Comments on the Proposed Amendments to ITA-2000
Naavi: Praveen Dalal: Sarbajit Roy: Kamal Dave
Mr Kamal Dave, Advocate sends his comments
A Copy of the comments sent by Mr Kamal Dave, advocate from Delhi on the proposed amendments to ITA-2000 is reproduced here.
Where is Consumer Interest Covered under ITAA -2005?
Time and again, Naavi.org has been highlighting the plight of Consumers of ICT services ..call them as Netizens or otherwise. The difficulties regarding inefficient Internet access and e-mail services, lack of mobility of e-mail IDs across ISPs, lack of transparency on bandwidth metering etc. Of late, ISPs like Tata Indicom have unilaterally changed access contracts from what was prevailing earlier and have even stopped free alternate access support during down time.
When ITA-2000 was being amended, it was expected that the Government would consider some provisions to make ISPs more transparent and responsible for their services. However, the amendments have been aimed giving ISPs more freedom to indulge in corrupt practices and no thought has been spared on the hapless ICT Consumer.
Since ITA-2000 (amendment) proposes to even bring Mobile Service providers under the protective umbrella, it is necessary to highlight this experience of a mobile service consumer in these columns. Any suggestions and comments in this regard are welcome.....Dr Mohan Rao and his Air Tel travails.
Comments from Praveen Dalal
Thane Youth's Arrest Under Sec 66
The arrest of a Thane youth for allegedly hacking into VSNL mail server and deleting e-mails belonging to several persons is another interesting incident to check the effectiveness of the proposed amendments to ITA-2000. Under the new provisions, Police will not be able to arrest nor seize the computers as they have done solely under the provisions of ITA-2000 unless they were armed with a Court order. Secondly, they have to prove that the action was done "Dishonestly", "Fraudulently" and "Without Permission". Next they have to prove that certain mails were there at a point of time and are no longer there and this can be attributed to the activities of the alleged hacker. All this has to be done with evidences that stick...A much harder task compared to the current provisions where the complaint by the ISP would have been sufficient to arrest, seize and investigate. Also evidence from ISP that "so and so had logged on to so and so e-mail box" would have been sufficient to prove "Diminishing in value of information residing inside the computer". Even if the Police succeed, the accused can enter into compounding, pay money and escape....Another clear indication of why the proposed amendments lack vision and are considered criminal friendly. Story in TOI
Naavi.org Submits its views to MCIT on ITA Amendments
Naavi has submitted his views to MCIT on the proposed amendments to ITA-2000, a copy of which is available here.
Computer Society of India Sends its Views on ITA Amendments
The Computer Society of India (CSI) Chennai Chapter which conducted a discussion meeting on 13th September on the proposed amendments to ITA-2000 has submitted its views to the Ministry of Communications and technology. A Copy of the same is available here.
Amendments will have Negative Impact....says Pavan Duggal
Mr Pavan Duggal, a well known Cyber Law Expert has said that the proposed amendments will have a negative impact on E-Business in India. He also states that .."...the proposed amendments have also created tremendous problems for netizens who do not now have any effective remedy against intermediaries in their disputes with them" ..Report in ET
Tarannum Case...Good that the Amendments are not yet in place!
According to this TOI report, Tarannum has been booked under Section 66 of the ITA-2000. It may be a good time to recall that if the recommendations of the "Expert Committee" is accepted, the Police would not have been able to invoke the section. Further if the amendments come to force, Tarranum can enter into a compounding of Sec 66 offence with the Adjudicator of Maharashtra despite the pending court case and get discharged...Another clear indicator of why the amendments proposed lack vision and are detrimental to the society. TOI report
CSI Meet Discusses Proposed Amendments to ITA 2000
The Chennai Chapter of Computer Society of India conducted a discussion on the proposed amendments to ITA-2000. Several members of CSI from the IT industry as well as members from the legal and academic community participated in the discussions. CSI is preparing a summary of the discussions to be forwarded to MCIT.
Will This Sort of Crimes Proliferate in the New regime?
In order to understand the adverse impact of the proposed amendments to ITA-2000 by the Expert committee, it is necessary to check the impact of the proposals with a crime of the nature reported in Deccan Herald today and online frauds.
Each of the expert committee members will share the moral responsibility for such crimes since they have deliberately created a law which is anti consumer, anti women and anti society...Details
Comments from Praveen Dalal on ITAA (p)..2005
Praveen Dalal, the Delhi based High Court Advocate presents his views on the proposed amendments through a series of comments on the amendments proposed to the ITA-2000 by the Expert Committee. Commenting on the proposed amendments, Praveen says that it is better to scrap the IT Act than keep it in the proposed form. He expresses his fear that "The Act will be a “safe harbour” for the criminals and given the nature of the Internet, India will be a favourite place for all cyber crimes and contraventions.".....Comments1 : Comments 2 : Comments 3 :Comments4(A), Comments 4(B): Comments 4 (C), Comments 4(D) Comments V, Comments VI
Reviewing the Review of ITA-2000
Computer Society of India, Chennai Chapter has organized a discussion meet on "Amendments to ITA-2000" in Chennai on 13th September. During the meeting several issues arising out of the proposed amendments would be discussed and a feedback would be submitted to the Ministry of Communications and Information Technology. Naavi has identified some of the issues which need debate which are presented here. Readers are requested to send other issues that need to be added to this list for discussion. Suggestions can be sent to email@example.com : Detailed Issues
Who is Important?...The Common Man/Woman?..or the Intermediary?
In a typical Cyber Crime which keeps happening in India with some regularity, a Chandigarh based girls has found her face being morphed on to a nude picture and circulated amongst her relatives and friends. It is said that the investigations have hit a dead end at a Cyber Cafe which has not maintained any details of the user. ....Report in Chandigarh news line
At a time when such Cyber Crimes require a tightening of Cyber Laws, the proposed softening of the laws as suggested by the Expert Committee provides a glaring contrast. The option before the Government is to decide if it is the interest of the Common man/woman which is important or the interest of the intermediaries? . Will any member of the Expert Committee or the MCIT let us know how the proposed amendments would fare compared to the present act with specific reference to Section 66,67,72,79 and 80....Details
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. In contrast, the amendments proposed for the ITA-2000 by the Expert Committee are conspicuous by their softness. 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. ...Details
Punishment and Reformation ...Praveen Dalal
Whether to apply deterrent theory or reformative theory would depend upon facts and circumstances of each case but the ultimate aim of the courts should be to do complete justice to the society, victim and the offender...Details
A Missed Opportunity
It is unfortunate that a committee consisting of several successful e-business CEOs, experienced bureaucrats and knowledgeable legal professionals should come out with a report which should be condemned as above. But the outcome only reflects that if you start with the wrong objectives you end up with a wrong output not withstanding the presence of professionals in the committee who were in fact “Experts” individually though they have not demonstrated their expertise “Collectively”....Details
It is an Intermediary Protection Act
The Information technology Act 2000 was enacted to provide legal recognition for electronic documents. Since this meant several provisions of the "Digital Signatures" being part of the Act, many commented that the true nature of the Act would be better described if it had been called the "Digital Signature Act".
In similar vein, it appears that the present version of the Act recommended by the "Expert Committee" is more appropriately described as the "Intermediary Protection Act" since this appears to the end objective of the amendments....Details
Rights of Cyber Crime Victims to Claim Damages
Section 43 of the ITA-2000 had provided that any person who without the permission of the owner or a person in charge of a Computer indulges in certain acts and causes loss to another person shall be liable to pay damages to the extent of Rs 1 Crore.
Now the proposed new section has some modifications...Looking at the Victim’s angle the changes proposed could reduce the protection available to the common man against Cyber Crimes. ....More
Privacy Protection under ITAA-(P) 2005
ITA-2000 had made a reference to “Breach of Confidentiality and Privacy” under Section 72 which had some times been confused as an attempt for protection of privacy of individuals in the Cyber World. Now, there has been an attempt in the proposed amendments to ITA 2000, to address “Privacy Protection needs”. As a result changes have now been made to Section 43 and Section 72 which need to be analysed. ....Details
Blogger Gets Sued
In a legal case being watched closely by bloggers, an Internet company has sued the owner of a Web log for comments posted to his site by readers. Traffic-Power.com1 sued Aaron Wall, who maintains a blog on search engine optimization – tactics companies use to get themselves to appear higher in searches at Google, Yahoo and elsewhere – alleging defamation and publication of trade secrets.. Details at newswatch.com.
Readers may recall the series of articles here on this subject highlighting this liability and need for CyLaCom audit of blogs. ..Refer: Bloggers Beware : CyLawcom audit for Web publishers
Don't become a "Bakra" on the Net... Naavi@sify.com
Forgery is a common offence we come across in the real world and is often associated with the forging of a signature for financial gain....Equipping one self with ability to sign electronic documents could be the answer to “Forgery in Cyber Space" and Insisting on digitally signed communications could prevent one self from being a “Bakra on the Net”. ...Article
Obscenity in Electronic Form
Under ITA-2000, Section 67 dealt with the offence relating to "Publishing and Distribution" of information which is obscene in Electronic form.The revision of the section has now been suggested to correct the past mistakes. Additionally the section 72 which earlier was restricted to "Breach of Privacy" by mainly the Certifying Authorities is sought to be expanded to cover the case of the Bazee type.
The net impact of the changes made to Section 67 is to give immunity to "Intermediaries" which incidentally is a relief to Cyber Cafes. The reduction of the term of imprisonment could mean that the offence may not be considered cognizable even under CrPc....Details
Saying No to Responsibility and Yes to Power!
Under ITA-2000, The Controller of Certifying Authorities had been envisaged as the "Apex Authority" to manage the Digital Signature System. The controller was the licensing and monitoring authority for the Certifying Authorities and had quasi judicial powers....In the proposed amendments one of the responsibilities of the Controller i.e. being the "Repository" of the Digital Certificates has been given up...On the other hand, under the proposed section 80 A, the Controller has taken on the responsibility as the authority for "Compounding of Offences" including the Criminal offences...a case of Saying No to Responsibility and Yes to Power...Details
Making Life Easy For Criminals
If we leave aside the perception problems associated with the general meaning associated with the term "hacking" in the net community, the earlier Section 66 was an excellent omnibus definition of offences against "Information Residing Inside a Computer".....
It is funny that the earlier section called it as "hacking" and covered a whole gamut of Cyber Crimes while the amendment calls it as "Offences relating to Computer" and restricts the coverage to "Unauthorized Access"...
The net effect of these changes has been to make life easy for criminals. As a result of these changes, many crimes will not get recognized, investigations will be frustrated and convictions will be rare... Details
Converting Cyber Crimes into a Corruption Opportunity
Under ITA-2000, Compounding of contraventions under Chapter IX had been provided under Section 63. ITAA(p)-2005 now redefines the conditions for compounding of offences under Section 80 A
If this proposition becomes a law, the Cyber Crime Prevention becomes a huge store house of corruption working around the provisions of Section 80 A. ..Details
Cyber Cafes..Unintended beneficiaries under ITAA(P) 2000
Under ITAA (P) 2005, Cyber Cafes will be almost immune against any liabilities since unless "Conspiracy" or "Abetment" is proved, they shall not be held liable. Their responsibility will arise only when a notice is received by them that certain information residing in their systems is being used for unlawful activity. .. More
Comments on ITA Amendments..by Naavi
Given the background under which the "Expert Committee" was formed to suggest amendments to ITA-2000, it is not surprising that the suggestions are aimed at clipping the wings of the Police and protecting the Company executives.
What is important to note is that the suggestions seem to have gone too far in certain respects to betray lack of sensitivity to the underlying problems of the Cyber Society and rather exhibit a single minded obsession to protect a few corporate executives who have already been charged under some of the provisions of the Act.
If the 2000 version of the Act was for "Promotion of E-Commerce", this version appears to be mainly for " Eliminating the Police from Cyber Crime Prevention".
Lack of sensitivity to the real needs is apparent from the fact that neither "Spamming" nor "Cyber Terrorism" has been addressed by the committee. Even the provisions of Data Protection has been diluted from what the earlier provision provided.
It appears that some serious debate is required before the amendments can be accepted.
Detailed comments of Naavi (Version 1)
Copy of the Amendments.
A Law By the Privileged, For the Privileged and to Protect the Privileged !
It is difficult to say if the amended ITA-2000, namely the Information Technology Amendment Act (Proposed)-2005, [ITAA(P) 2005] is a joke or a serious attempt to make a law by the privileged, for the privileged and to protect the privileged. Many of the provisions defy logic and raise serious doubts on the core objective for which the amendment exercise has been initiated. An attempt will be made to present the amendments through a series of articles so that public can respond with their comments. Hopefully we can send a consolidated strong response to the Ministry of Communication Information Technology highlighting the inadequacies of the provisions.
Sub Committee Report on ITA-2000 Amendments
The expert committee set up to review ITA-2000 in the light of the bazee.com issue has submitted its report. A copy of the report along with the new draft of the Act is now available. MIT has invited views and comments to be submitted before September 19 2005.
Visitors to Naavi.org are invited to send their comments for consolidation and submission.... New draft
720 pages of Comprehensive Coverage on Cyber Laws
Naavi's "Cyber Laws in India..ITA-2000 and Beyond", first E-Book on Cyber Laws to be published in India consisting of 720 pages of comprehensive coverage on Cyber Laws and relevant issues, available for online purchase at RS 300/- in download form and at RS 400/- on CD.
For more information click here.
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