TELL-COMMIINICATION AND PRIVACY
Phone-Tapping CBI, the Narcotics Control Bureau (NCB)
and the police depart mentS of Union Territories.
‘this year, R&AW was added to the list
With the issue of phone tapping
V V on the brawl as is it in the present scenario and will certainly be in the coming days until and unless a perfect and objectified judicature is not established on this issue; we discuss here some of the legal provisions of the phone tapping as is present in our country as per recent establishments (read legal institutional protocols). The protocol and the process is an ever evolving and is yet to be settled.
Who has the right to tap phones?
Subject to approval, the agencies mandated to do so are the Intelligence Bureau (113), the Directorate of Revenue Intelligence (DRI), the Enforcement Directorate (ED), the Central Board of Direct Taxes (CBDT), the CBI, the Narcotics Control Bureau (NCB) and the police depart mentS of Union Territories. ‘this year, R&AW was added to the list.
How does approval home?
The process begins with designated. officials in the mandated agencies moving a request to their heads with details
°I’ the “target” and why his or her activities need to be tapped for public safety. The head vets this before approaching the home secretarv„Ipplying tinder a standard format, tor permission under the Indian Telegraph Act, 1885.
For the three agencies under the Finance Ministry — ED, DRI and CBDT — any request they make has to be routed titrough the revenue secretary. This change was introduced in the wake of the storm that erupted over leaked conversations between corporate lobbyist Niir,1 Radia and public personalities.
How restrictive has the additional check been?
G K Pillai, home secretary when this was introduced in 2010, recalls that in the 10 months that followed till he retired in June 2011, he did not receive a single request from the CBDT or the income tax department which had put Radia under surveillance. All agencies considered, a home secretary spends an average two to three hours a week processing requests.
Who else are involved?
In the Home Secretary’s absence, an official of the level of joint secretary is to be designated by a written order. Within. a week of the sanction, a committee headed by the cabinet secretary with the secretaries for home, law, telecommunication as members has to approve it. In the states, the authorisation authority is the state home secretary and the review committee would include a secretary besides him. “The home secretary goes by the request of the organisation head and cannot distrust it… The key is appointing officers with integrity,” Pillai said.
How long are calls intercepted?
On rare instances of urgency, the agencies can begin interception before the home secretary’s approval but have to procure it within 72 hour. All sanctions, unless renewed, expire in two months and can be extended only up to a maximum of 180 days. For an extension, the agency is required to provide a gist of intelligence gathered in the first 60 days. Also, the transcripts should be destroyed after six months.
How have such rules evolved?
The Home Secretary’s authorisation k’as made mandatory by a Supreme Court judgment in 1996. Originally, only the 1B and the R&AW were engaged in surveillance but without formal approval. Both had designated booths in telephone exchanges. Under an amendment to Section 5(2) of the Telegraph Act in 1971, government agencies acquired powers to intercept communications but this was notified only when Emergency was imposed in 1975. This was because the focus shifted beyond smugglers and foreign exchange racketeers. Two agencies, DRI and ED, were given the power to tap phones. The Central Economic Intelligence Bureau was created in 1987 and acquired these powers (it lost them later), followed by the NCB in 1988, the CBI in 1992, and the CBDT in 2005.
Since when have they been accused of misusing such powers?
In 1988, Chandrashekar, then not yet prime minister, alleged his phones were being tapped which forced the then government to set guidelines for the first time. One of thee was to specify mandatorily whether the target is an elected representative. The first large-scale misuse of the provisions became evident in 2003 when Kailash .Sethi, CEIB chief, was accused of using phone interceptions to target his seniors B P Verma, then chairman of the Cental Board of Excise and Customs, and Someshwar Mishra, then Delhi chief commissioner of Central Excise. The CEIB lost its powers to intercept calls. Then the Radia controversy resulted in additional checks being put in place in 2010.
How have the gadgets evolved?
Old-timers say the equipment used to be manufactured in a small firm in Bangalore and tapes were used for recording. The machines were manual and someone had to be posted to plug in the lines. Till 1992, one machine could tap only 10 lines. One of the biggest problems was repairs. The company. from Wangalore had to send repairmen to the site, a process that often took days because the same mechanic had to travel all over India. Today, a wide range of snooping equipment is available off the shelf. Modem gadgets can recognise voices and automatically record a conversation.
The government has now undertaken a Rs-200-crore project for a central monitoring system (CMS) that will give intelligence agencies direct connectivity with the target numbers and, in effect, keep service providers out of the loop. The project is expected to be completed in two years and then introduced in all state capitals.
But, with growing concern and political volatility that has institutionalised paranoia among political as well as corporate class, the issue is certain to remain in news at least for times come.