Pegasus Surveillance: National Security And Privacy Related Issues & Challenges

The popular messaging platform WhatsApp was used to spy on journalists and human rights activists in India. The surveillance was carried out using a spyware tool called Pegasus, which has been developed by an Israeli firm, the NSO Group.

• This highlights a disturbing trend of the usage of illegal surveillance and threat to individual’s privacy.

Pegasus

• Pegasus is the flagship spyware of Israel-based NSO Group. It is believed to be known by other names as well, like Q Suite and Trident.
• It reportedly has the ability to infiltrate both Android and iOS devices and uses a number of ways to hack into a target’s mobile devices.
• It follows the zero-click method i.e., the device owner even isn’t required to click on the message, mail, link, etc. or to give any input to make the malware work.
• In the case of WhatsApp, Pegasus is believed to have used vulnerability in WhatsApp VoIP stack that is used to place video and audio calls. Just a missed call on WhatsApp allowed Pegasus to gain access to the target’s device.
• Pegasus has been around for at least three years and it is also believed to have been used to target Indians earlier as well.
• It is a versatile piece of spyware and as soon as it is installed on a target’s device, it starts contacting control servers, which can then relay commands to gather data from the infected device.
• It can steal information like passwords, contacts, text messages, calendar details, and even the voice calls made using messaging apps.
• It can also snoop using the phone’s camera and microphone as well as use the GPS to track live location.

Issues with Surveillance

1. Violation of Right to Privacy

• Surveillance itself, whether under a provision of law or without it, is a gross violation of the fundamental rights of citizens.
• The very existence of a surveillance system impacts the right to privacy and the exercise of freedom of speech and personal liberty under Articles 19 and 21 of the Constitution, respectively.

2. Lack of Safeguards

• There is also no scope for an individual subjected to surveillance to approach a court of law prior to or during or subsequent to acts of surveillance since the system itself is covert.

3. Threat to Concept of Separation of Powers

• In the absence of parliamentary or judicial oversight, electronic surveillance gives the executive the power to influence both the subject of surveillance and all classes of individuals.
• Vesting such disproportionate power with one wing of the government threatens the separation of powers of the government.

4. Authoritarian Regime

• The existing provisions are insufficient to protect against the spread of authoritarianism since they allow the executive to exercise a disproportionate amount of power.

5. Against Due Process

• Surveillance, when carried out entirely by the executive, curtails Articles 32 and 226 of the Constitution (empowering the Supreme Court and High Courts, respectively, to issue certain writs) as it happens in secret.
• This violates not only the ideals of due process and the separation of powers but also goes against the requirement of procedural safeguards as mandated in K.S. Puttaswamy v. Union of India (2017).

Possibilities and Prospects

Surveillance is a necessary tool for maintaining the sovereignty, integrity, and security of the State and it helps in the prevention and investigation of these crimes. However, the absence of any Data Protection law overlooking the millions of orders for surveillance, the State has untrammelled access to the private lives of the citizens. The need is to establish necessary and proportionate principles which should be present in any surveillance regime to ensure that it is in line with international human rights standards.

For this following measures can be taken-

• Surveillance Reform: Surveillance reform is the need of the hour in India. Not only the existing protections are weak but also the proposed legislation related to the personal data protection of Indian citizens fails to consider surveillance while also providing wide exemptions to government authorities.
• Judicial Oversight: There needs to be an oversight from another branch of the government. Only the judiciary can be competent to decide whether specific instances of surveillance are proportionate, whether alternatives are available, and to balance the necessity of the government’s objectives with the rights of the impacted individuals.
• More Transparency: There needs to be greater clarity in the system as in the current system, organs of state are not accountable to anyone other than government itself.
• Need for a Robust Data Protection Law: There is a need for a robust data protection law that protects the individual right to privacy, including protection from surveillance and unauthorized data collection by government agencies.
• Independent Public Inquiry: The government must institute an independent public inquiry to credibly investigate these allegations, and therefore gain public trust.