BlackBerry must comply with Indian law. India needs a new debate on privacy.
Yes, terrorists can use anything to communicate with each other, plan attacks and help carry them out.
Hafiz Mohammed Saeed can write letters, in code, and send it by post to his sleeper agents in India. He probably does that. But not all means of communications are alike in their ability to help terrorists carry out attacks. A terrorist with a satellite phone with real-time voice and data connection is far more dangerous than a terrorist who carries letters in his pocket. So the argument that terrorists can use anything to communicate is not a valid counter to the argument that government agencies can prevent, investigate and prosecute terrorists better if they are capable of intercepting or blocking real-time communications.
For instance, there is a reasonable argument that the damage to life and property in Mumbai during the 26/11 attacks might have been lower if the terrorists had been denied access to real-time communications, from satellite phones, to cellular phones to broadcast television. There is also a reasonable argument that the ability to intercept the phone calls made by the terrorists plays an important role in prosecuting them in courts of law and in courts of public opinion. India’s law enforcement agencies have had the ability to tap your phone for ages, but apart from the odd political scandal, it is difficult to build a case that this has somehow led to the infringements of the rights of ordinary citizens.
The current debate over Blackberry’s messaging system must be placed in this context. The ongoing discussion between the Indian government and Research In Motion (RIM), the Canadian company that provides BlackBerry services, involves two inter-related issues.
First, whatever might be RIM’s values, business practices and corporate policies, its business in India is governed by Indian law. The contention that “no one else has a problem with our service” is no defence—India has security considerations that might be peculiar to it, and as long as the requirements are constitutionally legitimate, RIM must comply. It is disingenuous to conflate the legitimate authority of a constitutional democracy—imperfect as India’s is—with that of the demands made by totalitarian or authoritarian states. The two are morally and practically different. [See this editorial in the Globe and Mail].
RIM could insist—as it has just done—that it is not treated any differently from others in the field, but it cannot get away with the excuse that its corporate policy overrides the rule of law in India.
Second and the more important issue is for India to establish due processes to determine just who, under what circumstances and under what checks and balances gets to actually block or intercept communications. A national debate over digital privacy, powers of government and mechanisms for redressal is now urgent, as the Indian economy and society become ever more reliant on communications networks.
It is clear that citizens need greater, more credible safeguards. It is also clear that the government needs to be more capable of addressing threats that arise from advances in communications technology. What is not clear is whether the political establishment sees these as priorities worthy of wider public deliberation. The usual practice of passing legislation without adequate parliamentary debate is neither likely to reassure citizens of their rights nor offer new ideas to law-enforcement agencies.
This blog has consistently argued against blunt measures like banning telecommunication services, even and especially in insurgent & terrorist affected areas. Governments must learn how to operate in an information-rich, networked world. Therefore, to the extent that the Indian government’s threat to block BlackBerry services is a device to press RIM to better co-operate with the law-enforcement agencies, it is tolerable. Such a threat is credible only if it can hurt both the government itself and RIM. This appears to be the case.
However, it would be a serious mistake if the government were to make such a ban permanent. Not because India needs the BlackBerry, but because the underlying rationale is self-defeating.