Thursday, June 16, 2011

Cell Site Data Location Laws In India And Privacy Issues

Cell Site Data Location is not a very positive term. It has been in controversies for breaching Privacy Rights of the person whose Cell Site Data was acquired. Cell Site Data tells about the “Location” of a person who is carrying a cell phone, without his consent. This raises many “Privacy Issues” and “Legal issues” as it amounts to E-Surveillance and “Search without a Warrant”.

In the Indian context we have no Cell Site Data Laws. In fact, we have no Privacy Laws, Data Protection Laws, Data Security Laws, Anti Telemarketing Laws, Anti Spam Laws, etc. On the contrary, the Cyber Law of India, incorporated in the Information Technology Act 2000 (IT Act 2000), facilitates E-Surveillance, Internet Censorship, etc “Without any Procedural Safeguards”.

The Constitution of India provides that no Search or Warrant should be conducted without a “Procedure Established by Law”. The Supreme Court of India has given the expression Procedure Established by Law a wider meaning and this has made it a “Due Process of Law”. Now the Indian Government or its Agencies and Instrumentalities cannot “Infringe” upon any Fundamental Right of an Indian Citizen of Person without Due Process of Law.

The Due Process mandates that the Law in question must not be any Law made as a Fa├žade or Formality but must be “Just, Reasonable and Fair”. If we analyse the IT Act 2000, especially after the Information Technology Amendment Act 2008 (IT Act 2008), its “Fails to Satisfy’ the Due Process Clause of Indian Constitution. In short, the Cyber Law of India carries many “Unconstitutional Provisions” and either the Law itself must be Repealed or those Unconstitutional Provisions must be Struck Down by Supreme Court of India.

India needs to formulate separate and dedicated laws for Cyber Law, Cyber Security, Cyber Forensics, Privacy Protection, Data Protection, Data Security, etc. Presently India has no such Laws as even the Cyber Law of India is not good, effective, strong and most importantly “Constitutional”.

As a matter of fact, with the active use of Technology by Indian Government and its Agencies and Instrumentalities, Constitutional Provisions are “Most Frequently Violated” in India. I hope the Supreme Court of India would take note of this “Downsizing” of Indian Constitution that has become a “Regular Feature” these days.

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