Hitesh Jain writes | Lesson from Pegasus: don’t jump in the mud in the middle

On July 18, 2021, a consortium of journalistic organizations from several countries, including an Indian portal, published a report alleging that spyware, Pegasus targets more than 50,000 phone numbers worldwide and over 300 mobile numbers in India. This report sparked outrage in political and legal circles in India. Several opposition leaders saw it as an opportunity to settle their political scores and were quick to launch all sorts of accusations against the Centre. However, at the very beginning, two aspects were surprisingly unusual in this report, which claimed to be the culmination of a long investigative work.

First, the most obvious course of action would be that when such serious allegations are raised, a detailed analysis is carried out to substantiate those allegations. In this case, although news organizations claimed that over 50,000 phone numbers were targeted by Pegasus spyware, forensic testing was only performed on 37 of those phones. The question of why forensic tests have apparently been performed on such a small number of phones remains unanswered. Furthermore, the organizations involved have not released any details on how these forensic tests were carried out. Instead, they simply expected people to believe that just because the phone numbers were listed in a database, every phone number was subject to the spyware. Second, even the timing of these reports has raised questions – they appeared a day before the monsoon session of parliament in 2021.

Despite these glaring inconsistencies, several writ petitions have been filed in the Supreme Court of India asking for an independent investigation into the case. During the legal proceedings, although the Indian Union’s hands were tied by national security constraints, it proposed the formation of an expert committee that would investigate the allegations raised regarding the use of the software. Pegasus spy. However, the Court rejected such a proposal on the grounds that justice must not only be done, but must also be seen to be done. Ultimately, considering multiple factors such as the impact on fundamental rights and the seriousness of the allegations made, the Court was forced to get to the bottom of the case. Thus, he appointed a committee of experts whose operation would be supervised by a retired judge of the Supreme Court.

Almost six months after the committee was appointed by the SC to investigate the allegations in the Pegasus case, it submitted its report to the court on August 2. After considering this report, a bench of three judges headed by the Chief Justice of India declared tNo Pegasus spyware was found in the 29 devices examined by the committee. And, although there was malware found in five of the submitted devices, the committee concluded that this malware could not be related to Pegasus either.

The functioning of the three-member committee of experts was immediately criticized because it issued a conclusion contrary to what the applicants had requested. However, to dispel such slanders and uphold the rule of law, it is necessary to recall the procedure adopted by the Court to appoint this committee in the first place. In its order dated October 27, 2021, the Court said that it did not rely on any government agency when constituting this committee. Instead, it shortlisted expert members based on independently gathered information because its goal was to select people who were not only free from ideological bias, but also independent and competent.

Therefore, what we observe is that initially the Court accepted the prayers requested by the petitioner and appointed an independent committee to investigate the Pegasus case. In addition, the Court has ensured that the committee operates free from government influence. In the end, it was this same committee made up of experts in the fields of cybersecurity, digital forensics, networks and hardware that concluded that of the 29 devices submitted, the Pegasus spyware was only found in any of them.

While this turn of events indicates that the Pegasus issue is all but closed, this whole episode raises two bigger concerns. First, there is a tendency to rush into questions when one has limited information and follow it up with unsubstantiated allegations and off-the-cuff remarks. Wouldn’t it be more appropriate to let the law take its course? Second, in these times when there is a constant need to score political points, attention is often diverted from the larger issue, which is the vulnerability of technology platforms. Wouldn’t it serve us better if we stayed focused on the main issue and continued to fight for an open, safe and responsible Internet instead of indulging in unnecessary political slander?

The writer is a lawyer and Vice Chairman, BJP Mumbai Pradesh

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