Centre for Internet and Society

Response to the Pegasus Questionnaire issued by the SC Technical Committee

Anamika Kundu, Digvijay, Arindrajit Basu, Shweta Mohandas and Pallavi Bedi — 2022-04-13T14:45:41Z

On March 25, 2022, the Supreme Court appointed Technical Committee constituted to examine the allegations of alleged unauthorised surveillance using the Pegasus software released a questionnaire seeking responses and comments from the general public.

The questionnaire had 11 questions and the responses had to be submitted through an online form- which was available here. The last date for submitting the response was March 31, 2022. CIS had submitted the following responses to the questions in the questionnaire. Access the Response to the Questionnaire

For more details visit https://cis-india.org/internet-governance/blog/response-to-pegasus-questionnaire-issued-by-sc-technical-committee

Mixed signals? Supreme Court notices to states on Facebook arrests

praskrishna — 2013-08-28T08:42:56Z

In wake of the recent arrests of UP-based scholar Kanwal Bharti and Andhra-based PUCL activist Jaya Vindhyala over their Facebook posts, NDTV aired a discussion on the grey areas of the IT Act. Pranesh Prakash, Shreya Singhal and Faizal Farooqui

The video was published by NDTV on August 16, 2013. Pranesh Prakash is quoted.

The NDTV anchor asked Pranesh that this notice — the indicator coming from the government is that nobody seems to really know what section 66A is all about...and at the end of the day we are going to make a case by case decision.

Pranesh said that:

"This not just about 66A. This is actually about rule of law. We see that the arrest of Kanwal Bharti is actually a legal arrest. It goes against a judgment of the Allahabad High Court saying that routine arrests shouldn't be made in cases where the imprisonment term is less than 7 years. He actually hasn't been charged under 66A, he was charged under the IPC. It is not just about Internet censorship. It also very much about the rule of law and that completely breaking down in India and ... people's persectives and government's perspectives many times are withering away when it comes offensive content or what they deem offensive or communal content being posted online...and if something like what Kanwal Bharti posted is actually deemed to be illegal under those provisions then lots of statements that the Prime Minister of India has said should also be deemed to be equally illegal."

Watch the full video below:

For more details visit https://cis-india.org/news/ndtv-the-social-network-mixed-signals-supreme-court-notices-to-states-on-facebook-arrests

MPs to be taught ‘draconian’ IT Act Rules as India.net support galvanises for annul motion

praskrishna — 2012-04-25T10:39:48Z

The blog post by Prachi Shrivastava was published in Legally India on April 23, 2012.

Rajya Sabha’s member of parliament (MP) from Kerala, P Rajeeve, whose statutory motion to annul the IT (Intermediaries Guidelines) Rules 2011 is slated for discussion in Parliament tomorrow, aims to convene a meeting of MPs, internet societies, and bloggers in the first week of May to create awareness against the draconian effect of the rules.

“Most of the MPs need to know about this,” Rajeeve told Legally India, explaining that statutory motions are generally not easy to pass. “Actually we are trying to create awareness by organizing a session. The issue will be the IT Rules 2011 and how it is against the constitution, how it is against natural justice, how it is against due process of law.”

“The motion has been accepted. The committee has allotted time for discussion on the twenty fourth. Thereafter it will come to the house. In this part of the session I am trying to coordinate other MPs to get support”, he said.

Rajeeve’s motion of 23 March 2012, as first reported by CIS-India, was not his first attempt at bringing the IT rules into the spotlight. When the rules were in draft stage, he had made a zero hour mention against them for being in violation of freedom of speech and expression, by over-scrutinising bloggers, over-authorising intermediaries, and letting the government, individuals and institutions by-pass the due process of law.

Rajeeve was one of the nine panelists in the open discussion on “Resisting Internet Censorship”, organised by the Centre for Internet and Society (CIS) and Foundation for Media Professionals, in Bangalore on Saturday, 21 April. The discussion, addressing an audience of 40, was moderated by veteran journalist Paranjoy Guha Thakurta.

Other panelists included Mahesh Murthy, founder of digital marketing website Pinstorm, Sudhir Krishnaswamy, founding member of Centre for Law and Policy Research, Na Vijayashankar, director of Cyber Law College, and Siddharth Narain from the Alternative Law Forum.

Also on the panel were Rishabh Dara, Google policy fellow who conducted a study last year on intermediary liability in India and its chilling effects on free expression, BG Mahesh, founder of Oneindia.com, Ram Bhat, co-founder of community media collective Maraa, and Pranesh Prakash, programme manager at CIS.

Prakash said that the discussion brought together different perspectives, even those of the entrepreneur, like BG Mahesh and Mahesh Murthy. “Transparency in the terms of censorship is good. We are not saying all censorship is bad, but that it should be transparent.”

Prakash told Legally India about the various experiences shared by panelists, of the lack of transparency in the present system of censorship. While one faced harassment by the police over trivial procedural compliances, there was complaint for defamation against an article syndicated by another from a different publication’s press release. “And we read the article over and over and over again but couldn’t find anything which was remotely defamatory.”

Legal experts on the panel, Kirshnaswamy and Vijayashankar, spoke about the constitutionalism behind free speech provisions. Narain shed light on the fact that while excessive energy has been expended on highlighting which content should not be banned, little has been spent on examining the operative procedures behind censorship.

Dara spoke about his research and how it not only revealed that content was being frivolously removed on complaints to intermediaries, but also that the people whose content was being removed were not being informed of the same. There was no public notice of the removal.

Bhat’s discourse drew attention to the history of censorship in India and elicited the fact that the Indian press has in fact been censored in an upsetting manner even since the revolt of 1857.

Murthy made the observation that statistically speaking, in India the number of internet users exceeds television watchers, which has made social media unfathomably important while the internet is no longer elitist.

A number of related Indian initiatives have been gathering momentum in recent months, such as signature campaigns for internet freedom, and offline protests such as the Free Software Movement in Karnataka and the Save your Voice in Delhi, are the order of the day. Other actions include writing to MPs, asking them to vote in favor of Rajeeve’s statutory motion for annulment of the IT rules.

Kerala-based advocate Shojan Jacob filed the first ever writ challenging the rules in the Kerala High Court last month.

The rules enable any individual or public or private institution to get content removed from websites, in most cases simply by notifying the website owners or intermediaries such as Google, Yahoo and others.

Takedown requests can be based on any of 15 vaguely drafted parameters, without stating any reasons or requiring any judicial or quasi-judicial order in support.

Click to read the original.

For more details visit https://cis-india.org/news/draconian-it-rules

Views | Why the Left may for once be right

praskrishna — 2012-04-25T11:48:50Z

The article by Pramit Bhattacharya was published in LiveMint on April 23, 2012.

India’s information technology (IT) minister, Kapil Sibal appears to be running into rough weather over IT rules framed last year, which curb freedom of expression on the internet. The rules have incensed India’s growing blogging community and piqued at least a few of his fellow parliamentarians.

On the opening day of the upcoming parliamentary session on Tuesday, the Rajya Sabha is set to vote on an annulment motion against the IT rules, moved by P. Rajeeve of the Communist Party of India (Marxist), a rediff.com report said. Ironically, the party that still treats Stalin as a hero (quoting him unfailingly in its political resolutions) has become the first to stand up for internet freedom.
Rajeeve is of course not the only parliamentarian to take exception to the rules. Jayant Choudhry, a member of parliament (MP) from the Rashtriya Lok Dal, was the first to draw attention to the draconian rules late last year, and MPs from other regional parties such as the Samajwadi Party and the Asom Gana Parishad criticized the rules in a parliamentary discussion in December.

Two sets of rules, one governing cyber cafes and the other relating to intermediaries have attracted most criticism. The rules relating to intermediaries such as internet service providers, search engines or interactive websites such as Twitter and Facebook are the most disturbing. Intermediaries are required under the current rules to remove content that anyone objects to, within 36 hours of receiving the complaint, without allowing content creators any scope of defence.

The criteria for deciding objectionable content, laid down in the rules, are subjective and vague. For instance, intermediaries are mandated to remove among other things, ‘grossly harmful’ content, whatever that may mean.

This is a unique form of ‘private censorship’ that will endanger almost all online content. In this age of easily offended sensibilities, it is virtually impossible to write anything that does not “offend” anyone. For instance, even this piece may be termed ‘grossly harmful’ to the CPI(M) party.

However far-fetched this may sound, this has already become a reality. A researcher working with the Bangalore-based Centre for Internet and Society (CIS) tried out such a strategy with several different intermediaries, and was successful in six out of seven times, always with frivolous and flawed complaints, Pranesh Prakash of CIS wrote in a January blog-post. It has become much easier in India to ban an e-book than a book, Prakash pointed out.

The rules regulating cyber cafes are no better. Cyber cafes are required to keep a log detailing the identity of users and their internet usage, which has negative implications for privacy and personal safety of users, analysis of the rules by PRS legislative research said.

Internet freedom in India has declined over time and is only ‘partly free’, a 2011 report on internet freedom by US-based think tank, Freedom House said. India has joined a growing club of developing nations where, “internet freedom is increasingly undermined by legal harassment, opaque censorship procedures, or expanding surveillance,” the report noted.

The only saving grace is that some of the IT rules are drafted in a language so arcane that anyone will find it hard to decipher them, leave alone implementing them. Sample this: “The intermediary shall not knowingly deploy or install or modify the technical configuration of computer resource or become party to any such act which may change or has the potential to change the normal course of operation of the computer resource than what it is supposed to perform thereby circumventing any law for the time being in force: provided that the intermediary may develop, produce, distribute or employ technological means for the sole purpose of performing the acts of securing the computer resource and information contained therein.”

The first task at hand for Sibal may be to explain to fellow lawmakers what the above rule is supposed to mean, before he defends such rules.

Click for the original, Pranesh Prakash is quoted in this article.

For more details visit https://cis-india.org/news/left-may-for-once-be-right

India: Social Media Censorship to Contain ‘Cyber-Terrorism'?

praskrishna — 2012-08-27T03:36:37Z

This is the second post in the 2-part series about the perceived role of social media in the wake of the Assam clashes that spilled across the country and threatened to upset the nation's peace.

Written by Aparna Ray. This post was published in GlobalVoices on August 24, 2012. Pranesh Prakash's analysis is quoted in this. The first post can be found here.

As the Indian government sought to block bulk SMS, MMS, webpages and specific social media urls, justifying its step as an attempt to control viral rumor-mongering and “cyber-terrorism”, there was a lot of discussion on the mainstream media (MSM) about how social media was fast becoming a “double-edged sword” and how the recent events brought out the “mischief potential of social media in full play“. These MSM opinions, some of which offered tacit support the idea of reigning in social media, did not go unnoticed by netizens. For example, Media Crooks asked:

So what’s with the rant against the Twitterati and social media by these media celebs?

Blogger Amrit Hallan at Writing Cave wondered if the MSM had an underlying motive for creating a hype around the ‘dangers' of social media. He wrote:

People in the mainstream media have always been at loggerheads with the free spirit of social networking websites that empowers everybody to express opinions and spread ideas…(they) have been gleefully recommending the curtailment (of social media). Social networking and blogging continuously make their job hard. The moment they try to spread some misinformation, it is countered by Twitter or blogs with factually correct information, often posted by people close to the ground.

Tweets too expressed similar concerns and sentiments:

Priya James (@james_priya): I think by now, MSM coverage volumes of 'social media terrorism' has now surpassed even their basic coverage of Assam situation!

Gaurav Sabnis (@gauravsabnis): Politician-MSM nexus in India so blatantly clear with blame for NE rumors laid squarely at social media's doors.

Rajeev Nagpal (@rajeevnagpal): In #India the #MSM can't tolerate any one challenging their hold. No wonder they support censoring social media #HandsOffTwitter

Things have been moving very quickly. The ISPs have been sent official communication to block webpages and twitter handles, including those ofsome journalists plus fake profiles created with the purpose of lampooning the Indian Prime Minister. Curiously, the Pakistani blogger Faraz Ahmed Siddiqui, who was the first to break the news about the morphed photos being used to incite communal tensions, also came under the ambit of censorship and his post was inaccessible on some ISPs.

AEIdeas, a blog from the American Enterprise Institute commented on the issue:

The Indian government ought to have given Mr. Siddiqui a medal for his investigative work. Instead it has blocked his post.

Social media users in India have been following the government actions closely and there is muchdebate and discussion about whether the crack down on social media is censorship of free speech in the guise of rumor control.

Some have termed the government's action as Orwellian/dystopian. Others have seen merit in the government's ‘intent' to curb inflammatory content but have been disappointed with the ineffective way the government went about the task - acting as “Net nannies” and “blocking communications, curbing speech, and banning websites”.

At CIS India, Pranesh Prakash did an analysis of the social media content blocked in India since August 18, 2012. Here are the results:

Strong reactions are pouring in on Twitter via trending hashtags such as #GOIBlocks, #IndiaBlocks,#Emergency2012 etc. [There is some debate over the use of the word ‘Emergency' and the attempt to draw parallels between the present block and the state of emergency of 1975, which saw suspension of civil liberties and persecution of journalists in the name of battling threat to national security].

Indian Rebellion (@reBel1857): today they r blocking ur twitter account, tomorrow ur bank account and then will lock u in ur home … #GOIBlocks #Emergency2012

Pranesh Prakash (@pranesh_prakash): If you oppose #censorship, more power to you! I do too. But calling this #Emergency2012 is ridiculous! #IndiaBlocks #netfreedom

Madhavan Narayanan @madversity): Social media is a modern challenge and a modern opportunity. Government attempts to police it smacks of outdated feudal style #GOIblocks

Raheel Khursheed(@Raheelk): Everything ██ is █████ ████ ████ fine ███ █ ████ love. ████ █████ the ███ UPA ███ ████ Government ██ #GOIBlocks #Twitter

Sunanda Vashisht (@sunandavashisht): First they ignored us, then they argued with us, then they blocked us #emergency2012

Babar (@6a6ar): The only thing left for us to do is block all media and Govt. handles in protest. Let's start a #VirtualRevolution #IndiaBlocks

Abhijit Majumdar (@abhijitmajumder): Govt of #India is just testing #socialmedia waters by blocking spoof PMO accounts. Prepare for greater censorship on #Twitter and #Facebook

Amit Agarwal (@labnol): The Indian govt can force ISPs to block individual Twitter profiles but everything will still be available through web apps like Tweetdeck

Humour and sarcasm too weren't in short supply. For example:

Mahesh Murthy (@maheshmurthy): Now that Govt has solved North East crisis by limiting SMS, it will fight malnutrition by banning food pics on Instagram

Kalyan Varadarajan (@itzkallyhere): My nose blocked. But I didn't poke my nose in Govt matters! My nose isnt a handle. Damn! #GOI

Ramesh Srivats (@rameshsrivats): I've a few SMSs to spare from today's quota. If you mail me recipient's number, message & a cheque, I can send an SMS for you.#BusinessIdea

However, not everyone is amused. Amrit Hallan asks:

Are we going to follow the footsteps of Pakistan and China and turn into a Blockistan? No matter how much it makes some of the English-speaking mainstream journalists happy, blocking isn’t possible, at least sustained blocking. The Internet has empowered the silent majority and there is going to be a big backlash if the government, or another agency tries to take this power back. In what form this backlash is going to manifest? It remains to be seen.

In a guest post on Trak.In, blogger Prasant Naidu suggests how the government could use social media positively. He says:

instead of banning social media, the government can use it in its favor controlling the crisis of NE. The virality feature that our politicians are scared of can be used for killing rumors. Can’t the government get in touch with Facebook and Google India to find out ways to use social media in a better way? Can’t the Government start a social media campaign to “Save NE and Save India”?

Twitter is one of the tools that the government can use. A brilliant example is how Nirupama Rao, India’s Foreign Secretary used Twitter during the evacuation of Indians at the time of the Libyan crisis.

Social Media is not rocket science; it is about communicating with humans and for that you need to have the will to evolve and change. Banning social networks is not a solution to combat rumors but it is a half backed measure to cover the lid on the growing tensions.

The government, on it's part, issued social media guidelines to be followed by government agencies. It remains to be seen how the situation develops on the ground and what impact the current stand-off between government and social media has on cyber-control policies in the days to come.

For more details visit https://cis-india.org/news/global-voices-online-org-aparna-ray-aug-24-2012india-social-media-censorship-to-contain-cyber-terrorism

DIT's Response to RTI on Website Blocking

pranesh — 2011-08-02T07:13:47Z

For the first time in India, we have a list of websites that are blocked by order of the Indian government. This data was received from the Department of Information Technology in response to an RTI that CIS filed. Pranesh Prakash of CIS analyzes the implications of these blocks, as well as the shortcomings of the DIT's response.

Quick Analysis of DIT's Response to the RTI

Blocked websites

The eleven websites that the DIT acknowledges are blocked in India are:

Of the eleven blocked websites, one was still accessible on a Tata Communications DSL connection. Two of the blocked websites are grassroots news organizations connected to the Independent Media Centre: IndyBay (San Francisco Bay Area IMC) and the Arizona Indymedia website. The Bloggernews.net page that is on the blocked list is in fact an article by N. Vijayashankar (Naavi) from March 12, 2010 titled "Is E2 labs right in getting zone-h.org blocked?", criticising the judicial blocking of Zone-H.org by E2 Labs (with E2 Labs being represented by lawyer Pawan Duggal). The Zone-H.org case is still going through the judicial motions in the District Court of Delhi, but E2 Labs managed to get an ex parte (i.e., without Zone-H being heard) interim order from the judge asking Designated Officer (Mr. Gulshan Rai of DIT) to block access to Zone-H.org.

As has happened in the past, the government (or the court) accidentally ordered the blocking of all of website host webs.com, instead of blocking only http://donotdial100.webs.com (which subdomain apparently hosted 'defamatory' and 'abusive' information about mafia links within the Maharashtra police and political circles).

It is interesting to note that for most of the websites on most ISPs one gets a 'request timed out' error while trying to access the blocked websites, and not a sign saying: "site blocked for XYZ reason on request dated DD-MM-YYYY received from the DIT". On Reliance broadband connections, for some of the above websites an error message appears, which states: "This site has been blocked as per instructions from Department of Telecom".

Judicial blocking

As per the response of the government, all eleven seem to have been blocked on orders received from the judiciary. While they don't state this directly, this is the conclusion one is led to since the Department admits to blocking eleven websites and also notes that there have been eleven requests for blocking from the judiciary. Normally the judiciary is often thought of as a check on the executive's penchant for banning (seen especially in the recent book banning cases in Maharashtra, for instance, where the Bombay High Court has overturned most of the government's banning orders). However, in these cases the ill-informed lower judiciary seem to be manipulated by lawyers to suppress freedom of speech and expression, even going to the extent of blocking grassroots activist news organizations like the Independent Media Centre.

Websites not blocked by DIT

The DIT also notes that the blocks on Typepad.com was not authorized by it (nor, according to the RTI response received by Nikhil Pahwa of Medianama was the Mobango.com block authorised by the DIT). Typepad.com, Mobango.com, and Clickatell.com don't seem to be blocked currently. However, as was reported by Medianama, for a while when they were being blocked, some sites and ISPs (such as Typepad.com on Bharti Airtel DSL) showed a message stating that the website was blocked on request from the Department of Telecom, which we don't believe has the authority to order blocking of websites. While we still await a response from the Department of Telecom to the RTI we filed with them on this topic, in a letter to the Hindu, the Department of Telecom has clarified that it did not order any block on Typepad.com or any of the other websites. This leaves us unsure as to who ordered these blocks. Further, it points out a lacuna in our information policy that ISPs can suo motu block websites without justifications (such as violation of terms of use), proper notice to customers, or any kind of repercussions for wrongful blocking.

Insufficient information on Committee for Examination of Requests

All requests for websites blocking (except those directly from the judiciary) must be vetted by the Committee for Examination of Requests (CER) under Rule 8(4) of the Rules under s.69A of the IT Act. Given that the DIT admits that the Designated Officer (who carries out the blocking) has received 21 requests to date, there should be at least 21 recommendations of the CER. However, the DIT has not provided us with the details of those 21 requests and the 21 recommendations. We are filing another RTI to uncover this information.

Text of the DIT's Response

Government of India
Ministry of Communications & Information Technology
Department of Information Technology
Electronics Niketan, 6 CGO Complex,
New Delhi-110003

No : 14(3)/2011-ESD

Shri Pranesh Prakash
Centre for Internet and Society
194, 2-C Cross,
Domulur Stage II,
Bangalore- 560071.

Subject: Request for information under RTI Act,

Sir,
Reference your request dated 28lh February 2011 on the above subject.
The point wise information as received from the custodian of Information is enclosed for your reference and records.

sd/-
(A.K.Kaushik)
Additional Director & CPIO
Tel: 011-24364803

Subject : RTI on website blocking requested by Shri Pranesh Prakash

(i) Did the Department order Airtel to block TypePad under S.69A of the Information Technology Act ("IT Act"), 2000 read with the Information Technology (Procedures and Safeguards for Blocking Access of Information by Public) Rules, 2009 ("Rules") or any other law for the time being in force? If so, please provide a copy of such order or orders. If not, what action, if at all, has been taken by the Department against Airtel for blocking of websites in contravention of S.69A of the IT Act?

Reply - This Department did not order Airtel to block the said site.

(ii) Has the Department ever ordered a block under s.69A of the IT Act? If so, what was the information that was ordered to be blocked?

Reply - The Department has issued directions for blocking under section 69A for the following websites:
(a) www.zone-h.org.
(b) http://donotdial100.webs.com (IP 216.52.115.50)
(c) www.bloggernews.net/124029
(d) http://www.google.co.in/#h 1 =en&source=hp& biw=1276&bih=843&=dr+babasaheb+ambedkar+ wallpaper&aq=4&aqi=g10&aql =&oq=dr+ babas& gs_rfai=&fp=e791 fe993fa412ba
(e) http://www.cinemahd.net/desktop-enhancements/wallpaper/23945- wallpapers-beautiful-girl-wallpaper.html
(f) http://www.chakpak.com/find/images/ kamasutra-hindi-movie
(g) http://www.submitlink.khatana.net/2010/09/jennifer-stano-is-engaged- to.html
(h) http://www.result.khatana.net/2010/11/im-no-panty-girl-yana-gupta- wardrobe.html.
(i) http://www.facebook.com/pages/l-Hate-Ambedkar/172025102828076
(j) www.indybay.org
(k) www.arizona.indymedia.org

(iii) How many requests for blocking of information has the Designated Officer received, and how many of those requests have been accepted and how many rejected? How many of those requests were for emergency blocking under Rule 9 of the Rules?

Reply - Designated Officer received 21 request for blocking of information. 11 websites have been blocked on the basis of orders received from court of law. One request has been rejected. For other requests, additional input/information has been sought from the Nodal Officer.

No request for emergency blocking under rule 9 of the Rules have been received.

(iv) Please provide use the present composition of the Committee for Examination of Requests constituted under Rule 7 of the Rules.

Reply - The present composition of the Committee is :
(a) Designated Officer (Group Coordinator - Cyber Law)
(b) Joint Secretary, Ministry of Home Affairs
(c) Joint Secretary, Ministry of Information and Broadcasting
(d) Additional Secretary and Ministry of Law & Justice
(e) Senior Director, Indian Computer Emergency Response Team

(v) Please provide us the dates and copies of the minutes of all meetings held by the Committee for Examination of Requests under Rule 8(4) of the Rules, and copies of their recommendations.

Reply - The Committee had met on 24-08-2010 with respect to request for blocking of website www.betfair.com.

(vi) Please provide us the present composition of the Review Committee constituted under rule 419A of the Indian Telegraph Rules, 1951.
(vii) Please provide us the dates and copies of the minutes of all meetings held by the Review Committee under Rule 14 of the Rules, and copies of all orders issued by the Review Committee.

Reply - This Department do not have details for above. The said information may be available with Department of Telecommunications.

For more details visit https://cis-india.org/internet-governance/blog/rti-response-dit-blocking

Rebuttal of DIT's Misleading Statements on New Internet Rules

pranesh — 2012-07-11T13:18:04Z

The press statement issued on May 11 by the Department of Information Technology (DIT) on the furore over the newly-issued rules on 'intermediary due diligence' is misleading and is, in places, plainly false. We are presenting a point-by-point rebuttal of the DIT's claims.

In its press release on Wednesday, May 11, 2011, the DIT stated:

The attention of Government has been drawn to news items in a section of media on certain aspects of the Rules notified under Section 79 pertaining to liability of intermediaries under the Information Technology Act, 2000. These items have raised two broad issues. One is that words used in Rules for objectionable content are broad and could be interpreted subjectively. Secondly, there is an apprehension that the Rules enable the Government to regulate content in a highly subjective and possibly arbitrary manner.

There are actually more issues than merely "subjective interpretation" and "arbitrary governmental regulation".

The Indian Constitution limits how much the government can regulate citizens’ fundamental right to freedom of speech and expression. Any measure afoul of the constitution is invalid.
Several portions of the rules are beyond the limited powers that Parliament had granted the Department of IT to create interpretive rules under the Information Technology Act. Parliament directed the Government to merely define what “due diligence” requirements an intermediary would have to follow in order to claim the qualified protection against liability that Section 79 of the Information Technology Act provides; these current rules have gone dangerously far beyond that, by framing rules that insist that intermediaries, without investigation, has to remove content within 36-hours of receipt of a complaint, keep records of a users' details and provide them to law enforcement officials.

The Department of Information Technology (DIT), Ministry of Communications & IT has clarified that the Intermediaries Guidelines Rules, 2011 prescribe that due diligence need to be observed by the Intermediaries to enjoy exemption from liability for hosting any third party information under Section 79 of the Information Technology Act, 2000. These due diligence practices are the best practices followed internationally by well-known mega corporations operating on the Internet. The terms specified in the Rules are in accordance with the terms used by most of the Intermediaries as part of their existing practices, policies and terms of service which they have published on their website.

We are not aware of any country that actually goes to the extent of deciding what Internet-wide ‘best practices’ are and actually converting those ‘best practices’ into law by prescribing a universal terms of service that all Internet services, websites, and products should enforce.
The Rules require all intermediaries to include the government-prescribed terms in an agreement, no matter what services they provide. It is one thing for a company to choose the terms of its terms of service agreement, and completely another for the government to dictate those terms of service. As long as the terms of service of an intermediary are not unlawful or bring up issues of users’ rights (such as the right to privacy), there is no reason for the government to jump in and dictate what the terms of service should or should not be.
The DIT has not offered any proof to back up its assertion that 'most' intermediaries already have such terms. Google, a ‘mega corporation’ which is an intermediary, does not have such an overarching policy. Indiatimes, another ‘mega corporation’ intermediary, does not either. Just because a company like Rediff and Blizzard's World of Warcraft have some of those terms does not mean a) that they should have all of those terms, nor that b) everyone else should as well.

In attempting to take different terms of service from different Internet services and products—the very fact of which indicate the differing needs felt across varying online communities—the Department has put in place a one-size-fits-all approach. How can this be possible on the Internet, when we wouldn't regulate the post-office and a book publisher under the same rules of liability for, say, defamatory speech.
There is also a significant difference between the effect of those terms of service and that of these Rules. An intermediary-framed terms of service suggest that the intermediary may investigate and boot someone off a service for violation, while the Rules insist that the intermediary simply has to mandatorily remove content, keep records of users' details and provide them to law enforcement officials, else be subject to crippling legal liability.

So to equate the effect of these Rules to merely following ‘existing practices’ is plainly wrong. An intermediary—like the CIS website—should have the freedom to choose not to have terms of service agreements. We now don’t.“In case any issue arises concerning the interpretation of the terms used by the Intermediary, which is not agreed to by the user or affected person, the same can only be adjudicated by a Court of Law. The Government or any of its agencies have no power to intervene or even interpret. DIT has reiterated that there is no intention of the Government to acquire regulatory jurisdiction over content under these Rules. It has categorically said that these rules do not provide for any regulation or control of content by the Government.”

The Rules are based on the presumption that all complaints (and resultant mandatory taking down of the content) are correct, and that the incorrectness of the take-downs can be disputed in court. Why not just invert that, and presume that all complaints need to be proven first, and the correctness of the complaints (instead of the take-downs) be disputed in court?

Indeed, the courts have insisted that presumption of validity is the only constitutional way of dealing with speech. (See, for instance, Karthikeyan R. v. Union of India, a 2010 Madras High Court judgment.)

Further, only constitutional courts (namely High Courts and the Supreme Court) can go into the question of the validity of a law. Other courts have to apply the law, even if it the judge believes it is constitutionally invalid. So, most courts will be forced to apply this law of highly questionable constitutionality until a High Court or the Supreme Court strikes it down.

What the Department has in fact done is to explicitly open up the floodgates for increased liability claims and litigation - which runs exactly counter to the purpose behind the amendment of Section 79 by Parliament in 2008.

“The Government adopted a very transparent process for formulation of the Rules under the Information Technology Act. The draft Rules were published on the Department of Information Technology website for comments and were widely covered by the media. None of the Industry Associations and other stakeholders objected to the formulation which is now being cited in some section of media.”

This is a blatant lie.

Civil society voices, including CIS, Software Freedom Law Centre, and individual experts (such as the lawyer and published author Apar Gupta) sent in comments. Companies such as Google, E2E Networks, and others had apparently raised concerns as well. The press has published many a cautionary note, including editorials, op-ed and articles in the Hindu, the Hoot, Medianama.com, and Kafila.com, well before the new rules were notified. We at CIS even received a 'read notification' from the email account of the Group Coordinator of the DIT’s Cyber Laws Division—Dr. Gulshan Rai—on Thursday, March 3, 2011 at 12:04 PM (we had sent the mail to Dr. Rai on Monday, February 28, 2011). We never received any acknowledgement, though, not even after we made an express request for acknowledgement (and an offer to meet them in person to explain our concerns) on Tuesday, April 5, 2011 in an e-mail sent to Mr. Prafulla Kumar and Dr. Gulshan Rai of DIT.

The process can hardly be called 'transparent' when the replies received from 'industry associations and other stakeholders' have not been made public by the DIT. Those comments which are public all indicate that serious concerns were raised as to the constitutionality of the Rules.

The Government has been forward looking to create a conducive environment for the Internet medium to catapult itself onto a different plane with the evolution of the Internet. The Government remains fully committed to freedom of speech and expression and the citizen’s rights in this regard.

The DIT has limited this statement to the rules on intermediary due diligence, and has not spoken about the controversial new rules that stifle cybercafes, and restrict users' privacy and freedom to receive information.

If the government is serious about creating a conducive environment for innovation, privacy and free expression on the Internet, then it wouldn’t be passing Rules that curb down on them, and it definitely will not be doing so in such a non-transparent fashion.

For more details visit https://cis-india.org/internet-governance/blog/rebuttal-dit-press-release-intermediaries

Civil Liberties and the amended Information Technology Act, 2000

Malavika Jayaram — 2012-03-21T10:13:53Z

This post examines certain limitations of the Information Technology Act, 2000 (as amended in 2008). Malavika Jayaram points out the fact that when most countries of the world are adopting plain English instead of the conventional legal terminology for better understanding, India seems to be stuck in the old-fashioned method thereby, struggling to maintain a balance between clarity and flexibility in drafting its laws. The present Act, she says, is although an improvement over the old Act and seeks to address and improve on certain areas in the right direction but still comes up short in making necessary changes when it comes to fundamental rights and personal liberties. The new Act retains elements from the previous one making it an abnormal document and this could have been averted if there had been some attention to detail.

After close to a decade of dealing with English statutes, European directives and pan-European regulations, I was struck anew by the antique style of Indian draftsmanship on my return. Much of the world is moving away from stiff legal speech and towards plain English. Even England has converted to a simpler, more concise legal rhetoric. India, however, has a peculiar genius for imprecision and euphemism that makes the purpose and implications of the law hard to understand and apply. While it may seem quaint, to pepper a law with terms like ‘inconvenience’, ‘nuisance’ or ‘annoyance’, the language fails to convey the seriousness of the offences being defined. A reading of the Information Technology Act, 2008, in its new incarnation incorporating the latest amendments and rules (ITA), is a case in point.

Legal draftsmen inevitably wrestle with the age-old dilemma of the generic versus the specific, the potential dangers of a broad definition versus the built-in obsolescence of a narrow spotlight. The crafters of the ITA, in their admittedly admirable attempts to redress some of the gaps and ambiguity in the original law, appear to have struggled in their efforts to strike a balance between clarity and flexibility. While the new avatar is certainly an improvement in some areas, one can’t help but regret the missed opportunity to make necessary changes. Most importantly is the negative impact of the occasionally sloppy and sometimes overly wide drafting on deeply cherished fundamental rights and personal liberties.

Among other things, the ITA has sought to address and improve aspects such as technology neutrality, data protection, phishing and spam, child pornography, the liability of intermediaries and cyber terrorism. While many of these amendments are a step in the right direction, the actual drafting that implements the high level objectives suffers in many respects. For example, the previous emphasis on ‘digital signatures’ has shifted to the technologically neutral ‘electronic signatures’ but the changes have not been carried out thoroughly enough to expunge the old concept entirely. The current law is a bit of an abnormal document in that it contains elements of both concepts, which some attention to detail could easily have averted. Another example is that the provisions meant to combat spam and phishing end up using the dreaded ‘annoyance’ and ‘inconvenience’ terminology with the effect of casting the net of criminality over far more than is appropriate. For example, mail sent with the purpose of causing ‘annoyance’ or ‘inconvenience’ (not exactly the worst offence in the offline world) could put someone behind bars.

An important set of well intentioned but woefully inadequate provisions are those relating to the protection of data. The absence of a specific law on data protection had, in itself, garnered much criticism both within the country as well as in the context of international transactions and outsourcing. The old Act offered the feeble protection of a single provision (section 43) that dealt with unauthorised access and damage to data. In an attempt to meet industry demands and international market standards, the ITA introduced two sections that address civil and criminal sanctions. While this exercise understandably falls far short of a comprehensive law relating to data (being squeezed into an omnibus piece of technology related legislation, rather than one geared up only to deal with data), there was considerable anticipation of its role in papering over the existing cracks and provide a workable, if temporary, data protection regime.

However, the attempt is such a limited one, and so replete with shortcomings that the need for a ‘proper’ data protection law still stands. Given the proposed initiation of the UID scheme, in particular, there is a compelling need for a robust and intelligent law in this regard. Most other countries’ regimes clearly do at least the following:

define and classify types of data (for example, in most European countries, ‘personal data’ is any data that identifies an individual, ‘sensitive personal data’ is data that reveals details of ethnicity, religion, health, sexuality, political opinion, etc.),
fine-tune the nature of protection to the categories of data (i.e., greater standards of care around sensitive personal data),
apply equally to data stored offline and manually as to data stored on computer systems,
distinguish between a data controller (i.e., one who takes decisions as to data) and a data processor (i.e., one who processes data on the instructions of the data controller),
impose clear restrictions on the manner of data collection (for example, must be obtained fairly and lawfully),
give clear guidelines on the purposes for which that data can be put to and by whom (often involving a consent requirement that gives the individual a great degree of control over their data),
require certain standards and technical measures around the collection, storage, access to, protection, retention and destruction of data,
ensure that the use of data is adequate, relevant and not excessive given the purpose for which it was gathered,
cater for opt-in and opt-out type regimes, again to provide individuals with a measure of control over the use of their data even after the stage of initial collection (which has a huge impact on invasive telemarketing or unsolicited written communication)
impose a knowledge requirement and procedures for allowing individuals to seek information on what data is held on them, and
create safeguards and penalties that are well tailored to breaches of any of the above.

Unfortunately, and perhaps understandably, the ITA barely begins to scratch the surface of what a good data protection regime entails. The provisions that it does introduce (sections 43-A and 72-A) have glaring inadequacies. Briefly:

the term ‘sensitive personal data or information’ is used indiscriminately without any definition,
the provisions only cover electronic data and records, not data stored in non-electronic systems or media,
they offer no guidance on most of the principles set out above such as in relation to accuracy, adequacy, consent, purpose, etc.,
in the absence of the controller-processor distinction, liability is imposed on persons, who are not necessarily in a position to control data, even if it is in their possession,
civil liability for data breaches only arises where ‘negligence’ is involved (i.e., failure to have security procedures or failure to implement them correctly will not automatically result in damages unless negligence is proven),
similarly, criminal liability only applies to cases of information obtained in the context of a service contract, and requires an element of ‘wilfulness’, or a disclosure without consent or in breach of a lawful contract – this is a very limited remit aimed largely at preventing disgruntled or unscrupulous employees from dealing in company/customer data.

For these broad reasons, we can see that even the amended ITA disappoints those who expected a greatly improved regime in relation to data. It is widely anticipated that the UID scheme, which poses so many potential data protection issues, will serve as a catalyst for a standalone law that is on par with the more sophisticated regimes that function very well in other countries. One great feature common to most of those regimes is that they are consumer/individual focused. The freedom and privacy of the individual is the central concern of protection. Our ITA seems far more concerned with providing corporates with a stick to beat errant employees with, and with catering to the needs of the outsourcing and IT industries. It remains to be seen whether the UID scheme will merely galvanise some targeted legal action covering UIDs rather than generating a broad based piece of legislation.

In addition to the criticisms levelled at the data protection provisions, the other large subset of concerns has been in relation to the civil liberties implications of the ITA. There has been some horror expressed in various forums and media about the ITA contributing to the growth of a police state, to severe curtailment of the freedom of speech and expression, to the invasion of privacy, and to the disproportionate severity of penalisation for offences that are placed on crimes committed in cyberspace compared to crimes committed in the hear and now. Sadly, this is true to a large extent given the clunky treatment of ‘cyber terrorism’, the intolerable pre-censorship that is enabled by the blocking of websites, the broad approach to the monitoring and collection of data, and the demanding obligations of intermediaries to cooperate with interception, monitoring and decryption of data for poorly defined reasons.

While our Constitution’s fundamental rights chapter, which enshrines certain basic, democratic, and profound rights, might not have the same vocabulary of due process as we see in the US, it nevertheless requires restrictions to be reasonable. Precedents and the wider jurisprudence in the field have further developed the concepts of checks and balances, procedural safeguards and legitimacy of restraints that a functioning democracy like India must accord to its people. It can be argued that several provisions of the ITA cause significant tension with the right to freedom of speech and expression, the right against self-incrimination, the right to equality before the law, and the right to practice a trade or profession. To briefly deal with the worst offenders in the IT Act, I have divided them into some broader topics:

Pre-censorship

Some of the most excessive provisions relate to the free hand with which public access to websites can be blocked. Previously, there was some hope that the rules yet to be formulated in connection with section 69-A would offer some procedural safeguards. The recently notified rules do contain details – in the bureaucratese that we have come to expect – of the process to be followed by the designated functionaries. They also permit the concerned person or intermediary to submit a reply and clarifications to the committee before the decision to block access is taken.

These rules are to a large extent undermined by rule 9 (“Blocking of information in cases of emergency”), which provides that, “…in any case of an emergency nature, for which no delay is acceptable…”, the process will turn into an internal escalation within the department of IT and interim directions relating to blocking access may be issued without giving (him) an opportunity of hearing. There are those who think that, given the events of 26/11, this is wholly justified but the prospect of abuse fills others with dread. The rules may offer detailed time-frames within which orders are made and approved, require reasons to be recorded in writing, provide that emergency orders may be revoked and information unblocked, etc. Regardless, the nature of the process (executive rather than judicial), the ease with which it can be abused, and the fact that the review committee will only meet once in two months to check for compliance, set aside incorrect orders and unblock information, does not offer much comfort. If a site is incorrectly blocked, it could take up to two months for this to be rectified, which could cause a great damage to the owner of the site, and indeed to the wider public that has an interest in uncensored, free speech.

Given that any person can submit a request, it is not unreasonable to anticipate a certain level of frivolous and malicious requests for blocking sites, especially given that the grounds for blocking are very wide (the often repeated set that we are familiar with, namely, in the interest of sovereignty and integrity of India; relating to defence of India/ security of State/ friendly relations with foreign states/ public order and for preventing incitement to commission of any cognizable offences). Without a review committee constantly monitoring and policing the unbridled use of the provisions, the backlog of blocking decisions that may need to be reversed can become a mountain very quickly. The dangers of pre-censorship and the curtailment of dialogue, debate and free speech are even greater in a country with an increasingly thin-skinned populace. Faced with a volatile backdrop of great diversity of religion, political opinions, views on sexuality, morality, obscenity and other highly subjective values and beliefs, there is immense extra-legal pressure on free speech. Thus, there is now a need for greater vigilance so that the thought police do not wield the stick of harsh penalties under the ITA without reason and due process.

Privacy and surveillance

This topic pulls together concerns around the blanket monitoring and collecting of traffic data or information, the interception and decryption (under duress) by intermediaries (now a large superset of ISPs, search engines, cyber cafes, online auction sites, online market places, etc.) and the wide definition of ‘cyber terrorism’ (which ludicrously even casts defamation as a terrorist activity).

Some of the broad concerns in relation to interception, monitoring and decryption in (section 69) are that:

there is no provision for a clear nexus between an intermediary and the information or resource sought to be monitored or intercepted,
the usual internationally recognised exception to liability where an intermediary operates purely as a conduit and has no control over data flowing through its network is not clearly spelt out,
the penalties for non-cooperation are extremely harsh, especially given the absence of a) and b) above,
these onerous penalties can be said to be in violation of Article 14 as they seem entirely disproportionate. Similar offences and remedies in the Code of Criminal Procedure or the Indian Penal Code prescribe less severe penalties, by an order of magnitude in fact. When the only difference between the offences is the medium in which information is contained, it seems arbitrary to impose a much harsher punishment on an online intermediary than on a member of the public who, for example, furnishes false information to the police in connection with a trial or enquiry.
the rules made in relation to monitoring, interception and decryption, offer some procedural safeguards, in that they impose a time limit on how long a directive for interception or monitoring can remain in force, a ceiling on how long data can be kept before it is required to be destroyed, etc. However, the effect of these is greatly diluted by exceptions “for functional requirements”, etc. The astonishing irony is that rule 20 requires the intermediary to maintain “…extreme secrecy…” and “…utmost care and precaution…” in the matter of interception, monitoring or decryption of information “…as it affects the privacy of citizens…”!!!!

In a similar vein, there are concerns around the monitoring and collection of traffic data (section 69B) as the section contains an unreasonably long list of grounds for monitoring. These include such extreme excesses as “forecasting of imminent cyber incidents”, “monitoring network application with traffic data or information on computer resource”, “identification and determination of viruses/computer contaminant”, and the catch-all “any other matter relating to cyber security”.

Finally, the main criticism of the ITA approach to ‘cyber terrorism’ is the very wide net that it seeks to cast, looking for a game that has little or nothing to do with the named offence. Amongst the cast of creatures unwittingly caught during this fishing expedition, we find some unlikely victims. In addition to the usual grounds of offence against sovereignty, national security, defence of India, etc., which we have seen in relation to other sections, the ITA considers the following as acts of cyber terrorism – broadly speaking, unauthorised access to information that is likely to cause:

injury to decency,
injury to morality,
injury in relation to contempt of court, and
injury in relation to defamation.

This would almost be laughable if these grounds were not enacted unto law, posing a threat to civil liberties by their very existence. Other countries have some notion of political ideology, religious case, etc. in their view of terrorism. That (a) to (d) above have been shoehorned into a clause that imposes the stiffest penalty within the entire ITA (life imprisonment) gives even more cause for concern.

In closing, I should reiterate that the ITA includes other deficiencies and worthwhile improvements alike, but an article focusing largely on the data protection and civil liberties aspects cannot reference them all.

For more details visit https://cis-india.org/internet-governance/blog/information-technology-act

Killing the Internet Softly with Its Rules

pranesh — 2011-08-20T12:51:42Z

While regulation of the Internet is a necessity, the Department of IT, through recent Rules under the IT Act, is guilty of over-regulation. This over-regulation is not only a bad idea, but is unconstitutional, and gravely endangers freedom of speech and privacy online.

A slightly modified version of this blog entry was published as an op-ed in the Indian Express on May 9, 2011.

Over-regulation of the Internet

Regulation of the Internet, as with regulation of any medium of speech and commerce, is a balancing act. Too little regulation and you ensure that criminal activities are carried on with impunity; too much regulation and you curb the utility of the medium. This is especially so with the Internet, as it has managed to be the impressively vibrant space it is due to a careful choice in most countries of eschewing over-regulation. India, however, seems to be taking a different turn with a three sets of new rules under the Information Technology Act.

These rules deal with the liability of intermediaries (i.e., a large, inclusive, group of entities and individuals, that transmit and allow access to third-party content), the safeguards that cybercafes need to follow if they are not to be held liable for their users' activities, and the practices that intermediaries need to follow to ensure security and privacy of customer data.

Effect of not following the rules

By not observing any of the provisions of these Rules, the intermediary opens itself up for liability for actions of its users. Thus, if a third-party defames someone, then the intermediary can be held liable if he/she/it does not follow the stringent requirements of the Rules.

The problem, however is that, many of the provisions of the Rules have no rational nexus with the due diligence to be observed by the intermediary to absolve itself from liability.

What does the Act require?

Section 79 of the IT Act states that intermediaries are generally not liable for third party information, data, or communication link made available or hosted. It qualifies that by stating that they are not liable if they follow certain precautions (basically, to show that they are real intermediaries). They observe 'due diligence' and don't exercise an editorial role; they don't help or induce commission of the unlawful act; and upon receiving 'actual knowledge', or on being duly notified by the appropriate authority, the intermediary takes steps towards some kind of action.

So, rules were needed to clarify what 'due diligence' involves (i.e., to state that no active monitoring is required of ISPs), what 'actual knowledge' means, and to clarify what happens in happens in case of conflicts between this provision and other parts of IT Act and other Acts.

Impact on freedom of speech and privacy

However, that is not what the rules do. The rules instead propose standard terms of service to be notified by all intermediaries. This means everyone from Airtel to Hotmail to Facebook to Rediff Blogs to Youtube to organizations and people that allow others to post comments on their website. What kinds of terms of service? It will require intermediaries to bar users from engaging in speech that is disparaging', It doesn't cover only intermediaries that are public-facing. So this means that your forwarding a joke via e-mail, which "belongs to another person and to which the user does not have any right" will be deemed to be in violation of the new rules. While gambling (such as betting on horses) isn’t banned in India and casino gambling is legal in Goa, for example, under these Rules, all speech ‘promoting gambling’ is prohibited.

The rules are very onerous on intermediaries, since they require them to act within 36 hours to disable access to any information that they receive a complaint about. Any 'affected person' can complain. Intermediaries will now play the role that judges have traditionally played. Any affected person can bring forth a complaint about issues as diverse as defamation, blasphemy, trademark infringement, threatening of integrity of India, 'disparaging speech', or the blanket 'in violation of any law'. It is not made mandatory to give the actual violator an opportunity to be heard, thus violating the cardinal principle of natural justice of 'hearing the other party' before denying them a fundamental right. Many parts of the Internet are in fact public spaces and constitute an online public sphere. A law requiring private parties to curb speech in such a public sphere is unconstitutional insofar as it doesn't fall within Art.19(2) of the Constitution.

Since intermediaries would lose protection from the law if they don't take down content, they have no incentives to uphold freedom of speech of their users. They instead have been provided incentives to take down all content about which they receive complaints without bothering to apply their minds and coming to an actual conclusion that the content violates the rules.

Cybercafe rules

The cybercafe rules require all cybercafe customers be identified with supporting documents, their photographs taken, all their website visit history logged, and these logs maintained for a year. Compare this to the usage of public pay-phones. Anyone can use a pay-phone without their details being logged. Indeed, such logging allows for cybercafe owners to blackmail their users if they find some embarrassing websites in the history logs—which could be anything from medical diseases to sexual orientation to the fact that you're a whistleblower.

The cybercafe rules also require that all of them install "commercially available safety or filtering software" to prevent access to pornography. In two cases along these lines in the Madras High Court (Karthikeyan R. v. Union of India) and the Bombay High Court (Janhit Manch v. Union of India), the High Courts refused to direct the government to take proactive steps to curb access to Internet pornography stating that such matters require case-by-case analysis to be constitutionally valid under Art.19(1)(a) [Right to freedom of speech and expression].

Such software tends to be very ineffective—non-pornographic websites also get wrongly filtered, and not all pornographic websites get filtered—and the High Courts were right in being wary of any blanket ban. They preferred for individual cases to be registered. If the worry is that our children are getting corrupted, it is up to parents to provide supervision, and not for the government to insist that software do the parenting instead.

Given that all of these were pointed out by both civil society organizations, news media, and industry bodies, when the draft rules were released, it smacks of governmental high-handedness that almost none of the changes suggested by the public have been incorporated in the final rules.

For more details visit https://cis-india.org/internet-governance/blog/killing-the-internet-oped

Big Brother is Watching You

sunil — 2012-03-21T09:32:28Z

The government is massively expanding its surveillance power over law-abiding citizens and businesses, says Sunil Abraham in this article published by the Deccan Herald on June 1, 2011.

Imagine: An HIV positive woman calls a help-line from an ISD/STD booth. The booth operator can get to know who she called, when and for how long. But he would not have any idea on who she is or where she lives.

Now, instead of a phone call, imagine that she uses a cyber café to seek help on a website for HIV positive people. The cyber-cafe operator would have a copy of her ID – remember that many ID documents have phone numbers and addresses. He may then take her photograph using his own camera. One can only hope that he will take only a mug-shot without using the zoom lens inappropriately. He would also use a software – to log her Internet activities and make a reasonable guess on her HIV status.

The average Facebook page may have 50 different URLs to display the various images, animations and videos that are linked to that page. Each of those URLs would be stored, regardless of whether she scrolls down to see any of them.

The cyber-cafe operator is obliged under the Cyber Cafe rules to store this information for a period of one year. But there are no clear guidelines on when and how he should dispose of these logs. An unethical operator could leak the logs to a marketeer, a spammer, a neighbourhood Romeo or the local moral police. A careless operator maybe vulnerable to digital or physical theft and before you know it, such logs could end up on the Internet.

Ever since 26/11, cyber-cafes in metros have been photocopying ID documents – but so far not a single terrorist attack has been foiled or a crime solved thanks to this highly intrusive measure. But despite the lack of evidence to prove the efficacy of the current levels of surveillance, the government has decided to expand them exponentially.

Imagine again: A media organisation such as Deccan Herald is investigating a public interest issue with the help of a whistle-blower or an anonymous informant. Deccan Herald reporters may think that by turning the encryption on when using Gmail or Hotmail they are protecting their source.

But the ISP serving Deccan Herald is obliged by the license terms to log all traffic be it broadband, dial-up or mobile users passing through it. Again, there are no clear guidelines on when to delete these logs and none of the Indian ISPs publicly publish a data retention policy. Besides retaining data, the ISPs have to install real-time surveillance equipment within their network infrastructure and make them available for government officials. If a government official wants to track who is talking to Deccan Herald reporters, he just has to ask.

With ISPs and online service providers – all the police have to do is send an information request under Section 92 of the Code of Criminal Procedure. In other words, they don't even have to bother about a court order. Between January 2010 to June 2010 Google received 1,430 information requests from India. Many other companies, for example, Microsoft, are not as transparent as Google about the state surveillance. So we will never know what they are subjected to.

If the whistle-blower was using Blackberry, all traffic would be transferred from the device to the RIM's Network Operation Centre situated outside India in an encrypted tunnel before it travels onto the Internet. This prevents the government from learning which mail server is being used from the logs and surveillance equipment at the ISP premises. And that is why the government has been engaged in a five-year long public fight with RIM over access to Blackberry traffic.

Now, thanks to the IT Act, the government can demand the service providers, including RIM, to hand over the decryption keys by accusing any individual of a variety of vague offenses -- for example engaging in communication that is ‘grossly harmful’ or ‘harms minors in any way’ – under the IT Act. Refusal to hand over the keys is punishable with a jail term of three years.

Finally, imagine that an Indian enterprise is developing trade-secrets or handling trade-secrets on behalf of their international partners. This enterprise is using a VPN or virtual private network for confidential digital communication. As per the ISP license all encryption above 40-bit is only permitted with written permission from DoT along with mandatory deposit of the decryption key.

In the age of wire-tap leaks, only a miniscule minority of international business partners would trust the government of India not to leak or misuse the keys that have been deposited with them. Most individuals, SMEs and large enterprises routinely use encryption higher than 40 bit strength. For example, Gmail uses128 bit and Skype uses 256 bit encryption. Many services use dynamic encryption, that is generate different keys for each session.

So far I have not heard of anyone who has actually secured permission or deposited the keys. In other words, the Indian enterprise has two choices – either break the law to protect business confidentiality or obey it and lose clients.

The IT Act (Amendment 2008) and its associated Rules, notified in April this year are a massive expansion of blanket surveillance on ordinary, law-abiding Indians. They represent a paradigm shift in surveillance and a significant dilution in privacy protections afforded to citizens under the Telegraph Act.

This has terrifying consequences for our plural society, free media and businesses. Department of Information Technology in particular Dr. Gulshan Rai's office has so far only brushed aside these concerns and denied receiving feedback from the industry and civil society. If our media continues to ignore this clamp down on our civil liberties, we will soon have to furnish ID documents before purchasing thumb drives. After all, Bin Laden was found using them in his Abbottabad home.

Read the original here

For more details visit https://cis-india.org/internet-governance/blog/big-brother-watching-you

CIS Para-wise Comments on Draft Reasonable Security Practices Rules, 2011

Prashant Iyengar — 2012-12-14T10:32:06Z

On February 7th 2011, the Department of Information Technology, MCIT published draft rules on its website (The Information Technology (Reasonable security practices and procedures and sensitive personal information) Rules, 2011) in exercise of the powers conferred by Section 87(2)(ob), read with Section 43A of the Information Technology Act, 2000. Comments were invited from the public before February 25th 2011. Accordingly, Privacy India and Centre for Internet and Society, Bangalore have prepared the following para-wise comments for the Ministry’s consideration.

A. Specific Objections

Rule 3

Sensitive personal data or information.— Sensitive personal data or information of a person shall include information collected, received, stored, transmitted or processed by body corporate or intermediary or any person, consisting of :

Password;

...

Call data records;

Comment

We suggest that this list be expanded to include information such as sexual orientation, religion and caste. In addition, “electronic communication records” including emails, chat logs and other communications using a computer should be designated sensitive personal information.

Rule 4

Body Corporate to provide policy for privacy and disclosure of information.— (1) The body corporate or any person who on behalf of body corporate collects, receives, possess, stores, deals or handle shall provide a privacy policy for handling of or dealing in user information including sensitive personal information and ensure that the same are available for view by such providers of information who has provided such information under lawful contract. Such policy shall provide for:

Type of personal or sensitive information collected under sub-rule (ii) of rule 3;

Purpose, means and modes of usage of such information;

Disclosure of information as provided in rule 6

Comment

We recommend that the privacy policy be made available for view to all individuals to whom the information held by the body corporate pertains. Currently the privacy policy will only be disclosed to the “providers of information” who may not be the individual concerned directly.

Rule 5

Collection of information.—

(1) Body corporate or any person on its behalf shall obtain consent of the provider of the information regarding purpose, means and modes of uses before collection of such information.

Comment

We recommend the substitution of the term “individual to whom the data pertains” instead of the phrase “provider of the information”.

(2) Body corporate or any person on its behalf shall not collect sensitive personal information unless—

the information is collected for a lawful purpose connected with a function or activity of the agency; and

the collection of the information is necessary for that purpose.

Comment

We recommend a blanket prohibition of collection of biometric data unless a heightened security interest is demonstrated.

(3) While collecting information directly from the individual concerned, the body corporate or any person on its behalf shall take such steps as are, in the circumstances, reasonable to ensure that the individual concerned is aware of.

Comment

We recommend a simpler phrase like “The body corporate.. shall take reasonable steps to inform the individual concerned” instead of the current complex phrasing. Reasonableness has generally been interpreted by courts contextually. For instance, the Supreme Court has remarked, “`Reasonable’ means prima facie in law reasonable in regard to those circumstances of which the actor, called upon to act reasonably, knows or ought to know. See Gujarat Water Supply and Sewage Board v. Unique Erectors (Guj) AIR 1989 SC 973.

(4) Body corporate or any person on its behalf holding sensitive personal information shall not keep that information for longer than is required for the purposes for which the information may lawfully be used.

Comment

We recommend that this be converted into a mandatory obligation to delete or anonymise the information collected within a stipulated period (say 6 months) after the expiry of use for which it was collected.

(6) Body corporate or any person on its behalf shall permit the users to review the information they had provided and modify the same, wherever necessary.

Comment

Individuals should have the right to review and modify information pertaining to them whether or not they themselves had provided the information to the body corporate. This right should be provided to them wherever the information that pertains to them is incorrect.

(7) Body corporate or any person on its behalf shall provide an option to the provider of the information to opt-in or opt-out.

Comment

We recommend that the wording be changed to “individual to whom the data pertains” instead of “provider of information”.

For more details visit https://cis-india.org/internet-governance/blog/security-practices-rules

CIS Para-wise Comments on Cyber Café Rules, 2011

Prashant Iyengar — 2012-12-14T10:32:02Z

On February 7th 2011, the Department of Information Technology, MCIT published draft rules on its website (The Information Technology (Guidelines for Cyber Cafe) Rules, 2011) in exercise of the powers conferred by Section 87(2) (zg), read with Section 79(2) of the Information Technology Act, 2000. Comments were invited from the public before February 25th 2011. Accordingly, Privacy India and Centre for Internet and Society, Bangalore have prepared the following para wise comments for the Ministry’s consideration.

A. General Objections

These rules have no nexus with their parent provision, namely s.79(2). Section 79(1) provides for exemption from liability for intermediaries. Section 79(2) thereupon states:

79. Intermediaries not to be liable in certain cases—

(2) The provisions of sub-section (1) shall apply if—

(a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hasted; or
(b) the intermediary does not—

(i) initiate the transmission,
(ii) select the receiver of the transmission, and
(iii) select or modify the information contained in the transmission;

(c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.

Therefore, by not observing any of the provisions of the Rules, the intermediary opens itself up for liability for actions of its users. However, the provisions contained in these rules have no rational nexus with due diligence to be observed by the intermediary to absolve itself from liability for third-party actions.

While the government may have authority to regulate cybercafes, that regulation should not be promulgated as rules under s.79(2). Doing so would be ultra vires s.79(2) itself.

Recommendation

These rules should be deleted in toto.

B. Specific Objections

These specific objections are in addition to the above-stated general objection, and do not detract from out recommendation that these rules should be deleted in their entirety.

Rule 2(c)

(c) “Cyber Cafe” means cyber café as defined in clause (na) of sub-section (1) of section 2 of the Act

Comment

The Act defines a cyber cafe as meaning “any facility from where access to the internet is offered by any person in the ordinary course of business to the members of the public”. This would include internet access provided in airports, in restaurants, and in many other places where the provisions of these rules (such as those about height of partitions, etc.) just will not be practicable. Thus, this provision will have unintended consequences.

Rule 3

Agency for issuance of license: Appropriate government will notify an agency to issue license to cyber cafes.

Comment

Rule 3 requires the issuing of a license for the establishment of a cyber café. We believe this is unwarranted since cybercafes, like most commercial establishments are already subject to registration and licensing under the “Shops and Establishments Acts” which have been enacted in all states. These Acts already specify an elaborate procedure for the application, registration and monitoring of all establishments and there is no need to multiply the levels of permission a cyber café must obtain. The current rules do not specify an application procedure, fee, and a maximum or minimum time frame within which such a license must be granted or denied nor does it specify the criterion on which such license applications will be evaluated. We think that in the absence of such legislative guidance, this provision is likely to be abused.

Cyber cafes in India contribute greatly to India’s increasing internet penetration and inserting a licensing regime would greatly impede access to the internet.

We believe that cyber cafes should be allowed to be established in the same manner as other shops and establishments, without the requirement of a special license.

Rule 4(2)

...When an user cannot establish his/her identify to the satisfaction of the Cyber Café as per sub-rule (1), he/she may be photographed by the Cyber Café using a web camera installed on one of the computers in the Cyber Café for establishing the identity of the user.

Comment

Sub-Rule 4 (2) Requires that if an individual is unable to establish identity, their photograph must be taken if they wish to use cyber café facilities. We believe that an individual’s photograph should be taken only as a last resort, where identity has been established.

Rule 4(3)

Children without photo identity card shall be accompanied by an adult with any of the documents as prescribed in sub-rule (1).

Comment

We recommend that children below 18 years should be specifically exempt from proving their identities to cyber café owners. Children are usually the quickest to adopt technology, and the requirement of possessing a valid identity might prove to be a deterrent to their developing computer skills. Likewise, being accompanied by an adult is also an onerous obligation since children’s access to the internet would depend on the availability of an adult/parent who may be too busy to accompany the child on every occasion the child wishes to access the internet or use a computer.

To reiterate, we feel that the current provision specially and adversely targets children from poorer classes (since they are most likely to routinely access internet through cyber cafes) and denies them the opportunity of developing their computer skills which are crucial for the growth of the “knowledge economy” that India is trying to head towards.

In addition, we believe that children are more susceptible to exploitation and consequently have a heightened privacy expectation which must be honoured. We recommend that the current sub-rule be deleted and replaced with a clause which specifically exempts children from proving their identity and forbids taking photographs of them under any circumstance.

Rule 5(1)

... Log Register: After the identity of the user has been established as per sub-rule (1) of rule 4 above, the Cyber Café shall record and maintain the required information of each user in the log register for a minimum period of one year. Also, Cyber Café may maintain an online version of the log register.

Comment

Rule 5(1) Provides a minimum period of one year that Cyber Cafes must retain their log registers. The rule does not specify the details which the log register must provide. In the interests of minimising threats to privacy, we recommend that these details recorded be confined only to the name and duration of use.

In addition, we believe that there should also be a coinciding mandatory deletion clause for the log register requiring details to be purged after the minimum retention period.

Rules 5(3)and 6(2)

5(3): “The cyber café owner shall be responsible for storing and maintaining following backups of logs and computer resource records for at least six months for each access or login by any user :

·    History of websites accessed using computer resource at cyber cafe

·    Logs of proxy server installed at cyber café

·    Mail server logs

·    Logs of network devices such as router, switches, systems etc. installed at cyber café

·    Logs of firewall or Intrusion Prevention/Detection systems, if installed.”

6(2): “The screen of all computers, installed other than in Partitions or Cubicles, shall face ‘outward’, i.e. they shall face the common open space of the Cyber Café.”

Comment

We recommend deletion of this rule since it is an unreasonable intrusion into a person’s privacy and an indirect attempt to censor content which users may wish to access. There are many uses of the internet for which a user may legitimately require privacy: For instance, patients, including HIV patients and those with mental illness, may wish to obtain information about their condition. Similarly sexuality minorities may wish to seek support or reach out to a larger community. Enforcing the architecture stipulated in this rule would discourage their access to such vital information. In addition, this architecture would make it easier for cyber crimes such as identity theft to take place since it would be easier to observe the login details of other users at the cyber café.

Rule 7(1)

Inspection of Cyber Café : “An officer, not below the rank of Police Inspector as authorised by the licensing agency, is authorized to check or inspect cyber café and the computer resource or network established therein at any time for the compliance of these rules. The cyber café owner shall provide every related document, registers and any necessary information to the inspecting officer on demand.

Comment

We recommend this clause be omitted since it confers unfettered and unsupervised powers on any Police Inspector to examine any cyber café premises he may choose without any restriction on time.

Additionally, the provisions of Shops and Establishments Acts of most states already prescribe a procedure for inspection of establishments and examination of records. The current rules merely add another layer of supervision to the existing laws without adequate safeguards.

Comment

Sub-Rule 5(3) holds cyber café owners responsible for the storage and maintenance of back up logs concerning the following information: history of websites, logs of proxy servers, mail server logs, logs of network devices, logs of firewalls installed. We believe that the maximum length for retention of this data should be defined and a mandatory deletion clause should be inserted requiring cyber café owners to delete these logs periodically. We further believe that access to the history of websites and mail server logs is a serious invasion of a person’s privacy, and should be omitted from the back up logs.

This is especially so when currently there is no requirement that cyber café owners maintain their logs under conditions of utmost secrecy and confidence.

For more details visit https://cis-india.org/internet-governance/blog/cyber-cafe-rules

CIS Para-wise Comments on Intermediary Due Diligence Rules, 2011

pranesh — 2012-07-11T10:27:26Z

On February 7th 2011, the Department of Information Technology, MCIT published draft rules on its website (The Information Technology (Due diligence observed by intermediaries guidelines) Rules, 2011) in exercise of the powers conferred by Section 87(2)(zg), read with Section 79(2) of the Information Technology Act, 2000. Comments were invited from the public before February 25th 2011. Accordingly, Privacy India and Centre for Internet and Society, Bangalore have prepared the following para-wise comments for the Ministry’s consideration.

A. General Objections

A number of the provisions under these Rules have no nexus with their parent provision, namely s.79(2). Section 79(1) provides for exemption from liability for intermediaries. Section 79(2) thereupon states:

79. Intermediaries not to be liable in certain cases—

(2) The provisions of sub-section (1) shall apply if—

(a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hasted; or

(b) the intermediary does not—

(i) initiate the transmission,

(ii) select the receiver of the transmission, and

(iii) select or modify the information contained in the transmission;

(c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.

Therefore, by not observing any of the provisions of the Rules, the intermediary opens itself up for liability for actions of its users. However, many of the provisions of the Rules have no rational nexus with due diligence to be observed by the intermediary to absolve itself from liability.

B. Specific Objections

Rule 2(b), (c), and (k)

(b) “Blog” means a type of website, usually maintained by an individual with regular entries of commentary, descriptions of events, or other material such as graphics or video. Usually blog is a shared on-line journal where users can post diary entries about their personal experiences and hobbies;

(c) “Blogger” means a person who keeps and updates a blog;

(k) “User” means any person including blogger who uses any computer resource for the purpose of sharing information, views or otherwise and includes other persons jointly participating in using the computer resource of intermediary

Comments

It is unclear why it is necessary to specifically target bloggers as users, leaving out other users such as blog commenters, social network users, microbloggers, podcasters, etc. It makes the rules technologically non-neutral.

Recommendation

We recommend that these 3 sub-rules be deleted.

Rule 3(2)

3. Due Diligence observed by intermediary.— The intermediary shall observe following due diligence while discharging its duties.

(2) The intermediary shall notify users of computer resource not to use, display, upload, modify, publish, transmit, update, share or store any information that : —

(a) belongs to another person;

(b) is harmful, threatening, abusive, harassing, blasphemous, objectionable, defamatory, vulgar, obscene, pornographic, paedophilic, libellous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever;

(c) harm minors in any way;

(d) infringes any patent, trademark, copyright or other proprietary rights;

(e) violates any law for the time being in force;

(f) discloses sensitive personal information of other person or to which the user does not have any right to;

(g) causes annoyance or inconvenience or deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;

(h) impersonate another person;

(i) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource;

(j) threatens the unity, integrity, defence, security or sovereignty of India, friendly relations with foreign states, or or public order or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting any other nation.

Comments

Firstly, such ‘standard’ terms of use [1] might make sense for one intermediary, but not for all. For instance, an intermediary such as site with user-generated content (e.g., Wikipedia) would need different terms of use from an intermediary such as an e-mail provider (e.g., Hotmail), because the kind of liability they accrue are different. This is similar to how the liability that a newspaper publisher accrues is different from that accrued by the post office. However, forcing standard terms of use negates this difference. Thus, these are impractical.

Secondly, read with the legal obligation of the intermediary to remove such information (contained in rule 3(3)), they vest an extraordinary power of censorship in the hands of the intermediary, which could easily lead to the stifling of the constitutionally guaranteed freedom of speech online. Analogous restrictions do not exist in other fields, e.g., against the press in India or against courier companies, and there is no justification to impose them on content posted online. Taken together, these provisions make it impossible to publish critical views about anything without the risk of being summarily censored.

Thirdly, while it is possible to apply Indian law to intermediaries, it is impracticable to require all intermediaries (whether in India or not) to have in their terms of use India-specific clauses such as rule 3(2)(j). Instead, it is better to merely require them to ask their users to follow all relevant laws.

Individual instances of how these rules are overly broad are contained in an appendix to this submission.

Recommendation

We strongly recommend the deletion of this sub-rule, except clause (e).

Rule 3(3)

(3) The intermediary shall not itself host or publish or edit or store any information or shall not initiate the transmission, select the receiver of transmission, and select or modify the information contained in the transmission as specified in sub-rule (2).

Comments

This sub-rule is ultra vires s.79 of the IT Act, which does not require intermediaries not to “host or publish or edit or store any information”. If fact, s.79(2) merely states that by violating the provisions of s.79(2), the intermediary loses the protection of s.79(1). It does not however make it unlawful to violate s.79(2), as rule 3(3) does. This makes rule 3(3) ultra vires the Act.

Recommendation

This sub-rule should be deleted.

Rule 3(4)

(4) The intermediary upon obtaining actual knowledge by itself or been brought to actual knowledge by an authority mandated under the law for the time being in force in writing or through email signed with electronic signature about any such information as mentioned in sub-rule (2) above, shall act expeditiously to work with user or owner of such information to remove access to such information that is claimed to be infringing or to be the subject of infringing activity. Further the intermediary shall inform the police about such information and preserve the records for 90 days

Comments

This rule is also ultra vires s.69A of the IT Act as well as the Constitution of India. Section 69A states all the grounds on which an intermediary may be required to restrict access to information [2]. It does not allow for expansion of those grounds, because it has been carefully worded to maintains its constitutional validity vis-a-vis Articles 19(1)(a) and 19(2) of the Constitution of India. The rules framed under s.69A prescribe an elaborate procedure before such censorship may be ordered. The rules under s.69A will be rendered nugatory if any person could get content removed or blocked under s.79(2).

This rule requires an intermediary to immediately take steps to remove access to information merely upon receiving a written request from “any authority mandated under the law”. Thus, for example, any authority can easily immunize itself from criticism on the internet by simply sending a written notice to the intermediary concerned. This is directly contrary to, and completely subverts the legislative intent expressed in Section 69B which lays down an elaborate procedure to be followed before any information can be lawfully blocked.

If any person is aggrieved by information posted online, they may seek their remedies—including the relief of injunction—from courts of law, under generally applicable civil and criminal law. Inserting a rule such as this one would take away the powers of the judiciary in India to define the line dividing permissible and impermissible speech, and vest it instead in the whims of each intermediary. This can only have a chilling effect on debates in the public domain (of which the Internet is a part) which is the foundation of any democracy.

Recommendation

This rule should modified so that an intermediary is obliged to take steps towards removal of content only when (a) backed by an order from a court or (b) a direction issued following the procedure prescribed by the rules framed under Section 69A.

Rule 3(5) & (7) & (8) & (10)

(5) The Intermediary shall inform its users that in case of non-compliance with terms of use of the services and privacy policy provided by the Intermediary, the Intermediary has the right to immediately terminate the access rights of the users to the site of Intermediary;

(7) The intermediary shall not disclose sensitive personal information;

(8) Disclosure of information by intermediary to any third party shall require prior permission or consent from the provider of such information, who has provided such information under lawful contract or otherwise;

(10) The information collected by the intermediary shall be used for the purpose for which it has been collected.

Comments

These sub-rules have no nexus with intermediary liability or non-liability under s.79(2). For instance, it is unreasonable to say that an intermediary may be held liable for the actions of its users if it does not inform its users about its right to terminate access by the user to its services. Furthermore, not all intermediaries need be websites, as sub-rule 5 assumes. An intermediary can even be an “internet service provider” or a “cyber cafe” or a “telecom service provider”, as per rule 2(j) read with s.2(1)(w) of the IT Act.

The requirements under sub-rules (7), (8), and (10) are rightfully the domain of s.43A and the rules made thereunder, and not s.79(2) nor these rules.

Recommendation

These sub-rules should be deleted, and sub-rules (7), (8), and (10) may placed instead in the rules made under s.43A.

Rule 3(9)

(9) Intermediary shall provide information to government agencies who are lawfully authorised for investigative, protective, cyber security or intelligence activity. The information shall be provided for the purpose of verification of identity, or for prevention, detection, investigation, prosecution, cyber security incidents and punishment of offences under any law for the time being in force, on a written request stating clearly the purpose of seeking such information.

Comments

This provision is ultra vires ss.69 and 69B. Rules have already been issued under ss.69 and 69B which stipulate the mechanism and procedure to be followed by the government for interception, monitoring or decrypting information in the hands of intermediaries. Thus under the Interception Rules 2009 framed under Section 69, permission must first be obtained from a “competent authority” before an intermediary can be directed to provide access to its records and facilities. The current rule completely removes the safeguards contained in s.69 and its rules, and would make intermediaries answerable to virtually any request from any government agency. This is contrary to the legislative intent expressed in Section 69.

Recommendation

We recommend this sub-rule be deleted.

Rule 3(12)

(12) The intermediary shall report cyber security incidents and also share cyber security incidents related information with the Indian Computer Emergency Response Team.

Comments

The rules relating to how and when the Indian Computer Emergency Response Team may request for information from intermediaries is rightfully the subject matter of s.70B(5) [3] and the rules made thereunder by virtue of the rule making power granted by s.87(2)(yd). The subject matter of rule 3(12) is not liability of intermediaries for third-party actions, hence there is no nexus between the rule-making power, and the rule.

Recommendations

We recommend that this sub-rule be deleted.

Rule 3(14)

(14) The intermediary shall publish on its website the designated agent to receive notification of claimed infringements.

Comments

It is unclear what “infringements” are being referred to in this sub-rule. Neither s.79 nor these rules provide for “infringements”. The same reasoning applied for rule 3(4) would also apply here. It would be better to require the intermediary to publish on its website a method of providing judicial notice.

Recommendations

Delete, and replace with a requirement for the intermediary to publish on its website a method of providing judicial notice.

Footnotes

For instance, the Section B(1) of the World of Warcraft Code of Conduct “When engaging in Chat, you may not: (i) Transmit or post any content or language which, in the sole and absolute discretion of Blizzard, is deemed to be offensive, including without limitation content or language that is unlawful, harmful, threatening, abusive, harassing, defamatory, vulgar, obscene, hateful, sexually explicit, or racially, ethnically or otherwise objectionable.
It is only “in the interest of sovereignty and integrity of India. defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above” that intermediaries may be issued directions to block access to information.
70B(5) sates that the The manner of performing functions and duties of the agency referred to in sub-section (1) shall be such as may be prescribed.

For more details visit https://cis-india.org/internet-governance/blog/intermediary-due-diligence

RTI Applications on Blocking of Websites

pranesh — 2012-12-21T06:34:27Z

In recent weeks, an increasing number of incidents have come to light on government-ordered blocking of websites. In one case involving Zone-H.org, it is clear who has ordered the block (a Delhi district court judge, as an interim order), even though the block itself is open to constitutional challenge. In all others cases, including the TypePad case, it is unclear who has ordered the block and why. We at CIS have sent in two right to information requests to find out.

While under the law (i.e., s.69A of the Information Technology Act), the Department of Information Technology (DIT) has the power to order blocks (via the 'Designated Officer'), in some cases it has been noted that the ISPs have noted that the order to block access to the websites have come from the Department of Telecom (DoT). Due to this, we have sent in RTI applications to both the DIT and the DoT.

RTI Application to Department of Information Technology

Shri B.B.Bahl,
Joint Director and PIO (RTI)
Office of PIO (RTI)
Room No 1016, Electronics Niketan
Department of Information Technology (DIT)
Ministry of Communications and Information Technology
6, CGO Complex, New Delhi

Dear Sir,

Subject: Information on Website Blocking Requested under the Right to Information Act, 2005

1. Full Name of the Applicant:
Pranesh Prakash

2. Address of the Applicant:
E-mail Address:
pranesh[at]cis-india.org

Mailing Address:
Centre for Internet and Society
194, 2-C Cross,
Domlur Stage II,
Bangalore – 560071

3. Details of the information required:

It has come to our attention that Airtel Broadband Services (“Airtel”) has recently blocked access to a blog host called TypePad (http://www.typepad.com) (“TypePad”) for all its users across the country. In this regard, we request information on the following queries under Section 6(1) of the Right to Information Act, 2005:

Did the Department order Airtel to block TypePad under s.69A of the Information Technology Act (“IT Act”), 2000 read with the Information Technology (Procedures and Safeguards for Blocking Access of Information by Public) Rules, 2009 (“Rules”) or any other law for the time being in force? If so, please provide a copy of such order or orders. If not, what action, if at all, has been taken by the Department against Airtel for blocking of websites in contravention of s.69A of the IT Act?
Has the Department ever ordered a block under s.69A of the IT Act? If so, what was the information that was ordered to be blocked?
How many requests for blocking of information has the Designated Officer received, and how many of those requests have been accepted and how many rejected? How many of those requests were for emergency blocking under Rule 9 of the Rules?
Please provide use the present composition of the Committee for Examination of Requests constituted under Rule 7 of the Rules.
Please provide us the dates and copies of the minutes of all meetings held by the Committee for Examination of Requests under Rule 8(4) of the Rules, and copies of their recommendations.
Please provide us the present composition of the Review Committee constituted under rule 419A of the Indian Telegraph Rules, 1951.
Please provide us the dates and copies of the minutes of all meetings held by the Review Committee under Rule 14 of the Rules, and copies of all orders issued by the Review Committee.

4. Years to which the above requests pertain:
2008-2011

5. Designation and Address of the PIO from whom the information is required:

To the best of my belief, the details sought for fall within your authority. Further, as provided under section 6(3) of the Right to Information Act (“RTI Act”), in case this application does not fall within your authority, I request you to transfer the same in the designated time (5 days) to the concerned authority and inform me of the same immediately.

To the best of my knowledge the information sought does not fall within the restrictions contained in section 8 and 9 of the RTI Act, and any provision protecting such information in any other law for the time being in force is inapplicable due to section 22 of the RTI Act.

Please provide me this information in electronic form, via the e-mail address provided above.

This to certify that I, Pranesh Prakash, am a citizen of India.

A fee of Rs. 10/- (Rupees Ten Only) has been made out in the form of a demand draft drawn in favour of “Pay and Accounts Officer, Department of Information Technology” payable at New Delhi.

Date: Monday, February 28, 2011
Place: Bengaluru, Karnataka

(Pranesh Prakash)

RTI Application to Department of Telecom

Shri Subodh Saxena
Central Public Information Officer (RTI)
Director (DS-II)
Room No 1006, Sanchar Bhawan
Department of Telecommunications (DoT)
Ministry of Communications and Information Technology
20, Ashoka Road, New Delhi — 110001

Dear Sir,

Subject: Information on Website Blocking Requested under the Right to Information Act, 2005

1. Full Name of the Applicant:
Pranesh Prakash

2. Address of the Applicant:
E-mail Address:
pranesh[at]cis-india.org

Mailing Address:
Centre for Internet and Society
194, 2-C Cross,
Domlur Stage II,
Bangalore – 560071

3. Details of the information required:

It has come to our attention that Airtel Broadband Services (“Airtel”) has recently blocked access to a blog host called TypePad (http://www.typepad.com) (“TypePad”) for all its users across the country. Airtel subscribers trying to access this website receive a message noting “This site has been blocked as per request by Department of Telecom”. In this regard, we request information on the following queries under Section 6(1) of the Right to Information Act, 2005:

Does the Department have powers to require an Internet Service Provider to block a website? If so, please provide a citation of the statute under which power is granted to the Department, as well as the the safeguards prescribed to be in accordance with Article 19(1)(a) of the Constitution of India.
Did the Department order Airtel to block TypePad or any blog hosted by TypePad? If so, please provide a copy of such order or orders. If not, what action, if at all, has been taken by the Department against Airtel for blocking of websites?
Has the Department ever ordered the blocking of any website? If so, please provide a list of addresses of all the websites that have been ordered to be blocked.
Please provide use the present composition of the Committee constituted under rule 419A of the Indian Telegraph Rules, 1951.
Please provide us the dates and copies of the minutes of all meetings held by the Committee constituted under rule 419A of the Indian Telegraph Rules, 1951, and copies of all their recommendations.

4. Years to which the above requests pertain:
2005-2011

5. Designation and Address of the PIO from whom the information is required:
Shri Subodh Saxena
Central Public Information Officer (RTI)
Director (DS-II)
Room No 1006, Sanchar Bhawan
Department of Telecommunications (DoT)
Ministry of Communications and Information Technology
20, Ashoka Road, New Delhi — 110001

Please provide me this information in electronic form, via the e-mail address provided above.

This to certify that I, Pranesh Prakash, am a citizen of India.

A fee of Rs. 10/- (Rupees Ten Only) has been made out in the form of a demand draft drawn in favour of “Pay and Accounts Officer (HQ), Department of Telecom” payable at New Delhi.

Date: Monday, February 28, 2011
Place: Bengaluru, Karnataka

(Pranesh Prakash)

For more details visit https://cis-india.org/internet-governance/blog/rtis-on-website-blocking

Comments on the Draft Rules under the Information Technology Act

pranesh — 2011-09-21T06:13:42Z

The Centre for Internet and Society commissioned an advocate, Ananth Padmanabhan, to produce a comment on the Draft Rules that have been published by the government under the Information Technology Act. In his comments, Mr. Padmanabhan highlights the problems with each of the rules and presents specific recommendations on how they can be improved. These comments were sent to the Department of Information and Technology.

Comments on the Draft Rules under the Information Technology Act as Amended by the Information Technology (Amendment) Act, 2008

Submitted by the Centre for Internet and Society, Bangalore

Prepared by Ananth Padmanabhan, Advocate in the Madras High Court

Interception, Monitoring and Decryption

Section 69

The section says:

Where the Central Government or a State Government or any of its officer specially authorised by the Central Government or the State Government, as the case may be, in this behalf may, if satisfied that it is necessary or expedient so to do in the interest of the sovereignty or integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above or for investigation of any offence, it may subject to the provisions of sub-section (2), for reasons to be recorded in writing, by order, direct any agency of the appropriate Government to intercept, monitor or decrypt or cause to be intercepted or monitored or decrypted any information generated, transmitted, received or stored in any computer resource.
The procedure and safeguards subject to which such interception or monitoring or decryption may be carried out, shall be such as may be prescribed.
The subscriber or intermediary or any person in-charge of the computer resource shall, when called upon by any agency referred to in sub-section (1), extend all facilities and technical assistance to-

(a) provide access to or secure access to the computer resource generating transmitting, receiving or storing such information; or

(b) intercept, monitor, or decrypt the information, as the case may be; or

The subscriber or intermediary or any person who fails to assist the agency referred to in sub-section (3) shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.

Recommendation #1
Section 69(3) should be amended and the following proviso be inserted:

Provided that only those intermediaries with respect to any information or computer resource that is sought to be monitored, intercepted or decrypted, shall be subject to the obligations contained in this sub-section, who are, in the opinion of the appropriate authority, prima facie in control of such transmission of the information or computer resource. The nexus between the intermediary and the information or the computer resource that is sought to be intercepted, monitored or decrypted should be clearly indicated in the direction referred to in sub-section (1) of this section.

Reasons for the Recommendation
In the case of any information or computer resource, there may be more than one intermediary who is associated with such information. This is because “intermediary” is defined in section 2(w) of the amended Act as,

“with respect to any electronic record means any person who on behalf of another person receives, stores or transmits that record or provides any service with respect to that record, including telecom service providers, network service providers, internet service providers, webhosting service providers, search engines, online payment sites, online-auction sites, online-market places and cyber cafes”.

The State or Central Government should not be given wide-ranging powers to enforce cooperation on the part of any such intermediary without there being a clear nexus between the information that is sought to be decrypted or monitored by the competent authority, and the control that any particular intermediary may have over such information.

To give an illustration, merely because some information may have been posted on an online portal, the computer resources in the office of the portal should not be monitored unless the portal has some concrete control over the nature of information posted in it. This has to be stipulated in the order of the Central or State Government which authorizes interception of the intermediary.

Recommendation #2
Section 69(4) should be repealed.

Reasons for the Recommendation
The closest parallels to Section 69 of the Act are the provisions in the Telegraph Rules which were brought in after the decision in PUCL v. Union of India, (1997) 1 SCC 301, famously known as the telephone tapping case.

Section 69(4) fixes tremendous liability on the intermediary for non-cooperation. This is violative of Article 14. Similar provisions in the Indian Penal Code and Code of Criminal Procedure, which demand cooperation from members of the public as regards production of documents, letters etc., and impose punishment for non-cooperation on their part, impose a maximum punishment of one month. It is bewildering why the punishment is 7 years imprisonment for an intermediary, when the only point of distinction between an intermediary under the IT Act and a member of the public under the IPC and CrPC is the difference in the media which contains the information.

Section 69(3) is akin to the duty cast upon members of the public to extend cooperation under Section 39 of the Code of Criminal Procedure by way of providing information as to commission of any offence, or the duty, when a summons is issued by the Court or the police, to produce documents under Sections 91 and 92 of the Code of Criminal Procedure. The maximum punishment for non-cooperation prescribed by the Indian Penal Code for omission to cooperate or wilful breach of summons is only a month under Sections 175 and 176 of the Indian Penal Code. Even the maximum punishment for furnishing false information to the police is only six months under Section 177 of the IPC. When this is the case with production of documents required for the purpose of trial or inquiry, it is wholly arbitrary to impose a punishment of six years in the case of intermediaries who do not extend cooperation for providing access to a computer resource which is merely apprehended as being a threat to national security etc. A mere apprehension, however reasonable it may be, should not be used to pin down a liability of such extreme nature on the intermediary.

This would also amount to a violation of Articles 19(1)(a) as well as 19(1)(g) of the Constitution, not to mention Article 20(3). To give an example, much of the information received from confidential sources by members of the press would be stored in computer resources. By coercing them, through the 7 year imprisonment threat, to allow access to this computer resource and thereby part with this information, the State is directly infringing on their right under Article 19(1)(a). Furthermore, if the “subscriber” is the accused, then section 69(4) goes against Article 20(3) by forcing the accused to bear witness against himself.

Draft Rules under Section 69

Rule 3
Directions for interception or monitoring or decryption of any information generated, transmitted, received or stored in any computer resource under sub- section (2) of section 69 of the Information Technology (Amendment) Act, 2008 (hereinafter referred to as the said Act) shall not be issued except by an order made by the concerned competent authority who is Union Home Secretary in case of Government of India; the Secretary in-charge of Home Department in a State Government or Union Territory as the case may be. In unavoidable circumstances, such order may be made by an officer, not below the rank of a Joint Secretary to the Government of India, who has been duly authorised by the Union Home Secretary or by an officer equivalent to rank of Joint Secretary to Government of India duly authorised by the Secretary in-charge of Home Department in the State Government or Union Territory, as the case may be:

Provided that in emergency cases –
(i) in remote areas, where obtaining of prior directions for interception or monitoring or decryption of information is not feasible; or
(ii) for operational reasons, where obtaining of prior directions for interception or monitoring or decryption of any information generated, transmitted, received or stored in any computer resource is not feasible;

the required interception or monitoring or decryption of any information generated, transmitted, received or stored in any computer resource shall be carried out with the prior approval of the Head or the second senior most officer of the Security and Law Enforcement Agencies (hereinafter referred to as the said Security Agencies) at the Central Level and the officers authorised in this behalf, not below the rank of Inspector General of Police or an officer of equivalent rank, at the State and Union Territory level. The concerned competent authority, however, shall be informed of such interceptions or monitoring or decryption by the approving authority within three working days and that such interceptions or monitoring or decryption shall be got confirmed by the concerned competent authority within a period of seven working days. If the confirmation from the concerned competent authority is not received within the stipulated seven working days, such interception or monitoring or decryption shall cease and the same information shall not be intercepted or monitored or decrypted thereafter without the prior approval of the concerned competent authority, as the case may be.

Recommendation #3
In Rule 3, the following proviso may be inserted:

“Provided that in the event of cooperation by any intermediary being required for the purpose of interception, monitoring or decryption of such information as is referred to in this Rule, prior permission from a Supervisory Committee headed by a retired Judge of the Supreme Court or the High Courts shall be obtained before seeking to enforce the Order mentioned in this Rule against such intermediary.”

Reasons for the Recommendation
Section 69 and the draft rules suffer from absence of essential procedural safeguards. This has come in due to the blanket emulation of the Telegraph Rules. Additional safeguards should have been prescribed to ensure that the intermediary is put to minimum hardship when carrying on the monitoring or being granted access to a computer resource. Those are akin to a raid, in the sense that it can stop an online e-commerce portal from carrying out operations for a day or even more, thus affecting their revenue. It is therefore recommended that in any situation where cooperation from the intermediary is sought, prior judicial approval has to be taken. The Central or State Government cannot be the sole authority in such cases.

Furthermore, since access to the computer resource is required, an executive order should not suffice, and a search warrant or an equivalent which results from a judicial application of the mind (by the Supervisory Committee, for instance) should be required.

Recommendation #4
The following should be inserted after the last line in Rule 22:

The Review Committee shall also have the power to award compensation to the intermediary in cases where the intermediary has suffered loss or damage due to the actions of the competent authority while implementing the order issued under Rule 3.

Reasons for the Recommendation
The Review Committee should be given the power to award compensation to the loss suffered by the intermediary in cases where the police use equipment or software for monitoring/decryption that causes damage to the intermediary’s computer resources / networks. The Review Committee should also be given the power to award compensation in the case of monitoring directions which are later found to be frivolous or even worse, borne out of mala fide considerations. These provisions will act as a disincentive against the abuse of power contained in Section 69.

Blocking of Access to Information

Section 69A

The section provides for blocking of websites if the government is satisfied that it is in the interests of the purposes enlisted in the section. It also provides for penalty of up to seven years for intermediaries who fail to comply with the directions under this section.
The rules under this section describe the procedure which have to be followed barring which the review committee may, after due examination of the procedural defects, order an unblocking of the website.

Section 69A(3)
The intermediary who fails to comply with the direction issued under sub-section (1) shall be punished with an imprisonment for a term which may extend to seven years and also be liable to fine.

Recommendation #5
The penalty for intermediaries must be lessened.

Reasons for Recommendations
The penal provision in this section which prescribes up to seven years imprisonment and a fine on an intermediary who fails to comply with the directions so issued is also excessively harsh. Considering the fact that various mechanisms are available to escape the blocking of websites, the intermediaries must be given enough time and space to administer the block effectively and strict application of the penal provisions must be avoided in bona fide cases.

The criticism about Section 69 and the draft rules in so far as intermediary liability is concerned, will also apply mutatis mutandis to these rules as well as Section 69A.

Draft Rules under Section 69A

Rule 22: Review Committee
The Review Committee shall meet at least once in two months and record its findings whether the directions issued under Rule (16) are in accordance with the provisions of sub-section (2) of section 69A of the Act. When the Review Committee is of the opinion that the directions are not in accordance with the provisions referred to above, it may set aside the directions and order for unblocking of said information generated, transmitted, received, stored or hosted in a computer resource for public access.

Recommendation #6
A permanent Review Committee should be specially for the purposes of examining procedural lapses.

Reasons for Recommendation
Rule 22 provides for a review committee which shall meet a minimum of once in every two months and order for the unblocking of a site of due procedures have not been followed. This would mean that if a site is blocked, there could take up to two months for a procedural lapse to be corrected and it to be unblocked. Even a writ filed against the policing agencies for unfair blocking would probably take around the same time. Also, it could well be the case that the review committee will be overborne by cases and may fall short of time to inquire into each. Therefore, it is recommended that a permanent Review Committee be set up which will monitor procedural lapses and ensure that there is no blocking in the first place before all the due procedural requirements are met.

Monitoring and Collection of Traffic Data

Draft Rules under Section 69B

The section provides for monitoring of computer networks or resources if the Central Government is satisfied that conditions so mentioned are satisfied.

The rules provide for the manner in which the monitoring will be done, the process by which the directions for the same will be issued and the liabilities of the intermediaries and monitoring officers with respect to confidentiality of the information so monitored.

Grounds for Monitoring
Rule 4
The competent authority may issue directions for monitoring and collection of traffic data or information generated, transmitted, received or stored in any computer resource for any or all of the following purposes related to cyber security:
(a) forecasting of imminent cyber incidents;
(b) monitoring network application with traffic data or information on computer resource;
(c) identification and determination of viruses/computer contaminant;
(d) tracking cyber security breaches or cyber security incidents;
(e) tracking computer resource breaching cyber security or spreading virus/computer contaminants;
(f) identifying or tracking of any person who has contravened, or is suspected of having contravened or being likely to contravene cyber security;
(g) undertaking forensic of the concerned computer resource as a part of investigation or internal audit of information security practices in the computer resource;
(h) accessing a stored information for enforcement of any provisions of the laws relating to cyber security for the time being in force;
(i) any other matter relating to cyber security.

Rule 6
No direction for monitoring and collection of traffic data or information generated, transmitted, received or stored in any computer resource shall be given for purposes other than those specified in Rule (4).

Recommendation #7
Clauses (a), (b), (c), and (i) of Rule 4 must be repealed.

Reasons for Recommendations
The term “cyber incident” has not been defined, and “cyber security” has been provided a circular definition. Rule 6 clearly states that no direction for monitoring and collection of traffic data or information generated, transmitted, received or stored in any computer resource shall be given for purposes other than those specified in Rule 4. Therefore, it may prima facie appear that the government is trying to lay down clear and strict safeguards when it comes to monitoring at the expense of a citizens' privacy. However, Rule 4(i) allows the government to monitor if it is satisfied that it is “any matter related to cyber security”. This may well play as a ‘catch all’ clause to legalise any kind of monitoring and collection and therefore defeats the purported intention of Rule 6 of safeguarding citizen’s interests against arbitrary and groundless intrusion of privacy. Also, the question of degree of liability of the intermediaries or persons in charge of the computer resources for leak of secret and confidential information remains unanswered.

Rule 24: Disclosure of monitored data
Any monitoring or collection of traffic data or information in computer resource by the employee of an intermediary or person in-charge of computer resource or a person duly authorised by the intermediary, undertaken in course of his duty relating to the services provided by that intermediary, shall not be unlawful, if such activities are reasonably necessary for the discharge his duties as per the prevailing industry practices, in connection with :
(vi) Accessing or analysing information from a computer resource for the purpose of tracing a computer resource or any person who has contravened, or is suspected of having contravened or being likely to contravene, any provision of the Act that is likely to have an adverse impact on the services provided by the intermediary.

Recommendation #8
Safeguards must be introduced with respect to exercise of powers conferred by Rule 24(vi).

Reasons for Recommendations
Rule 24(vi) provides for access, collection and monitoring of information from a computer resource for the purposes of tracing another computer resource which has or is likely to contravened provisions of the Act and this is likely to have an adverse impact on the services provided by the intermediary. Analysis of a computer resource may reveal extremely confidential and important data, the compromise of which may cause losses worth millions. Therefore, the burden of proof for such an intrusion of privacy of the computer resource, which is first used to track another computer resource which is likely to contravene the Act, should be heavy. Also, this violation of privacy should be weighed against the benefits accruing to the intermediary. The framing of sub rules under this clearly specifying the same is recommended.

The disclosure of sensitive information by a monitoring agency for purposes of ‘general trends’ and ‘general analysis of cyber information’ is uncalled for as it dissipates information among lesser bodies that are not governed by sufficient safeguards and this could result in outright violation of citizen’s privacy.

Manner of Functioning of CERT-In

Draft Rules under Section 70B(5)

Section 70B provides for an Indian Computer Emergency Response Team (CERT-In) which shall serve as a national agency for performing duties as prescribed by clause 4 of this section in accordance to the rules as prescribed.
The rules provide for CERT-In’s authority, composition of advisory committee, constituency, functions and responsibilities, services, stakeholders, policies and procedures, modus operandi, disclosure of information and measures to deal with non compliance of orders so issued. However, there are a few issues which need to be addressed as under:

Definitions
In these Rules, unless the context otherwise requires, “Cyber security incident” means any real or suspected adverse event in relation to cyber security that violates an explicit or implied security policy resulting in unauthorized access, denial of service/ disruption, unauthorized use of a computer resource for processing or storage of information or changes to data, information without authorization.

Recommendation #9
The words ‘or implied’’ must be excluded from rule 2(g) which defines ‘cyber security incident’, and the term ‘security policy’ must be qualified to state what security policy is being referred to.

Reasons for Recommendation
“Cyber security incident” means any real or suspected adverse event in relation to cyber security that violates an explicit or implied security policy resulting in unauthorized access, denial of service/disruption, unauthorized use of a computer resource for processing or storage of information or changes to data, information without authorization.

Thus, the section defines any circumstance where an explicit or implied security policy is contravened as a ‘cyber security incident’. Without clearly stating what the security policy is, an inquiry into its contravention is against an individual’s civil rights. If an individual’s actions are to be restricted for reasons of security, then the restrictions must be expressly defined and such restrictions cannot be said to be implied.

Rule 13(4): Disclosure of Information
Save as provided in sub-rules (1), (2), (3) of rule 13, it may be necessary or expedient to so to do, for CERT-In to disclose all relevant information to the stakeholders, in the interest of sovereignty or integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence relating to cognizable offence or enhancing cyber security in the country.

Recommendation #10
Burden of necessity for disclosure of information should be made heavier.

Reasons for the Recommendation
Rule 13(4) allows the disclosure of information by CERT-In in the interests of ‘enhancing cyber security’. This enhancement however needs to be weighed against the detriment caused to the individual and the burden of proof must be on the CERT-In to show that this was the only way of achieving the required.

Rule 19: Protection for actions taken in Good Faith
All actions of CERT-In and its staff acting on behalf of CERT-In are taken in good faith in fulfillment of its mandated roles and functions, in pursuance of the provisions of the Act or any rule, regulations or orders made thereunder. CERT-In and its staff acting on behalf of CERT-In shall not be held responsible for any unintended fallout of their actions.

Recommendation #11
CERT-In should be made liable for their negligent action and no presumption of good faith should be as such provided for.

Reasons for the Recommendation
Rule 19 provides for the protection of CERT-In members for the actions taken in ‘good faith’. It defines such actions as ‘unintended fallouts’. Clearly, if information has been called for and the same is highly confidential, then this rule bars the remedy for any leak of the same due to the negligence of the CERT-In members. This is clearly not permissible as an agency that calls for delicate information should also be held responsible for mishandling the same, intentionally or negligently. Good faith can be established if the need arises, and no presumption as to good faith needs to be provided.

Draft Rules under Section 52

These rules, entitled the “Cyber Appellate Tribunal (Salary, Allowances and Other Terms and Conditions of Service of Chairperson and Members) Rules, 2009” are meant to prescribe the framework for the independent and smooth functioning of the Cyber Appellate Tribunal. This is so because of the specific functions entrusted to this Appellate Tribunal. Under the IT Act, 2000 as amended by the IT (Amendment) Act, 2008, this Tribunal has the power to entertain appeals against orders passed by the adjudicating officer under Section 47.

Recommendation #12
Amend qualifications Information Technology (Qualification and Experience of Adjudicating Officers and Manner of Holding Enquiry) Rules, 2003, to require judicial training and experience.

Reasons for the Recommendation
It is submitted that an examination of these rules governing the Appellate Tribunal cannot be made independent of the powers and qualifications of Adjudicating Officers who are the original authority to decide on contravention of provisions in the IT Act dealing with damage to computer system and failure to furnish information. Even as per the Information Technology (Qualification and Experience of Adjudicating Officers and Manner of Holding Enquiry) Rules, 2003, persons who did not possess judicial experience and training, such as those holding the post of Director in the Central Government, were qualified to perform functions under Section 46 and decide whether there has been unauthorized access to a computer system. This involves appreciation of evidence and is not a merely administrative function that could be carried on by any person who has basic knowledge of information technology.

Viewed from this angle, the qualifications of the Cyber Appellate Tribunal members should have been made much tighter as per the new draft rules. The above rules when read with Section 50 of the IT Act, as amended in 2008, do not say anything about the qualification of the technical members apart from the fact that such person shall not be appointed as a Member, unless he is, or has been, in the service of the Central Government or a State Government, and has held the post of Additional Secretary or Joint Secretary or any equivalent post. Though special knowledge of, and professional experience in, information technology, telecommunication, industry, management or consumer affairs, has been prescribed in the Act as a requirement for any technical member.

Draft Rules under Section 54

These Rules do not suffer any defect and provide for a fair and reasonable enquiry in so far as allegations made against the Chairperson or the members of the Cyber Appellate Tribunal are concerned.

Penal Provisions

Section 66A

Any person who sends, by means of a computer resource or a communication device,
    (a) any information that is grossly offensive or has menacing character; or
    (b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device,
    (c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages,
shall be punishable with imprisonment for a term which may extend to three years and with fine.
Sec. 32 of the 2008 Act inserts Sec. 66A which provides for penal measures for mala fide use of electronic resources to send information detrimental to the receiver. For the section to be attracted the ‘information’ needs to be grossly offensive, menacing, etc. and the sender needs to have known it to be false.

While the intention of the section – to prevent activities such as spam-sending – might be sound and even desirable, there is still a strong argument to be made that words is submitted that the use of words such as ‘annoyance’ and ‘inconvenience’ (in s.66A(c)) are highly problematic. Further, something can be grossly offensive without touching upon any of the conditions laid down in Article 19(2). Without satisfying the conditions of Article 19(2), this provision would be ultra vires the Constitution.

Recommendation #13
The section should be amended and words which lead to ambiguity must be excluded.

Reasons for the Recommendation
A clearer phrasing as to what exactly could convey ‘ill will’ or cause annoyance in the electronic forms needs to be clarified. It is possible in some electronic forms for the receiver to know the content of the information. In such circumstances, if such a possibility is ignored and annoyance does occur, is the sender still liable? Keeping in mind the complexity of use of electronic modes of transmitting information, it can be said that several such conditions arise which the section has vaguely covered. Therefore, a stricter and more clinical approach is necessary.

Recommendation #14
A proviso should be inserted to this section providing for specific exceptions to the offence contained in this section for reasons such as fair comment, truth, criticism of actions of public officials etc.

Reasons for the Recommendation
The major problem with Section 66A lies in clause (c) as per which any electronic mail or electronic mail message sent with the purpose of causing annoyance or inconvenience is covered within the ambit of offensive messages. This does not pay heed to the fact that even a valid and true criticism of the actions of an individual, when brought to his notice, can amount to annoyance. Indeed, it may be brought to his attention with the sole purpose of causing annoyance to him. When interpreting the Information Technology Act, it is to be kept in mind that the offences created under this Act should not go beyond those prescribed in the Indian Penal Code except where there is a wholly new activity or conduct, such as hacking for instance, which is sought to be criminalized.

Offensive messages have been criminalized in the Indian Penal Code subject to the conditions specified in Chapter XXII being present. It is not an offence to verbally insult or annoy someone without anything more being done such as a threat to commit an offence, etc. When this is the case with verbal communications, there is no reason to make an exception for those made through the electronic medium and bring any electronic mail or message sent with the purpose of causing annoyance or inconvenience within the purview of an offensive message.

Section 66F

The definition of cyber-terrorism under this provision is too wide and can cover several activities which are not actually of a “terrorist” character.
Section 66F(1)(B) is particularly harsh and goes much beyond acts of “terrorism” to include various other activities within its purview. As per this provision,
“[w]hoever knowingly or intentionally penetrates or accesses a computer resource without authorisation or exceeding authorised access, and by means of such conduct obtains access to information, data or computer database that is restricted for reasons for the security of the State or foreign relations, or any restricted information, data or computer database, with reasons to believe that such information, data or computer database so obtained may be used to cause or is likely to cause injury to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence, or to the advantage of any foreign nation, group of individuals or otherwise, commits the offence of cyber terrorism.”

This provision suffers from several defects and hence ought to be repealed.

Recommendation #15
Section 66F(1)(B) has to be repealed or suitably amended to water down the excessively harsh operation of this provision. The restrictive nature of the information that is unauthorisedly accessed must be confined to those that are restricted on grounds of security of the State or foreign relations. The use to which such information may be put should again be confined to injury to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order. A mere advantage to a foreign nation cannot render the act of unauthorized access one of cyber-terrorism as long as such advantage is not injurious or harmful in any manner to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order. A mens rea requirement should also be introduced whereby mere knowledge that the information which is unauthorisedly accessed can be put to such uses as given in this provision should not suffice for the unauthorised access to amount to cyber-terrorism. The unauthorised access should be with the intention to put such information to this use. The amended provision would read as follows:

“[w]hoever knowingly or intentionally penetrates or accesses a computer resource without authorisation or exceeding authorised access, and by means of such conduct obtains access to information, data or computer database that is restricted for reasons for the security of the State or foreign relations, with the intention that such information, data or computer database so obtained may be used to cause injury to the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, or public order, commits the offence of cyber terrorism.”

Reasons for the Recommendation
The ambit of this provision goes much beyond information, data or computer database which is restricted only on grounds of security of the State or foreign relations and extends to “any restricted information, data or computer database”. This expression covers any government file which is marked as confidential or saved in a computer used exclusively by the government. It also covers any file saved in a computer exclusively used by a private corporation or enterprise. Even the use to which such information can be put need not be confined to those that cause or are likely to cause injury to the interests of the sovereignty and integrity of India, the security of the State, or friendly relations with foreign States. Information or data which is defamatory, amounting to contempt of court, or against decency / morality, are all covered within the scope of this provision. This goes way beyond the idea of a terrorist activity and poses serious questions. While there is no one globally accepted definition of cyberterrorism, it is tough to conceive of slander as a terrorist activity.

To give an illustration, if a journalist managed to unauthorisedly break into a restricted database, even one owned by a private corporation, and stumbled upon information that is defamatory in character, he would have committed an act of “cyber-terrorism.” Various kinds of information pertaining to corruption in the judiciary may be precluded from being unauthorisedly accessed on the ground that such information may be put to use for committing contempt of court. Any person who gains such access would again qualify as a cyber-terrorist. The factual situations are numerous where this provision can be put to gross misuse with the ulterior motive of muzzling dissent or freezing access to information that may be restricted in nature but nonetheless have a bearing on probity in public life etc. It is therefore imperative that this provision may be toned down as recommended above.

For more details visit https://cis-india.org/internet-governance/blog/comments-draft-rules