[Reader-list] New IT Act

[Rakesh Iyer]

Dear all

Since we all keep on posting one or the other article on the net, often
criticizing someone or the other, I thought this may be an important article
to read, considering that it could bring in sweeping changes of the kind not
yet witnessed in India. (or that's what the article says at least, probably
leading to conclusions like Taha jee put behind bars for stating views
against the UID scheme, or me also going to jail for some other 'reason').

Please do go through the article, for it could be an attack on the 'freedom
of speech', and as stated, could very certainly be an attack on privacy of
individuals. While the need for security is there, one has to debate before
bringing such acts in the statute to govern citizens.

Regards

Rakesh


*it: cyber laws*
*What Was The Password?*
The new IT Act plans sweeping changes. But security, libel, privacy, the big
issues will prove contentious.
 Arindam Mukherjee<http://www.outlookindia.com/peoplefnl.aspx?pid=3920&author=Arindam+Mukherjee>

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  We Are Watching

   - *Cyber police is watching* Government can monitor, intercept or even
   block any online content including e-mail that it thinks is offensive or
   could threaten national security. Could lead to misuse.
   - *Personal data up for grabs *Government agencies can now demand users'
   personal data from internet service providers.



   “We need to protect our strategic assets online.... The Act won’t be used
   to take away freedom of speech.”Sachin Pilot, MoS, IT



   Could lead to privacy issues and litigation.
   - *Beware of e-mail/MMS/SMS jokes *Exchange of messages/data that are
   “offensive, annoying or cause inconvenience” over any computing device will
   be treated as an offence. Open to interpretation.
   - *Intermediaries are better off *Service providers will not be held
   responsible for offensive content put up by websites, but will have to
   respond to state orders to block/ remove content within two hours. Could
   lead to technology issues.

***

Here’s a wake-up call for those just digesting Pakistan’s ban on the
“slander” of its leaders via SMS or e-mail. It might just pay to be careful
while exchanging a joke about national leaders in India too. Anything you
send or receive through the Net will soon come under the scanner—if it even
remotely resembles anything “offensive or against national security”, you
could well land up in jail. If the rules being drafted under the Information
Technology (IT) Act come into force, the government will have sweeping new
powers to monitor, intercept or even block any content—and also prosecute
people.

Pretty soon, millions of Indian users will find that it’s no longer easy to
put up just about anything on the internet without bothering about it. A
photograph, a joke or an innocent, honest comment on a contentious issue
could prove to be troublesome depending on how a government agency
interprets it.

Drafted under the broad umbrella of cyber security, the rules (see box) give
teeth to a new law passed by the government late last year.




“Enemies of the state are clearly using the internet. We need some ability
to intrude, stop them.”R. Chandrasekhar, IT entrepreneur



It changes the system of penalties for cyber offences and makes it easy for
government agencies to seek any information, including users’ personal data.
This sudden extremism over Net activities stems from the 26/11 terrorist
attacks in Mumbai last year, where internet and mobile technology was
allegedly used to plan and execute the operation. India’s action here is not
isolated and follows a pattern among countries like US and China, who are
targeting terror aided by the internet.

While the context behind the new rules-in-the-making is clear, there are
wider concerns. This comes at a time when many Indians are discovering the
freedom to voice opinions on the Net—via blogs, websites and forums. Now,
comments that might be construed as libellous, objectionable or ‘anti-India’
could be taken off and their authors prosecuted. Leading blogger Amit Varma
of *Indiauncut.com* (one of *Businessweek*’s most powerful Indians this
year) says he’s “sceptical about giving public servants so much power over
the rest of us. Governments are there to serve us, not rule us...these
amendments show a ruler’s mentality. We are not the chattel of the
government”. The fear and concern, as always, is the possibility of
arbitrary (or motivated) reactions by the state. Some will argue this is
akin to crying wolf, but the lack of confidence comes from numerous examples
in the recent past where the state reacted in a ham-handed manner to
prosecute people.

There have already been cases where loose comments on historical figures
like Shivaji and Mahatma Gandhi have invited the ire of some people. Now the
arm of the law will also go after the authors. Government action could be
swift—and without judicial intervention. The manner in which the government
ordered internet service providers (ISPS) to block adult cartoon website *
savitabhabhi.com* without giving it a chance to respond could be a precursor
to a new digital era.

Some are also viewing this as a government attempt at censorship of online
media. Says Subho Ray, president of the internet body, IAMAI: “There is a
feeling that under the garb of rules, they are bringing in Net censorship.
There’s no limit to which the provisions can be stretched. It’s fragile.
What’s worse...the rules pre-empt the judicial process by giving powers to
government agencies.”

Media organisations with electronic or online versions are also in a huddle.
They feel this could seriously affect their working. In a statement, the
News Broadcasters Association said: “What is now being done amounts to
eavesdropping, taping and interception of electronic communications
including, quite shockingly, the blocking of information or censorship of
sites that disseminate news and information.” And since a large number of
online news portals are an extension of their print versions, the tremors
could be felt in the print sphere too.

Obviously, the government feels otherwise. Says MoS for IT Sachin Pilot: “In
no way will the Act be allowed to take away freedom of speech. The objective
is not to endanger national security. We have a lot of strategic assets
online. These need to be protected.”

Legal experts, however, feel the new provisions could lead to increased
litigation. “The amendments have been actuated with noble intentions but
have come up with a hybrid creature which is neither effective, nor
comprehensive,” warns cyber-law expert Pavan Duggal. He feels that while the
new rules have enhanced the coverage of cyber crimes, its impact has been
somewhat loosened by making most of them bailable—which could make
arrests/conviction difficult.

The other issue engaging internet companies and users is that of privacy.
While the government justifies wire-tapping and looking into data and
information being exchanged between individuals as a way to prevent terror
attacks, many view this as an infringement. The rules make sending and
receiving information that is “offensive, annoying and which is causing
inconvenience” an offence. This, feel lawyers, not only infringes on privacy
but also is open to interpretation as any data or information exchange could
be termed offensive. Pilot, however, feels such a situation will not arise.
As he says, “The government is quite conscious of this and is not looking to
use this legislation to infringe upon people’s privacy.”

Industry has been busy protecting its interests. The law absolves the
intermediaries—typically ISPS, telcos, mobile value-added service providers
and even web mail companies—of responsibility if any objectionable or
offensive content surfaces on their service. So if you abuse a political
leader on Yahoo or Google mail, or even a blog, you and not the mail or blog
company would be held responsible and prosecuted. Recently, a Mumbai doctor
moved the HC against alleged defamatory material posted on blogs on Google.
While Google will not be held responsible, under the new regime the
government might extract data about the users and go after them.

The intermediaries are now liable to provide information and data about
users to state agencies on demand. Naturally, they are up in arms, saying
this violates confidentiality of user data. Says Amitabh Singhal,
ex-president, ISPAI: “There should be a specific agency responsible for
authorising such action or the government agencies should get a judicial
mandate for seeking data. That will indemnify ISPS from being sued by users
who provide personal data on the condition of confidentiality.”

There is, however, a feeling that some amount of accountability is required
from the ISPS—and other intermediaries. “The internet is clearly being used
by the enemies of the state. We need some ability to intrude into the
internet and stop that. There is a need to ensure that objectionable
material have their sources identified. Anonymity is not permitted under the
Act,” says RS member Rajeev Chandrasekhar, who was involved in the
discussion process for the new rules.

What is also bothering the ISPS is the fact that the new proposals give them
just two hours to respond to any instruction given by a government agency to
modify, remove or block a particular website or content. A more logical
timeframe is needed to execute such orders as removing or blocking content
is not just a local matter and requires them to tie up with local, national
and international servers and companies—many of whom might not be accessible
within those two hours.

On the brighter side, the new rules remove the provision for fixed
penalties, which were earlier prescribed. Those found guilty now would be
required to pay “compensation”, the amount of which would depend upon the
extent of the crime and damage, which would need to be established. This
would ensure that cyber criminals will no longer be able to get away with
paltry fines for crimes with serious ramifications. Lawyers, however, are
sceptical about its effectiveness. Says Duggal: “In all the years that this
law has been in existence, not a single rupee has been awarded to anyone.”

One thing is clear. While the government is looking at national security as
its primary premise for mounting the rules, India’s growing Net user base
could find the going tougher in the future. There could now be many
stumbling blocks in their smooth sailing over the World Wide Web. This
deserves a bigger debate and a more careful parsing of the proposed rules.
The devil, as always, lies in the details.