Naavi.org

Following is an article written prior to the Supreme Court judgement on Section 66A and the Net neutrality controversy. for one of the print magazines of a law College.  I welcome comments.

Naavi

Cyber Law Vision-2018

By

Naavi

It is the stated policy of the Government of India that better Governance can be achieved through Transparency, Efficiency and Economy. There is no doubt that all these “Good Governance” concepts can be better achieved by pursuing the “Digital India concept” and hence the Government is pushing ahead various projects towards achieving the objective of creating a “Digital India”. The “Digital India” concept encompasses the use of IT in Critical Infrastructure, Critical health Care, National Security, Internet of Things, the Big Data, Smart Cities, the Bullet Trains etc. The legal challenges which these technology developments would throw up are now staring at us.

To address the emerging challenges, we need to evolve a “Cyber Law Vision for Digital India”. Normally we say that law lags behind technology like the traditional Indian wife. But just as the wives of the 21st century are different and step either ahead of or hand in hand with their husbands, Cyber law also need to evolve as fast as the technology itself.

So, it would be appropriate if the “Cyber Law Vision of Digital India” is ready before the other technology related Vision projects of the Government are targeted for achievement.  I wish therefore that we try to develop a “Cyber Law Vision-2018” and assist the Government in ensuring that law moves in tandem with technology and does not lag behind.

It is the responsibility of leading law institutions in India such as the National Law Schools/Institutes to initiate the necessary steps to form a “Working Group” of visionaries and guide the Government in this regard. Perhaps IITs and IIMs also could be associated with this project since the Cyber Law of Digital India should also be acceptable to the technologists and business managers of Digital India.

As a starting point for a discussion, I place before this forum the areas of Cyber Law that need our attention for developing the “Cyber Law Vision-2018”.  The issues we need to explore are

1)      Cyber Terrorism and Cyber War issues

2)      App based services and Online retailer’s controversy

3)      Bitcoin Controversy

4)      Sec 66A issues

5)      Privacy and Freedom of Speech Issues

6)      Obscenity Issues in Cyber Space

7)      Technology dependence-Smart City issues

8)      Technology addiction and Social Media Issues

9)      Jurisdictional issues

10)   Netizen’s Rights and Net Neutrality Issues

It is not possible to explore all these issues in full detail in this article but we can  try to identify the types of issues that need to be addressed and set a direction for the policy. Once the basic direction in which the policy should proceed is identified, the Working Group can take it forward.

I will therefore only briefly address the issues taking a cue both from the problems that we have faced in the past and what we may face when the Digital India projects roll out one by one.

1)      Cyber Terrorism and Cyber War issues

Recently there was a crippling Cyber Attack on the IT infrastructure of Sony Corporation in USA.  It is believed that the attack could have been orchestrated by a State Actor. The level of sophistication that was used in the attack was considered to be beyond the capabilities of criminal gangs which often have attacked financial institutions such as Banks in the past.

Earlier attacks identified with State Actors involving the “Stuxnet” virus as well as the attacks on Estonia’s infrastructure was directed towards another State actor. It was therefore a “Cyber War” between two State Actors. However, the Sony Attack was an attack by an Enemy State on a Private Corporation.

Currently USA, China and many other countries are believed to be silently building up a “Cyber War Capability” and the software or hardware developed in such countries often have embedded Trojans that are meant to spy and take control of destination systems when need be. In such cases law needs to provide a proper support to the victims to take suitable action.

In 2009, NATO launched the “Tallin Manual” as an effort in developing International Law applicable to Cyber Warfare. We need to examine if this manual can be applied for the Sony Attack. Being a private sector Company, the resources of Sony to defend itself cannot match the offensive strength of another State Actor. If this is the fate of a large corporation such as Sony, then what would be the fate of Small and Medium enterprises? Will they be at the mercy of the organized attackers from an enemy state? Is it not the duty of the Government of a country to protect its citizens in such attacks? ..these are the issues that our Cyber Law Vision-2018 needs to address.

Perhaps there is a need to amend the Constitution by which an obligation is hoisted on  the State to protect the Cyber Assets of its citizens from an attack from across the physical borders either by Cyber Terrorists or a Cyber Army of an enemy state because the private asset is a soft target though their grudge is against the nation.

But if a Company in India suffers an attack like what Sony Corporation suffered, can it invoke the Constitution and claim compensation from the Government?…is an issue to be addressed in law.

2.      App based services and Online retailer’s controversy

Recently two controversies broke out in India. The first was that the app based taxi services such as Uber, Ola and TaxiForSure were charged with running  “Taxi Services” without the necessary licenses. The second was an allegation that online retailers like Flipkart and Amazon need to pay sales tax on goods stored at their ware houses by the fulfilment agencies.

In both these cases there was lack of understanding of the nature of the technical services rendered by the agencies and whether the laws that were applicable to the fulfilment agencies could be hoisted on the technical service providers who were actually “Intermediaries” under law.

In both the cases the Governments in the States had their way because the technical service providers did not challenge the decisions and take it to the logical legal conclusion but agreed to abide by the wishes of the Government.

We must understand that a service such as Uber is nothing but a “Digital Call Centre” which receives the calls from customers and connects it to the service providers. It is open to the organization to own its own taxis in which case it will be wearing two hats, one as a taxi service provider and the other as a call centre. It is wrong to expect the call centre operator to possess the license for all the services that he facilitates. At best this required a proper clarification on the service provider’s websites and not a re-defining of an E Commerce delivery model. Obviously we cannot expect makemytrip.com to have an airline license just because it connects the consumer to an airline ticket booking. But the Governments which wanted an excuse to raise their revenue could not understand.

Similarly the online retailers are also free to sell on their own account or simply facilitate the sale on their platform. The responsibilities in these instances can be different and it should be recognized.

It is reported that recently WIPRO has released an app from which several travel related services can be accessed by their employees. If proper clarification is not available, some people may claim taxes from them for running a travel agency.

At present ITA2000/8 may not to provide the necessary clarifications and that has caused the mis-interpretations. Some may jump to a conclusion that we need new sections inserted into ITA 2000/8 to accommodate such changes. But it may also be possible to achieve the objective by simply inserting some explanations without major amendments to the law. This needs to be explored in the vision document.

3.      Bitcoin Controversy

Yet another area where a controversy erupted in India last year was on the concept of “Bitcoin”. The discussion veered around whether Bitcoin usage is legal or not in India. RBI gave a clarification that Bitcoin is “Not a currency” and the Enforcement Directorate raided a few businesses dealing with Bitcoin exchange and shut down the services.  At the end of the controversy, little thought was given to the root cause of the controversy and the damage done to the development of “Virtual Currency” as a system rather than one specific currency called “Bitcoin” which unfortunately had already got itself established as a popular medium of exchange in the underground economy.

During these discussions, it was forgotten that “Virtual Currency” was simply an “Electronic Document” recognized in law as equivalent to a  paper document. It was open to the user to give it a value whether as equivalent to $500 or as dirt. By talking of banning of Bitcoin, people were actually curtailing the freedom of a closed group to use an exchange medium of their choice to exchange their services within the community.

Since Virtual currencies have an enormous potential to be used by the Government as a valid currency and there are concepts which can identify every unit of the virtual currency along with the associated transactions and provide complete accountability along with convenience. There is a need to debate if we have committed disservice to the Digital Society by looking at all Virtual Coins with coloured glasses.

4.      Section 66A Issues

Debate on whether Section 66A is constitutional or not is now before the Supreme Court of India. The controversy originated from the several cases in which the Police invoked the section to arrest persons for what is considered as politically unpalatable comments in Facebook, Twitter or Blogs. They were touted as “Defamatory”, “Causing Annoyance” etc.

In the entire discussion the fact that Section 66A was not meant to address Cyber Defamation and what caused the controversy was a misapplication by Police and some advocates to invoke it for defamation. People also fail to recognize that if we attack Section 66A as a whole and fight for its removal from ITA 2000/8, we will be taking away protection for Cyber Bullying, Cyber Stalking, Phishing , and Spam etc.

By the time a Cyber Law Vision 2018 evolves, perhaps Supreme Court would have already pronounced its verdict. May be during the process of development of the vision, we need to take into account what the Supreme Court says and ensure that the real purpose of Section 66A is not fully lost.

5.      Privacy and Freedom of Speech Issues

Without a specific law on Privacy, India has tried to address the privacy considerations in the digital world through data protection measures in ITA 2000/8. But the conflicts with the Freedom of speech issues and Security issues always go hand in hand with Privacy considerations. There is therefore a need to comprehensively review the privacy regulations in India and how to remove hindrances to development and security without hurting the democratic principles.

In this connection, concepts such as “Regulated Anonymity”, “Privacy Protection Zones” etc. need to be explored  and debated through the vision document.

6.      Obscenity Issues in Cyber Space

Obscenity is a concept which has different connotations in different cultures. India has a dichotomy of cultures with an extremely permissive society at one end and a traditional society at the foundation. Striking a balance between the two extremes is a difficult proposition for law makers.

Also, India has different standards in practice that is operating for different types of communication mediums and often the film industry has more obscenity embedded in songs and dialogues than what the internet is accused of.

We need to explore the possibilities of harmonizing  different mediums through the vision document.

7.      Technology dependence-Smart City issues

The proposed Smart Cities and the Bullet trains will be highly dependent on technology. The criticality will be so severe that technology should be reliable, fail safe and secure.  Criminals and enemy countries would be rearing to exploit opportunities to hold the country to ransom and throw up legal issues on intermediary responsibilities, Privacy issues, Jurisdictional issues etc. Strict law on paper supported by forensic capabilities and enforcement would be vital for deterring the criminals.

The vision document needs to address the need for such laws which are functionally supportive to the use of technology and at the same time act as a deterrent against misuse. This requires a balance to be achieved and the development of the document needs to have highly creative minds at work.

8.      Technology addiction and Social Media Issues

The increased dependency of Netizens on technology for communication driven by the Digital India concept where Government and Business will also be driving users to more and more intense use of mobiles in particular has raised serious psychological issues of “addiction”.

From the current state of being “Techno Savvy” to being an “addict”, is a small additional step. We have seen suicides attempted for issues such as “Dropped from being a friend on Facebook by a friend” or “Denied of Internet usage by the parents” etc. These indicate that we are already into the “Techno addiction era” and if we do not wake up and take remedial measures, then the society will have a serious problem.

In this context we need to debate if our law makers need to build ways and means of developing early warnings on emerging addiction, making counselling and de-addiction part of the responsibilities of the social media managers etc. We also need to debate … Is anonymity a problem? Should there be a check on virtual games involving sex and violence?… etc. These are issues to be addressed in our Cyber Law Vision 2018.

9.      Jurisdictional issues

Jurisdictional issues have been in discussion ever since cross border interactions developed in the physical world. The problems which the Internet introduced to the issue are too well known to require a reiteration.

What we may however debate is whether  the effectiveness of Cyber Law in any  a given country is seriously compromised if jurisdictional issues are not simultaneously addressed.  The question is what the use of a law is if it cannot be enforced?.

We need to therefore consider if it is time for each country to work towards a global cyber space treaty which addresses all aspects of cross border interference.

In this context it is necessary  to consider, whether  we need to mandate a Cyber Treaty under the umbrella of the UNO as part of the Cyber Laws of each country and whether seeding of such an idea can start with the Indian vision for Cyber Laws.

10.  Netizen’s Rights and Net Neutrality Issues

Close on the heels of the Jurisdictional issues are the issues of Net Neutrality and Netizen’s Rights that need a larger debate and accommodation in Indian laws. ITA 2000/8 did not consider these issues and the requirements of  Digital India  require clarity on such issues.

Globally there is a discussion that Internet is a fundamental right of the society and should be available free to all. Is it possible to mandate such a requirement in India particularly when certain Mobile Service Providers have shown an inclination to charge more for data than voice or to block Skype like services etc.?

We need to start discussing on such concepts by accommodating them into our Cyber Laws through the vision document.

To conclude, while there are several issues that we would like to address in developing a long range Cyber Law policy for India, only a few of them have been indicated in the above cases. If we start discussing in this direction, we would be able to develop more thoughts and the emerging Vision document can be a good guide to the Government for making our life in Digital India more orderly. We may need to organize several seminars across the country to address each of the issues and let the working group members participate in each of such seminars to gather opinions which can be considered for finalizing the vision document.

I urge National Law Institute, Bhopal to take a lead in this direction and initiate action for setting up a “Working Group for Developing Cyber Law Vision for Digital India”.

Naavi

(Na.Vijayashankar)

7th march 2015

Founder www.naavi.org

After three weeks of intense debate, the discussion on Section 66A has passed onto the next stage of what further action is required to be taken. Further discussions will perhaps resume based on what the Government does or what Supreme Court does suo moto. In the meantime an equally raging debate has emanated on the issue of Net Neutrality.

Knowingly or unknowingly the Supreme Court bench on Section 66A has already declared that any content posted through internet or mobile either on a website or to another person by way of communication are to be considered as “Free Speech” and can be regulated only within the exceptions provided by Article 19(2). The Net Neutrality debate cannot therefore be discussed ignoring this legal position.

A proposal by Airtel to introduce a data plan which may provide incentives for subscribers to visit specified websites with a subsidized cost has sparked off a debate on whether this move is a step towards breaking the net neutrality.

The Airtel proposal is now with TRAI which has called for public views. DeiTY has also formed its own committee to deliberate on the issue and the media is adding colour to the debate.  www.netneutrality.in has taken up a crusade against the proposal and invited the public to submit responses to the consultation paper published by TRAI. The last date for submission of comments is 24th April 2015. Copy of the consultation paper is available here.

A beautiful and informative video has been prepared and posted on you tube by AIB (All India Backchod) that explains the concept.

In short, “Net Neutrality” is a concept which demands that “There should be no discrimination built into access of data on the Internet”.  All data should be considered equal. I should not be asked to pay more for accessing one website than another.

Today it may appear that the Airtel Zero Plan is only a commercial deal between a few websites and Airtel and the consumer will get a lower charge to use some data services and pay higher charges to use some other data services.

But once the idea of charging more for WhatsApp and Skype is admitted, the commercial interests will slowly dig their heels and ensure that all decisions on the Internet would be determined by how much paisa you can pay to the service provider. It will usher in a new era of “Corruption” in the internet access system in which smaller players have no chance to survive.

The Digital divide between the digital haves (established players on the web space who can pay for easy access to their resources by public) and the digital have nots (who cannot pay this additional tax) will widen.

For example, the bandwidth may be diverted by the service providers in such a manner that if you want to visit  a preferred website and pay Rs x per KB of data,  you will pay Rs 2x (or more) per KB of data if you want to visit www.naavi.org or www.prpoint.org. There is no doubt that ICICI Bank will ensure that accessing State Bank of India would be more expensive.

All Government websites will be reduced to second class sites since no body in the Government will take the lead to pay extra to Airtel and other service providers just to keep parity with private sector. Smaller people will lose out because they will not have the resources to compete.

In the end, all “Money Haves” will become “Digital haves” and create a cartel. If anybody expects that consumers will benefit by being able to visit some websites for free or at below par rates, they will be fools. For the business, the subsidy they pay to the service provider today is an investment for the future and they will recover far more from the same consumer in some manner even if they have to wait a little to eliminate other smaller players.

Alternatively if every body with money power registers their sites with all the the service providers, for better service to their customers, there will be a new licensing regime managed by the private sector and the consumer will end up picking up higher cost for all the services. This will be a second level domain licensing system which will kill the Internet as we know till today permanently.

In fact, several years ago, a similar attempt was made by Internet Service Providers to block VOIP services. The issue was partially resolved by bringing it under the licensing parameters but the discrimination still persists.

Already this discrimination is being practiced in different forms. One example may be the system of Google Ads where by certain links are placed ahead of  search results. Many Apps run a free version supported by Ads and a paid version where Ads are removed.

The Digital TV transmission is another area where the service providers call the shots and maintain a differential pricing for different channels.

The debate therefore is an intricate battle between free speech advocates and the commercial interests.

In fact some free speech advocates who supported Scrapping of Section 66A as a curb to freedom of speech,  have already switched to  supporting the Airtel Plan on the grounds of “Freedom to do business”.  Commercial interests have a great power to corrupt our long term vision. We need to guard against it.

While we complain about discrimination on the Internet, we must remember that this is the last bastion of the “Equal Rights for All” principle. Though we swear by our constitution and say all Citizens are equal, we find various excuses to discriminate one citizen against the other. The entire system of reservations whether it is based on caste or religion or gender, they are all based on an acceptance that some are more equal than others.

Our Supreme Court swears by Article 19(1) and at the same time allows a Section 498A to be present in our laws which is a monument of gender based discrimination in law. If Airtel announces that they will provide concessions and reservations to certain caste and religion, then all our politicians will start speaking of our Constitution and why net neutrality should not be applied in our country. Even our Courts will uphold such arguments because such discrimination is in built in our constitution which has long given up its principle of “Equality and Justice for all”.

As long as this hypocrisy remains in our system, it is difficult to prevent the gradual breaking down of net neutrality concept.

If we want to preserve the net neutrality, we need to fight for an “Amendment to our Constitution” to incorporate “Access to Internet at a minimum bandwidth as a fundamental right”. Like the thoughts that prevail in some EU counties, Internet should be free and available to every citizen. May be a reasonable cost is acceptable but not with an inbuilt discrimination.

We therefore need to fight the current Airtel plan under three fronts.

The immediate requirement is to get the proposal rejected by TRAI because it is a curtailment of freedom of speech by cost manipulation and anti constitutional under Article 19(1) of our constitution.

Secondly, we need to set up a “Netizens Rights Commission” which is a long standing demand of Naavi.org first raised after the 2008 amendments to ITA 2000 in the context of Section 69A and then again as a “Charter of Demands by Netizens”.

Thirdly the Parliament has to debate a constitutional amendment to incorporate the requirements of the Digital India and the Right of Netizens.

I would invite all the net neutrality protagonists now to come together and start a process for writing a draft  “Constitution for the Netizens of India” which is truly representing democratic principles of “Freedom and Equality for all” which is not present in the current constitution that guides us as Citizens of India. Such a constitution for the Netizens of India can completely ignore the caste, creed and religion of people and treat all Netizens as equal. A template for such a Cyber Democracy was also presented through these columns long time back and have been consigned to the archives. We may revive it now and create a constituent assembly of the Netizens of India to write the Constitution for the Netizens of India. Then probably we will be able to develop a draft which can be integrated into our existing constitution or can be a model on which our existing Constitution can be made a constitution of a “Democratic,Non Discriminatory Society”

Naavi

Over the last one month, several articles have appeared on Naavi.org and also elsewhere discussing Section 66A. In order to have all these articles at one place, I am trying to put together this page with links to both articles within Naavi.org and outside (through Google)

Articles in Naavi.org:

Site Search Google (New Posts) :66A:

Site Search Google (Old Posts) :66A:

Google Search Section 66A+vijayashankar

The two member bench of the Supreme Court of India consisting of honourable Justices J.Chelameswar and R.F.Nariman, struck down Section 66A of ITA 2000/8 on March 24, 2015, in their judgement in the batch of petitions lead by Shreya Singhal Vs Union of India on the grounds of it being anti constitutional.

Though this decision was hailed by many as a victory for free speech, Naavi.org considered that the decision represented a mistake on the part of the bench identifying that Section 66A was responsible for the arrest of some innocent persons in certain cases highlighted by different petitioners which were considered by the Court.

According to our perception, the arrests were made by ignorant, uninformed,unintelligent policemen under political pressure and the  Court was unable to call the bluff of the Policemen. They instead endorsed the correctness of their decision, found all the fault on the presence of the section in the statute and killed it.

The fact that the sudden removal of the section has been greeted  as a “Freedom to Abuse” has created a void in law and could have adverse consequences on India’s progress in the digital space has been well recognized.

We suppose even those who hailed the decision as “Victory for Freedom of Speech” will agree that it was unfortunate that offences such as Cyber stalking, Cyber bullying, Spamming and Phishing have been either removed from the books or have been made dependent on IPC.

I suppose even the honourable judges who gave the judgement should have realized by this time that their decision to refuse reading down and opting for striking down was an unwarranted use of excessive judicial force.

As an academician, I am  still unhappy that Supreme Court made a mistake and that has gone on record as a precedent and will haunt us in the days to come. Certain words which the judgement has said on the “Vice of vagueness”, “Judicially Trained minds coming to dramatically opposite conclusions” , and the debatable approach of the Court ignoring the “intent of a section” as expressed in the title and the words by arbitrary interpretations from the definitions clause will be ringing in the Courts in subsequent proceedings as “Precedents” until such time it is modified in a new Judgement. This will proliferate the effect of an erroneous decision for a long time.

Now the ball is before the Government which has to think of the next steps and determine how to respond to the situation they have been pushed into.

It has been reported that the Ministry of Home in the Union Government has taken the first steps to respond with the formation of an internal committee to consider re drafting the provisions.

See news report

Hopefully the Government will find a quick fix solution since the larger issue of comprehensively amending the ITA 2000/8 will take a long time.

In this connection it is possible that the Government may think of an ordinance to introduce a new Section 66A though the opposition as always may keep objecting for their political reasons.

Though the drafting of a new Section 66A through an ordinance will be an easy option for the Government, the Supreme Court taking up a self review and reading down the section would have been a better option to erase the impression that Supreme Court misread the section and came to a wrong decision which was corrected by the new legislation.

However, in the end, it is the goal attained which is important.. though the means to attain were less optimal….

….(With apologies to Mahatma Gandhi who held the “means” as important as the “goals”)

We therefore welcome the move of the Government and urge it to complete the re drafting of the new Section 66A which should address the concerns related to “Offences committed with Messages sent through internet, Communication devices etc”.

While redrafting, the following explanations can be added to the section

1. This section shall address to information which is sent from one person to another using the medium of  internet or any communication device and shall not include content posted on a website or a blog or social media vehicles.

2. “Information” used in this section shall mean only such information that has an effect to deprave and corrupt the minds of the recipient and incite him to contravene any law in force and not such information which are expressions of scientific, literary or such other matters pertaining to the betterment of society.

3.Nothing in this section shall affect the freedom of speech as guaranteed under the Article 19(1) of the Constitution.

4. Sending a “Grossly Offensive” or “Annoying” message in the context of this section means  intentionally sending any communication with words, silence or otherwise that is intended to cause mental anxiety, mental agony or mental disturbance to the recipient beyond a level of tolerance any ordinary prudent person under similar circumstances is considered capable of tolerating and thereby inciting him to commit an offence.

These explanations could also be presented as an addition to a “suggested new draft” which the Government may submit for a “Curative Petition” before the same bench or for a “Review” before a larger bench of the Supreme Court and if accepted, the need for an ordinance, Bill and its notification would be avoided. If required, the Court can “Read down” the section to incorporate these explanations into the section.

This may be the quick and most efficient solution for the problem that has now arisen.

Naavi

Also Read : Section 66A of the IT Act likely to be back in softer avatar

The Advanced Center for Research, Development and Training in Cyber Laws and Forensics, (ACRDTCLF) of the National Law School of India University (NLSUI), Bangalore held a round table on 11th April 2015 to discuss the aftermath of the Supreme Court decision on Shreya Singhal v Union of India  case in which Section 66A of ITA 2008 was struck down.

Several Professors from NLSUI and industry experts participated in the deliberations. NLSUI is in the process of collating the views and developing a white paper on the impact of the decision.

During the deliberations, Professor Nagaratna presented the details of the judgement and her views on the impact. This was followed by a presentation by a research student, Ms Saachi Poudal on the impact of the decision on the society on women and children in particular. Mr Srikumar, former DGP of Karnataka and former CVC provided his views from the law enforcement perspective. Naavi provided his perspective on the jdugement as a long time observer of the Cyber Law scenario. Professor T V Subbarao shared his views as an expert in Constitutional matters along with Professor S.B.N. Prakash. Mr S Balasubramanya of TCS and Mr Ranganath of IBM presented the industry views on the judgement particularly on Section 79. Mr Shivakumar, advocate presented the views from the Human Rights perspective.

All the participants were unanimous in their view that the Judgement was erroneous for multiple reasons> Many felt that the way out is for a new drafting. Naavi indicated that if new law has to be drafted it has to be a comprehensive revision of ITA 2008 and is unlikely to be completed before a couple of years. Alternatives suggested were for filing of a curative petition or a review. Since this was a two member bench decision, it was felt that there is a scope for a review by a larger bench.

NLSUI will consolidate the view after which the future course would be determined.

Naavi