The implications of the sweeping amendments to the Information Technology (IT) Act 2000, passed in Parliament on
The Act itself tries to deal with e-commerce on the one hand and on the other, regulates a whole host of civil society involvement with both cyber and mobile media (See box: Electronic signatures to obscene material). Moreover, contrary to the rather anarchic nature of both these media, where the production and transmission of information is technologically far easier than ever before, the controls the Act seeks to exercise over this process is highly centralised.
The Information Technology Amendment Bill, 2006 was tabled before both the houses of Parliament in December, 2006 and was referred to a Parliamentary Standing Committee on Information Technology headed by Nikhil Kumar, MP. The committee’s report was submitted in 2007). In December 2008, the bill was passed by both houses of Parliament but without any discussion perhaps because of the heightened apprehensions over security in the wake of the
However, in its desire to ensure the greatest possible security in cyberspace, the Act gives sweeping powers to the government to intercept, monitor or decrypt any communication, giving rise to apprehensions that the freedom of expression will be under constant threat. Under Sections 69A and 69B, the Act grants power to the state to issue directions for blocking from public access of any information through any computer resource and to authorize to monitor and collect traffic data or information through any computer resource for cyber security. 69A specifically authorises CERT IN to block websites in response to requests for blocking from departments or individuals. The final permission has to come from the Secretary, Department of Information Technology. What can be the basis for a request to block? The Sovereignty or Integrity of India, the Defence of India, the Security of the State, Friendly Relations with Foreign States, Public order, and, for "preventing incitement to the commission of any cognisable offence relating to above." What about a right to be heard before the blocking? There is none.
Another area of concern is the change in the definition of an ‘intermediary’ to include telecom service providers, network service providers, web-hosting service providers, search engines, online payment sites, market places and cyber cafes. In an obvious fallout of reaction to the Bazee.com case, intermediaries have been given exemption from liability in certain cases (Sec 79)- if their function is limited to providing access to a communication system over which information made available by a third party, is transmitted or temporarily stored or hosted or that the intermediary does not initiate the transmission, select the receiver of the transmission or select or modify the information contained in the transmission and observes ‘due diligence’ while discharging his duties under the Act.
The act further appoints a national nodal agency - the Indian Computer Response Team (CERT-In) to deal with the entire gamut of cyber security. The agency has been given sweeping powers and there aren’t any obvious provisions for checks and balances, giving rise to apprehensions about its misuse.
The Act also stipulates rules for the enforcement of all its provisions. All the rules are yet to be drafted as cyber lawyers, civil society activists and ‘internet’ based cyber society groups are also divided. Some welcome very stringent controls over cyberspace, others are apprehensive of excessive controls over liberties and freedom of speech and expression.
Clearly, there needs to be far greater awareness of the provisions of the law and its implications. In the absence of sufficient discussion and debate over these issues, the freedom cyberspace offers for communication and interaction and the exchange of ideas and opinions is in grave danger of being a notional one, constantly at peril.
From Electronic signatures to obscene material
The amended IT Act, 2000, has brought under its purview all communication devices including ‘cell phones, personal digital assistance or combination of both or any other device used to communicate, send or transmit any text video, audio or image’; it has replaced digital signature with an ‘electronic signature’ to make the IT Act more technologically neutral; it has extended the scope of the term ‘intermediary’ to mean "any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record and includes telecom service providers, network service providers, internet service providers, web-hosting service providers, search engines, online payment sites, online-auction sites, online market places and cyber cafes" and it has ensured greater protection to sensitive personal data or information possessed by a body corporate or computer resource.
The Act deals with several provisions related to the publishing or transmission of obscene material, sexually explicit material or child pornography in an electronic form. A host of sections (66A to 66F) prescribing punishment for offences such as obscene electronic message transmissions, identity theft, cheating by impersonation using computer resource, violation of privacy and cyber terrorism. While the definition of the last (cyber terrorism) is very wide, including even the unauthorised access to computer resources and obtain access to data or information that can cause injury to the interests of sovereignty, public order, decency or morality or in relation to contempt of court or defamation...), Section 66E is far more specific and actually lays down the exact body parts that cannot be transmitted ("private area" means the naked or undergarment clad genitals, public (sic) area, buttocks or female breast - Sec 66E (c))!
Section 67 dealing with the punishment for publishing or transmitting obscene material in electronic form has been changed. While the term for imprisonment has been reduced from five to three years, the fine has been enhanced from Rs One lakh to Rs Five lakhs. Section 67B deals with children and punishment for the transmission of sexually explicit images or text, cultivating relationships with children online or facilitates the abuse of children online, records abuse in an electronic form and transmits it, etc. Children, for the purposes of the Internet or mobile media, are defined as being below 18 years of age.
Interviews with Pavan Duggal and Rodney Ryder
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‘A direct impact on free speech in cyberspace’ Pavan Duggal |
‘Free speech includes the right to receive information’ Rodney Ryder |
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I think there is no doubting the argument that every sovereign nation has got the sovereign rights to monitor and intercept, as well as decryption. However, it is important that the legislature must keep effective checks and balances on the intercepting authority. But here, the legislature has not done so. If the government feels that it is necessary for it to do so, it orders interception, monitoring, decryption or blockage. |
…sections 69 A and B, two new sections, grant power to the state to issue directions for blocking for public access of any information through any computer resource and to authorize to monitor and collect traffic data or information through any computer resource for cyber security. That includes websites. Websites that you ban cannot hit back. |
Relevant links:
Notification of Rules under Section 52, 54, 69, 69A, 69B.