Naavi.org

The Prepaid Instrument Eco System in India under the Payment and Settlements Act 2007 has licensed several “Payment System Operators” under the Act. The list of such operators is available here.

The list consists of

1. Two Financial Market Infrastructure operators namely the Clearing Corporation of India Limited and the National Payments Corporation of India (NPCI),
2. 5 Card payment networks including the Amex, Diners, VISA, Master, etc
3. 9 inbound Cross border Money Transfer Systems including Western Union etc
4. 6 ATM Networks
5. 55 Prepaid Instruments
6. 9 White Lablel ATM Operators
7. One Instant Money Stransfer system of Empays Payment Systems
8. Three Trade REceiviables Discounting Systems
9. Eight Bharat Bill Payment Operating Units

The entities who have been “Payment Bank” licenses such as Airtel Payment Bank Ltd, India Post Payments Bank Ltd, Paytm Payments bank Ltd, and Fino Payments bank Ltd are other entities in the Digital payment domain.

Licensed Scheduled Banks are also in the digital payment system with their UPIs, Wallets, Virtual and Physical Prepaid Cards, Debit Cards, Credit Cards etc. (Refer article in livemint). It appears that out of the eleven provisional licenses issued for Payment Banks, others have not yet operationalized their licenses.

The October 11, 2017 master directions of RBI apply to the 55 Prepaid Instrument operators which includes Aircel, Amazon Pay, Mannapuram, Muthoot, Mobikwick, Oxigen,PhonePe, Jio money, Sodexo, m-Pesa,etc.

On March 9, 2017, the Ministry of Information Technology had issued certain draft guidelines constituting “Reasonable Security Practices” applicable to the e-PPI instrument issuers. It was called  “Information Technology (Security of Prepaid Payment instruments Rules 2017-Draft.

At that time, some of the operators had raised objection on the rules and its requirement to interact with CERT IN to report security breaches etc.

Unfortunately, the Ministry succumbed to the industry lobby and there was no follow up on the draft guideline which was well within the powers of the Ministry.

The e-PPI operators are “Intermediaries” under ITA 2008 and they always had the obligation for “Reasonable Security Practice” whether they were defined by a rule or not.

Hence there was no reason for the Ministry to buckle under pressure except for the reason that the responsibility to issue the guideline could be delegated to RBI.

Now the Master Direction of RBI of October 11, 2017 is a follow up of this and represent among others the “Reasonable Security Practice” to be followed by these e-PPI operators.

The objection raised by the PCI is therefore yet another attempt to influence the policies in their favour. Hopefully RBI is made of tougher material and commitment to the security of the financial system rather than the Ministry of Information Technology and we can hope that it withstands the pressures from the industry.

We need to however watch the developments to see if the industry lobby is able to get any dilutions that may adversely affect the Consumer interests.

We have noted that in the past, the industry is only interested in “Exploitation” of the citizens and technologists are unmindful of the fraud possibilities in the new Digital payment eco system.

The Government appears to be only interested in only raising the “Revenue” by taxing the public for the digital transactions and levying “Cess” for security and is not genuinely concerned about the security of the public. We have seen this in the Bitcoin scenario where the Finance Ministry has been sympathetic to the criminal elements endorsing Bitcoin legalization rather than taking a quick decision to ban it. It is therefore not surprising that the MeiTy quietly withdrew the security rule notification.

It is only RBI which from time to time shows a commitment to securing the financial eco system though they are often over powered by the Banking industry lobby such as IBA.

Hopefully the PCI is not as powerful as IBA and hence it may not be easy to make RBI change its stance on the Master directions. But in the past we have observed that RBI has without diluting its stringent guidelines, turned a blind eye to contraventions and be good to the industry while also appearing to take care of the public interest.

I hope in this instance RBI will remain firm and impose the security directions in the interest of the public.

(More about the security requirements under the directions would be discussed in the continuation article)

Naavi

On 11th October 2017, RBI came out with a comprehensive “Master Direction” applicable to all Prepaid Payment Instrument Issuers, System Providers and System participants. This was mainly a consolidation of all earlier guidelines. However, it appears that some of the participants have already felt the need to approach RBI for diluting the norms.

See Article in Economic Times

The Payment Council of India, (PCI) an industry organization has represented that “Some of the new norms could severely cripple the industry and make the wallet business unviable,”

It is reported that among the major points of concern, according to industry members, are the demand for a mandatory full KYC or know your-customer certification, phased introduction of interoperability and restriction of peer-to-peer fund transfer in semi-KYC wallets.

The objection has been raised on the point “Another major hurdle for payment companies is prohibition of inter-wallet transactions, along with transfer of funds from bank account to wallet from semi-KYC accounts, which the companies believe will destroy the relevance of mobile wallets.”

According to the spokesperson, “The scope of fraud is more in moving money through debit or credit cards into wallets and then siphoning it off to other bank accounts. P2P fund movement is not risky that way. We had made multiple representations to the RBI on this,”

They feel that “doing a full-KYC to open a digital wallet every time will be a major hindrance for smooth business”.

The PCI representatives are likely to meet RBI officials and lobby for dilution of the norms.

In the light of the above, we need to take a comprehensive analysis of the objections raised by PCI vis-a-vis the guidelines and the risks faced by the public and whether there is actually scope for further hardening of the security measures.

We shall analyze the Master directions and the objections raised in the articles to follow.

Naavi

What can be done to improve the number of successful investigations of Cyber Crimes in India? is a question most observers of the Cyber Crime scene in India are struggling to find answer to.

The T K Vishwanathan Committee has recently seems to have suggested three improvements namely

a) Creation of a post of State Cyber Crime Coordinator at the level of the Inspector General of Police (Suggested new Section 25B of CrPc)

b) Providing powers to the Sub Inspectors of Police to investigate offences under ITA 2000/8 (Suggested amendment to Section 78 of ITA 2000)

c) Creating “District Cyber Crime Cell”consisting of a DySP as the head with as many Sub Inspectors as may be required and at least three experts in Information Technology, Mobile Telephony, Digital Forensics, Cyber Law or such other Experts with such qualifications to be appointed by the State Government in accordance with the rules.

(P.S: These are presently recommendations and are yet to be confirmed)

Once these suggestions come into practice, there could be a great improvement in the way Cyber Crime investigations progress.

However, it is necessary for us to flag one of the major stumbling blocks to the speedy investigation of Cyber Crime Cases and that is the non cooperation of intermediaries such as Google, Yahoo, WhatsApp, Face Book, Twitter etc followed by the local ISPs such as the Airtel, Reliance or others.

I recall the early days of Cyber Crime investigations that I was personally involved in Chennai

a) A case in which I located an IP address of a suspect and within the next 20 minutes, I and the DySP converged on to the ISP’s office and got the address of the dynamic IP address user from the RAS server almost instantly and landed up in the scene of crime in the next 10 minutes to find the perpetrator still in front of the computer. The person could be apprehended and investigation could go ahead. In this case the IP address was related to the e-mail recipient. (I suppose it was a Yahoo email).

b) Another case in which a threatening e-mail had been received by a Government official and was reported around 4.00 pm on a particular day and within a few hours it had been resolved to an office address and next day before the office was to open, Police were ready at the site to arrest the employee responsible for the offence and continue the investigation

c) The third was the historical Suhas Katti Case in which again the undersigned started with a Yahoo group message which provided an IP address and resolved it to MTNL Mumbai. Then the Police got the resolution of the MTNL IP address within perhaps a day and were ready to travel to Mumbai for further investigation. With all the formalities for travel and travelling by train, the Police were in Mumbai for further investigation on the 7th day after the complaint had been received to continue with the arrest of the accused and further investigation which finally resulted in the first conviction under ITA 2000.

All the above three incidents happened before 2004 when the Police were still very much ill equipped as to the Forensic part of investigation even at the State Forensic Labs. But they represented very successful investigations.

In comparison, after more than 12 years since these investigations, today, except in the case of celebrity complaints or when national security issues are involved, the first step of getting IP resolution of emails from the service providers such as Gmail takes a much longer time.

The local ISPs are better but even they take their share of time to reveal what is instantly available on their records.

As a result of this loss of action during the golden hour of a Cyber Crime, investigation trails go cold and become unsuccessful.

A similar problem is seen when Police are trying to investigate use of mobiles through the Tower dump analysis or Call Record details.

I am presently struggling with a case in Mumbai where Police is unable to get the information from Google for more than 10 days and I presume that it is Google which is holding up information for no specific reason.

If Cyber Crime investigation has to improve in India therefore, there is a need to make these service providers change their attitude towards their role in Cyber Crime prevention.

What is Required to Change

Firstly it is an obnoxious practice that the service providers follow where they hide the “Originating IP Addresses” from the header information and substitute it with a proxy IP address.

Every e-mail contains a “Sender’s Address” (consisting of the name and signature line) and hence any genuine e-mail sender is voluntarily giving his identity in the header information and the body of the message.

Hence email senders would not have any objection if their IP address is revealed in the header information. At the same time the E-mail recipients would consider it as their  “Legal Right” to know who has sent them the e-mail.

On the other hand the Service providers may have a wrong notion of “Privacy” and think that substituting the real originating IP address with a proxy address is “Protection of Privacy”.

I completely disagree with this view and demand that the Honorable Supreme Court clarify this if required.

Only persons who want to send an e-mail or a message so as to deceive the recipient and mislead him/her about the origin of the message would want their IP address to be protected by a proxy address.

This was actually a recognized offence under Section 66A of the ITA 2008, which our  Supreme Court unfortunately decided to scrap under the wrong notion of protecting Freedom of Speech.

“Attempt to deceive” the recipient of a message is itself an “Attempt to commit an offence” in all cases where the recipient has filed a complaint in which the IP address resolution is one of the requirements of investigation.

In view of this, every time Google or other service providers suppress the real IP address, they are “assisting” the suspect in escaping the legal consequences of “attempt to deceive with false recipient ID”. This is a contravention of Section 43/66 of ITA 2000/8.

Under Section 69B and 70B, Government agencies such as the IT Secretary and DG CERT IN have statutory powers to seek the information and if the intermediaries donot cooperate, prosecute them for imprisonment of 1-2 years.

Despite these strong provisions of ITA 2000/8, the Service providers are not responding to requests from the Police which should happen in real time.

I have suggested in an earlier article that Under Section 69B and 70B, the Government can authorize many officers other than the Police also to issue “Demand for IP Address Resolution” so that the burden on the Police would come down.

In the meantime, I would like Google in particular to respond and show cause why their substitution of originating IP address with their own IP address should not be considered as an open support to the criminal activities and why Google Inc should not be made liable for any delay in the resolution of IP address.

I also urge the Ministry of Information Technology to expand the rules of “Due Diligence” under Section 79 of ITA 2000/8 through a notification/clarification to include that

” When it is brought to the knowledge of the intermediary that their proxy IP address is a subject of an investigation of a contravention of ITA 2000/8, they shall  submit the Original IP address to the complainant on production of a reasonable evidence of contravention, within one hour of receipt of the notice, “.

Google should also introduce other measures to respond to complainants as per provisions under Section 79  in real time basis by designating the “Grievance Officer” under ITA 2000/8 and displaying his contact details prominently on their website.

I urge Supreme Court to take Suo moto action to immediately issue a clarification that “Hiding the Originating IP address” in e-mails and other web/Telecom based transactions including the  “Who Is information” is not considered as “Protection of Privacy” and not revealing the same on demand would be considered as a contravention under Indian law as abetment to a suspected offender.

This may not be an issue of interest to celebrity advocates like Prashant Bhushan or Kapil Sibal, who are able to make Supreme Court to take up petitions at the drop of a hat, or from the Government lawyers who want to avoid any confrontation with the Judiciary on a subject with a tag “Privacy”, but it is a matter of public interest in which the CJI himself should move without waiting for an influential “Celebrity Advocate” to approach them.

In the meantime, I request Google to let us know what is the average time they take in providing the IP resolutions when received from the Police and whether they can improve upon their current performance. 

Naavi

Wishing All a Happy Digital Society Day of IndiaWe need not reiterate here that we try to celebrate October 17 every year as the “Digital Society Day of India” because the judicially acceptable “Digital Society” was born in India on this day with the notification of the Information Technology Act 2000 (ITA 2000) which brought legal recognition to electronic documents in India. As Netizens, we are all irretrievably associated with the Digital Society of India for our existence and prosperity and a good supporting legal regime is the foundation for our future.

On October 17, 2017 Information Technology Act 2000 completed 17 years of its existence. Let us recall some of the major developments that Naavi.org captured during the last year when ITA 2000 moved from an age of 16 to 17 and also reflect on what lies ahead.

War on Ransomware

The year began with a fight on Ransomware which was creating havoc in India and elsewhere. There was need for creating awareness of the risk of not following basic security hygiene such as having a good back up and not inviting malware by clicking on malicious links by computer users. The problem of ransomware however did not abate and during the year we saw several attacks including the WannaCry and Petya. CERT reported 26 ransomware attacks in 2016 in India which jumped up to 37 till June 2017.

The proliferation of ransomware attacks also brought focus on Crypto coins such as Bitcoins which was the preferred currency of the attackers for collecting ransom. Naavi.org took up the fight on Crypto Currencies calling for a ban on Bitcoins and the Government to consider its own Crypto Coin managed by RBI.

The debate on Bitcoin Ban 

The Bitcoin debate has reached war proportions during the year since there was clear indication that the Government of India and particularly the Finance Ministry under Mr Arun Jaitely was dithering on taking a proper decision on the issue of whether Bitcoins had to be banned or not.

Any intelligent observer can see that while RBI is against the legalization of Bitcoins, the Finance Ministry appear to be in support of regularization of Bitcoin as a “Currency” despite the dangers that this view presents.

After Mr Modi took the bold step of demonetizing currency despite the political risks just to ensure that Black Money in India is reduced, the dithering of the Finance Ministry about the banning of Bitcoins and creating a speculative situation where investors are being attracted to invest in Bitcoins is an indication that the Finance Ministry is unable to resist the lobbying of the vested interests and wants to at least give enough time to make profits at the cost of Indian Citizens who are getting attracted to Bitcoins like the proverbial “Attraction of a butterfly to light”.

While it is clear that Bitcoins are the currency of the Criminals and a great mode of saving Black Wealth and also used by terrorists funding error sponsors in India. But even after releasing a request for public comment  Finance Ministry seems to have held up the final decision on Bitcoins and prefer to carry on the absurd “We Will Observe” argument.

Naavi.org has written many articles and even provided its views on what the Government needs to do  but so far there is stoic silence from the Government even at the PMO level prompting us to say “God Save India From Bitcoins”.

We sincerely hope Lord Krishna will take the next Avatar in India to save India from the menace of Crypto Coins. Otherwise the Government of India led by Mr Modi but guided by Mr Arun Jaitely may be consumed by the “Bhasmasura Syndrome” 

I hope that at least after the Gujarat Elections, Mr Modi will have time to address the need for “Demonetization of Crypto Currencies in India”

Zero Liability for Bank Frauds

Just before the year began, RBI had started an initiative on “Limited Liability for Cyber Frauds” with a draft circular issued on August 11, 2016 where in it had declared “Zero Liability” on frauds for customers to “Zero” if reported within 3 days. RBI had called for public comments before August 30 and created an expectation that relief would be available to the customers soon there after from Banking Frauds. However, it was not until 6th July 2017, that RBI notified the circular .Banks are yet to fully operationalize the circular and no Bank appears to have come up with policy guidelines as required under the circular. However a base for “Zero Liability” has been set and other teething troubles will get sorted out in time. Naavi.org continued to needle the Banks for not following up on the Cyber Security Framework and RBI for not being able to enforce it. The intransigence of Banks however continues.

In July 2017, Government has also proposed setting up a CERT-FIN specifically for the Financial Sector and several other sector specific CERT s to improve the disclosure of security incidents and also find solutions within the sectoral regulatory requirements. More developments on this front may be visible in the next year.

Social Media Issues

The year also saw continued attack on WhatsApp admins for objectionable posts. Naavi.org released a model WhatsApp Admin policy through its Cyber Law Compliance Center to enable Admins to mitigate the risk of being held liable for the posts of the members. Naavi advocates that the Admins should personally approve only identified members  and ensure provision of  proper profile information apart from following a good security policy as advised.

Social Media Abuse continues to be a hot topic of debate and the Supreme Court judgement on “Privacy is a Fundamental Right” has only accentuated the problem.

Cyber Crime Complaints

As Cyber Crimes increased during the year, the plight of Cyber Crime Victims not being able to register Complaints and the problem of Police not undertaking investigations continued through the year. Though the Government of India gave an assurance to the Supreme Court that “Online Filing of Cyber Crime Complaints”  would be facilitated through a Citizen Portal, it appears that not all States have set up follow up facilities for online filing of Cyber Crime complaints.

Naavi.org has therefore taken up the “Improvement of Cyber Crime Complaint Management System” as the mission for the next year.

The Government of India through the recommendations of the T K Vishwanathan Committee also appears to have taken some steps in improving the Cyber Crime Complaint system by suggesting appointment of a “State Cyber Crime Coordinator” and “District Cyber Crime Cells” by amending CrPc and introducing new sections. When implemented this could be a game changer.

Naavi.org will continue to follow up this development in order to ensure that apathy and corruption at the Complaint registration level does not frustrate the Cyber Crime victims.

In particular, Naavi.org will follow the systems currently in place for online filing of complaints

Prepaid Instruments

During the year, we saw the “Demonetization” of notes of Rs 500 and 1000 denomination in India which created a huge chaos in the money supply in the country. At the same time it gave a boost to the use of digital payment systems of all kinds. Though the efforts of NPCI in introducing UPI and BHIM applications were laudable, the AEPS system (Aadhaar based payment system”) is causing concern of  frauds committed with fake or stored biometric being used for drawing money fraudulently from Banks.

The watal committee report on Digital Payments laid a well defined path for introduction of proper guidelines for the Digital Payment systems in India and RBI came up with  a comprehensive guideline on Prepaid Instruments on 11th October 2017 and laid the ground for further development of the system under the umbrella of the security measures suggested for banks under “Cyber Security Framework” and “Limited Liability”.

Section 65B of Indian Evidence Act

After the PK Basheer Vs Anvar judgement of September 18, 2014 continued to find traction during the year with many in the legal community becoming aware of the mandatory need for Section 65B certification of electronic evidence for admissibility.

Subsequently the Sonu@Amvar judgement created a flutter but the confusion settled down.

On January 2, 2017, Government also issued a new notification under Section 79A of ITA 2000/8 regarding the accreditation of “Digital Evidence Examiners” which also created a further debate on how Section 65B of IEA will apply to Forensic labs etc.

The Judgement of a Puri Court  provided further clarification and there was a lot of progress in development of Cyber Jurisprudence during the year regarding Electronic Evidence issues. Naavi has also intensified his activities in Cyber Evidence Archival Center  and recently introduced the CEAC DROP BOX as a service which will be further developed in the coming year.

Amendments to ITA 2008

The activity of T K Vishwanathan Committee set up to suggest modifications to ITA 2008 also drew attention of the Cyber Law and Cyber Security professionals during the year.

Towards the end of the year a brief note on the recommendations involving Section 78 amendments to ITA 2008, introduction of two sections in CrPc to introduce State Cyber Crime Coordinator position at the IG level and District Cyber Crime Cells involving experts to be involved in advising the Police along with introduction of two sections into IPC to bring in some of the lost provisions of the scrapped Section 66A emerged. Naavi.org had expected a more comprehensive amendment and provided suggestions which may not materialize now.

However, the Government is presently also addressing introduction of a “Data Protection Act” and a “Health Care Data Privacy Act” and there can be more legislation affecting ITA 2008 indirectly through these legislation which may come forth in the next year.

The threat of GDPR being imposed by EU on Indian corporates handling EU citizen’s personal data would be accelerating the need for our own Data Protection Act and it is expected that this will be one of the biggest developments of the next year.

In the meantime, following the proposal of an amendment of the Indian Registration Act 1908 by the Karnataka Government which is ultra vires the ITA 2008, even the Parliament appears to be contemplating some amendments to Indian Registration Act over looking the provisions of ITA 2008 which are expected to give raise to another series of Cyber Frauds that will affect property owners in India.

The issue has been brought to the attention of Dr Ponnuswamy Venugopal an MP who is the Chairman of the Standing Committee looking at the issue and we hope some developments may be there on this front in the current year.

The Cyber Appellate Tribunal Issue

Naavi.org has been fighting on the need for reactivating the Cyber Appellate Tribunal (CyAT) for a long time. This key Cyber Judiciary organization envisaged under ITA 2000 has remained defunct since June 2011 for the sheer inability of the Governments of UPA and even Mr Modi to find a proper Chairman.

In a bizarre reactive decision, Mr Arun Jaitely decided that “If we cannot find a Chair Person for CyAT, why have CyAT at all?”. He therefore decided to merge CyAT with TDSAT through the Finance Bill as if the Government needed to save money by closing down the CyAT.

For a Government which was capable of introducing GST at an enormous cost and able to spend Rs 650 crores in a contract to monitor Social Media, it was a shame to say that there was no money to support CyAT.

As a result, CyAT got merged with TDSAT and at present has gone into oblivion. For records we can note that a case has been pending against the constitutional validity of the merger at the Madras High Court.

But Cyber Law Observers will note that this was one of the biggest mistakes committed by the Modi Government in creating a hurdle for Cyber Crime victims to seek justice.

Mr Arun Jaitely also had other controversies surrounding his department including the Bitcoin decision which is being held in abeyance to promote speculation and profiteering by clever manipulators of the market.

History will judge Mr Arun Jaitely’s negative contribution to the Cyber Law regime in India and determine whether it was his pre occupation with GST or Ignorance of the impact of the wrong decisions of his department in the case of CyAT and Bitcoins or the inability to control the influential lobbies with vested interest that may thrive around the department or any other reason that contributed to the set back on Cyber Legal Regime in India caused by the Finance Ministry.

We will not mince words in criticizing the action or inaction of the Finance Minister until Mr Arun Jaitely wakes up and takes appropriate positive decisions and this debate will continue in the coming year.

The response of Naavi.org is therefore to forget Cyber Dispute Resolution through the Adjudication and CyAT fast court system created by ITA 2000 bot to promote Cyber Mediation and Cyber Arbitration and Cyber Disputes Mediation Center Hopefully these may see traction in the coming years.

Internet Addiction

One of the other matters of concern to the Cyber Society during the year was the emergence of the “Blue Whale” game that claimed many lives in India.  The need to address Internet addiction in children and to develop solutions to secure our children from the kind of games like Blue Whale has been engaging the attention of the Cyber Law observers in India. Probably in the  coming days we may see the emergence of a “Cyber Game Regulation Authority” to monitor the Cyber Space for such games.

A Bad Precedent emerges from Mumbai Court

Towards the end of the last year, an interesting but disputable judgement came from Mumbai High Court in an E-Tender dispute raised by Shapoorji Pallonji against MHADA. It was a huge contract of over Rs 11000 crores in which the petitioner was disqualified for not following the e-Tender process. There was a huge commercial stake involved and the petitioner challenged that he could not complete the tender process as expected by the tender authority because the technology failed. It stated that they uploaded the tender documents but could not confirm the tender application and blamed the system for not presenting the final screen which contained a clickable button “Freeze the Application”. It was not clear and there was no evidence that proper admissible evidence was presented to support the claim.

The Court however approved their objection and ordered that “Technical Errors are to be over raided by manual intervention” introducing a new “Cyber Jurisprudence” that an “Electronic Contract defined by a process” had no sanctity which we consider as not a welcome view.

Hopefully this will be reviewed some time later because it contradicts the provisions of ITA 2000/8 which clearly defines how an electronic message is attributed under law.

The Aaadhaar Security Debate

Through out the year the debate on the use of Aadhaar and the security issues continued to be debated.

Naavi.org has been highlighting the risks of the Aadhaar Enabled Payment System as NITI Ayog started promoting PIN less and Card less system of payment.  However the Government continues to promote AEPS and frauds using “Stored Biometric use” and “Fake Biometric use” have already surfaced.

In Bangalore there was much noise made about a mobile App which extracted Aadhaar authentication information through the e-hospital application  A techie who had released the app was arrested and the case is going on. The incident however demonstrated the inherent weakness in the security of the Aadhaar eKYC system and the possibility of its misuse which is now surfacing in the form of financial frauds.

Naavi.org has brought the risks to the attention of the Government but vested interests around the decision makers may be preventing a proper assessment of the security risks resulting in exposing the Indian citizens to greater and greater financial risks as we move more and more into the Digital payment use.

We hope that the Government will realize the risks and act to mitigate them perhaps through mandatory Cyber Insurance or otherwise, before it is too late.

When we reflect back on the year that has gone by, it appears that there are many developments in the Cyber Law scenario in India. Some of these need to be followed up during the next year as well.

…So as ITA 2000 continues to say… “I am on 17 and going on 18…” we will see many more interesting things unfolding.

Naavi

(This is an attempt to capture the major cyber law events in India during 17th October 2016 to 16th October 2017 through the eyes of Naavi and Naavi.org. There could be more that can be added to the above and I welcome the readers to add them through their comments)

The Government of India had set up a committee under the chairmanship of Mr T.K.Vishwanathan former Union Law Secretary and Secretary General, Lok Sabha to review ITA 2008. Mr Vishwanathan was the person who worked on the first draft of ITA 2000 and hence there was no better person to suggest  a comprehensive review of ITA 2000 even after its amendments in 2008. The committee also included Mr Gulshan Rai who is also a veteran in the field and has been working around ITA 2000 and ITA 2008 through out the last two decades. Hence lot of expectations had been built on the work of this committee.

Naavi.org had also provided many suggestions in its articles listed at the end of this post presuming that this would be a major amendment to ITA 2008.

In the last two days, a document is in circulation claiming to be the report submitted by the Committee. It is not clear if this is only a leaked part of the report and the report itself is more comprehensive. If however this is all the report, then we must say that this would be considered as a minor amendment to the ITA 2008.

Amendment to ITA 2008

The amendment proposed for ITA 2008 by the committee is in Section 78 of ITA 2000/8 which would now make it possible for Police officers of the rank of Sub Inspectors to be the investigating officials for offences under ITA 2000/8. In ITA 2000 the minimum level for investigation was DySPs and in ITA 2008 it was brought down to the level of Inspectors and now it has been further lowered down.

The change was inevitable since most cases involved investigations under both IPC and ITA 2000/8 and Sub Inspectors are normally the IOs for IPC crimes and hence extending their powers to ITA 2000 was perhaps necessary.

Though this would mean a higher requirement of training of Police, most of the new crop of Sub Inspectors might be conversant with technology and hence it should not be difficult for them to pick up Cyber Crime investigations faster than what DySPs were capable of in 2000.

The revised section 78 would read as under:

“Section 78 – Power to investigate offences

“78. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), a police officer not below the rank of Sub-Inspector, shall investigate any offence under this Act and shall seek assistance in this regard from the District Cyber Crime Cell established under section 25C of the Code of Criminal Procedure 1973.”

Other major changes that have been suggested in the report are the changes proposed to IPC and CrPC 1973 which have an implication on Cyber Crimes as well.

Amendments to CrPc 1973

It has been reported that in view of the challenges that Police face during investigation and prosecution of Cyber Crimes, Criminal Procedure Code is being amended with the addition of two sections 25B and 25C.

Under these two sections, it is proposed that two entities may be formed namely the “State Cyber Crime Coordinators” and “District Cyber Crime Cells” to expand the investigation eco system for Cyber Crimes.

The new section 25B is proposed as under:

“25B: State Cyber Crime Coordinator

(1) The State Government shall appoint an officer not below, or equivalent to, the rank of an Inspector General of Police, who shall be the Cyber Crime Coordinator of the State.

(2) The functions of the State Cyber Crime Coordinator shall be to:

(a) oversee the functioning of the District Cyber Crime Cells in the State;

(b) recommend to the State Government the procedures and best practices to be adopted by the police officers under Section 78 of the Information Technology Act, 2000 and the District Cyber Crime Cells while investigating any offence under the Information Technology Act 2000 or involving computer and electronic media under the Indian Penal Code, 1860 or any other law;

(c) oversee the training of police officers and experts in the District Cyber Crime Cells in the State;

(d) coordinate with the State Cyber Crime Coordinators of other States in case of offences under this Act that fall under the jurisdiction of two or more States; and

(e) carry out such other functions as may be specified by the State Government.”

The new Section 25C would state as under:

“25C : District Cyber Crime Cells

(1) The State Government shall establish a District Cyber Crime Cell in every district to assist in the investigation of offences –

(a) under the Information Technology Act, 2000; and
(b) involving computer and electronic media under the Indian Penal Code, 1860 or any other law.

(2) The District Cyber Crime Cell shall consist of

(a) an officer not below, or equivalent to, the rank of Deputy Superintendent of Police, who shall be the head of the District Cyber Crime Cell;

(b) such number of Sub-Inspectors as the State Government may deem fit; and 

(c) at least three experts in information technology, mobile telephony, digital forensics, cyber law or such other experts with such qualifications to be appointed by the State Government in accordance with the rules made under subsection (4).

(3) The head of the District Cyber Crime Cell shall report to the State Cyber Crime Coordinator of the State through his supervisory officers.

(4) The State Government shall prescribe by rules –

(i) the manner of appointment and the terms and conditions of service or empanelment of the members of the District Cyber Crime Cells under sub section (2);
(ii)qualifications of experts under clause (c) of sub section (2).”

It is interesting to note that over the last few weeks, Naavi has been repeatedly calling for involvement of select NGOs to assist Cyber Crime Police in investigations. Attention may be drawn to the following articles in this regard.

Tomorrow is Digital Society Day of India: Let’s Resolve to Improve the Cyber Crime Complaint Management System in India

How to Relieve Cyber Police in India of needless burden and make them more focused

The suggestion from the T K Vishwanathan Committee is in tune with the spirit of the suggestions made by the undersigned and are therefore considered as a welcome move.

If the empanelment of the District Committee is done properly, it would be a great support to Police particularly in smaller towns where there is still shortage of trained manpower in the Police.

Cities and Metros may be having officers with sufficient knowledge and it would be left to the IG in charge of the State as a State Coordinator to take care of how these trained police officials will deliver. However, presence of an IG specifically for this purpose would bring about a certain focus that was perhaps not evident at present and the move may therefore be helpful.

Hence both the proposed amendments to CrPc must be considered as welcome steps and opening the doors for better things to come.

Let’s hope that right persons will occupy these new positions as “State Coordinators” so that efficiency in Cyber Crime investigation will improve.

Also, designating them as “State Coordinator” will improve the possibility of Inter State Coordination. Several years back, a move of this sort had been suggested by the undersigned to create an informal periodical meeting of Cyber Crime heads of the southern states like Karnataka, Tamil Nadu and Andhra Pradesh. Perhaps this idea may be revived in the days to come and the dream of “One Nation-One Cyber Crime Police” as envisaged by Naavi, would be a reality in the near future.

Amendments to IPC

The third set of amendments proposed by the Vishwanathan Committee is in amendments proposed in IPC probably to compensate for the removal of Sectio 66A from ITA 2008 by the Supreme Court in the Shreya Singhal Case which has been debated adnauseum on this site.

Two specific amendments have been proposed to IPC with the addition of two sections namely 153C and 505A. The amendments appear to address some of the concerns addressed by the Supreme Court in delivering its judgement for scrapping Section 66A.

The amended sections state as follows:

“153 C: Prohibiting Incitement to Hatred

Whoever on grounds of religion, race, caste or community, sex, gender identity, sexual orientation, place of birth, residence, language, disability or tribe, uses any means of
communication to –
(a) gravely threaten any person or group of persons with the intention to cause fear of injury or alarm; or
(b) advocate hatred towards any person or group of persons that causes, or is likely to cause, incitement to commit an offence shall be punishable with imprisonment of either description for a term which may extend to two years or a fine up to Rs 5000, or with both.

Explanation: In this section,

(a) “means of communication” shall include any words either spoken or written, signs, visible representations, information, audio, video or combination of both transmitted, retransmitted or sent through any telecommunication service, communication device or computer resource;

(b) “telecommunication service” shall have the meaning assigned to it in clause (k) of subsection (1) of section 2 of the Telecom Regulatory Authority of India Act, 1997;

(c) “communication device” shall have the meaning assigned to it in clause (k) of subsection (1) of section 2 of the Information Technology Act 2000;

(d) “computer resource” shall have the meaning assigned to in clause (ha) of subsection (1) of section 2 of the Information Technology Act, 2000.

Section 505A states as under:

.
“505 A: Causing Fear, Alarm or Provocation of Violence in Certain Cases

(1). Whoever, intentionally, on grounds of religion, race, caste or community, sex, gender, sexual orientation, place of birth, residence, language, disability or tribe, uses any means of communication to communicate-
(a) highly disparaging, indecent, abusive, inflammatory, false’ or grossly offensive information with the intention to cause fear of injury or alarm; or (b) gravely threatening or derogatory information with the intent to provoke the use of unlawful violence, against any person or group of persons, shall be punished with imprisonment for a term which may extend to one year and with fine up to Rs 5000, or both.

Explanation: In this section,

(a) “means of communication” shall include any words either spoken or written, signs, visible representations, information, audio, video or combination of both transmitted, retransmitted or sent through any telecommunication service, communication device or computer resource

(b) “telecommunication service” shall have the meaning assigned to it in clause (k) of subsection (1) of section 2 of the Telecom Regulatory Authority of India Act, 1997;

(c) “communication device” shall have the meaning assigned to it in clause (k) of subsection (1) of section 2 of the Information Technology Act 2000;

(d) “computer resource” shall have the meaning assigned to in clause (ha) of subsection (1) of section 2 of the Information Technology Act, 2000.”

Hopefully, Supreme Court would be kinder to IPC than ITA 2008 and does not interpret the amendment as “Having a Chilling Effect on Freedom of Speech” as they did earlier for Section 66A.

Introduction of these two sections should help restoration of one part of Section 66A that had been scrapped though Spamming and Phishing as well as Cyber Stalking may not be adequately covered in the new provisions as what Section 66A did.

However, some thing is better than nothing and therefore these amendments are also welcome.

Overall, though the amendments appear to be too few and many other issues have been left out, what has been attempted will bring about some positive changes in improving the Cyber Crime eco system in the country.

We have to however wait and see when these recommendations actually translate into an Act and whether it would be further changed or diluted before it is passed into a law.

Naavi

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17th October is an important date for the Digital India. It was on this day in 2000, that India notified the Information Technology Act 2000 and brought for the first time, Legal Recognition for binary expressions or electronic documents.

As a result of this, just as Independent India came into being on August 15, 1947, a Judicially recognized “Digital Society of India” came into being from 17th October 2000. Prior to this an “Electronic Document” was not recognized in law. Hence whether it was a web page or an e-mail or a computer generated document, they had no validity as a legal evidence. Crimes done with electronic documents could not be proved under the normal laws. Business could not go to Court with their disputes based on electronic documents.

All this changed on 17th October 2000 when electronic documents or more specifically, binary expressions which the computer like devices could read and interpret became as valid as a “Paper” writings on which could be seen and interpreted by law. This legal recognition of electronic document along with legal recognition of authentication through digital signatures brought in the possibility of valid digital contracts into business transactions and gave a legal support to E Commerce.

Though there has been a further amendment to ITA 2000 in 2008, and one more is now under consideration, the fundamental change in the society could be ascribed to the ITA 2000 providing recognition to Electronic Document and authentication with which we have a “Digital Person”, “Digital Identity” and “Digital Transaction” that has the recognition in law.

Recognizing this important change in the society, Naavi has been advocating that this day namely the 17th October should be recognized and celebrated by India as the “Digital Society Day” and each of us should undertake such activities as would be beneficial to the Digital/Cyber Society of India.

Unfortunately, the Government is yet to recognize the importance of this day and hence we donot see any focussed activity to celebrate this day just as we celebrate other important days such as the “Privacy Day” etc. This itself indicates that we are yet to fully appreciate what a great change was brought to India on 17th October 2000. Today’s “Digital India” concept would not be a reality but for the laws that came into being on 17th October 2000.

We hope, if not this year, at least in the coming years, Government of India declares 17th October as the “Digital Society Day” and undertake special projects across law colleges and other academic institutions  that highlight the motto “Let’s Build a Responsible Cyber Society”.

Naavi.org has been highlighting different aspects of the Cyber Society for focus each year. Last year it was an year in which we said we need to fight Ransomware.

This year we dedicate ourselves to working for the “Improvement of the Cyber Crime Complaint Management System in India “.

Improving the Cyber Crime Complaint Management System recognizes that the present system where Cyber Crime victims lodge their complaints with the Police and wait for the resolution is not working well.

There is definitely the problem of “Awareness” of law both with the public, the Police or the Judiciary. This is being addressed by various institutions including the NPA and Judicial Academy. But awareness is not the whole problem.

However, beyond the creation of awareness, the next goal should be to check  how the knowledge and awareness converts into practical benefit to the society and how the Cyber Crime victims are responded to by the Police when they approach the Police Stations.

We should ask ourselves, whether it is only the lack of awareness which is causing a displeasure for the Cyber Crime victims or the “Reluctance” to handle the complaints that is increasingly becoming a cause of concern.

Naavi uses the Pentagon Model theory of Information Security Motivation in implementation of Information Security in organizations which includes five elements to be present simultaneously for Information Security practices to emerge in an organization. They are

a) Awareness: of Why, What and How

b) Acceptability: that it is required for self and society

c) Availability: of tools required to implement

d) Mandate: By law and internal policies

e) Inspiration: Created by specific programs

These five principles are like the five walls of a pentagon which should close properly for Information Security to be implemented.

The same principle also applies to the implementation of proper methods to improve the Cyber Crime Complaint Management System in our Law enforcement.

It is Naavi’s observation that we need to  improve this system of quick and effective response from the Cyber Crime Policing System if public are to be satisfied.

I urge academic institutions across the Country and the NGOs to undertake projects to identify the problems of Cyber Crime Victims in getting their disputes heard and resolved through as many activities as possible during the year so that we can move towards a better management of Cyber Crime complaints in the coming days.

Any suggestions and papers received in this regard for publications on Naavi.org is welcome.

Naavi