By-Sharmeen Shaikh
Introduction:
The right to privacy has been considered as a crucial facet of right to life and personal liberty, as enshrined in Article 21 of the Constitution of India. Even though it is considered as an extension of above-mentioned right, it has always been implicitly understood. Through judicial pronouncements, there has been an attempt to expressly promote the right of privacy among citizens. However, several events have harmed this particular right beyond repair. One of the recent and perhaps, considered as a massive breach of privacy, is the controversy surrounding the Pegasus software.
The Initial Breach:
In the past, prior to the Pegasus debacle, there have been various situations where there have been serious questions regarding the breach of privacy and the limits of the surveillance carried out by the government, upon its citizens. The demand for privacy was substantiated in the case of Kharak Singh vs. State of Uttar Pradesh,[1] wherein the Supreme Court held that right to privacy was a fundamental right guaranteed and overruled the right of police authorities visiting acquitted individual at odd hours or disturbing his sleep, in the interest of keeping a watch on him.
Similarly, in 2015, the Supreme Court declared section 66A of the Information Technology Act, 2000, which could be used to punish individuals for sending offensive messages via computer resource, as unconstitutional, in the case of Shreya Singhal vs. Union of India[2]. The court held that the section was liable to be used liberally, thereby effectively curbing dissent and ultimately trampling upon the freedom of speech and expression of the citizens. However, years after the judgement was passed, the Supreme Court admonished the authorities regarding the persecution of individuals through the continued usage of the unconstitutional section of the said Act, till date.[3]
In the case of Justice K.S. Puttaswamy (Retd.) vs. The Union of India,[4] the Supreme Court upheld the privacy concerns and reiterated the stand that right to privacy is a basic and a fundamental right provided to all citizens.
The fact that now the Adhaar card has been linked to your Permanent Account Number or PAN card and Passport speaks volumes about the way data is being mined through these documents. The biometric information collected substantiates the fear that privacy is now a myth. The government has access to several open sources through which is has become very easy for it to monitor the activities of the individuals. Already there have been reports of government monitoring suspicious calls and social media platforms such as Twitter so as to control the data composed and disseminated.
The ‘Pegasus’ Scandal:
Recently, a collaborative investigative report discovered the spyware used by Israel known as ‘Pegasus.[5]’ The report revealed that this software was used to target thousands of cell phones and had hacked into immeasurable amount of data. The spyware was believed to have targeted several ministers in the government, the opposition party and several journalists and people from the business community. If reports are to be believed, the spyware, once installed into your device through inconspicuous applications, can easily record or extract data. It can also transfer your data from your device to an unauthorised master server. Once installed, the spyware is deeply hidden and can capture all the information from myriad sources. Since people are active on social media, it can capture all the activity. It can switch on recording and camera device on its own and can look into text chains, chats and contacts. [6]
After the discovery of this malpractice, there has been a furious uproar regarding the privacy of Indian citizens. The brazen breach of protocols and the continuous surveillance has raised questions as to whether privacy exists at all. The volume of data generated till today, from almost thousands of devices, opens up avenues to several harmful possibilities.
Privacy vs. Pegasus:
This attack on this pertinent fundamental right has raised alarm bells all over the country. The fact that the spyware can be embedded in your device without anyone voluntarily or accidentally clicking on shady links is a cause for concern. This speaks volumes on the strides that government needs to take in the field of science and technology.
An attack on privacy is grave as it endangers a democracy at its core. Hacking into data without the consent of an individual opens up a can of worms which can be contained with great difficulty. This raises questions upon the freedom of speech and expression and how this spyware can report even the most innocent conversations in a malicious light. This particular scandal throws a light on how the dissent is being monitored and curbed simultaneously. Being deemed as nothing short of a criminal weapon, in the wrong hands, this spyware can be used to strangulate opinions and lives alike.
Suggestions for prevention:
Right to privacy needs to be protected jealously. The laws related to information, technology and dissemination of data need to be air-tight. Data privacy laws have to be strengthened and implemented on the ground level so as to prevent attacks of this stature in the future. Formidable software needs to be installed on a national level. Such a system will help detect new viruses and not only will it centralise and regulate the information received, but it will also prevent the leaks and breach of privacy by novel and viruses akin to Pegasus.
Conclusion:
Right to privacy is important for the safe livelihood of citizens and it is closely related to the right of citizens to formulate, hold and express an opinion. This is a dominant tool for advancement of a nation such as India. Being a republic, this country needs to address the rights which are directly attached to the livelihood of the citizens and residents alike. This software, with its novel hacking abilities, has the power to expose vulnerabilities of the country. Possessed by unethical and manipulative hands, this can stain the democracy of our nation.
[1] AIR 1963 SC 1295, AIR 1964 SCR (1) 332 [2] Writ Petition (Criminal) No. 167 of 2012 [3] Krishnadas Rajagopal, “ SC ‘shocked’ over trials under sec. 66A of IT Act”, The Hindu Business Line, July 05, 2021, available at https://www.thehindubusinessline.com/news/its-shocking-people-are-still-booked-and-tried-under-section-66a-of-information-technology-act-sc/article35145694.ece (last visited on July 29, 2021) [4] Writ Petition (Civil) No. 494 of 2012 [5] Explained Desk, “Quixplained: Understanding Pegasus, the spyware developed by Israel’s NSO Group,” The Indian Express, July 30, 2021, available at https://indianexpress.com/article/explained/project-pegasus-india-spyware-controversy-quixplained-7412960/ (last visited on July 30, 2021) [6] Ibid.
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