The Union government has announced a fresh set of procedures for interception of telephones. The"Standard Operating Procedures (SOP) for Lawful Interception and Monitoring of Telecom Service Providers (TSP)", bearing No.5- 4/2011/S-II and dated January 2, 2014, have been accessed by The Hindu .
Significantly, this comes two weeks after the Central government set up a commission to inquire into the Gujarat-based snooping scandal, allegedly involving BJP"™s prime ministerial candidate Narendra Modi.
According to the norms, requests would include interception and monitoring under the Indian Telegraph Act, 1885, for voice, SMS, GPRS, MMS, Video and VoIP calls.
Additionally, authorised security agencies can seek information under Section 92 of the Criminal Procedure Code (CrPC) of call records (CDRs), home and roaming network, CDR by tower location and by calling/called number, location details of target number within home or roaming network, and so on.
One specification detailed in the section"Validation of Interception Request" is that only the Chief Nodal Officer of a telecom company can provide interception if the order is issued by the"Secretary to the Government of India in the Home Ministry, in case of Government of India, or a Secretary to the State Government in charge of Home Department, in case of State Government." In unavoidable circumstances, such orders can be issued by an officer"not below the rank of Joint Secretary to the GOI who has been fully authorised by the Union Home Secretary or the State Home Secretary."
Interception is subject to eight checks before monitoring is allowed. These include receiving the request"in a sealed envelope", ensuring the delivery of interception by"an officer not below the rank of sub-inspector of police or equivalent."
Any inquiry process could, under the new SOP, check"whether the request was in original and addressed to the Nodal Officer" and from which"designated security agency" it came from.
The SOP mandates that, any"request received by telephone, SMS and fax, should not be accepted under any circumstances." This would mean that the government concerned would have to produce an original copy of its request that bears"the Union/State Secretary"™s order number with date", or an order and date by an officer of the rank of"Joint Secretary who has been duly authorised". Non-compliance with the provisions can result in prosecution"as per the law of the land".
The SOP document is 45 pages long and divided into 11 sections. The sections include the operational structure, types of request, validation of interception request, legal intercept under number portability, reconciliation and pruning processes, consequences, list of 10 law enforcement agencies authorised to intercept and a set of 10 annexures relating to interception.
The SOP require that if a request is made on e-mail, unless a"physical copy is not reached to the telecom service provider within 48 hours" the interception should be terminated and an intimation provided"to [the] concerned Home Secretary as a part of the fortnightly report."
The SOP require that records pertaining to such interception, such as letter and envelope, intercept form and internal interception request form should be"destroyed within 2 months of discontinuance of interception of such messages."
If, however, it is a case of"emergent request where Home Ministry Order for approval was not conveyed to the telecom company, then the telecom company cannot destroy such records until the Home Ministry order is conveyed or a list of such numbers is provided to the concerned Home Secretary intimating this fact."
An inquiry could seek to find out whether"an acknowledgement was sent within 2 hours of the receipt of the [interception] request, to the requesting agency confirming that the request has been complied with", from the mobile operator.
"The date and time of the actual provisioning of target in the TSP network" should be mentioned, too.
The confusion in the case of the Gujarat-based snooping case, over whether the Union Home Secretary"™s permission is required to intercept a subscriber roaming out of the State stands clarified. According to the new SOP document,"the interception order of the State Home Secretary in which the subscriber is registered should be honoured by the State in which the subscriber is roaming". In effect, no new order from a second State that may be involved, or from the Union Home Secretary, is needed. However, evidence under the new SOP will need to be provided to the effect that a formal request was made to the other State for interception while roaming.
The Union Cabinet"™s latest decision on a new SOP has come in the wake of recent new evidence that the alleged snooping went beyond Gujarat and extended to Karnataka as well.
Any inquiry process will eventually boil down to whether or not the entire paper trail, both internal and between the government and telecom operators with appropriate internal justification and full compliance existed prior to interception.
Whether these new SOP are consistent with the procedure that existed during the alleged snooping incidents in 2009 remains uncertain. Further, if there is a marked difference, the SOP of 2014 would provide contrasting evidence on practices adopted earlier for interception.
Apart from the nine Central agencies " namely, the IB, the NCB, the DE, the CBDT, the DRI, the CBI, the NIA, RAW and the Defence Ministry " State Directors-General of Police and the Commissioner of Police in Delhi, are authorised to request intercepts.