New Standard Operating Procedures for Lawful Interception and Monitoring
Even as the Central Government prepares the Central Monitoring System for the unrestricted monitoring of all personal communication, the Department of Telecom has issued new guidelines for Telecom Service Providers to assist in responding to requests for interception and monitoring of communications from security agencies.
These guidelines do not appear to be publicly accessible, but according to news items, under the “Standard Operating Procedures for Lawful Interception and Monitoring of Telecom Service Providers”, the TSP’s must now provide for lawful interception and monitoring requests for voice calls, Short message Service (SMS), General Packet Radio Service (GPRS) and Value Added Service (VAS) including Multi Message Service (MMS), data and voice in 3G/4G/Long Term Evolution (LTE) including video call or Voice Over Internet protocol (VoIP). This move comes just days after the Home Ministry suggested that the Department of Telecom either change the rules under their Telecom Policies such as the Unified Access Service Licence (UASL) to include VoIP monitoring, or, drastically, block all VoIP services on the internet, which would include several communication applications including Skype and GTalk. (See the article published by Economic Times).
The guidelines will supposedly also provide for some basic safeguards to ensure that non-authorized interception does not take place, such as ensuring that the interception is only to be provided by the Chief Nodal Officer of a TSP and only upon the issue of an order by the Home Secretary at the Central or State Government. Furthermore, these requests must only be in written, in untampered and sealed envelopes with no overwriting, etc. and bearing the order number issued by the concerned Secretary, with the date of the order. However, in exigent circumstances the order may be provided by email, provided that the physical copy is sent within two days of the order, else the interception order must be terminated. Inquiry processes are detailed under the new SOP’s which can verify whether the request was in original and addressed to the Nodal Officer and from which designated security agency it was issued, and can also verify the issue of an acknowledgment of compliance of the order by the TSP within two days of its receipt. The new guidelines also clarify the issue of interception of roaming subscribers by the State Government where the subscriber is registered. According to the guidelines, an order by the government of the state where such a caller has registered is sufficient and does not need vetting by the Home Secretary at the centre.
Notwithstanding the additional “safeguards” against unlawful or unauthorized interception, the message to take away from these guidelines is the Government’s continued efforts to expand its surveillance regime to comprehensively monitor every action and every communication at its whim. These requests for monitoring, undertaken by “security agencies” which include taxation agencies and the SEBI, are flawed not merely because of the possibility of “unauthorized” interception, rather because the legal basis of the interception is vague, broad and widely susceptible to misuse, as the recent “snoopgate” allegations against the Gujarat government have shown. (See the article published by the Hindu).
The current regime, based on a wide interpretation of Section 5(2) of the Indian Telegraph Act and the telecom policies of the Department of Telecom, do not have adequate safeguards for preventing misuse by those in power – such as the requirement of reasonable suspicion or a warrant. Without a sound legal basis for interception, which protects the privacy rights of individuals, any additional safeguards are more or less moot, since the real threat of intrusive surveillance and infringing of basic privacy exists regardless of whether it is done under the seal of the Home Secretary or not.
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