This article is written by Wardah Beg, student, Faculty of Law, Aligarh Muslim University.
Through this write-up, I have attempted to clarify what are call detail records, how can they be extracted from network service providers and how can they help you in your case. This article has been written with the view to help an aggrieved party, who could make their case stronger by submitting Call Detail Records to the court, if only such details could be accessed.
Call data records may include information like-
-how many calls a person has made
-to which number
-time and duration of calls
-which tower the person received network from while making the particular call.
The tower is identified by its unique tower number. The location is under a sphere of 500 m, and is not always precise. Though with the introduction of GPS, it is now more possible than ever for law enforcement agencies, in collaboration with network service providers to pin the exact latitude and longitude from where the calls were made, or even to locate the current location of a moving subscriber.
CDRs are different from phone tapping in that they contain information about the results of interaction, rather than the content of the interaction, for example, time, date and duration instead of a recording of what the person talked about on a phone call. Phone tapping is done by both governmental and non-governmental (private) agencies by using equipment. This is mostly done for security purposes, where suspects’ phones are tapped, their exact location tracked and their activities monitored. Private agencies often do it illegally with imported equipment. This, of course, is in violation of the Right to Privacy. On the other hand, Call Detail Records are available with the telecom companies that one is subscribed to. For example, as a user of Vodafone, a person’s CDR will be available with Vodafone only.
Why are CDR details required
CDR details can serve a lot of diverse purposes. They may be required for investigation by law enforcement agencies in solving a particular case, for producing as evidence in the court, for personal use, such as to keep a track of necessary information so as to save it for prospective complaints, tracing missing persons, retrieving lost or stolen mobile phones etc. Over the years, legal extraction of CDR details has helped solve many cases.
According to the Business Standard, the Crime Investigation Division (CID) Branch of Himachal Pradesh Police solved 203 cases in a year through mobile forensic assistance. This involves data like CDR (Call Detail Records), IMEIs (International Mobile Equipment Identity), tower location, CAF (Customer Application Forms), etc. The technical cell of the said branch of CID reports that it receives around a 100 requests a day from investigating agents and return the required information within 12 hours, as they immediately forward the request to telecom companies. This gives us an estimate of how long it takes, through appropriate agencies to retrieve call detail records, which is not more than 12 hours on an urgent basis.
How long is CDR stored with telecom Companies
Call Data is stored by telecom companies for a period of 6 months, in accordance with the government guidelines. We will talk more about these guidelines below. Due to high storage costs for the humongous amount of data that could be accumulated (almost amounting to several Petabytes per year, telecom companies choose to store only a limited amount of data, which is six months, or a year and archive the rest of it to tapes. These archives cannot be easily retrieved except in situations where there is governmental pressure, for example, in high profile cases or cases in which there is an immediate threat to national security.
The law relating to data retention is found in ISP and UASL Licenses. The former will be discussed in part 2 of this write-up.
Unified Access Services License (UASL)
There are, currently, 22 service areas in India, classified into 4 metros: A, B, C, D. Delhi, Mumbai, Kolkata, and Chennai are the four metros. The four wireless networks in India are:
- Airtel India
- Reliance (Jio)
- Vodafone + Idea (merged)
- BSNL + MTNL
The first three are privately owned, while the fourth one is State owned. These are all licensed operators and are required to pay some License fee based on their revenue share. As per the License Agreement, these cellular operators can provide a range of mobile services as long as they meet the relevant ITU (International Telecommunication Standards). Services range from voice messages, non-voice messages, data services, etc.
According to Clause 41.20 (xv) of the License Agreement, “Complete audit trail of the remote access activities pertaining to the network operated in India should be maintained for a period of six months and provided on request to the licensor or any other agency authorized by the licensor”.
What that technical jargon essentially means is that telecom companies are required to maintain our CDR for a period of six months.
According to Clause 41.10 of this License Agreement, the aforementioned service providers are required to make necessary arrangement for monitoring the telecommunication traffic and reveal to the State or Central Government all the data relating to it. The requirement specified in the clause is of seamless monitoring of at least 210 simultaneous calls for seven security agencies. Along with that, the following data is also required to be maintained:
- i) Mobile numbers/PSTN numbers of both the parties (the caller and the receiver)
- ii) Time, date and duration of interception
iii) Location (alongwith Cell ID) of the target subscribers
- iv) Telephone numbers in case call-forwarding is active on the number
- v) Data records of failed call attempts
vi)CDR of roaming subscriber
The companies are also required to provide, as is mentioned in Clause 41.20 (x), the exact geographical location (BTS location) of the user of the network, at any given point of time.
This information might be of use to an aggrieved party, because sometimes a service provider may refuse to supply CDR of a certain period citing it too old or irretrievable. Many people have reported their service providers to be reluctant in sharing this data citing the same reasons. In such cases, the service provider can be questioned and the license agreement can be referred to.
What Authorities can extract CDR
Initially, most law enforcement agencies could extract CDR. Some of these were:
- ACP (Additional Commissioner of Police)
- DCP (Deputy Commissioner of Police)
- CID (Crime Investigation Department)
- CBI (Central Bureau of Investigation)
- NIA (National Investigation Agency)
- ATS (Anti-terrorism Squad)
- SEBI (Securities and Exchange Board of India)
- ITD (Income Tax Department), etc.
But due to cases, especially the recent one in which BJP leader Arun Jaitley’s phone was tapped, the government has reissued guidelines regarding extraction of CDR. According to the new guidelines, no officer with rank less than that of a Police Superintendent can obtain CDR from telecom companies.
The amended guidelines essentially are:
- Firstly, as mentioned above, CDR details cannot be accessed by any officer with rank less than that of an SP.
- The concerned officer is required to make a directory of the obtained records and submit it to the District Magistrate every month.
- The DM is then required to send the details to the concerned Chief Secretary so that a state-wide record can effectively be maintained.
Accordingly, every Additional Commissioner of Police (ACP) or Deputy Commissioner of Police (DCP) of the district, the Crime Branch, Economic Wing, Special Cell, IG Airport ACP and Special Cell, Crime Branch have been authorised to obtain CDRs.
How long does the process of extracting CDR take?
Although there is no rule as to how fast the companies are supposed to give the data, as mentioned above, if the matter is urgent, that is, relating to a serious issue like a crime or a terrorist activity, and the information is demanded by a relevant authority, the information is given by telecom companies in not more than a few hours. Otherwise, it can several weeks too.
How can an individual obtain CDR
Unless the matter is in court and CDR needs to be admitted to prove one’s case, an individual cannot obtain CDR. This needs to be specified, because a lot of people seek CDR details to spy on their spouses, children, etc. or for other personal purposes. Where CDR details are required urgently for producing as evidence, a person can approach any officer above the rank of a Police Superintendent. A step-by-step guideline is given toward the end of this write-up.
Evidentiary Value of CDR
CDR is admissible as secondary evidence in court. With developments in technology, the courts these days are more receptive of different electronic and digital data as evidence. Earlier, it was a necessary requirement for CDR to be accompanied with a certificate as prescribed under Section 65 B (4) of the Indian Evidence Act, 1872. Recently, while interpreting Section 65 B of the Act, the Supreme Court has decided that it is not mandatory to submit such a certificate in the interest of justice. Therefore, giving a second chance to people who might not be able to procure a certificate. Moreover, in case such a certificate is absolutely required by the court, it can be submitted subsequently after the filing of the charge sheet.
- If the call or messaging details were in your phone and have accidentally gotten deleted, you can try extracting them yourselves. There are three possible ways to do that. You can either call customer care and find out how much details can be sent to you. Or, you can visit the website and login with your mobile number and click on ‘usage’ option to find a list of all the recent calls that you made, and for what duration. In the case of Vodafone, it shows me my call log of nearly the past 15 days. Thirdly, you can visit the nearest outlet of your network provider and submit a written application with a valid ID proof. I have not verified with my service provider, but it has worked for some people.
- In case the record you want to find out is older than that, and it is important and urgent for your case to extract these, you can file an application in the court, requesting the court to ask the concerned Police Station to further order the Network Service Provider to provide the details.
You can use this format of CDR preservation application for your client:
IN THE COURT OF [NAME OF JUDGE], [PLACE]
IN THE MATTER OF
[Name of Complainant] …COMPLAINANT
VERSUS[Name of Respondent] …RESPONDENT
APPLICATION U/S 91 CR.P.C. ON BEHALF OF RESPONDENT NO. 1 FOR SEEKING THE DIRECTION TO [Name and address of the Telecom Company] TO PRESENT AND PROVIDE THE CALL DETAILS BOTH INCOMING AND OUTGOING [And any other information, as required] OF THE COMPLAINANT FOR THE PERIOD [Mention period here] IN RESPECT OF MOBILE NUMBER [Mention mobile number here]
MOST RESPECTFULLY SHOWETH,
- That the Complainant’s case [Name of the Case] against the Respondent is based on absolutely false allegations and the present case is pending before this Hon’ble Court and the same is fixed for [Mention the upcoming date of hearing].
- That the Respondent used to receive calls from [mention number] during the period [Mention period]
- That the Respondent has strong apprehension and reason to believe that the Complainant is trying to ruin his and his family’s life and peace.
- That the Respondent has strong apprehension and reason to believe that the Complainant has filed a false case against him in this Hon’ble Court.
- That the preservation of data of the aforesaid mobile number [Mention Mobile number] is essential and desirable in deciding the matter in issue between the parties effectively, and for a just, fair and equitable decision, and the preservation of this data will prove beyond reasonable doubt that the Complainant has inflicted harm on the Respondent by making calls and ruining the matrimonial life of the Respondent and the preservation of this data will also disclose the actual name, address and other crucial details of the user of the aforementioned mobile number [Mention mobile number].
- That the preservation of the Call Detail Records will give the details of the incoming and outgoing calls, the frequency of calls, the exact location of the person making incessant phone calls on the mobile number of the Respondent.
- That according to TRAI Guidelines and UASP License, the telecom companies are required to preserve the data of the past six months of the subscriber, and the period of calls [mention period] received by the Respondent lie in that period.
- That the Call Detail Records are a material piece of evidence and will help the Respondent bring the conduct of the Respondent before this Hon’ble Court.
- That if the present application is rejected, it will cause grave injustice to the Respondent, though the data is readily available and is in the custody of the telecom company, and the principle of natural justice also demands that the telecom company provide the data that is asked for, for producing in this Hon’ble court.
- That there is no alternative and efficacious remedy to this except for moving the present application.
- That this Hon’ble court has the jurisdiction to try, entertain and adjudicate upon the present matter.
It is, therefore, most respectfully prays that this Hon’ble court may kindly be pleased to:
- Direct the telecom service provider [Name and address of the telecom] To preserve the call details, both incoming and outgoing details of the complainant for the period [mention period] of the mobile bearing no. [mention number] and to place the same on judicial record.
- Direct the SP, P.S. [Write the name of the P.S. in whose jurisdiction the case comes] to take the Call Detail Record of the aforementioned mobile number [Mention mobile number] for the period [Mention period].
- Or pass any other order which the Hon’ble court deems fit in the interest of justice, equity, and good conscience.
[Name of the city] Respondent
[Date] Through ADVOCATE
In case of any additional information, clarifications or corrections, drop me a mail on [email protected]