Facing attack over its order allegedly allowing various intelligence and investigating agencies and the Delhi Police to intercept, monitor and decrypt any computer, the Union Home Ministry on Friday issued a clarification, saying the notification “does not confer any new powers” and “every individual case will continue to require prior approval” of the Ministry and the state government.
The statement of the Ministry said that “adequate safeguards” were provided in the Information and Technology (IT) Act 2000 and similar provisions and procedures already existed in the Telegraph Act along with identical safeguards.
“The present notification is analogous to the authorisation issued under the Telegraph Act. The entire process is also subject to a robust review mechanism as in case of Telegraph Act.
“Every individual case will continue to require prior approval of Home Ministry or state government. MHA has not delegated its powers to any law enforcement or security agency,” said the statement.
Mentioning some points on lawful interception or monitoring or decryption of information through computer resource, the Ministry cited Rule 4 of the IT (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules 2009.
It said the rule provides that the competent authority may authorise an agency of the government to intercept, monitor or decrypt information generated, transmitted, received or stored in any computer resource for the purpose specified in sub-section (1) of Section 69 of the ‘Act’.
“The statutory order dated December 20 has been issued in accordance with rules framed in year 2009 and in vogue since then. The notification has been issued to notify the ISPs (Internet Service Providers), TSPs and intermediaries to codify the existing orders.
“Each case of interception, monitoring, decryption is to be approved by the competent authority like Union Home Secretary,” said the statement.
Referring to Rule 22 of the IT (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules 2009, the Ministry order said all such cases of interception or monitoring or decryption are to be placed before the review committee headed by Cabinet Secretary, which shall meet at least once in two months to review such cases.
“In case of state governments, such cases are reviewed by a committee headed by the Chief Secretary concerned.”
The notification issued on December 20 will help to ensure that any interception, monitoring or decryption of any information through any computer resource is done as per due process of law, it said.
“Notification about the agencies authorised to exercise these powers and preventing any unauthorised use of these powers by any agency, individual or intermediary. The above notification will ensure that provisions of law relating to lawful interception or monitoring of computer resource are followed and if any interception, monitoring or decryption is required for purposes specified in Section 69 of the IT Act, the same is done as per due process of law and approval of competent authority like Union Home Secretary,” the statement added.
The Home Ministry’s December 20 order issued by Home Secretary Rajiv Gauba gave the interception powers to the Intelligence Bureau, National Investigation Agency (NIA), Enforcement Directorate (ED), Central Bureau of Investigation (CBI), Narcotics Control Board, Central Board of Direct Taxes, Directorate of Revenue Intelligence, Cabinet Secretary (RAW), Directorate of Signal Intelligence (for service areas of Jammu and Kashmir, Northeast and Assam only) and the Commissioner of Police, Delhi.
The notification made it clear that any subscriber or service provider person in charge of any computer resource is bound to extend all facilities and technical assistance to these agencies.
In case any person or entity refuses to cooperate, it “will face seven years in jail and a fine”.