Pegasus, again

Spyware controversy keeps resurfacing as institutional weaknesses remain unresolved

After five years of litigation, WhatsApp is claiming victory as a US court has found that Israeli tech company NSO, maker of spyware Pegasus, violated both US laws and WhatsApp’s own terms of service. Pegasus has been used to surveil targets via WhatsApp. The spyware keeps returning as political controversy in India as well. Because the hundreds reported to have been targeted here have included journalists, opposition politicians and even govt ministers. It is not as if other insidious malware haven’t caused concern since 2019. But questions left unanswered in the Pegasus case continue to have urgency because they relate to the fundamental equation between privacy and security. Balancing this is imperative for our democracy. 

Asked about whether govt taps or uses Pegasus, home ministry told Lok Sabha in 2019 that both central and state govts “intercept, monitor or decrypt or cause to be intercepted or monitored or decrypted” information in accordance with the IT Act, 2000 and the Indian Telegraph Act, 1885. It also named ten agencies as authorised by the Centre for the purpose. Problem is, unlike other well-functioning democracies, India does not have either any independent oversight of these agencies or a national security law to separate necessary from arbitrary or abusive actions. 

The report of the Supreme Court-appointed committee in the Pegasus matter has not been made public. It did find malware on five handsets but could not conclude that this was Pegasus. SC did disclose that its committee said GOI did not extend any cooperation. Previously, the court had underlined that “national security cannot be the bugbear that the judiciary shies away from, by virtue of its mere mentioning.” The solicitor general’s argument that “no country would ever reveal which software they have used or not used” has to be understood in this context. That of course national security is a paramount imperative, but so is ensuring institutional safeguards against ultra vires attacks on individual privacy. 

This is all the more important since, as the Pegasus-themed mudslinging between Andhra Pradesh’s regional parties indicates, abuse of surveillance powers would be tempting to every dispensation. Recall too, the role of post-Watergate reforms in restoring faith in the US political system. Today, the technological threat is manifold greater. Past modes of phone tapping seem like children’s toys against new capacities for wholesale erosion of an individual’s privacy. Surely greater dangers call for greater resolve.

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