Big brother DoT ignoring SC guidelines

the states (cellular services are available in all parts of the country except border states like Jammu and Kashmir and parts of the North-East). In all, there are 22 cellular circles serviced by 42 operators.

In a circular dated August 18, the DoT has given operators six months to install equipment with an identical capacity (180 lines) in every state. The six agencies which are set to get a windfall of of 30 lines from each operator in each city are the Intelligence Bureau (IB), the Research and Analysis Wing (RAW), the Central Bureau of Investigation (CBI), the Narcotics Control Bureau (NCB), the Economic Intelligence Bureau (EIB) and the city Police.

A V Gokak, Secretary DoT and Chairman of the Telecom Commission admits that once the system has reached its “full potential”, it might well be one of the largest in the world. But the need for such an elaborate monitoring machinery, he said, was that technological advancements such as introduction of cellular telephones also had disadvantages.

“We want to find a golden mean by not ignoring the security aspects of the cellular revolution as well as taking all the required precautions. We have given a clear warning to cellular operators that if they do not comply with the requirements, action can be taken which might also include termination of licences.”

But what the operators seemed to be concerned about at present was the “unauthorized” manner in which the sleuthing agencies have begun to ask for phone-taps. Officials in cellular companies contacted by The Indian Express in New Delhi and Mumbai admit that even before the on-line monitoring becomes operative, they were being “informally” asked to intercept calls of certain subscribers.

A few operators are known to have lodged protests with the 24-member, Delhi-based Cellular Operators Association of India (COAI). As one COAI official confessed, “There has hardly been any case where the agencies have left a written authorization. Orders for phone-tapping have been coming in verbally and are sometimes being given by junior officials.”

Cellular phone companies, it transpires, have not taken this lying down. And it is the December 18, 1996 judgment of the Supreme Court which describes phone-tapping as “technological eavesdropping” and a “serious invasion of privacy” which has come to their rescue.

Rajeev Dhavan, Supreme Court lawyer who had been asked to intervene in the case, says that the interception of cellular phones was also covered under the SC ruling and the relevant sections of the 1885 Telegraph Act. Says he, “what the Telegraph Act authorises is temporary possession of telephone lines in the event of a public emergency. Nowhere does the Telegraph Act contemplate an elaborate surveillance system which will operate like a huge spiders web throughout the country”.

In an effort to protect the privacy of their subscribers, the COAI has now taken legal advice on the sensitive subject. In July, the advice of Manjul Bajpai, the advocate hired by the COAI was circulated to all operators – as well as the DOT. A reading of the legal note shows it is a reiteration of the nine guidelines issued by the Supreme Court on the subject: that the monitoring of phones should be permitted only in specific cases; not beyond two months and most important, only with the written authorization of an officer above the rank of Joint Secretary.It ends with a warning, “allowing tapping of any telephone without such orders would not be proper, and, in fact, be construed as a party to contempt of court committed by an officer of the Government.”

The DoT has, on more than one occasion, threatened to terminate the licenses of the operators if they failed to get the monitoring equipment. One circular, dated March 4, states that “the target date has to be strictly adhered to and any failure in this regard will result in suitable measures including termination of licence”.

Minutes of meetings held on Feburary 24 between officials of Value Added Services (VAS), Telecommunication Engineering Centre (TEC) as well as the operators shows that besides the demand for a capacity of 180 lines for each cellular company, the Government also proposed to make the Short Message Service (SMS), facsimile and data services part of the monitoring network, as and when the services are introduced. Some operators have, incidentally, already introduced these services.

Officials in the TEC say that now that the monitoring equipment installed in the metros has been tested, the agencies have failed to keep up their part of the commitment. As end-users, the agencies are required to foot the bill for leasing the digital 2 Mbps (megabyte per second) from the Mahanagar Telephone Nagar Limited (MTNL), which will connect the receivers and recording equipment in their office to the switchboard in the cellular companies. The cost of the annual lease is estimated to be around Rs 15 lakh for a 50-kilometer radius, which is what each agency will have to spend in each city.

The August 18 circular issued to the operators by the VAS on the extension of surveillance services to the states indicates that it is they who will have to bear the cost of leasing the digital lines from one city to another in one circle. “The required monitoring facility up to a point of interconnection with the PSTN (public switched telephone network) will be provided at the cost of the licensee company,” the circular says.

COAI officials state that this was simply not acceptable to them, since the line leasing would need a further investment of crores of rupees.“At a later stage we will even be asking the Government to reimburse us for the cost of the surveillance switchboards,” a COAI representative asserted.

“The license we signed with the DOT said nothing about the operators spending crores for setting up such a mind-boggling monitoring network. If the Government wants it, they will have to pay for it.”