Law enforcement is allowed to snoop on information without prior permission only for a window of three days, the period where the most misuse of power was reported
Security and law enforcement agencies, stationed in remote areas, can intercept and monitor emails and messages without prior approval from the Union Home Secretary for up to three days, according to a report by The Indian Express which has cited the Standard Operating Procedure (SOP) for interception, monitoring and decryption.
This three-day period is where most alleged misuse of power was reported, according to officials quoted by the paper.
The Centre had, on December 20, issued an order that allows ten central agencies to decrypt, monitor and intercept "any information generated, transmitted, received or stored in any computer".
The SOP allows this three-day relaxation for "operational reasons" and only under "emergent cases" under the Indian Telegraph Rules, 1951.
"…In remote areas and for operational reasons, where obtaining of prior directions for interception of messages is not feasible, interception shall be carried out with prior approval of the head or the 2nd senior most officer of the security or law enforcement agency at the Central level and an officer not below the rank of IG at the State level," the SOP, accessed by the paper, states.
The "head of the agency" is made responsible for informing the "competent authority" about such an interception within three working days, according to the guidelines. The competent authority – the Union Home Secretary at the Centre, and the Secretary of the Home Department at the state level – is also responsible to confirm the interception within seven working days.
In cases where the confirmation is not received from the competent authority within the stipulated period, the interception "shall cease forthwith." The intercepted messages and records should also be destroyed "within 48 hours, unless those are required for the purpose of investigation, enquiry or judicial proceedings before a competent court".
According to the newspaper, these guidelines were framed following the amendments in IT Act Section 69 in 2008, and Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009.
The Home Ministry in 2013, while responding to an RTI request, had stated that it receives over 9,000 requests every month for mobile interceptions from various agencies. According to officials cited by the newspaper, such requests have now increased substantially, particularly for email interceptions.
The SOP, formulated by the then United Progressive Alliance (UPA) government, had also laid down a process for the destruction of intercepted messages. "The intercepted material…shall be destroyed every six months after written approvals from the head of security and law enforcement agencies or the designated officer."The Centre's December 20 order had caused a furore within the Opposition camp, with several senior leaders, including Congress President Rahul Gandhi, CPM general secretary Sitaram Yechury, Congress senior leader Ahmed Patel and All India Majlis-E-Ittehadul Muslimeen Party (AIMIM) President Asaduddin Owaisi targeting the Modi government over the order.