Pegasus spyware row: Is anyone using your data?
Author: Chaitrali Naik, student at National Law University, Delhi.
In the country like India which is called as the mother of democracy and where fundamental rights are considered as a basic structure of Indian Constitution and considered as law of the land which cannot be violated by anyone and by any process expect procedure established by law, there are raising allegation by many journalist, human rights defender and opposition leaders that government agencies are using Pegasus Spyware to gather information unlawfully.
What is Pegasus Spyware?
Pegasus is a Spyware service, built and marketed by an Israeli company NSO. It was designed to track out terrorists, drug dealers, paedophiles, drones, and even humans stuck in the ruins of a fallen building. However, this spyware – and its clones and imitations, including one called Predator – that is allegedly made available exclusively to government law-enforcement agencies following formal authorization by the Israeli government – is being misused by regimes all over the world, particularly authoritarian ones. It is a spyware that infects the devices and spies on the victim by transferring data to the master or the person who had ingested the spyware in the phone. This is unauthorised mannered snooping in anyone’s devices which comes along with infringing many fundamental rights provided by Indian Constitution. The said company claims to sell this service and the spyware only to the Foreign Government and not the individual or private entities.
This spyware can be installed in electronic devices which are connected to the internet like laptop or mobile through many ways. This can be installed just by clicking on any link or through a call. As per some experts, updated versions of the spyware can even work without clicking on any link or call.
This spyware is different from various viruses as viruses can be removed from the affected devices by using anti-viruses but this spyware and stalkware disguise themselves as useful applications or tools and send the gathered information to its master without the knowledge of the victim.
What can it affect?
These spyware will automatically receive the permission to read the mails, calls, contacts, data backup, messages, to use the camera, to use the microphone etc. from the device and can also record the speeches, can also perform screen recording, access the calendar and read messages through many apps. This spyware continues to send the collected information to the master until the time it is detected.
The fact that the victim is fully unaware of the spying and the snooping happening in the background of their devices, makes this spyware more dangerous.
Background and Facts
In 2021, an online news platform, ‘The Wire’ and 16 various other international publications uncovered a report about the mobiles and their mobile number which were potential targets of this spyware service which was bought by the Government and India was one of the many countries in the list. This report was published as a part of a worldwide media consortium known as ‘Pegasus Project’. In the first report released in the month of July, as per ‘The Wire’, there were 40 Indians which included journalists, political leaders like Rahul Gandhi, Election strategist, Prashant Kishore, Former Election Commission of India members (ECI) and many more who were under unlawful surveillance. This report was the work of many journalists and international news agencies and their efforts of two years. The number of the individuals who had been snooped increased in the month of August and reached 174.
The Congress Party and some other parties alleged the Modi Government to snoop on them by using the Pegasus Spyware. This was an issue which led to blocking the entire Monsoon session of the parliament of the year 2021.
Actions taken:
In 2021, Mohar Lal Sharma filed a writ petition with many others against the union of India in the Supreme Court of India and accused them of violating their fundamental rights. This case, Manohar Lal Sharma Vs. Union of India (UOI) and Ors., revolves around the Article 14, Article 19 and Article 21 of Indian Constitution. The writ was filed using the powers conferred by Article 32 of the Indian Constitution.
This case was heard in front of the Coram which included, former Chief Justice of India, N. V. Ramana, Justice Surya Kant and Justice Hima Kholi. In the judgement, the judge also discussed many other landmark cases and referred to them, some of them are Kesavananda Bharati Sripadagalvaru v. State of Kerala, K.S. Puttaswamy and Ors. v. Union of India (UOI) and Ors, Indian Express Newspapers (Bombay) Private Ltd. and Ors. v. Union of India (UOI) and Ors and many others.
Legal issue raised in the case:
The petitioner argued that their Right to privacy which is considered under Art.21 was impacted and violated without procedure established by law. The court mentioned that there is the existence of the doctrine of ‘potential chilling effect’ which elaborates a situation where the government exercises a kind of ban or blanket on the Art. 19 which is Freedom of speech and Expression. Which indicates all the victims involved, their Art.19 was infringed. Adding to the fact, allegations were made against a spyware developed by a foreign country so what will be their stand and their involvement was in question.
Judgement
The judgement was passed on 27 October, 2021 and was started by quoting George Orwell.
If you want to keep a secret, you must also hide it from yourself.
-George Orwell, 1984
This quote was said to make a clear point as to why the court or the judiciary needs to interfere. While the Government sought permission to scrutinise the allegation by constituting committee all by themselves, the court made it crystal clear that government can not investigate a case in which they themselve are accused, sticking and following the principle of Natural Justice.
The Supreme Court ordered an independent expert committee to investigate the Pegasus row and said that, Government can not get a free pass every time questions on national security are raised. This committee will include many experts from the cyber and technical field, legal background etc. which will be overseen by retired Supreme court judge Justice R.V Raveendra. This also includes a task force which involves, Mr. Alok Joshi an IPS officer and Dr. Sundeep Oberio. There will be a three member technical team which will consist of Dr. Naveen Kumar Chaudhary, Dr. Prababharan and Dr. Ashwin Anil Gumaste, each and everyone in the team has an expertise in the field of technology. An holistic investigation is to be conducted by all the experts mentioned earlier.
The court while passing this judgement, mentioned that the committee is formed on a compelling circumstances after many failed attempts of enquiring about the spyware to the government. The Court also mentioned that the Government should answer the question whether or not they have installed or bought this spyware and if they have not so it is their duty to investigate and make sure that no fundamental rights are being violated by any other entities whatsoever.
The court also mentioned that some of the petitioners were direct victims of the Pegasus snooping and blamed the Union for the same.
Conclusion and findings of the committee
In august 2022, Supreme court shared the findings of the committee and said that committee found the presence of malware on the five phones out of 29 given for investigation but have not found conclusive proof of presence of Pegasus Spyware. In the report it was mentioned that the government has not coordinated with the investigation. The accused considered it to have a clean chit but the petitioner and the opposition parties continued to accuse the present government.
All the questions raised in this case remained unanswered and would be referred as a mystery in the future similar to many scams that took place in India.
Sources:
Pegasus Used to Target The Wire’s Founding Editor, Reporter Working on Adani, Amnesty Confirms
