Unfortunately, Indian public has little respect for our law enforcement authorities. This is  because they have proved time and again that they are prone to mis-interpret legal provisions, over react in some cases and act wrongfully in many other cases. In the process, they punish innocent persons even before a competent court can hear the appeal and take a balanced view of the  case. 

It was this fear that brought about adverse reactions to the provision for "Arrest without warrant" in the ITA-2000. The  Communication Convergence Bill which is presently under discussion  has even harsher provisions than the ITA-2000 which could be a cause of concern to "Netizen Rights Activists". It is therefore time that the Indian Police show a level of maturity that is in consonance with the powers that is falling into their hands in the new pieces of legislation that are being enacted in the e-era.

We have already discussed in these columns, the Police excess in arresting of Radiant Software Branch managers in a Copyright dispute between the Company and Oracle. Now the news comes that in Delhi, two software professionals have been arrested on the charge of "Hacking".

As per the report of "The Hindu" ,the facts of the case are as follows. 

www.go2nextjob.com, was a web site owned by Mr Manmohan Gupta and hosted on the server owned by M/s Softweb Solutions Inc ostensibly owned by Ms Amit Prasad and Kapil Juneja. From the facts presented it can be inferred that there is a payment dispute between the server owners and the site owner. The server owner has therefore blocked the site and put up a notice "This site is closed due to non payment of bills". The site owners don't seem to disown the fact that there are financial dues. The Police seem to have come to the conclusion that the server owner has no right to block the site and they should have gone to the court to recover the dues instead.

The arrested persons are aged 23 and 24 and one has done his B Tech from Open university in Columbia and the other a diploma in Computers after completing his graduation. The go2nextjob.com site has been a winner of a "Best Web site Award" and perhaps (not confirmed) was designed by the same firm that has hosted the site.

The Police appear to have been highhanded in their treatment of the complaint from Mr Gupta and classifying the dispute as a "Case of Hacking". Police have no right to suggest that a dispute between the service provider cannot exercise his right to withdraw the contracted service in case of failure of one of the parties to the contract to meet the payment obligations. Next, they have jumped immediately to "Arrest" the accused which was not warranted at all.  The reasons for coming to this conclusion could be the following:

Wrong Classification:

"Hacking" is a concept which should be applied for "Unauthorised Access  to Networks" and damaging of the content. naavi.org has been highlighting the fact that it was unnecessary to define hacking in law as has been done under Section 66 of the ITA 2000 and such definition could lead to misinterpretation. The current case is one such. In the instant case, the information has not perhaps been tampered with at all by the accused. What would have happenned is that the DNS link would have been changed to a new default page. While this may have an effect on delinking the existing site, it is by no stretch of imagination equivalent to "Hacking". The information belonging to the site owner would be in tact and can be copied onto a floppy and handed over to them.

It is quite possible that the Server Hosting Company in this case might not have entered into a written contract with the Site owner laying down the exact conditions of service. This is a mistake most ISP s are doing today.  A deemed contract however can be presumed as per the normal business practice.  It is however incomprehensible to think that any service provider will continue to provide hosting service if the payment has not been made and also that any hosting Company will part with its Network administration rights that includes linking the domain name to a given default html page in a directory residing in the server.

If it is held in principle that a service provider cannot discontinue the service when payment for the facility is not made, then, Telephone authorities cannot cut telephone connection, Electricity Department cannot cut the Electricity Connection, Cable TV supplier cannot cut the Cable connection, VSNL cannot withdraw the Internet connection etc etc.. for non payment of financial dues. In all such cases, the service provider  has to go to court for recovery of the money due and in the meantime continue to provide the service. Also, Telephone authorities cannot change the existing telephone numbers by linking the line to a different socket in the exchange. If these have been established as not possible, it must be agreed that it is also not possible for a hosting company to provide continued service in the absence of payment. 

Can we presume that in the instant case there was an agreement to provide the service without payment? 

We don't this know from the reported facts. This  could only be presumed if the hosting company was an equity partner for the portal or such prior agreement could be produced in evidence by the complainant. The onus of proof should be on the complainant in this case to prove that the service was offered free to him and could not be withdrawn.

It would however be considered prudent on the part of the service providers to serve a notice of discontinuance of service. But the "Right to Discontinue Service" should not be faulted.  After all,  if "Web site, which is a collective publication of  electronic documents" is a "Virtual Property" of the site owner, bought on lease from the server owner for a rental, it must be possible to  exercise a "sort of  lien" on this "Virtual Property". Holding back of service cannot therefore be compared to unauthorized damage to information residing in a computer resource as per Sec 66 of ITA-2000. 

Moreover in the instant case, one cannot presume an "Intent to Cause Damage". The intention here is to "Recover legitimate Dues". In that sense, one may say that the offense could be brought under Sec 43 of ITA-2000 for damages. However Sec 43 refers to data or information residing in the computer network belonging to the owner of the information. In the present case the owner of the system is the accused himself. In that sense neither Sec 66 nor Sec 43 is applicable in this case.

Need To Arrest:

Another aspect which should be debated in this context is "When should the Police resort to Arrest of Persons?". Even when a person is accused of an offense which may result in conviction by imprisonment, common sense suggests that unless a person is proven guilty, he should not be punished by the Police at the trial stage itself. The only  justification for the Police to arrest persons is when there is a strong possibility of tampering with evidence if the accused is at large. Neither in this case nor in the Radiant Software case there was such an exigency. The Police have therefore committed excesses in both the cases. When we realize that criminals who have been accused of "Tandoori murders" can be out free on the streets of Delhi,  the two technocrat's arrest by the Delhi Police looks hardly justifiable.

If the Cyber Crime Wings of the Police departments have to draw respect from the community, then it is absolutely essential that they behave more responsibly than they have been doing at present. Along with the "E-Transformation" of the Police, there  is a need for transformation of their approach towards "Cyber Crimes". Otherwise, the current perception of the public that  Police are "undesirable"   at close range will extend to the Cyber Police also and no technocrat will try to voluntarily help the Police in solving Cyber Crimes.

I hope that the top brass in the Police give a serious thought at developing a different "Community Friendly" and "Fair Thinking" image for the Cyber police.

P.S: This is not to criticise any individual Police officer involved in any of the cases referred to in the article but to highlight the general trends of the society.