SC wants to know who used Pegasus; independent probe ordered

Asia's Tech News Daily

pegasus, supreme court, india, rv raveendran, pegasus spyware, spying, snooping

The Supreme Court on Wednesday ordered an independent probe into whether the Pegasus spyware was bought and used by the government or any non-state entity to snoop on citizens, overruling government concerns that it would impinge on national security and hamper efforts to tackle terrorism.

The team will not only answer the who, why, what and how of the snooping, if any, but also suggest ways to tighten the existing regimen to prevent illegal surveillance of citizens to the detriment of their right to free speech, privacy, the freedom to make their own decisions and choices without any “Orwellian” scrutiny, the right to a free press, and the right to protect their sources of information.

The team, to be headed by former Supreme Court judge RV Raveendran, will also suggest a mechanism through which a citizen can flag such illegal surveillance and a law to prevent such cyberattacks on citizens in the future, a three-judge bench led by Chief Justice of India NV Ramana ruled.

Report as Soon as Possible

The probe team will submit a report as soon as possible, the bench said.

Based on its report, the court will put in place an ad hoc arrangement to address these concerns for the time being till Parliament brings in a law to fill these lacunae.

The court defended its order to have an independent probe on the ground that justice must not only be done but also seen to be done and a government probe would not pass the bias test.

“We make it clear that our effort is to uphold the constitutional aspirations and rule of law, without allowing ourselves to be consumed in the political rhetoric,” said the three-member bench comprising Justices Surya Kant and Hima Kohli besides the CJI. “This court has always been conscious of not entering the political thicket. However, at the same time, it has never cowered from protecting all from the abuses of fundamental rights,” it said.

The court noted that the government had not specifically denied the charges of use of spyware against journalists, activists and politicians among others.

Despite being given repeated opportunities, the government had shed no clarity on whether it had taken any action on the allegations and submitted a limited affidavit issuing a vague denial. This cannot be accepted when the issue involves mass infringement of fundamental rights of citizens, it said.

The court order came on several petitions alleging widespread surveillance of intellectuals, journalists and dissidents in the country using Israeli firm NSO’s spyware Pegasus after a database of phone numbers of potential targets was leaked in July.

They were filed by veteran journalist N Ram, former BJP leader Yashwant Sinha, activist Jagdeep S Chhokar and advocate Manoharlal Sharma. The bench listed the case for a further hearing on November 8.

PROBE TEAM

Justice Raveendran will be assisted in the task by Alok Joshi, a former IPS officer and former chief of RAW, and Sundeep Oberoi, global head of cybersecurity delivery at TCS and chairman of International Organisation of Standardisation/International Electro-technical Commission joint technical committee besides experts in different domains including cybersecurity, digital forensics, networks and hardware..

The team will be assisted by a technical committee comprising Naveen Kumar Chaudhary, professor (cybersecurity and digital forensics) and dean at National Forensic Sciences University, Gandhinagar; P Prabaharan, professor (School of Engineering) at Amrita Vishwa Vidyapeetham in Kerala; and Ashwin Anil Gumaste, institute chair associate professor (computer science and engineering), at the Indian Institute of Technology, Bombay.

The terms of the reference for the team have its task cut out. The team will find out if the Pegasus spyware was acquired by the union government or any other entity, if it was used against any citizen, and if its use was authorised.

The court listed out several compelling factors that weighed with it to pass an order for an independent probe, including possible surveillance by foreign entities.

Among other things, the team will examine if Pegasus was used on phones or other devices of Indian citizens to access stored data, eavesdrop on conversations, intercept information and/or for any other purposes and details of victims and/or persons affected by such a spyware attack.

It will examine steps, if any, taken by the government after reports were published in 2019 about hacking of WhatsApp accounts of Indian citizens using the spyware.

The committee will recommend a law or changes to existing law to secure and improve the citizens’ right to privacy and enhance and improve cyber security of the nation and its assets.

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