Let's Build a Responsible Cyber Society


 

If Laws Go Soft, Will Crimes Reduce?

 

ITA-2000 was enacted primarily to provide legal recognition to Electronic Documents as a support to E-Commerce. But it was felt that "Cyber Crimes" are also a threat to E-Commerce and need to be addressed in the Act. Hence an attempt was made through Sections 65,66,67and 70 to address some of the then known Cyber Crimes. Relief was provided to  victims of Cyber Crimes and Cyber Accidents through Section 43. Additionally, certain sections such as 71, 72,73 and 74 had been introduced to protect the "Digital Signature System". Sections 44 and 68 provided for penalties for disciplining the Certifying Authorities.

Simultaneously, the law enforcement had been provided limited powers to search and arrest without warrant (in public places) under Section 80 and was supported by Section 69 for interception through the office of the Controller. The imprisonment terms under Section 65,66,67, 69 and 70 exceeded 3 years and hence even without Section 80, Police could invoke the powers under CrPc treating the offence as a "Cognizable Offence".

Also, the provisions of Section 66 and Section 43 were so worded that the could be applied for all offences where "Information residing inside a Computer" had been affected adversely. It could cover all forms of Hacking, Virus, Spywares, ATM frauds, Credit Card Frauds etc.

Additionally, sections 85 and Sections 79 were so worded that Intermediaries and Companies had to follow a strict self discipline in the form of "Due Diligence" without which they or their executives could be held liable for the Crimes occurring in the network. While this was a matter of inconvenience to the intermediaries (ISPs and Cyber Cafes in particular), in the larger interest of controlling crimes in the society, this was a reasonable imposition on the intermediaries. The adverse effect of this "Vicarious Liability" would have been felt only by the negligent, ignorant and inefficient intermediaries and their employees.

In contrast, the amendments proposed for the ITA-2000 by the Expert Committee are conspicuous by their softness. Firstly, it is soft on the offenders by reducing punishment terms. Then it is softer on them by making proof of "Fraud" and "Dishonest" pre conditions for application of sections like 66. Further it is benevolent on the intermediaries by making all of them nearly immune to any crimes that may happen within the network. Additionally, it is protective of the offenders by reducing the powers of the Police to "nothing". Police can neither arrest offenders under ITA 2000 or under CrPc. More over through a process of Compounding, even the powr of the judciary has been subordianted to the executive.

It is as if criminals who use Computers and Internet are a privileged lot unlike the criminals who work with paper.

This softness, benevolence and protection of Cyber Criminals has opened up a larger debate of whether making laws soft, reduce the incidence of Cyber Crimes.

The very need for laws arise from the fact that Crimes exist in the society. So if there was no fear of Cyber Crimes we donot have to worry about how ITA addresses the issue of Cyber Crimes.  However, strong laws are a necessary deterrent for any Crimes and this principle applies not only for the traffic offences, dowry offences, rape and murders as well as Cyber Crimes. In fact, in many of the Muslim Countries where Shariat laws are applicable, theft and rape are extinct.

Civilized societies do believe that going soft on first time offenders is the right strategy towards  "Reformation" of the deviant behavior of the misguided offenders. However,  they also believe that "Deterrence" through stringent provisions in law applied softly is the right approach rather than weak laws which remain weak even against the hardened criminals. For example, it is necessary to have "Capital Punishment"  in the statute so that they can be applied in the case of  heinous crimes though it is applied only in the rarest of rare cases.

It is this fundamental principle of Criminology that is being over turned in the proposed amendments. The proposed amendments have singularly attempted to make the ITA-2000 less stringent than before by reducing the imprisonment terms in most cases and exempting several categories of intermediaries from the liabilities. The reduction in imprisonment to less than 3 years, removal of Section 80 and introduction of a mandate to make complaints directly to the Magistrate under Section 72 have together reduced the role of Law Enforcement in dealing with Cyber Crimes.

The net effect of the amendments if carried through is to make the Criminals less worried about the punishments and the intermediaries less concerned about preventive measures and less cooperative with the law enforcement.

Criminals cannot be arrested for any of the contraventions under the Act. Simultaneously, Computers or Mobiles or other devices that are suspected to have incriminating evidences cannot be seized without an order of the Court sought under Section 76 of the Act. The offender will therefore have enough scope to obliterate evidences which are fragile ab-initio. Cyber Cafes and ISPs will now act tough on the investigating officers and may refuse to cooperate with the Police by expressing their inability to maintain certain types of records, refusing to share certain types of information and generally being elusive.

A comprehensive legislation such as ITA-2000, should address the requirements of all stake holders which includes the Law Enforcement. However the proposed amendments try to address only one segment namely the "Intermediaries" and in the process grossly aids proliferation of Cyber Crimes.

It is reasonably  clear that the "Expert Committee" was formed with the sole objective of protecting the Intermediaries and it has done a more than adequate job of the same. However in the process it has hurt the basic fabric of Crime Management in the society by making it useless for Crime prevention.

The proposal has the effect of creating a wedge between the law enforcement and the industry since any opposition to the amendments would appear to be an opposition to the otherwise industry friendly propositions.

Despite the possibility of the intentions of the undersigned being misunderstood, I reiterate that the proposed amendments are not condusive to a better Cyber Society and needs to be reviewed through a national debate.

If we analyse  the type of Cyber Crimes we have come across in recent days it would be clear that  the worst sufferers of this dishonest and fraudulent benevolence would be the women folk in the country. Many of the crimes involve defamation of women by posting false and derogatory remarks, falsely constructed nude pictures etc. Forget the increased compensation amount suggested in the amendments, it is unlikely that the cases can even be investigated properly. Even cases as repulsive as that of Dr Prakash's case in Chennai would become difficult to investigate.

If the amendments become a law, it is also unlikely that in cases such as the Gurgaon BPO case, an employee like Karan Bahree can be arrested since it will be required to prove that he had acted "Dishonesty" and "Fraudulently".

Apart from the apparent lacuna in the proposed amendments it must be recognized that the formation of the Committee bye-passing the Cyber Regulations Advisory Committee was in itself an incorrect and perhaps ultra-vires the Act. If challenged in a Court, it is likely that the committee's proposals may be held invalid. However, since the Ministry of Information Technology appears to have taken the committee's report as its own report there may be a tendency to push the legislation through with force.

Time has now come for the Netizens to recognize that in order to protect Bazee.com, the entire Cyber Law regime of India is being overhauled and several other cases are being sacrificed. It is time to ask "Is this not a "Dishonest" and "Fraudulent" proposal?"

Naavi.org requests the Ministry of Communications and Technology to facilitate a national debate on the issue before further action is taken on the report and also urge industry bodies such as the FICCI, Nasscom and others to also contribute in having a larger debate on the subject. In such debates, "Criminology Specialists" and "Law Enforcement Officers" should also be made to participate along with the industry.

Naavi

September 4, 2005

Copy of the Amendments