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    From Tehelka Magazine, Vol 9, Issue 09, Dated 03 Mar 2012

    Big brother must not overstep the limits

    By tracking mobile locations the government can improve the security scenario. But care must be taken to not violate personal liberties

    Illustration: Anand Naorem

    ON TOP of the technological and legal issues that frequently pose challenges before telecom operators in India, comes the declared intention of the government to track cell phone locations. Encryption-based service providers such as Research In Motion have been forced to establish servers in India and allow access to messenger services to intelligence agencies in plain, unencrypted form. Nokia has also established a server in India to facilitate law enforcement and intelligence agencies’ interception demands. Chinese telecom equipment providers such as Huawei and ZTE are trying to disprove the theory of existence of backdoors in their equipments and the government has declared that imported telecom equipments would be locally scrutinised to rule out existence of imbedded backdoors.

    Tracking cell phone locations is a troublesome notion as we have no dedicated privacy and data protection laws in India. On top of that, intelligence agencies and CBI are operating without any legal framework about their conduct, rights and obligations and parliamentary oversight.

    The intentions of the government may be good in projects such as National Intelligence Grid (NATGRID), Central Monitoring System (CMS), Aadhaar and the National Counter-Terrorism Centre (NCTC). But they should not be implemented without proper management, legal framework and constitutional safeguards.

    Similarly, when legal frameworks are missing and constitutional safeguards are ignored, cell phone location tracking in India is more trouble than solution. Cell phone tracking violates constitutional right to privacy if due process is not followed. Even now, despite claims to the contrary, we have no constitutionally sound lawful interception and telephone tapping law in India.

    There is an urgent need to repeal colonial, outdated laws such as the Indian Telegraph Act, 1885, and Official Secrets Act, 1923, and enact constitutionally sound lawful interception law in this regard. The RTI Act, 2005, must be properly aligned with the proposed lawful interception law of India. And cell phone location tracking must be sufficiently covered by the proposed legislation.

    The proposed interception law must also cover interception and e-surveillance issues of Internet, mobile communications and Voice over Internet Protocols in a holistic and comprehensive manner. Encryption usage in India must also be covered under the proposed law.

    The RTI Act must be properly aligned with the proposed interception law

    IT’S NOT that cell phone location tracking does not have beneficial uses. It is not an altogether evil concept. On the positive side, it can help in preventing, controlling and solving serious crimes and can greatly assist in criminal investigations. Cell phone location tracking can also help in fighting terrorist attacks against India.

    During the process of cell phone location tracking, useful cell site data is also collected. Cell site data could strengthen the intelligence gathering capabilities of Indian intelligence agencies. Cell site data can also provide valuable intelligence input that can be utilised for projects such as NATGRID, CMS, NCTC, etc. to produce much more reliable, robust and accurate intelligence leads. Instant, more appropriate national security and law enforcement action can be taken if a constitutionally sound cell phone location tracking mechanism is adopted.

    The problem is that while, on the face of it, there is nothing wrong with various proposed governmental projects, their implementation in the present form often violates civil liberties and constitutional freedoms. If adroit cell phone location tracking is done after following the due process of law, that can go a long way in maintaining law and order in India.

    At present, governmental will to frame necessary legal frameworks for these projects and proposals and to make these projects constitutional is missing. It must make these projects, including cell phone location tracking, constitutionally valid and legally sustainable so that they can serve the larger interest of the country and not just the government.

    Praveen Dalal Supreme Court Lawyer and Managing Partner of New Delhi-based ICT law firm perry4law
    [email protected]

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    From Tehelka Magazine, Vol 9, Issue 09, Dated 03 Mar 2012



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