Privacy concerns rise in Kashmir as IT Act silent about cellphone and data searches

Jammu and Kashmir Police in March this year claimed to have traced connections of some 10,000 Facebook profiles to Pakistan and said militant groups control some 300 groups on WhatsApp.

Security forces in Kashmir, particularly in its volatile south, are allegedly prying into cellphones of residents during roadside searches, raising privacy issues in a state where militants use social media to propagate their agenda and garner mass support.

Information Technology Act 2000 remains mum about cellphone searches. Wikimedia.

Information Technology Act 2000 remains mum about cellphone searches. Dvellakat.

Even as officials denied it was routine policing practice, dozens of incidents have been reported in recent weeks in which security forces have checked photos, videos and WhatsApp messages of civilians on their smartphones. And if anything "incriminating" related to militancy is found in the gallery of smartphones, a beating might follow, as happened with Mohammad Nadeem of Kulgam, who was on his way to Srinagar on his motorbike on July 2 when he was stopped by security forces near Awantipora. Nadeem said the security personnel went through the photo and video gallery of his phone and checked his WhatsApp messages.

"Suddenly, one of the security personnel noticed a photograph of a militant-funeral. Infuriated, he asked me to stand by the roadside and take off my shirt," Nadeem, 30, told IANS. He said he had participated in the Lashkar-e-Taiba commander Bashir Lashkari's funeral a day before where he had clicked few photographs that showed the slain militant's body and a few Pakistani flags in the backdrop. "They hit me with sticks and gun-butts, and kicked me," Nadeem alleged.

Deputy Inspector General South Kashmir Range, S.P. Pani denied knowing of any such incident even as he told IANS that if such things happened, complainants should contact the police who will take the cognizance of the matter. "I cannot tell you if this is a general police practice because I have not come across any such cases myself... But if you know somebody has undergone such an incident, they can come to the police and report it. Without knowing whose phone was checked and where, I cannot say anything about it," Pani said.

Jammu and Kashmir Police in March this year claimed to have traced connections of some 10,000 Facebook profiles to Pakistan and said militant groups control some 300 groups on WhatsApp. This increased police online surveillance amid fears that Kashmir youth are getting radicalised through widespread online militant propaganda. Musadiq Amin, 22, who studies in Degree College Pulwama, is another victim of police snooping. Amin said a group of policemen stopped him and snatched his phone when he was returning to home in Pulwama. "For 10 minutes, policemen checked my phone. But I was sure they would find nothing incriminating. When I saw two of them charging, wielding their bamboo sticks, I got jittery," Amin said. "They checked my WhatsApp and asked me about a group I was added in. It had Burhan's image as a display picture," Amin said.

The college student said he tried to tell them that it was merely a news group created by an acquaintance in which people from various villages would share news and updates about their areas occasionally. But he could not convince them. He alleged that his right shin was wounded as a result of the beating he received from the policemen, who also smashed his phone. As counter-insurgency operations intensified after Hizbul Mujahideen commander Burhan Wani's killing in July last year, militant funerals have seen growing participation of locals who often capture videos and photos to circulate on social media.

But can police peep into a private cellphone?

Supreme Court advocate and renowned cyber law expert Pavan Duggal says "no" because this practice amounts to breach of privacy of a citizen. Duggal argued the fundamental right to life under Article 21 of the Constitution includes right to dignified human life, and no dignified human life can be lived without having the privacy of mobile phones and private messages stored therein. "This particular privacy cannot be deprived unless (and) until there is a special law which has authorised the checking of mobile phones and private messages. In the absence of such a law, the practice of checking the phones and private messages would amount to breaching the privacy of citizens," Duggal told IANS.

According to Duggal, the provisions of the Information Technology Act, 2000, are completely silent about physical checking of mobile phones, photo or video galleries, and WhatsApp of civilians. "The only direction where the law prescribes the provisions is giving powers to the government for direct interception, monitoring, decryption, and blocking. These have to be done at the network level," Duggal noted.

Chairman of Jammu and Kashmir's Coalition of Civil Societies (JKCCS) Khurram Parvez argued that in Kashmir any debate on privacy of citizens was out of context. "We know that the government, through its multiple agencies, is already monitoring phone calls and Internet; (checking phones) only deepens the crisis, because now even individual officers at the grassroots have access to private details of people, which will further increase the vulnerability of the citizens," Parvez told IANS.

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