HUMAN RIGHTS PROTECTION IN CYBERSPACE

National Counter Terrorism Centre (NCTC) Of India Got Cabinet Approval

2012-01-13T00:44:00.000-08:00

The National Counter Terrorism Centre (NCTC) of India is a “Dream Project” of Home Minister Mr. P. Chidambaram. The NCTC Project of India is also very “Significant” for the National Security of India. Terrorist Attacks against India are on increase and we need a “Specilaised Institution” like NCTC to provide Valuable Intelligence Inputs and Leads.

According to Media Reports, the Central Government's Cabinet Committee on Security (CCS) on Thursday cleared the proposal to set up NCTC. It is expected that the NCTC may get Cabinet Approval this month. It is also expected that NCTC would be an expanded form of the Multi-Agency-centre (MAC), the Nodal Intelligence Cell under the Union Home Ministry.

NCTC would be the “Central Body” that would include, among others, the Intelligence Bureau (IB)’s MAC, Joint Intelligence Committee, National Technical Research Organisation (NTRO) and the National Security Guard. NCTC would be supported by National Intelligence Grid (NATGRID) Project, Crime and Criminal Tracking Network and System (CCTNS), etc.

Projects like NCTC, NATGRID, CCTNS, etc are Crucial for National Security of India. However, they must be “Properly Planned and Executed”. These Projects should not face the same “Fate” that the Aadhar Project of India has faced.

These Projects must be implemented with Proper Planning and Foresight. Further, a “Special Care” must be taken get “Parliamentary Oversight” for these Projects before they are made “Operational”. These Projects cannot serve their purpose if they do not defend Civil Liberties and ensure Procedural Safeguards for Protection of Human Rights in Cyberspace through a Legal Framework. For instance, Intelligence Gathering should not violate Privacy Rights of Indians.

The NCTC would be reporting to the Union Home Minister and it has been reported that it would be “Accountable to the Parliament”. Presently Intelligence Agencies of India are not governed by any Legal Framework. Even the draft Intelligence Services (Powers and Regulations) Bill 2011 has failed to become an applicable law. Strangely, even the proposed Central Bureau of Investigation Act 2010 failed to become an applicable law.

As on date, both Intelligence Agencies of India and CBI are working in India without “Constitutional Laws” governing their operations. This is a “Serious Issue” that Indian Government must resolves as soon as possible. Even for the successful operations of Projects like NCTC, NATGRID, CCTNS, such “Parliamentary Oversight” is essential. I hope Mr. P. Chidambaram would consider these issues on priority basis.

Indian Judiciary, Cyber Law and Websites Blocking

2011-12-25T02:28:00.000-08:00

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

2011-11-24T23:15:00.000-08:00

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

2011-11-18T01:09:00.000-08:00

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

2011-10-08T00:59:00.000-07:00

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

2011-09-21T01:12:00.000-07:00

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

2011-02-26T03:50:00.000-08:00

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

2011-01-03T22:15:00.000-08:00

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.

Do We Have Separation Of Powers In India Anymore?

2010-12-22T02:04:00.000-08:00

India is perhaps the only country of the World whose Agencies and Instrumentalities are working without any law supporting their existence. Whether it is the Aadhar Project/ UID Project, Unique Identification Authority of India (UIDAI), Intelligence and Law Enforcement Agencies of India, etc none of them are “Practically Governed” by any Legal Framework and Parliamentary Scrutiny.

Surprisingly, India has a long and unpardonable history of clinging to antique and colonial laws like Indian Telegraph Act. It is beyond any reasonable doubt that laws like Telegraph Act do not serve the present purposes of lawful interception in India.

In the absence of a Constitutionally Valid Lawful Interception Law in India, companies like Google, Skype and Blackberry can legally refuse to part with any information regarding its users citing absence of a lawful interception law on the one hand and protecting its users’ Privacy on the other hand.

Unfortunately, Blackberry’s maker Research in Motion (RIM) has succumbed to Indian Government’s pressures and has openly shown its intentions to violate the Privacy Rights of its users in a “Cloud Computing Environment”. This also proves that India is still not ready for a cloud computing environment. Fortunately, Google has rightly rejected Indian Government’s possible demand well in advance citing privacy reasons.

India is deliberately escaping from enacting suitable Privacy Laws and Data Protection Laws. Further, since the Colonial Laws like Telegraph Act serve the purpose of Indian Government, it is abstaining from enacting suitable and timely Legislations.

However, of all Illegal and Unconstitutional Projects nothing can match the Violating Limits of Aadhar Project and UDIAI. With “Biometric Information” as its base and core components, Indian residents have virtually surrendered their Privacy Rights in the hands of a Regime and Government that cannot be trusted at all in this regard. That is why there is an urgent need of Robust, Effective and Constitutionally Sound Legal Framework in this regard.

In these circumstances it can be safely said that Indian Parliament is slightly better than a non operational one. It does not conduct any relevant business these days and even if it does not operate at all, not much difference would be there. Are Indian Parliamentarians listening or has Indian Constitution been “Bypassed” for surrendering all its “Constitutional Powers” to its Executive Branch and Bureaucrats? Perhaps, the concept of “Separation of Power” no longer exists under Indian Constitution.

Security And National Interest: What A Joke By Vodafone India

2010-12-13T22:11:00.000-08:00

At last I got some insight about the “Reverification Drive” of Department of Telecommunication (DOT) India and mobile service providers like Vodafone. A person named Rahul Sindwani of Customer Care, Vodafone, finally contacted me to explain the rationale for unilateral disconnection exercise of mobile services of Vodafone India in the name of “Reverification”.

He informed that as per DOT guidelines they have instructions to disconnect all cellular connections, whose documentation is found non-complaint by the “authorities”. Now this is interesting on at least two counts. First, Vodafone has passed the buck upon DOT India for this whole mess. Secondly, who are these “Authorities” that see whether the documents in question are complaint or non complaint? Is it DOT, India or the Security and Intelligence Agencies?

It also raise an important question that if complete and proper documents in question have already been submitted at the time of getting connection, why Vodafone/DOT are again asking for the same? Without knowing who checked our documents and what deficiencies, if any, have been found by them, it is very difficult to believe the argument of DOT/Vodafone regarding lack of proper documentation. Perhaps, it is high time for a Right to Information Application (RTI Application) against DOT/Vodafone.

Vodafone also played the classic card of “Security” and “Public Interest” for this whole mess. Where is “Public Interest” in harassing law abiding and honest citizens and what “Security” purposes it is going to serve?

Meanwhile, I have once again communicated with Vodafone and asked for further details like the rationale for resubmission of documents, by whom my documents have been analysed, who are the authorities that analyses the documents, how would Vodafone indemnify the users whose documents have been misused and why should not a Consumer Case and Civil Proceeding be started against Vodafone.

I hope I would get some good, concrete and logical answers this time and not another eye wash response by Vodafone. Of course, the option of filing an RTI Application to elicit truth is always available to me.

Analysis Of Right to Information Rules, 2010

2010-12-13T01:08:00.000-08:00

This is my Opinion regarding the Right to Information Rules, 2010:

(1) Request for Information U/S 6(1) Of Act: A person, who desires to obtain any information from a public authority under sub-section (1) of Section 6 of the Act, shall pay an application fee of Rs. 10/- to the public authority alongwith the application;

Provided that the request for information shall relate only to one subject matter and shall be limited to two hundred and fifty words, excluding the address of the Central Public Information Officer and the address of the applicant.

Opinion: In my opinion this is a retrograde step in a backward direction. Firstly, the Proviso is limiting information seeking to a “Single Subject” only. At times subjects for which information is required are so interrelated and diverse in nature that it is neither feasible nor possible to limit them to a single category.

Similarly, the limiting of the number of words to 250 is also “Not Desirable” as it would compromise the nature of information sought. Of course, an applicant cannot ask for information in hundreds of pages but at times it becomes pertinent to ask information in many pages.

Suggestion: The Proviso is a serious “Embargo” upon information seeking and should be reconsidered.

(2) Fees for providing information: Fee for providing information under Section 4(4), Section 7 (1) and Section 7 (5), as the case may be, shall be charged at the following rates:

(a) rupees two for each page in A-3 size or smaller size paper;
(b) actual cost or price of a copy in larger size paper;
(c ) actual cost or price for samples or models;
(d) for inspection of records, no fee for the first hour; and fee of rupees five for each subsequent hour (or fraction thereof);
(e) for information provided in diskette or floppy, rupees fifty per diskette or floppy;
(f) for information provided in printed form, at the price fixed for such publication or rupees two per page of photocopy for extracts from the publication;
(g) the actual amount spent by public authority on hiring a machine or any other equipment, if any, to supply information;
(h) Postal charges, in excess of rupees ten, if any, involved in supply of information.

Provided that no Fee shall be charged under this rule from the persons who are below poverty line as may be determined by respective State Governments.

Opinion: Charging of fees on the basis of actual amount spent by a public authority on hiring a machine or any other equipment, if any, to supply information is “Not Rationale”. Every Public Authority is supposed to have “Complete Infrastructure” like Printers, Scanners, Photo Copiers, etc at its place. It would be absurd to suggest that Indian Government would not or have not yet provided the required Infrastructure to these Public Authorities.

Suggestion: This Clause need to be removed from the Rules.

Opinion: For inspection of records, no fee for the first hour; and fee of rupees five for each subsequent hour (or fraction thereof). This is a good provision and it should be implemented in “True Letter and Spirit”. In many cases there is no need of any documents or the quantity of documents can be reduced to a considerable amount, if proper inspection is allowed. This would also reduce the burden upon Public Authorities.

Opinion: The Proviso also specifies that no Fee shall be charged under this rule from the persons who are below poverty line as may be determined by respective State Governments. This is a “Very Sensible” provision and is a “Welcome Addition”.

(3) Payment of fee: Fee under these rules shall be paid by way of cash, demand draft or bankers cheque or Indian Postal Order, etc to relevant officer of the public authority. Even electronic means are also available if facility for receiving fee through electronic means is available with the public authority.

Provided that a public authority may accept fee by any other mode of payment.

Opinion: The “Modes of Payment” of fees are good to effectuated information seeking by the Applicants. Even electronic payment facility has been prescribed if the Public Authority has an infrastructure for the same. The best part of this arrangement is that the Public authority may accept fee by any other mode of payment. This is an “Enabling Provision” and Welcome Step.

(4) Admission of Appeals: (1) On receipt of an appeal, if the Commission is satisfied that it is a fit case for consideration, it may admit such appeal; but where the Commission is not so satisfied, it may, after giving an opportunity to the appellant of being heard and after recording its reasons, reject the appeal.

(2) The Commission shall not admit an appeal unless it is satisfied that the appellant had availed of all the remedies available to him under the Act.

(3) For the purposes of sub-rule (2), a person shall be deemed to have availed of all the remedies available to him under the Act:

(a) if he had filed an appeal before the First Appellate Authority and the First Appellate Authority or any other person competent to pass order on such appeal had made a final order on the appeal; or

(b) where no final order has been made by the First Appellate Authority with regard to the appeal preferred, and a period of 45 days from the date on which such appeal was preferred has expired.

Opinion: This Rule needs to be “Reconsidered” especially Sub Rule (2). It seems to be in conflict with other Provisions and Powers of the Central Information Commission under the Act.

(5) Procedure for Deciding Appeals: The Commission, while deciding an appeal may,

(i) receive oral or written evidence on oath or on affidavit from concerned or interested person;
(ii) peruse or inspect documents, public records or copies thereof;
(iii) inquire through authorized officer further details or facts;
(iv) hear Central Public Information Officer, Central Assistant Public Information Officer or the First Appellate Authority, or such person against whose action the appeal is made, as the case may be;
(v) hear third party; and
(vi) receive evidence on affidavits from Central Public Information Officer, Central Assistant Public Information Officer, First Appellate Authority and such person against whom the appeal lies or the third party.

Opinion: This is a Good Rule and it must be incorporated.

(6) Amendment or withdrawal of an Appeal: The Commission may allow a prayer for any amendment or withdrawal of an Appeal during the course of hearing, if such a prayer is made by the Appellant on an application made in writing.

Provided that such request shall not be entertained by the Commission after the matter has been finally heard or a decision or order has been pronounced by the Commission.

Opinion: This is a Good Rule and it must be incorporated.

(7) Personal presence of the appellant before the Commission: (1) The appellant shall be informed of the date of hearing at least seven clear days before that date.

(2) The appellant may, at his discretion, be present in person or through his duly authorized representative or, if permitted by the commission, through video conferencing, at the time of hearing of the appeal by the Commission.

(3) Where the Commission is satisfied that the circumstances exist due to which the appellant is being prevented from attending the hearing of the Commission, then, the Commission may afford the appellant another opportunity of being heard before a final decision is taken or take any other appropriate action as it may deem fit.

Opinion: This is a Good Rule expecially the use of Video Conferencing Facility by the Commission. Effective use of E-Governance is presently missing from RTI Act, 2005 and under other Laws and it is high time for the Government of India to make it “Mandatory”

(8) Service of notice by Commission: Notice by name to be issued by the Commission may be served in any of the following modes, namely:-
(i) service by the party itself;
(ii) by hand delivery (dasti) through Process Server;
(iii) by registered post with acknowledgement due;
(iv) by electronic mail in case electronic address is available.

Opinion: Use of E-Mail as a Mode of Service of Notice by Commission is a welcome step and good provision.

(9) Compliance of the order of the Commission: The head of a public authority shall ensure that an order passed by the Commission, unless varied or stayed by a validly passed order, is complied with and compliance report filed with the Commission within the time limit specified by the Commission, or within 60 days if no such limit is specified.

Opinion: This is a Good Rule and it must be incorporated.

CORE RECOMMENDATION: Both RTI Act 2005 and Rules made thereunder must be “Thoroughly Amended”. The RTI Act 2005 needs many “Pro Active Amendments” that would make it more Effective, Transparent and Accountable. The RTI Act, 2005 also needs to be “Reconciled” with other Laws.

Supreme Court Of India Must Expand Privacy Rights In India

2010-12-02T08:11:00.000-08:00

Enactment of suitable Privacy Laws in India is long overdue. However, the Government of India has not considered this issue to be important enough.This is so even if Projects like Aadhar, NATGRID, CCTNS, etc may be declared to be “Unconstitutional” by Constitutional Courts of India. The matter is pending before the Supreme Court and this occasion can be utilised by it for prescribing “Stringent and Suitable” Privacy Rights Guidelines.

Few things related to 2G Scam have happened in the right perspective so far at the Supreme Court of India. The questioning of Supreme Court regarding inaction on the part of Prime Minister’s Office (PMO) India, giving due credit to the CAG’s Report, accepting Ratan Tata’s Writ Petition regarding Privacy Rights Violation, etc are some of them.

The latest to add to this list is denial of Supreme Court to issue any “Interim Relief” in the Tata’s Writ Petition and issuing of notices to open and outlook magazines which had published contents of the alleged taped conversation.

Tata had sought an interim relief for restraining the respondents from further publication of recorded conversations between him and Radia. He also sought an Injunction that would prevent the publishing and circulation of the contents of these conversations in “Any Form”. However, is it possible and does it make any difference at this stage?

The answer seems to be in Negative although Tata may not like the same. This is because contents of conversations are already out in “Public Domain” and on multiple traditional and electronic mediums and platforms. It is not possible for the Supreme Court of India or even for the Government of India to do much at this stage and in this regard.

However, one aspect has skipped the attention of all parties to the Writ Petition and even of the Supreme Court. The sole purpose of Ratan Tata seems to be to protect “His Privacy Rights” by preventing the “Disclosure and Circulation” of conversation or communication recorded through “Surveillance Methods” of State machinery. At this stage this concern and demand seems to be “Infructuous” and “Academic Purpose” only. This is because even if Supreme Court of India provides the “Relief” that Tata is claiming “In Toto”, the “Contents” of the conversation would remain on Internet and this is next to impossible to remove.

There is a blessing in disguise in Tata’s Petition. 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).

I hope this Writ Petition by Tata would come as a rescue of Fundamental Rights in general and Right to Privacy of Indians in particular. The only question that remains to be seen is will the Supreme Court of India protect Privacy Rights of Indians at large? I am optimistic and would be glad to see this outcome.

Challenges Before National Intelligence Grid Of India

2010-11-05T04:06:00.001-07:00

National Intelligence Grid (NATGRID) is one of the most desirable Projects of India. It is essential to safeguard the National Security of India on the one hand and Internal Security of India on the other. It is also required to “Modernise” the Law enforcement Machinery of India. However, there are many challenges before the NATGRID Project before it can be finally implemented in India.

The first and foremost challenge before the Project is to provide for adequate safeguards and protections against its misuse. India has already committed a blunder by starting the Aadhar Project of India without any legal framework and necessary safeguards. As a result the Aadhar Project has not been successful at all and is facing severe criticism and opposition.

Similar opposition were raised against NATGRID Project as well and the Cabinet Committee on Security (CCS) of India asked for further “Safeguards” before the NATGRID Project can be launched in India. However, till the month of November 2010, no such safeguards have been put at place by the Home Ministry of India. This can be a serious problem for the successful implementation of the Project.

The Law enforcement Agencies and Intelligence Agencies of India are also practically governed by no law. The outdated colonial laws still govern the functioning of these agencies. Similarly, there are no privacy laws and data protection laws in India. There is an urgent need to formulate effective privacy and data protection laws in India.

Another area of concern is the growing use of e-surveillance in India. In order to effectuate its e-surveillance exercises, India has manipulated the Information Technology Act, 2000 (IT Act 2000), the sole cyber law of India, through the Information Technology Amendment Act, 2008 (IT Amendment Act 2008). There are no “Guidelines” or “Procedural Safeguards” subject to which the “Internet Censorship” and “E-Surveillance Powers” can be exercised by Indian Government and its Agencies and Instrumentalities under the cyber law of India. In fact, the present Encryption Norms and Regulations in India allow only an “Outlaw” to enjoy Human Rights in Indian Cyberspace.

Before NATGRID Project is implemented in India, it is very imperative to enact a “Lawful Interception Law”. In the absence of proper laws that respect and Safeguards and Fundamental Rights enshrined under the Constitution of India, the exercise of “Self Defence” against Indian Government and its agencies and Instrumentalities seems to be the only choice.

If Home Minister P. Chidambaram wants the Projects like NATGRID, Crime and Criminal Tracking Network and System (CCTNS), etc to succeed, he must not take a short cut and must not avoid the “Constitutional Scrutiny”. Rather he must ensure proper “Safeguards” before such Projects are launched in India.

Self Defence In Indian Cyberspace

2010-10-18T06:14:00.000-07:00

In the present e-surveillance scenario of India, at least two things are very clear. First is that the Government of India is not going to enact any law(s) regarding Data Protection and Privacy Protection in India. This is because the moment it enacts these laws, it cannot engage in illegal and “Unconstitutional” e-surveillance activities as it has been doing presently. The second is that it would further increase its e-surveillance activities in the near future with Projects like Aadhar/UID Project, NATGRID, CCTNS, etc.

Now the service providers like ISPs, Telecom companies, Google/Gmail, Skype, Blackberry, etc have to either accept the Indian Government’s demands or they must cease to carry on their operations in India. Obviously, all of them have accepted the first choice and are “Cooperating” with Indian Government.

India does not have any “Lawful Interception Law”. All it has is the “Unconstitutional” provisions of the Information Technology Act 2000 (through IT Act 2008 Amendments). Through these amendments, the Cyber Law of India has been made an “Instrumentality” of e-surveillance in India. There are no procedural safeguards that can prevent the illegal and unconstitutional e-surveillance activities in India.

The only recourse for Indians in such circumstances is to use “Self Defence” and prevent the illegal and unconstitutional encroachment upon their “Civil Liberties” like Right to Privacy. You can do the following:

(1) Use disposable e-mails to avoid e-mail surveillance,

(2) Use Safeguards like TOR against illegal Internet eavesdropping and sniffing

(3) Use TOR for instant messaging (IM) and mobile phones for private and secure conversations,

(4) For Blackberry users and those believing in a good combination of Privacy and Security, use Pretty Good Privacy (PGP) along with any good smart phone. This way you can have a better and e-surveillance free mobile infrastructure than the future controversial Blackberry phones.

(5) Use Enigmail for encrypted e-mails,

(6) For card holders, do not give your “Biometric Details” to Unique Identification Authority of India (UIDAI). This way your private and crucial details cannot be used for “Unconstitutional Projects Databases” like NATGRID, AADHAR, CCTNS, etc.

These are just “Basic Level Safeguards” and much more are possible and would be discussed subsequently.

Protecting Civil Liberties In Indian Cyberspace

2010-10-06T00:48:00.000-07:00

The crucial balance and equilibrium proposed by the founding fathers of Indian Constitution has been disturbed by the Executive branch of Indian Constitution. The Executive branch has totally hijacked the Parliamentary Role and is implementing Projects having “Constitutional Implications” without any “Parliamentary Approval”.

If Projects that violate the basic Human Rights and Civil Liberties like Right to Privacy are implemented without any Law and Parliamentary approval, the role of Parliament in Indian Constitution is highly debatable.

For instance, purely E-Surveillance Projects like Aadhar/UID Project, NATGRID, CCTNS, etc have far reaching and adverse consequences for the Fundamental Rights of Indians. Still the Executive did not find it fit to enact suitable laws and provide adequate safeguards against the same.

Further, “Unconstitutional Authorities” like the Unique Identification Authority of India (UIDAI), etc are also operating without any accountability, transparency and legal authority. Further, there is also no “Parliamentary Scrutiny” of these authorities.

With the passing of the Information Technology Amendment Act 2008 (IT Act 2008), the Cyber Law of India has been made an instrumentality of illegal, unaccountable and Unconstitutional e-surveillance in India. With massive phone taping and e-surveillance history of India, conferring such a power in the hands of Executive and its Agencies is really troublesome. In this scenario, only “Outlaws” would have Human Rights in Indian Cyberspace.

India also does not have any dedicated Privacy Law and Data Protection Law. With the proposed use of Cloud Computing and Software as a Service (SaaS) by Indian Government, more “Privacy Violations” issues would arise in future. This is more so when Indian Government cannot even curb the highly nuisance creating Telemarketing vice in India.

I firmly believe that Indian Government is not going to change its stand and we have to preserve and protect our Civil Liberties ourselves. That is why I dedicated a resource titled “Protecting Human Rights in Cyberspace” (PHRIC) to suggest “Techno-Legal Measure” in this regard.

Now with this series, I would discuss the available “Techno-Legal Measures” to defeat illegal and Unconstitutional e-surveillance by Governmental Authorities and Agencies as well as by Private Individuals. Of course, these measures are available against illegal and unconstitutional acts or omissions alone and are not available against “Lawful Interceptions” and other e-surveillance activities authorised by a proper Court of Law. A background articles for safeguarding against illegal eavesdropping and sniffing has already been provided by me and more in this regard would be discussed subsequently.

Aadhar Project And UIDAI Must Be Scrapped

2010-09-27T23:22:00.000-07:00

Till now it is absolutely clear that the proposed Aadhar Project of India or Unique Identification Project of India (UID Project of India) has no developmental or welfare oriented interests and intentions. The proposed Aadhar Project aims to benefit few selected IT Companies by allotting them the tenders and contracts to implement the Aadhar Project.

This seems to be another “Backdoor Method” of illegally distributing hard earned Public Money through governmental machinery. Surprisingly the opposition parties like BJP are playing deaf and dumb game and are silent on crucial issues like corruption, misappropriation of public money, violation of civil liberties like privacy rights of Indians, illegal and excessive e-surveillance, etc.

In a democratic and Parliamentary form of Government, opposition plays a pro active and constructive role. BJP and similar parties have drastically failed to fulfill this role and the Congress Party is having a clear and unfettered say for illegal and Unconstitutional Projects like Aadhar, NATGRID, CCTNS, etc.

The Nandan Nilekani led Unique Identification Authority of India (UIDAI) and Aadhar Project must be scrapped immediately till proper laws and adequate safeguards are at place. India does not have either Privacy Law or Data Protection Law.

If the Government of India keeps on imposing these sorts of illegal and Unconstitutional Projects upon us, we must take immediate steps to make them redundant. Let us start by saying no to the UID Cards and restrain from giving our Biometric Details.

Congress Government Of India Is Taking Anti National Steps

2010-09-25T09:06:00.000-07:00

The Commonwealth Games debacle is not yet over and the Congress led government is about to commit another blunder. It seems Congress has lost all its control over its Ministers who are blatantly engaging in corrupt practices and maladministration.

Firstly, it was the spectrum scam now it is the commonwealth organizing committee that is clearly and unambiguously involved in corrupt practices.

Prime Minister Manmohan Singh and Sonia Gandhi are looking helplessly, even if they are not involved in these corrupt practices that have brought great disgrace to India. Surprisingly, they have not learnt any lesson from their past mistakes and inactions. Now the duo of Manmohan Singh and Sonia Gandhi are extending their support for another Anti National Project named as Aadhar Project of India or UID Project of India.

Both Aadhar Project and UIDAI are unconstitutional project and unconstitutional authority. Neither the Aadhar Project nor the UIDAI are governed by any Legal Framework nor are they under Parliamentary Scrutiny.

The Union Cabinet has casually granted its approval to the National Identification Authority of India Bill 2010 (NIDAI Bill 2010) with great disregard to the Civil liberties of Indians, especially Privacy Rights of Indians. Even after this approval, both Aadhar Project and UIDAI are still “Unconstitutional and Illegal”.

There should not be any action upon UID Cards and Aadhar Project till proper safeguards are at place. It seems the duo of Manmohan Singh and Sonia Gandhi has not considered this aspect. The “Constitutional Scheme” of Indian Constitution has kept the functions of Legislature, Executive and Judiciary separate. Yet the Executive are encroaching upon the regime of Indian Parliament and are implementing Projects and wasting crores of public money without “Parliamentary Approval”.

Under the garb of welfare scheme and development all sorts of irregularities and illegalities are given full support by the Congress led government. It is high time for the Congress to change the “Anti National Mindset” that is seriously damaging the reputation of India and faith among Indian masses.

Unconstitutional Identification Authority Of India

2010-09-20T09:47:00.000-07:00

No time in the history of India, the civil liberties and human rights of Indians were at such a great stake. Illegal and unconstitutional projects like Aadhar project of India/UID project of India, Natgrid, CCTNS, etc have crossed all the constitutional limits and Indian citizens and Indian courts are just moot spectators.

The suo motu powers of Indian constitutional courts has all of sudden vanished and the courts are not finding anything wrong in allowing projects that have no legal framework and parliamentary scrutiny to back them up.

Take the case of the most dangerous of all these projects named as Aadhar project. It is headed by Nandan Nilekani as the head of unique identification authority of India (UIDAI).

However, it would be more appropriate to call the Aadhar project as Niraadhar (without any base) and UIDAI as “unconstitutional identification authority of India”. To start with, Indian citizens must say a firm and absolute “No” to the Aadhar project and giving away biometric details.

India does not have any dedicated data protection and privacy law. Even our basic telephone numbers are freely available to telemarketing companies. By making available all our personal details along with biometric information, we are heading towards a big trouble.

It is high time to go for a “mass boycott” of Aadhar project and force the Indian government to enact suitable privacy and data protection laws before any such project must be proceeded with.

When Rights Are Outlawed, Only Outlaws Will Have Rights

2010-08-21T00:02:00.000-07:00

Philip R. "Phil" Zimmermann Jr. (born February 12, 1954) is one of the greatest civil liberty protectors in the cyberspace. Zimmermann is the creator of Pretty Good Privacy (PGP), the most widely used email encryption software in the world. He is also known for his work in VoIP encryption protocols, notably ZRTP and Zfone.

In his rationale for creating PGP he tells that using PGP is good for preserving democracy. He believes that if privacy is outlawed, only outlaws will have privacy. This is so true not only in the context of America but also India.

India is passing through the worst era of police state and e-surveillance society. Even worst is the reliance upon American models that have failed in America itself. But Home Minister P.Chidambaram is not discouraged by these failures and he would stop only on the failure of these models in India.

Even the Department of Information Technology (DIT) and Department of Telecommunications (DOT) have joined this blind and ignorant race and are trying to ban telecommunication services like Blackberry and Skype and Internet services like Gmail.

These departments are troubled by the strong and secure encryption technology and other similar technologies that prevent unlawful and illegal e-surveillance by the government and its agencies. Criminals and terrorists are already using these, and much better options, and these ignorant actions would only trouble and violate the civil liberties of law abiding citizens alone.

All the limits in this regard were crossed when the Information Technology Amendment Act 2008 (IT Act 2008) was made an enforceable law in India. The IT Act 2008 provides unregulated, unconstitutional and illegal e-surveillance, Internet censorship and website blocking powers in the hands of Indian government and its agencies. There is no mechanism at all that can prevent the abuses of these powers and there is no accountability as well.

A time has come in India when Human Rights in Cyberspace are clearly outlawed and only outlaws (as per the norms and standards of Indian government) would have these Human Rights. This is the main reason why I dedicated a resource titled Human Rights Protection in Cyberspace (HRPIC) to those law abiding citizens who cherish and wish to protect their civil liberties in cyberspace.

With further illegal and unconstitutional projects like CCTNS, NATGRID, UID Project/Aadhar Project, etc things are only going to be worst in India. The only option remains is to use self defence against the persons, institutions and agencies that are engaging in illegal and unconstitutional e-surveillance and civil liberty violations.

Appraisal Of National Identification Authority Of India Bill 2010

2010-06-29T22:54:00.000-07:00

The National Identification Authority of India Bill 2010 (Bill) has been recently proposed by the Unique Identification Authority of India (UIDAI). The Bill, if made a law, would be called National Identification Authority of India Act, 2010 (Act). Here are some of the salient features of the Bill:

(1) The Bill is still not a valid piece of legislation till it is approved by both the Houses of the Parliament, receives President’s assent and then finally notified in Official Gazette by the Government of India.

(2) The Bill is not a comprehensive one and neither has it intended to cover all the aspects of Aadhar project of India. The Bill’s main objective is to provide legitimacy to the Unique Identification Authority of India (UIDAI) renamed as the National Identification Authority of India (NIDAI) and for matters connected therewith or incidental thereto.

(3) The Bill has picked up many provisions of the Information Technology Act 2000 (IT Act 2000) for various issues. One of them also pertains to the extra territorial application of the Bill.

(4) The Bill is a good piece of work as far as administrative aspects of Aadhar project is concerned. However, it has almost nothing to offer regarding protecting civil liberties of Indians. Privacy issues, data protection issues, etc are missing from the Bill.

(5) By making the IT Act 2000 a base for many of its provisions, the Bill has incorporated the weaknesses and lacunas of the same. It seems the members drafting the Bill did not take pain to do some good research and formulate new and better provisions.

(6) The Bill’s greatest strength is its Public Private Partnership (PPP) Model through which it is seeking the expertise and assistance of various individuals, institutions, etc. The Bill is also great to the extent it catering the requirements of Research and Development regarding some of the most crucial aspects of contemporary times.

(7) The Bill has its own list of Offences and Penalties. The list though not adequate but if supported by different and supplementary legislations would strengthen the Bill. These provisions have been inspired by the IT Act 2000 with all its limitations and demerits.

(8) Provision regarding delegation of authority of the NIDAI is also incorporated to bring flexibility among the functioning of the authority. The only fact that has to be kept in mind is that this delegation must not be abused for private gains of private players.

(9) The provisions of this Act shall be in addition to, and not in derogation of, any other law for the time being in force. Thus, other law would supplement the provisions of this Bill and make it more effective.

In short, this is a great enabling legislation for the UIDAI/NIDAI and its administrative functions. It has taken care of most of the aspects that would allow the authority to perform its functions effectively, transparently and with accountability. Proper care has been taken to use PPP Model as well as to use the expertise of others.

On the negative side, the Act does not cater the civil liberties requirement that is also the toughest challenge before it and the first and foremost challenge for its authority. This may be due to the fact that the Act never intends to cater the civil liberties requirements and has left it for the Indian government through a separate legislation.

The NIDAI would face the challenge of “Unconstitutionality” on two counts. Firstly, the authority must be constituted by a proper law. This requirement would be fulfilled if the Bill is made an enforceable law. The second is that it must not violate the Civil Liberties of Indians. This is a tricky issues and the same has also been avoided by the present Bill. The Indian government has promised to enact laws regarding privacy and data protection very soon.

If the Bill and those laws are combined, they may take care of the constitutionality attacks and the NIDAI may proceed further for its tasks. But for the time being, both Aadhar Project and UIDAI/NIDAI are “Unconstitutional” Project and Authority.

Protecting Children In Cyberspace

2010-06-20T09:54:00.000-07:00

Juveniles or children dealing with cyberspace requires special attention and safeguards. This necessitates both legal and technical measures to be adopted. On the legal side we must have strong cyber law to punish the offender. On the technical side we must have effective software that can prevent potential abuse of children in cyberspace.

These days children are either perpetrator or victim of cyber crimes, cyber bullying, pornography, etc. They must be made suitably aware as well as protected from these cyber threats. After all, human rights protection in cyberspace also includes protection of juvenile’s human rights.

The Human Rights Protection Centre is the “Exclusive” Centre of India that is providing suggestions and measures for the protection of human rights in cyberspace. It is supported by the Cyber Security Research Centre of India (CSRCI) for providing additional strength of cyber security.

Both these Centres have decided to extend their expertise for protection of children in cyberspace. In due course of time we would provide techno-legal solutions for protection and empowerment of children in cyberspace.

We hope this initiative of ours would prove useful for all concerned.

Why A Tragedy Is Always Needed To Wake Up Indian Parliament?

2010-06-16T02:14:00.001-07:00

Indian Parliament is not pro active regarding making suitable laws as per the contemporary requirements. Although this lethargy is not condonable yet keeping in mind the ever happy nature of Indians this has become an acceptable practice.

However, what is not condonable is that even after continuous and incessant happening of adverse and tragic events, Indian government do nothing except making false promises or empty claims. Does it mean that Indian Parliament or Indian government always needs a tragedy to temporarily wake them up?

Indian legal system and justice delivery system has completely collapsed and is in ruins. This is despite the cozy and competitive picture shown by Indian government and Indian judiciary. The trust and respect of Indians have completely shaken for the judicial system of India that has failed to provide justice to Indians.

Times again public spirited citizens have been reminding Indian government to improve the legal and judicial systems of India but the government has failed to do so. It is only after tragic event like terrorist attacks, floods, natural calamities, episodes like Bhopal gas carnage, etc that government wakes up and decides to make proper law.

However, even such promises are mere declarations and there is no law enacted at all. This process is repeated years after years and tragedy after tragedy but Indians are all happy and contended to ask for any explanation. This may be because they have themselves elected the representatives that do not represent them at all in the legislative process of India.

I hope India would not wait for another tragedy to happen and subsequently another promise would be made that would never be fulfilled.

Security, Corruption, Myopic Vision, E-Surveillance And Indian Projects

2010-06-11T04:01:00.000-07:00

Law enforcement and anti terrorism concerns are the sure shot formula for converting a welfare society into an orwellian state. Our Home Minister Mr. P Chidambaram is also following the same formula. He is leaving no stone unturned in this regard. Whether it is National Intelligence Grid (NATGRID) Project or Aadhar Project/UID Project, the end objective is the same, i.e. making India an endemic e-surveillance society.

India is so blinded by the concept of Orwellian State that it fails to realise what is happening to countries that have tried similar projects and have failed miserably. The only justification for sticking to these projects even if they are Unconstitutional, illegal and bound to fail can be either attributed to lack of insight or corruption. Let us discuss few failed projects of the role models on whose basis India is committing these blunders.

The Central Government is working upon a Rs 2,000-crore ambitious project titled Crime and Criminal Tracking Network and Systems (CCTNS). A similar initiative undertaken by the US Government to modernise the FBI’s crime tracking system known as the Virtual Case File failed miserably due to lack of planning and effective strategies. The same would happen in case of India.

The Cabinet Committee on Security (CCS) has put on hold the Natgrid project of India temporarily due to absence of safeguards to protect civil liberties of Indians. Natgrid is still at hold as privacy protection safeguards have not yet been established by the project coordinators.

Experience from countries like UK and US has shown that projects similar to Natgrid and Aadhar have been great failures and were ultimately scrapped off completely. These countries have learnt this hard way by spending crores of money before saying a final good bye to these projects.

For instance, recently, UK scraped National ID project as it was too expensive and an infringement of civil liberties. The Aadhar project/UID project of India would also face similar fate as it is also violative of civil liberties of Indians and is unconstitutional and illegal.

The latest to join this list is the declaration by the British Government that it will review counter-terrorism laws. This review has been triggered after it came to government’s notice that security and law enforcement forces across the country have misused the controversial powers. There is no reason why projects like Aadhar, Natgrid, CCTNS, etc would not be violated by Indian intelligence agencies and law enforcement. This is more so when they are practically governed by no law in India and have indulged in such acts in the past.

In a welcome move the United Nations Human Rights Council (UNHRC) last week presented a new set of institutional and policy practices for intelligence agencies that it said would help to improve accountability and protection of human rights in intelligence policy. It seems the entire world is moving in the direction of protection of civil liberties and India is deliberately engaging in activities that are clearly Unconstitutional and illegal.

When Mr. Nandan Nilekani joined the Aadhar Project of India, I was very happy to know that at least we have a person of character and strength who can actually accomplish the task assigned to him. I was also optimistic that he would take care of the Civil Liberties issues as well. Although he has promised civil liberties protection but he has not yet delivered any protection for the same. I hope he would not fail India and join the breed of our incompetent politicians and bureaucrats.

Mr. Nandan where is the law you promised to formulate or have been promising to formulate for months? You are more known to us by your deeds than by your words and you must leave the promise or noise culture for our politicians and bureaucrats.

UID Project Of India Is Still Violating Civil Liberties Of Indians

2010-06-01T05:21:00.000-07:00

Indian projects are characterised by lots of noises with no results and outputs. If this is not enough they also bring there own share of civil liberty violations teasing and making the constitutional guarantees just legal jargon. There is no sense of empty constitutional safeguards if they cannot be enforced. India is presently in full swing to ride upon and ignore constitutional rights like right to privacy.

Aadhar project of India/UID project of India has been imposed upon citizens of India by direct as well as indirect calculations and strategies. So far there is neither a legal sanctity nor a requirement based justification for hushing up Aadhar project. In fact, there cannot be any way Aadhar can be proceeded with unless there is a constitutionally sound law supporting the same.

The UIDAI realising the gravity of the situation just declared that it would come up with the concerned law. This was intended to silent the critics of Aadhar project. The fact is that till now Aadhar project is illegal and unconstitutional and the government of India is spending upon a project that is going to fail in the near future.

There is no performance appraisal, no feasibility report, no planning and coordination and still the government is willing to impose Aadhar upon Indians. By clubbing it with other projects like national intelligence grid (Natgrid), Population Census, CCTNS, etc the government has shown the real purpose and intention of the Aadhar project.

Aadhar project is nothing but a façade to hide the unconstitutional acts of Indian government and its agencies. Unfortunately, even the Delhi High Court and Supreme Court of India have also failed to take a suo-motu action against this patently unconstitutional act of Indian government.

In these circumstances, it is not the right thing to give your crucial biometric details and make your privacy more vulnerable. It is better to protest against the Aadhar project right now than subsequently feeling sorry about the same.

E-Surveillance And Internet Censorship: A Deadly Combination In India

2010-05-22T03:30:00.000-07:00

India has not enacted adequate safeguards against e-surveillance and Internet censorship activities by its government and its agencies. On the other hand, India has now officially become an e-police state. The sole cyber law of India is incorporated as Information Technology Act 2000 (IT Act 2000) that was amended by the Information Technology Amendment Act 2008 (IT Act 2008).

The IT Act 2008 although provided draconian, unreasonable and sweeping e-surveillance and Internet censorship powers to the agencies and instrumentalities of Indian government yet it deliberately restrained from prescribing any procedural safeguards to prevent their abuses.

Recently Google released the raw estimates of governmental requests regarding disclosure of information stored by it. No surprise India occupies third position for “removal request” and fourth spot for “data requests”.

India must immediately enact a suitable legislation to prevent growing incidence of e-surveillance. India also does not have dedicated and separate privacy laws and data protection law. This is why projects like Aadhar/UID project and Natgrid Projects are fatal for the civil liberties of Indians.

The government of India is not wiling to rectify the situation. In fact the situation is getting worst as now e-surveillance activities of India are supplemented with Internet censorship acts of governmental agencies. Any dissident who has raised a voice against Indian government must be aware of the brutal censorship of his online voices. You might have wondered why your online news and search results have disappeared suddenly without any reason or explanation. This is because known agencies like Cert-In and many unknown and unaccountable agencies are actively enageged in Internet censorship the moment they see any unpleasant topic at Internet.

There is also no whistleblower protection law in India. In these situations self help seems to be the obvious choice for law abiding and constitutionally protected citizens. As an additional step, if you are a law abiding citizen and you suspect that your online transactions and acts are under surveillance you can use the techno-legal recourses mentioned at the Human Rights platform. If you are a Google search fan, you must consider using its Google SSL service that would frustrate a sniffer’s attempts to violate your privacy.

The Eagle Eyes

2010-05-21T03:39:00.000-07:00

The outer space is an area dominated by few countries and India is one of them. India has its own indigenous capabilities to build and launch space vehicles and in many cases has supported other nations as well in their space activities.

One aspect that I firmly and strongly endorse is very limited use of outer space for military proposes. Further, intelligence agencies or law enforcement agencies must also not use the same for the sake of using. Space is a common territory meant for the common betterment of mankind and no country should claim monopoly over it and abuse it on flimsy grounds.

This debate over sovereign control of space territory by any single nation started when the first “Sputnik” was launched in the space by the U.S.S.R on October 4, 1975. Since then numerous space ventures have been undertaken by various countries, including India. These activities led to the enactment and adoption of the Outer Space Treaty in 1996. It contains the following important principles:

(1) Freedom of exploration of outer space,
(2) Non-appropriation of outer space,
(3) Peaceful use of outer space,
(4) Jurisdiction of States over objects launched,
(5) International responsibilities for national activities,
(6) Assistance to personnel of space craft,
(7) Promotion of International Co-operation in the use of outer space, etc.

Besides this treaty many other agreements have been entered into on the International level from time to time.

It must be appreciated that “military use” of outer space is prohibited almost in all these agreements but military oriented activities in the outer space have been intensified in the recent past despite their prohibition. The systems and techniques capable of destroying an adversary’s satellites have been a major focus of arm race in outer space.

However, there are many positive sides and advantages of outer space usage as well. One of them pertains to use of military and spy satellites for bringing peace and order within a national territory. If a nation is facing real and imminent threat from either internal or external aggression, there is nothing wrong in using these spy satellites for tackling such threats. For instance, there is nothing wrong if Indian government uses its satellites for repelling the threats of Maoists or other terrorists’ organisations who are violating various Human Rights in India without any regard for human dignity and any piece of humanity. Killing innocent people does not prove any point and neither would a soft stand on the part of government of India would be useful in this situation. India should rise about regionalism and political agendas and unite in this fight against terrorism.

However, with great power come great responsibilities as well. This is almost always forgotten by governments of various nations, including India. Such sweeping powers must be suitably regulated and exceptionally used. It should not be unregulated and there should be no arbitrary use of these technologies. The eagle eyes are not meant for fun or curiosity satisfaction but for achieving the larger national interest of India.

Why Legislation For Aadhar Project Of India Is Required?

2010-05-18T20:54:00.000-07:00

No time in the history of India the threats of Civil Liberties violations and e-surveillance were as great as are in the present times. The instrumentality that has become the core of this civil liberty fiasco is Aadhar project of India or UID project of India. This is because the UID project intends to gather information that is very sensitive and secret in nature. Combined with other publicly announced projects like national intelligence grid (Natgrid) as well as secret projects of India it can peak into the personal lives of Indians anytime and anywhere. That is why there is an emergent need of good and robust privacy law in India as well as data protection law in India.

It seems the history is repeating itself in India. India is launching projects after projects without proper legal framework. The projects like Aadhar, Natgrid, etc are not only unconstitutional but also undesirable in the absence of just, reasonable and fair law prescribing procedural safeguards.

The Unique Identification Authority of India (UIDAI) has recently got an approval from the Cabinet Committee on UIDAI headed by the Prime Minister of India Dr. Manmohan Singh. It can now gather demographic and biometric data of Indian residents for UID project. However, the process does not stop here. UID project would not only be combined with projects like Natgrid but also with projects like National Population Register (NPR) operational under the ongoing census of India.

Think about a scenario where every minute and single details of an individual are combined with his biometric details and put at a single place at the disposal of as many authorities as desired by the government of India. Some of them would be authorities that would neither seek the permission nor report to the Central Government while performing its surveillance and e-surveillance activities.

It would be prudent if the government of India formulates both privacy laws and data protection law before proceeding further with projects like aadhar, Natgrid, CCTNS, etc.

Whistleblowers Protection Law In India Is Urgently Required

2010-05-18T02:37:00.000-07:00

Corruption and whistleblower protection are conflicting claims. A corrupt society would neither tolerate honest whistleblowers nor would it endeavour to protect them through legal and non-legal means.

India currently does not have a law to protect whistleblowers. It is only after the murder of whistleblower Satyendra Dubey, the Government of India issued an order directing the Central Vigilance Commission to protect whistleblowers. India also does not have a law for witness protections.

Whistleblower and witness protection is a duty of India that it has miserably failed to fulfill. However, India alone is not the only nation to do so. There are other nations as well who have failed to do the needful. What would citizens do if their nations do not care about their honesty, integrity and fight against corruption? Perhaps they must use technology to fight corruption. Sound promising but does it holds good? Definitely yes.

Take the example of Julian Assange, the founder of the whistleblower website Wikileaks. He is maintaining a great site where fight against corruption and lack of transparency is fought over by anonymous soldiers. It has stored tons of secret governmental documents that have leaked from their offices and places. These documents show the truth about governmental intentions and their acts or missions. Obviously, the governments and their agencies are not happy with the same as they prefer to maintain secrecy at all cost.

However, the chances of harassment of such whistleblowers are very great. Recently, the passport of Julian Assange was confiscated by immigration officials when he arrived at Melbourne Airport last week. Though the passport was subsequently handed back he also received a letter from the Australian Communication Minister Steven Conroy’s office stating that the recent disclosure on Wikileaks of a blacklist of websites the Australian government is preparing to ban had been referred to the Australian Federal Police (AFP).

So if you are prepared to face the wrath of governments go ahead and launch a platform similar to Wikileaks. Alternatively support Wikileaks by making a donation that you can afford. But do not sleep over the matter and do something for the protection of whistleblowers in India.

History Is Repeating Itself

2010-05-11T21:55:00.000-07:00

One concept that India lacks most while formulating its national policies and taking crucial decision is a “holistic approach”. Indian government always prefers extreme approach of this way or that way. It never bothers to consider both sides of the proposal. India firmly believes that civil liberties and national interests are mutually exclusive and the former cannot be reconciled with the latter in any case. Rather India is not willing at all to reconcile the same and adopt a holistic approach. All it is doing is imposing initiatives after initiatives even at the cost of human rights of Indian citizens.

Take the example of national intelligence grid (Natgrid) of India. Natgrid is a much required centralised ICT system of India. None can doubt the importance of a project like Natgrid. However, it is not a wise idea to ignore human rights absolutely while implementing Natgrid. This mistake was previously committed by the Home ministry of India and as a result of the same Natgrid was stalled temporarily. It seems the Home Ministry is trying to revive the project again but there are no indications as to safeguards taken to prevent its misuse. If this is the form in which Natgrid would be implemented, I have serious doubts about its objectives as well as results.

Take another example of Aadhar Project of India. This is one of the most important projects that India should undertake as soon as possible. However, the aadhar project is also suffering from the reconciliatory lapses. There are various factors that are making it unconstitutional and illegal in its present form. Fortunately, aadhar would be regulated by a law. This I think is the right approach that India must take. It is always better to remove the obstacles and barriers first and then proceed further. There is no sense in proceeding unprepared and then leaving the projects half baked and semi successful after spending crores of public resources.

I hope Indian government would not commit the same mistakes again as that would amount to blunder. All it is required to do is to take a one time pain and strengthen it base for all subsequent crucial projects like Natgrid, Aadhar, CCTNS, etc.

Natgrid Project Of India Must Comply With Civil Liberties To Be Constitutional

2010-03-16T07:43:00.000-07:00

The importance of Human Rights in Cyberspace was recently reiterated when the Cabinet Committee on Security (CCS) of India asked for further “Safeguards” before the National Intelligence Grid (NATGRID) can be launched in India. The Home Ministry has to now ensure “Adequate and Strong Safeguards” before Natgrid can be launched in India.

Human Rights Protection in Cyberspace is a tricky issue. On the one hand we have to respect the civil liberties like right to privacy, right to speech and expression, right against Internet censorship, etc whereas on the other hand we have to comply with the State’s right to regulate its citizens and territories. Here comes the real problem as Internet or cyberspace is boundary less.

The problem is not unique to India alone but is a universal problem. Whether it is the “anonymity controversy” regarding Google or recent controversy regarding “censorship” by China or the blocking of the website of zone-h.org in India or any other similar incidence, governments all over the world are unable to cope up with the present information and communication technology (ICT) systems. As a result they are superimposing the traditional concepts to cyberspace resulting in absurd results, says Praveen Dalal, leading techno-legal expert of India.

There is an emergent need to formulate good techno-legal regulation regarding human right protection in cyberspace. We cannot blindly apply the traditional concepts to cyberspace and we need a separate and dedicate branch of techno-legal laws and regulation in this regard. In the Indian context one such initiative has already been undertaken by Perry4Law.

The initiative intends to provide a techno-legal framework to the stakeholders and governments. In the Indian context, it would cover those areas that have a tendency to violate human rights in real life as well as cyberspace. Some of the areas include Crime and Criminal Tracking Network & Systems (CCTNS) Project (CCTNS Project), National Intelligence Grid (NATGRID), Unique Identification Authority of India (UIDAI), National Counter Terrorism Centre (NCTC) of India, E-Surveillance under the Information Technology Act 2000 (IT Act 2000) and other laws, etc.

The “suggestions” of Praveen Dalal regarding privacy protection and prevention of potential misuse of information for political ends gathered through NATGRID have already been accepted by the Cabinet Committee on Security (CCS) of India. In the end, the CCS withheld its nod and asked the Home Ministry to come back after further consultation with all stakeholders.

Let us hope that the proposed initiative on protection of civil liberties in cyberspace would prove useful to all concerned.

SOURCE: OPEDNEWS

Cabinet Committee On Security Of India Desires Safeguards In Natgrid Project

2010-03-14T10:50:00.000-07:00

Recently the proposal to establish national intelligence grid (NATGRID) in India was considered by Cabinet Committee on Security (CCS) of India. However, the CCS was advised in advanced by techno-legal experts like Praveen Dalal regarding the possible political misuse and violation of civil liberties of the Indian citizens. As a result, the CCS withheld its nod and asked the Home Ministry to come back after further consultation with all stakeholders.

In the past Praveen Dalal has suggested that NATGRID is an essential requirement for robust and effective intelligence agencies and law enforcement functions in India. The only requirement is to ensure that its abuses can be anticipated, prevented and remedied.

The Home Ministry of India would now start fresh discussions with various stakeholders to ensure that NATGRID may not be abused in future. The task is difficult and it would be beneficial to consult good techno-legal experts in this regard.

The most important aspect that must be kept in mind by the government of India is that it must reconcile the national security aspects of India with human rights protection in cyberspace. This is a difficult task especially in the absence of a dedicate privacy law and data protection law in India, says Praveen Dalal.

A “dedicated resource” in this regard has been launched by Perry4Law [ http://perry4law.com/hr/index.html ] in this regard that may be helpful for the Indian government while implementing projects like Crime and Criminal Tracking Network & Systems (CCTNS) Project (CCTNS Project), National Intelligence Grid (NATGRID), Unique Identification Authority of India (UIDAI), National Counter Terrorism Centre (NCTC) of India, E-Surveillance under the Information Technology Act 2000 (IT Act 2000) and other laws, etc.

SOURCE: MYNEWS

Computer Forensics Training Providers In India

2010-02-05T21:28:00.000-08:00

Human Rights protection in cyberspace cannot be achieved till the police officers, lawyers and judges are aware about the application of technology to civil and criminal proceedings. The same essentially requires a sound knowledge of cyber laws as well as the application of cyber forensics to various proceedings. Indian police officers, lawyers and judges are, by large, unaware about cyber laws. The position is even worst when it comes to cyber forensics that is a totally alien concept to Indian legal and judicial system. There is an emergent need of cyber law and cyber forensics training of the police officers, lawyers and judges in India.

Cyber Forensics is a very recent scientific development and countries all over the World are struggling hard to incorporate the same in their respective legal and judicial systems. Cyber forensics is also a part of legal enablement of ICT system that essentially creates a legal framework incorporating the prerequisites of cyber forensics.

Cyber Forensics is an important field of criminal investigation. However, it requires a sound expertise to be practiced. In India we have very few experts who can provide cyber forensics services in an appropriate manner. Presently, India does not possess the required capabilities and law enforcement machinery finds it really difficult to deal with modern cyber crimes.

As per Praveen Dalal, Managing Partner of Perry4Law and the leading Techno-Legal Expert of India, “Computer Forensics or Cyber Forensics in India has started gaining importance out of the necessity to deal with growing cyber crimes. Though India has taken some steps in the direction of enacting Information and Communication Technology (ICT) related law in the form of Information Technology Act, 2000 (IT Act, 2000), yet by and large it failed to provide a sound and secure law in this crucial direction. The result is too obvious. India has to depend upon foreign experts and institutions/universities for cyber forensics tasks”.

In the absence of governmental efforts in this regard, world renowned techno-legal firms like Perry4Law can be really helpful in fighting cyber crimes in India. Issues pertaining to hacking, data thefts, data security, cyber terrorism, financial frauds, privacy violations, etc must not be taken as lightly as has been done by India.

Perry4Law possesses techno-legal expertise for cyber law, cyber forensics, cyber security training, consultancy and solutions providing to various stakeholders. Perry4Law Techno-Legal Base (PTLB) is India’s first and most prominent techno-legal initiative that is providing techno-legal training to various players. It is also acting as India’s first and most effective Resource Centre for Cyber Forensics (RCCF) and cyber forensics software testing platform.

Perry4Law and PTLB provides techno-legal services in the fields like cyber law, cyber forensics, crime and criminal tracking network and systems (CCTNS), techno-legal training to police officers, lawyers and judges, national mission for delivery of justice and legal reforms (NMDJLR), etc.

The government of India must also take immediate steps to acquire indigenous capabilities at the national level. With the growing threats of cyber terrorism and cyber warfare, India should not be as complacent as it is.

AUTHOR: SHAYAM PRASAD

SOURCE: GROUND REPORT

The Cyber Genome Project And Its Cyber Security Implications

2010-02-04T03:33:00.000-08:00

The Defense Advanced Research Projects Agency (DARPA) of United States has recently announced one of the most crucial projects managed by it. It has revealed the initiation of “Cyber Genome Program”. The aim of the project is to trace the source of any digital information whether it is a document, malware or any other electronic communication.

As a part of this project, digital artifacts are collected from various live systems such as traditional computers, personal digital assistants, and/or distributed information systems such as cloud computers, from wired or wireless networks, or collected storage media. The format may include electronic documents or software.

According to Praveen Dalal, Managing Partner of Perry4Law and the leading Techno-Legal Expert of India, “The project is a very crucial one for the Internet in general and cyber security in particular. It would raise the standards and challenges for cyber security and cyber forensics and would take them to the next revolutionary level. However, the project requires tremendous techno-legal expertise that can be gathered through “collective expertise” only”.

At the same time the Cyber Genome Project would also involve many other legal issues as well. It would not be an easy ride for the project in the absence of an “International Harmonisation” as acts undertaken under the project may be found offending by many jurisdictions. This may also involve “retaliation actions” by those who may feel offended by such tremendous power over the Internet and interconnected networks, warn Praveen Dalal.

The project is at the very initial stage and till its maturity lots of troubles and doubts would be already removed. Let us hope that the project would be successful in preventing and remedying the cyber threats and cyber crimes worldwide, says Praveen Dalal.

AUTHOR: TECHTALK

SOURCE: GROUND REPORT

NATGRID Must Be Handled Properly To Survive

2010-01-28T18:31:00.000-08:00

NATGRID may be a good platform for India to strengthen its intelligence and law enforcement initiatives. However, it cannot survive in the absence of “Political Will” to make it an effective and responsible tool. With the benefits of NATGRID come the issues of accountability and fairness in its operation. India must formulate adequate "Safeguards" before making NATGRID functional. The NATGRID project must not die like the other projects handled by India from time to time.

National Intelligence Grid (NATGRID) is an essential requirement for robust and effective intelligence agencies and law enforcement functions in India. The only requirement is to ensure that its abuses can be anticipated, prevented and remedied, says Praveen Dalal, Managing Partner of Perry4Law and the leading Techno-Legal Expert of India.

The Ministry of Home affairs, India is managing this ambitious NATGRID project. It sent the proposal to establish NATGRID to various other allied Ministries for their suggestions. Now Ministries like external affairs, finance, defence, telecom, etc have provided their suggestions in this regard. This has paved way for the final clearance of the project.

Techno-Legal specialist Praveen Dalal informs that the aim of NATGRID is to ensure a readily available and real time information sharing platform between intelligence agencies, law enforcement agencies, etc of India. Information gathering and its timely distribution is also an essential part of “Crisis Management Strategies” of any nation. While the NATGRID system is a must for India, yet India has to make it sure that it is not abused for “Political Purposes” and in a manner that goes against the provisions of the Constitution of India.

The scope for misuse is tremendous as NATGRID is planning to link 21 categories of databases maintained by different public and private agencies for ready access by the country’s intelligence agencies. There must be “mechanism” to ensure that this wonderful system may not be abused, warns Praveen Dalal.

Since the concerned ministries have cleared the proposal the same will be now placed before the Cabinet Committee on Security (CCS) for approval. The CCS consent would be the penultimate step for the establishment of NATGRID within next two years, i.e. till 2011. It would be a good idea if the CCS “consults” experts and stakeholders before finally approving the projects, opines Praveen Dalal.

SOURCE: GROUND REPORT

Electronic Surveillance And Encryption Standards In India

2010-01-25T20:42:00.000-08:00

E-Surveillance of Internet communications is not a new concept as it has been happening for many years in the intelligence agencies circles world wide. It also adversely effects "Human Rights in Cyberspace". However, now even others are using “sniffers” and other tools to gather information and communications happening between the sender and the recipient. The same is possible because of non-use of strong encryption techniques while communicating. India is insisting upon weak encryption standards and usage on the recommendations of intelligence and security agencies. This would not deter the criminals and terrorists to use the same but would make the online transactions of law abiding citizens vulnerable to eavesdropping and sniffing activities.

Electronic surveillance has been in place for long. Internet communications are sniffed by not only law enforcement agencies and intelligence agencies but also by cyber criminals. Now even terrorists are using technology for their nefarious activities.

Recent news has revealed that some unknown Pakistani hackers had intercepted an official email communication between J&K Police’s intelligence chief and the J&K Chief Minister. However, it is claimed that the intercepted email did not carry “sensitive information”. As per a senior police officer this is normal as both sides do it.

Omar Abdullah, Chief Minister J&K, has been encouraging use of Information and Communication Technology (ICT) for government functions. He has been seeking police reports and daily confidential police bulletins through e-mails instead of traditional mailing system.

According to Mr. Praveen Dalal, Managing Partner of Perry4Law and the leading Techno-Legal Expert of India, “Electronic communications sniffing is a very effective mechanism to steal e-mail passwords and confidential information. The same happens if the sniffer is at the same network in case of wired networks or through airwaves if he is targeting the wireless networks”.

To avoid the interception of the email communication by the security agencies, terrorists are not communicating between two email addresses but use a single address with several people knowing the password. The militant then save the document in the draft folder which could be subsequently read by his companions.

Similarly, security agencies are also adopting various methods to keep their e-communications safe and secure. This tussle between the terrorists and security agencies would further increase in the distant future and India should be well prepared to deal with the same.

India must also ensure that encryption standards are suitably regulated through a good and strong cyber law so that security and law enforcement requirements can be reconciled, opined Praveen Dalal. Presently, India is confused regarding the same and trying to stifle the same as much a possible. Indian authorities are insisting upon 40 bits encryption for long whereas anything below 128-bit encryption is equivalent to no encryption at all.

An enhanced encryption use would not only strengthen public trust in online transactions but also would prevent unauthorised e-surveillance by the State. However, Indian Department of Telecommunications has not been uniform in its stand against encryption standards in the Blackberry services in India. The security agencies of India are insisting upon weak encryption standards in India so that they can monitor the electronic communications of Indian citizens and others. This is resulting in an enhanced and unregulated electronic communications sniffing in India. India must change its attitude in this regard as this approach would bring more troubles than benefits.

AUTHOR: TECHTALK

SOURCE: GROUND REPORT

India Is Adopting Double Standards Regarding Its Cyber Law

2010-01-23T21:25:00.000-08:00

India is adopting double standards and creating a façade to hide its incompetent and weak cyber law. On the one hand the government made the cyber law a safe heaven whereas on the other hand it is trying to show that it is serious about cyber crimes. If the government is so serious about cyber crimes, why it made it criminal friendly and a safe heaven for the cyber criminals? This double standard of Indian government would create lot of socio-economic problems in the contemporary modern society of India.

The Parliament of India is either not willing to enact suitable laws in a timely manner or it makes absurd laws like the Information Technology Amendment Act 2008 (IT Act 2008). India is already struggling hard to tackle cyber crimes and cyber contraventions. However, what is more confusing is why Indian government made India a Safe Heaven for cyber criminals? Further, with the IT Act 2008 India became an E-Surveillance State. The E-Surveillance may be crucial for Indian National security and Internal Security vis-à-vis information technology but even these crucial capabilities are missing. The cyber warfare capabilities of India are still decades far away. The net result due to the Irrational Cyber Law of India is that there is a complete Cyber Anarchy existing in India.

Realising the gravity of the situation, Mr. Praveen Dalal, Managing Partner of Perry4Law and the leading Techno-Legal Expert of India, sent a communication to the Government of India including the Prime Minister of India, President of India, Supreme Court of India, Ministry of Parliamentary Affairs, etc in this regard. The government reciprocated through media by showing its concern regarding the rising number of cyber crimes in India. Now the Centre is planning to assign the Central Bureau of Investigation (CBI) to investigate cases registered under the Information Technology Act 2000 (IT Act 2000) in the country. This is the irony of Indian political thinking. On the one hand they made almost all the cyber crimes in India “Bailable” whereas on the other hand they are “showing concern” for the very same cyber crimes that have been committed due to the lax cyber law of India that they enacted, says Praveen Dalal.

The Centre has in a letter to the State Governments requested them to issue general consent for the handing over of such cases to the CBI. The CBI cannot proceed till the States grant it permission to do so. This step of the Centre may be a compulsion as Indian law enforcement needs Techno-Legal Training to solve cyber crimes effectively. Surprisingly, the Centre is aware that cyber crimes are affecting the life of the general public and cases of phishing, online credit card fraud, hacking, pornography and theft of data, source code and identity are on the rise. It also believes that these cases have national and international ramifications and affect national security. What is not understandable is why such serious crimes have been made bailable and why India has been made a cyber heaven for cyber criminals, questions Praveen Dalal.

The only explanation to this strange behaviour of Indian government may be that it is “confused” regarding its cyber law. Further, Indian government cannot enact strong and stringent cyber law because the “industry lobbying” of Indian companies would not allow it to do so. Till India acquires good “legislative skill” and shows its will to provide a robust cyber law of India, the confusion will keep on marring the government’s decision making power.

AUTHOR: SHAYAM PRASAD

SOURCE: GROUND REPORT

Independent India With The Colonial Mindset: The Intelligence Agencies Fiasco

2010-01-20T06:52:00.000-08:00

India has gained independence long time ago but it is still slave of the “colonial mindset”. Laws and regulations made by the Britishers for India with the primary purpose of oppression of Indian masses have still been kept intact by the Indian government. This is despite the fact that Constitution of India makes them “Unconstitutional” in many circumstances. However, since these laws are “Suiting” Indian governments present ruling requirements they have been kept unchanged, rather protected, from the required up gradations and annulments.

India has a long history of clinging to antique and colonial laws and abstaining from enacting suitable and timely legislations. These absurdities are well beyond any reasonable governance norms ruling the masses of India. India is notoriously infamous for creating authorities and agencies without any legal sanction and framework. Surprisingly, a majority of them pertains to law enforcement and intelligence agencies like CBI, IB, RAW, etc. What India is actually doing is using administrative circulars and executive orders to give legitimacy to these institutions. India is deliberately avoiding the “Parliamentary Scrutiny” of these agencies. Why these circulars and orders have still not been declared 'unconstitutional' by Indian judiciary is still a bigger mystery?

In short, law enforcement and intelligence agencies are virtually governed by no law in India. The government of India (GOI) never took pain to provide a viable and constitutionally sound legal framework for these institutions in India. Legal framework is the backbone for any crucial function of the government. This is more so where the law enforcement and intelligence activities of the State are involved. Law enforcement and intelligence activities and functions touch the most basic aspects of a person’s life. That is why we have strong human rights and constitutional protections that safeguard the life and liberties of such persons.

It would be both ironical as well as violation of basic human rights and fundamental rights if the law enforcement and intelligence activities are conducted in an illegal, unreasonable and improper manner. The duties, functions, liabilities and rights of these law enforcement and intelligence agencies must be specified in an unambiguous and proper manner. There is no scope for any sort of ambiguity in these functions of the State.

For instance, the British Security Service is one of three intelligence services or “Agencies”. These include the Secret Intelligence Service (SIS), commonly known as MI6, the Governmental Communications Headquarters (GCHQ), and the Security Service (MI-5). While there are significant differences between the British and US legal structures for law enforcement and intelligence services, MI6 is most like the CIA, GCHQ resembles the NSA, and the Security Service most closely resembles the FBI. All of them are constituted under duly enacted legislative frameworks. Surprisingly, India has taken a very strange approach in this regard.

Invasion of Privacy of Indian citizens by Indian Government and its Agencies is certainly going to be there in future. This is more so when the Indian Government has openly declared its Policy to adopt endemic surveillance and e-surveillance over Indian citizens. The Indian Government would spend 800 Crores hard earned public money for tapping all phones in real time. Ironically, Indian citizens' money would be used against Indian only and that also in an illegal and unconstitutional manner. There is an emergent need to formulate a good and effective "ICT Legal Framework" for the protection of "Human Rights In Cyberspace". Further, India has finally decided to go ahead with the controversial security gadget, the full body scanner. The first such scanner will be installed at the Delhi airport within six months, officials said. This would also have serious privacy issues that are not governed by a dedicate privacy law in India. Even the Unique Identification Authority of India (UIDAI) is not a “legally constituted” authority. In the absence of just and reasonable law(s) to support the same, it would violate the Human Rights and Fundamental Rights of the citizens of India, say techno-legal experts like Praveen Dalal. The interaction of Information and Communication Technology (ICT) with Human Rights is no more a science fiction and India must keep in mind the mandates of Human Rights Protection in Cyberspace while implementing projects that have no legal sanction and backing.

Lawlessness and unreasonableness is guaranteed if there is no accountability. Accountability is absent when there is no legal framework for those managing essential governmental functions challenging the human rights and fundamental rights of the affected persons. Perry4Law has provided a “10 Point Legal Framework for Law Enforcement and Intelligence Agencies in India” to the Government of India. It seems the suggestions of Perry4Law have finally got attention of Indian government. Vice-President Hamid Ansari gave a definite thumb up to a system of oversight to govern the intelligence community in India. He said the current scheme where intelligence agencies are kept outside the ambit of parliamentary scrutiny is no longer tenable. The traditional practice of oversight by the concerned minister and prime minister and general accountability to Parliament is now considered amorphous and does not meet the requirements of good governance in an open society.

The final step is for the Parliament of India to take. Mere assurances and multiple intelligence agencies would not serve any purpose. Indian government has slept too much over these crucial requirements and the sooner it wakes up better it would be for India.

AUTHOR: RAM KAUSHIK

SOURCE: GROUND REPORT

Supreme Court Of India Must Change Its Mindset

2010-01-13T23:07:00.000-08:00

The Supreme Court is Supreme not because it is right but it is right because it is Supreme. There are very few occasions when the trust and respect for the Indian Judiciary were at its nadir. During the infamous emergency imposition by the Center in the late 70s such public outrage was shown. Presently as well with the corruption in judiciary, slow speed of disposal of cases and adoption of double standards by the judiciary in matters like transparency and right to information, public trust and respect for judiciary has been on the lower side once again. However, the Delhi High Court has shown a great “Judicial Courage” by upholding the values of Constitution of India. It would be ironic if the Supreme Court becomes a “Judge of its own Cause” and negates the entire “Constitutional Philosophy” and “Administrative Law” of India.

Of late the Delhi High Court has shown tremendous judicial capabilities and strength by upholding the values of Constitution of India (COI). One after another it gave landmark judgments that were expected from the Supreme Court of India. At a time when the trust in the judicial system of India is falling to the lowest level this attitude of the Delhi High Court has emerged as a ray off hope in the dark clouds of judicial incapabilities.

While the District level courts are working more than good Delhi High Court has also joined this race and has become the sentinel of constitutional rights of Indian citizens. However, it cannot substitute the Supreme Court for many reasons. Although Delhi High Court is a court of law and a constitutional court, it has a major limitation. Its jurisdiction is confined to the limits of Delhi alone. On the other hand the Supreme Court of India is a “National Court” having wider powers and supreme authority.

The recent judgement of the Delhi High Court regarding declaration of assets by the Supreme Court is one of the best judgments it has ever given. Unfortunately, the same must have come from the Supreme Court itself. Having failed to do so, the Supreme Court must not now challenge the decision of Delhi High Court to itself in the Supreme Court. It would only undermine the dignity and trust of Supreme Court further. Instead the Supreme Court must now concentrate more upon damage recovery than further aggravating the situation.

Time has come when the Supreme Court must change its mindset and attitude and gain more respect and dignity in the eyes of Indians. After all, it must remove the general perception prevalent among the Indian masses that the “Supreme Court is Supreme not because it is right but it is right because it is Supreme

Internet Censorship In China Irked Google

2010-01-12T22:35:00.000-08:00

Google Inc. will stop censoring its search results in China and may pull out of the country completely after discovering that computer hackers had tricked human-rights activists into exposing their e-mail accounts to outsiders.

The change of heart announced Tuesday heralds a major shift for the Internet's search leader, which has repeatedly said it will obey Chinese laws requiring some politically and socially sensitive issues to be blocked from search results available in other countries. The acquiescence had outraged free-speech advocates and even some shareholders, who argued Google's cooperation with China violated the company's "don't be evil" motto.

The criticism had started to sway Google co-founder Sergey Brin, who openly expressed his misgivings about the company's presence in China. But the tipping point didn't come until Google recently uncovered hacking attacks launched from within China. The apparent goals: breaking into the computers of at least 20 major U.S. companies and gathering personal information about dozens of human rights activists trying to shine a light on China's alleged abuses.

Google spokesman Matt Furman declined to say whether the company suspects the Chinese government may have had a hand in the attacks. Secretary of State Hillary Rodham Clinton said the Google allegations "raise very serious concerns and questions" and the U.S. is seeking an explanation from the Chinese government.

Google officials also plan to talk to the Chinese government to determine if there is a way the company can still provide unfiltered search results in the country. If an agreement can't be worked out, Google is prepared to leave China four years after creating a search engine bearing China's Web suffix, ".cn" to put itself in a better position to profit from the world's most populous country.

"The decision to review our business operations in China has been incredibly hard, and we know that it will have potentially far-reaching consequences," David Drummond, Google's top lawyer, wrote in a Tuesday blog posting.

A spokesman for the Chinese consulate in San Francisco had no immediate comment.

Abandoning China wouldn't put a big dent in Google's earnings, although it could crimp the company's growth as the country's Internet usage continues to rise. China's Internet audience already has soared from 10 million to nearly 340 million in the past decade. Google, based in Mountain View, said its Chinese operations account for an "immaterial" amount of its roughly $22 billion in annual revenue. J.P. Morgan analyst Imran Khan had been expecting Google's China revenue to total about $600 million this year. Although Google's search engine is the most popular worldwide, it's a distant second in China, where the homegrown Baidu.com processes more than 60 percent of all requests.
Free-speech and human rights groups are hoping Google's about-face will spur more companies to take a similar stand. "Google has taken a bold and difficult step for Internet freedom in support of fundamental human rights," said Leslie Harris, president of the Center for Democracy & Technology, a civil-liberties group in Washington. "No company should be forced to operate under government threat to its core values or to the rights and safety of its users." It's "an incredibly significant move," said Danny O'Brien, international outreach coordinator at the Electronic Frontier Foundation, an Internet rights group in San Francisco. "This changes the game because the question won't be 'How can we work in China?' but 'How can we create services that Chinese people can use, from outside of China?'"

Many Web sites based outside China, including Google's YouTube video site, are regularly blocked by the country's government. Google's new stance on China was triggered by what it described as a sophisticated computer attack orchestrated from within the country. Rep. Anna Eshoo, D-Calif., praised Google for disclosing chicanery that "raises serious national security concerns."

Without providing details, Google said it and at least 20 other major companies from the Internet, financial services, technology, media and chemical industries were targeted. The heist lifted some of Google's intellectual property but didn't get any information about the users of its services, the company said. Google has passed along what it knows so far to U.S. authorities and other affected companies.

It does not appear that any U.S. government agencies or Web sites were affected by the attack, according to two U.S. administration officials. The officials spoke on condition of anonymity because they were not authorized to speak publicly about the issue. The assault on Google appeared primarily aimed at breaking into the company's e-mail service, "Gmail," in an attempt to pry into the accounts of human right activists protesting the Chinese government's policies.

Only two e-mail accounts were infiltrated in these attacks, Google said, and the intruders were only able to see subject lines and the dates that the individual accounts were created. None of the content written within the body of the e-mails leaked out, Google said. As part of its investigation into that incident, Google stumbled onto another scam that was more successful. Google said dozens of activists fighting the Chinese government's policies fell prey to ruses commonly known as "phishing" or malware. The victims live in the United States, Europe and China, Google said.

Phishing involves malicious e-mails urging the recipients to open an attachment or visit a link that they're conned into believing comes from a friend or legitimate company. Clicking on a phishing link of installs malware — malicious software — on to computers. Once it's installed on a computer, malware can be used as a surveillance tool that can obtain passwords and unlock e-mail accounts.

Google's unfettered search results won't necessarily ensure more information will be made available to the average person in China because the government could still use its own filtering tools, said Clothilde Le Coz, Washington director for Reporters Without Borders, a media watchdog group. "The Chinese government is one of the most efficient in terms of censoring the Web," she said. The blocking technology has proven so effective that it's become known as the "Great Firewall of China."

SOURCE: NDTV COM

Privacy And E-Surveillance Issues Must Be Resolved First By UIDAI

2010-01-11T10:34:00.000-08:00

The Unique Identification Project of India is based upon lack of planning and foresight. The hit and trial attitude of the Government of India (GOI) coupled with the charitable tendencies to distribute the public money among corrupt officials of India without any transparency and accountability would once again fail another much needed project in India. The Unique Identification Authority of India (UIDAI) is not a “legally constituted” authority. In the absence of just and reasonable law(s) to support the same, it would violate the Human Rights and Fundamental Rights of the citizens of India, say techno-legal experts like Praveen Dalal. The interaction of Information and Communication Technology (ICT) with Human Rights is no more a science fiction and India must keep in mind the mandates of Human Rights Protection in Cyberspace while implementing projects that have no legal sanction and backing.

The security and privacy issues of UIDAI have been raised times and again. The real problem seems to be that neither UIDAI nor its functions are legally valid and constitutionally sound. In its present form they are violative of not only the sacrosanct Human Rights but also the Fundamental Rights conferred by the Constitution of India (COI), says Praveen Dalal.

The first and foremost evil of UIDAI without a proper legal framework is that it would violate the “Right to Privacy” as conferred under Article 21 of the Constitution. This is not expressly mentioned in it but the same has been enunciated by way of judicial interpretation by the Supreme Court of India. India is a signatory to the International covenant on civil and political rights, 1966. Article 17 thereof provides for the “right of privacy”. Article 17 of the international covenant does not go contrary to any part of our municipal law. Article 21 has, therefore, to be interpreted in conformity with the international law.

Even the “Data Protection” requirements would pose big challenge before India. The amount of data collected for by UIDAI would be tremendous. Presently, India does not have either a legal framework or technical capabilities to accommodate the demands of the proposed functions of UIDAI.

The main aim of the proposed project by UID Project seems to be to strengthen the “E-Surveillance Capabilities” of India. With the passage of IT Act 2008 India has now officially become an endemic e-surveillance society. The amendments have provided unregulated, unconstitutional and arbitrary e-surveillance powers to Government of India and its agencies and instrumentalities. The fact is that India has become an E-Police State, states the ICT Trends of India 2009.

Privacy rights are valuable and must not be violated by the government under the garb of national security. An important question that has been raised in the past is whether the citizens have a right to self-defense against the State if the latter is violating their rights illegally? Private or self defense is a Human Right, Constitutional Rights as well as Statutory Right. The Indian citizens have a right to exercise self defense even against the State. This is more so in the sphere of ICT where there are least possibilities of human injuries. However the same can be exercised by law abiding citizens alone and criminals cannot claim this Constitutional Protection. The UIDAI Project must keep all these aspects in mind before being finally implemented in India.

SOURCE: GROUND REPORT

Centralised ICT Control Centre For Intelligence Agencies Of India

2009-12-26T05:51:00.000-08:00

Intelligence agencies of India need streamlining. There are numerous intelligence agencies operating in India. However, there is no “Centralised Command” for the same. This results in an anomaly as there is no single authority to whom all of them can report and share their intelligence and other inputs. The worst part is that the acts and omissions of these intelligence agencies are not governed by any legal framework. In short, the intelligence agencies have no clear cut direction, guidance and control. Time has come to create a good and effective “Intelligence Infrastructure” in India. Perry4Law recommends that a “Centralised ICT Control System” must be established by the Home Ministry of India under the guidance of Mr. P.Chidambaram.

Internal security and national security issues of India are complicated to be tackled. This problem has further been goaded in the dearth of a suitable ICT Policy for National Security issues in India. The scornful collapse of the e-governance projects in India has put at rest the empty claims of Indian government to use ICT for national security purposes.

Even the ICT Trends of India 2009 have exposed that Indian efforts regarding reformation of legal, judicial, administrative, law enforcement, intelligence agencies functions, etc through application of ICT have faced grave failures in the year 2009. There is also little hope that the same would be revived in the year 2010. On what basis the government of India (GOI) would use ICT for national and internal security of India is still an unresolved issue.

According to Praveen Dalal, the leading Techno-Legal Expert of India and Managing Partner of Perry4Law, “Intelligence agency of a country plays an important role in its internal and external security. There must be a “Centralised ICT Control System” to govern intelligence agencies if there are more than one. If there are numerous intelligence agencies working for different government departments, there is a possibility of lack of coordination and inadequate and inappropriate information sharing. Nothing can be more beneficial than a “Centralised ICT Control Centre” for the Indian National and Internal Security.

The government of India has yet to enact suitable laws governing intelligence agencies on the one hand and set up a centralised “Control System” for them on the other. India must give up the practice of achieving goals on paper only and must be truthful and accountable to its commitments. Let us wish that GOI would come up with effectual and reliable national security actions concerning the suggestions provided by experts in this regard.

SOURCE: MYNEWS

E-Governance Projects In India Have Failed

2009-12-25T06:05:00.000-08:00

E-Governance has never been managed properly in India. There is no transparency, lack of accountability and abundance of corruption pervading and marring the E-Governance initiatives and projects of India. The almost depletion of projects like E-Bharat is a classical example of inadequate e-governance capabilities of India. Ironically, the chief instrument (e-governance) that was supposed to prevent and eliminate corruption from India has itself become an instrumentality and breeding ground for corruption in India. There is an emergent need of demanding accountability from the corrupt officials and ministers who have doomed Indian e-governance initiatives for long. Further, funding agencies and organisations like UNDP, World Bank, etc must actively seek “Management Controls” over e-governance projects they are supporting in India as leaving it in the hands of corrupt officials would be detrimental to the interest of common man of India.

Information and Communication Technology (ICT) is the core strength of business community of India. The same has, however, failed to find a place in the national policies and strategies of India and in governmental dealings. The ICT Trends of India 2009 showed the naked truth of the contrary claims of Government of India. Despite negative reports and progress in India, the Indian government is loyal to the “India Shining Syndrome” rather than concentrating upon real and effective ICT projects management in India.

According to Praveen Dalal, the leading Techno-Legal Expert of India and Managing Partner of Perry4Law “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 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 UNDP/World Bank grants amount”.

The continued apathy, mismanagement and lack of accountability has finally shown its impact. The World Bank refused to operationalise the e-governance support project known as “E-Bharat” without its active management role in the same. The World Bank did not agree to the framework for implementation of E-Bharat as it was insisting on certain conditions to manage the project. For instance, against a hands-on project management approach being favoured by the World Bank, India was pushing for a programme mode where assistance could be linked to targets or milestones.

The expectations of World Bank are justified as there is a complete failure of e-governance projects in India barring few exceptions. In the absence of transparency and accountability, investing Crores of rupees in Indian e-governance projects is not a wise and profitable option. The World Bank must actively engage in day to day management functions of the projects it is sponsoring or funding.

In fact, the Parliamentary Standing Committee on IT, in its latest report noted that e-Bharat project was “in trouble”. Following the Government's decision not to establish a dedicated Special Purpose Vehicle (national e-governance agency), a requirement insisted on by the World Bank earlier, the Bank had advocated a newer look to be adopted inter-alia suggesting termination of the preparation of the E-Bharat Project. With the management controls in its hand, the World Bank may continue this much needed e-governance project of India. It would be good for Indian common man if other fund providing agencies like UNDP also take similar steps so that e-governance projects are not eaten up by corruption of Indian officials.

SOURCE: MYNEWS

National Security and Internal Security Infrastructure Of India

2009-12-24T03:22:00.000-08:00

National security of India has recently received a rejuvenation attempt by the Government of India (GOI). This is good news at a time where the national security issues are grossly ignored in India. The national security of India and internal security of India are suffering not only on the count of lack of political will but also due to absence of suitable policies and strategies.

The ICT Trends of India 2009 have also proved that India has failed on the fronts of Cyber law of India, Cyber Terrorism in India, E-Courts in India, E-Learning in India, Unique Identification Project of India, Serious Frauds and White Collar Crimes, National Security Issues, Crime Reporting by Media, Internet Banking Frauds, Cyber Security of Defense Forces, Cyber War in India, E-Surveillance in India, etc.

According to Praveen Dalal, Managing Partner of Perry4Law and the leading Techno-Legal Expert of India, “Indian approach in this regard is not sensible at all. We should not invest thousands of crores of Indian rupees into security projects that can be manipulated and sabotaged in minutes. Rather we should first analyse the weaknesses and security holes of the same before buying and installing it.

After all security of a Nation is proper application of “common sense” rather than wasting unlimited amount of money. Crime and Criminal Tracking Network & Systems (CCTNS) of India, Unique Identification Authority of India (UIAI), Rs 800 crores centralised facility to control phone tapping activities in India, etc are some of the projects that require common sense application before their implementation. They have to be tested in a “limited environment” before using them in a full fledged manner, says Praveen Dalal.

It seems Indian security initiatives have to be holistically analysed and suitably applied. The Indian security infrastructure and workforces are not in good shape and require rejuvenation. We need a techno-legal security workforce and not personnel who do not have even the basic facilities and technological means and knowledge. The terrorist attacks have really shattered the deep pervasive false sense of security present in the Indian government mentality. We have to think and act against such internal and external threats by going beyond a "political debate". We can fool ourselves by bragging about India’s capabilities and victories against terrorism and cyber terrorism and keep on facing future attacks and bear the traumatic casualties. Alternatively, we must accept our weaknesses against such attacks and take constructive steps to anticipate, prevent and counter such future terrorist and cyber terrorism activities, warns Praveen Dalal.

With a new ray of hope shown by the recent stress upon national security of India we can expect some good results in this direction. However, India is famous for mere assurances and proposals without actually implementing them. Similarly, due to faulty management and policies even the implemented projects have failed in the past. Let us hope that this time India would do the proper homework before starting an initiative that it cannot implement and run.

SOURCE: MYNEWS

ICT Trends And Analysis In India 2009 By Perry4Law

2009-12-24T03:17:00.000-08:00

Information and Communication Technology (ICT) is one of the core strengths of India. However, many aspects of ICT are still not within the competence of India. India is performing poorly in many areas of ICT and there is an urgent need of establishing transparency and accountability within the governmental departments so that India can perform better. India must also pay attention towards protection of "Human Rights in Cyberspace". Perry4Law and PTLBTM/SM have been providing ICT Trends In India, Cyber Law Trends in India, Cyber Security Trends in India, Cyber Forensics Trends in India, etc for long. This is the current ICT Trends of India 2009 by Perry4Law.

The present trends report is covering topics like Cyber law of India, Cyber Terrorism, E-Courts in India, E-Learning in India, Unique Identification Project of India, Serious Frauds and White Collar Crimes, National Security Issues, Crime Reporting by Media, Internet Banking Frauds, Cyber Security of Defense Forces, Cyber War in India, E-Surveillance in India, etc.

The report has clearly established that India once again failed to cater the growing contemporary demands of ICT and their legal, judicial and public service providing applications. The predominant reason for the same seems to be lack of political will to achieve the needful. Though India makes lot of declarations yet hardly one or two is actually implemented. India is more interested in accomplishments that can be found on papers only rather than real, effective and grassroot level achievements.

The report concludes that “Indian efforts for streamlining use of ICT have further degraded from 2008. The year 2009 saw some major ICT pitfalls and bad decisions were made by the GOI. Overall the year 2009 can be said to be “Blunder ICT Year” of India despite all contrary governmental claims.

SOURCE: MYNEWS

NATIONAL SECURITY OF INDIA

2009-12-23T03:45:00.000-08:00

BY
P.CHIDAMBARAM

The Union Home Minister, Shri P.Chidambaram has suggested some dynamic and progressive measures that would go a long way in strengthening the National Security of India. Presently, they are at the “Proposal Stage” but these suggestions have lot of potential for the overall and holistic security of India. It would be a good strategy if there are time bound obligations that are implemented and monitored in a fair, transparent and accountable manner. Similarly, there is also an emergent need to look at the “Techno-Legal Aspects” of the National and Internal Security of India. The present ICT Trends of India 2009 have not showed a positive development in this regard and we hope the Home Minister would not fail India this time. Perry4Law and PTLB would be providing their insights and suggestions in this regard from time to time. The Government of India must also keep in mind the Human Rights aspect of the netizens in Cyberspace while implementing various security related and crime fighting initiatives.

The Union Home Minister, Shri P.Chidambaram has proposed radical restructuring of the security architecture at the national level. As part of the plan India must be able to set up the National Counter Terrorism Centre (NCTC) by the end of 2010. Once set up, NCTC must have the broad mandate to deal with all kinds of terrorist violence, directed against the country and its people.

Realising the gross deficiency in connectivity, the Central Government is implementing an ambitious scheme called “Crime and Criminal Tracking Network System (CCTNS).” The goals of the system are to facilitate collection, storage, retrieval, analysis, transfer and sharing of data and information at the police station and between the police station and the State Headquarters and the Central Police Organisations.

Another major idea is the proposal to set up the National Counter Terrorism Centre (NCTC). As the name suggests, the goal is to counter terrorism. Obviously, this will include preventing a terrorist attack, containing a terrorist attack should one take place, and responding to a terrorist attack by inflicting pain upon the perpetrators. Such an organisation does not exist today. It has to be created from scratch. India must decide now to go forward and India must succeed in setting up the NCTC by the end of 2010.

Once NCTC is set up, it must have the broad mandate to deal with all kinds of terrorist violence directed against the country and the people. NCTC would therefore have to perform functions relating to intelligence, investigation and operations. All intelligence agencies would therefore have to be represented in the NCTC. As far as investigation is concerned, Government has set up the National Investigation Agency, and that agency would have to be brought under the overall control of NCTC. The last function – operations – would of course be the most sensitive and difficult part to create and bring under the NCTC. But without ‘operations’, NCTC and the security architecture that is needed will be incomplete. It is the proposed ‘operations’ wing of the NCTC that will give an edge – now absent – to our plans to counter terrorism.

The establishment of the NCTC will indeed result in transferring some oversight responsibilities over existing agencies or bodies to the NCTC. This should not result in turf wars. Some agencies would naturally have to be brought under NCTC and what come to my mind readily are NIA, NTRO, JIC, NCRB and the NSG. The positioning of R&AW, ARC and CBI would have to be re-examined and a way would have to be found to place them under the oversight of NCTC to the extent that they deal with terrorism. The intelligence agencies of the Ministry of Defence and the Ministry of Finance would, of course, continue to remain under the respective Ministry, but their representatives would have to be deputed mandatorily to the NCTC. NATGRID would obviously come under NCTC. So also, CCTNS would have to be supervised by the NCTC.

Given the overarching responsibility of NCTC and its mandate, it will be obvious that it must be headed by a highly qualified professional with vast experience in security related matters. Considering the structure of our services, it is natural to expect that the head of one of our organisations will be appointed to the post, by whatever name it may be called. He/she could be a police officer or a military officer. He/she must be one who has impeccable professional credentials and the capacity to oversee intelligence, investigation and operations. He/she will be the single person accountable to the country on all matters relating to internal security. At the Government level, and in order to be accountable to Parliament, it would be logical and natural to place the NCTC under the Ministry of Home Affairs.

That leaves the question of the structure of the Ministry of Home Affairs itself. MHA now handles a wide portfolio of subjects ranging from ‘freedom fighters’ to ‘forensic science’. Is this a functional arrangement to deal with the grave challenges to internal security that we face and that we will face from many more years? I am afraid not. It is true that the words ‘Ministry of Home Affairs’ have an authoritative ring, but the MHA now performs a number of functions that have no direct relation to internal security. For example, it has a division dealing with freedom fighters but it does not have even a desk for dealing exclusively with forensic science. There are other divisions or desks that deal with Centre-State Relations, State Legislation, Human Rights, Union Territories, Disaster Management, Census etc. These are undoubtedly important functions and deserve close attention. However, internal security is an equally, if not more, important function that deserves the highest attention. In my view, given the imperatives and the challenges of the times, a division of the current functions of the Ministry of Home Affairs is unavoidable. Subjects not directly related to internal security should be dealt with by a separate Ministry or should be brought under a separate Department in the MHA and dealt with by a Minister, more or less independently, without referring every issue to the Home Minister. The Home Minister should devote the whole of his/her time and energy to matters relating to security.

It is after one year in office that I have ventured to outline the new architecture for India’s security. There are two enemies of change. The first is ‘routine’. Routine is the enemy of innovation. Because we are immersed in routine tasks, we neglect the need for change and innovation. The second enemy is ‘complacency’. In a few days from today, 2009 will come to a close, and I sincerely hope that we may be able to claim that the year was free from terror attacks. However, there is the danger of a terror-free year inducing complacency, signs of which can be seen everywhere. A strange passivity seems to have descended upon the people: they are content to leave matters relating to security to a few people in the Government and not ask questions or make demands. I wish to raise my voice of caution and appeal to all of you assembled here, and to the people at large, that there is no time to be lost in making a thorough and radical departure from the present structure. If, as a nation, we must defend ourselves in the present day and prepare for the future, it is imperative that we put in place a new architecture for India’s security.

ICT TRENDS IN INDIA 2009 BY PERRY4LAW AND PTLB

2009-12-21T03:29:00.000-08:00

Perry4Law and PTLB have been providing ICT Trends In India, Cyber Law Trends in India, Cyber Security Trends in India, Cyber Forensics Trends in India, etc for long. ICT Trends in India-2006, ICT Trends in India-2007, ICT Trends in India-2008, Cyber Security Trends-2007, Cyber Forensics Trends in India-2008, etc provided by Perry4Law have proved that India has not paid enough attention to the legal framework for the information society and legal enablement of ICT systems in India. The trends also show that we have a weak cyber and ICT security in India and lack of cyber forensics capabilities in India. This precarious situation has lead to an insufficient critical ICT infrastructure protection in India. This is the latest ICT Trends In India by Perry4Law.

India once again failed to cater the growing contemporary demands of Information and Communication Technology (ICT) and their legal and judicial applications. The predominant reason for the same seems to be lack of political will to achieve the needful.

The ICT Trends in India 2009 are as follow:

(1) Cyber Law Of India: The cyber law of India received a fatal blow in the form of Information Technology Act 2008 (IT Act 2008). The IT Act 2008 amended the original Information Technology Act 2000 (IT Act 2000) and made almost all the cyber crimes “Bailable”. This has made India a safe heaven for cyber criminals and cyber crimes are increasing in India at a speed that India cannot not control.

(2) Cyber Terrorism: The IT Act 2008 has enacted a single provision for meeting the menace of cyber terrorism in India. Although this is a good step in the right direction yet the government of India (GOI) needs to enact a separate and comprehensive legislation in this regard as a single provision would not prove sufficient in the long run.

(3) E-Courts In India: The judicial reforms have finally received the attention of the GOI. However, the quality of judicial services in India cannot be improved till we have E-Courts in India. Till the end of December 2009 India does not have even a single E-Court despite contrary media reports and rumours. Further, there is also an emergent need of e-courts training of judges and lawyers in India.

(4) Online Education And E-Learning In India: Online education in India received two fatal blows this year. Firstly there was a failure of the online examination conducted by IGNOU and then India witnessed the collapse of Common Admission Test (CAT) exams. This shows that India is still not ready for online education and e-learning in India. Even the legal framework for the same is also not conducive and is counter productive.

(5) Unique Identification Project Of India: India adopted Unique Identification Project and constituted Unique Identification Authority of India (UIAI) this year. However, the same is not legitimate in the absence of proper legal framework in this regard that is presently missing. The project also fails to meet the requirements of "Human Rights Protection in Cyberspace".

(6) Serious Frauds And White Collar Crimes: Serious Frauds and White Collar Crimes are increasing in India at a rapid speed. Now the criminals are using ICT to further their acts for committing these crimes. In the absence of stringent laws in this regard, India is becoming a favourite destination for these crimes.

(7) National Security Issues: International Mobile Equipment Identity (IMEI) numbers assumed great significance this year and the GOI banned Chinese mobiles having no IMEI numbers. Even arrests were made to enforce this ban. How mere absence of IMEI numbers alone would prevent enforcement of national security is still unclear.

(8) Crime Reporting By Media: The Delhi High Court has constituted a committee to formulate guidelines for crime reporting by the media. The GOI also constituted a task force for the Broadcasting Authority of India. The choice between self regulation or government enacted laws is still not clear. There is an emergent need of broadcasting laws and regulations in India.

(9) Internet Banking Frauds: Internet Banking frauds are increasing in India at an alarming rate. With a weak cyber law, lack of cyber security awareness and increasing e-surveillance initiatives in India, Internet banking disputes are bound to increase in India. The government is least bothered about these issues and ultimately the account holders would have to bear the financial losses.

(10) Cyber Security Of Defense Forces: The defense forces of India also need cyber security and cyber forensics capabilities. The digital life is an altogether different segment where traditional methods are ineffective. The cyber war and cyber terrorism threats are not only real but also very dangerous. India must upgrade its cyber security and national security capabilities as soon as possible. Repeated cyber security breaches have been reported in India from time to time but the attitude of Indian government has not yet changed.

(11) Cyber War And India: Cyber War and Cyber Terrorism are matters of grave concern to all countries. Equally important are the issue pertaining to cyber security of defense forces in India. These issues are important as they strike at the very root of the critical ICT infrastructure protection in India. While countries like US and Russia are negotiating to limit the impact of cyber wars, India is not doing the needful in this regard.

(12) E-Surveillance In India: With the passage of IT Act 2008 India has now officially become an endemic e-surveillance society. The amendments have provided unregulated, unconstitutional and arbitrary e-surveillance powers to GOI and its agencies and instrumentalities. The fact is that India has become an E-Police State without any regard to "Human Right Protection in Cyberspace". Confidential information is already vulnerable and with the proposed Indian plans of installing key loggers at cyber cafes, the same would exclude the use of cyber cafes for these purposes. Although cyber cafés are not a good place to transact confidential matters yet with a poor Internet penetration in India this may still happen.

(13) Indian E-Governance Failures: There are many factors that ail e-governance of India and make it highly unsuccessful in the Indian context. The net result is that National E-Governance Projects like E-Bharat have died due to absence of proper management, transparency and accountability. Now with the World Bank taking the management of the E-Bharat in its own hands we may expect the revival of the same.

Briefly speaking, Indian efforts for streamlining use of ICT have further degraded from 2008. The year 2009 saw some major ICT pitfalls and bad decisions were made by the GOI. Overall the year 2009 can be said to be “Blunder ICT Year” of India that was really bad for "Human Rights" of Indian netizens.

© All Rights Reserved. No part of this publication must be used, printed, published, republished, etc without prior written affirmative permission from Perry4Law, PTLB and Praveen Dalal.

IS INDUSTRIAL LOBBYING AND VESTED INTERESTS PART OF NATIONAL SECURITY OF INDIA

2009-12-13T23:35:00.000-08:00

Industrial Lobbying and Multi National Companies Pressures have played a decisive, sometimes arm twisting, role in shaping the Polices and Decisions of the Government of India (GOI). The latest among them is the banning of “Chinese Mobiles” that does not bear International Mobile Equipment Identity (IMEI) numbers. The GOI used the card of “National Security” once again without any “Legal Framework” or/and “Justification” for doing the same. The net result is a “rise in sales and profits” of the branded mobile set providers. No person can question the national security initiatives of India provided they are genuine, reasonable and not violative of the Fundamental Rights, Human Rights and other Consumer Rights of the citizens of India. The bigger question is whether the GOI is acting in national interest or vested interest or sheer ignorance?

In a wonderful editorial opinion titled “Pirates versus Extortionists” the author has raised some of the most pertinent questions. It sought an explanation as to how exactly national security would be compromised by the banned Chinese mobile phones.

One may ask does this assertion of banning of these mobiles in India has any significant national security importance? No doubt, having knowledge about the IMEI number has many advantages for law enforcement and telecom service providers. The IMEI number is used by the GSM network to identify valid devices and therefore can be used to stop a stolen phone from accessing the network. If a mobile phone is stolen, the owner can call his or her network provider and instruct them to "ban" the phone using its IMEI number. This renders the phone useless, whether or not the phone's SIM is changed.

However, the bigger question is whether absence of an IMEI number per se is as offensive as to attract the “national security clause” and to brand a holder of such mobile a “terrorist”? The answer is in negative as we need to have additional information besides IMEI for national security purposes. The IMEI is only used to identify the device, and has no permanent or semi-permanent relation to the subscriber. However, many network and security features are enabled by knowing the current device being used by a subscriber.

It is clear that IMEI per se is not conclusive and sufficient to locate a holder of the mobile set. We need other important information as well. The information provided by the SIM cards to the nearest cell tower is more accurate and conclusive than IMEI numbers. The Chinese mobiles without IMEI must also communicate with the service provider’s cell towers in order to communicate and they cannot be a national security threat unless the holder manipulates IMEI, SIM and other crucial technical details and methods of a mobile set. In the absence of an “Explanation” by the GOI, the present action seems to be more guided by vested interests and industrial lobbying than national security concerns. It is also violating the Human Rights, Fundamental Rights and Consumer Rights of Indian citizens without just and reasonable cause.

FROM WELFARE STATE TO E-POLICE STATE

2009-11-01T23:03:00.000-08:00

Those who give up their liberty in exchange for government promises of security, end up with neither liberty nor security-Benjamin Franklin (1759).

With the notification of the Information Technology Act 2008 (IT Act 2008), Indians have lost both liberty and security in cyberspace. The docile nature of Indians is giving the Government of India (GOI) a free hand to compromise not only the liberties and civil rights of the Indians but also to defy the Constitution of India (COI). The procedural safeguards provided by the COI proved to be mere words as there can be no better and bitter example of the blatant violation of the same by GOI. It is also surprising how the Ministry of Law and Mr. Molly cleared a law like this?

Cyberspace by its very nature is uncontrollable. Than what is the purpose of enacting laws like IT Act 2008 and what is the harm if we enact a draconian law like IT Act 2008? This is so because the COI provides proper safeguards and checks upon the Governmental powers. With the IT Act 2008 those restrictions, checks and balances have been removed by the GOI regarding Indian cyberspace that also by a unilateral action.

The silence of Judiciary has put the final nail in the coffin of civil liberties of Indians in cyberspace. The otherwise active and vigilant Judiciary seems to be silent upon the gross e-surveillance and censorship powers conferred by the Executive upon themselves.

If we talk about the technicality as well these provisions would cause more harm than good. For example, when the e-commerce is already threatened by various cyber crimes relaxing the provisions regarding these cyber crimes would shake the confidence of these e-commerce players. Confidential information is already vulnerable and with the proposed plans of installing key loggers at cyber cafes, the same would exclude the use of cyber cafes for these purposes. Although cyber cafés are not a good place to transact confidential matters yet with a poor Internet penetration in India this may still happen.

Also Indians would think twice before sending confidential information on Internet with this chronic surveillance all over India. This is more so when the GOI is moving in the direction of banning use of encryption for online transactions. The Blackberry episode is still fresh in the memory of Indians wherein the GOI has asked the Research in Motion (RIM) to hand over the encryption keys to it. With an already weak cyber security in India, banning use of encryption would take us to the stone age. It is surprising that GOI is still talking about cyber security in India when it is disallowing even the basic operation of cyber security.

Finally, India also does not possess the expertise and capabilities to manage the unconstitutional censorship and surveillance plan. With the present manpower of GOI that seems to be harculian task. The only use of censorship and surveillance seems to be to abuse the same for personal gains and agendas. Neither the citizens of India nor India would be benefited by the present censorship and surveillance plans of GOI.

HUMAN RIGHTS IN CYBERSPACE, INTERNET AND ICT ENVIRONMENT

2009-06-26T23:15:00.000-07:00

Human Rights have many facets and are exercisable in multiple jurisdictions and environments. Originally, Human Rights were available for redressing violations of traditional wrongs and crimes. The origin and omnipresence of Internet and Cyberspace has given rise to new challenges and jurisdictions. The Human Rights like Rights to Speech and Expression, Rights to Privacy, Right to Know, Right to Information, etc have acquired new status and meaning in the cyberspace. A new branch of Human Rights in the form of "Human Rights in Cyberspace" has emerged. This aspect being of recent origin, the State all over the world is struggling hard to cope up with its impacts and ramifications.

There is no doubt about the fact that the State lacks the will and expertise to accommodate the challenging facets of Information and Communication Technology (ICT). As a result the State is trying to “impose” unconstitutional, useless, draconian and absurd laws upon the citizens and netizens.

In the Indian context, the Parliament of India is no different from its foreign counterparts. It lacks the will and expertise to accommodate the daunting demands of balancing the Human Rights with the ever increasing use of Internet and Cyberspace. The problem is that the super old politicians of India belong to the vintage era having neither knowledge nor an inclination to bring ICT to the legislative arena. The majority of politicians of Indian Parliament are above 55 years old and some are even 70 years old. It is obvious that we cannot expect good legislative work in the field of Human Rights in the ICT Environment from them. The net result is that India does not have any sort of Legal Enablement of ICT Systems in India or Legal Framework for Information Society in India.

The next best option seems to be to use the expertise of those who can do this job for the Parliament. The Parliament of India is also not willing to allow non-parliamentary members of Indian community to do the job on its behalf. As a result the defective and oppressive laws are suggested by its peoples and the same are “imposed” upon the nation. Take the example of the proposed Information Technology Amendment Act, 2008 (IT Act, 2008). It is a weak, defective and inadequate law on many counts. Still the Government of India (GOI) is forcing it upon the Indian Citizens as the GOI does not possess the capability and expertise to enact good cyber law for India. Whatever law is suggested by its own people the same is implemented with a “blind eye and deaf years”.

Another aspect that shows an indifferent attitude towards providing strong and effective Human Rights protection in Cyberspace relates to the “indecisiveness” of the GOI regarding “notification” of the laws enacted by it. For instance, the IT Act, 2008 has sill not been “notified” despite the fact that it received the assent of President of India on 5th February 2009. This shows that the GOI is not “confident” of its own actions and regulations in this regard. A strong, committed and dedicated Government would either notify the enacted Acts or it would come out openly and declared that the Act would be “reformulated suitably”. There is no room for “diplomacy” in law making that GOI is presently following. In my suggestion, the GOI must come out openly and declare that it would reformulate the IT Act, 2008 with better, strong and effective provisions. Otherwise Human Rights would keep on looking for a saviour to protect them from State excesses.

UNCONSTITUTIONAL LAW MAKING AND HUMAN RIGHTS

2009-06-20T04:41:00.000-07:00

Every Nation makes wrong and distorted laws at some point of time or other. The courts, as guardians of basic Human Rights and other statutory rights, declare such laws bad. On such declaration these laws become “Unconstitutional and Inoperative” being against the very Constitution that regulates the conducts of Executive, Legislature and Judiciary. The Constitution has bifurcated essential tasks to these three sovereign constituents of the Constitution in the hope that each would keep a check upon the other. The real problem starts when one branch of Governmental functioning becomes “All Powerful” and starts influencing the others one.

The Executive branch is generally considered as the most powerful and dangerous branch all over the World. India is definitely no exception to this rule. The real problem arises when the Government has a “Free Go” to do whatever it likes and the Judiciary becomes a “Moot Spectator”. In that case, the Constitution in general and the Human Rights in particular looses their “Significance and Impact”. Surprisingly, this scenario is very “Commonly Found’ all over the World. The”Judicial Activism” astonishingly stops at this point of time and the concept of “Suo-Motu Action” becomes an alien concept.

This is the point and stage at which “Totalitarianism” creeps in and the laws are imposed upon the citizens of the concerned Nation. We have been witnessing such “Draconian Laws” all over the World these days. As far as India is concerned, it just entered the “League” by suggesting (it has yet to become an applicable law) the Information Technology Amendment Act, 2008 (IT Act, 2008) that contains provisions which are bound to be abused very soon.

The first thing that is worth noticing about the IT Act, 2008 is that it has been passed without any “discussion or debate” by the Parliament of India. Many laws were passed in similar fashion within few minutes. This is not the “Mode and Manner” that the Constitution of India has prescribed for law making in India. This episode has just shown that the Government of India (GOI) is just interested in “basic formalities” without meeting the “Rigours and Mandates” of the Constitution of India (COI). The heavyweight concepts like “Democracy”, “Parliamentary Democracy”, etc just proved mere words having no significance for and restrictions against the Parliament at all. All that the GOI is interested in is some law, howsoever bad and offensive it may be, to fall back upon and justify its illegal and unreasonable actions in future. It failed to appreciate that a law must be “Just, Reasonable and Fair” to escape the clutches of Articles 14, 19 and 21 of the COI. Otherwise it would be declared as “Unconstitutional” by the High Court(s) or the Supreme Court of India.

Now the IT Act, 2008 is violative of Article 14, 19 and 21 and other Fundamental Rights on “Numerous Counts” (would be discussed separately and subsequently). However, the GOI is “Very Strongly Interested” in pushing it further despite all odds. With the unreasonable and illegal e-surveillance provisions in the IT Act, 2000 and other deficiencies, the floodgate of litigations would be opened soon.

However, what would happen if neither Executive nor Judiciary would be “Interested” in challenging and analysing this “Unconstitutional Law making”? The answer is very simple. The modern version of “Private Defense” would come into play with full rigours and beyond the capacity and capabilities of GOI. To give an example let us consider the cases of “Blocking of Websites” by GOI in the past. The GOI has blocked various websites from time to time. However, Netizens found the methods of bypassing the same by relaying the traffic through “Proxies”. A site not accessible in India can be accessed through US, UK or at any other place through this mode.

The GOI must understand that it is wasting Crores of hard earned public money on “Futile and Unconstitutional Actions”. This way they are not going to catch the real culprits but would only harass the innocent victims and Netizens.

This initiative has been primarily undertaken to suggest relevant policies and strategies to the Government of various Nations in general and Government of India in particular regarding valid, legal and constitutional e-surveillance and e-actions. At the same time this platform would also suggest various “Techno-Legal Measures” to avoid illegal, unreasonable and unconstitutional e-surveillance and e-excesses by various Governments. To achieve this purpose this platform would suggest both “Technological” as well as “Legal” measures.

Needless to mention that this initiative intends to “Safeguard” the interest of law abiding Netizens alone and is not a platform for criminals and offenders to settle their scores against the respective Governments. All suggestions, strategies, measures, etc suggested at this platform are subject to the “Disclaimer” available at this site. Readers and viewers of this site must act on their own discretion after duly consulting the Legal and Law Enforcement Personnel.