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MeitY amends IT Rules, 2009 widening scope of who gets to delete interception records

This amendment widens the scope of those allowed to delete records pertaining to the direction of interception from law enforcement bodies to other authorities as well.

The Ministry of Electronics and Information Technology (MeitY) amended rule 23 (sub-rule 1) under the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules 2009 replacing the word “security agency” under the rule with “competent authority and security agency”.  As such, rule 23 now reads—

“Every record, including electronic records pertaining to such directions for interception or monitoring or decryption of information and of intercepted or monitored or decrypted information shall be destroyed by the competent authority and security agency [emphasis ours] in every six months, except in a case where such information is required, or likely to be required for functional requirements”

This amendment widens the scope of those allowed to delete records pertaining to the direction of interception from law enforcement bodies to other authorities as well. The amendment was first reported by the Hindustan Times. As per the report, this amendment would allow the Union home secretary and the state/Union Territory home secretary to destroy records of directions for interception, monitoring or decryption. The power to delete such records was previously granted to 10 agencies including the Intelligence Bureau, Narcotics Control Bureau, Enforcement Directorate, and Central Board of Direct Taxes. Each case of interception was also required to be approved by the competent authority, which the Ministry of Home Affairs had identified as the Union Home Secretary.

What makes this amendment so interesting:

This amendment notably comes right around the corner of the general elections, which makes one wonder about the potential reasons why the power to delete interception records has been extended. In the recent past, members of opposition parties in India have raised concerns about potential hacking attempts made against them after receiving an alert from Apple that state-sponsored (government-backed) attackers might be targeting their iPhones. This alert is a feature that Apple introduced in the aftermath of the Pegasus surveillance issue in 2021, where governments spied on their citizens by infecting their phones. These hacking attempts are under investigation by India’s cybersecurity agency CERT-In (Indian Computer Emergency Response Team).

Incidentally, opposition leaders were also targeted by Pegasus spyware. The Indian government never confirmed nor clearly denied using that spyware. This investigation is also currently pending at the Supreme Court of India. The amendment makes no changes to the deletion of interception records pertaining to pending matters (like Pegasus spyware and Apple notifications). As per sub-section 2 of Rule 23—

“Save as otherwise required for the purpose of any ongoing investigation, criminal complain or legal proceedings, the intermediary or person in-charge of computer resources shall destroy records pertaining to directions for interception of information within a period of two months of discontinuance of the interception or monitoring or decryption of such information and in doing so they shall maintain extreme secrecy.”

This could mean that directions for interception necessary for ongoing investigations or legal proceedings would be maintained by the intermediary who has been instructed to carry out interception by the competent authority or security agency. Similarly, the competent authority or security agency might also maintain these records if ongoing investigations call under the scope of functional requirements as specified in sub-section 1 of the rule. Interestingly, IT Rules 2009 say nothing about deletion of the information collected during interception.

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