ITA-2000 was enacted primarily to provide legal
recognition to Electronic Documents as a support to E-Commerce. But it was
felt that "Cyber Crimes" are also a threat to E-Commerce and need to be
addressed in the Act. Hence an attempt was made through Sections
65,66,67and 70 to address some of the then known Cyber Crimes. Relief was
provided to victims of Cyber Crimes and Cyber Accidents through
Section 43. Additionally, certain sections such as 71, 72,73 and 74 had
been introduced to protect the "Digital Signature System". Sections 44 and
68 provided for penalties for disciplining the Certifying Authorities.
Simultaneously, the law enforcement had been provided
limited powers to search and arrest without warrant (in public places)
under Section 80 and was supported by Section 69 for interception through
the office of the Controller. The imprisonment terms under Section
65,66,67, 69 and 70 exceeded 3 years and hence even without Section 80,
Police could invoke the powers under CrPc treating the offence as a
"Cognizable Offence".
Also, the provisions of Section 66 and Section 43 were
so worded that the could be applied for all offences where "Information
residing inside a Computer" had been affected adversely. It could cover
all forms of Hacking, Virus, Spywares, ATM frauds, Credit Card Frauds etc.
Additionally, sections 85 and Sections 79 were so
worded that Intermediaries and Companies had to follow a strict self
discipline in the form of "Due Diligence" without which they or their
executives could be held liable for the Crimes occurring in the network.
While this was a matter of inconvenience to the intermediaries (ISPs and
Cyber Cafes in particular), in the larger interest of controlling crimes
in the society, this was a reasonable imposition on the intermediaries.
The adverse effect of this "Vicarious Liability" would have been felt only
by the negligent, ignorant and inefficient intermediaries and their
employees.
In contrast, the amendments proposed for the ITA-2000
by the Expert Committee are conspicuous by their softness. Firstly, it is
soft on the offenders by reducing punishment terms. Then it is softer on
them by making proof of "Fraud" and "Dishonest" pre conditions for
application of sections like 66. Further it is benevolent on the
intermediaries by making all of them nearly immune to any crimes that may
happen within the network. Additionally, it is protective of the offenders
by reducing the powers of the Police to "nothing". Police can neither
arrest offenders under ITA 2000 or under CrPc. More over through a process
of Compounding, even the powr of the judciary has been subordianted to the
executive.
It is as if criminals who use Computers and Internet
are a privileged lot unlike the criminals who work with paper.
This softness, benevolence and protection of Cyber
Criminals has opened up a larger debate of whether making laws soft,
reduce the incidence of Cyber Crimes.
The very need for laws arise from the fact that Crimes
exist in the society. So if there was no fear of Cyber Crimes we donot
have to worry about how ITA addresses the issue of Cyber Crimes.
However, strong laws are a necessary deterrent for any Crimes and this
principle applies not only for the traffic offences, dowry offences, rape
and murders as well as Cyber Crimes. In fact, in many of the Muslim
Countries where Shariat laws are applicable, theft and rape are extinct.
Civilized societies do believe that going soft on first
time offenders is the right strategy towards "Reformation" of the
deviant behavior of the misguided offenders. However, they also
believe that "Deterrence" through stringent provisions in law applied
softly is the right approach rather than weak laws which remain weak even
against the hardened criminals. For example, it is necessary to have
"Capital Punishment" in the statute so that they can be applied in
the case of heinous crimes though it is applied only in the rarest
of rare cases.
It is this fundamental principle of Criminology that is
being over turned in the proposed amendments. The proposed amendments have
singularly attempted to make the ITA-2000 less stringent than before by
reducing the imprisonment terms in most cases and exempting several
categories of intermediaries from the liabilities. The reduction in
imprisonment to less than 3 years, removal of Section 80 and introduction
of a mandate to make complaints directly to the Magistrate under Section
72 have together reduced the role of Law Enforcement in dealing with Cyber
Crimes.
The net effect of the amendments if carried through is
to make the Criminals less worried about the punishments and the
intermediaries less concerned about preventive measures and less
cooperative with the law enforcement.
Criminals cannot be arrested for any of the
contraventions under the Act. Simultaneously, Computers or Mobiles or
other devices that are suspected to have incriminating evidences cannot be
seized without an order of the Court sought under Section 76 of the Act.
The offender will therefore have enough scope to obliterate evidences
which are fragile ab-initio. Cyber Cafes and ISPs will now act tough on
the investigating officers and may refuse to cooperate with the Police by
expressing their inability to maintain certain types of records, refusing
to share certain types of information and generally being elusive.
A comprehensive legislation such as ITA-2000, should
address the requirements of all stake holders which includes the Law
Enforcement. However the proposed amendments try to address only one
segment namely the "Intermediaries" and in the process grossly aids
proliferation of Cyber Crimes.
It is reasonably clear that the "Expert
Committee" was formed with the sole objective of protecting the
Intermediaries and it has done a more than adequate job of the same.
However in the process it has hurt the basic fabric of Crime Management in
the society by making it useless for Crime prevention.
The proposal has the effect of creating a wedge between
the law enforcement and the industry since any opposition to the
amendments would appear to be an opposition to the otherwise industry
friendly propositions.
Despite the possibility of the intentions of the
undersigned being misunderstood, I reiterate that the proposed amendments
are not condusive to a better Cyber Society and needs to be reviewed
through a national debate.
If we analyse the type of Cyber Crimes we have
come across in recent days it would be clear that the worst
sufferers of this dishonest and fraudulent benevolence would be the women
folk in the country. Many of the crimes involve defamation of women by
posting false and derogatory remarks, falsely constructed nude pictures
etc. Forget the increased compensation amount suggested in the amendments,
it is unlikely that the cases can even be investigated properly. Even
cases as repulsive as that of Dr Prakash's case in Chennai would become
difficult to investigate.
If the amendments become a law, it is also unlikely
that in cases such as the Gurgaon BPO case, an employee like Karan Bahree
can be arrested since it will be required to prove that he had acted "Dishonesty"
and "Fraudulently".
Apart from the apparent lacuna in the proposed
amendments it must be recognized that the formation of the Committee
bye-passing the Cyber Regulations Advisory Committee was in itself an
incorrect and perhaps ultra-vires the Act. If challenged in a Court, it is
likely that the committee's proposals may be held invalid. However, since
the Ministry of Information Technology appears to have taken the
committee's report as its own report there may be a tendency to push the
legislation through with force.
Time has now come for the Netizens to recognize that in
order to protect Bazee.com, the entire Cyber Law regime of India is being
overhauled and several other cases are being sacrificed. It is time to ask
"Is this not a
"Dishonest" and "Fraudulent" proposal?"
Naavi.org requests the Ministry of Communications and
Technology to facilitate a national debate on the issue before further
action is taken on the report and also urge industry bodies such as the
FICCI, Nasscom and others to also contribute in having a larger debate on
the subject. In such debates, "Criminology Specialists" and "Law
Enforcement Officers" should also be made to participate along with the
industry.
Naavi
September 4, 2005
