Amid intensifying surveillance of Opposition leaders, journalists and activists, the Union government has authorised the Home Secretary to destroy interception orders, a power that was vested only with security agencies until now under the 2009 rules that were framed for regulating call intercepts. In 2018, the Ministry of Home Affairs authorised 10 agencies, including the Enforcement Directorate and the Intelligence Bureau, to snoop into communications in a statutory order.
These agencies were then required to destroy the intercept orders within six months, except when the orders were “required for functional requirements”. February 26th’s order expanded the destruction powers to the Home Secretary. It is unclear why the Ministry of Electronics and Information Technology (MeitY) — which issued the amendment granting the Home Secretary this power — acted to centralise surveillance paperwork destruction powers.
“We have already seen that MeitY issues secret orders, threatens companies to remove and block content or lose business,” Mishi Choudhary, a lawyer and digital rights activist said. “Now, it is ensuring that there will be no trace of such orders.”
Quiet tapping
Allegations of government surveillance to political ends is not new in India — former Tamil Nadu Chief Minister J. Jayalalithaa had, when in Opposition in the State, accused the Dravida Munnetra Kazhagam (DMK) government in 2012 of tapping into her phones. A key subordinate of former Rajasthan Chief Minister Ashok Gehlot’s main rival, Sachin Pilot, similarly alleged that the latter’s phone and movements were “tracked” by the former in 2020.
But the scale of surveillance has jumped dramatically in the years the National Democratic Alliance (NDA) has been in power. Since at least 2015, the Union government has not released data of call tapping requests, but a regulatory filing by the Cellular Operators Association of India, representing India’s telcos, said in 2021 that such requests were rising “exponentially”. One telecom operator, Bharti Airtel Limited, went so far as to suggest that the Union government pay for some of the expenses it was incurring in complying with these requests.
Pegasus powers
Beyond intercept orders, though, the NDA government led by the Bharatiya Janata Party (BJP) has procured the military grade spyware Pegasus, which has capabilities far exceeding phone call intercepts, and can extract practically the totality of a smartphone’s data, listen in real time on targets’ microphones, and access their cameras. Such capabilities, which can target smartphone users who update their phones’ software regularly, have handed the Union government far more technological surveillance power than perhaps to any past administration.
The Union government has not denied purchasing Pegasus, and import data shows that the Intelligence Bureau procured the hardware to run the spyware in 2017. Public revelations of the spyware’s alleged use in 2021’s Pegasus Project, where an international consortium of journalists were able to find traces of Pegasus spyware on many Opposition leaders, journalists and activists’ personal devices, did not appear to be a deterrent. Apple, Inc. alerted several Opposition leaders in December 2023 that a “state-sponsored attacker” was targeting their phones, long after these reports were published.
At least two of those that received the notification submitted their devices to a forensic examination, which showed that their phones had traces of Pegasus. The Indian Computer Emergency Response Team, which is investigating the alerts, has not made any interim findings public, and The Washington Post reported that the Union government “pressured” Apple to help it diminish the political consequences of the revelations.
These surveillance powers and their use have been shrouded under a closely guarded veil of secrecy. If the Union government has valid reasons to order intercepts of almost exclusively Opposition leaders — in 2023, no Apple security alerts were reported by Union Ministers or NDA-allied MPs — it refuses to disclose them.
Solicitor General Tushar Mehta refused to confirm or deny Pegasus use to the Supreme Court, and officials from the Union government declined to participate in a court-ordered investigation into the spyware’s then alleged procurement and use. The report of the investigation remains unpublished.
“Any criminal profile created for any crime in India will be stored for 75 years under Criminal Procedure (Identification) Act, 2022,” Hyderabad-based Srinivas Kodali, another digital rights and anti-surveillance activist, said on X after Monday’s notification. “But all paperwork of state surveillance of journalists, activists, [and] opposition leaders will disappear within 6 months,” he wryly noted.
