Smartphone message monitoring may be necessary for governments, but it should not turn to mere snooping, says Salil Tripathi

After China, India. The battle between state power and corporate power has taken a new turn in India, and at stake is the false mutual exclusivity between freedom of expression and freedom from fear.

The Indian Government has reached an agreement with BlackBerry manufacturers Research in Motion, allowing the state limited access to date from the mobile devices.

India’s concerns are not entirely out of place. Anyone who saw the harrowing documentary about the terrorist attacks carried out in Mumbai by Pakistan-based Lashkar-e-Taiba on 26 Nov 2008 would have noticed the ease with which the terrorists communicated with their masterminds in Pakistan, using satellite phones. Their handlers were able to pass on information Indian broadcasters were providing — not always accurate — to the men on the ground.

No country would want to live through such an experience again, and India believes that BlackBerry’s enterprise server and messaging services are so well disguised, that its intelligence agencies cannot intercept the messages they want to monitor. India’s next targets are net-based phone systems -Skype and Google.

Saudi Arabia, the United Arab Emirates and Indonesia too, have sought restrictions on BlackBerry. It is a fair question to ask if India, the world’s most populous democracy, wants to keep such company. But in making such demands, these countries are not alone.

The very seamlessness and instantaneity which links us with colleagues, friends and family around the world also links criminal gangs and terrorists. While not acknowledged openly, western intelligence agencies maintain surveillance over electronic communication. Counter-terrorism strategies require that. No politician wants to be caught saying he could have intercepted communication that led to a terrorist attack, but did not, out of concerns over privacy.

Here, the logical clash between the right to seek, receive, and impart information clashes with the right to privacy. And within that mix, add the state’s obligation to protect lives. Nowhere, in this equation, is there any clarity about the role of a company.

Companies do not sign or ratify human rights treaties; states do. Companies have an obligation to comply with the law; states have the obligation to ensure that the laws that they enact are consistent with the human rights standards adopted universally. It is odd to expect businesses to run foreign policy. While they can get it right — as Google does with China — they can get it spectacularly wrong, as when they interfere with legitimate government functions or end up being complicit with abuses others commit.  An apt example is junior mining companies in conflict zones where state authority does not run.

It is hard to trust the state given its pathetic record in protecting individual liberties.

Today, India wants access to messages exchanged by terrorists. Tomorrow, it might want access to messages among NGOs, commercial rivals of state-owned companies, newspapers, indeed private individuals sharing material the politicians consider ‘sensitive’ or ‘pornographic’. India’s dismal record in protecting freedom of speech does not inspire confidence. Its constitution places many restrictions on freedom of expression, and permits anyone claiming offence to seek bans on this or that film, play, or book. Why, a mobile phone operator was sued because someone sent ethnic jokes about a community as a text message, and someone was offended. Indians have elevated the culture of taking offense into an art form. There is no guarantee that it won’t extend its tendency to censor to other areas which have nothing to do with security.

Ultimately, this requires an international solution, where countries adopt a liberal governance model that does not restrict free flow of information that includes commercial, academic, literary, and yes, even what some might consider repugnant or pornographic, except where human and not national security is threatened.

It is hard to trust governments; but it is more complicated to have Google, Skype or RIM deciding foreign policy.