Monday, March 12, 2012
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Internet content monitoring system on anvil but the draft bill has loopholes
Spy by Tobias Leeger/ Flickr Creative Commons

After a long procedure involving multiple RTI applications and complaint before the Central Information Commissioner, Software Freedom Law Centre (SFLC), a donor-supported legal services organisation for protection of freedom in the digital world, got access to a copy of the draft Regulation (Control and management of internet information) 2010(sic) of the State Government of Delhi. This draft reveals the attempt of the government to legalise monitoring of information on the the Internet and this raises serious questions of surveillance in the light of the recent reports in the media based on spy-files released by Wikileaks.

Under this regulation the Secretary, Department of IT is authorised to issue orders regarding monitoring of information. The regulation provides for an Advisory Board that will approve the permissions issued pertaining to interception, monitoring and decryption of information. Also, it gives power to the Secretary (IT) to order the intermediaries to provide certain information for welfare of people. The regulation also gives the state government the power to install Internet content monitoring system. After going through the Bill (yes, that is what the first page of the draft says), SFLC identified following irregularities and shortcomings -

1. The draft empowers the Secretary, Department of IT to issue orders regarding monitoring of information. However, as per the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules 2009, in the case of a state government the Secretary in charge of the home department is the 'Competent Authority' to issue such orders and this competent authority may authorise an agency of the government to intercept, monitor or decrypt information. The Rules also provide for a review committee constituted under rule 419 A of the Indian Telegraph Rules, 1951. As per these rules the review committee to be constituted by a State Government shall consist of the following ; namely;
a) Chief Secretary.
b) Secretary Law/ Legal Remembrance In charge, Legal Affairs,
c) Secretary to the State Government ( other than the Home Secretariat).

Thus, the state government's draft regulation contradicts the rules issued by the Central government. As the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules 2009 specifically provide for a competent authority in the case of a state government as well as procedure and safeguards to be followed in monitoring, the need for such a legislation by the state government itself is unclear. Moreover, when the rules have a specific provision for a review committee, there is no requirement for the draft regulation to have a provision for constituting an advisory board.

The Hon'ble Supreme Court has held in Addl. District Magistrate (rev.) v. Siri Ram, (2000) 5 SCC 451, that the conferment of rule making power by an Act does not enable the rule-making authority to make a rule which travels beyond the scope of the enabling Act or which is inconsistent there with or repugnant thereto. The draft regulation goes beyond the scope of the parent Act as Section 87 (2)(y) empowers only the Central government to make rules regarding the procedure and safeguards for interception, monitoring and decryption of information.

2. The provision in Section 6 which mentions installation of contempt (sic) control solution with respect to chat room indices on the Internet is a clear violation of a person's privacy because today chat is the quickest and one of the most effective medium of communication on which users share their personal and sensitive information and putting a tap on that is like tapping phones of each and every mobile phone user. Such a monitoring mechanism will be a clear violation of the right to privacy and against the Supreme Court's dicta on monitoring telephone conversations in the PUCL case.

3. Section 7 of the draft regulation makes it lawful for the state government to install Internet content monitoring system. This is a dangerous situation that empowers the state government to listen to any transaction on the internet. This is all the more scary on account of the recent reports in the media regarding wire tapping of the Internet by governments.

The draft regulations show the attempt of the Delhi government to have an Internet monitoring system which could pose a grave danger to the fundamental rights of citizens. The draft could be unconstitutional as it affects the right to privacy of citizens and could also be ultra vires of the parent Information Technology Act, 2000. The Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules 2009 provides sufficient powers to state governments to monitor Internet and these rules also have adequate safeguards to protect the interests of the citizens. The attempt of the Delhi Government to introduce these regulations is an unwarranted exercise and is an intrusion on citizens' digital freedom.

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