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Is There A Need For A Privacy Law In Pegasus Snooping Row?

Pegasus, a type of malicious software commonly referred to as spyware, was recently discovered to have been used to covertly monitor and spy on a number of public figures in India. Its purpose is to gain access to devices without the user's knowledge and gather and transfer personal data to whoever is using the software to spy on them. Pegasus was built by the Israeli company NSO Group, which was launched in 2010. Pegasus' first version, discovered by researchers in 2016, attacked phones by sending so-called "spear-phishing" text messages or emails that entice a target to click on a harmful link simply by reading it.

Nonetheless, since then, the capabilities of NSO attacks have grown. Pegasus infections can be carried out with so-called "zero-clicks," which do not require the owner's interaction. It sends a push message to the target that covertly injects the spyware via the over-the-air (OTA) mechanism. They usually take advantage of "zero-day" flaws or issues in an operating or function system that the phone's maker is unaware of and hence hasn't been able to remedy.

The Israeli espionage firm selling phone spyware to governments targeted human rights activists, journalists, and lawyers all over the world. Indian ministers, government officials, and opposition leaders are among those whose phones may have been hacked by spyware. In 2019, WhatsApp filed a lawsuit in the United States against Israel's NSO Group, alleging that the business engaged in cyber-attacks on the app by infecting mobile devices with malicious software.

All spyware-related actions are illegal under the Information Technology Act of 2000, regime Section 66 read with Section 43, because spyware activity entails unlawful, dishonest, or fraudulent access to a computer resource without the user's or owner's authorization. Sec 43 also makes gaining access to a computer system without the owner's authorization a criminal offence.

Because spyware is illegal in India, spyware interception without the authorization of the responsible authorities is likewise illegal. In the sake of India's sovereignty and integrity, security of the State, and avoiding instigation to an offence, Section 69 Information Technology Act 2000, coupled with Section 5 Indian Telegraph Act 1885, gives the Central government the right of interception.

In People's Union for Civil Liberties v. Union of India (1997), the Supreme Court established a protection against the abuse of interception. Spyware also commits acts that are classified as cybercrime under Section 66B of the Information Technology Act of 2000, which covers the theft of computer resources. Malware is also illegal under Sections 378 (theft) and 424 (computer fraud) (dishonest and fraudulent removal of property) and 425 (mischief) of the Indian Penal Code, 1860.

In Justice KS Puttaswamy v. Union of India, the Supreme Court interpreted article 21 to include the right to privacy as one of its elements. The provision of privacy rights places the government under a constitutional obligation to take immediate steps to protect the personal data and privacy of its citizens. Every action taken by the Executive must be evaluated in light of the 9-judge bench's proportionality doctrine.

The government is also being asked to make other clear and decisive efforts to prevent unlawful interception and surveillance of people. Given that Parliament has not authorised a law permitting the government to deploy spyware for interception, such usage is clearly illegal and unwarranted. Furthermore, under Article 19(1) (a), there is a flagrant attack on freedom of speech and expression, as well as an attempt to stifle dissenters and critics of the ruling authority.

N Ram has launched a Public Interest Litigation (PIL) requesting a court-supervised investigation into the Pegasus surveillance scandal. Furthermore, the Editors Guild of India (EGI) decried the surveillance of journalists, calling it an attack on press freedom, and called for an impartial investigation into the snooping allegations under the auspices of the Supreme Court of India. The PIL (Manohar Lal Sharma v. The Prime Minister (Narendra Damodar Das Modi), Writ Petition (Criminal) No(s) 314 of 2021, submitted by famous journalists, is being heard by the Supreme Court's CJI-led bench, which also includes Justice Vineet Saran and Justice Surya Kant.

The petitioners have been pushing for a legal framework that strikes the correct balance between the government's sovereign powers and the protection of users' digital rights and freedoms. The case has been rescheduled for August 16 after the Solicitor General requested more time to take instructions. It will be fascinating to see how the Pegasus debate is resolved in the future by various players.

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