WhatsApp spyware row: Opposition parties plan to approach President

Amid a furore over breach of instant messaging service WhatsApp using Israeli firm NSO Group’s Pegasus spyware, Opposition political parties are planning to approach President Ram Nath Kovind and seek his intervention in getting the Supreme Court’s opinion in the matter.

A note is being prepared by the Opposition, calling upon the President "to make a Presidential Reference to the Supreme Court of India under Article 143 of the Constitution of India. The Constitution grants you this authority to approach the Supreme Court on a question of law or fact which, in the opinion of your high office, is of public importance. Surely the protection of the fundamental right meets this criterion”.

The letter could be submitted within the next couple of days, sources said. 

A Presidential Reference is a case in which a "matter is referred to the Supreme Court, which deliberates upon it and sends back its considered opinion to the President," according to Governance Now. 

A Presidential Reference was filed in the 2G spectrum case judgment by the then government in 2012. 

"The recent revelations of the national and international media, with regard to the use of Pegasus spyware for surveillance and snooping, without any legal sanction by the agencies on our citizens without their knowledge, has shocked the country. This has raised serious questions on the integrity of our State institutions to protect the fundamental right to privacy of Indian citizens," the proposed letter says.

On Sunday, the Indian National Congress alleged that its general secretary Priyanka Gandhi Vadra was among the people targeted by the malicious Pegasus spyware. Some sources in the ruling Bharatiya Janata Party were quoted as saying that the Congress had a "record of making exaggerated claims".

Facebook-owned WhatsApp had said on October 29 that it was filing a federal complaint in the US against Israeli technology firm NSO Group. The NSO Group's spyware Pegasus exploited a loophole in WhatsApp's video calling feature that could let the buyer of software access a person's phone or device data. 

NSO has maintained that it sells only to governments. The Indian government, however, has so far not categorically accepted or denied purchase of the NSO software by either the Centre, states or other government agencies.

The Opposition memorandum further asks why the government has not admitted to purchasing the spyware, even though Facebook and WhatsApp have said they informed the government in May about the phones of Indian citizens being breached. 

The Ministry of Electronics and Information Technology had asked WhatsApp to submit a response by Monday, but, according to reports, WhatsApp filed its response early and said 121 Indians were affected in the breach that affected 1,400 people globally.

The breach was first reported in May, when it was also reported to Indian authorities. But the issue gathered steam in India after WhatsApp’s complaint and activists and journalists coming forward to say they received communication from Toronto-based Citizen Lab, which helped WhatsApp’s investigation of the breach. 

Questions likely to be raised by opposition in the letter:

• Which government departments bought and used Pegasus and why?
• Why did the govt not take action after being informed of WhatsApp breach in May?
• What is the govt planning to do about the issue?
• What action will be taken against the govt officials found to have bought the spyware?