Pegasus must lead to legal reform and consensus on the harms of surveillance

The government’s response, so far, has been obfuscation. It has neither confirmed nor denied the allegations, while also insisting that surveillance in India has to be “legally authorised”

Over the last week, it has come to light that a highly sophisticated spyware (Pegasus), manufactured by an Israeli company, and sold only to governments, was potentially used to surveil the phones of several journalists, activists, lawyers, and legislators. The Pegasus revelations are part of a worldwide investigative report into the use of such spyware in a range of countries, most of which are authoritarian autocracies, from Saudi Arabia to Azerbaijan.

A smartphone with the website of Israel's NSO Group which features Pegasus spyware. NSO Group has denied media reports its Pegasus software is linked to the mass surveillance of journalists and rights defenders, and insisted that all sales of its technology are approved by Israel's defence ministry. (Representational image/AFP)

The government’s response, so far, has been obfuscation. It has neither confirmed nor denied the allegations, while also insisting that surveillance in India has to be “legally authorised”. This response, however, reveals the systemic problems that persist in our country, when it comes to unaccountable State powers over the lives of individuals. The legal regime for surveillance – which continues to be governed, in part, by the 1885 Telegraph Act (along with the 2000 Information Technology Act) – allows a near carte blanche to the government.

Surveillance orders are at the discretion of the executive, and are reviewed by the executive. Even though the Supreme Court has twice stated, in 1997 and in 2017, that an order of surveillance can be passed only when strictly necessary, and if no alternative exists, the devil lies in the implementation. Without any independent scrutiny — whether judicial or parliamentary — it is impossible to ascertain whether the court’s judgments are honoured more in the breach than in the observance.

If, therefore, the government is right when it says that there has been no illegal surveillance and all surveillance requests have to be “legally authorised”, then the Pegasus revelations only go to show that the legal structure is woefully inadequate, and needs a root and branch overhaul. It should be easy to agree that whatever national security imperatives might exist for surveillance in theory, tapping the phones of principal Opposition leaders, constitutional authorities, and journalists, amount to rank State abuse. It is no consolation to say that the abuse is “legally authorised”; rather, it is a stark commentary on the state of the law.

An overhaul of the legal structure, however, cannot accomplish much without a broad public consensus about the harms of surveillance. It is for this reason that it becomes particularly crucial to start from first principles on the issue of surveillance. It is commonly – and easily – said that if one is not engaging in any wrongdoing, then one should have no concerns about one’s privacy. There is, of course, a pithy answer to this. What if the government made it mandatory for every individual to deposit a pair of their house keys at their local police station, so that whenever the police so chose, they could enter that individual’s house, and search for any possible illegality that might be going on within? Most people would find it unacceptable, as they would find unacceptable a threat to publish their internet search history for public consumption.

This makes it clear, therefore, that there is no connection between wrongdoing and desiring privacy. The harm of surveillance is a social harm; a society in which one does not have confidence in the sanctity of one’s private sphere is a society of self-censorship, mutual distrust, and, ultimately, of conformity born out of fear.

The Pegasus revelations are also important because in this day and age, smartphones have become an extension of our bodies. We do so much on our phones that unrestricted access to those instruments makes it extremely easy to profile an individual based on their browsing habits, whom they message and call, and when. Profiling facilitates control and manipulation; for example, if I know your medical shopping details, I can piece together your medical history, and either profit from it commercially (as an insurance company) or use it to blackmail you (the State). In either case, you do not need to be engaging in any wrongdoing to fall victim to the harms of profiling.

Thus, the root and branch reform of law that would increase the cost of surveillance for the government, and a public consensus about the harms of surveillance must go hand-in-hand. Only then can we say that the Pegasus revelations have meant something.

Gautam Bhatia is a Delhi-based advocate

The views expressed are personal