Websites Blocking In India Is Mainly A Judicial Act

Blocking of websites in India is governed by the cyber law of India that is incorporated in the Information Technology Act 2000 (IT Act 2000). The Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009 prescribe the manner of blocking of websites in India.

In exercise of the powers conferred by sub-section (1) of Section 69A of the Information Technology Act, 2000 (21 of 2000) read with rule 3 of the Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009, the Central Government has authorised and designated the Group Coordinator (being an officer of the Central Government not below the rank of Joint Secretary), Cyber Law Division in the Department of Information Technology (DIT), Ministry of Communications and Information Technology (MCIT), Government of India, Electronics Niketan,6, Central Government Offices Complex, New Delhi-110003, as the Designated Officer for the purposes of the said rules.

A notification numbered S.0.117 (E), dated 20th January, 2010 has been issued in this regard. Dr. Gulshan Rai is the present Group Coordinator for the Cyber Law and E-Security Division of DIT. He is also the Director General of Indian Computer Emergency Response Team (CERT-In).

In a media interview, Dr. Gulshan Rai has revealed that websites blocking in India has been so far a judicial act and DIT has not blocked a single site without a court order. This is a good attitude that shows that freedom of speech and expression is respected in India. This is also setting a bad precedent as it would encourage websites and foreign websites to violate and defy Indian laws, especially intellectual property laws and cyber law.

In fact, judicial orders for blocking of websites in India are not always very sound. In fact, India judiciary, cyber law and websites blocking in India is still far from perfect. In such situations, the responsibility of Designated Officer Dr. Gulshan Rai becomes even more demanding and pro active.

The way companies like Google are deliberately avoiding compliances with Indian laws, it becomes very important for DIT in general and Dr. Gulshan Rai in particular to safeguard the interests of Indian individuals and companies. There is no doubt that companies like Google and Facebook must comply with Indian laws and Google and Facebook can be blocked in India.

We recently filed a DMCA complaint with Google Incorporation and a legal notice to Google India. However, both Google Incorporation and Google India are openly denying compliance with Indian laws. If DIT/CERT-In does not change its soft attitude towards companies like Google, Facebook, etc, and keep on insisting upon court cases and judicial orders, it would increase an unnecessary pressure upon Indian courts that are already overburdened.

Cyber litigations against foreign websites are going to increase in India. Even Google has anticipated this situation and Google’s blogspot platform has started giving country specific results for blogspot blogs. Clearly, hints of non compliance with Indian laws are visible but India is not doing enough in this regard. The least Indian can do in this regard is to develop alternative mechanisms to filing of DMCA complaints to Google, Facebook, Wordpress, etc each time offending contents appear on their websites.

Companies like Google, Facebook, etc are already facing a criminal trail in India for non removal of objectionable contents. A trial court has also asked the representatives of the parent companies like Google, Facebook, etc to appear before it and face the trial. If these companies continue to flout Indian laws, Indian government can and should block the websites of such companies in India.

While the Indian government is armed with discretionary powers to block any website carrying malicious or offensive content, it has never exercised these powers so far. This is giving a bad signal to Internet intermediaries and something must be done in this regard.

What is more surprising is the revelation of Dr. Gulshan Rai that if the police find a problem, they come to CERT-In/DIT and ask to block some websites; CERT-In/DIT tells them that it/they cannot do this and ask them to go to court and get an order. This is abdication of duties by CERT-In/DIT that they are duty bound to follow. By insisting upon blocking of an offending website with a court order alone, both CERT-In and DIT are violating the provisions of IT Act 2000 and various Rules under the same.

So far CERT-In/DIT has blocked some 20-25 websites after taking orders from the court but CERT-In/DIT have not used their discretionary power to block an offending website in a single case. In fact, they have refused to use their discretionary power. Clearly not exercising the discretionary power even where there is a clear case for the exercise of the same is violating the mandates of IT Act 2000 and corresponding Rules.

It is not the case that a website should be blocked at the drop of a hat. But when a clear case is made out, insisting upon a court order to block the offending website is definitely a bad policy and erroneous exercise of discretion. It is high time to think seriously about this issue.

Cyber Laws In India

Cyber laws in India are very important part of legal framework world over. India also has a cyber law in the form of information technology act 2000 (IT Act 2000). With growing emphasis upon e-commerce and e-governance in India, cyber law in India has become very important.

However, we have no dedicated e-commerce laws in India and e-governance laws in India. With the proposed draft electronic delivery of services bill 2011 (EDS Bill 2011), some efforts in the direction of strengthening e-governance have been taken by Indian government. However, till now we have no mandatory e-governance rights in India under the cyber law of India.

The cyber law of India has many unique and interesting aspects. Internet intermediary liability in India, cyber due diligence in India, cyber due diligence for Indian companies, social media due diligence in India, etc are some of them. With the passing of the information technology amendment act 2008 (IT Act 2008), the liability of websites, social media platforms, blogging sites, etc has increased a lot. Domain name protection in India is another issue that may become a part of cyber law in the near future.

A lot of cyber crimes, cyber contraventions, intellectual property rights (IPRs) violations, etc are committed due to lack of awareness about Indian cyber law. However, many cyber crimes and IPRs violations are deliberately committed and they deserve to be taken seriously.

There are very low cyber crimes convictions in India. This is because the cyber crime investigations in India are not proper due to lack of cyber law and cyber forensics knowledge. There is an urgent need to ensure cyber skills development in India so that cyber crimes can be prosecuted successfully.

Perry4Law Techno Legal Base (PTLB) is managing the exclusive techno legal centre for cyber laws in India. PTLB is the exclusive techno legal e-learning institution of India. It is providing various techno legal e-learning courses in India and cyber law education and training is one of them.

Online cyber law education in India needs to be strengthened further. Online cyber law courses in India can fill the gap in our educational system that is largely academic in nature. Such online courses can not only provide practical trainings and skills development but they can also remove the distance barriers.

A special emphasis must be given to legal lifelong learning in India that is presently missing. Continuing professional legal education in India needs to be developed on the lines as has been done in western countries. Further, the legal and judicial fraternity of India needs scientific knowledge that has become necessary with the enactment of IT Act 2000 and similar technology related laws.

There are certain areas that are closely related to cyber law. For instance, issues like cyber forensics in India, e-discovery in India, cyber security in India, etc have still not got the attention of Indian parliament. We need dedicated laws on each of such fields that are presently missing in India. There are very few cyber forensics research, training and educational centers in India. Similarly, cyber security research centers in India are also limited. Even lesser are digital evidencing and e-discovery centers in India.

Cyber laws would also be relevant for areas like online dispute resolution (ODR) in India and e-courts in India. Cross border technology transactions and dispute resolution is the latest trend in the field of ODR. Further, legal issues of entertainment and media industry in India would also involve cyber law implications. DNS redirection and distributed denial of service attacks are these days used to protect IPRs and brands. These methods are strictly not legal and have serious cyber law implications.

There are many more issues that are involved with cyber laws of India. However, they cannot be covered in a single post and we would cover them one by one in our subsequent posts. We hope readers would find this information useful.

Internet Intermediaries In India Asked To Pre Screen Contents

When information technology act 2000, the sole cyber law of India, was amended through the information technology amendment act 2008, very few people opposed the same. The provisions of the proposed IT Act 2008 were draconian and without constitutional and procedural safeguards. This is the reason why self defense mechanisms against state were also advocated to counter illegal and unconstitutional e-surveillance and internet censorship.

However, commercial enterprises and internet intermediaries silently accepted the amendments without realising its far reaching consequences. Now e-surveillance in India has become a big nuisance for intermediaries like internet service providers (ISPs), e-commerce sites, search engines, e-mail providers, etc. The liability of Internet intermediaries for copyright violations would also create problem for intermediaries in India.

Intermediaries liability for cyber law due diligence in India has become very stringent after the IT Act 2008. The IT Act 2000 now carries many e-surveillance, websites blocking and Internet censorship provisions and Indian government is openly using these provisions without following the constitutional requirements.

Recently, through a petition, Yahoo has raised questions regarding the right to privacy of a company that stores sensitive data of its customers and users and to what extent authorities can coerce it to part with the information considered necessary to either track terror perpetrators or thwart future attacks.

The matter must also be looked from another angle. Human rights protections in cyberspace in India are not safeguarded at all. Even at the international level United Nations has not shown much interest in protecting civil liberties in cyberspace. The data privacy laws in India are also missing. In short, there is complete negation of human rights in cyberspace in the Indian context.

Now the Indian government has asked Internet companies like Google, Microsoft, Yahoo and social media sites like Facebook to prescreen user content from India and to remove disparaging, inflammatory or defamatory content before it goes online. Top officials from the Indian units of Google, Microsoft, Yahoo and Facebook have met with Kapil Sibal in this regard.

Kapil Sibal has told them that he expected them to use human beings to screen content instead of the automated technology. However, these companies believe that his demand is impossible to fulfill keeping in mind the nature of internet and user generated contents. Let us see how things would take shape in this regard.

Indian Encryption Policy Must Be Formulated

Encryption policy of India is long overdue but India has been slow in formulating this much needed policy. At the same time encryption is also a controversial issue in India that requires a balancing of conflicting interests of law enforcement requirements and personal privacy and security.

Provisions pertaining to encryption usage in India are scattered in various laws, rules and regulations of India. We do not have a centralised or dedicated legal framework for encryption related matters and this is hindering proper usage and innovation in the field of encryption in India.

The cyber law of India, as applicable through information technology act 2000 (IT Act 2000) has a single provisions in this regard. Section 84A of IT Act 2000 says that the Central Government may prescribe the modes or methods of encryption. Till now the Central Government has not prescribed any “modes or methods” of encryption usage in India.

We are compromising the cyber security of India, mobile security of India and mobile governance in India by insisting upon a weak encryption infrastructure. Mobile cyber security in India is not up to the mark and unencrypted communication would further increase the risks.

There are many service providers that use encryption for private and secure communications. The ministry of home affairs has been insisting upon surrendering of encryption keys of such services and in the absence of same banning such encrypted services. However, the ministry of communication and information technology has made it clear that it is not possible to do so.

India has taken too much time to resolve encryption issues and the same must be resolved as soon as possible. Encrypted services would bring both benefits and problems for India. On the benefit side, it would bring secure, private and confidential services. The problem with encryption, like any other technological service, is that it can be abused by criminals.

However, the possibility of abuse should not deter Indian government from using encryption in India. Further, Indian government must develop core cyber skills to deal with encryption related crimes rather than downsising the same and making Indian cyber and mobile security vulnerable to threats.

India needs to upgrade its intelligence infrastructure that is in real mess. Intelligence agencies need to develop intelligence gathering and analysis skills so that situations like the present one can be taken care of. E-surveillance is not a substitute for cyber skills and Indian government and its agencies must realise this truth as soon as possible. However, the call is for the Indian government to take that is shying away from taking a well informed decision in this regard.

Is Electronic Service Delivery Bill Worth Considering?

The Electronic Service Delivery Bill 2011(ESDB 2011) started at a very positive note but just like other laws of India, it ended up miserably. Electronic services cannot be effective till it is claimed as a matter of right against the government and its departments. If citizens cannot have mandatory e-services delivery there is no sense in doing the entire exercise.

Take the example of the cyber law of India incorporated in the information technology act 2000. Even after more than 10 years of its enactment till now citizens do not have a mandatory right to e-governance in India.

This happened because of a disabling provisions incorporated as section 9 of the IT Act 2000 that make providing of e-governance services in India discretionary. This has failed the entire purpose of e-governance in India.

Now a similar approach has been adopted regarding the ESDB 2011. If States are not bound to provide “compulsory” e-services delivery, there is no sense in making it a law. Even if it is enacted as a law, not much purpose would be served. Instead, it is better if we streamline public services through administrative reforms in India.

Further, ESDB 2011 would also face problems on the fronts of data protection, data security, privacy rights, cyber security, etc. India has not done enough on any of these fronts and legal framework for all above mentioned areas is still a big problem.

Finally, on the front of digital preservation and pubic records management as well India has to cover a long gap. Let us hope that the proposed ESDB 2011 would cover all these aspects.

M-Governance Policy Of India

Mobile governance (m-governance) is an innovative method of using mobile technologies for effective governance and public services delivery. M-governance facilitates many public services in almost real time and without hassles. However, along with the benefits of m-governance it has many drawbacks as well.

Firstly, we have no implementable m-governance policy in India. In the absence of proper planning and a sound m-governance policy it is not a wise option to utilise m-governance services in India.

Secondly, we have no dedicated legal framework for m-governance in India. This may create problems in cases of mobile banking, m-governance, m-commerce, etc. Of course, we have information technology act 2000 (IT Act 2000) as the cyber law of India yet it is far from perfect for even e-governance purposes and it is not at all applicable to m-governance environment.

Another issue pertains to the exercises of e-surveillance and phone tapping by Indian government and its agencies. Till now we have no lawful interception law in India. Phone tapping is done under the colonial and outdated Indian telegraph act 1885 and e-surveillance is done under the IT Act 2000. Both these acts are violating the letter and spirit of Indian constitution and have incorporated many unconstitutional provisions that are well beyond the parliamentary and judicial scrutiny.

Recently, the ministry of communication and information technology (MCIT) has launched the central monitoring system project of India. It has the capabilities to monitor all sorts of telecommunication and electronic communications. However, it is a pure executive exercise with no legal framework, civil liberty safeguards and parliamentary and judicial scrutiny.

At the international level some development for safeguarding the human rights in cyberspace has been taking place. United Nations has declared that access to Internet is a human right. This shows that human rights protection in cyberspace cannot be ignored by nations in future.

Finally, m-governance cannot succeed till we ensure cyber security for m-governance in India. Till now even the basic level cyber security is missing in India and we have no cyber security policy in India. Further, the IT Act 2000 need to be suitably amended or a dedicated legislation for m-governance must be enacted in India.

All these issues are integral part of the m-governance policy of India. Before jumping upon the fancy idea of m-governance we must ensure that it can operate and flourish in India.

Public Records Act 1993 And IT Act 2000 Mandates

Information Technology Act, 2000 (IT Act, 2000) is the sole Cyber Law of India. It deals with E-Commerce, E-Governance, Cyber Crimes, etc. It also provides a “Digital Framework” for ensuring Digitilisation, Electronic Documents Creation and their use in Government Departments. This “Research Report” of Perry4Law and Perry4Law Techno Legal Base (PTLB) is briefly analysing the relationship between IT Act, 2000 and Public Records Act, 1993 (PRA 1993).

Section 2 of IT Act, 200 deals with definitions that are relevant for PRA 1993 purposes. Section 2(1) provides that in this Act, unless the context otherwise requires:

(i) "Access" with its grammatical variations and cognate expressions means gaining entry into, instructing or communicating with the logical, arithmetical, or memory function resources of a computer, computer system or computer network.

(ii) "Affixing Electronic Signature" with its grammatical variations and cognate expressions means adoption of any methodology or procedure by a person for the purpose of authenticating an electronic record by means of Electronic Signature.

If documents are issued by NIA in electronic form, they have to be authenticated by using electronic signatures. Unauthenticated electronic documents would not create any right or liability either under the IT Act, 2000 or under the PRA 1993.

(iii) "Asymmetric Crypto System" means a system of a secure key pair consisting of a private key for creating a digital signature and a public key to verify the digital signature.

Digital Signatures are based upon Asymmetric Crypto System and they can be used for “Authentication Purposes” by NAI.

(iv) "Computer" means any electronic, magnetic, optical or other high-speed data processing device or system which performs logical, arithmetic, and memory functions by manipulations of electronic, magnetic or optical impulses, and includes all input, output, processing, storage, computer software, or communication facilities which are connected or related to the computer in a computer system or computer network.

(v) "Cyber Security" means protecting information, equipment, devices, computer, computer resource, communication device and information stored therein from unauthorised access, use, disclosure, disruption, modification or destruction.

Cyber Security is an issue that is of “Paramount Importance” for the NAI. When Digitilisation and Digital Preservation would be adopted by NAI, Electronic Documents and Digital Resources would be required to be protected from Cyber Attacks. A Techno Legal Strategy must be formulated by NAI in this regard.

(vi) "Data" means a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a formalised manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer.

(vii) "Digital Signature" means authentication of any electronic record by a subscriber by means of an electronic method or procedure in accordance with the provisions of section 3.

(viii) "Electronic Form" with reference to information means any information generated, sent, received or stored in media, magnetic, optical, computer memory, micro film, computer generated micro fiche or similar device.

(ix) "Electronic Record" means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche.

(x) "Electronic signature" means authentication of any electronic record by a subscriber by means of the electronic technique specified in the second schedule and includes digital signature.

(xi) "Information" includes data, message, text, images, sound, voice, codes, computer programmes, software and databases or micro film or computer generated micro fiche.

(xii) "Intermediary" with respect to any particular electronic records, means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web hosting service providers, search engines, online payment sites, online-auction sites, online market places and cyber cafes.

(xiii) "Key Pair", in an asymmetric crypto system, means a private key and its mathematically related public key, which are so related that the public key can verify a digital signature created by the private key.

(xiv) "Private Key" means the key of a key pair used to create a digital signature.

(xv) "Public Key" means the key of a key pair used to verify a digital signature and listed in the Digital Signature Certificate.

(xvi) "Secure System" means computer hardware, software, and procedure that-

(a) Are reasonably secure from unauthorised access and misuse;

(b) Provide a reasonable level of reliability and correct operation;

(c) Are reasonably suited to performing the intended functions; and

(d) Adhere to generally accepted security procedures.

(xvii) "Security Procedure" means the security procedure prescribed under section 16 by the Central Government.

(xviii) "Verify" in relation to a digital signature, electronic record or public key, with its grammatical variations and cognate expressions means to determine whether:

(a) The initial electronic record was affixed with the digital signature by the use of private key corresponding to the public key of the subscriber;

(b) The initial electronic record is retained intact or has been altered since such electronic record was so affixed with the digital signature.

Section 2 (2) of the IT Act, 2000 provides that any reference in this Act to any enactment or any provision thereof shall, in relation to an area in which such enactment or such provision is not in force, be construed as a reference to the corresponding law or the relevant provision of the corresponding law, if any, in force in that area.

Section 4 of the IT Act, 2000 provides Legal Recognition to Electronic Records. It says that where any law provides that information or any other matter shall be in writing or in the typewritten or printed form, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied if such information or matter is

(a) Rendered or made available in an electronic form; and

(b) Accessible so as to be usable for a subsequent reference

Section 5 of the IT Act, 2000 provides legal recognition to Electronic Signature. It says that where any law provides that information or any other matter shall be authenticated by affixing the signature or any document should be signed or bear the signature of any person then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied, if such information or matter is authenticated by means of digital signature affixed in such manner as may be prescribed by the Central Government.

Explanation to section 5 provides that for the purposes of this section, "Signed", with its grammatical variations and cognate expressions, shall, with reference to a person, mean affixing of his hand written signature or any mark on any document and the expression "Signature" shall be construed accordingly.

Section 6 of the IT Act, 2000 deals with use of Electronic Records and Electronic Signature in Government and its agencies. Section 6(1) of the Act provides that where any law provides for

(a) The filing of any form, application or any other document with any office, authority, body or agency owned or controlled by the appropriate Government in a particular manner;

(b) The issue or grant of any licence, permit, sanction or approval by whatever name called in a particular manner;

(c) The receipt or payment of money in a particular manner, then, notwithstanding anything contained in any other law for the time being in force, such requirement shall be deemed to have been satisfied if such filing, issue, grant, receipt or payment, as the case may be, is effected by means of such electronic form as may be prescribed by the appropriate Government.

Section 6(2) of the Act provides that the appropriate Government may, for the purposes of sub-section (1), by rules, prescribe -

(a) The manner and format in which such electronic records shall be filed, created or issued;

(b) The manner or method of payment of any fee or charges for filing, creation or issue any electronic record under clause (a).

Section 6A (1) of the IT Act, 2000 provides that the appropriate Government may, for the purposes of this Chapter and for efficient delivery of services to the public through electronic means authorise, by order, any service provider to set up, maintain and upgrade the computerised facilities and perform such other services as it may specify, by notification in the Official Gazette.

The Explanation to Section 6A (1) of the IT Act, 2000 provides that for the purposes of this section, service provider so authorised includes any individual, private agency, private company, partnership firm, sole proprietor form or any such other body or agency which has been granted permission by the appropriate Government to offer services through electronic means in accordance with the policy governing such service sector.

Section 6A of the IT Act, 2000 reflects the intention of Indian Government to provide Electronic Services Delivery in India. In fact, Electronic Services Delivery Bill, 2011 has already been proposed and if implemented would ensure many Electronic Services to Indians.

NAI must start working in the direction of providing its Service Online, if not already done. Even the non-service related matters and matters pertaining to the NAI are already required to be provided online in an Electronic Form as per the requirements of Section 4(1) of the RTI Act, 2005.

Section 7 of the IT Act, 2000 deals with retention of electronic records. Section 7(1) of the Act provides that where any law provides that documents, records or information shall be retained for any specific period, then, that requirement shall be deemed to have been satisfied if such documents, records or information are retained in the electronic form, if-

(a) The information contained therein remains accessible so as to be usable for a subsequent reference;

(b) The electronic record is retained in the format in which it was originally generated, sent or received or in a format which can be demonstrated to represent accurately the information originally generated, sent or received;

(c) The details which will facilitate the identification of the origin, destination, date and time of dispatch or receipt of such electronic record are available in the electronic record.

The Proviso to Section 7 (1) provides that this clause does not apply to any information which is automatically generated solely for the purpose of enabling an electronic record to be dispatched or received.

NAI can convert its Records and Public Records into Electronic Form. Digital Preservation of Records or Public Records can also be done by NAI. While current records can be digitilised non current records can be digitilised and made available to public and researchers as the Electronic Services by NAI.

Section 7(2) of the Act provides that nothing in this section shall apply to any law that expressly provides for the retention of documents, records or information in the form of electronic records.

For instance, the RTI Act, 2005 provides for creating of many records in digital form and available to the public in an online environment. Similarly, the proposed Electronic Services Delivery Bill 2011 also requires providing of Services in online environment. This would also require digitilisation of Records and Public Records by NAI.

Section 7A of the IT Act, 2000 provides that where in any law for the time being in force, there is a provision for audit of documents, records or information, that provision shall also be applicable for audit of documents, records or information processed and maintained in electronic form.

Audit of Electronic Documents would also be undertaken in future. Just like NAI has to maintain proper paper based documents, it would be required to main proper Electronic Records as well.

Section 8 of the IT Act, 2000 provides that where any law provides that any rule, regulation, order, bye-law, notification or any other matter shall be published in the Official Gazette, then, such requirement shall be deemed to have been satisfied if such rule, regulation, order, bye-law, notification or any other matter is published in the Official Gazette or Electronic Gazette.

The proviso to section 8 provides that where any rule, regulation, order, bye-law, notification or any other matters published in the Official Gazette or Electronic Gazette, the date of publication shall be deemed to be the date of the Gazette which was first published in any form.

NAI can publish its Rules, Regulations, etc in Electronic Gazette.

Section 9 of the IT Act, 2000 provides that Sections 6, 7 and 8 would not to confer right to insist document should be accepted in electronic form. Section 9 says that nothing contained in sections 6, 7 and 8 shall confer a right upon any person to insist that any Ministry or Department of the Central Government or the State Government or any authority or body established by or under any law or controlled or funded by the Central or State Government should accept, issue, create, retain and preserve any document in the form of electronic records or effect any monetary transaction in the electronic form.

This is a real “Disabling Provision” that is preventing the actual accomplishment of Electronic Services Delivery in India. By making it “Discretionary” India Government has kept at bay for long the Electronic Delivery of Services to Indians. The latest proposed Electronic Services Delivery Bill 2011 addresses a very small and insignificant portion of the Electronic Delivery of Services in India and till now Electronic Services cannot be claimed as a “Matter of Right”.

However, by virtue of RTI Act, 2005 “Providing Information” about Governmental Departments in Electronic Form has been made “Compulsory”. But till now there is no Law or Provision that makes Delivery of Electronic Services Mandatory in India. This is a “Serious Issue” that must be resolved as soon as possible.

Section 11 of the IT Act, 2000 deals with attribution of Electronic Records. Section 11 says that an electronic record shall be attributed to the originator

(a) If it was sent by the originator himself;

(b) By a person who had the authority to act on behalf of the originator in respect of that electronic record; or

(c) By an information system programmed by or on behalf of the originator to operate automatically.

There may be other provisions of IT Act, 2000 that may be relevant for NAI and PRA 1993 purposes. But for the time being, they are not mandatory in nature. We hope this “Research Report” by Perry4Law and PTLB would be useful for Government Departments in general and national archives of India in particular.

Legal Framework For E-Governance In India

Electronic governance in India (e-governance in India) is still at its infancy stage. Most of the e-governance projects of India under the national e-governance plan (NEGP) are still in the pipeline despite the deadline being passed long before. This is despite the fact that thousand of crores of public money has already been utilised for e-governance projects of India but without any constructive and practical results.

Meanwhile, the World Bank has once again issued $ 150 million loan to India. It has been issued under the category of e-delivery of public services development policy loan of India. The purpose of the loan is to ensure e-services delivery policy in India that is presently missing.

However, what is more alarming is the fact that in India we have no legal framework for e-governance that can ensure mandatory e-governance services in India. Although the information technology act 2000 carries provisions pertaining to e-governance services in India yet they are “non mandatory” in nature. This has resulted in a poor e-governance services delivery in India. Till now we have no legal framework that mandates that citizens and organisations can claim e-governance as a matter of right.

Further, the scope of NEGP is very wide covering almost all aspects of governance - right from delivery of services and provision of information to business process re-engineering within the different levels of government and its institutions. It is essential that NGP is implemented, monitored and regulated through a legal framework so that it is no more just a plan but reality.

In fact, while implementing the NEGP, various structural and institutional issues have already arisen which clearly call for a statutory mandate for their resolution. The purpose would be to give statutory mandate to the institutional entities, setting up of a separate fund, defining responsibilities and providing for time frames and oversight mechanisms. Thus, this legislation may, inter alia, contain provisions regarding the following:

(a) Definition of e-governance in the Indian context, its objectives and role,

(b) Coordination and oversight mechanisms, support structures at various levels, their functions and responsibilities,

(c) Role, functions and responsibilities of government organisations at various levels,

(d) Mechanism for financial arrangements including public-private partnership,

(e) Specifying the requirements of a strategic control framework for e-government projects dealing with statutory and sovereign functions of the government,

(f) Responsibility for selection and adoption of standards and inter-operability framework,

(g) Framework for cyber security, privacy protection, data security and data protection etc,

(h) Parliamentary oversight mechanism, and

(i) Mechanism for co-ordination between government organisations at Union and State levels.

E-Delivery Of Public Services Development Policy Loan Of India

E-Delivery of Public Services is the testing bed for any successful E-Governance Project. If essential Public Services cannot be delivered through use of Information and Communication Technology (ICT), there is no successful E-Governance implementation.

In India as well essential Public Services are still not successfully integrated with ICT and E-Governance has to cover a long distance before it becomes successful in India. India’s ranking in E-Readiness and E-Governance is declining year after year and India is still not bothered about this fact.

This situation does not “Justify” the usage of crores of public money on E-Governance Projects in India when there are no “Results” of such huge spending. The Government of India (GOI) and the World Bank recently signed another Loan Agreement of $150 million for the E-Delivery of Public Services Development Policy Loan under the National E-Governance Plan (NEGP) of India.

However, even this loan would not change the position in India till we have a “Mandatory E-Governance Legal Framework” in India. The Information Technology Act 2000 is the sole Cyber Law of India that carries few provisions pertaining to E-Governance as well. However, The IT Act 2000 has made E-Governance in India “Non Mandatory” and here lies the whole problem.

If we do not make E-Governance Mandatory and we do not lay down “Deadlines” till which E-Governance Infrastructure must be established in India, public money would be wasted for ever. It is high time for India to ensure Mandatory E-Governance Services in India through a Legal Framework.

The Government and Indian Bureaucrats need to change their mindset and stress more upon “Outcomes and Services” rather than mere ICT procurement. India needs a “Services-Based Approach” that is not only Transparent, Accountable and Legal but also backed by a more efficient and willing Government. Presently the Bureaucrats and Government of India are in a “Resistance Mode” towards novel and effective E-Governance Policies and Strategies and they are merely “Computerising” traditional official functions only. This is benefiting neither the Government nor the citizens and is resulting in wastage of thousands of crores of public money and loans amount of United Nations Development Programme (UNDP) and World Bank.

The Governmental will and leadership is missing in India. To worsen the situation the Government of India is concentrating more upon the image rather than upon the end results. The grassroots level action is missing and the benefits of ICT are not reaching to the under privileged and deserving masses due to defective ICT Strategies and Policies of Indian Government. India is suffering from the “Vicious Circle” of defective E-Governance, as the basic input .i.e. governance itself is poor. India needs a “Virtuous Circle” of E-Governance through “Good Governance” that would have multiplication and amplification effect upon E-Governance efforts of Indian Government.

Some have even alleged that E-Delivery of Public Services in India is missing and World Bank is not at all interested in establishing Transparency and Accountability in Indian NEGP. World Bank must ensure accountability of Indian NEGP in order to show that its Loans are actually meant for growth and development of Indian masses rather than benefiting few Politicians and Bureaucrats as is happening right now.

Meanwhile, India must seriously consider formulating a Mandatory E-Governance Legal Framework that is not only Transparent but also Accountable. Further, if time limits are not set to achieve Mandatory E-Governance Services in India, all other efforts would fail. Let us see how “Serious” our Indian Government is regarding providing Mandatory E-Governance Services in India.

Cell Site Location Based E-Surveillance In India

While it came as a respite for the encryption service providers in India when they received the news that their services may not be banned in India yet local telecom service providers in India may not be that lucky. The new telecom equipment policy of India mandates the telecom service providers of India have to ensure location based services accuracy (LBSA) upto 50 meters.

The constitutionality and feasibility of this directive is yet to be analysed. For instance we have no cell site data location laws in India. 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 that also without any sort of procedural safeguards. Thus, neither a constitutional nor a statutory legal framework is at place to justify this action on the part of Indian government.

Even if we do a cost analysis this directive may require a heavy investment that telecom operators of India may not be wiling to invest. Telecom industry of India is seriously concerned with the burden shifting practice of Indian government. They believe that governmental security requirements must be managed by government funds alone and should not be passed upon industry players. The new equipment security agreement of India is not addressing either the legal or cost issues.

Technical problems have also been cited as a reason for non feasibility of the terms of Indian equipment security agreement. Based on, the technical standards for accuracy levels as defined by the Indian government, the scale of implementation, the execution of the project and the complexities involved, there is no solution at present that meets the agreement’s mandate. The costs to implement such a system have been estimated at approximately $5 billion.

The Indian equipment security agreement is also weak on the front of privacy protection and data protection. There are no clear policy guidelines in this regard. This is because the new equipment security agreement of India requires telecom operators to maintain location information up to accuracy of 50 meters for customers specified by security agencies of India commencing 1st June 2012, and on all customers, irrespective of whether they are the subject of legal intercept or not from June 2014.

Of course, LBS have many benefits for mobile consumers as well but these befits are far lesser as compared to privacy losses, telemarketing vices, spam communications and information misuses. We need a good and effective national telecom policy of India 2011 that can incorporate all these issue.

Cyber Law Due Diligence In India

Cyber Law Due Diligence and Cyber Security Diligence in India are two fields that are not taken seriously by Stakeholders and Intermediaries of India. Under the Information Technology Act 2000 (IT Act 2000) there are many “Due Diligence Requirements” that Banks, Internet Service Providers (ISPs), Search Engines, E-Commerce Portals, etc must fulfill. However, by and large these Due Diligence Requirements are seldom followed till some “Criminal Prosecution” takes place.

This “Mindset” needs to be changed in India. The Cyber Law of India has express provisions that provides for both Civil and Criminal Liabilities for “Non Observance of Due Diligence”. Once these provisions are attracted, the concerned Person or Institutions has to defend himself/itself in a Court of Law.

In India there is a lack of awareness about both Cyber Law of India as well Cyber Law Due Diligence Requirements in India. This is the main reason why Cyber Law Due Diligence has not been upto the requirements and expectations.

Of all stakeholders, Intermediaries must pay special attention to Cyber Law Due Diligence Requirements of India. Intermediaries like ISPs, Cyber Café owners, Web Hosting Service Providers, Blogging Platforms, etc have to take care of issues pertaining to Cyber Law, Cyber Security, Defamation Laws, Intellectual Property Rights (IPRs) Violations, etc.

A special care must be taken of the Online Copyright issues that are increasingly posing problems for Intermediaries. The liability of Internet Intermediaries for Copyright Violations is an issue that should be taken very seriously. With Laws like Digital Millennium Copyright Act (DMCA) and similar Laws, this liability has become very onerous.

“Take Down Notices” for Copyright Violations in the Cyberspace are very common these days. The moment a take Down Notice is communicated to the Intermediary, it becomes imperative on its behalf to take appropriate action. Further, the “Long Arm Jurisdiction” makes the applicability of National Law Extra Territorial. Even the Cyber Law of India has Extra Territorial Applicability.

Perry4Law and Perry4Law Techno Legal Base (PTLB) “Strongly Recommends” that all Stakeholders and Intermediaries must put in place Robust and Effective Due Diligence Mechanisms at their places. This would not only help them in preventing Crimes and Cyber Crimes but would also protect them from various Civil and Criminal Liabilities as well.

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 Façade 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.

White House Is Mulling Federal Cyber Security Law

United States (US) is a country that takes its cyber security very seriously. Recently US declared its international cyberspace strategy. US is also entering into bilateral cyber security agreements with various countries including India. Further, US is also advocating international cooperation for cyber security issues, though within the limits of existing international law framework and not through a dedicated international cyber security treaty.

Cyber attacks at the international level are getting worst and more sophisticated. Recently cyber attacks at Gmail, Citicorp, International Monetary Fund, etc have proved the point. Cyber security has become a necessity these days. Since cyber security is techno legal in nature, both laws and technology must be used to tackle cyber attacks.

India has a bad cyber law, missing cyber security and cyber warfare policy and absent cyber security laws. US on the other hand has good cyber laws and is now planning to have a federal cyber security law. The focus seems to be on developing both offensive and defensive cyber warfare capabilities. The department of homeland security may be entrusted with the job to secure US cyberspace.

In the Indian context, expecting cyber security law before a decade would be pre mature and over optimism. India must first make its cyber law potent and strong by repealing the existing one. But given the preference of e-surveillance over cyber security capabilities in India, the information technology act, 2000 may continue on the statute book despite it being a bad law having unconstitutional provisions.

Cyber security is an international concept and so must be the regulations governing the same. We need international harmonisation because a national approach in this regard would not be sufficed.

Entertainment And Media Industry Growth And Challenges In India

Entertainment and media industries are growing at a fast rate. India’s media and entertainment industry is projected to grow by 18 per cent over the next five years and is expected to become a 1.157 trillion industry by 2012. With this growth there are also increasing cases of disputes as well. A majority of these disputes pertain to intellectual property rights (IPRs) issues.

Similarly, online entertainment is the next big thing for studios and broadcasters. The biggest changes are expected in the Internet, television distribution, video games and casinos sectors.

Although this growth and development is happening in many countries yet a majority of this growth is expected from "BRIC" countries, i.e. Brazil, Russia, India and China. Undoubtedly, the huge markets of China and India are leading that growth. However, we need to consider the legal challenges, especially IPRs issues, in order to fully benefit from this growth of entertainment and media industry.

Indian media and entertainment industry may face the legal challenges of IPRs laws and cyber law of India. IPRs laws like copyright, trademark, etc may be frequently violated and occasionally invoked to redress IPRs violations of media and entertainment industry in India. Similarly, online IPRs issues like domain name disputes may also be agitated in the future. Similarly, media and entertainment industry must keep in mind the mandates like “due diligence” and other provisions of Information Technology Act, 2000.

Media and entertainment industry will also face technological challenges in future. For instance, the issues pertaining to digital preservation of entertainment industry products may assume significance in future. This requires a domain specific and techno-legal expertise that India may not currently possess. This situation requires a shift in the academic and professional education in India that needs to be suitably adopted keeping in mind the contemporary needs.

Spam Blogs Are Diminishing Quality Of Google

Spam Blogs are undermining the quality and reputation of Google. Take the example of the blog titled federal credit law firm. It has posted our copyrighted articles without our permission and in active violation of various civil, criminal and intellectual property rights of India. They are also breaching the express copyright notice of our Blog.

A quick search about the credentials of the people behind this Blog makes it clear that they are impersonating as a law firm and by posting our posts, without our permission, they are trying to give an impression that they are related to us somehow and somewhere, directly or indirectly.

We have no relation whatsoever with these people and we have lodged a DMCA complaint as well as spam complaint with Google. We are also contemplating taking civil and criminal actions against the offenders.

We have also requested Google to take the necessary administrative and legal action against these imposters. The deletion of the Blog(s) of these imposter is the least Google can do and Google must do backgrounds check of their activities on the search engine.

The cyber law of India prescribes various “due diligence requirements” on the part of Google. Since the matter has been actually brought to the knowledge of Google, the information technology act 2000 applies to it. The law imposes various liabilities upon Google and since we are located in India, Indian courts have jurisdiction over the matter.

We hope Google would do the needful as soon as possible to avoid any actual, constructive and vicarious liability.

Cyber Security Laws In India

The debate between self regulatory environment and a regulatory environment has always been a part of technology related laws. Some believe that issues like cyber law, cyber security, cyber forensics, etc must be regulated by the government whereas others believe that they should be left to individuals and organisations as self regulatory mechanisms.

In this present fragile and dangerous cyberspace it would not be advisable to leave everything upon self regulation mechanism. Issues like cyber law, cyber security, cyber forensics, etc deserve to be regulated at national and international level.

We have no legal framework or laws for cyber security in India. Of course, a few provisions have been incorporated in this regard in the information technology act, 2000 of India that is the sole cyber law of India. However, we need express and dedicated cyber security legislation in India as soon as possible.

Even the cyber law of India needs to be upgraded and strengthened. We need stringent provisions against cyber criminals and not the soft provisions that are presently incorporated in the Indian cyber law. By making the offences and cyber crimes “bailable” India has made its cyberspace a “free zone” and “safe heaven” for cyber criminals and cyber offenders.

It seems the problems of Indian cyber security are multi facet in nature. We do not have sufficient laws, we lack proper strategies and policies, and we do not care much about cyber security.

To start with we must formulate a pro active cyber security policy of India. Then we must proceed towards strengthening our existing cyber law and enacting an effective cyber security law of India. The sooner we consider these issues the better it would be for the cyber security of India.

Privacy Rights In India In The Information Age

We have no Dedicated Privacy Laws in India and Data Protection Laws in India. In fact, when it comes to respecting Privacy of Indian Citizens, Government of India tries its level best to avoid the same.

For instance, India has launched Projects like Aadhar, National Intelligence Grid (NATGRID), Crime and Criminal Tracking Network and Systems (CCTNS), National Counter Terrorism Centre (NCTC), Central Monitoring System (CMS), Centre for Communication Security Research and Monitoring (CCSRM), etc. None of them are governed by any Legal Framework and none of them are under Parliamentary Scrutiny.

Further, India is the only country of the World where Phone Tapping and Interceptions are done without a Court Warrant and by Executive Branch of the Constitution of India. Phone Tapping in India is “Unconstitutional” and the Parliament of India has not thought it fit to enact a “Constitutionally Sound Law” for Phone Tappings and Lawful Interceptions. Even the Supreme Court’s directions in PUCL case have proved futile and presently the Court is dealing with the issue once more.

Phone Tapping in India has been in controversies for long. Whether it is Illegal Phone Tapping by Private Individuals or Unaccountable Phone Tapping by Indian Government and its Agencies, Phone Tapping in India has never been smooth.

There is a blessing in disguise in Ratan Tata’s Petition before Supreme Court of India. This is a golden chance for the Supreme Court of India to analyse the “Implementation” of its decision in the PUCL case (Phone Tapping Case). The Supreme Court must “Widen” the scope of Privacy Rights in India not only in the context of Phone Tapping but in an “Overall Manner”. The Supreme Court must formulate and lay down the widest possible “Guidelines” regarding Privacy Protection in India as it has done in the Vishaka’s Case (Guidelines against Sexual Harassment). The Supreme Court has even said that with the Technological Advancement, Privacy is virtually disappearing.

On the front of Legal Framework as well we have no Dedicated and Constitutionally Sound Lawful Interception Law in India. The Indian Telegraph Act, 1885 and other similar Laws are not in “Conformity” with the Constitution of India, especially Fundamental Rights of Indians. Even the Home Ministry of India is considering enactment of a Lawful Interception Law in India.

However, what is more surprising is the fact that the Law Enforcement Agencies and the Intelligence Agencies that indulge in Unconstitutional E-Surveillance and Phone Tapping are themselves Governed by No Law. It is no surprise that the Central Bureau of India (CBI) is also not governed by any Law and it is operating in India Without any Law. It is only now that the Central Bureau of investigation act 2010 was drafted. Till now it is a mere draft and has not become an enforceable law. Even the Constitutional Validity of the National Investigation Agency Act 2008 is doubtful. Even the Draft Intelligence Services (Powers and Regulations) Bill, 2011 has been recently circulated in the Parliament of India. India must urgently formulate E-Surveillance Policy so that the E-Surveillance conducted by Intelligence Agencies and Law Enforcement Agencies of India can be regulated.

Surprisingly, India has no E-Surveillance Policy and Legal Framework. This is despite the fact that many Indian Projects are so S-surveillance Oriented that they cannot pass the scrutiny provisions of Indian Constitution. Of all these E-Surveillance Projects Aadhar Project of India or Unique Identification Project of India (UID Project of India) is the most “Dangerous Project” that should not be there at the very first place. It is based upon Deceit and Deception and both Indian Government and Unique Identification Authority of India (UIDAI) are Hiding Truth from Indians. There is no Legal Framework, no defined Policies and Guidelines and most importantly no Procedural and Civil Liberty Safeguards.

If this was not enough the sole Cyber Law of India (Information Technology Act 2000) was amended through the Information Technology Amendment Act 2008. The IT Act 2008 made the Cyber Law of India an “Unregulated and Unaccountable” piece of E-Surveillance Legislation. It is now wide open to misuses by Indian Government and its Agencies. Further, the IT Act 2008 also violated various provisions of Indian Constitution and hence is “Unconstitutional” as well. Ideally Cyber law Of India must be repealed as soon as possible.

If Parliament of India has abdicated its duties and Indian Judiciary is watching as a moot spectator, it becomes of paramount importance for Cabinet Committee on Security (CCS), Union Cabinet and Prime Minister’s Office (PMO) to “Disallow” all such Projects till proper Civil Liberty Safeguards and Legal Frameworks are at place.

Will The Second Worldwide Cyber Security Summit Of London Succeed

One of the major problems with Cyber Law and Cyber Security is that it is International in nature. Nations across the World are committing mistake by considering it a National Issue and giving it a National Treatment.

This is also the main reason why we have no Cyber Law in many countries and a poor Cyber Law in some countries like India. Since there is no “International Obligation” to prevent Cyber Crimes and to protect the Cyber Rights and Properties of its Citizens, a country may have little incentives to stress upon Strong Cyber Law and Robust Cyber Security.

Consider the example of India. The Information Technology Act, 2000 (IT Act 2000) is the sole Cyber Law of India. It has been amended through the Information Technology Amendment Act 2008 (IT Act 2008). The purpose of IT Act 2008 was neither to strengthen the Cyber Law of India not to cater the growing needs of Cyber Security in India. Its main purpose was to empower Indian Government and its Agencies to indulge in Unaccountable and Unconstitutional E-Surveillance and Eavesdropping. The truth is that Cyber Law of India needs urgent repeal.

Further we have no Cyber Security in India, Cyber Security Policies and Strategies in India and Cyber Security Laws in India. Even India is not a party to any International Convention or Treaty on Cyber Law. This explains why India is the only country that has made its Cyberspace a “Safe Heaven” for Cyber Criminals by making almost all the Cyber Crimes Bailable.

Even US has said that existing Laws are sufficient for meeting the Cyber Law and Cyber Security requirements at the International level. Now if both US and India are not serious about “International Harmonisation” of Cyber Law and Cyber Security Framework, they can be little benefited out of Conferences like the Second Worldwide Cyber Security Summit Of London.

US has recently revealed its International Strategy for Cyberspace. Further, an India US Cyber Security Cooperation has also been signed recently. However, these are “Piecemeal Efforts” as without “International Harmonisation” Cyber Crimes and Cyber Security Attacks cannot be effectively tackled. International Organisations must be more proactive towards fighting Cyber Crimes at International level. Time has come to abandon the “Bilateral Agreements” approach and adopt Multilateral and International Harmonisation approach.

Call Data Records Storage Policy Of India

India is not very good at law making. This is more so regarding technology related laws. For instance, consider the cyber law of India incorporated in the information technology act 2000 (IT Act 2000). IT Act 2000 is a classical example of bad drafting that has created more problems than solutions. This is the reason why experts have been suggesting that it should be repealed.

Similarly, we have no lawful interception law in India. Even phone tapping in India is not done in a constitutional manner and illegal phone tapping in India is under scrutiny. There is no e-surveillance policy in India. India does not bother to maintain a balance between national security and fundamental rights of Indians.

India has launched projects like Aadhar, National Intelligence Grid (NATGRID), Crime and Criminal Tracking Network and Systems (CCTNS), National Counter Terrorism Centre (NCTC), Central Monitoring System (CMS), Centre for Communication Security Research and Monitoring (CCSRM), etc. None of them are governed by any Legal Framework and none of them are under Parliamentary Scrutiny.

In this background, the news that Intelligence Bureau (IB) wants all mobile phone companies to store call data records, or details of all phone calls made by their customers, for a period of five years is really surprising. Indian law enforcement agencies and intelligence agencies are practically governed by no law. In fact, intelligence infrastructure of India is in big mess and India is not at all ready for projects like CCTNS, Natgrid, NCTC, etc.

It is no surprise that the central bureau of India (CBI) is also not governed by any law and it is operating in India without any law. It is only now that the central bureau of investigation act 2010 was drafted. Till now it is a mere draft and has not become an enforceable law. Even the constitutional validity of the national investigation agency act 2008 is doubtful. The recent circulation of the draft Intelligence Services (Powers and Regulations) Bill, 2011 (Draft Intelligence Bill 2011) in the Lok Sabha shows how our Parliament of India took the matter very casually.

We must start formulating the call data storage policy of India as soon as possible. The one suggested by IB is neither feasible nor desirable. Issues like increased costs to operators, privacy safeguards, legal framework requirements, etc cannot be ignored the way they have been ignored so far. Presently, an inter-ministerial group is looking into monitoring of both internet services and networks in the country. This matter may also be refereed to the same. However, in all probability, this demand would be refused.

Cyber Law Of India Should Be Repealed

Information and Communication Technology (ICT) has many aspects and Legal Framework is just one of them. This Legal Framework is taken care of by the Legal Enablement of ICT Systems. This Legal Enablement exercise must cover areas like Cyber Law, E-Governance, E-Commerce, Cyber Security, Cyber Forensics, etc.

If these are the essential components of Legal Enablement, we have no Legal Enablement of ICT Systems in India. Readers must not confuse it with lack of Cyber Law in India. Of course, the Information Technology Act, 2000 (IT Act 2000) is the Cyber Law of India.

But IT Act 2000 is more on the side of a collection of “Legal Jargon” than a Law as contemplated by the Constitution of India. With the Information Technology Amendment Act, 2008 (IT Act 2008), even this Legal Jargon has become a “Legal Nuisance”. The net effect of the IT Act 2008 was that Indian Cyber Law ceased to be a “Reasonable and Constitutional Law”.

I still remember the time when IT Act 2008 was proposed. I was, perhaps, the “Strongest Opposer” of that Amendment. I believed, and I still believe, that IT Act 2008 was a “Big Mockery” of Fundamental Rights of Indians. The IT Act 2008 shouted loud and clear that our Executive and Indian Government do not believe in the Constitution of India in general and Fundamental Rights in particular.

I was hopeful that my concerns and suggestions would be considered and Government would not proceed further with the IT Act, 2008 Amendments. The moment IT Act 2008 was “Notified”, I lost my Faith and Interest in the Cyber Law of India. This is the main reason why I did not give any Suggestions regarding the same subsequently, especially regarding the recent Rules suggested by Department of Information Technology (DIT).

Indian Cyber Law has become an E-Surveillance Instrumentality and it contains many “Unconstitutional Sections” that should not be there at the very first place. However, it does not matter much as Indians are well known for accepting whatever is forced upon them.

Now the only proper course that is left for Indian Government in general and Parliament of India in particular is to “Repeal” the Cyber Law of India and come up with a Decent, Sensible and Constitutional Law. It would be better if we have “Separate Laws” for Cyber Law, Cyber Security, Cyber Forensics, E-Governance, E-Commerce, etc. I hope good sense would prevail upon Indian Government and Parliament of India very soon.