Mayank Chhaya-
Prime Minister Narendra Modi’s government would find it extremely difficult to honestly answer without the risk of self-incrimination likely questions from a three-member committee appointed by India’s Supreme Court to “inquire, investigate and determine” whether the powerful Israeli spyware Pegasus was deployed on Indian citizens’ mobile phones.
That is because NSO Group, the Israeli company which created and licenses the surveillance spyware, sells it strictly to governments and given its extraordinary intrusive capabilities its use is usually authorized only by the highest authorities in the land. Indian experts have argued that in this particular case it could only mean either Prime Minister Modi or his trusted second-in-command, Home Minister Amit Shah.
Just as the Supreme Court in its interim order called for a three-member committee to investigate the entire Pegasus affair, Israel’s new Ambassador to New Delhi Naor Gilon got drawn into the ongoing controversy. He told Indian journalists on Thursday, “NSO is a private Israeli company. Every export by NSO requires a government license. We grant export licenses only to governments. They cannot sell to non-government actors.”
There are no expectations that Israel will get involved in the Supreme Court investigation even as Gilon described it as “India’s internal matter.”
The Supreme Court’s terms of reference are broad prompting many leading legal experts in India to call the interim order historic and a potentially serious challenge to the untrammeled authority of Prime Minister Modi. There is hardly any likelihood that the Modi government generally or the prime minister or the home minister themselves individually would choose to cooperate with the inquiry in any substantive manner. However, if they do and choose to do so with candor, they potentially open themselves to self-incrimination because it is widely assumed that only they could have authorized its use. Even if the deployment were done by an intelligence agency as an operational matter, it ought to have been done with clear knowledge of the two if not express approval altogether.
That makes it extremely hard for either to be upfront about whether the surveillance spyware was purchased and used on citizens and if so, under whose authority. It is a potential legal trap that both of them are expected to assiduously avoid. Of course, given their oft-displayed predilections it is entirely conceivable that they would choose to totally disregard any questions from the Supreme Court-appointed committee.
The key reason why Modi and Shah may not perceive any serious political danger to their near total sway over India’s polity is because for the vast majority Indians, particularly hundreds of millions of their steadfast supporters, the Pegasus surveillance is at worst a trivial transgression into the country’s elite and at best a non-issue. They just do not see it as a serious threat to individual civil liberties and therefore to democracy itself, which it really is. Even if some of their supporters might recognize the seriousness of the danger, they rationalize it saying all of those who might have been surveilled deserved to be surveilled. They see it in purely partisan terms.
When the Pegasus story first broke in July this year NSO Group not only doubled down on rejecting the core assertions in media reports about egregious surveillance by at least eleven governments around the world – among them reportedly India though the government had strongly denied this – but even saying it would no longer entertain media inquiries about the controversy.
The company argued that the reporting is a “planned and well-orchestrated media campaign led by the nonprofit Forbidden Stories and pushed by special interest groups.” In a statement then a spokesperson was quoted as saying, “In light of the recent planned and well-orchestrated media campaign led by Forbidden Stories and pushed by special interest groups, and due to the complete disregard of the facts, NSO is announcing it will no longer be responding to media inquiries on this matter and it will not play along with the vicious and slanderous campaign.”
Essentially what the media was told is to make a distinction between the company licensing the spyware to a client, which is apparently always a government, and the way that client/government may choose to use/misuse/abuse it.
Many technologies are a double-edged sword. They cut both ways. In the case of Pegasus, it can do all of what the company says it can, namely “save lives, help governments around the world prevent terror attacks, break up pedophilia, sex, and drug-trafficking rings, locate missing and kidnapped children, locate survivors trapped under collapsed buildings, and protect airspace against disruptive penetration by dangerous drones.”
That is the ostensible purpose for which governments buy the license. However, and this is massive, however, the fundamental attraction of Pegasus is obviously its ability to surveil for reasons and in categories that do not fall under those listed above. Instead, they enter the political and personal realms. There is hardly any doubt that governments that have bought the license, including apparently India, would have deployed it outside the ambit of what NSO says they are supposed to.
In this context, the company statement then said, “NSO is a technology company. We do not operate the system, nor do we have access to the data of our customers, yet they are obligated to provide us with such information under investigations.”
That NSO customers are “obligated” to provide them information under investigations is the operative part. It is not clear whether it happens at all or happens erratically and with great reluctance. That is where the rub lies. It also says, “NSO will thoroughly investigate any credible proof of misuse of its technologies, as we always had, and will shut down the system where necessary.”
If people and institutions were targeted in India for specific political and personal motives, then it is a huge problem that goes to the very heart of individual civil liberties and hence democracy itself. It is highly debatable whether we will ever get the full measure or even any substantive measure of whether Pegasus has been deployed in India and if so on whose phones and why.
For instance, if Congress Party grandee and Member of Parliament Rahul Gandhi was targeted with this hacking tool, it begs an explanation why. Did he meet any of the threat criteria that NSO says Pegasus is supposed to counter? The question is valid for any of other names mentioned as Pegasus targets in India.
It is very important that we know that NSO has created guardrails that compel governments to be forthcoming about whether its spyware is being used for reasons that clearly violate individual civil liberties.
It is anybody’s guess whether there would be any acknowledgment by the Modi government – the government has hotly rejected any such insinuation – whether there was indeed such surveillance ordered and carried out officially. If that turns out to be the case, then even NSO would have to consider “thoroughly” investigating it for any misuse and “shut down the system where necessary.”
The Supreme Court appointed committee’s terms of reference are broad enough to at least in spirit angled towards pointing out that privacy and free speech are constitutionally guaranteed and must not be trifled within the guise of political witch-hunting. The committee is to be headed by a retired Supreme Court justice which would give it the weight and heft it needs in order to at least compel the Modi government to go through the motions of taking it seriously.
Anecdotally, the reaction among ordinary citizens to these pernicious intrusions into individual civil liberties has been rather muted. The outrage is limited to those who are seen as the elite in India. That is disturbing because Pegasus can be deployed just as easily on ordinary citizens’ phones for reasons which are downright personal and vindictive.
There ought to be greater outrage against the practice even if its use appeared to be against public figures whom ordinary Indians, particularly those who support the Bharatiya Janata Party government, detest along partisan lines and therefore would have no compunctions if their liberties and privacy were so flagrantly violated.
They should remember that at some point in the near or not-so-near future there will be a government of a different ideological hue and they too could easily use the same spyware against those who are choosing to be indifferent or even acquiescent.
As with any technology, there is next to no prospect that a piece of spyware like Pegasus will ever go away. If anything, its iterations might get even more intrusive. With that as the backdrop, there ought to be global standards for all governments which limit such unfettered surveillance only to countering serious crimes. Any governmental or other misuse/abuse should become a violation of fundamental human rights.
