By guest contributors: Shubhangi Verma* and Anushka Verma**

 

With new advancements in technology, we are on the cusp of a new age of revolution. New innovations keep on arriving in leaps and bounds, but these advancements carry with them some callous and fiendish predicaments.

BACKGROUND

In Greek mythology Pegasus refers to a white horse with wings, coming from heaven, which symbolizes peace and stability in life. In contrast to the real meaning enshrined in Greek mythology, Pegasus spyware, developed by Israeli cyber giant NSO Group Technologies is wreaking havoc internationally. Its most distressing role includes tracking human rights defenders, journalists, and government officials.

Pegasus spyware has the ability to take full control of individuals’ mobile phones including accessing messages, phone numbers, videos, and locations. It even allows hackers to read encrypted messages. Pegasus developed zero-click installations in which attackers could enable the spyware in a mobile phone without any interaction by the phone’s owner.

NSO earlier claimed that Pegasus is exclusively used by Government intelligence and law enforcement agencies in order to fight crime, terror, human and drug trafficking, money laundering operations, in rescuing kidnapped children, and as assistance in search and rescue operations in many client countries. When allegations were raised regarding surveillance software and controversy started raging, the company defended itself by stating, “Millions of people around the world are sleeping well at night, and safely walking in the streets, thanks to Pegasus and similar technologies which help intelligence agencies. NSO stated that all of their clients are law enforcement or intelligence agencies and they have revoked access to five clients since 2016 after they were alleged to have used this software to infringe upon human rights.

Forbidden Stories, a Paris-based nonprofit media organization came together with Amnesty International and a cybersecurity firm to conduct a probe into the NSO group, which claimed in its first Transparency and Responsibility Report of 2021, to have licensed the software to only sovereign nations and its agencies. They further collaborated with multiple media companies and successfully accessed a leaked list containing phone numbers of 50,000 people who have been identified as possible targets since 2016. They mostly include journalists, activists, and politicians.

GLOBAL WEAPON FOR SUPPRESSING HUMAN RIGHTS

An investigation was initiated by Citizen Lab and Look Out security in 2016; here one of the initial uses of Pegasus spyware was exposed. In this case, Ahmed Mansoor, who is an internationally recognized human rights activist and a recipient of the Martin Ennals Award, was spied upon by the United Arab Emirates (UAE) government using the spyware. According to the records released by Forbidden Stories and its partners, at least 180 journalists were selected in 20 countries by NSO government clients which vary from autocratic to democratic governments and span the entire world.

An award-winning investigative journalist in Hungary, Szabolcs Panyi, found his cell phone to be infected with spyware when he was working on two important articles and found many sources to be revealed during the time span of 9 months his phone was under the control of hackers. Several other journalists like Panyi became the subject of cyber-surveillance because the sources of information they acquire are state security interests. At least 40 journalists in India are being targeted by NSO clients’, undermining their freedom of press and privacy.

A photo of slain journalist Jamal Khashoggi is projected on a building by the Freedom First project

The most frightening evidence recently unearthed is that Saudi Arabian journalist Jamal Khashoggi was tracked using Pegasus spyware, before being murdered on the direction of Saudi Crown Prince Mohammed Bin Salman. His family members, including his wife and his son, and Rodney Dixon, a human rights lawyer who filed a legal suit against the murder of Khashoggi, were also probable targets. Moroccan journalist and government critic Omar Radi, who was sentenced to 6 years in prison on the uncertain charges of espionage and rape in an unfair trial, was also targeted by NSO software.

Journalists and human rights activists are not the only people affected by the surveillance under this spyware. The Princess of UAE Sheikha Latifa also appeared on the targeted list before fleeing to the U.S. from the UAE in 2018.

LEGALITY OF INTERNATIONAL LAWS AND STATUTES

In a suit initiated by WhatsApp against NSO, the former claimed that Pegasus had tried to invade their encryption technologies and tried to track nearly 1400 WhatsApp users. Amnesty International, Facebook, and some human rights activists filed an amicus brief in support of WhatsApp. NSO went on to use the Foreign Sovereign Immunity Act in its favor. The court rejected the plea and stated that having a sovereign state as its client gave no right to NSO to use the defence of Sovereign function. It also came to the conclusion that that NSO had in some way, tried to take control of the tracking. In a similar case, filed in Israel in 2020 by Amnesty International against NSO, it alleged that NSO was using surveillance mechanisms on one of its employees. The Tel Aviv court had dismissed the suit stating that all the necessary precautions were taken and rules were followed by NSO.

The European Court of Human Rights established mandatory obligations regarding surveillance in the landmark case of Big Brother Watch v. United Kingdom in 2018. The court stated that in an era where sophisticated surveillance technologies are emerging, governments have a duty to let their citizens know about circumstances and situations where surveillance can be adopted. The case continues to be a binding precedent due to its jurisdiction.

Article 12 of the Universal Declaration of Human Rights (UDHR) articulates an individual’s right to privacy. It states that “No one shall be subject to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.” The International Covenant on Civil and Political Rights (ICCPR) provides similar rights which have been instrumental in protecting privacy. Article 17 says that “No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.” Another significant article that gives protections against violation of privacy is Article 8 of the UDHR: “Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.”

The European Union 2009 Dual-Use Regulation is a reform on dual-use technology and covers surveillance under its ambit. It is aimed at protecting human rights amidst high reaching techniques such as surveillance and phone tapping. It promotes protection against privacy violations by European Union companies. There are other human rights instruments which contain similar provisions and are inclusive of the right to privacy.

UN High Commissioner for Human Rights Michelle Bachelet speaking at a press conference

The UNHR High Commissioner for Human Rights Michelle Bachelet stated that the revelations from the reports of Amnesty International were ‘alarming’ and served as confirmation of the worst fear about the potential misuse of surveillance to undermine human rights. French President Emanuel Macron has already ordered an investigation into the case and has said that he would sue the responsible countries for any violation of French nationals’ human rights. After the stark reaction from various media outlets and governments, Israel has set up a commission to look into the matter of spyware. The Indian Apex Court has also ordered a hearing after a petition was filed on behalf of some senior Indian journalists. Algeria’s government has blamed Morocco for targeting its citizens with the said spyware and has launched a probe.

Sadly, most governments remain silent on the issue and haven’t completely denied contacting NSO for the spyware.

THE WAY FORWARD

This is not the first time that we are witnessing the callous side of technology. Using technology as a weapon to silence dissent or opposition is in no way legal or justified. Moreover, there are urgent calls on states and organizations to adopt a global framework that promises independence, transparency, and unbiased inquires into cases where surveillance or tracking is reported. Proper checks and balances should be used to curb the illegal export of such techniques. In this digital era, where most of the social and economic activities have turned online, the need of the hour is to have sound data protection legislation and implementation of privacy rights.

 

* Shubhangi Verma, is a first year law student, and has a budding interest in Human Rights and Constitutional Law.

** Anushka Verma, is a first year student, pursuing law. She has keen interest in Criminal Law and Human Rights.

Photos

“Data Security” by Visual Content is licensed under CC BY 2.0

“Freedom First: Jamal Vigil Projection” by Freedom First Campaign is licensed under CC BY 2.0

“Press conference of the HC for Human Rights” by UN Geneva is licensed under CC BY-NC-ND 2.0

 

 

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