Who is Reading My Mail?

First published in the Business Standard

"Are you the boss of this company?," demanded the voice on the phone on a recent morning soon after I  had arrived at work. I acknowledged that I was the head of the company which ran the email service and asked him who would he be. . He identified himself as an Inspector in a police station in one of our state capitals and complained that he had given a list of email accounts to be "tracked", that is all incoming and outgoing messages be forwarded to the police, but our staff were insisting that he produce the required letter from the state's Home Secretary authorizing him to make such a request.

"This is a national security matter," he said. "I can't wait for the Home Secretary's letter, please do the needful right away."

Running one of the more popular email services in India puts you in that hazy zone between a private sector business and a public utility. Millions of ordinary Indian citizens are abandoning the traditional inland letter and post card and turning to email. They value the instantaneous delivery, the ease of accessing the account at home or office or one of one hundred thousand cybercafés in India and the national and international reach of email.

Unfortunately, so are conspirators of various hues: religious fundamentalist groups, communist insurgents, bank defrauders and petty criminals, and even straying spouses.

Jealous husbands wanting to check their wives' email boxes are the easiest to deal with: a  form letter spelling out  the process ( 'Please file a police complaint and get the police to make the request to us to open your wife's email box') normally ends the request. Employers wanting an employee's mail boxes opened after receiving a mail threatening exposure are also dealt with easily this way. We normally never hear from them again.

Dealing with police requests, particularly when they invoke national security is another matter. One part of you, as a law abiding citizen makes you want to comply with the request immediately. Another part of you, worrying about the civil rights of citizens makes you insist that the police produce the necessary approvals.

We were quite content to play this routine out ' the police inspector sending us a list of names and email IDs to track, us politely returning it to them with a request for the Home Secretary's authorization which would come a few weeks later with some names dropped from the original list

Till,one day, in the list of names the government wanted watched was the name of a nationally known social activist and writer.

Unable to resolve this moral dilemma we went to a retired eminent judge less for legal advice and more for moral guidance.

We sat in silence in his chamber as he carefully studied our account of the matter. The early morning light streaming in from the window behind him put him in silhouette and lent a sepulchral quality to the setting. How many such moral dilemmas he must have faced in his long and illustrious career on the nation's highest bench, I wondered. Surely he would show us a way.

"Government will cancel your license if you don't comply with these police requests," he said finally.

I was astounded. Here I was hoping and waiting for a morally and hopefully legally defensible resolution to our dilemma and what we were getting was 'practical' advice.

 "Our business does not depend on any government licenses," I finally managed to blurt out.

Seeing the disappointed look on our faces, he leafed through his papers again for some time.

"You see, the law that governs this kind of case, the Indian Telegraph Act,1885, was enacted  with the shadow of the 1857  "mutiny" still over the Raj government and is really an instrument to control such events rather than to govern the evolution of an industry. There is nothing you can do but comply if the request comes with the proper authorization."

As we left his chambers, the issues started to become clearer in my mind. For the hundred years from 1885 the  year that the British Raj  introduced the telegraph system in India it was seen primarily as an instrument for keeping colonial control. And I guess from Independence till the mid 1990's  the post-colonial government  continued this perspective and added to this the function of spying on their political opponents. All that a politician or a bureaucrat had to do was call up the Posts and Telegraphs department and tapping would commence unhindered with no one to raise legal or civil rights issues.

Things have become complicated for the government since then. The new technologies of email, SMS text messages and mobile phones today carry most communication traffic in India and practically all of it is outside direct government control because all these industries are almost completely in the private sector .

 A  generation like ours, unlike our parents' and grandparents' generation  no longer  assumes that the Police's interest or the Home Ministry's interests  are  automatically the national interest. We want to make sure that even the Police and the Home Ministry observes the law in tapping email and phones.

Unfortunately, there is no law that covers the new technologies and balances civil rights with genuine national security needs. Nor is there a clear process that tells the new economy industries that we belong to how to resolve a conflict between the two.

How did this specific matter end? We refused to 'track' this social activist's account and insisted on the Home Secretary's authorization for this list of email ID's. After a few weeks the authorization arrived but the social activist's name had been deleted from it.

And we continue in our unlikely, uncomfortable and legally hazardous  role as protectors of civil rights.

END