New Delhi: The Supreme Court verdict, ordering a wide-ranging comprehensive probe by a team of technical experts into snooping allegations using Israeli spyware Pegasus is perhaps the rare judgement on the issue which dealt with the protection of the fundamental right to privacy of all the citizens.
The verdict, penned by CJI N V Ramana, assumes significance since it declined the government’s proposal to set up an inquiry on its own into the snooping allegations and decided to appoint independent experts to probe which will be monitored by the former apex court judge Justice R V Raveendran.
After the issue of snooping by using Pegasus spyware came to the fore, a Paris court in July this year had opened the probe after a complaint by the digital news organization, Mediapart, was made alleging that the mobile phones of two journalists, Lenaig Bredoux, and founder Edwy Plenel, featured in the Pegasus list and were found to be infected with spyware operated by Moroccan secret services.
The Central Office for Combating Information and Communication Technology Crime (OCLCTLC) of the Central Directorate of the Judicial Police (DCPJ) of Paris was tasked to probe 10 charges including “fraudulent access and introduction of data to an automated data processing system, news reports had said.
Before this in July last year, a California court has ruled against Israeli cyber firm NSO Group which had tried to stop a lawsuit filed by WhatsApp against it from proceeding to trial.
WhatsApp, as per news reports, had in October 2019, sued the NSO for developing the spyware which allegedly exploited vulnerabilities in the platform to hack into the mobiles of 1,400 human rights activities, journalists, and lawyers, including 121 Indians.
The NSO had said that it sold the software to government agencies.
While the orders of the Paris and California courts had come on the pleas of a media organisation and WhatsApp respectively, the Supreme Court’s verdict came on a batch of pleas touching upon a wide range of issues including the right to privacy, freedom of speech.
The Indian apex court’s verdict is wide-ranging in many aspects as it orders the comprehensive probe saying that the experts on cyber security, digital forensics, networks, and hardware are authorised to enquire, investigate and determine whether Pegasus spyware was used for snooping on citizens.
The three-member technical panel, which has been given wide-ranging powers, would comprise eminent experts, Naveen Kumar Chaudhary, Prabaharan P, and Ashwin Anil Gumaste, and report to Justice Raveendran.
Giving the details of the terms of reference, the verdict said the panel would also enquire and investigate what steps/actions have been taken by the Centre after reports were published in 2019 about the hacking of WhatsApp accounts of Indian citizens, using the Pegasus suite of spyware, whether any Pegasus suite was acquired by the Union of India, or any state government, or any central or state agency for use against the citizens of India.
“If any governmental agency has used the Pegasus suite of spyware on the citizens of this country, under what law, rule, guideline, protocol or lawful procedure was such deployment made? If any domestic entity/ person has used the spyware on the citizens of this country, then is such a use authorised? Any other matter or aspect which may be connected, ancillary or incidental to the above terms of reference, which the Committee may deem fit and proper to investigate,” the bench said.
The top court also directed the expert panel to make recommendations regarding enactment or amendment to existing law and procedures surrounding surveillance and for securing the improved right to privacy, enhancing and improving the cyber security of the nation and its assets.
The other recommendations which the expert panel has been asked to submit are to ensure prevention of invasion of citizens’ right to privacy, otherwise than in accordance with the law, by State and/or non State entities through such spyware, regarding the establishment of a mechanism for citizens to raise grievances on suspicion of illegal surveillance of their devices.