By: Arshia Jain
Introduction and Background
“There is nothing we like sharing with others as much as the seal of secrecy and what lays underneath it.” – Friedrich Nietzsche
Phone tapping can also refer to wiretapping or phone interception. It began in the United States in the 1890s, with the advent of the telephone recorder. Roy Olmstead, a Seattle bootlegger, was found guilty after evidence was gathered by tapping his phone.
He went on to say that the government had infringed on his fundamental rights, but the court affirmed his conviction, claiming that tapping someone’s phone is not a physical invasion of privacy. The United States House of Representatives held hearings on the propriety of telephone eavesdropping for national security before the assault on Pearl Harbor and the subsequent entry of the United States into World War II. Years before World War II, important legislative and court rulings on the legality and legitimacy of wiretapping had been made. It, on the other hand, took on fresh urgency at that period of national crisis.
The Supreme Court of the United States stated in the case “Katz Vs The United States[1]“ that wiretapping required a warrant. The Foreign Intelligence Surveillance Act (FISA) was established in 1978 to provide for the issuance of wiretap orders in national security instances.
The Indian View On Phone Surveillance
Right to privacy is included in the term ‘ liberty.’ A citizen has the right to protect his or her privacy, as well as the privacy of his or her family, education, marriage, motherhood, childbearing, and procreation.
In 1890, Lewis D. Brandeis defined privacy as “the right to be left alone.” While it is acceptable and ethical for an individual not to intrude into the privacy of others, it is a fundamental constitutional requirement for the government.
The government cannot discreetly and selectively bug information about political opponents, as it did in the iconic Watergate scandal, nor can it gather evidence for an inquiry, as a prosecutor may.
If it does, it is infringing on his right to privacy, dignity, and respect, unless the law requires it. Human rights recognize that a person’s privacy must be safeguarded against interference. In implementing the US Constitution’s 4th Amendment, Justice Frankfurter stated that privacy invasions must be “condemned as irreconcilable with the notion of human rights embedded in the history and essential constitutional texts…”
Life and liberty are not meaningless phrases; they have all of the necessary components to make them meaningful. Under our Constitution, a person’s privacy is an element of his life and liberty. Any violation of this basic right may only be carried out within the confines of the constitution.
The act of wiretapping has an impact on both the right to privacy and the right to freedom of speech and expression, both of which are protected by the Constitution. Art. 21 of the Constitution, which protects life and liberty, may only allow laws enacted by the legislature that fulfill constitutional standards and follow a method that is just, fair, and reasonable.
Furthermore, except as provided in Art. 19 of the Constitution, no infringement of the right to freedom of speech and expression is permitted. Telephone tapping is the practice of secretly listening to or recording a telephone conversation to learn about other people’s actions. In certain places, it’s also known as ‘wiretapping’ (predominantly in the USA). Phone tapping can only be done in an official capacity with the consent of the appropriate authorities. However, if it is done in an unauthorized and illegal manner, it is prohibited and will result in the person responsible for the breach of privacy being prosecuted.
Phone tapping is only legal in India if it is done with the approval of the relevant department. However, if it is done in an unauthorized manner, it is illegal and will result in the person responsible for the breach of privacy being prosecuted.
Telephones and other communication equipment are listed in Entry 31 of the Indian Constitution’s Union List, which is based on Entry 7 of the Government of India Act 1935’s Federal List.
As per Seervai, the Indian act took extreme initiatives for the progress of technology in Entry 7, List I, resulting in “Blogs and signals; cell phones, internet connectivity, streaming live, and other like mediums of expression,” and Entry 31, List I of the Constitutional Provisions protected the entry, so there was no need to conceptualize the word “telegraphs” lithely to include cell phones, internet connectivity, streaming live, and other like types of writing.
Under Section 5(2) of the Indian Telegraphic Act, 1885, both the Central Government and the State Governments have the authority to intercept telephone calls. In some cases, an investigative body or agency will need to record the phone calls of the individual under investigation. Before carrying out such an act, such authorities must first obtain approval from the Home Ministry. Particular grounds must be included in the application for authorization. Furthermore, the necessity of telephone interception must be demonstrated. Only when the ministry has assessed the merits of the application for interception will it evaluate it and provide approval.
Before placing a phone under surveillance, each agency writes out an authorization slip. When it comes to the state, the Home Secretary of that specific state signs it. Politicians’ phones cannot be formally tapped since the examined person is not an elected representative, according to the slip.
Every cellular service provider now has an aggregation station, which is a collection of servers known as mediation servers, which act as a conduit between cellular operators and law enforcement organizations to tap phones. The Integrated Services Digital Network (ISDN) and the leased line are the two forms of telephone tapping services available these days. An interception server taps a call and then sends it to a government agency’s office over a Primary Rate Interface (PRI) connection. In addition, the authorities will be able to listen in on their PRI line and keep the recording of the intercepted call on associated computers. Concurrently, a sound file of the intercepted call can be captured and stored in the mediation server.
India’s New Aspects of Phone Interception
In 2011, India passed a law stating that “every individual shall have a right to his privacy — confidentiality of communication made to, or by, him — including his correspondence, telephone conversations, telegraph messages, postal, electronic mail, and other modes of communication; confidentiality of his private or family life; protection of his honor and good name; protection from search, detention, or exposure of lawful coercion.”
The Union administration has unveiled a new set of telephone interception procedures. The Hindu has obtained a copy of the “Standard Operating Procedures (SOP) for Lawful Interception and Monitoring of Telecom Service Providers (TSP)”, which has the number 5-4/2011/S-II and is dated January 2, 2014. This comes only two weeks after the Central Government established a panel to investigate the spying controversy in Gujarat, which reportedly involved BJP’s prime ministerial candidate Narendra Modi. According to the rules, requests would include interception and monitoring of voice, SMS, GPRS, MMS, Video, and VoIP communications under the Indian Telegraph Act, 1885.
Authorized security agencies can also request call records (CDRs), home and roaming network, CDR by tower location and by calling/called the number, location data of target number inside home or roaming network, and so on, under Section 92 of the Criminal Procedure Code (CrPC). 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 the case of the Government of India, or a Secretary to the State Government in charge of the Home Department, in the case of the State Government,” according to the section “Validation of Interception Request.”
Such instructions can be issued by an officer “not below the level of Joint Secretary to the Government of India who has been fully authorized by the Union Home Secretary or the State Home Secretary” in unavoidable circumstances. Before monitoring is permitted, eight checks must be completed. Receiving the request “in a sealed envelope” and assuring interception by “an official, not below the level of sub-inspector of police or equivalent” are among them. Under the new SOP, any inquiry procedure might examine “whether the request was in original and directed to the Nodal officer,” as well as the “designated security agency” from whence it came. Any “request made via telephone, SMS or fax shall not be accepted under any circumstances,” according to the SOP.
This would require the government in question to present an original copy of its request bearing “the Union/State Secretary’s order number with date,” or order and date from a “Joint Secretary who has been lawfully authorized” officer. Noncompliance with the conditions may lead to legal action “under the law of the land.” The SOP is 45 pages lengthy and is broken down into 11 sections. The operational structure, types of requests, interception request validation, legal intercept under number portability, reconciliation and pruning processes, consequences, list of ten law enforcement agencies authorized to intercept, and a set of ten annexures relating to interception are among the sections.
According to the Standard Operating Procedure, if a call is made via e-mail, the unauthorized access should be revoked and an inference provided “to [the] responsible Home Secretary as a role of the bi-weekly document” unless a tangible version is not attained to the telecommunication company within 48 hours.” Records related to such interception, such as letters and envelopes, intercept forms, and internal interception request forms, must be “destroyed after 2 months following termination of interception of such messages,” according to the SOP. If, on the other hand, it’s an “emergency request for which the Home Ministry Order for approval was not conveyed to the telecom company,” the telecom company can’t destroy the records until the Home Ministry order is conveyed or a list of such numbers is provided to the concerned Home Secretary informing him or her of the situation.
India’s Right to Privacy.
Article 21 of the Indian Constitution states, “No citizen shall be arbitrarily deprived of their right to liberty except applying the techniques set by law.” ‘Right to privacy is included in the word ‘personal liberty.’ A citizen has the right to protect his or her privacy, as well as the privacy of his or her family, education, marriage, motherhood, childbearing, and procreation.
The confidentiality was investigated in the major Supreme Court verdict “Justice K.S. Puttaswamy & Anr Vs Union of India & Ors,” [2]It is critical to note that the right to privacy was formerly regarded as a “common law right” before being briefly examined in the Puttaswamy case. “Life and personal liberty are not inventions of the Constitution,” the Supreme Court ruled in the privacy.
The Constitution recognizes these rights as an inherent and inseparable component of the human essence that resides inside each individual. Privacy is a legally protected right that stems primarily from Article 21 of the Constitution’s guarantee of life and personal liberty. Privacy issues arise in a variety of circumstances from the other aspects of freedom and dignity recognized and secured by Part III’s fundamental rights. Personal intimacies, the sanctity of marriage and family life, the home, reproduction, and sexual orientation are all fundamental to privacy. The term “privacy” also refers to the right to be left alone.
Individual autonomy is protected by privacy, which respects an individual’s capacity to manage important parts of his or her life. Personal decisions that pervade a way of life are critical to maintaining privacy. Privacy protects variety and acknowledges our culture’s multiplicity and diversity. While the legal expectation of privacy varies from intimate to private zones, as well as from private to public venues, it is vital to note that privacy is not lost or abandoned just because an individual is in a public area. Because privacy is an important aspect of a person’s dignity, it connects to them.
Right to Privacy Concerning Telephone Interception
The Right to Privacy, as revised by a recent Supreme Court decision, is a vital aspect of the right to life, which is inscribed in Article 21 of the Indian Constitution. Individuals’ right to privacy is violated when their phone is intercepted without their knowledge. However, if a unique case emerges, the government can act similarly. Section 5(2) of the Telegraph Act gives the government this authority. Section 5(2) allows the government the authority to intercept a phone call in the public interest or the event of an emergency.
The Government’s power under Section 5(2) is not absolute because it concerns an individual’s privacy. Nobody can listen in on a person’s phone without first getting authorization from the authorities. The government can only wiretap an individual’s phone to a limited extent if it can demonstrate sufficient grounds for doing so. Because a person has a right to privacy and a right to protect his right to privacy, the government can exercise its right but only within certain bounds.
Conclusion
Article 21 of the Indian Constitution guarantees the right to privacy as part of personal liberty. A person’s right to privacy is also protected. In rare situations, the government is forced to act against a person’s basic rights. Interception of telephone calls is one of them. This is a significant step taken by the government, and acceptable grounds for intercepting an individual’s phone should be addressed because it is an issue of privacy. Interception of telephone calls is not a breach of the right to privacy if it is done in the public interest or an emergency, as defined under section 5(2) of the Telegraph Act. Except in the two cases described above, telephone interception is not possible.
Any evidence obtained by telephone interception is not regarded as inadmissible evidence and does not violate the right to privacy. Interception of telephone calls without government consent is a breach of a person’s right to privacy since a person may discuss his or her issues, children’s schooling, health, and other topics that he or she would prefer not to disclose with others. The government’s rights to intercept telephone calls are not absolute. It is subject to certain reasonable constraints. An individual’s telephone cannot be taped unless and until valid grounds for doing so are demonstrated, and no person’s liberty shall be lost.
As a result, phone tapping does not violate one’s right to privacy unless and until it is done in the public interest or an emergency. Telephone tapping should be taken seriously since it violates an individual’s constitutional and human right to privacy and exposes him to humiliation and shame. Invasions of this nature are undemocratic and uncivilized.
References
- Legality of Phone tapping in India
- Phone tapping: Violation of constitutional, human rights
- India: Phone Tapping And Recording Of Telephonic Conversations – Right To Privacy And Indian Law
- Law on Phone Tapping in India in Light on Public Safety
- LAWS ON PHONE TAPPING IN INDIA: IS PRIVACY AT STAKE?