Say yes to phone tapping and Tata to privacy

IN Privacy | 29/11/2010

The privacy issue that Ratan Tata, the Chairman of the Tata group, raised in the context of the Radia tapes may seem like a damage control exercise that comes much after the horse has bolted! If the corporate house is crying foul today merely because it is at the wrong end of the stick, it must be remembered that the extensive phone tapping is only the latest in a long list of transgressions of privacy, more and more with legal sanction, than ever before.

Of course, raising the privacy issue may be a bogey in the face of the disclosures of interests of several parties in the telecom scam. And if the assertion of one’s right to privacy comes in conflict with the journalist’s right to disclose information, the larger public interest will define which right is more important.

The industrialist moved the Supreme Court today seeking action against the publication of the intercepts of his conversation with corporate lobbyist and head of Vaishnavi Communications, Niira Radia. The latter is retained by the Tata group to handle its corporate communications.

In his petition, Tata contended that the leakage of the tapes have infringed upon his fundamental Right to Life, which includes right to privacy and sought a direction for fixing the responsibility for the alleged leakage of the tapes. Tata has made the Union home secretary, the CBI, the Income Tax department, the department of telecommunication and department of Information Technology as respondents in the petition.

The outcome of the petition will be keenly watched but one suspects that it will come to naught, for the tapes were, by his own admission in an interview to Indian Express editor Shekhar Gupta for NDTV’s Walk the Talk show, ‘been around for a long, long time in one form or another’. Clearly, the tapes had been leaked and had been circulated to several media houses, some of whom bit the bait.

To determine who leaked the tapes and how it came into the public domain will hardly yield results. Perhaps some scapegoats may be found or the government will agree to institute an inquiry into the leak, effectively burying it till the dust settles.

In the interview, Tata asserted that phone tapping, per se, was justified in the interests of national security and law enforcement, but he obviously felt that these disclosures didn’t fall into either domain and there will be few takers for his claim. Tata’s petition does however, raise a question about the rights of people who are under surveillance, for whatever reason. Do they have any rights at all? Obviously, they do. But in this grey area of monitoring a host of actions of citizens, there are little safeguards.

Of course, this is hardly the first of the phone tapping in recent times. In April this year, Outlook magazine alleged that the phones of several politicians were tapped, perhaps without authorisation (Barkha Dutt, one of the protagonists in the Radia tapes controversy, anchored a programme on NDTV in April this year on privacy and phone tapping of politicians, refers to the telecom scam and even suspects that her phone is tapped! Click here to see the video).

Phone tapping in India comes under the purview of the intelligence gathering services of the National Technical Research Organisation (NTRO), which directly reports to the Prime Minister’s Office, through the National Security Advisor. Phone tapping is allowed, with authorisation, in the case of a public emergency though in a debate in Parliament, Union Home Minister P Chidambaram felt that phone-tapping was justified even for a tax evasion.

Several countries have grappled unsuccessfully with the issue of phone-tapping and privacy. In some countries, independent bodies have been appointed to adjudicate disputes. In Canada, there is a privacy commissioner for the task. In New Zealand, an ombudsman plays the role while in the UK, a Data Protection Tribunal has been appointed for this purpose. In USA, there are different provisions for wiretapping, depending on the states (and the powers have expanded greatly after 9/11), but a court order is required by federal law enforcement authorities suspecting unlawful activities.

And as the world depends more and more on digital communication, the monitoring of one’s data, information, communication and exchanges, just gets easier. India’s amended Information Technology Act, 2000, gives sweeping powers to the state to monitor, intercept and decrypt any communication transmitted in a digital media.

In India, the right to privacy may be part of the fundamental right to life under Art 21 of the Indian Constitution. However, it is only a deemed right. The government is considering the formulation of a separate law to govern the right to privacy and a consultation that began on July this year by the Department of Personnel and Training (DoPT) initiated a discussion on the legal framework for the proposed legislation (read more in ‘Privacy is not a trade off for transparency’).

Privacy rights must also be seen in the backdrop of the state’s increasing attempts to amass data about citizens. The National Identification Authority Bill, 2010 (NIAI Bill), due for introduction in the current session of Parliament, has set down several provisions on the collection and use of Aadhar data. However, crucial aspects related to privacy and securing of the information collected, has been left out or is incomplete in the bill. (Click here to download a copy of the bill).

Clauses 30-33 of Chapter VI of the bill deal with protection of information, wherein the confidentiality of the information collected is maintained by oaths of secrecy. The information can be provided only on a court order and disclosed in the interests of national security if authorised by an officer of the rank of a joint secretary. Besides, it gives sweeping powers to the National Information Authority (NIA), placing it under the control of the Union government. What is more, the bill has no provision for appealing against decisions of the NIA.

Besides, the personal data collected by one agency for one purpose, cannot be transferred to another agency for another purpose. But the bill is silent on this aspect. Writing in The Hindu, political economist and member of the National Advisory Council, Prof Jean Dreze said, "The biggest danger of UID, however, lies in a restriction of civil liberties. As one observer aptly put it, Aadhaar is creating "the infrastructure of authoritarianism" — an unprecedented degree of state surveillance (and potential control) of citizens. This infrastructure may or may not be used for sinister designs. But can we take a chance, in a country where state agencies have such an awful record of arbitrariness, brutality and impunity?"