FinFisher: The New Face Of Global Electronic Spying, E-Surveillance And Eavesdropping

Human Right Protection in Cyberspace has become a tedious task in the present E-Surveillance oriented environment around the Globe. Issues like E-Surveillance in India, Cell Site Location Based E-Surveillance In India, Surveillance Of Internet Traffic In India,  Central Monitoring System (CMS) for Telephone Tapping in India, etc are well known.

It is of utmost importance that a Balance between Civil Liberties and National Security Requirements Must be Maintained. Affirming this requirement a District Court of United States has recently declared the FBI National Security Letters (NSLs) With Gag Orders to be Unconstitutional.

In the meantime, some Researchers have found a Malware named FinFisher that is notorious for violating Civil Liberty Stakeholders’ Privacy and Confidentiality. Interestingly, the Malware has spread around the Globe to many Civil Liberty Oppressing Countries.

Although the hand and involvement of Nations in the spreading of this Malware cannot be predicted and confirmed at this stage yet it can also not be ruled out. This is so because the Malware of the nature of Spyware is targeting dissidents living under oppressive regimes.

A Canadian research center has confirmed that it had identified 25 different Countries that host servers linked to FinFisher, a Trojan Hrse program which can dodge Anti-Virus protections to steal data, log keystrokes, eavesdrop on Skype calls, and turn microphones and web cams into live Surveillance devices.

Some have even claimed that the Company making the Spyware has sold the Malware to repressive regimes and this is a potential breach of UK export laws. Besides export norm violations, this episode can also raise a variety of Legal Issues as well, especially those pertaining to Cyber Laws Violations across the Globe, including India.

Unfortunately we have no Harmonised International Legal Frameworks in this regard. For instance an International Cyber Law Treaty Is Required on an urgent basis. Similarly, International Cyber Security Treaty Is Required on priority basis. The United Nations must protect Human Rights in Cyberspace so that Civil Liberties can be suitably protected. Otherwise Self Defense in Cyberspace to Protect Civil Liberties would be the only option left.

Civil Liberties And National Security Requirements Must Be Reconciled By India

Maintaining a balance between civil liberties and national security requirements is a difficult task. Countries across the world, including India, are trying to achieve this mammoth task. Similar is the case for reconciling the homeland security and civil liberties in India. Equally national security and fundamental rights must be reconciled in India.

However, the bigger question is how to reconcile civil liberties with national security requirements? There is no second opinion that civil liberties and national security must be reconciled in India as soon as possible. Similarly, India must reconcile national security concerns with due process requirements as prescribed by Indian constitution.

The truth is that nations across the world are ignoring civil liberties for the false claims of national security. This is a disturbing trend especially when the United Nations is silent on the protection of human rights in cyberspace. This applies to India as well that has draconian laws like information technology act 2000 to violate civil liberties in cyberspace.

Unfortunately, UN has not been able to formulate a universally acceptable legal framework of cyber law and human rights protection in cyberspace. The obvious result is that different jurisdictions have different cyber laws. The only thing common in these cyber laws is that virtually none of them is protecting human rights in cyberspace.

According to Praveen Dalal, managing partner of New Delhi based ICT and techno legal law firm Perry4Law and CEO of PTLB, there is need to have “Reconciliation” between National Security needs of India on the one hand and Protection of Fundamental Rights on the other. I have also sent a communication in this regard to Government of India in the past, informs Dalal.

It seems some segments of Indian government agree with this “reconciliation theory” suggested by techno legal experts of India. For instance, the Union Minister of Communications and Information Technology, Shri Kapil Sibal has reportedly said that adequate balance needs to be maintained between needs of “privacy of individual” and “genuine security concerns of state” while dealing with challenges of cyber security.

Another area that deserves the attention of Indian government in general and UN in particular pertains to Human Rights Protection in Cyberspace. According to techno legal experts like Praveen Dalal, presently UN and Human Rights in Cyberspace are two separate issues although they need to be one. Similarly, we have no International Cyber Law Treaty, International Cyber Security Treaty, International Cooperation in Techno Legal fields, etc, informs Dalal.

Interestingly, Kapil Sibal appealed to the global community to collaborate and evolve global protocols in security of information and network. Sibal assured that India stands committed to contribute and cooperate with international community on this issue. It seems at least Kapil Sibal is aware of the details of techno legal issues and that is good news for India. However, we must not be satisfied with mere declarations and we must actual achieve the reconciliatory task as soon as possible.

Source: P4LO Blog.