ITA 2008 already has a provision.. if Sophia breaks our law

Posted on November 25, 2017 by Vijayashankar Na

The advent of the “Humanoid robots” and “Artificial Intelligence” is posing a challenge to the law makers and interpreters on how does the current laws affect the actions of these machines. Saudi Arabia has created a complication by granting “Citizenship” to a humanoid robot called “Sophia”.

The stories about and interviews of Sophia by journalists (Refer one article here) indicate that we may be in for some interesting debates on whether Sophia can raise a “Family” etc., but we as observers of Cyber Law need to also discuss whether Sophia can commit a Cyber Crime and if so how should our law deal with it.

While Sophia may be a good girl now and take some time to learn the bad habits of humans, commission of “Offences” through misuse of so called “Artificial Intelligence” or even the malfunction of AI or a simple automated functionality is a day to day problem to be dealt with.

When E Commerce Act 1998 was drafted in India or when ITA 2000 was enacted or when it was modified in 2008, we could not think of a “Humanoid Robot” as a citizen of a country a reality. But within two decades of the sprouting of the first thoughts of Cyber Laws in India, we are now staring at a possibility that a humanoid robot can claim the rights of a citizen. While some Islamic fundamentalists are already asking why this citizen of Saudi Arabia is not wearing a hijab or a burkah, we need to ask, what happens if Sophia commits an offence knowingly or unknowingly.

It is to the credit of our law drafters that we can still consider that ITA 2000/8 can address such a situation since knowingly or unknowingly a provision was created in the law to meet such contingencies.

Under Section 11 of ITA 2000 it is stated that “An electronic record shall be attributed to the originator if it was sent by an information system programmed by or on behalf of the originator to operate automatically”.

Since all actions of the robot has to be by means of an “Electronic Document” (which is an aggregation of binary impulses), and each such document can be attributed to the person who originated the binary impulse/s, the actions of the robot can be legally attributed to the person who caused the information system (i.e. the robot) to behave in that manner.

Hanson Robotics, the company which has created Sophia will therefore be firstly liable for all actions of Sophia. However, since Sophia has been “Adopted” by the Saudi Arabian Government, one can argue that the responsibility for the actions of Sophia shifts to the Saudi Arabian Government. Hence Sophia becomes a “Government Property” of the Saudi Government and actions against her would be a war against Saudi and actions from her could be an action of the Saudi Government.

If therefore Sophia breaks any law of India, we should be prepared to launch an international litigation against Saudi Government which is considered a “Friendly Country” for India. I urge Ms Sushma Swaraj to think if we need a special “Treaty” with not only Saudi Government but also any other Government which in future would adopt such “Robots” as citizens so that any intended or unintended transgressions of Indian law by these robots would be considered as actions of the respective Governments and India retains the right to take actions against such Governments.

There is also a threat that sooner or later, just as Drones have become tools of terrorism, Sophia and her family may be taken over and radicalized by muslim terrorists and commit terror acts. We need to be prepared for such contingencies.

In this context, I would also like to warn all AI professionals that any AI device created by them will also be creating liabilities to the creators and they need to take necessary steps to ensure that what they consider as “Technical Snags” donot result in “Cyber Crimes” and put the creators behind bars.

Be Aware, Be compliant, Be Safe.

Naavi

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More on Section 65B..from Madhya Pradesh..election petition

Posted on November 17, 2017 by Vijayashankar Na

In the High Court of Madhya Pradesh at Jabalpur, (S.Tiwari Vs Arjun Ajay Singh) in an order dated 17th January 2017, regarding E.P. no 01/2014, an important confirmation of a process has been added to the Cyber Jurisprudence of Section 65B of Indian Evidence Act.

In this case, there was a video shot by sub contractors of Election commission during an election campaign which was handed over to the election commission. After the election, one of the parties has raised an election petition in which he has produced a copy of the CD obtained from the Election Commission as a “Certified Copy” and produced it in the Court. Initially, it was not having Section 65B certificate and the petitioner again approached the Election Commission, obtained another set and presented it to the Court.

However, the Court observed that the original document in this case was contained in the memory card (Ed: or the tape) of the Camera and this was first transferred to a CD when it was handed over to the Election commission and then this was again transferred by the Election Commission onto another CD and handed over to the petitioner.

The Court held that at each transfer point there has to be what it called a “Contemporaneous Certificate under Section 65B”. In this case the video grapher should have given the first certificate to EC and EC should have given the second certificate to the petitioner. Since this was not properly done, the Court refused to entertain the evidence.

The contention of the Court is on the right lines even though it may surprise many. The undersigned has been advocating it to some where necessary.

It is good that Courts have been deliberating on the issue of Section 65B certification in great detail and this will be discussed again and again in the days to come.

Naavi

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Making a mockery of Background checks

Posted on November 16, 2017 by Vijayashankar Na

Recently there is news about many relatives of known international terrorists as well as those who are openly advocating secession from India for Kashmir as well as other terror sympathizers being provided with plush Government jobs (besides security at Government cost).

While we leave the political debate of the issue to Arnab Goswami, Rahul Kanwal or Zakka Jacob and others, there is one aspect of this accommodation which I feel creates a problem for private sector in rest of India.

We emphasize as part of “Due Diligence” in any Company under Section 79 of ITA 2000 as well as other laws, that a Company must conduct a proper background check on people whom they recruit as employees. We believe that failure of a proper back ground check could result in “Vicarious liabilities” on the organizations.

In such background check it is not only checking of educational qualifications and previous employment details which are checked but also any information available on the “Character” of a person and his likely involvement directly or indirectly in any offences. Now if some body is a son a known terrorist or even a petty criminal, it is often considered as a disqualification for employment. In such a scenario, it is unthinkable for some body to be employed in any part of India if he says that he is the son of Yasin Mallick or Dawood Ibrahim or Hafeez Sayeed.

Now when we learn that the J&K Government does not consider such relationship as a disqualification, a precedent is being created that even in other parts of India, some of these tainted persons may claim a constitutional right to employment under the Indian constitution and seek Government jobs. State Governments like Kerala and West Bengal may even provide reservations and privileges to the kith and kin of the freedom fighters of Kashmir.

If therefore we donot oppose the recruitment of such persons in Government employment in J&K Government, we will create a very undesirable precedent for the entire country of which J&K is an integral part. Continuation of these practices would result in making the present back ground checks and any adverse action based on past involvement in fraud or other crimes completely untenable. This will make a mockery of our current back ground check policies.

I therefore urge the Government of India to take a strict view of the recruitment of alleged sympathizers of the secession of Kashmir by the Mehbooba Mufti Government and also send out a general circular across the country that

“Any person suspected to have been involved in any anti social activities including terrorism or sedition shall not be recruited in any Government or Private sector jobs without a specific clearance by the Central Government Home Ministry”.

Any violation of the above rule should be treated as an “Abatement” to the associated anti social act. The Home ministry should create a proper administrative set up to approve requests in eligible cases where there is a “Rehabilitation program” under a proper Government initiative and a proper monitoring of such individuals.  Rules should also be laid down on what kind of employments can be provided to such persons and whether any specific types of jobs such as “Police or Security or Judiciary” should be barred for such persons.

Even when we await Government action in this regard, a clause as indicated above should be part of the HR policy of every private organization with the proviso that the clearance would be required by a high level body at the Director’s level in the Company.

Looking forward to the response from the Government.

Naavi

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Aditya Gosh of Indigo may be arrested…. if law takes its own course

Posted on November 11, 2017 by Vijayashankar Na

Indigo Airlines has landed itself is a mess after the atrocious way it handled the the incident in which a passenger was manhandled, assaulted and literally smothered on the tarmac of the Airport. This was certainly an offence under IPC as grave as “an attempt to commit murder”.

There is no way this incident can be interpreted differently and any attempt to suppress the incident either by the Police in the Airport or by others would amount to further offence of “Attempt to conceal evidence” and “Dereliction of Duty by Police” and “abetment to a criminal”.

If DGCA or Mr Jayant Sinha does not pursue the criminal case, it would be considered as “Shielding” the guilty.

Mr Aditya Gosh as the head of the organization in which the employees committed the offence during the course of their official duty, in the premises within their control is responsible for the actions of the erring employees.

The fact that Indigo has tried to shield the erring employees even while punishing the person who revealed the gory story is an indication that the company is guilty of supporting the criminals and punishing the duty conscious employee who had a duty to bring to the public knowledge commission of a cognisable offence to which he was a witness.

In his statement to the media, (Refer: Article here) Mr Montu Kalra, the whistle blower has stated that different senior officers of Indigo called him and asked that the video should be deleted. When he refused, he was harassed and finally sacked.

It is to be noted that “Deletion of Evidence” would be an offence under both IPC and as also Section 65 of ITA 2000/8 which could lead to an imprisonment of upto 3 years. It is a cognizable but bailable offence under iTA 2000/8.

In the instant case, there is an “Attempt” to cause commission of the offence   by Mr Montu Kalra which could have landed him in jail. It is good that he refused to commit the offence which finally resulted in him being punished.

The relevant Employee’s Association, the Labour Commissioner of Delhi and Human Rights Activists should all take up this case on behalf of Mr Montu Kalra and ensure that justice is done to him.

In the meantime, the vicarious liability for both “Attempt to murder” Mr Rajeev Katyal” and “Attempt to delete electronic evidence” as also “Criminal intimidation” to harass Mr Montu Kalra should all squarely be faced by the head of the organization namely Mr Aditya Ghosh.

I believe these are grave offences and are cognizable in nature and Mr Aditya Ghosh needs to be arrested and tired.

I urge the Government not to succumb to the pressures from vested interests and the pressure of corruption and ensure that “Law Takes Its own Course”.

Unfortunately, the responsibility to drive the investigation to its logical end seems to rest with the media since the Government may most likely turn a blind eye and DGCA would try its best to ensure that the controversy is buried.

In a service industry, the kind of treatment meted out to the passenger even if it is under some kind of verbal abuse hurled at the offender causing provocation, is unacceptable. A mere apology is not sufficient. There has to be a heavy fine of a few crores on Indigo, grounding of the Airline for atleast 24 hours, payment of a large compensation to Mr Katyal, imprisonment of the three employees who were involved in the assault for charges of “Attempt to Murder” are a must. In the process, there is a need to also pursue the case against Mr Aditya Ghosh as the CEO and Indigo as a company for vicarious liability of the criminal offence.

I wish some public spirited lawyers in Delhi take up this case and teach Indigo a lesson that they will never forget.

I also urge the consumers to take steps of their own to make Indigo feel the pinch by boycotting travel in the airline at least for one month. Consumers should teach arrogant CEOs how not to behave with them.

Naavi

 

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We have taken a vow to eliminate Black Money in India and this has to extend to Bitcoins too..

Posted on November 3, 2017 by Vijayashankar Na

A good news is flowing through the media about Bitcoins. It is that according to news reports,  “A Government Committee has recommended that all Crypto Currency Exchanges” in India are set to be closed.

Business Today says ” Crypto Currency dealers may face closure in India even as Bitcoin reaches new high of $7000″

Cointelegraph.com says “ Ban All Crypto Dealers, India committee reportedly tells Government”.

Economic Times says : War on bitcoin?.. Govt Panel seeks crackdown on cryptocurrency dealers in India

Moneycontrol.com says: Govt panel recommends shutting down cryptocurrency dealers in India

It is clear that multiple news media have received the information though there has been no official announcement as such.

We are happy with the development but we donot want to count the chickens before the eggs hatch. There is still a need for an official announcement since there is  continued lobbying by the vested interests in getting Crypto Currencies going in some form.

What the press report indicates is just the first step where it might be stated that under the SEBI Act, the dealing in the commodity called “Crypto Currency” has not been licensed as a “Commodity” and hence all forms of dealing is per-se illegal.

There was no other way this could have been treated.

What this notification achieves is that local trading against cash payment and even bank transfers will stop.

Some “Experts” seem to be stating that

“banning cryptocurrency dealers or exchanges would not work”

“Instead of closing cryptocurrency dealers, the government should take steps to curb buying and selling of bitcoins or cryptocurrencies in cash. This move can reduce illegalities in the country”

“…in case of closure of domestic cryptocurrency exchanges, buyers will start buying them from foreign exchanges”

….so says Hesham Rehman, CEO & Co-founder, Bitxoxo, a bitcoin exchange operating in India.

I am sorry Mr Hesham Rehman, nothing short of complete banning of Bitcoins and all Private Currencies would satisfy the needs of our country.

We have taken a vow to eliminate black money from India and Mr Modi has taken a great risk to his career by demonetizing currency last November 8. Bitcoin or any other form of Crypto currency is just another form of Black Money. They have to go.

Preventing conversion from cash will only address a small part of the issue. We donot want accountable Bank funds to be converted into unaccounted Bitcoin or Crypto currency form. This will only help criminals and terrorists to run a parallel economy and weaken our economic fabric.

I donot accept the contention that banning Crypto currency is difficult or will be ineffective since people may switch to foreign exchanges. Let them do. Dealing with any foreign exchange will directly attract FEMA and violations can attract higher penalty. Also, a number of Indians are wary of dealing with foreign exchanges and there will be a significant drop of Bitcoin patronage because the direction of the policy will be set with the current move.

We know that criminals will not abide by law and continue to deal in corruption or dealing in drugs or engaged in terrorism or Naxalism even though they are declared illegal. Similarly Bitcoin will continue to be used by some even after the ban. Let them face the law.

I therefore see no reason to show any mercy on Bitcoin or Crypto Currencies (other than a sovereign Government sponsored systems if any) and it must be banned fully.

I therefore urge the Government to go the full distance and announce the “Demonetization of Bitcoin and all other Private Crypto Currencies” with immediate effect.

Other measures that may be required are:

  1. Two days time may be given for any current holders to declare their Crypto Currency holdings and convert them to INR.
  2. Non declaration should result in impounding of the balance and possible punishment under the money laundering legislation.
  3. Conversion should be subject to taxes as may apply to buying and selling of commodities.
  4. Holding of Crypto currencies beyond this cooling period of 2 days should attract more penalty.

Let us continue our war on Bitcoins until the roots are plucked out…. (As per Chanakya’s theory)

Naavi

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Cyber Insurance for Individuals makes its entry in India

Posted on November 3, 2017 by Vijayashankar Na

Bajaj Alliance Insurance has announced the launch of a Cyber Insurance Policy for individuals which could be the first such cover in India.

We have been advocating such a policy for a long time and welcome this development.

As per the report in Economic Times

the policy provides for coverage from Rs 1 lakh to Rs 1 crore against the risks of”financial Loss”, “Defence cost”, “Prosecution Cost”, “IT Theft loss” Restoration cost”, “loss due to identitity theft arising out of phishing, , malware attack” etc.

Other then financial loss due to cyber, the policy is said to also provide coverage for expenses incurred on counselling services treatment, claim for damages against third party for privacy breach and data breach and transportation for attending Court summons.

This is an excellent development.

We need to still assess the policy terms in detail and the premium but the introduction of the policy is welcome.

Naavi

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