India's Supreme Court starts probe into use of Pegasus spyware

Government offered to investigate itself – Court politely declined that kind suggestion

India's Supreme Court has taken the unusual step of commissioning a Technical Committee to investigate whether the national government used the NSO Group's "Pegasus" spyware on its citizens.

The NSO Group is an Israeli vendor of software that has spyware functions, but the company insists it only deals with governments when they can demonstrate the tools are needed to combat crimes like terrorism or child exploitation. In July 2021, Amnesty International and French journalism advocacy organisation Forbidden Stories revealed evidence that Pegasus had been used for many other purposes – including to monitor activists, journalists, world leaders, and plenty more targets that NSO claimed it would never permit to be surveilled with its wares.

Amnesty and Forbidden Stories shared some of their evidence with Indian news outlet The Wire, which reported evidence Pegasus had been used to target media and opposition politicians. Indian IT Minister Ashwini Vaishnaw denied illegal use of spyware and insisted that when it is used, due process is followed.

A momentous victory for the cause of privacy and human rights in India

Discomfort with India's use of Pegasus has bubbled along ever since, helped by several petitions that sought to determine the extend of government spyware usage, and whether or not it was constitutional.

Now those petitions have borne fruit. India's Supreme Court yesterday ordered [PDF] the creation of a committee to investigate the situation.

The decision was motivated by the Court's belief that use of spyware represents an abuse of the rights to privacy and free speech. The Court is concerned about the possibility that a foreign entity is involved when spyware is used. There's a broader public interest motivation as well – because even the potential use of spyware has a chilling effect.

During the case, the government proposed to conduct its own investigation. The Court rejected that idea on grounds that the government could not be trusted to investigate itself – for one thing because that's never a good idea, but also because government legal reps obfuscated when asked to supply information about the use of Pegasus.

The committee will have wide terms of reference. It has to investigate whether India used Pegasus, whether it did so lawfully, and who it was used to observe. It has also been given the job of making policy recommendations on matters including the suitability of India's surveillance laws, creating a mechanism for citizens to report suspected surveillance, and even on how the nation can best handle security vulnerabilities.

India's Software Freedom Law Centre welcomed the decision as "a momentous victory for the cause of privacy and human rights in India".

"The Order is a step in the right direction for ensuring that our democracy is not held a prisoner to the abuse of power by the Government," the Center added, before noting "much remains to be seen on how the case progresses after the Committee submits its report before the Hon’ble Supreme Court and how the final judgment shapes the actions and omissions of the government, in the future."

Which is a nice way of saying that there's no way of knowing what the committee will find, and what – if anything – the Supreme Court will order the government to do. Even then, of course, India’s government has the power to legislate as it chooses – including in ways that would stymie whatever the Court recommends. ®

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