By Dr. Jaijit Bhattacharya
Last week saw the Supreme Court’s directions on the Pegasus snooping case, wherein a committee has been formed by the court to investigate the allegations that the government used an Israeli snooping software to snoop on its citizens.
The Pegasus software is a software designed to “infect” phones in an undetected manner, through a mechanism termed as a “zero-click” mechanism, which implies that the user does not have to be enticed to click on anything or even receive a call. Once embedded, the software then relays everything that the phone is communicating, including SMS, whatsapp and call logs, if not the calls themselves.
The software is sold by a company by the name of NSO, and as repeatedly mentioned by NSO and by the Israeli government, they sell the software only to governments. However, there have also been reported cases of the software being used by drug cartels in Latin America.
Since a report earlier this year on July 18, the world erupted with newsbreak that 50,000 phones globally were being snooped into. For the records, Pegasus was first detected in 2016, and it was already a very sophisticated spyware, infecting both Android phones and iPhones.
The global uproar on Pegasus is triggered because of three key reasons. The first being the extent of reach that Pegasus has had, which is unprecedented.
Second, allegedly the targets of Pegasus have not only been heads of states but also journalists and citizens. It is also believed that the state-sponsored murder of Jamal Khashoggi was enabled through Pegasus.
And third, which is the most critical issue, is that NSO claims that it sells Pegasus only to governments. Hence the story that comes out is that a government or multiple governments have been snooping on their own journalists and citizens, violating privacy of individuals and compromising institutions.
It is apparently a threat to civil liberties, privacy and freedom of expression, besides being an extremely powerful weapon to convert democracies into virtual autocracies.
In this context, the Supreme Court of India stepped in to hear 12 petitions which sought an independent probe into the allegations which surfaced in the media about alleged unauthorised surveillance.
One of the key observations that the court made was that national security cannot be an acceptable reason for the courts to shy away from a deeper probe into the matter. In fact, the exact word of the honourable court has been that “a free pass every time the spectre of ‘national security’ is raised”.
This is the observation that is being cheered by some in the civil society.
However, it is pertinent to note that the government had never said that they would not present the details of the issue from their perspective but had maintained that, if need be, the details could be shared with a smaller committee of people, rather than in an open court. The reason for such an approach being the issue of national security.
Under any circumstances, this is a fair position, especially given the fact that it is a settled position of law that in matters pertaining to national security, the scope of judicial review is limited.
The government was not using this clause to shy away from presenting the details of the issue to the court, but was merely requesting for a proper mechanism so that national security does not get compromised.
One should also keep in mind that even the files related to Netaji Subhas Chandra Bose has not been released to the public for 75 years, citing national security concerns.
Therefore, the overtly critical response by some in the civil society, to the hesitance of the government to present its side on the Pegasus issue in an open court, is not entirely justified.
In addition, the honourable court has setup a three-member committee that can probe the issue in-depth and hopefully get a full disclosure from the government. The committee includes Prof Naveen Kumar Chaudhary, Dean, National Forensic Sciences University, Gandhinagar, Dr Prabaharan P, Professor at Amrita Vishwa Vidyapeetham, Kerala and Dr Ashwin Anil Gumaste, Institute Chair Associate Prof, IIT Bombay.
Clearly, the three-members appear to be one of the best suited for investigating the issue. But then again, if the investigation is about a malware that cannot be detected, and there have been only vague allegations of snooping using the malware with extremely limited proof of phones in India getting compromised, how can the committee or anyone else find out the extent of the alleged illegal surveillance or find citizens of India whose phones have been compromised.
There appears to be a significant technological roadblock in pursing the probe, just as we have not seen much progress in similar probes being carried out by other governments globally.
Therefore, as claimed by a few detractors of the honourable court that a committee was formed to coverup the case is not a fair allegation. In all probability, nothing will come out of this probe, but that is not because of intent. It is because of the technological challenges. There have been no outcomes yet of the probes carried out by other governments globally.
It is also to be noted that the Supreme Court went on record to mention that it was a challenge to find three competent persons for the said committee as many competent persons recused themselves from the role, given the challenges involved.
We have firmly entered into an era where privacy is a losing battle to fight. People appear to have resigned to the fact that big digital companies have access to more information about individuals than the individuals themselves.
Concerns are raised that governments violating privacy is more harmful than big corporations violating privacy. Perhaps that may be so. But in the all-pervasive digital era, perhaps the best way to preserve privacy is not put such information on a digital platform. Perhaps, the Pegasus case would trigger movement towards greater mindfulness of what is put on digital and what is kept out.
This article first appeared in India Today, https://www.indiatoday.in/opinion-columns/story/pegasus-judgment-why-sc-panel-has-a-tough-job-at-hand-opinion-1873339-2021-11-05