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RSS ideologue KN Govindacharya has moved a plea urging the Supreme Court to direct a National Investigation Agency (NIA) probe in the wake of the recent NSO snooping scandal. The petitioner also calls for action against NSO Group and Facebook, which owns WhatsApp.
The plea further contends that WhatsApp is liable for perjury, in view of its earlier submissions before Court that the content exchanged on its platform is secure owing to its end to end encryption policy. The petition states,
“…it is clear that WhatsApp misled this Hon’ble Court into believing that its systems were safe. WhatsApp deliberately did not disclose the NSO hacking during proceedings before the Hon’ble Supreme Court, and thus has committed perjury.”
The NSO snooping scandal relates to claims that several mobile users were surveilled after a spyware – Pegasus – was activated on their phones through WhatsApp. The targeted persons could be tracked using the spyware through the data on their phone, including location services, camera and audio facilities, WhatsApp content, emails etc.
The glitch that enabled the spyware to inject itself was first noticed in May 2019. However, the scandal assumed the limelight more recently, after WhatsApp itself moved a District Court in California, and publicly attributed the spyware to Israeli developer NSO Group. In that case, warrants have been issued against NSO Group.
The NSO Group, in turn, has since claimed that it only deals with verified government entities, leading to concerns that the targeted users were under government surveillance. On this aspect, Govindacharya’s petition before the Supreme Court states,
“… NSO Group has reportedly stated that it sells its technology only to government agencies…
…That in case the Government is doing surveillance illegally, it shows the scant respect for rule of law by the instrumentalities of the State. In case private agencies are doing surveillance of Indian citizens, the same cannot be allowed by the Government, which has a duty to protect the fundamental rights.”
In India, several lawyers, activists and journalists have come forward claiming to have obtained a warning from WhatsApp that the spyware may have been injected into their mobile devices. Registering protest to the violation of the fundamental right to privacy thus, Govindacharya has submitted,
“As per initial reports, mobile phones of 17 Indians were compromised through Pegasus software of NSO Group. As per new reports, 121 Indian were affected. As per unofficial estimates, the list of affected Indians is likely to go up. WhatsApp has 40 crore Indian users, whose privacy and national security is at stake.”
The petitioner has also alluded to earlier episodes where prominent internet companies were involved in surveillance activities and manipulation of data against its consumers. Referring to the Cambridge Analytica scandal, the petition highlights,
“Facebook’s systems were used to influence elections all across the world, including India. Thus, it is clear that internet companies are partners in crime with other entities, or are themselves selling data of their users and thereby violating users privacy and endangering their life.”
Another episode highlighted is the US National Security Agency’s PRISM project, “by which more than 6.3 billion data of Indians was accessed by US intelligence agencies through nine internet companies, without any consent of Indian Government or users.”
The petitioner goes on to point that it would take time before the government’s recently introduced Draft Information Technology [Intermediaries Guidelines (Amendment)] Rules 2018 are notified. As per its earlier submissions before the Supreme Court, the process would take at least three months.
In the meanwhile, the petitioner contends,
“Indians cannot be left remediless, even as the Government forever keeps consulting, often with the same internet companies, which are violating the privacy of Indians.”
The petitioner has, therefore, prayed that the Supreme Court:
“Direct for NIA Investigation and lodging of FIR against Facebook, WhatsApp, NSO Group under the provisions of the Information Technology Act, 2000 and Indian Penal Code, 1860 for violating fundamental privacy of Indians.”
Further, in view of WhatsApp’s earlier submissions that its data is secure and reports that it knew about the Pegasus vulnerability in May, prior to such submissions, it has also been prayed that the Court direct perjury proceedings against WhatsApp for “deliberately misleading this Hon’ble Court”.
The petition has been drawn by Advocate Gaurav Pathak and filed by Advocate Sachin Mittal.
[Read the Petition]