Indian Judiciary, Cyber Law and Websites Blocking

Recently a Lower Court was hearing a case where the complainant requested for an order to remove derogatory and obscene contents posted on various Social Networking websites. The Court ordered 21 Social Networking websites including Facebook, Microsoft, Google, Yahoo and YouTube to remove derogatory and obscene content by February 6, 2012.

The magistrate had summoned the accused companies to face trial for allegedly committing the offence punishable under section 292 (sale of obscene books etc), 293 (sale of obscene objects to young person etc) and 120-B (criminal conspiracy) of the IPC.

Recently another lower Court, in an ex-parte order, had directed the social networking websites to remove the objectionable content in the form photographs, videos or text which might hurt religious sentiments.

Indian Judiciary is trying to deal with Cyber Law issues in the absence of dedicated Social Media Laws in India. Although we have Information Technology Act 2000 (IT Act 2000) as the Cyber Law of India yet we have no dedicated Social Networking Laws in India. However, Cyber Law on Social Media and Networking Sites in India is still not adequate. It has, in fact, created more problems than solution.

The way Cyber Crimes are committed on Social Media websites in India, it has become a big nuisance for Indian Government to control the same. In fact, Indian Government asked Internet Intermediaries in India to pre screen users’ contents in India. Internet Intermediary Laws in India have been made very stringent and they are required to follow Cyber Law Due Diligence in India. Naturally, Cyber Due Diligence for Indian Companies cannot be ignored any more in India.

However, Indian Executive are bypassing the Parliament of India by formulating Rules instead of getting proper Laws passed by the Parliament. This has created a situation where the Cyber Law of India has become a big nuisance and this Cyber Law of India must be Repealed as soon as possible. Since the Cyber Law of India is incomplete and self contradictory, even Indian Judiciary is confused in many cases.

For instance, cases of ignorant Judicial Blocking of Websites in India have increased a lot where even genuine and law abiding websites are blocked in a blanket manner. In most of the cases, an ex parte order is issued that is seldom contested and the websites remain blocked for an unreasonable period of time.

If Blocking of Websites in India is done to give effect to Laws that are Constitutionally Sound, there is no problem. But if corporate houses start misusing the process of law to get useful, genuine and law abiding websites blocked in India, this is a serious miscarriage of justice in India.

In fact, this amounts to violation of human rights in cyberspace that is happening a lot in India these days. It is high time for Parliament of India to intervene in this regard and enact a Sound, Effective and Constitutionally Sound Cyber Law of India that covers all these issues appropriately.

E-Surveillance In India

E-Surveillance in India is a well known phenomenon. Whether it is telephone tapping or e-surveillance and electronic eavesdropping, Indian Government has been doing it for long and to the maximum possible extent. E-Surveillance in India is a death knell to privacy in India. The truth is that we have an over zealous and e-surveillance oriented Indian government.

We have no dedicated privacy laws, data protection laws, data privacy and security laws, etc in India. 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”.

Indian Government acquired itself Unregulated, Illegal and Unconstitutional E-Surveillance, Internet Censorship and Website Blocking powers with no Procedural Safeguards. The IT Act 2000 was amended through the Information Technology Amendment Act 2008 (IT Act 2008) and this amendment gave Unconstitutional and Illegal Powers to Indian Government and its Agencies. With the notification of the IT Act, 2008, the journey from Welfare State to a Police State was completed for India.

Instances of Website Blocking in India and Internet Censorship in India have increased a lot. What is more worrisome is the fact that E-Surveillance and Internet Censorship in India have increased without any Constitutional Lawful Interception Law in India. Lawful Interception Law in India is missing and Phone Tapping in India is done in an Unconstitutional manner.

The Cell Site Location Based E-Surveillance in India is also in contemplation. Cell Site Data Location Laws in India and Privacy issues are once again ignored in this case. However, of all E-Surveillance Project, nothing is worst than the Aadhar Project of India and its implementing Unique Identification Authority of India (UIDAI) headed by Nandan Nilekani.

E-Surveillance is a direct violation of Human Rights in Cyberspace in India. Human Rights in Cyberspace are Outlawed in India. Human Rights Protection in Cyberspace is urgently required. In fact, E-Surveillance Policy of India is needed so that E-Surveillance can be conducted in “Exceptional Cases and Constitutional Manner only”.

If Unconstitutional E-Surveillance and Phone Tapping continue in India, Self Defense in Indian Cyberspace is the only viable option. However, there are circumstances when self defense in cyberspace ceases to exist. Further self defense against State must be always “Legal and Constitutional”.

World over Law Enforcement Agencies have been advocating maintaining a balance between Civil Liberties and National Security Requirements. India must also follow the same practice. I hope Indian Government would do the needful very soon.

FBI Mulls Fighting Cyber Crimes While Respecting Civil Liberties

Human rights and civil liberties are well known world over. However, what is not very popular is the human rights protection in cyberspace. Governments and nations across the world are not very keen in protection of civil liberties in cyberspace. On the contrary, they are actively indulging in e-surveillance, e-eavesdropping and violation of various civil liberties and human rights in cyberspace and India is no exception to this rule.

Any government that respects human rights and civil liberties must maintain a balance between civil liberties, human rights and national security requirements. Further, a sound and constitutional e-surveillance policy is also required that clearly demarcates the nature, extent, procedure, etc of using e-surveillance for national security purposes.

The United Nations must protect human rights in cyberspace more vigorously. Presently UN has not taken enough initiatives in this regard. Of course, UN has declared that access to Internet is a human right but that is far from satisfactory.

If UN believes in human rights, it must start thinking towards its new form in this Internet era. There is no reason why human rights in cyberspace must be given any lesser importance than its traditional human rights. After all human rights like right to speech and expression, right to information, right to know, privacy rights, etc are similar in cyberspace. Rather violation of human rights in cyberspace is much easier and more frequent.

In a welcome move, a positive attitude in this regard has been shown by FBI Director Robert Mueller. He said that the FBI has to stay ahead of changing threats and new technology to keep the nation safe from terrorism, espionage and cyber-attacks, but must not get ahead of the rule of law and constitutional protections.

He opined that the cyber-intrusions, be they aimed either at stealing national security systems, military technology or the private sector's intellectual property, or at disrupting public services or the private economy, is costing the nation billions. But adhering to the rule of law remains the FBI's guiding principle, he said, and the bureau knows it'll be judged on how well it safeguards the liberties for which it is fighting.

This attitude and mentality must be adopted by all the law enforcement agencies of the world, including India. Till human rights in cyberspace are not respected and protected, the fight against cyber crimes would always remain biased and incomplete.

Indian National Privacy Policy Is Missing

Right to privacy bill of India 2011 has been suggested for many times in the year 2011. However, till now we do not have any conclusive draft in this regard that can be introduced in that parliament of India. In fact, we are still waiting for a final and conclusive proposed draft right to privacy bill 2011 of India that can be discussed in the parliament.

Privacy rights in India in the information age are too important to be ignored. Surprisingly, Indian government is deliberately keeping privacy protection at distance even if the constitution of India protects privacy rights of Indian citizens/persons.

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.

Lack of privacy law has already stalled Natgrid whereas other projects like unique identification project of India or Aadhar project of India are simply unconstitutional by their very existence and being violative of privacy rights as conferred under Indian constitution.

Right to privacy bill of India 2011, along with a dedicated data protection law in India is needed. We already have an anti consumer telemarketing policy of India that openly allows violation of consumers privacy and peace.

In short, the unwritten, but widely followed, national privacy policy of India is not only negative in nature but is also violative of various provisions of Indian constitution. Time has come to enact a good techno legal national privacy policy of India.

United Nations (UN), Cyber Laws And Human Rights In Cyberspace

The relationship of United Nations (UN) and Cyber Laws is a very Unique but Ignored area. Cyber Law is an aspect that is International in nature but it is always given a “National Treatment”. This is a “Big Fallacy” as Cyberspace recognises no boundary and by confining it to National Boundaries, we are just creating Chaos and Confusion.

What is more surprising is why UN has still not provided a “Harmonised Framework” for Cyber Law that is acceptable to all concerned. In the absence of “International Harmonisation”, Cyber Law has not witnessed the “Growth” that it deserved. In short, we have no Common Law of Cyberspace till now.

Another area that deserves the attention of UN pertains to Human Rights Protection in Cyberspace. Presently, UN and Human Rights in Cyberspace are two separate issues although they need to be one. Similarly, we have no International Cyber Law Treaty, International Cyber Security Treaty, International Cooperation in Techno Legal fields, etc.

UN is very slow in protecting Human Rights in Cyberspace and it must now expedite this process of protection. Although UN has declared that Access to Internet is a Human Right yet this can be considered to be a beginning at the most. UN has still to cover a “Long Gap” in this regard.

Public Legal Awareness regarding International Law in general and Cyber Law in particular is also required to be spread. This can be achieved through the mode of Online Courses and Trainings through E-Learning methodology.

UN must use Public Private Partnership (PPP) Model to associate with National and International Institutions and Individual Experts in this regard. The sooner this is done the better it would be for the larger benefit of Cyberspace and Netizens.

National Security And Fundamental Rights Must Be Reconciled

This is my latest “Communication” with the Government of India where I have stressed upon the need to have “Reconciliation” between National Security needs of India on the one hand and Protection of Fundamental Rights on the other. I hope Indian Government would “Favourably” consider this request of mine.

National Security, Civil Liberties and Constitutional Aspirations are on “Cross Roads” these days. Projects like Aadhar/UID, National Intelligence Grid (NATGRID), Crime and Criminal Tracking and Systems (CCTNS), Central Monitoring System (CMS), etc are required for National Security but Civil Liberties and Fundamental Rights are also of Prime Importance.

Enacting suitable Techno Legal Laws and Regulations in fields like Cyber Law, Cyber Security, Cyber Forensics, etc is of Paramount Importance. However, these fields are emerging World over and India need to streamline its Techno Legal Jurisprudence.

We have been in the process of “Compiling” and “Formulating” a Techno Legal Framework for India. To start with, we have already written on the topic of Cyber Forensics and Compiled it in the form of a Book.

The First Edition of the Book has been written in September 2010 and we are working towards not only “Improving and Upgrading” the same but also coming up with the Second Edition of the same very soon. The Book carries possible useful information in the field of Cyber Forensics in India and includes International Best Practices in this field.

We are also working in the direction of Compiling Techno Legal Literature in the Fields like Cyber Law, Cyber Security, Cyber Terrorism, Cyber Espionage, Cyber Warfare, etc. We have been trying to “Reconcile” National Security with Fundamental Rights of Indian so that Projects like Aadhar/UID, NATGRID, CCTNS, CMS, can be effectively and “Constitutionally” launched in India.

We look forward for your Active and Constructive Cooperation and Support in this regard. We would be glad to provide you with a “Copy” of our Book on Cyber Forensics somewhere in the month of June/July 2011.

If interested, kindly send us a request in this regard on the official Letterhead of your concerned Ministry/Department.

We look forward for a Cooperative and Collaborative Alliance and Public Private Partnership (PPP) in this regard.

Phone Tapping In India Is Not Constitutionally Performed

It is both ironic and sad that laws used by British Government against Indians are used by our own Indian Government against its own Citizens. There are many “Draconian Colonial Laws” that were kept intact by Indian Government even if they go against the very Philosophy and Spirit of Indian Constitution. This is because these Outdated and Unconstitutional Laws are well serving the “Purposes” of Indian Government.

One of such laws that require an immediate repeal is the Indian Telegraph Act, 1885. It is the most abused law of India when it comes to Phone Tapping and Illegal Surveillance. The fact and truth is that India does not have a Legal and Constitutionally Sound Phone Tapping and E-Surveillance Law.

Even after the Supreme Court of India declared Right to Privacy a part of Article 21 of Indian Constitution, Indian Government kept at bay the requirement to protect Privacy Rights of its Citizens. Instead, it preferred to impose Projects and Authorities without any Legal Framework. This is nothing but a “Complete Failure” of “Parliamentary Democracy” in India. I wonder whether India has Separation of Powers anymore.

So much so that even after the Supreme Court’s Judgment in PUCL case prescribed minimum “Safeguards” against Illegal Phone Tapping, nothing has changed. The “Safeguards” provided by Supreme Court were “Sub Minimum” and even those Safeguards are not followed in India.

Naturally, even Private Individuals also jumped upon Illegal Phone Tapping and E-Surveillance business and they are openly operating in India. This is bound to happen because when even the Government is not “Fair”, it cannot expect its Citizens to be honest and upright.

Till now it is clear that India would not provide any sort of Privacy Rights to its Citizens and would not protect their crucial Data through a dedicated and strong Data Protection Law in India. The only safeguard that is available against Indian Government and Private Individuals from violating our Privacy Rights is to use “Self Defence Measures”.

This is the reason why I believe that Google, Skype, Blackberry, etc must not succumb to the pressures of Indian Government. They must strongly refuse to share any information regarding its users unless and until there is a “Court Order” in this regard.

Time has come for the Supreme Court of India to stop Indian Executive from Hijacking the Constitution of India, by bypassing both Parliament of India and Indian Judiciary. Since the matter is pending before Supreme Court, it can lay down “Stringent Requirements” before Phone Tapping and E-Surveillance can be conducted in India.