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Introduction 1 2. Enabling Statutes 3 2.1 Telephones 3 2.1.1 Procurement and review of lawful order under Rule 419A 5 2.1.2 Interception process under Rule 419A 6 2.2 Internet 8 3. Enabling License Agreements 15 3.1 Telephone tapping 17 3.2 Surveillance of Internet data 18 3.2.1 Obligations of ISPs under ISL 18 3.2.2 Obligations of ISPs under UL 19 3.3 Surveillance of Internet meta-data 19 4. Functional Surveillance Mechanisms 22 4.1 Lawful Interception and Monitoring systems 22 4.2 Centralized Monitoring System 24 4.3 Network Traffic Analysis 27 4.4 National Intelligence Grid 29 4.5 Unlawful interception and monitoring 30 5. Privacy: The Indian Perspective 32 6. Surveillance and Human Rights 35 7. The Necessary and Proportionate Principles 38 7.1 Legality 38 7.2 Legitimate aim 39 7.3 Necessity 40 7.4 Adequacy 40 7.5 Proportionality 41 7.6 Competent judicial authority 42 7.7 Due process 43 7.8 User notification 44 7.9 Transparency 44 7.10 Public oversight 45 7.11 Integrity of communications and systems 45 7.12 Safeguards for international cooperation 46 7.13 Safeguards against illegitimate access 47 8. Conclusion 49 Appendix 50 List of statutes Indian Telegraph Act, 1885 Indian Telegraph Rules, 1951 Information Technology Act, 2000 Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009 Information Technology (Procedure and Safeguards for Monitoring and Collecting Traffic Data or Information) Rules, 2009 Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 Information Technology (Intermediaries Guidelines) Rules, 2011 Information Technology (Guidelines for Cyber Cafe) Rules, 2011 Code of Criminal Procedure, 1973 i List of cases People's Union for Civil Liberties v. Union of India [AIR 1997 SC 568] Rajeev Chandrasekhar v. Union of India [W.P.(C).No. 23 of 2013] MouthShut.com v. Union of India [W.P.(C).No. 217 of 2013] Kharak Singh v. State of Uttar Pradesh & Ors. [(1964) 1 SCR 332] Govind v. State of Madhya Pradesh [(1975) 2 SCC 148] R R Gopal & Anr. v. State of Tamil Nadu [(1994) 6 SCC 332] Ratan Tata v. Union of India [W.P.(C).No. 398 of 2010] ii List of abbreviations C-DOT Centre for Development of Telematics CAIR Centre for Artificial Intelligence and Robotics CCA Controller of Certifying Authorities CCPR Centre for Civil and Political Rights CBDT Central Board of Direct Taxes CBI Central Bureau of Investigation CDR Call Data Record CMS Centralized Monitoring System CrPC Criminal Procedure Code DIA Defense Intelligence Agency DOT Department of Telecommunications DRDO Defense Research and Development Organization DRI Directorate of Revenue Intelligence ED Enforcement Directorate GB Giga-byte GoI Government of India GPS Global Positioning System HCHR High Commissioner on Human Rights HRC Human Rights Commission IB Intelligence Bureau ICCPR International Covenant on Civil and Political Rights IP Internet Protocol IPDR Internet Protocol Data Record IPTV Internet Protocol Television ISF Information Store and Forward ISL Internet Service License ISP Internet Service Provider IT Act Information Technology Act iii TRAI Telecom Regulatory Authority of India TSP Telecom Service Provider UASL Unified Access Service License UDHR Universal Declaration on Human Rights US United States UL Unified License UN United Nations iv 1. Introduction some "snooping" of its own. While we note with great satisfaction the earnest words In June 2013, the world was treated to a of the current Minister of External Affairs, rude awakening by a hitherto unknown Ms. Sushma Swaraj on issues of US Edward Snowden, when he made public surveillance and hope the matter will get thousands of classified documents that the attention it deserves, the need to belonged to the United States' National understand India's domestic surveillance Security Agency (NSA). Described as one of practices is not obliterated. the most significant leaks in US history, the disclosed documents revealed that the US Government had been discreetly Multiple Indian legislations … collecting unprecedented quantities of contain explicit provisions that surveillance data on everyone from its allow Central and State own citizens to foreign Governments, Governments to intercept and ostensibly as part of its global war against terror. monitor the nation's communication networks on While most of the rest of the world was several grounds. foreseeably outraged by the contents of Snowden's revelations, the then Indian Government's response to the matter was Multiple Indian legislations, including the tepid at best, and the whole affair was Indian Telegraph Act and Rules, shrugged off as a routine occurrence in Information Technology Act and Rules international diplomacy. This stand was and the Code of Criminal Procedure, especially surprising since India, who has contain explicit provisions that allow always boasted friendly ties with the US, Central and State Governments to was reportedly fifth in the overall list of intercept and monitor the nation's countries spied on by the NSA programs. communication networks