Don't Dilute Section 66
The long wait seems to be over. Ever since baazee.com issue surfaced in
end 2004 and an expert committee was formed to suggest amendments
(superceding Cyber Regulations Advisory Committee ) ITA 2000 is waiting for
amendments. This fortnight it is expected that the ITA 2000 Amendment Bill
may get passed in the Parliament. Here are some thoughts on the proposed
amendments based on the draft which was earlier in the public domain of
what the amendments should avoid. This is presented here so that our MPs
will take necessary steps to raise appropriate objections if the amendments
are proposed against the interests of community... Naavi
When ITA 2000 was drafted as a Bill some time in 1999, as a legislation to
support E-Commerce with recognition of electronic documents and Digital
Signatures, it was thought that there was a need to also protect E-Commerce
industry from Cyber Crimes and hence a few sections on what we often refer
to as "Cyber Crimes" were added in the Bill. It may be remembered that most
other countries passed separate acts for "E-Commerce Promotion" and "Cyber
Crimes" while India passed a single comprehensive legislation in the form
of ITA 2000.
Since 1999, the Cyber Crime scenario has changed substantially. many new
types of crimes have come to the surface. Some of the new generation crimes
which were not that prevalent in 1999 are "Internet Leeching", "Botnets",
"Phishing", "Spamming", "ATM Frauds", "Credit Card Cloning", "Coat-tailing
Trojans", "Key Loggers" etc.
Naturally there is one school of thought that ITA 2000 drafted in 1999
cannot satisfy the requirements of meeting Cyber Crime threats of today and
hence several new sections need to be added as "Offences".
We can therefore expect several new sections added to the act under
headings of "Cyber Terrorism", "Cyber Stalking", "Data Protection",
"Privacy Protection" etc.
One expected change is what is contemplated for Section 66.
Presently, Section 66 has stood the test of time and guards against all
kinds of Cyber Crimes. The School of thought led by the undersigned have an
opinion that it addresses all the current generation of Cyber Crimes since
it makes "Diminishing the Value of Information residing a computer",
"Diminishing the utility of information residing inside a computer",
"Affecting information residing inside a computer injuriously" as part of
the offence like deletion, alteration or modification. More over it covers
acts by "Any Means" and even when the perpetrator of the crime had only the
knowledge that he may cause "wrongful harm" but not the intention.
The section read "
Whoever with the intent to cause or knowing that he is
likely to cause wrongful loss or damage to the public or any person,
destroys or deletes or alters any information residing in a computer
resource or diminishes its value or utility or affects it injuriously by
any means, commits hacking. and
Whoever commits hacking shall be punished with
imprisonment up to three years, or with fine which may extend up to two
lakh rupees, or with both. "
Now the proposed amendment bill introduces a replacement
of the section by a new version which states as follows.
"If any person, dishonestly, or fraudulently, does any
act referred to in section 43, he shall be punishable with imprisonment for
a term which may extend to two years or with fine which may extend to five
lakh rupees or with both.
Explanation: For the purpose of this section,-
a) the word "dishonestly" shall have the meaning
assigned to it in section 24 of the Indian Penal Code;
b) the word "fraudulently" shall have the meaning
assigned to it in section 25 of the Indian Penal Code."
This section has to be read with Section 43 which
includes the current provision of Section 66 of ITA 2000 namely
"destroys, deletes or alters any information residing in
a computer resource or diminishes its value or utility or affects it
injuriously by any means "
However Section 43 applies only for cases
"If any person without permission of the owner or any
other person who is in charge of a computer, computer system or computer
network" commits the stated acts.
The acts qualifying as contravention under this section
include actions such as "Accessing"," Downloading"," introducing a virus",
"Damaging"," Disrupting", "Causing Denial of Access"," Charging a service
to another person" etc.
Though the spectrum of activities included in the
definition of Section 66 offence is wide enough, the new section is
considered a substantial dilution of the current provision.
The reason or this conclusion is that in order to invoke
the section, there is need to prove "Dishonest" and "Fraudulent intention".
Mere "Knowledge" is not sufficient. Also there would be no liability if the
defense of " Permission from the person in charge of the computer" is
available. Thus three loopholes are being added to the section to enable
the accused to escape.
Additionally, the imprisonment term is reduced from 3
years to 2 years and declared as "Non Cognizable".
In view of these proposed changes, the amendment as
proposed is considered as a substantial dilution and in the current context
of increased Cyber threats, not acceptable.
The Parliamentary Standing Committee which examined the
amendment bill made a recommendation that the offences listed in Section 66
must be made cognizable with three years of imprisonment. It also suggested
that ITA 2000 should be a self contained law and should not be dependent on
IPC or other laws for interpretation.
The committee also came down heavily on an attempt to
remove Section 80 which provided powers to the Police for arrest and
seizure without warrant in public places. The committee also expressed its
reservations on making the offence under Section 66 as "Compoundable".
Now it is time to check that the new draft which will be
presented in the Parliament takes into account the suggestions made by the
Parliamentary committee or simply ignores them.
I therefore urge the Members of Parliament to specially
watch out for the fine print in the proposed amendments and ensure that the
intentions of the standing committee are not defeated.
[Watch out for More Articles in this series]
