Interception of Communications and Call Data Records

In one line

Two statutes now confer the power, a third supplies the safeguards, and a fourth is waiting to repeal the first and has not been brought into force.

The three things that are commonly confused

Interception, or content. Listening to or reading the communication itself.

Metadata, or call data records. Who called whom, from where, for how long, at what time. No content at all.

Traffic data. In the Information Technology Act 2000 the term is defined and it is metadata by another name.

Metadata is often more revealing than content, because it is structured, complete, retrospective and easy to aggregate. A month of call data records shows where a person sleeps, works, prays and who he is close to. Content requires an order that runs forward from the date it is made; metadata already exists and can be asked for about the past.

Power one: section 5(2) of the Indian Telegraph Act 1885

The provision. On the occurrence of any public emergency, or in the interest of the public safety, the Central Government, a State Government or any officer specially authorised in this behalf may, if satisfied that it is necessary or expedient to do so in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, or for preventing incitement to the commission of an offence, for reasons to be recorded in writing, by order direct that any message or class of messages shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government or the officer named. The proviso protects press messages of accredited correspondents unless their transmission has been prohibited.

Note the structure, because it is what wins cases. There are two stages. The first is a condition precedent: a public emergency or the interest of public safety. Only if that exists does the second stage arise, being the satisfaction as to one of the five listed interests.

What People's Union for Civil Liberties v. Union of India did with it

The condition precedent is real. Public emergency means the prevailing of a sudden condition or state of affairs affecting the people at large calling for immediate action. Public safety means the state or condition of freedom from danger or risk for the people at large. Neither is a secretive condition: either would be apparent to a reasonable person. So even where the Government is satisfied about sovereignty, security, friendly relations, public order or preventing incitement, it cannot intercept unless a public emergency has occurred or the interest of public safety requires it.

Privacy. The right to privacy is part of the right to life and personal liberty under article 21, and once the facts constitute a right to privacy article 21 is attracted and the right cannot be curtailed except according to procedure established by law. Telephone tapping also touches article 19(1)(a).