Power to monitor Communications

We are constantly under fear of surveillance of the communication. Even prior to communications via the internet, the Government has always enjoyed control over traditional means of communications. How there has been a change regarding regulation upon the postal articles; messages transmitted through telegraph and information through electronic means? The earliest method to communicate via modern means is “postal services”. Messages started being transmitted through “telegraph”. The current time is of ICTs.

It becomes relevant to study the development with regard all three means. This post highlights three primary legislations in relation to communications –

(a) Indian Post Office Act, 1898 

Section 2 (i) provides that the expression “postal article” includes a letter, postcard, newspaper, book, pattern or sample packet, parcel and every article or thing transmissible by post.

(b)  The Indian Telegraph Act, 1885 

Section 3 (1AA) defines ‘telegraph’ as any appliance, instrument, material or apparatus used or capable of use for transmission or reception of signs, signals, writing, images and sounds or intelligence of any nature by wire, visual or other electro-magnetic emissions, radio waves or Hertzian waves, galvanic, electric or magnetic means.

Section 3 (3) defines ‘message’ as any communication sent by telegraph, or given to telegraph officer to be sent by telegraph or to be delivered;

(c)  Information Technology Act, 2000

Section 2 (v) provides that “information” includes data, text, images, sound, voice, codes, computer programmes, software and databases or micro film or computer generated micro fiche.

Section 2 (t) defines “electronic record” as data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche.

Power to regulate Communications

This part shall throw some light on the evolution of legal regulation of the communications via post, telegraph and information technology. The legal enactment of 1898 is still relevant. A similarity may be found among all these legislations. The Governments (Central and States) have been empowered under various provisions to monitor the messages as follows –

Table 1: Interception under Indian Post Office Act, 1898

Power of Interception
Section Power Person Authorised
Section 25 Power to open or unfasten, or cause to be opened or unfastened, any newspaper or any book, pattern or sample packet in course of transmission by post to search or cause search of notified goods Any officer of the Post Office empowered in this behalf by the Central Government
Section 26 Power to intercept postal articles on the occurrence of any public emergency, or in the interest of the public safety or tranquility Central Government or a State Government, or any officer specially authorised in this behalf by the Central or the State Government
Table 2 : Punishment for breach of protection of postal articles
Section Offence Punishment
Section 53 Opening, detaining or delaying postal articles by an officer of the Post Office, contrary to his duty Imprisonment for a term which may extend to two

years, or with fine or both

Section 67 Detaining the mail or any postal article in course of transmission by post, or on any pretence opening a mailbag in course of transmission by post Fine which may extend to two hundred rupees

Power to stop transmission, intercept or detain messages under The Indian Telegraph Act, 1885

Section 5(2) and Proviso to Section 5(2) under The Indian Telegraph Act, 1885 provide that messages may be stopped , intercepted or detained in the following manner –

Grounds

  • On the occurrence of any public emergency, or
  • in the interest of the public safety.

Who is authorised to issue directions

The Central Government or a State Government or any officer specially authorised in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence.

Power to issue Directions

For reasons to be recorded in writing, by order, The Central Government or a State Government etc may direct.

What directions may be issued 

Any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph –

  • shall not be transmitted, or
  • shall be intercepted or detained, or
  • shall be disclosed to the Government making the order or an officer thereof mentioned in the order.

Rule 419A, The Telegraph Rules, 1951 further provides that the direction for interception of any message or class of messages under Section 5 (2) of the Indian Telegraph Act, 1885 shall not be issued except by an order made by the Secretary to the Government of India in the Ministry of Home Affairs in case of Government of India and by the Secretary to the State Government in charge of the Home Department in the case of a State Government.

Table 3 : Punishments for unauthorised access under The Indian Telegraph Act, 1885

Provision Offence Punishment Prescribed
Imprisonment Fine
Section 24 Unlawfully attempting to learn the contents of  messages Imprisonment for a term which may extend to one year
Section 26 Making away with or altering, or unlawfully intercepting or disclosing messages, or divulging purport of signals Imprisonment for a term which may extend to three years, Or with fine, or with both
Section 30 Retaining a message delivered by mistake Imprisonment for a term which may extend to two years, Or with fine, or with both

In an era ruled by ICTs, the risks have increased. This calls for more role of the Government to ensure that electronic communications are monitored. The Information Technology Act,2000 along with its Allied Rules enumerate detailed procedure regarding interception, decryption and monitoring of information as follows –

Table 4: Power of Interception or Monitoring or Decryption of Information under Information Technology Act,2000 and Allied Rules

Relevant Provision Person authorized to direct Circumstances where interception may be done
Section 69 Directions for interception or monitoring or decryption of any information through any computer resource may be issued by Central Government or a State Government or any of its officer specially authorized by the Central Government or the State Government Necessary or expedient so to do in the interest of the sovereignty or integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence
Information Technology (Procedure and Safeguard for Interception, Monitoring

and Decryption of Information) Rules, 2009-Rule 3

With the prior approval of the Head or second senior most officer of the security and law enforcement agency (hereinafter referred to as the said security agency) at the Central level and the officer authorised in this behalf, not below the rank of the Inspector General of Police or an officer of equivalent rank, at the State or Union territory level In case of emergency-

(i) in remote areas, where obtaining of prior directions for interception or monitoring or decryption of information is not feasible, or

(ii) for operational reasons where obtaining of prior directions for interception or monitoring or decryption of information generated, transmitted, received or stored in any computer resource is not feasible,

 

 

Information Technology (Procedure and Safeguard for Interception, Monitoring and Decryption of Information) Rules, 2009-Rule 24 Employee of an intermediary or person in-charge of computer resource or a person duly authorized by the intermediary, may be undertaken in course of his duty relating to the services provided by that intermediary Reasonably necessary for the discharge his duties as per the prevailing industry practices, in connection with the following matters, namely-

(i)   installation of computer resource or any equipment to be used with computer resource, or

(ii)  operation or maintenance of computer resource, or

(iii) installation of any communication link or software either at the end of the intermediary or subscriber or installation of user account on the computer resource of intermediary and testing of the same for its functionality,

(iv) accessing stored information from computer resource relating to the installation, connection or maintenance of equipment, computer resource or a communication link or code, or

(v) accessing stored information from computer resource for the purpose of implementing information security practices in the computer resource, determining any security breaches, computer contaminant or computer virus, undertaking forensic of the concerned computer resource as a part of investigation, or

(vi)      accessing or analyzing information from a computer resource for the purpose of tracing a computer resource or any person who has contravened, or is suspected of having contravened or being likely to contravene, any provision of the Act that is likely to have an adverse impact on the services provided by the intermediary.

Section 69, Rules 3 and 24 of Information Technology (Procedure and Safeguard for Interception, Monitoring and Decryption of Information) Rules, 2009 empower Interception or Monitoring or Decryption of Information.

Table 5: Power of Monitoring and Collecting Data under Information Technology Act,2000 and Allied Rules

Relevant Provision Person authorised Circumstances
Section 69 B Any agency of the Government To monitor and collect traffic data or information generated, transmitted, received or stored in any computer resource- For enhancing Cyber Security and  For identification, analysis and prevention of any intrusion or spread of computer contaminant in the country
 Information Technology (Procedure and Safeguard for Monitoring and Collecting Traffic Data or Information) Rules, 2009- Rules 3,4 Any agency of the Government For monitoring for any or all of the following purpose related to cyber security, namely:-

(a) Forecasting of imminent cyber incidents,

(b) Monitoring network application with traffic data or information on computer resources,

(c) Identification and determining of viruses or computer contaminant,

(d) Tracking cyber security breaches or cyber security incidents,

(e) Tracking computer resources breaching cyber security or spreading virus or computer contaminants,

(f) Identifying or tracking of any person who has breached, or is suspected of having breached or being likely to breach cyber security,

(g) Undertaking forensic of the concerned computer resources as a part of investigation or internal audit of information security practices in the computer resources.

(h) Accessing a stored information for enforcement of any provisions of the laws relating to cyber-security for the time being in force,

(i) Any other matter relating to cyber-security

If we closely observe the above provisions, it may be concluded that the procedure provided in for interception of messages etc. under Information Technology (Procedure and Safeguard for Interception, Monitoring and Decryption of Information) Rules, 2009 is inspired from Rule 419A, The Telegraph Rules, 1951.

Conclusion

The provisions discussed above are comprehensive enough and have two-fold objectives – firstly prescribe the circumstances in relation to monitoring of communication and secondly stipulate punishments in case of unauthorised access to such communication.

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Bhumika Sharma

She is currently a Research Scholar, (PhD) at Himachal Pradesh University, Shimla. She finds peace in writing and researching on a variety of social issues. She believes in the power of education and awareness to deal with various problems.

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