NSA is evolving a strategy to access data by monitoring the use of websites by Indians
In July this year The Hindu reported some of the contents of a very important note that was said to have been written by the National Security Advisor, Mr. Shiv Shankar Menon about the cyber security challenges that India faces currently.
If the news report is to be believed, the Government is eager to monitor the Internet but finds itself hindered by privacy laws in countries where most of the Internet servers are located. So the NSA is reported to have called for a new strategy to get access to data that governments in advanced countries collect by monitoring the use of websites by Indians, how they use such data and the legal basis for acquiring such data from the service providers. The NSA is said to have called for developing standard operating procedures (SoPs) for security cooperation in cyberspace with major IT powers around the globe.
As this matter directly relates to my own surfing and use of Internet websites as that of my fellow citizens, I sought a copy of the NSA's note under the Right to Information Act. The Central Public Information Officer (PIO) rejected my request by simply invoking Section 8(1)(a) Notwithstanding anything contained in this Act, there shall be no obligation to give any citizen, information, disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific or economic interests of the State, relation with foreign State or lead to incitement of an offence; without giving any detailed reasons. So I filed a first appeal with the First Appellate Authority demanding detailed reasons for rejection or supply of a copy of the said note. As expected, the FAA has supported his PIO and refused access to the note.
While the Government is worried about getting access to data about how we use the Internet under the pretext of being prepared to fight terrorism- a very legitimate concern no doubt, in the age of the RTI Act the Government does not believe in taking its own people into confidence to explain what it is doing on this issue. However the PMO is prepared to tolerate a leak of some of the contents of the note rather than provide access to it in a lawful manner.
Terrorism of whatever kind is best fought in cooperation with the people and not by adopting an antagonistic approach towards them. Security experts says so, even our Supreme Court thinks so [Nandini Sundar and Ors. vs State of Chhattisgarh and Ors. WP (C) 250 of 2007]. The FAA quotes from an earlier decision of the Central Information Commission to defend its decision of being the final arbiter on what will or will not prejudicially affect the security interests of the State. Ironically the CIC ordered disclosure of the information in that case refusing to buy the argument of the Government about keeping the documents secret. The FAA has used that order to deny access to the information I requested without bothering to check if Section 8(2) Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to information, if public interest in disclosure outweighs the harm to the protected interests. that requires disclosure of even sensitive information in public interest is also attracted. Being an interested party in the case the PMO would not be able to decide in an unbiased manner whether public interest outweighs the harm to the protected interests. That is the job of independent adjudicatory authorities like the CIC or the courts. Justice Bhagwati emphasised the requirement of doing a balancing act between competing public interests in SP Gupta vs President of India and Ors., (AIR 1982 SC149).
I believe there is enormous public interest amongst Netizens in India as to what steps the Government is taking to monitor their online activities. So there is a very strong argument in favour of disclosure that competes with the objectives of keeping the note secret. Soon I will file a second appeal before the CIC and keep you posted.