Interception, Monitoring and Decryption

In one line

Section 69 lets the Government order the interception, monitoring or decryption of any information in any computer resource on six grounds, and every safeguard on that power sits not in the section but in rules made under it, reviewed by a committee of officials rather than by a judge.

The section

Section 69(1), as substituted by the Amendment Act of 2008:

Where the Central Government or a State Government or any of its officers specially authorised by the Central Government or the State Government, as the case may be, in this behalf may, if satisfied that it is necessary or expedient so to do, in the interest of the sovereignty or integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above or for investigation of any offence, it may subject to the provisions of sub-section (2), for reasons to be recorded in writing, by order, direct any agency of the appropriate Government to intercept, monitor or decrypt or cause to be intercepted or monitored or decrypted any information generated, transmitted, received or stored in any computer resource.

Take it apart in five moves.

Who. The Central Government, a State Government, or an officer specially authorised. Both governments, unlike section 69A, which is Central only.

On what satisfaction. That it is necessary or expedient. Not necessary. "Or expedient" is the phrase the critics fasten on, because expedience is a lower standard than necessity and appears to sit uneasily with the necessity limb of the Puttaswamy proportionality test. Chapter 1040.

On what grounds, and there are six. Sovereignty or integrity of India; defence of India; security of the State; friendly relations with foreign States; public order; preventing incitement to the commission of any cognizable offence relating to the above. And then a seventh, which is the one that changes everything:

"or for investigation of any offence".

That limb has no parallel in section 69A, in section 69B, or in section 5(2) of the Indian Telegraph Act, 1885. The Telegraph Act permits interception only on a public emergency or in the interest of public safety, and then on the enumerated grounds. Section 69 adds ordinary criminal investigation, of any offence, however trivial. That is the single widest word in the section and the answer to a question asking how section 69 compares with the Telegraph Act.

What may be done. Intercept, monitor or decrypt. Interception is capture in transit. Monitoring is observation over time. Decryption is conversion into intelligible form, defined in rule 2(1)(f).

To what. Any information generated, transmitted, received or stored in any computer resource. So section 69 reaches data at rest, not merely in flight, which the Telegraph Act does not.