Will CBI’s Probe Into Cambridge-Analytica Data Mining Even Work?

“The government’s order to probe the CA data mining case seems to be a political move,” says a former CBI officer.

On 26 July, the government announced in Parliament that it has ordered a CBI probe into Cambridge Analytica’s (CA) misuse of Facebook data. Law Minister Ravi Shankar Prasad said, “It is suspected that CA may have been involved in illegally obtaining data of Indians”.

The use of the word ‘may’ by the minister hints that as of now, the government has not received any complainants nor has any concrete evidence to state that CA has mined Indians’ data.

What is also interesting to note is that the Ministry of Electronics and Information Technology (MEITY) had issued notice to the London-based analytics firm on 23 March 2018 seeking a response on issues pertaining to data mining of Indians. The ministry had requested CA to reply by 31 March. Three months have passed and the Indian government is still waiting for a reply.

Facebook had earlier informed the Indian government that “only 335 people” in India were directly affected through the installation of an application (which led to the data leak to CA) and another 5,62,120 people were “potentially affected” as friends of those users.

This had triggered several questions. The Quint spoke to a few former CBI officers for answers. Let’s take them one by one.

Under What Section Will the CBI Register a Case?

The CBI’s official statement is that they will evaluate the case based on the letter sent by the government. They too aren’t clear under what section can they register the case.

Based on the letter sent by the government, the CBI is likely to seek legal opinion, said the former CBI officer. He further added that on the basis of the legal opinion, the CBI might open a Preliminary Enquiry (PE) if there isn’t strong evidence or register a FIR if there is sufficient evidence.

The PE will help the CBI in collecting evidence in the matter. On concluding the investigation, the agency might turn the PE into an FIR or close the matter.

Does the CBI Have Jurisdiction to Investigate?

Certainly, CBI is the nodal agency for Interpol in India. Hence, it has the power to investigate inter-state or international cases.

Cyber-crimes are borderless and may involve more than one country, like in this case, as Cambridge Analytica was UK-based. It was shut down after the data mining scandal emerged.

For example, in February 2018, the CBI busted a child porn racket, which was operating over WhatsApp, with the help of Interpol. This racket had members from several countries like Afghanistan, China, US, Pakistan, Kenya, and Nigeria besides India.

The main administrator of the group, called KidsXXX, had 119 members from the above mentioned countries.

Similarly in this case, the CBI, with the help of Interpol, does have jurisdiction to investigate the allegations against CA.

Can It Collect Evidence and Access Witnesses, Suspects?

Having jurisdiction is not enough – access to information, witnesses and evidence form the core part of an investigation. Especially in this case, which as of now appears to be based on the assumption of data mining. The CBI will need access to CA’s data bank and also to the people who were involved in it.

And for this, the agency will have to depend on the cooperation of the concerned country.

The process can be divided into stages.

• The agency has to prepare a Letter of Request (Letters Rogatory or LR) under Section 166-A of the Criminal Procedure Code, 1973, and send it to the concerned countries. The LR is forwarded within the ambit of Mutual Legal Assistance Treaty (MLAT) existing between India and the concerned country.
• The LR should have brief facts of the case, offence committed, names and details of the suspects and witnesses, etc if available. The LR will be enclosed with the relevant documents like FIR or PE, testimony of the complainant or witnesses, etc.

But the biggest problem is that it takes years for the foreign countries to send a reply to the LR.

We do not expect nor do we get speedy replies on LR because the requested countries also look into the matter from their end to collect information, which is time-consuming. The LR replies may take several months or several years. It also depends on the kind of relationship India has with the requested country, sometimes the countries don’t cooperate in sharing information. 

Former CBI officer

Can CBI Summon a Foreign National to India?

The Indian agency, through diplomatic channels, can summon a foreign national under Section 105 of the Code of Criminal Procedure. The MLATs with 39 countries makes the process simpler.

BUT! Even if the summons is issued under MLAT, it isn’t immediately binding on the foreign national.

In this case, the Indian authorities will write to the UK government to summon the employees of CA to record their testimony, or it can also request the UK government to allow the Indian investigating officials to record their statements there.

It will depend entirely on the cooperation shown by the requested country. Even if the country in question serves the summons to the foreign national, that doesn’t mean that s/he has to come to India immediately.

Can CBI Extradite a Foreign National?

Technically, it can. But practically?

Let’s suppose that the CBI is successful in overcoming all the hurdles by collecting evidence and recording the testimony of witnesses and suspects.

But the investigation is not complete till the alleged accused is put to trial, and for that, India has to extradite the suspect.

Data proves how bad India is at getting extraditions. Be it liquor baron Vijay Mallya’s bank fraud case or Nirav Modi and Mehul Choksi’s Punjab National Bank scam, the agencies are dragging their feet on bringing them back to India.

Data also reveals India has only 33% (or less) successful extradition requests due to the incompetence of Indian authorities, poor jail conditions, and concerns from foreign countries of human rights violations. And India has never managed to get any foreign nationals extradited from the US.

Just Politics?

“The government’s order to probe the CA data mining case seems to be more of a political move rather than an attempt to prosecute perpetrators,” said a former CBI officer.

Under the given circumstances and limited manpower with which the CBI operates, the government should allow the CBI to focus on cases already under investigation rather than using the agency for the upcoming 2019 Lok Sabha Elections, he said.