An Analysis of Telephone Tapping as an Investigation

Introduction and scope

Telephone tapping or wiretapping is defined as “the activity of secretly fitting a special device to someone’s phone in order to listen to their phone conversations without being noticed”.[1] In India, only some special authorities like the Government can tap telephones and that too under certain specified conditions as integrity and security of the nation and maintenance of public order and safety.[2] Private individuals have no authority or power to tap phones or private conversations. Passive wiretapping is the authorised and legal wiretapping done by the authorities whereas active wiretapping is illegal which is done by controlling the signal and attracts an imprisonment of 3 years.[3]

Telephone tapping is a violation of the right to privacy and right to freedom of speech and expression the two of which are fundamental rights as guaranteed under the Constitution of India[4]. The Telegraph Act, 1885[5] governs and controls the telephone tapping in India but it seemed not to be effective and enough against the infringement of the rights of people when wireless communications came to the front. The PUCL case then gave guidelines with respect to the protection of right to privacy with respect to the tapping of telephones in India. It laid down “detailed safeguards designed to check arbitrariness in the issuance of telephone tapping orders”.[6]

Scope

The scope is restricted to the Indian scenario regarding the telephone tapping used as an investigation technique. The time-frame for consideration revolves around the time when the judgment of the case was given to the present day, trying to analyse the use and significance of telephone tapping.

Telephone tapping and its uses

Telephone tapping is interchangeable with and additionally implies wiretapping. It initially began in USA in 1890s after the development of phone recorder.[7] Roy Olmstead, a peddler, was sentenced based on proof collected by tapping a telephone situated in his house. He at that point expressed that, the specialists had disregarded his basic rights however the court maintained his conviction, expressing that tapping someone’s telephone is certainly not an actual attack on privacy.[8] Preceding the assault at Pearl Harbor and the resulting entrance of the USA in World War II, the US House of Representatives held hearings on the authenticity of tapping of phone for public safety. Important enactment and legal choices regarding the legitimacy along with lawfulness of wiretapping did occur a very long time before World War II as was seen in Charles Katz v. United States[9], wherein the Supreme Court of USA expressed that wiretapping requires a warrant.[10] All these developments began in the USA but have spread across the world with all the major countries of the world providing safeguards against wiretapping but using the same for public safety under some checks and balances.

With the advancement of technology and the use of the same by criminals to execute the evil plans, it has become necessary for Governments and authorities to track these activities. And for the same purposes, an effective way is to tap the telephone or other communication devices. Kuldip Singh, J. quoted regarding the authority’s use of telephone tapping:

1. … With the growth of highly sophisticated communication technology, the right to hold telephone conversation, in the privacy of one’s home or office without interference, is increasingly susceptible to abuse. It is no doubt correct that every Government, howsoever democratic, exercises some degree of sub rosa operation as a part of its intelligence outfit but at the same time citizen’s right to privacy has to be protected from being abused by the authorities of the day.[11]

In the cases, wherein there is no direct contact made, telephone tapping acts as an evidence provider to prove a certain crime. For instance, if a drug dealer communicates or makes the deliveries through phone and not by going in the streets, the police if intercepts the calls and finds proof, it will act as an important evidence for these kinds of crimes since no such proof could have been found physically. Crimes like terrorism, trafficking are unsafe and the investigations of the same involve high risk for the persons involved. By using wiretapping, investigation can be done from a distance without making direct contact, thus reducing the risks to the lives of the investigators or police officers. Although Y.P. Singh suggests that “Tapping phones especially for tax evasion and corruption needs to be done only in rarest of rare cases.”[12] Surveillance can be done in an implicit way without making the criminal conscious of being kept under watch. Today, every telephonic service supplier has a place that is a group of servers called mediators so as to tap telephones. The two sorts of intercepting services that are accessible in today’s time are Integrated Services Digital Network (ISDN) and the leased line.[13] In ISDN, an intervention set up captures the call and later communicates it by means of a PRI line to the workplace of a government organisation. Additionally, the Law Enforcement Department can tune in to the telephone on their PRI line and save the call for record.

Depending on the interception laws and policies of the country, government authorities can actively intercept the telephonic communications. This helps in expanding the surveillance net and preventing any unlawful activity. Based on the same reasons and uses, the Indian Home Ministry sought changes to the Telegraph Act so as to widen their scope of surveillance.[14]

Statutes and safeguards regarding telephone tapping in India

The communication devices like telephones and telegraphs have been mentioned in Entry 31 of the Union List[15]. Both, the Central and the State Governments reserve the privilege to intercept telephones under the provisions of the Telegraph Act, 1885[16]. Besides this, under Section 25 of the Act it is provided that action should be taken in case of illegal phone tapping and extracting information.[17] Punishment for such acts is provided under the Act for up to 3 years.[18] At sometimes the need exists wherein the inspecting authority wishes to record the telephone discussions being held by the individual that is under doubt. The specialists should look for consent from the Home Ministry prior to proceeding along with such a demonstration. In the request explicit details and motives must be put forward. Also, the requirement for phone tapping should be presented. At that point the Ministry considers the request and awards consent after assessing the basis and urgency of the request. Every agency provides an approval slip prior to setting a telephone under investigation.[19] With regard to States, the State Home Secretary is the delegated authority to provide sanctions. The phones of lawmakers can not be tapped formally. It must be clearly provided on the slip that the reviewed individual is not a politician.[20]

Other than the Telegraph Act, the other statute that relates to telephone tapping is the Information Technology Rules, 2009[21]. It defines the term interception:

Interception means the acquisition of the contents of any information through the use of means, including an interception device to misuse such information and includes—

monitoring of information by means of a monitoring device;
viewing the contents of any direct or indirect information; and
diversion of any direct or indirect information from its intended destination to any other destination.

If the information retrieved or recorded from a call stays with either the sender or receiver then this will not be considered as an act of interception since interception should involve the dissemination of such information to some other person.

By the 1990’s a great many frauds came up in the country and a number of these were related to what people perceived to be illegal tapping of the telephones. The opposing parties did assert that their telephones had been wiretapped by Government based on the request of the ruling party. Subsequently, it brought about PUCL[22] requesting the Supreme Court to explain the legislation in regard to the tapping activities in India. For the situation, the applicant’s essential dispute stated that adequate technical protections to contain the discretionary control exercised under the provisions given ought to be included in Section 5(2). In this way, despite the fact that Section 7(2)(b) of the Act engages the Government to come up with guidelines accommodating “the precautions to be taken for preventing the improper interception or disclosure of messages”[23] till that time the government did not provide any standards or rules. Furthermore, the NGO likewise affirmed that the amendment introduced to Section 5(2) of the Act was not appropriate because it allowed telephone tapping not only for public safety and integrity of India yet in addition the inciting of offences too was allowed to be tracked by means of telephone tapping.[24]

The guidelines in PUCL case[25] were:

The conditions under which telephone tapping can be done under Section 5(2) were specified—

(i) sovereignty and integrity of India;

(ii) the security of the State;

(iii) friendly relations with foreign States;

(iv) public order; or

(v) for preventing incitement to the commission of an offence.”

2) The Union Home Secretary or State Home Secretary are the only ones to issue a request for tapping.

3) A copy of such an authorised tapping will be forwarded to the Review Committee.

4) The validity of the command sanctioning the telephone tapping will be 2 months.

5) Further, the Government is additionally needed to show that the data looked for is not available via some alternative methods.

6) Additionally, the Court commanded an advancement of a special committee which can survey the legitimacy and legal validity of every tapping activity.

7) Though the choice to make an evaluation framework has been seriously criticised. Legal fraternity excused it to be empowering the individuals that approve tapping activity to survey the personal requests with an assembly of partners acting arbitrarily and secretively so as to abuse the privacy and related rights.26

Although the petitioners contended that so as to protect the right to privacy of citizens, judicial scrutiny should be present and exercised while such authorisation, it was denied by the Court giving the reason that no statute provides for the same and hence, it cannot be followed. As per the procedural protections defined by the Supreme Court inPUCL case27 Government at the Centre initiated a modification to the Telegraph Rules, 1951 by introducing a new provision.[26] These guidelines had a far-reaching impact and now the Information Technology Act, 2000[27] gives extensive power to intercept devices in the field of digital communication without the 2 conditions as provided under the Telegraph Act thus making it easier to intercept and tap data.

The need for regulation and the rights infringed by telephone tapping

Surveillance in any form helps the State in controlling and preventing the crimes which are to cause public chaos. It helps in protecting and maintaining the sovereignty and safety of a nation. On the same lines, India uses means of communication and surveillance on them as a method to ensure public order is maintained. Interception and wiretapping is the most common way of intruding the privacy of an individual which is sanctioned by the State. PUCL case[28] made sure that such intrusion is only done by authorised agencies and that too following the established procedure of law. The guidelines hence provided made sure to specify the procedure to be followed and the authorities which can permit wiretapping among other details. Interception as such becomes problematic because different statutes govern different means of communication. Adding to it, the procedure for authorisation is not safe and creates room for abuse of power without authorisation. The need for regulation and safeguards also arises from the fact that the Government does not provide with accurate information when asked about the number of requests for authorisation for telephone tapping being made by different agencies. The Government denies to provide such information when the RTIs are filed. The RTIs filed were with the intention of just asking for the count of the interceptions authorised or requested about but the Government did not heed to them and refused to provide any such information citing the reason to be Section 8 of the RTI Act[29]. In such a situation where correct information is not dispensed the guidelines issued are not bound to be followed properly. When there is proper flow of information in the public domain then it becomes clear as to what the rules and regulations should be and how they are supposed to be implemented. In CPIO, Intelligence Bureau v. Sanjiv Chaturvedi[30], intelligence agencies have been brought under the purview of RTI in cases wherein it is claimed that human rights have been violated so that proper safeguards can be taken against any type of arbitrary action.

The Supreme Court has held in PUCL case[31] that wiretapping constitutes as a grave invasion to one’s privacy. To establish the base of the existence of right to privacy and infringement of the same by authorities, the Court mentioned Kharak Singh v. State of U.P.[32] stating that Article 21[33] encompassed the “right of an individual to be free from restrictions or encroachments on his person”.[34] This case however dealt with the physical invasion of privacy of a person but in PUCL[35] the scope was expanded to include telephonic conversations. It was further stated that “the right to hold a telephone conversation in the privacy of one’s home or office without interference can certainly be claimed as ‘right to privacy’ ”.[36] It has been contended that the act of telephone tapping violates the fundamental rights under Articles 19[37] and 21. The right to privacy and the right to freedom of speech and expression hold utmost importance in a person’s life and the wiretapping of the telephones infringes them both. Although, these infringements are not considered when the act is permitted due to the process recognised by law. But the power that will be exercised when the right to privacy is violated should have a strong reason for the same. Also, in R.M. Malkani v. State of Maharashtra[38], it was observed that “Article 21 contemplates procedure established by law with regard to deprivation of life or personal liberty. The telephonic conversation of an innocent citizen will be protected by courts against wrongful or high-handed interference by tapping the conversation.”

Conclusion

The threat to privacy exists and has increased in this age of technology and advancement. Agencies other than the State authorised ones have access to data which breaches one’s privacy. Such a sensitive situation requires proper safeguards to be taken and a balance being achieved between the rights of the citizens and the interests of the State. These interests should be of paramount importance like security of the country and preventing the loss of life of people at large if it comes to the infringement of rights of citizens. A strong reason needs to exist for an agency in case the data or information has to be taken through means of wiretapping or interception.

Wiretapping is much uncoordinated. At one particular time, different agencies monitor the same number hence only increasing the workload than being efficient and quick in their work. This difficulty arises due to the lack of a central database which can provide information as to at a particular time how many phones are being tapped and by which agency. Phone tapping has become a highly dependable work when it comes to security agencies and all the safeguards and rules should be followed to ensure everyone’s safety and non-infringement of rights.

As Justice Rajinder Sachar, former Chief Justice of Delhi High Court, rightly quotes “Civil liberties are far too important to be left to the executive or the Home Secretary. There is every danger of wrong permissions being given out, resulting in indiscriminate tapping.”[39]

It is also argued that a setup like USA should be followed wherein a Judge allows sanctions for phone tapping after considering the merits of the case. By and large, the Supreme Court has made a fair decision and has at least laid the basis for a framework. Any law that tends to be arbitrary can be implemented in a proper manner to overcome the arbitrariness and serve the purpose for which it has been made. However, given the way that Indian laws experience the ill-effects of the issue of non-implementation, the task to justify the law that infringes rights increases. Wiretapping remains an important element to trace the crimes but there needs to be taken certain measures and procedures to be followed properly to ensure it does not violate anyone’s privileges and rights.

*3rd year student, BALLB, Symbiosis Law School, Hyderabad. Author can be reached at puneetdhanoa13@gmail.com.

[1]Cambridge Advanced Learner’s Dictionary & Thesaurus, 4th Edn. (2013), p. 976.

[2]Telegraph Act, 1885, S. 5(2).

[3]Telegraph Act, 1885, S. 25.

[4]Constitution of India.

[5]Telegraph Act, 1885.

[6]People’s Union for Civil Liberties v. Union of India, (1997) 1 SCC 301.

[7]Frank A. Rubino, The Debate over Wiretapping in Criminal Investigations, <https://www.frankrubino.com/legal-articles/the-debate-over-wiretapping-in-criminal-investigations/>.

[8]Federal Grand Jury in Roy Olmstead Bootlegging Case, Seattle, 1926, Museum of History and Industry, <https://digitalcollections.lib.washington.edu/digital/collection/imlsmohai/id/1101>.

[9]1967 SCC OnLine US SC 248 : 19 L Ed 2d 576 : 389 US 347 (1967).

[10]Charles Katz v. United States, 1967 SCC OnLine US SC 248 : 19 L Ed 2d 576 : 389 US 347 (1967).

[11]People’s Union for Civil Liberties v. Union of India, (1997) 1 SCC 301, 304..