Today, the Ministry of Communications (Department of Telecommunications) published the draft Telecommunications (Procedures and Safeguards for Lawful Interception of Messages) Rules, 2024 (Draft Rules) under the Telecommunications Act, 2023.
Objections or suggestions, if any, may be addressed to the Joint Secretary (Telecom), Department of Telecommunications, Ministry of Communications, Government of India, Sanchar Bhawan, 20, Ashoka Road, New Delhi - 110001 within 30 days.
The said draft Rules proposes to replace Rules 419 and 419A of The Indian Telegraph Rules, 1951 and the Indian Telegraph Act, 1885. However, will not override the terms and conditions of the existing orders relating to interception of messages.
As per Rule 3, one or more 'authorised agencies' (means law enforcement or security agency authority by the Central Government) may be specified to 'intercept' or 'receive' any message or class of messages to one or more pursuant to an 'interception order' for the reasons specified in Section 20 of the 2023 Act.
While Rule 3(1) uses the term 'Central Government' which may authorise interception, Rule 3(2) specifies the use of the term 'competent authority' (Union Home Ministry for the Central Government or Secretary of the State Government in-charge of the Home Department for State Government).
Who can authorise interception?
Further, authorisation may be made to other authorities in two circumstances:
1. Unavoidable circumstances: In unavoidable circumstances, the 'competent authority' may be an officer, not below the rank of the Joint Secretary to the Central Government may issue an interception order.
2. Emergent cases in remote areas or for operation reasons: Where it is not 'feasible' for 'competent authority' or the officer, not below the rank of the Joint Secretary to the Central Government to issue orders, the order may be issued by Head or the second senior-most officer not below the rank of Inspector General of the Police of an authorised agency.
It should be noted that the Draft Rules do not specify what 'unavoidable circumstances' are. Nor does it specify what 'emergent cases' or 'operational reasons' mean.
Further, what circumstances could qualify as 'non-feasible' for the purpose of Head or the second senior-most officer not below the rank of Inspector General of the Police issuing an interception order is not specified.
In cases where interception orders are issued by Head or the second senior-most officer not below the rank of Inspector General of the Police, they shall:
1. Send a copy of interception order within 3 working days from date of issuance to the competent authority, which shall confirm the order within 7 days of issuance if considered 'appropriate';
2. If the competent authority does not confirm interception within 7 days, such interception shall forthwith cease, and any message interception shall not be used as evidence. Copies of such messages shall be destroyed within 2 working days and the confirmation of the same shall be submitted in 'writing' to the competent authority.
Particular attention should be given to 'Rule 3(3)(b)(i) which says that if the competent authority has not confirmed interception within 7 days, 'such interception shall forthwith cease'. This is indicative of a situation where interception has already commenced, and a copy of the interception order has then been submitted to the competent authority.
Review committee
Further, where interception orders are passed by the officer, not below the rank of the Joint Secretary to the Central Governmen, or Head or the second senior-most officer not below the rank of Inspector General of the Police, the same shall be submitted to review committee at the Central of State level within 7 days from the issuance or confirmation of the order.
In Rule 3(6), a possible safeguard has been added that no interception orders could be issued by the authorities unless the authority has considered and determined that it is not possible to acquire necessary information by other reasonable means.
Composition of review committee for Centre:
1. Cabinet Secretary,
2. Secretary to the Central Government, Legal Affairs
3. Sectrary to the Central Government, DoT
Who could be intercepted?
Any class of person who has sent or received a message on a particular subject.
Ingredients of interception order
The interception order shall specify the authorised agency that will undertake interception and, reasons for interception, and the interception order shall remain in force for 60 days, which may be renewed for a further period. Rule 8 says 'provided no such order shall remain in force beyond the duration of one hundred and eighty calendar days'.
It is not clear whether the total period for which the interception order shall remain in force is 180 days or 60+180 days.
Records of interception orders
The authorised agency will have to maintain secure records of interception orders, including particulars of persons whose message or class of message has been interception.