A Portal Friendly Legislation in the Offing?
[This is continuation of the earlier article
What
Happenned to CRAC?]
The current exercise of an in-depth review of ITA-2000
is being undertaken under the shadow of the arrest of Bazee.com CEO which was
severely opposed by the industry. Nasscom and FICCI along with Industry leaders
such as Narayana Murthy of Infosys went on record to say that the "Law Has to be
Changed". The Government has now obliged by forming an expert committee which
includes Nasscom Chief and two of the major portals in India namely rediff.com
and Sify.com.
It is to be remembered that some time back, rediff.com had
faced a case under Section 67 of ITA-2000. Sify.com which was hosting sales of what
could be objectionable literature in its "Erotica Store" hastily
removed the items after the adverse publicity attracted by Bazee.com and an informal
complaint was communicated to them. It may be recalled that Naavi.org had raised objections both to indiatimes.com and rediff.com (See
Advertising Code?..or Section 67 of ITA 2000?) for their less than
adequate handling of content control in the past. Sify.com has on the other hand
been more responsive to the Cyber Law Compliance requirements and has taken some
steps from time to time to ensure that deliberate violation of known laws are
reduced.
In view of the involvement of the major portal chiefs of the
country in the committee who themselves have experienced the heat of the current
law, it would be reasonable to expect that
the proposed new face of ITA-2000 would be "Portal Friendly".
One of the first sections which is likely to be reviewed is
Section 67 along with Section 79 and 85. Presently these sections have some
vagueness which has unnerved the industry. There could therefore be an attempt
to make them more specific.
It is however necessary that in the process of making the law
more specific such as defining "Due Diligence", the industry may inadvertently
lose some of the flexibility that is presently available.
It should also be remembered that the bazee.com CEO got into
problem more because of the operation of Section 292 of IPC.
According to Section 292 of IPC
Whoever-
(a) sells, lets to hire,
distributes, publicly exhibits or in any manner puts into circulation, or for
purposes of sale, hire, distribution, public exhibition or circulation, makes,
produces or has in his possession any obscene book, pamphlet, paper, drawing,
painting, representation or figure or any other obscene object whatsoever,
or..
This section operated on Bazee.com
along with section 4 of ITA-2000. Some of
these points have been highlighted in the earlier series of articles at naavi.org ("C2C
auction site is a Mine filed of Cyber Law Risks" and
Bloggers
Beware).
If adequate protection has to be given to
Portal owners and executives of portal owners from the type of problems faced by
Bazee.com, there needs to be an unconditional absolute protection given to all
portals.
Such an attempt has the danger of enabling
many other small portals to hawk pornographic stuff and other illegal materials
including anti national propaganda material. This has to be avoided.
Another requirement of the review would be
to make changes to Section 80. Again it should be remembered that this section
is presently being viewed with certain provisions of the Criminal Procedure
Code.
In fact Section 80 on the one hand protects persons against arrest and
search in private places without a warrant. The spirit of this section is of
course being violated some times by the Police by first moving the person for questioning outside the
private premises and then effecting the arrest.
Search and Seizures are however
being carried out by law enforcement authorities now either under the provisions
of CrPC or under the mistaken impression that such rights are available under
ITA-2000. The section 80 is often interpreted as "Arrests can be made in a public
place without warrant for offences under any of the sections of ITA-2000".
If this misconception has to be removed,
then there will be a major impact on CrPC and several other procedures being
followed. Presently, any crime is being registered under multiple Acts such as
IPC and ITA-2000 and therefore it would not be easy to determine when CrPC would
be applicable and when not when the same person is accused of crimes under both
acts as in the case of Bazee.com.
Again therefore if Bazee.com CEO and their
likes are to be given immunity, then the immunity should be against CrPC
provisions as well. This again has the danger of assisting organized criminals
from running portals and claiming immunity along with Avnish Bajaj and the
likes.
Some of the other changes that the indepth review has to address are issues such
as "Anti Spam" and "Data Protection" aspects on which
the Ministry of Communication and Information Technology had already been
working on. These issues are likely to be
added in the form of additional sections to the current Chapter XI.
This may however require a larger debate along with the
Home Department and Law Department since it may involve international legal
issues. The current committee can therefore m\only make tentative suggestions.
Further, some offences such as Virus introduction and Denial of Service etc which find a place only
in the Section 43 of the ITA-2000 may also need to be reflected in Chapter XI.
Cyber Stalking which got side lined along with the Convergence Bill may again
have to be
added to the list of offences under Chapter XI. These again require the concurrence of
the Home Department and Law Department.
It is also likely that Chapter XI offences may also be brought under the
Adjudication process so that technical expertise may be made available for a
quick disposition of the cases. This could be an answer to some of the problems
seen in Bazee.com type of cases but could make lot of changes to the Judicial
system and Law Department would be unhappy if they are not part of the
consultative process.
Another area where the law could be meddled is in the Authentication area where
there has been a long standing demand for introduction of alternatives to
Digital Signatures. This may however affect the investments already made by
Safescrypt and other Certifying Authorities.
Another aspect the committee is likely to dwell on is the Cyber Forensic Area.
Here again, the Indian Evidence Act has to be tinkered with and unless the moves
are well thought out the remedies may turn out to be worse than the
decease.
There is a need to discuss this with the Law Enforcement Agencies or
experts who have been dealing with these issues on a day to day basis to
understand the problems associated with the Cyber Evidence collection,
preservation and presentation. The current committee does not have a proper
representation in this respect though Mr Chakravarthy himself may be expected to
address some technical issues concerning the same.
Additionally, the Committee will have to address the issue of supplementary
legislations by State Governments which have the effect of modifying the
ITA-2000 such as the Cyber Cafe regulations. The security guidelines issued as annexures to rules accompanying ITA-2000 and their impact on "Due Diligence"
also needs to be addressed.
Considering the complexities involved therefore, there are several concerns
about the effectiveness of the proposed committee to find proper solutions that
need to be addressed. In all probability this will be a knee jerk reaction to
the Bazee.com problem and to satisfy the pressures that came from the industry
in its aftermath.
Naavi.org invites
its readers to contribute their views in this regard.
Naavi
January 8, 2005
Related Articles:
Please refer to List of Articles for the
past coverage on the subject at Naavi.org
Latest Version
of ITA-2000 is Available here:
