. This means the provisions of section 69(1) of the Information Technology act will continue to prevail.
Now if we see the Information Technology Rules, 2009 issued by the then Congress government, which has also been cited in the MHA order, we can see that the current order is nothing new. The provision in the order already exists for last one decade. Section 4(1) of the Rules say:
(1) The competent authority may authorise any agency of the government for monitoring and collection of traffic data or information generated, transmitted, received or stored in any computer resource.
This is the same language used in the MHA order, the only difference is that instead of saying ‘authorise any agency’, it now specifies which agencies are authorised to use this power. The 10 agencies mentioned in the order are the usual agencies that carry out investigations in the country. Now the government has made the rule clearer by specifying which agencies can intercept computer-based communications on specific incidents of threats to national security and law and order.
Talking to media, law minister Ravi Shankar Prasad clarified that this order is fully constitutional, and said it does not allow snooping on the general public. He also said that under the provisions of IT act, necessary approvals will have to be obtained from Home Secretary before any interception is done. He also said that as ten agencies are mentioned in the order, other agencies are now not authorised to intercept computer-based communications unless they are authorised to do so on a case by case basis.