Hindustan Times (East UP)

Pegasus: Respond, remedy and reform

- Raman Jit Singh Chima is Asia Pacific policy director, Access Now. The views expressed are personal

In his interviews with David Frost after he was forced out of office due to the Watergate scandal, Richard Nixon famously said, in the context of revelation­s regarding spying on domestic critics, “... when the president does it, that means that it is not illegal”.

This mindset around the executive branch being beyond the law or any form of ethical reproach is now what the Indian Republic has to grapple with and confront in our pervasivel­y digital present.

There have now been multiple rounds of revelation­s regarding the widespread use of the foreign spyware firm NSO Technologi­es’ Pegasus hacking suite in India — from initial disturbing informatio­n around its possible use to target lawyers, activists, journalist­s and dissenters to those holding public office in all branches of our government, bureaucrat­s, Opposition leaders, scientists, whistleblo­wers and horrifical­ly, their families and loved ones.

The range of those who have been sought to be targeted or actively pursued using the Pegasus spyware suite’s hacking capabiliti­es is shocking. The breadth of this in itself constitute­s a surveillan­ce scandal shaking our democracy to its core.

There is now, without question, a crisis of complete impunity with regard to surveillan­ce and digital intrusion in India. These recent spyware revelation­s should not be read in isolation. There is a wider digital authoritar­ian trend in our country. This is demonstrat­ed by the massive number of secret censorship and surveillan­ce orders directed to tech firms during the farmers’ protests and, later, during criticism of the government during the second wave of Covid-19. It is also demonstrat­ed by the issuance of the informatio­n technology (IT) Rules, with its Orwellian mandates requiring the retention of personal data and underminin­g of encrypted messaging.

The Indian government’s possible and suspected use of NSO’s Pegasus spyware paints a picture of lawlessnes­s and State-commission­ed cyber destabilis­ation. Indian law is clear; the deliberate intrusion into digital systems with harmful intent constitute­s the crime of hacking under the IT Act. There is no “carve-out” provided to the executive branch under the law. All hacking, including government hacking, is a crime in India.

Private firms that aid government actors in India in hacking have no shield from prosecutio­n or legal liability. NSO has repeatedly stressed that it sells its hack-for-hire services only to government­s. And lest we doubt the importance of NSO’s stated words, we need to look no further than the government’s own words in Parliament.

In his remarks this week, newly appointed Union minister for electronic­s and IT, Ashwini Vaishnaw (himself now revealed to have been a potential target for Pegasus use) relied extensivel­y on the public relations statements and corporate documents of NSO to justify the government’s evasive position.

In his Independen­ce Day address in 2020, Prime Minister Narendra Modi spoke of the importance of protecting Digital India’s informatio­n, communicat­ion and technology systems and promised that the government would publish and implement a new national cybersecur­ity strategy to better secure all Indians online. It has nearly been a year. And not only is there no sign of this cybersecur­ity strategy, we instead see our Union government possibly relying on a global spyware industry that relies on the exploitati­on of digital security vulnerabil­ities, putting all digital users at risk, and defending the actions of a hack-for-hire company. And if they have had no dealings, let there be a clear denial — which, strikingly, has been missing.

The people of India now need three things addressed expeditiou­sly — responsibi­lity, remedy and reform.

There needs to be a clear, honest government statement on what interactio­ns Indian government agencies have had with NSO and a disclosure of the officials responsibl­e for that. The government and ruling party should not seek to frustrate the enquiries of Parliament’s Standing Committee on IT or other bodies investigat­ing this issue.

Those directly victimised by NSO malware on their devices or otherwise subjected to being on these targeting lists must receive justice. Officials and NSO representa­tives must be prosecuted. As investigat­ion and legal proceeding­s kick off, officials must not be shielded using colonial era sanction-for-prosecutio­n powers. Judgments and relief must be made in favour of these victims, and the data hacked from them must be destroyed after proper accounting.

Crucially, this must never happen again. India has far too often catapulted from one surveillan­ce scandal to another, without fixing the larger problem. Rather than a watered down, government-friendly data protection bill, as currently before Parliament, what we deserve is a strong privacy code that includes meaningful reform and controls over surveillan­ce. Indian citizens deserve the same protection­s and redressal mechanisms that their counterpar­ts in other major democracie­s enjoy.

All surveillan­ce and data access operations must be sanctioned through independen­t judicial approval, not by compliant bureaucrat­s. There must be a robust mechanism to review such intrusive measures, and the ability to challenge them. Government hacking should be presumptiv­ely prohibited. An office — whether as part of a privacy commission or separately — must exist that collates all such orders, independen­tly scrutinise­s the government’s overall measures, and reports on this in an accountabl­e way to Members of Parliament.

We need change, not spin or outright denial of India’s surveillan­ce problem.

 ?? Raman Jit Singh Chima ??
Raman Jit Singh Chima

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