Do not depend upon the state to protect your privacy: Pavan Duggal, Advocate, SC

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Pavan Duggal, Advocate, Supreme Court, decodes the debate over the Pegasus spyware episode and its implications for privacy. Excerpts from his interview to ET Now’s Tamanna Inamdar:

Tamanna Inamdar: What concerns you most about the latest Pegasus episode?

Pavan Duggal: What concerns me most is the flagrant violation of the existing law and the inability of the relevant stakeholders to open their eyes and try to take corrective positive action.

The people of the country are concerned that here is a software that has gone ahead and violated the target people’s fundamental right to privacy.

Now if you believe what NSO is telling you, it says it only sells to government or governmental agencies. The government here has nowhere admitted that it has either purchased or not purchased the said software; it is only saying that no wrongdoing has been done.

Well, if the government has not done any wrongdoing, then there is all the more reason for it to at least investigate. It is the duty of the government. That is because when you are engaging in spyware-related activities, that is tantamount to various offences under the Information Technology Act 2000 — specifically under Section 66, read with 43, 66B, 66C and D.

I can even go ahead and state that this particular classical case could also be brought under the ambit of the offence of cyber terror since the focus of this particular exercise was also to create terror in the minds and hearts of the targeted persons.

Our perception that we are secure must be instantaneously discarded, says Duggal.

When I look at section 69 of the IT Act, it only allows you lawful interception as required by law. Since a spyware itself is an illegal process, the commission of various activities done by spyware amounts to cyber crime.

The government at no point of time resort to interception using spyware. If it does, that is in gross violation of not just the IT Act but also the IPC. It is also a violation of people’s fundamental right to privacy and of Article 21 of the Constitution of India.

So rather than making these allegations and counter allegations, if the police has the power to register an FIR suo motu, on just source information, then there is nothing stopping the authorities from at least investigating what the real truth is.

If the Government of India has not done it, that’s wonderful. In that case, it becomes an even more important issue to find out who did it. Is it a foreign state? Or are these non-state actors who are targeting people?

How do we keep our phone safe then? Should we just entirely drop this pretence that we have at least some privacy left?
Unfortunately, the time has come for us to change our mindset. If you are thinking of security, let me tell you that it is nonexistent. Absolute security does not exist. Our perception that we are secure must be instantaneously discarded.

Also, the expectation that we have privacy is also somewhere in the clouds. Most of the time we ourselves become the weakest link in the cyber security chain by disclosing things. Already India is seeing the great Indian vomiting revolution, where Indians are vomiting all kinds of personal, professional, social information about their day-to-day lives on to the internet.

Now, as I have pointed in my book New Cyber World Order Post Covid-19, it is a new cyber world order that is awaiting us. States are going to get very very powerful. We will have increasing intrusion into our digital liberties.

So, I think the best thing is — let us try to pick up the strings from the start. There is an old saying that the moment you get started, think it as the morning of that particular day.

Let us begin by looking at our devices. Let us completely discard all the apps that we have on our devices, and then only put those apps that we are actually satisfied about after reading the terms and conditions of the privacy policy thereof, and whose customers reviews give you a substantial clarity that this is a good app to have.

Also, we will have to start inculcating cyber security as a way of life. Do not depend upon the state to protect your cyber privacy or cyber security. You yourself have to do it with your own hands.

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