Arshad Shaikh finds how the ghost of Pegasus continues to haunt the Government of India after the publication of an investigative piece in the New York Times. A Supreme Court panel is currently seized of the matter and the outcome of its findings may well determine the credibility of our democracy and civil liberties.

Pegasus is a ‘zero-click’ spyware developed and marketed by the Israeli company NSO Group. The company was founded by three Israelis Niv Karmi, Shalev Hulio, Omri Lavie, and takes its name from their first initials N, S and O. The spyware is capable of capturing data from both Android and Apple mobile phones, including text-chat reading, call tracking, collecting passwords, location tracking, microphone and camera control. It can do all this without the user requiring clicking on an attachment or link. This Israeli technological innovation is thus a double-edged sword and can be deployed by authoritarian regimes to spy on political opponents and human rights activists.

Last year in July, a long list of names of people who were allegedly targeted using Pegasus was revealed as part of a collaborative effort by 17 media organisations spread around the globe. As the list contained names of heads of states, leaders of the opposition, billionaires and hundreds of prominent social activists, it created a political storm. As there were many names from India, the Opposition accused the Government of using Pegasus and wanted a debate and an inquiry. The Supreme Court of India constituted a panel in October 2021 to probe the alleged use of Pegasus against politicians, journalists and activists.

The Pegasus affair is in the limelight once again after the publication of a story – ‘The Battle for the World’s Most Powerful Cyberweapon’ (Romen Bergman and Mark Mazetti, dated January 28, 2022) in the New York Times. The investigation by the apex court-appointed panel continues. At the heart of the debate lies the question about the right to privacy and personal liberty. Is it an absolute right? Can it be sacrificed at the altar of security and defence? More specifically, was the law broken and if so who should be punished and by how much?

THE NYT ARTICLE

The thrust of the NYT article on Pegasus was to show “Israel reaped diplomatic gains around the world from NSO’s Pegasus spyware – a tool America itself purchased but is now trying to ban”. Citing the case of India, the article lists it as one more example of how NSO and Pegasus acted as a catalyst to influence countries to alter their policy vis-à-vis Israel.

Talking about India and Israel, the article states – “Their countries had agreed on the sale of a package of sophisticated weapons and intelligence gear worth roughly $2 billion – with Pegasus and a missile system as the centrepieces. Months later, Netanyahu made a rare state visit to India. And in June 2019, India voted in support of Israel at the U.N.’s Economic and Social Council to deny observer status to a Palestinian human rights organisation, a first for the nation”.

However, former Ambassador to the UNO, Syed Akbaruddin, in an interview with the Hindu, denied that the purchase of Pegasus had anything to do with the vote in support of Israel and that the decision was taken by him locally.

According to Akbaruddin, “No one talked to me about it before or after. The NYT seems to have wrongly made an insinuation”.

Another observation about the NYT piece is that while it freely alleges that the UAE deployed Pegasus against “domestic enemies” and cites “Ahmed Mansoor, an outspoken critic of the government” as one such enemy, the writers of the NYT story remain silent when it comes to naming who were the alleged targets of the Indian government. In fact, in an interview to the Wire, Bergman, when asked about the level at which the contract with India might have been negotiated or the specific entities who may have purchased the spyware, is completely evasive saying he cannot jeopardise his sources. So clearly, the NYT has different criteria when it comes to disclosing the names of who purchased Pegasus and for whom. In a press conference, INC spokesperson, Randeep Surjewala charged: “The buck stops at the Prime Minister’s door. The BJP duped the Parliament and misled the Supreme Court. They used public money to spy and snoop upon their own people. This is an act of treason.”

When news broke in July 2021, about the alleged snooping of prominent citizens of India through the Pegasus spyware, the issue dominated Parliament for nearly 10 days continuously. The Opposition demanded a clarification from the government and an independent inquiry.

THE SC PANEL AND THE GOVT. POSITION

In response to many petitions regarding Pegasus, the apex court appointed a 3-member panel in October last year. The panel is headed by retired SC judge Justice R V Raveendran, supported by a 3-member technical committee.

A UNI India report says, “The committee will enquire, investigate and determine whether the Pegasus suite of spyware was used on phones or other devices of the citizens of India to access stored data, eavesdrop on conversations, intercept information and for any other purposes not explicitly stated therein.”

In the terms of reference, the panel would find if Pegasus was used against the citizens by the respondent, UOI or any State government or any central or state agency and if so under which rule, law, guideline and lawful procedure.

According to a report in The Indian Express (January 31, 2022), at least two cyber researchers engaged by some of the petitioners deposed before the SC panel that they found concrete evidence of the use of Pegasus on the devices of the petitioners. This year, on January 2, the SC panel had issued an advertisement that requested people to contact them if they feel that their mobile devices had been infected with the spyware in question. However, only two persons have come forward to submit their phones suspecting they were infected with Pegasus, forcing the technical committee to extend its date to February 8, 2022.

The position of the Indian government on Pegasus has been indifferent and ambiguous. While the Ministry of Defence has denied ‘any transaction with NSO group technologies’, the MHA and MEA are silent about the NYT claim. India’s Solicitor General Tushar Mehta told the court, “The minister made it very clear that this is just a sensational matter published by a web portal just a day before the Parliament session was to begin. Nonetheless, this is a highly technical issue that requires a high degree of expertise. We will appoint neutral, eminent people of the field. They will go into it and submit a report. It’s not that simple as whether Pegasus was used or not… Any facts being placed would necessarily involve national security implications.”

An objective assessment on how things have played out thus far, it is very unlikely that the SC appointed committee will come up with a finding that is damaging to the government. It means that governments will continue to have the upper hand when it comes to questions about privacy, personal liberty and dignity. Democracy is in peril. Can the judiciary save it?

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