Naavi.org

TRAI has released a consultation paper on Privacy for comments from Stake holders. A Copy of the Consultation paper is available here: 

Comments from stake holders have been invited by 8th September 2017 and counter comments can be submitted by 22nd September 2017.

Comments and counter comments can be sent by e-mail to arvind@trai.gov.in or bharatgupta.trai@gmail.com

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“Privacy” is a complicated subject which is presently under discussion in different fora including the Supreme Court. “Protecting Privacy” is a democratic principle and addressed as a part of the Human Rights commitment of the society. Privacy Protection is presently recognized in India through various Supreme Court Judgements as a derivative of the Rights under Article 21. (Refer here). As a constitutional right a Citizen may be able to seek remedy from the Government but when seeking remedy from others there is a need for statutory provision that defines what is the extent of the Right, how to evaluate damage and how the compensation can be provided etc.

At the same time, when “Privacy Information” is available in the form of “Data in electronic form”, other legislation such as ITA 2000/8 have provided remedies in different forms. Many times, industry recognizes “Data Protection” as synonymous with “Privacy Protection”.

We shall leave for now the larger debate of whether Privacy protection is equivalent to protection of the data related to Privacy of a person or it is a reasonable approximation.

We know that at present a “Data Protection Act” is being drafted and it may define the scope of data protection and its relation to Privacy. Supreme Court may simply recognize “Privacy” as a “Fundamental Right” subject to “Reasonable Restrictions” and leave it to the legislature and executive to define what is “Reasonable”. The ball will be back in the Court of the legislature and Executive to take this forward.

In this direction, we can appreciate that TRAI is trying to pre-empt a discussion on what the “Data Protection Act” can do through the issue of the Consultation Paper. If the Supreme Court leaves it to the legislature and the legislature through the Data Protection Act agrees for a “Sectoral Data Protection Officer for Telecom Industry”, then TRAI’s present efforts will give it a head start for defining the policies and procedures for data protection by the “Telecom Sector Data Protection Officer”.

Government of India has already proposed a “CERT for Telecom” and this CERT_TEL has to define what constitute a “Breach” that needs to be monitored by the CERT-TEL. The definition of the “Breach” in this context is linked to the expectations of “Data Protection” requirements which this consultation paper tries to address.

Hence TRAI appears to be thinking ahead and preparing itself to draft the guidelines for its CERT-TEL besides assisting the Data Protection Act to be drafted with sufficient scope for TRAI to retain its hold on the industry.

Keeping all this complications in mind, it is not easy to comment on the consultation paper without a good debate. I wish different groups of experts discuss the consultation paper and come up with their own views.

As always, it is better to start with a template for discussion and hence Naavi.org would like to place its preliminary views on the consultation paper for public view here and request members of the public to either submit their comments directly to TRAI or atleast send their comments here and enable me to consolidate and submit.

My Preliminary Views are therefore presented here in below:

 

Q.1        Are the data protection requirements currently applicable to all the players in the eco-system in India sufficient to protect the interests of telecom subscribers? What are the additional measures, if any, that need to be considered in this regard?

Current data protection requirements from the consumer perspective are addressed by ITA 2000/8. The Telco is an “Intermediary” subject to Section 79 of ITA 2000/8 in some instances of data flow. In some other instances of data flow such as the subscriber information, Telco is a Body Corporate which collects and uses the data for its own purpose and is therefore subject to Section 43A of ITA 2000/8. Under Sec 72A, (as well as Sec 79) Telco is also liable for contractual breaches and Sec 72A applies to all  “Personal Information” though under Section 43A, the liabilities are limited to Sensitive personal Information only.

The requirements of law enforcement for interception are also addressed adequately both under the Telegraph Act and ITA 2000/8 (Sec 69,69A,69B,70B) of the ITA 2000/8.

These provisions if properly implemented are good enough to provide protection of the data from the privacy perspective of an individual availing a service from the Telco.

The problem however is that the law regarding data protection is not properly implemented and there is no proper deterrence for violation.

Under ITA 2000/8 any contravention has to be handled by means of a complaint by the affected party to the “Adjudicator” or the “Police”. Police are overburdened and will accept complaints only if a serious criminal offence has taken place. Adjudicators are largely not keen to take up complaints suo-moto and complaints can be filed only of the telecom subscriber can prove a financial damage.

We therefore need to strengthen the “Grievance Redressal mechanism”  under the ITA 2000/8. Though this is mandatory under Section 79 of ITA 2000/8, no TELCO is presently compliant with ITA 2000/8 and hence there is no proper grievance redressal mechanism in place. Presently the TELCO grievance redressal is only focused on the billing disputes and most of the time, TELCOs get away by cheating the customers with false billing and the grievance redressal mechanism becomes a sham.

TRAI has failed to respond to customer complaints even when it is brought to their attention since it does not have its own mechanism to handle subscriber complaints against TELCOs.

We therefore need the following action:

1. TELCOs need to introduce online dispute resolution mechanism and appointment of a suitable Ombudsman (could be at least one for each state) to address the grievances.
2. TRAI should respond to subscriber complaints by raising an automatic Customer Complaint Ticket on line and keeping it open until the TELCO resolves it.

Q: 2:  In light of recent advances in technology, what changes, if any, are recommended to the definition of personal data? Should the User’s consent be taken before sharing his/her personal data for commercial purposes? What are the measures that should be considered in order to empower users to own and take control of his/her personal data? In particular, what are the new capabilities that must be granted to consumers over the use of their Personal data?

There are three kinds of data that a subscriber interaction with the TELCO generates and the policies may have to be different for each of these kinds of data.

The three kinds of data are

1. Data supplied by the subscriber at the time of creation of an account
2. Data generated for billing and usage purpose by the TELCO
3. Data that accumulates about the usage habits of the subscriber which automatically flows through the network of the TELCO and can be either stored or discarded at the discretion of the TELCO.

(a) Data supplied by the subscriber at the time of creation of an account

Data supplied by the subscriber at the time of creation of the account  includes data  like the name, address, family particulars, age profile, income profile, asset ownership, PAN number etc which are part of the application form for seeking the TELCO’s service on which “Consent” can be obtained.

If the TELCO obtains biometric data, it becomes “Sensitive Personal Information” and a mere “Consent” from an unsuspecting and un-informed customer is not to be considered as adequate. The biometric devices used for e-KYC through Aadhar will be the biggest threat to the Privacy of the subscribers and a key point of data breach.

TRAI therefore has to ensure that the devices are properly audited and accredited before they are used.

Though most of the time TELCOs abuse the consent obtained in the application form, the mechanism for getting the consent is in place and it is for the TRAI and the grievance redressal mechanism to address the violations.

(b) Data generated for billing and usage purpose by the TELCO

However, during the course of the service, data such as the CDR and Tower Data emerge. This is data on which “Joint Ownership” can be claimed.

However, for the TELCO, the CDR is only relevant for billing purpose and nothing more. Tower data is relevant only for technical purpose and would be of use even in a de-identified form.

But for the subscriber, these are “Sensitive Personal Data” which can provide critical information which can infringe on the subscriber’s privacy rights. It is however open to TRAI to treat is as such.

At present CDR or Tower Data is not classified by ITA 2000/8 as “Sensitive Personal Data”. But they are to be treated as such.

The Law enforcement has a specific requirement for access to the CDR and Tower data from the point of view of law enforcement both as intelligence measure before any crime occurs and after a crime occurs.

From the point of view of national security, law enforcement must have access to such data when required and procedural enablement for the same has to be provided.

Some times Law Enforcement may need to even block communication and TELCOs need to implement such orders or emergent basis.

However, in such cases the issues of Human Rights, Freedom of Expression etc are normally raised.

We therefore need to establish a mechanism to enable Law enforcement to block communication without adversely affecting critical services.

I have suggested that in times of network blockade, an emergent network needs to be set up to carry critical communications just as “Ambulance Service operates in a Curfew situation”. I have called this as “Digital Data Ambulance” system and this should specially take care of Financial and Health related communication when the network is otherwise blocked.

Required technical enablement has to be provided for this purpose by TELCOs and necessary procedure for the subscribers to invoke such services need to be established.

(c) Data that accumulates about the usage habits

The third category of data that accumulates during the interaction between the subscriber and the TELCO is the information about “Data Usage” such as the websites visited, Advertisement links clicked etc.

This information has a commercial value and is often the target of Data mining in the “Big Data” scenario.

The TELCOs have little use of this for their main business of providing service and even if they do, they donot need identified data and can make use of de-identified data.

However if the TELCOs factor in the value of this data as part of their legitimate revenue they need to recognize that they need to provide appropriate notice to the customers and take their consent.

If TELCOs donot take the consent of the customers but monitor their browsing and usage habits particularly with use of some software tools as Airtel was once accused of doing (and could be doing even now), it would amount to a violation of ITA 2000/8 under Section 66 and 69A.

TELCOs therefore need to introduce a system according to which, by default such information can be de-identified so that they can be used for most data analytics requirements at the higher level and seek specific consent from the customer for use of “Identified usage habits”.

Such consents have to be incentivized by some return favour to the consenting customers which is distinguishable from other customers. The nature of incentives can be left to the TELCOs to structure but there has to be some incentive for the customers to share marketable information that is entirely their own creation.

Q.3        What should be the Rights and Responsibilities of the Data Controllers? Can the Rights of Data Controller supersede the Rights of an Individual over his/her Personal Data? Suggest a mechanism for regulating and governing the Data Controllers.

My response to the earlier questions also defines the rights and responsibilities of the data controller. If they follow the principles of Privacy which Section 79 of ITA 2000 captures such as Disclosure, Consent, Responsible Use, Security, etc. it should suffice.

However, the problem is that a TELCO operates with thousands of sub-contractors and employees distributed across the country and also uses couriers as agents all of which introduced additional elements of risk for data misuse.

The mechanism for monitoring the TELCO’s Privacy and Information Security implementation  particularly at the dealer/street level offices level is currently inadequate and this has to be strengthened.

The TELCO is liable for the inadequate security at all levels and TRAI has to impose penalties on TELCOs whenever deficiencies are observed at the lower levels. Obviously the grievance redressal mechanism has to address this since TRAI may not be able to conduct its own audits in this regard.

The responsibility should however be placed on the TELCOs to periodically inspect and audit the dealers and other offices and submit a confirmation to TRAI and in the event of any breaches observed later, the audits can be questioned and penalized.

Q: 4 Given the fears related to abuse of this data, is it advisable to create a technology enabled architecture to audit the use of personal data, and associated consent? Will an audit-based mechanism provide sufficient visibility for the government or its authorized authority to prevent harm? Can the industry create a sufficiently capable workforce of auditors who can take on these responsibilities?

 If properly structured a technology enabled architecture to audit use of personal data and associated consent can be effective. There is always a possibility of manual supervision over riding the automated audits on a sampling basis to ensure a high degree of compliance.

The development of the architecture should be done in such a manner that available manpower of skilled auditors can be used for over riding supervision of exceptional observations collated by the automated systems.

An innovatively structured system can achieve the objective though at present nothing more can be said in this regard.

Q: 5:  What,  if  any,  are  the  measures  that  must  be  taken  to encourage the creation of new data based businesses consistent with the overall framework of data protection?

Presently TELCOs have a business interest that introduces a conflict with the Privacy related responsibilities. Any effort of TRAI to improve the Privacy Protection will be resisted since there is a perceived cost escalation.

Hence there could be a specialized intermediary that takes care of e-KYC for multiple TELCOs along with the “Privacy Disclosure on behalf of TELCOs” and “Obtention of Consent”. Such agencies can be called “TELCO Enrolment Agencies” such as the “Certifying Authorities of a Digital Certificate System”. They should be licensed directly by TRAI after suitable checks and according to some norms to be developed. They can provide “Certificate of TELCO Enrolment” which can be used by multiple TELCOs. The cost will be absorbed in higher efficiency and avoidance of duplication.

Presently customers hold accounts with multiple TELCOs and undergo multiple KYC verifications. Whenever they port the numbers, there is a repetition of KYC. The KYC process is done by inexperienced sub contractors who donot know the importance of KYC and this gives room for fake customers. On the other hand a few specialized “Enrollment Certification Agencies” can serve all TELCOs more efficiently.

The Government has already created a “Digi Locker” service and enabled many service providers to be created for maintaining of the “Digi Locker” service. This can also be used either directly by the TELCOs or by the Enrollment Certification agencies to further make the system more efficient and economical.

Obviously the scheme cannot be discussed in detail here but if the concept is accepted, further details can be worked out.

Similarly agencies can be licensed for information security audits of dealers who may report their findings to the TELCOs under copy to TRAI for follow up.

Q:6       Should government or its authorized authority setup a data sandbox, which allows the regulated companies to create anonymized data sets which can be used for the development of newer services?

Yes.. This requirement of segregating data as “Identified” and “de-identified” has already been covered earlier. It is an essential requirement.

Q:7 How can the government or its authorized authority setup a technology solution that can assist it in monitoring the ecosystem for compliance? What are the attributes of such a solution that allow the regulations to keep pace with a changing technology ecosystem?

It is necessary for certain basic policy level agreement to be drawn up before we can address the question of “How” the technology solution can be developed.

We need to ensure that we donot end up with too many regulatory bodies that will introduce more complications.

TRAI should be the apex regulatory authority for all TELECOM companies and rest of the regulation can be done by licensed operators such as what has been suggested above for enrollment certification.

Q:8 What are the measures that should be considered in order to strengthen and preserve the safety and security of telecommunications infrastructure and the digital ecosystem as a whole?

 There are established techno legal processes used for information security. At higher levels this is fortified by a proper management of the people involved. These can be used for securing TELCO networks also. The actual measures will however be dynamic and case specific.

Q: 9 What are the key issues of data protection pertaining to the collection and use of data by various other stakeholders in the digital ecosystem, including content and application service providers, device manufacturers, operating systems, browsers, etc? What mechanisms need to be put in place in order to address these issues?

Content and Application service providers use TELCOs as their sub contractors and the mutual legal liabilities are settled out of the contractual liabilities and provisions of ITA 2000/8.

Except proper awareness creation and dispute resolution mechanism, there need not be major issues in meeting the requirements of protection of the public from misuse of content and applications.

Q: 10 Is there a need for bringing about greater parity in the data protection norms applicable to TSPs and other communication service providers offering comparable services (such as Internet based voice and messaging services). What are the various options that may be considered in this regard?

 The distinction between different types of communication providers is no longer relevant since the entire system runs on data network. All services today are digital and any attempt to segregate them for commercial purpose is futile and can be avoided.

Q: 11 What   should   be   the   legitimate   exceptions   to   the   data protection requirements imposed on TSPs and other providers in the digital ecosystem and how should these be designed? In particular, what are the checks and balances that need to be considered in the context of lawful surveillance and law enforcement requirements?

There need not be any exceptions other than what is done in the law enforcement and consent based contexts.

There has to be procedures in place along with an implementation mechanism and sanction policy for misuse. Drafting such policies is not difficult but they are often abused without proper deterrence. The regulatory agency such as TRAI has the control which it needs to fortify with the will.

“Regulated Anonymity” (Check details here) which is one of the suggestions I have made in different contexts to ensure that de-identification is controlled by a committee which is trusted by the data subjects. Some variant of this thought needs to be used for ensuring that law enforcement does not violate the norms of Privacy protection developed for a larger purpose.

However, law enforcement rights in the interest of security has to be preserved at all costs.

Q.12        What are the measures that can be considered in order to address the potential issues arising from cross border flow of information and jurisdictional challenges in the digital ecosystem?

 The cross border flows of information cannot be prevented in the context of globalization of data management as well as the reasons of cost optimization.

The Government needs to separately address the issue of incentivizing the creation of data centers in India for global usage (not necessarily for Indian usage).

This requires not only financial and technological incentives but also legal incentives such as creating “Special Data Protection Zones” where data protection laws of a different  country are allowed to be applied with immunity from application of local laws. This concept has also been discussed by the undersigned separately in a different context and can be shared if required.

Naavi

India is presently in the process of re-writing some of the Cyber laws regarding

a) Privacy… through the Supreme Court’s view on whether Privacy is a Fundamental Right?

b) Data Protection Act under drafting

c) Health Data Privacy Act under drafting

d) TRAI draft guideline on Privacy under discussion

e) Information Technology Act

We can presume that Supreme Court will say that “Privacy” is a “Fundamental Right” of an Indian Citizen subject to “Reasonable Restrictions”. It may make some lofty noises but will not make much change in the Privacy Environment. More will be done through the other laws.

In the meantime, another issue has cropped up in the Cyber Space on “Ad Blocking” which has been challenged under “Copyright” legislation as if “Advertisement is a fundamental right” of business and removal would be an offence. (See this article for more information)

In India, ITA 2000 defines any “Program” that “Without the permission of the owner of the computer”, “diminishes the value or utility of a service”, which should include unauthorized use of “My Bandwidth usage Rights” as a “Computer Contaminant”. Introduction of such Computer contaminants is a cognizable offence under Section 66 of ITA 2000/8 read with Section 43.

Unfortunately the clarity that “Advertisements” could be considered as “Computer Contaminants” have not been properly recognized by Law enforcers and Consumers and hence no action is being taken when consumers are being cheated by Advertisers.

Many times content is being completely covered by Ads repeatedly or video ads starting rolling as soon as we visit a website etc. This menace has now started affecting the Mobile Users also to the extent that “Ad Supported Apps” have become a nightmare to the content/service users.

There are many instances when without the knowledge of the App owners, Obscene ads and invitation to pornographic websites are appearing even in mobile apps meant for common usage. I have pointed out such issues in “Google Ads” in one Radio app and have also seen it in the Chess Online App. This indicates that whatever filters are supposed to block such ads at the end of the ad supplier, is not working.

“Ad Blocking” has therefore become a necessary requirement at the user end as a “Consumer Right”. However many content providers including media websites have started a trend to block content unless the AdBlocker is removed. The recent DMCA attack on “Easylist” which was asked to remove a site from its filter. This may snow ball into a serious fight between greedy content providers and the Consumers.

While Advertisement industry (of which I was a part in the past) has a legitimate reason to exist, it has to recognize that Advertisement has to be an appendage to content and not the other way round. The media trend now in print started by Times Group is that the first page of a news paper is an Advertisement and content starts only from the third or fourth page.

Paid content on TV channels are also more than proportionately covered by Advertising to the extent that consumers feel like paying for the ads more than for the content. Initially TRAI tied to block advertisements in paid channels but the commercial strength of the TV channels over powered the TRAI and brought advertisements even into paid channels.

The “Rule of Proportionality” between content and advertising has been given a go by in the Print and the TV and it is slowly creeping into the web and mobile. We need to preserve this through the forthcoming changes in Cyber Laws that address “Privacy”.

While static ads that take a banner in the bottom or top is mostly tolerated, the so called “Intersticial Ads” that cover the entire page and does not allow the content to be displayed until the ad goes off is an encroachment of the “Privacy” of the content user and has to be condemned.

Similarly the video ads that start playing on a website as soon as the page is loaded without waiting for the user to chose whether he has to run the ad or not eats away the bandwidth that the consumer has bought at a cost for browsing the content and not the ads. Such ads take more than 100% of the band width otherwise required for the content viewing. Since all ISPs are stakeholders in this “Bandwidth bloating game” all of them are happy with such ads. Only the consumer is unhappy.

There is no doubt that content owners justify their right to advertisement because of the contractual consent they may try to obtain by some standard form contract terms hidden some where in the website which may not even be confirmed by the digitally signed means of clicking on the “I Accept” button.

It should therefore be ruled that “Ad Blocking” is a “Fundamental Right” along with the “Privacy Right” and cannot be abrogated by contract which any way most of the times is an implied contract only.

I therefore urge that the Privacy Laws that are being drafted now should define “Advertisements” as an “Intrusion of Privacy” and “Ad Blocking” should not be considered as a “Right” either under Copyright laws or Free speech consideration.

If for some reason, our Supreme Court fails to recognize this, I wish ITA 2000 amendment should recognize this and introduce a clause to recognize that

“Unsolicited Ad serving on web or mobile should be considered as a “Spam” and subject to “Reasonable Restrictions”.

Such reasonable restrictions should include by way of “Rules” that the ad content on a mobile or  a webpage should not exceed 10% of the visible space and the total bandwidth usage by ads should not exceed 15% of the total bandwidth required for the page.

Any excess should be specifically authorized each time by an affirmative consent which should be recorded and made auditable by relevant authorities.

Any contravention should be made punishable by way of civil compensation to the consumer as well as fine just as TRAI does on contravention of unsolicited call blocking norms.

One more regulation that needs to be considered is that

When a service is contracted by a user (eg: when an app is first installed or a Privacy Policy version is frozen on the website), whatever was the advertisement composition, should not be increased after the installation without express consent.

The above suggestions can also be made to TRAI since it has placed the consultation paper for public comment upto September 22, 2017.

Since “Privacy” is a “Right to be Left Alone”, the “Ad Blocking” can be considered as protection of this “Right to be left alone to use the content” without the intrusion of the Advertisements. The honourable Supreme Court should take note of this and if possible, make a suitable observation.

Putting a regulation on Advertisements across all media should mitigate the risk of commercialization of web and mobile services and preserve the “Net Neutrality” principle also.

I hope TRAI will give due thought to the need to put a control on the Advertisements and appropriately draft their rules on Privacy protection. (We shall separately discuss the consultation paper in a subsequent article)

Naavi

The Court of the Sub-divisional Judicial magistrate Puri, in its judgement dated 4th August 2017 has come up with some interesting observations on  Section 65B of Indian Evidence Act and Section 79A of ITA 2000/8 that needs to be taken note of.

The case refers to  State Vs Jayant Kumar Das (G.R. Case No 1739/2012: T.R.No.21/2013)  in which the C.F.S.L., Kolkata had submitted it’s opinion on certain Electronic Documents which came up for discussions both from the point of view of Section 65B certification and also the status of C.F.S.L as an “Expert”.

For the record, the accused was charged under Sections 292/465/469 and 500 of IPC and Sections 66C/67 and 67A of ITA 2000/8 and the Court sentenced him under different sections.

(Copy of the Judgement available here)

For the purpose of our immediate discussion we shall restrict ourselves to the observations in the judgement about Section 79A of ITA 2000/8 and Section 65B of Indian Evidence Act.

One of the issues raised by the defence counsel challenging the evidence was that CFSL Kolkata was not notified as a “Digital Evidence Examiner” under section 79A of ITA 2000/8. Hence it cannot be considered as an “Expert” for the purpose of Section 45A of Indian Evidence Act.

The Judgement  rejected the argument of the defence counsel and held that

“Even if, the notification U/s. 79(A) of I.T. Act is not available yet it is admissible and the opinion of the expert complied with Section 45 of the Indian Evidence Act 1872 and Section 293 of Cr.P.C. is a relevant fact.“

We may add that Section 79A states that the Government “may” notify (not “Shall”) agencies for the purpose of providing expert opinion on Electronic evidence before any Court. Hence we may consider that it is not mandatory that the Government has to notify agencies under Section 79A and if no such notification is made, the evidence is not to be considered as “Expert Opinion”. In our earlier article we have explained the role of “Digital Evidence Examiners in great detail.”

The defence counsel also raised the issue regarding the signing of the Section 65B certificate on which the Judge made some detailed comment worth taking note of.

In this connection, Para 29 of the judgement is worth reproducing completely as it explains some critical aspects of Sec 65B:

“The certificate U/s. 65(B) of the Indian Evidence Act is mandatory for the  purpose to show  that  the  evidence is genuine.

Whoever claims that   the   computer  generated  evidence     was  produced  from     his computer shall  merely have  to certify on the document that the relevant record   in  question  is  genuine  and   has  been  produced from  his electronic  device.  After that  he  has to sign  it. This  statement shall  be titled as certificate U/s. 65(B) of the Evidence Act. 

The hard  disc which may   contain  a  electronic     document  also  cannot  be   considered  “ Primary  document”.  Since it  is only a  “container” and  real electronic document is an expression in binary language which cannot be read  by a  human  being  and   needs to  be  interpreted  with  the  assistance  of binary reading device( computer operating system + application).

Considering   the  interpretation U/s.  65(B)  of Indian Evidence Act the certificate  under  this  section  as a matter  of fact  to the  effect  that  what on the  saw what  on the  reproduced as a computer  output   failthfully.

This  can   be  done   by  any  person  who  is  observing    an  electronic document in his computer and  once  it to be produced as an evidence. It is not necessary that a document from yahoo  website has to be certified only by a   yahoo  server administrator.  The  certificate can  be  given  by any  person who  can  lawfully access the  document in electronic   form who  understand  the  contains  and  is  considered as an  expert  in  such domain.”

The above view is in complete agreement with our view expressed on this site several times earlier.

As we have stated earlier, the jurisprudence on Section 65B certification is still in the phase of development and in this process this judgement is a notable step.

To Summarize our view on the two aspects, we can state,

Section 65B certificate is for the “output” created from an electronic document that a person experiences and can be provided by any person who experiences the electronic document. (The word “Experience” is more relevant than “read”, since we may have some electronic documents which are not “Text” documents that can be read but could be audio or video documents that can be heard or seen.)

Once an electronic document is presented with a proper Sec 65B certificate it would be a sufficient requirement for admission by the Court at the trial stage. However the defence can challenge it. At that time it is open to the Court to call for an “Expert Opinion” on the Sec 65B Certified document which is in its hands already.

This examination of a “Disputed but Admitted Electronic Evidence” may be done by a “Digital Evidence Examiner” if available or by other “Experts” at the discretion of the Court. No document would be considered invalid soley for the reason that the “Expert” is not a “Digital Evidence Examiner” or that no such “Digital Evidence Examiner” has certified the document either before or after admission.

It is also necessary to note that some times, the electronic evidence presented by forensic organizations like CFSL is a “Hybrid” document which is both a “Matter of Fact” presentation of an electronic document which requires Section 65B certificate and an “Expert Opinion” where the person signing the certificate expresses his “expert views” on the matter of fact information available in the certified report.

I have also held in the past that it is desirable for the Forensic experts to realize this hybrid nature of their report and properly present their certified report so that Court may accept the “Matter of Fact part of the report” independent of the “Expert Opinion” part and the defence may accept the “Matter of fact part of the report” but challenge the “Expert Opinion”.

Some of these aspects will come up for discussion again in future and get clarified in due course.

P.S:: One aspect on which we are unhappy in the disposition of this case is that desihunt.com, the accessory to the crime has gone unpunished.

The site is still in existence and running “Dating” and “Wife Swapping” groups etc., which can be used by others to commit the same offence for which the accused in the above case was convicted. 

The domain name desihunt.com has been registered by a registrar by name Wild West Domains LLC and the identity of the owners is being sheltered by the registrars under the false pretension of “Privacy”.

Though this was not a subject matter of the case, the Court could have made an order for the Police to pursue a case against the website in the interest of the public in general.

Now I urge the “Adjudicator of Orissa” who is the “IT Secretary of Orissa” to take immediate action to get this website closed and owners brought to trial separately both for civil and criminal penalties.

People who are familiar with the old “Dr Prakash Case” in Chennai will remember that one of the websites that his brother was maintaining to which the offending photos were allegedly being uploaded by Dr Prakash carried a disclaimer as we see in this website  now stating

“This Site is a dating and social networking portal for like minded adults above 18 years of age.  Please leave this Site immediately if you are under 18 years of age ( 21 in some countries/states,  please check your local regulations ), or if it is illegal to view adult dating/networking portal  in your country/state. By clicking on enter link you agree with the terms”.

The value of such disclaimers without any technical barrier to prevent entry of minors is a matter of a separate debate”.

Naavi

On July 6th 2017, RBI after 10 months of thinking, released the official confirmation of the “Zero Liability Circular”. 

Naavi.org had urged the banks to go for a “Competitive Compliance Drive” and initiate measures to implement the provisions of the circular.

While no Bank seems to have taken specific measures such as the new Policy on how to handle liabilities when frauds are reported after the first 7 days etc, an interesting internal message in State Bank of India has been reported.

This is said to be a message sent as an internal circular to the staff of SBI and in the end includes a sentence that this can be shared with customers.

The message runs as follows:

SBI CARD FRAUD ALERT

For the information of all officers and staff

Due to a recent incidence of a fraudulent credit card/debit card transaction of Rs. 57000 in the account of an officer of one of the branch of our bank. It is our duty to inform all of you to disable international access/usage for your credit/debit card as international transaction do not require an OTP and are Vulnerable to huge frauds by culprits who are difficult to trace out.

MODUS OPERANDI

1. while our officer was busy with customers in peak time at his branch, he has received multiple messages for multiple fraudulent transactions amounting to Rs. 57000/-.
2. Our officer thought that his 4 in 1 in hrms is being credited by the bank.
3. He realised the fraud only after business hours after checking his account.
4. By that time Rs. 57000 was stolen by fraudster.
5. If he could have realised with in 3-4 hours of the fraudulent transaction, that amount could have been reversed by taking immediate steps. However a complaint has been lodged with the concerned department.
6. our officer felt that he has not received an OTP and so there is no possibility of a fraudulent debit but for international transactions otp is not required.
7. Just by knowing the card number and expiry date and CVV, a fraudster can do any no. of transactions.

In this connection, we advise all of you to kindly disable international access/usage for your credit/debit card by following these steps,

FOR DEBIT CARDS

1. We have to download SBI QUICK app from play store in which there is an option as ATM CUM DEBIT CARD.
2. In that we will find ATM CARD SWITCH ON/OFF option.
3. In that screen we have to enter last four digits of our ATM card No. and we have to select OFF for international usage. we can also select the OFF Option for e-commerce transactions(FOR THOSE WHO DNT DO ONLINE PURCHASES ON E-COMMERCE SITES).
4. Immediately we would receieve a confirmation message for the same. however, In the same menu and in same way, we can also activate whenever we required.
we can also de-activate the international usage just by sending a message as SWOFF INTL XXXX( last four digits of card no.) to 9223966666 from registered mobile no.

FOR CREDIT CARDS

1. We need to logon to WWW.SBICARD.COM site.
2. Left side of menu where you will find REQUESTS, in that an option as ACTIVATE INTERNATIONAL USAGE.
3. After clicking on it we will find two options as activate & deactivate, there we have to select de-activate, then immediately a service request no. will be generated&you will see a message as
Congratulations! You have successfully de-activated international usage on your SBI card ending with XXXX.

Please share to all your customers and colleagues.
Customer education customer delight

It is ironic that SBI seems to have woken up because one of its Staff members have lost the money. There are hundreds of such customers who are also busy and become victims to such frauds.

Obviously, SBI would refund the money to its staff member without asking any question on how did it happen and whether he had revealed his password to some body else  etc. I wish some body puts an RTI application to find out how they resolved this case and why they donot adopt automatic refund process for customers and prefer to drag customers to Court.

Anyway this is a “Cognizable Offence” and Police have right to investigate since the information is now available. I wish Mumbai Police investigate how the fraud happened and record whether the Bank admits that even without the customers giving out their passwords in phishing attacks they can lose money. This is important since the same Bank will stand before a Court and swear that their security is perfect and there can be no unauthorized access except by the customer’s negligence. This myth will be shattered.

If the staff member is guilty of giving out the password, then it will prove that whatever education that the Bank has been providing to its customers has not even gone to its own staff.

Either way, SBI should now automatically own all such frauds as their inefficiency and provide immediate refunds. …which is the essence of the Zero Liability circular anyway.

However, the facility to activate and deactivate international usage is some thing every Bank has to enable. The internal transactions are atleast controlled by OTP.

But this is not sufficient and as in the case of debit cards, SBI should also provide for deactivation and anytime reactivation of even the local use.

We congratulate SBI for the measure since most of the time other Banks tend to follow SBI. These are measures  suggested by the Damodaran Committee in 2011 which are coming to be implemented now. Better late than never!

Also RBI should now audit the actions taken by Banks since July 6 2017 to introduce the measures suggested by the said circular so that customers would feel safer.

Naavi

There is a news report today that the Bangalore Police are so impressed with Mr Abhinav Srivastava who was arrested under the charge of hacking into UIDAI data base that there is a discussion on engaging him as a consultant for the Police. (See Report here).

At this point of time, this remains a rumour and could be a fancy wish of some. At least we have seen TV serials about such a practice in USA where “Community Service” is one of the options offered to a criminal as part of the sentence. Hence the Cyber Crime Police could create a structure for using convicted hackers to be part of the Police team for a certain number of years until the sentence runs out.

I am not sure if Criminal Jurisprudence in India provides similar innovative discretion to a Judge. Probably experienced criminal lawyers can clarify.

However, there is nothing wrong that in deserving cases, Courts could consider such innovative punishments which could be the most appropriate in some cases. But if such things are to be properly brought into the system, then we should be sure about Judges not being corrupt. We have several instances in India of Judges faking arithmetic errors and acquitting criminals or granting bail or allow convicts to be on parole on non existing grounds.

If therefore “Community Service” is allowed as a “Punishment”, then many criminals would buy such punishments and later negotiate with their mentors who are supposed to monitor the sentence to go scot free.

However, in the case of Cyber Crimes in particular, it appears that such punishments are relevant since in most cases the accused could be educated and more often becomes an offender either because of “Ignorance of law” or for psychological conditions such as “Technology Intoxication”. Such persons can be perhaps amenable to a reformatory process.

In the case of Abhinav Srivastava, this could have also been suggested as a face saver for the Police/UIDAI since the case is not strong. The case has been booked and the person has been arrested for “Unauthorized Access of Aadhar Facilities”. But actually he has perhaps created a tool which is used by third parties who made use of an “Authorized Access Source” under circumstances that there was no clear bar on his not using the source.

Without adding the 80000 members of the public who downloaded and used the App as the main accused, it would be difficult to blame only the tool manufacturer.

Further, it is difficult to establish the guilty mind (mens-rea) of the accused to bring about a criminal charge. There will be little scope of civil claims since no body may be able to prove “Wrongful loss”.

If the case is pursued further, several intermediaries also need to be considered as Co-Accused and brought to book. This would be embarrassing both for the complainant as well as the Government.

If the case is dismissed, then there is a possibility of a back lash with an accusation of mishandling of the case and possible human rights violation.

Hence some face saving solution which is a Win-Win solution for all could be a good option to consider.

One possible method by which such innovation can be brought into the system would be through a “Compounding Process” where the complainant and the accused come to a written agreement on the basis of which the Complaint is withdrawn. Probably the Police or the Court can mediate in arriving at such a compounding agreement which is acceptable to all.

Hopefully the Abhinav Case becomes a trend setter in this respect and such a compounding arrangement is worked out. Since an FIR has already been lodged in this case, the Court will have to be in the picture for the compounding agreement. In the process it would be better if an SOP (Standard Operating Procedure) would be drawn up by the Court and the Police to be used when required in future to ensure that the system is not misused .

(Since this is more a matter of Criminal Justice system, I would expect readers to correct if my contentions are incorrect and add their own comments… Naavi)

Naavi

Also Read: Bengaluru Police Smitten by Abhinav’s tech skills