We won’t give up! IFF approaches CIC against MHA’s refusal to disclose surveillance figures.

Highlights

  • Background: After the MHA rejected our RTI applications about use of surveillance powers under Section 69 of the IT Act, IFF has filed an appeal before the Central Information Commission to take the fight for transparency to its logical end.
  • Far-fetched exemptions sought by MHA: IFF’s RTI applications which only sought consolidated total figures were rejected by the MHA on flimsy grounds. Moreover, the MHA’s refusal is hypocritical because in the past, it has voluntarily disclosed details of specific cases cracked using surveillance.

Background

In December 2018, IFF had filed six RTI applications seeking statistics about electronic surveillance under Section 69 of the Information Technology Act, 2000. Section 69 is also at the heart of our PIL demanding judicial oversight in the surveillance process. The information obtained through these RTI applications would support our litigation work, and you can read more about our PIL for surveillance reform here.

Having a meaningful discussion about surveillance is impossible in India due to lack of facts and figures. So how do we fix this problem? Through these RTI applications, we hoped to fill this gap and bring statistical data which could form the basis of an informed debate into the public domain. To give you a sense of our RTI queries, the following is an illustrative list of figures sought by us:

  1. Total number of surveillance orders passed by the Competent Authority.
  2. Total number of surveillance requests from law enforcement agencies rejected by the Competent Authority.
  3. Total number of surveillance orders passed by the Competent Authority for prevention of any offence affecting the sovereignty or integrity, defense, or security of the State.
  4. Total number of surveillance orders passed by the Competent Authority for investigation of any offence.
  5. Total number of orders which authorize surveillance for more than 15 days.
    Total number of surveillance orders which were renewed for a period exceeding 60 days.

As you can see, we did not ask for details of a specific interception order or a particular individual. However, despite our request being limited to anonymous and consolidated figures, the Ministry of Home Affairs (MHA) refused to provide the information citing various exemptions under Section 8(1) of the Right to Information Act, 2005. In his response, the Public Information Officer merely stated that disclosure of surveillance related statistics would threaten national security under Section 8(1)(a), endanger the safety of third parties under Section 8(1)(g) and interfere with ongoing investigations under Section 8(1)(h). The First Appellate Authority also cursorily rejected our first appeal without explaining how harm would be caused by disclosure of total figures.

The untenability of MHA’s objections

Unwilling to give up, we filed a second appeal before the Central Information Commission. In our appeal, we have argued that our request should not be denied under Section 8(1) because we have not sought any identifying information about an individual or details of a particular interception order. The MHA’s refusal is especially ironic because as recently as February 2019, it has willingly provided details of even specific cases cracked using surveillance. In its counter-affidavit to our PIL seeking surveillance reform, the MHA has provided an illustrative list of forty three cases which were solved through surveillance. This illustrative list is intended to bolster the MHA’s defence of its surveillance powers, and therefore, there is selective disclosure of surveillance related data when it suits the government’s interests.

We need hard data for informed public debate

In the absence of total figures, it is impossible to know what proportion of surveillance leads to actionable intelligence, and if the Government is casting an excessively wide net. Without this data, we do not know if the Competent Authority and Review Committee are merely acting as a rubber stamp and approving surveillance requests by law enforcement agencies without proper scrutiny. As the old saying goes, everyone is entitled to their own opinion but not their own facts. Reliable and accurate data on surveillance could serve as a common basis for discussion between people holding opposing views, and this is why we are determined to go the distance in this fight for transparency.

When such data has been made available in other countries, it has opened up the surveillance process to public scrutiny. For instance, in the United States, there was considerable uproar after it was revealed that Foreign Intelligence Surveillance Courts approved 99.97% surveillance requests received from the government. While the implications of such a high approval rate are debatable, the mere existence of such data enables the public to have an informed discussion on the subject. The lack of data is far more alarming in the Indian context because unlike the United States, we do not have any judicial oversight in the surveillance process and all decisions are taken by bureaucrats belonging to the executive branch.

So what comes next?

We have been pursuing this through multiple levels of appeals and we will continue to persevere. Our efforts in court have already yielded results and the MHA’s reply to our PIL has brought to light for the very first time the Secret Operating Procedure used for conducting surveillance. You can read more about the Secret Operating Procedure here.

In this endeavour, we have been supported by an amazingly committed team of lawyers including Sai Vinod, Vrinda Bhandari, Karan Lahiri, Gautam Bhatia and Prateek Chadha. You can also do your bit to create a transparent, accountable and privacy respecting system of surveillance by giving as little as Rs.100 every month. We hope you will help us in this mission by becoming an IFF member today!

1. Copies of second appeals filed by IFF before CIC [link]
2. Copy of counter-affidavit filed by the MHA in W.P.(C). 44/2019 [link]