Image source - https://bit.ly/3zBtmJI

This article is written by Shruti Yadav, currently pursuing an integrated BA-LL.B degree from Jagran Lakecity, Bhopal. This article summarises the recent hearing in the Supreme Court regarding the pegasus case.

Introduction

Exposures linked with Israeli cyber-intelligence firm NSO Group’s spyware Pegasus have lately created global headlines and sparked political disputes and public outrage. Pegasus is a hacking software or spyware developed, marketed, and commissioned to governments worldwide by the Israeli company NSO Group. Various sources reported that at least 300 people had been targeted in India, which included two serving ministers in Prime Minister Narendra Modi’s government, three opposition members, one constitutional authority, several journalists and business people.

Pegasus spyware started gaining attention after news outlets such as The Washington Post and The Guardian reported on purported spying.

Download Now

In forensic tests, on a small sample of phones connected with these numbers, 37 phones, 10 of which are Indian, showed clear indicators of Pegasus spyware targeting. As part of a collaborative investigation called the “Pegasus Project,” Paris-based media nonprofit Forbidden Stories and Amnesty International accessed the leaked database and shared it with news organisations. This instilled a sense of fear and indignation in the people of India. Therefore various petitions were filed against the government in the Supreme Court on the subject matter.

What is Pegasus and how does it work

The Israeli malware that was recently found to have been used to target hundreds of Indian phones has become less reliant on clicks. Pegasus has the ability to infect a device without the target’s knowledge or consent. Pegasus is marketed as “a world-leading cyber intelligence solution that enables law enforcement and intelligence agencies to remotely and covertly extract data” from “virtually any mobile device”, developed by Israeli intelligence agencies veterans. Until early 2018, NSO Group clients relied primarily on SMS and WhatsApp communications to persuade targets to click on a malicious link, resulting in mobile device infection. It is called Enhanced Social Engineering Message (ESEM), according to a Pegasus brochure. When the phone is led to a server through a malicious link packaged as ESEM, the operating system is checked, and the appropriate remote exploit is sent.

Amnesty International first reported the use of ‘network injections’ in its October 2019 report, which allowed attackers to install spyware “without needing any input from the target.” Pegasus has several methods for achieving zero-click instals. One over-the-air (OTA) approach is sending a covert push message that causes the target device to load the spyware. The victim is ignorant of the installation.

A Pegasus brochure brags “NSO uniqueness, which significantly differentiates the Pegasus solution” from any other spyware available in the market. An attacker usually only has to provide the Pegasus system with the target phone number for a network injection. According to a Pegasus brochure, “the rest is done automatically by the system,” and malware is installed in most cases.

However, network injections may not function in some circumstances. For example, the remote installation fails when the target device is not supported by the NSO system or its operating system is upgraded with new security protections. Once infected, a phone becomes a digital spy under the attacker’s complete control.

Pegasus connects to the attacker’s command and control (C&C) servers after installation to receive and execute commands, as well as give back the target’s sensitive information, including passwords, contact lists, calendar events, text messages, and live phone conversations (even those via end-to-end-encrypted messaging apps). The attacker has access to the phone’s camera and microphone and the GPS feature, which may be used to track a victim.

Pegasus only transmits scheduled updates to a C&C server to avoid consuming much bandwidth and alerting a target. The malware is made to elude forensic investigation and anti-virus software detection. When and if required, the attacker can disable and delete it.

Why is pegasus seen as a threat?

The Pegasus controversy concerns the claim that an Indian client of Israeli spyware used it to spy on opposition leaders, journalists, and others without their knowledge. Congressman Rahul Gandhi, electoral strategist Prashant Kishor, billionaire Anil Ambani, and others are on the purported hit list.

The administration has been cornered in Parliament on this subject by an angry opposition, which is seeking a comprehensive discussion in the presence of Prime Minister Modi and an inquiry into the accusations.

The administration has claimed that no unlawful monitoring was carried out and has thus far declined to launch an investigation; the Bengal government, on the other hand, has demanded a judicial investigation.

Hacking is against the law in India. The Indian government has not revealed if Pegasus was used to hack into devices so far. The administration has only given general assurances that measures are in place to prevent illegal spying. It has also stalled any attempts by opposition leaders in Parliament to investigate the allegations.

The surveillance allegations come amid an intensifying crackdown on freedom of speech and peaceful assembly by the Bharatiya Janata Party-led national government and its enforcement of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. These regulations are aimed at internet intermediaries such as social networking platforms, digital news services, and curated video streaming sites. While the government claims its goal is to prevent misuse of social media, such as the propagation of “fake news,” the bill allows for more government control over online material, threatens to impair encryption, and would severely limit online privacy and freedom of speech. Human rights advocates, nonviolent demonstrators, and religious minorities have been detained more frequently in politically motivated cases, notably under counterterrorism, sedition, and national security legislation. There is evidence that the phone numbers of several activists currently in jail on terrorism charges were on the leaked Pegasus list.

In some cases, their lawyers, relatives, and friends were also on the list. The right to privacy is established under international human rights law, and arbitrary or unlawful invasions of that right are prohibited. The Indian Supreme Court has also stated that privacy limitations are only legal if they are both necessary and proportional to achieve a legitimate goal. The excessive, unlawful, or arbitrary use of spyware for monitoring, like Pegasus, infringes on the right to privacy, inhibits freedom of expression and association, and puts people’s safety and lives in jeopardy. The Pegasus disclosures should act as a wake-up call for the urgent need to recognise and safeguard the right to privacy following the Supreme Court’s decision on the subject. The government should implement surveillance reforms that include independent judicial supervision, judicial remedies, and a data privacy framework that respects people’s rights.

Petitions against the government on pegasus

On August 5, a petition was filed by senior journalists N. Ram and Sashi Kumar for an independent probe headed by a former or sitting top court judge into the mass surveillance of over 142 potential “targets”, including journalists, lawyers, ministers, Opposition politicians, constitutional functionaries and civil society activists, using military-grade Israeli spyware Pegasus.

The Supreme Court also heard separate petitions filed by Rajya Sabha member John Brittas and Supreme Court advocate M.L. Sharma on the same issue, which has seen more petitions being filed, including one by the Editors Guild of India for an independent investigation into the Pegasus allegations and another by five journalists who were targets of surveillance.

In their petition, Mr Ram and Mr Kumar claim that widespread monitoring employing military-grade malware violates many fundamental rights and looks to be an attempt to infiltrate, undermine, and destabilise independent institutions that are vital to our democratic system. They have demanded full transparency from the government on whether the surveillance was authorised, as it appears to be an attempt to silence free expression and suppress dissent. According to the petition, the administration has yet to respond whether the illicit hack was carried out with its approval.

The journalists claim that eavesdropping has severely harmed their right to free expression and privacy. There is no legal foundation for it. The legal monitoring system established by Section 5(2) of the Telegraph Act appears to have been entirely disregarded, and people have become targets.

Everything that has transpired in the Supreme Court

On Bengal’s judicial probe

The Supreme Court urged the West Bengal government to wait and not go ahead with a separate judicial inquiry into the Pegasus snooping allegations when the Apex Court seized the issue.

After senior advocate Abhishek Manu Singhvi gave an oral assurance to convey the apex court’s message of “restraint” to the government, a bench of Chief Justice of India (CJI) N.V. Ramana and Justice Surya Kant did not pass a formal order staying the work of the government-appointed commission of inquiry.

Justice Madan B. Lokur, a former Supreme Court judge, and Justice Jyotirmay Bhattacharya, a retired Chief Justice of the Calcutta High Court, make up the investigation panel.

Senior attorney Harish Salve, representing the petitioner, an NGO named “Global Village Foundation,” argued that a parallel investigation could not occur while the highest court was considering the case. The government announcement that appointed the panel in July was challenged in the petition. It claimed that the commission lacked the authority to conduct such an investigation. Mr Salve claimed that the investigation committee had published a public notice and that the procedures were ongoing.

The Bench indicated that it might take up the Pegasus cases next week and issue a blanket order. It linked the petition with the Pegasus cases that were on the docket at the time.

Any ruling in the Pegasus case, according to Justice Kant, will most certainly have a pan-India impact.

On August 17, the Supreme Court issued a pre-admission notice to the Centre in response to petitions requesting an independent investigation into allegations that the government spied on journalists, activists, dissenters, legislators, Ministers, and other individuals using Israeli-based spyware.

Following the issuance of the notice, a Bench composed of CJI Ramana, Justices Kant and Aniruddha Bose stated that it would examine the following steps, including the formation of a committee to investigate the accusations, in due course. The notice was issued after the government, backed by Solicitor General Tushar Mehta, held hard in its two-page affidavit, denying “all and any” charges. Mr Mehta has previously stated that any information concerning government software purportedly used to combat terrorism would jeopardise national security.

Court’s question to the petitioners 

Even though former Union Minister Ravi Shankar Prasad repeated that the monitoring and spying claims were unfounded, the Supreme Court observed that the allegations of spying through Pegasus spyware were significant if the reports were accurate. The Supreme Court bench of Chief Justice of India (CJI) N V Ramana and Justice Surya Kant asked the lawyers for the nine petitioners seeking a probe into the alleged snooping to serve copies of their petitions to the Government of India. The CJI raised two issues: first, why the petitions were filed now when reports about the use of Pegasus spyware first surfaced in 2019. Second, considering that most of the persons reportedly snooped on are famous politicians and journalists, why were no FIRs filed by the people who were supposedly snooped on. 

According to senior lawyer Kapil Sibal, Pegasus could not be utilised unless the government or its agencies purchased it. The Centre must explain why no action has been taken or why no FIR has been filed in the case of suspected spying. It is a question of privacy and dignity, said Sibal, representing renowned journalists N Ram and Sashi Kumar. The administration should explain why it has “remained silent.”

According to senior attorney Arvind Datar, the terms of the present legislation do not allow for the filing of an FIR, who appeared for journalists Rupesh Kumar Singh and Ipsa Shataski, who were on the Pegasus target list. This case should be treated as a class-action lawsuit by the court. According to Sibal, the scope of the surveillance became apparent only after recent claims about why the petitions were submitted now. Individuals, he added, have no way of accessing material because Pegasus only offers its services to governments. The previous hearing had witnessed a barrage of questions from the Bench, including if there was any “verifiable material” other than foreign newspaper reports to support a judicial order for an inquiry into the Pegasus allegations.

The Court on parallel proceedings and debates

Petitioners in the Pegasus spying case should put their trust in the Supreme Court and not engage in “parallel processes and discussions” on social media platforms and other sources while their case is pending, said the Chief Justice of India N.V. Ramana.

The Chief Justice, who presided over a three-judge Bench, told them that if they had anything to say, they should write it down in affidavits and file them in court, where they would be discussed. “There needs to be some order. It is up to them if they want to post something on Twitter or Facebook. We want them to put their trust in the court now that they have arrived here [to the Supreme Court],” Chief Justice Ramana said.

He emphasised the importance of not misinterpreting questions from the bench during court proceedings. “We have questions for everyone. They may give you some discomfort at times. You may not like it, but that is how the court works. Counsel must be accountable. If they want something, they should go to court for it. “Chief Justice Ramana addressed the attorneys, including senior advocate Kapil Sibal, who has been leading the petitioner side, highlighting the former Union Ministers and parliamentarian’s numerous hats.

Government’s response 

Former Union Minister Ravi Shankar Prasad reaffirmed that the claims of monitoring and spying were unfounded.

The government’s Solicitor General, Tushar Mehta, requested extra time to review the numerous applications. He requested a brief break in the proceedings. In a two-page affidavit filed in the Supreme Court, the Centre stated that it “unequivocally denies all claims” made by petitioners that the government used military-grade malware to eavesdrop on journalists, lawmakers, activists, and court personnel.

“A cursory examination of the captioned petition and other related petitions reveals that they are based on conjectures and surmises, as well as other unfounded media reports or incomplete or uncorroborated data,” the affidavit stated.

“It is, however, contended that the Union of India will form a Committee of Experts in the area to dispel any erroneous narrative disseminated by certain vested interests and with an object of evaluating the concerns presented,” the two-page brief affidavit of government stated.

Conclusion

The allegations against the government of spying on civilians, journalists, and opposition members are sordid and grave. The notions of democracy are threatened if the allegations were to be true. The Supreme Court is robust in dealing with the matter. We must have faith in the judicial process to extract the truth and preserve the privacy and rights of the people of India. 

References

LawSikho has created a telegram group for exchanging legal knowledge, referrals and various opportunities. You can click on this link and join:

https://t.me/joinchat/J_0YrBa4IBSHdpuTfQO_sA

Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.

RELATED ARTICLESMORE FROM AUTHOR

LEAVE A REPLY

Please enter your comment!
Please enter your name here