Conflict Of Laws, Indian Cyberspace And Google

Cyberspace and Internet has made it possible to access single information from multiple jurisdictions. It is also possible that for a single transaction, multiple countries may exercise jurisdiction. In other words, the conflict of law in cyberspace is most complicated in nature and very difficult to resolve.

The validity of electronic legal notices in India and DMCA notice from India to other jurisdictions through e-mails is now well established. This makes it very easier to engage in legal proceedings from India to multiple jurisdictions. Similarly, Indian citizens and companies may also be involved at multiple jurisdictions in various civil and criminal proceedings.

As on date there is no globally acceptable international cyber law treaty.  In its own interest, India must stress upon an international cyber law treaty.  Till then India is free to apply its own laws even though it may result in conflict of laws.

Further, the position of US companies, India, conflict of laws and criminal liabilities has also become clear these days. Even in the case of cyber laws, US companies and courts are applying US standards and are not following Indian standards. This is a classic situation that is occurring due to conflict of laws. This is also the reason why an international cyber law treaty is required to bring harmonious application of cyber law principles.

Google is one company that can found itself deeply involved world over. Google incorporation’s Indian strategy to counter legal disputes must be formulated to avoid any inconvenience in India. Whether it is copyright violation, trademark violation, cyber law infringements or any similar legal issue, Google has been facing many regulatory and legal hurdles in India and US.

Perry4Law and Perry4Law Techno Legal Base (PTLB) believe that Google has been doing its level best to resolve disputes of various parties though many times disputes are not resolved as per desired expectations. However, Google needs to do something more to avoid future cyber litigations and disputes that are going to increase in India.

In order to avoid unnecessary troubles, Google must appoint a nodal officer in India. Further, Google must also keep in mind the privacy rights and laws in India, data protection laws of India, Internet intermediary liability in India and many more such issues.

NATO Requests Cyber Security Cooperation From India

In the absence of international cyber crimes treaty and international cyber security treaty, the next best thing is to have mutual cooperation between various countries. However, nothing can benefit more than an international cyber security cooperation that is urgently required.

In the absence of international harmonisation, the concept like cyber warfare still haunts the international community. This is also the main reason for blame game for various cyber attacks. However, mere suspicion or blame without actual authorship attribution for cyber attacks can produce only insignificantly beneficial results.

Recently India and US had signed a cyber security cooperation agreement. Now North Atlantic Treaty Organisation (NATO) has sought stronger cooperation with India to counter growing cyber threats, particularly emanating from China. Top NATO officials listed cyber security very high on the list of possible areas of cooperation, which included counter-terrorism, missile defence and anti-piracy operations.

"The cyber world does not recognise alignments. It only understands switches," said a top NATO official during a briefing to visiting Indian journalists, while making a strong pitch for joint efforts to combat cyber threats.

The NATO official made this remark in context of India's sensitivity against military alliances and its commitment to non-alignment. He suggested this could be a functional alignment in which both sides could give and take.

"India has an advanced cyber and IT industry and is very strong in cyber issues", he said, hinting that India and NATO can cooperate in this field. Democracies face challenges that are common. As democracies we can have a dialogue, as we deal with issues differently... We need to work together, because individually we cannot. It is better to deal with such issues commonly than deal with them individually."

He added that even though the threats were different, the nature of our responses could be similar, while seeing India as a strong partner with NATO on various issues. Though he did not mention any of India's neighbours from where the cyber attack challenge came, he hinted at China from where such threats had come in the recent past.

Seeking a partnership on matters relating to cyber security, the official pointed out that India and NATO had already reached at a tactical level understanding in dealing with piracy and shared a strategic level understanding in countering terrorism. Incidentally, in July this year some anonymous hackers had targeted NATO in a cyber attack and it decided recently to create a special task force to detect and respond to such attacks by beefing up its cyber defence network. While the United States has already signed a cyber security collaboration with India this July, the 28-nation political and military alliance is of the view that it can collaborate with it in protecting its cyber systems. NATO's 2010 Summit in Lisbon also recognised the growing threat of cyber attacks and sought to ally with partner nations to step its cyber security.

Cyber Security Must Be An International Issue

I personally believe that Cyber Security is an “International Issue” and not a “National One”. Those who believe it to be a National Issue are going to suffer a lot. Similarly, “Self Regulation” is not going to help us in the long run especially when countries all over the world are establishing Cyber Commands and Cyber Warfare Capabilities.

I also believe that despite all odds, we must try to formulate International Cyber Law Treaty and International Cyber Security Treaty. Without clearly demarcating the “Roles and Responsibilities” of Nations in the Cyberspace, International Mutual Cooperation in this regard is next to impossible.

United Nations has a bigger role to play in this regard. On the one hand it must formulate International Cyber Law and Cyber Security Treaty whereas on the other hand it must make these Treaties in conformity with the Human Rights in Cyberspace.

Developed Countries like US are not interested in Treaties on Cyber Law and Cyber Security except to the extent permitted by present International Legal Framework .This Framework was formulated at a different time and in a different context. It is high time to abandon the same in the larger interest of “International Community”.

The growing Cyber Attacks on Gmail, Citicorp, etc are happening because of this “Void” at the International level. This “Void” is also forcing the Countries to adopt their own Cyber Security safeguards. Australia has planned a Cyber Defence Strategy whereas European Union has set up a team of Cyber Crime Fighters. Countries are adopting this “National Approach” because there is no “International Framework” to deal with these issues.

The sooner we have International Frameworks for Cyber Law and Cyber Security related issue the better it would be for the interest of International Cyberspace Community at large.

International Cyber Security Treaty Is Required

The threats of Cyber Crimes and Cyber Security attacks are alarming these days. As more and more Critical Infrastructure is connected to Information and Communication Technology (ICT), a need has been felt to protect Critical ICT Infrastructures all over the World.

In a typical Cyber Attack by an Enemy State, the Critical Infrastructure is the first choice. Estonia witnessed this truth in the past. Further, in cases of Cyber Warfare and Cyber Terrorism also Critical Infrastructure is the chief target of Cyber Attack.

It is surprising that despite the seriousness of the issue we have no International Cyber Law Treaty and International Cyber Security Treaty. International Organisations and Institutions have still not taken Cyber Crimes and Cyber Security very seriously. Even Human Rights Protection in Cyberspace has not been taken by seriously by all concerned.

Organisations like United Nations, North Atlantic Treaty Organisation (NATO), etc have also not shown much interest in this regard in the past. Now these Organisations have taken notice of the nuisances of Cyberspace and they are gradually shifting their attentions to Cyber Crimes and Cyber Attacks.

International Organisations dealing with Human Rights, Cyber Law and Cyber Security must start thinking in this direction as issues like Cyber Warfare, Cyber Terrorism, Cyber Espionage, Cyber Crimes, E-Surveillance, Unlawful Interceptions, etc are “Transnational” in nature.

If different Countries would have different laws for these issues, it would be very difficult to truly enforce protective provisions against these menaces at National and International levels. It is high time for UN to seriously consider issues like International Cyber Law Treaty, International Cyber Security Treaty and Protection of Human Rights in Cyberspace.

US International Strategy For Cyberspace

Cyberspace issues have assumed great importance for countries around the world. This is the reason why issues like Cyber Law and Cyber Security have become an essential part of national as well as international ICT policies and strategies.

Although cyberspace is a boundary less place yet there is no internationally acceptable cyberspace treaty till now. Even the basic International Cyber Law Treaty, which can be uniformly accepted by all countries of the world, is missing. Till now India is not a part of this cyber law treaty.

United States (US) has recently revealed its international strategy for cyberspace to promote an open and secure information and communications infrastructure. US will work internationally to promote an open, interoperable, secure, and reliable information and communications infrastructure that supports international trade and commerce, strengthens international security, and fosters free expression and innovation, said US Secretary of State Hillary Clinton in remarks during the release of strategy at the State Department.

To achieve that goal, we will build and sustain an environment in which norms of responsible behavior guides states actions, sustains partnerships, and support the rule of law in cyberspace, she added.

What they are able to do in cyberspace, whether they can exchange ideas and opinions openly, freely explore the subjects of their choosing, stay safe from cyber criminals, and engage in professional and personal activities online, confident that doing so will remain private and secure, depends a great deal on the policies that we will adopt together, she added.

Of late, Civil Liberties of netizens are openly violated in the name of national security. We have already voiced our concerns in India in this regard. We have also dedicated an initiative titled Human Rights Protection in Cyberspace that has been providing Techno Legal ICT Policies and Strategies for protecting Civil Liberties in Cyberspace.

While US initiative is praiseworthy, it cannot succeed till it collaborates at international level. We may secure some aspects of cyberspace at national level but at international level it is an altogether different issue. But at least a good step has been taken by US and we welcome the same.