Centre for Internet and Society

Cyber-Security in the Age of Smart Manufacturing

Admin — 2018-10-02T00:23:45Z

Arindrajit Basu attended the event 'Cyber-security in the age of Smart Manufacturing.' The event 'BTS - CyberComm 2018' was organised by the Federation of Indian Chamber of Commerce & industry (FICCI) in association with Karnataka Innovation and Technology Society, and Government of Karnataka at The Lalit Ashok, Bengaluru on September 26, 2018.

The event was aimed at understanding the cyber security threats revolving around Industry 4.0 and smart manufacturing. The speakers included Mr. Gaurav Gupta, Principal Secretary, IT, BT and S&T Department, Government of Karnataka;Mr. Sanjay Mujoo, Vice President, Pointnext Global Centre Bangalore, Hewlett Packard Enterprise, India;Mr. Yogesh Andlay, Founder, Nucleus Software & Polaris Financial Technology and Mr. Ambrish Bakaya, Co-Chair, ICT and Digital Economy Committee FICCI.

Apart from discussing how to cover the threat vectors as businesses increasingly become digitised and use digital supply chains,the event was also useful in terms of obtaining an understanding of how the Karnataka government is approaching the digital ecosystem. The Centres of Excellence aim to bring on board academics, industry bodies and practitioners to develop best practices. FICCI, which was co-hosting this event indicated that they will continue to work with the government to further this agenda.

For more details visit https://cis-india.org/internet-governance/news/cyber-security-in-the-age-of-smart-manufacturing

Budapest Convention and the Information Technology Act

vipul — 2018-11-20T16:18:51Z

The Convention on Cybercrime adopted in Budapest (“Convention”) is the fist and one of the most important multilateral treaties addressing the issue of internet and computer crimes.

Introduction
It was drafted by the Council of Europe along with Canada, Japan, South Africa and the United States of America.[1] The importance of the Convention is also indicated by the fact that adherence to it (whether by outright adoption or by otherwise making domestic laws in compliance with it) is one of the conditions mentioned in the Clarifying Lawful Overseas Use of Data Act passed in the USA (CLOUD Act) whereby a process has been established to enable security agencies of in India and the United States to directly access data stored in each other’s territories. Our analysis of the CLOUD Act vis-à-vis India can be found here. It is in continuation of that analysis that we have undertaken here a detailed comparison of the Information Technology Act, 2000 (“IT Act”) and how it stacks up against the provisions of Chapter I and Chapter II of the Convention.^{^[2]}

Before we get into a comparison of the Convention with the IT Act, we must point out the distinction between the two legal instruments, for the benefit of readers from a non legal background. An international instrument such as the Convention on Cybercrime (generally speaking) is essentially a promise made by the States which are a party to that instrument, that they will change or modify their local laws to get them in line with the requirements or principles laid out in said instrument. In case the signatory State does not make such amendments to its local laws, (usually) the citizens of that State cannot enforce any rights that they may have been granted under such an international instrument. The situation is the same with the Convention on Cybercrime, unless the signatory State amends its local laws to bring them in line with the provisions of the Convention, there cannot be any enforcement of the provisions of the Convention within that State.[3] This however is not the case for India and the IT Act since India is not a signatory to the Convention on Cybercrime and therefore is not obligated to amend its local laws to bring them in line with the Convention.

Although India and the Council of Europe cooperated to amend the IT Act through major amendments brought about vide the Information Technology (Amendment) Act, 2008, India still has not become a signatory to the Convention on Cybercrime. The reasons for this appear to be unclear and it has been suggested that these reasons may range from the fact that India was not involved in the original drafting, to issues of sovereignty regarding the provisions for international cooperation and extradition.[4]

Convention on Cybercrime

Information Technology Act, 2000

Article 2 – Illegal access

Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally, the access to the whole or any part of a computer system without right. A Party may require that the offence be committed by infringing security measures, with the intent of obtaining computer data or other dishonest intent, or in relation to a computer system that is connected to another computer system.

Section 43

If any person without permission of the owner or any other person who is incharge of a computer, computer system or computer network -

(a) accesses or secures access to such computer, computer system or computer network or computer resource

Section 66

If any person, dishonestly, or fraudulently, does any act referred to in section 43, he shall be punishable with imprisonment for a term which may extend to two three years or with fine which may extend to five lakh rupees or with both.

The Convention gives States the right to further qualify the offence of “illegal access” or “hacking” by adding elements such as infringing security measures, special intent to obtain computer data, other dishonest intent that justifies criminal culpability, or the requirement that the offence is committed in relation to a computer system that is connected remotely to another computer system.^{^[5]} However, Indian law deals with the distinction by making the act of unathorised access without dishonest or fraudulent intent a civil offence, where the offender is liable to pay compensation. If the same act is done with dishonest and fraudulent intent, it is treated as a criminal offence punishable with fine and imprisonment which may extend to 3 years.

It must be noted that this provision was included in the Act only through the Amendment of 2008 and was not present in the Information Technology Act, 2000 in its original iteration.

Convention on Cybercrime

Information Technology Act, 2000

Article 3 – Illegal Interception

Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally, the interception without right, made by technical means, of non-public transmissions of computer data to, from or within a computer system, including electromagnetic emissions from a computer system carrying such computer data. A Party may require that the offence be committed with dishonest intent, or in relation to a computer system that is connected to another computer system.

Although the Information Technology Act, 2000 does not specifically criminalise the interception of communications by a private person. It is possible that under the provisions of Rule 43(a) the act of accessing a “computer network” could be interpreted as including unauthorised interception within its ambit.

The other way in which illegal interception may be considered to be illegal is through a combined reading of Sections 69 (Interception) and 45 (Residuary Penalty) with Rule 3 of the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009 which prohibits interception, monitoring and decryption of information under section 69(2) of the IT Act except in a manner as provided by the Rules. However, it must be noted that section 69(2) only talks about interception by the government and Rule 3 only provides for procedural safeguards for such an interception. It could therefore be argued that the prohibition under Rule 3 is only applicable to the government and not to private individuals since section 62, the provision under which Rule 3 has been issued, itself is not applicable to private individuals.

Convention on Cybercrime

Information Technology Act, 2000

Article 4 – Data interference

1 Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally, the damaging, deletion, deterioration, alteration or suppression of computer data without right.

2 A Party may reserve the right to require that the conduct described in paragraph 1 result in serious harm.

Section 43

If any person without permission of the owner or any other person who is incharge of a computer, computer system or computer network -

(d) damages or causes to be damaged any computer, computer system or computer network, data, computer data base or any other programmes residing in such computer, computer system or computer network;

(i) destroys, deletes or alters any information residing in a computer resource or diminishes its value or utility or affects it injuriously by any means;

(j) Steals, conceals, destroys or alters or causes any person to steal, conceal, destroy or alter any computer source code used for a computer resource with an intention to cause damage,

he shall be liable to pay damages by way of compensation not exceeding one crore rupees to the person so affected. (change vide ITAA 2008)

Section 66

Damage, deletion, diminishing in value and alteration of data is considered a crime as per Section 66 read with section 43 of the IT Act if done with fraudulent or dishonest intention. While the Convention only requires such acts to be crimes if committed intentionally, however the Information Technology Act requires that such intention be either dishonest or fraudulent only then such an act will be a criminal offence, otherwise it will only incur civil consequences requiring the perpetrator to pay damages by way of compensation.

It must be noted that the optional requirement of such an act causing serious harm has not been adopted by Indian law, i.e. the act of such damage, deletion, etc. by itself is enough to constitute the offence, and there is no requirement of such an act causing serious harm.

As per the Explanatory Report to the Convention on Cybercrime, “Suppressing of computer data means any action that prevents or terminates the availability of the data to the person who has access to the computer or the data carrier on which it was stored.” Strictly speaking the act of suppression of data in another system is not covered by the language of section 43, but looking at the tenor of the section it is likely that if a court is faced with a situation of intentional/malicious denial of access to data, the court could expand the scope of the term “damage” as contained in sub-section (d) to include such malicious acts.

Convention on Cybercrime

Information Technology Act, 2000

Article 5 – System interference

Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally, the serious hindering without right of the functioning of a computer system by inputting, transmitting, damaging, deleting, deteriorating, altering or suppressing computer data.

Section 43

If any person without permission of the owner or any other person who is incharge of a computer, computer system or computer network -

(e) disrupts or causes disruption of any computer, computer system or computer network;

Explanation - for the purposes of this section -

(i) "Computer Contaminant" means any set of computer instructions that are designed -

(a) to modify, destroy, record, transmit data or programme residing within a computer, computer system or computer network; or

(b) by any means to usurp the normal operation of the computer, computer system, or computer network;

(iii) "Computer Virus" means any computer instruction, information, data or programme that destroys, damages, degrades or adversely affects the performance of a computer resource or attaches itself to another computer resource and operates when a programme, data or instruction is executed or some other event takes place in that computer resource;

Section 66

The offence of causing hindrance to the functioning of a computer system with fraudulent or dishonest intention is an offence under the IT Act. While the Convention only requires such acts to be crimes if committed intentionally, however the IT Act requires that such intention be either dishonest or fraudulent only then such an act will be a criminal offence, otherwise it will only incur civil consequences requiring the perpetrator to pay damages by way of compensation.

The IT Act does not require such disruption to be caused in any particular manner as is required under the Convention, although the acts of introducing computer viruses as well as damaging or deleting data themselves have been classified as offences under the IT Act.

Convention on Cybercrime

Information Technology Act, 2000

Article 6 – Misuse of devices

1 Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally and without right:

a the production, sale, procurement for use, import, distribution or otherwise making available of:

i a device, including a computer program, designed or adapted primarily for the purpose of committing any of the offences established in accordance with Articles 2 through 5;

ii a computer password, access code, or similar data by which the whole or any part of a computer system is capable of being accessed, with intent that it be used for the purpose of committing any of the offences established in Articles 2 through 5; and

b the possession of an item referred to in paragraphs a.i or ii above, with intent that it be used for the purpose of committing any of the offences established in Articles 2 through 5. A Party may require by law that a number of such items be possessed before criminal liability attaches.

2 This article shall not be interpreted as imposing criminal liability where the production, sale, procurement for use, import, distribution or otherwise making available or possession referred to in paragraph 1 of this article is not for the purpose of committing an offence established in accordance with Articles 2 through 5 of this Convention, such as for the authorised testing or protection of a computer system.

3 Each Party may reserve the right not to apply paragraph 1 of this article, provided that the reservation does not concern the sale, distribution or otherwise making available of the items referred to in paragraph 1 a.ii of this article.

This provision establishes as a separate and independent criminal offence the intentional commission of specific illegal acts regarding certain devices or access data to be misused for the purpose of committing offences against the confidentiality, the integrity and availability of computer systems or data. While the IT Act does not by itself makes the production, sale, procurement for use, import, distribution of devices designed to be adopted for such purposes, sub-section (g) of section 43 along with section 120A of the Indian Penal Code, 1860 which deals with “conspiracy” could perhaps be used to bring such acts within the scope of the penal statutes.

Convention on Cybercrime

Information Technology Act, 2000

Article 7 – Computer related forgery

Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally and without right, the input, alteration, deletion, or suppression of computer data, resulting in inauthentic data with the intent that it be considered or acted upon for legal purposes as if it were authentic, regardless whether or not the data is directly readable and intelligible. A Party may require an intent to defraud, or similar dishonest intent, before criminal liability attaches.

The acts of deletion, alteration and suppression of data by itself is a crime as discussed above, there is no specific offence for doing such acts for the purpose of forgery. However this does not mean that the crime of online forgery is not punishable in India at all, such crimes would be dealt with under the relevant provisions of the Indian Penal Code, 1860 (Chapter 18) read with section 4 of the IT Act.

Convention on Cybercrime

Information Technology Act, 2000

Article 8 – Computer-related fraud

a any input, alteration, deletion or suppression of computer data,

b any interference with the functioning of a computer system,

with fraudulent or dishonest intent of procuring, without right, an economic benefit for oneself or for another person.

Just as in the case of forgery, there is no specific provision in the IT Act whereby online fraud would be considered as a crime, however specific acts such as charging services availed of by one person to another (section 43(h), identity theft (section 66C), cheating by impersonation (section 66D) have been listed as criminal offences. Further, as with forgery, fraudulent acts to procure economic benefits would also get covered by the provisions of the Indian Penal Code that deal with cheating.

Convention on Cybercrime

Information Technology Act, 2000

Article 9 – Offences related to child pornography

1 Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally and without right, the following conduct:

a producing child pornography for the purpose of its distribution through a computer system;

b offering or making available child pornography through a computer system;

c distributing or transmitting child pornography through a computer system;

d procuring child pornography through a computer system for oneself or for another person;

e possessing child pornography in a computer system or on a computer-data storage medium.

2 For the purpose of paragraph 1 above, the term "child pornography" shall include pornographic material that visually depicts:

a a minor engaged in sexually explicit conduct;

b a person appearing to be a minor engaged in sexually explicit conduct;

c realistic images representing a minor engaged in sexually explicit conduct.

3 For the purpose of paragraph 2 above, the term "minor" shall include all persons under 18 years of age. A Party may, however, require a lower age-limit, which shall be not less than 16 years.

4 Each Party may reserve the right not to apply, in whole or in part, paragraphs 1, subparagraphs d and e, and 2, sub-paragraphs b and c.

67 B Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc. in electronic form.

Whoever,-

(a) publishes or transmits or causes to be published or transmitted material in any electronic form which depicts children engaged in sexually explicit act or conduct or

(b) creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner or

(c) cultivates, entices or induces children to online relationship with one or more children for and on sexually explicit act or in a manner that may offend a reasonable adult on the computer resource or

(d) facilitates abusing children online or

(e) records in any electronic form own abuse or that of others pertaining to sexually explicit act with children,

shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with a fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees:

Provided that the provisions of section 67, section 67A and this section does not extend to any book, pamphlet, paper, writing, drawing, painting, representation or figure in electronic form-

(i) The publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern; or

(ii) which is kept or used for bonafide heritage or religious purposes

Explanation: For the purposes of this section, "children" means a person who has not completed the age of 18 years.

The publishing, transmission, creation, collection, seeking, browsing, etc. of child pornography is an offence under Indian law punishable with imprisonment for upto 5 years for a first offence and upto 7 years for a subsequent offence, along with fine.

It is important to note that bona fide depictions for the public good, such as for publication in pamphlets, reading or educational material are specifically excluded from the rigours of the section, Similarly material kept for heritage or religious purposes is also exempted under this section. Such exceptions are in line with the intent of the Convention, since the Explanatory statement itself states that “The term "pornographic material" in paragraph 2 is governed by national standards pertaining to the classification of materials as obscene, inconsistent with public morals or similarly corrupt. Therefore, material having an artistic, medical, scientific or similar merit may be considered not to be pornographic.

Convention on Cybercrime

Information Technology Act, 2000

Article 10 – Offences related to infringements of copyright and related rights

1 Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law the infringement of copyright, as defined under the law of that Party, pursuant to the obligations it has undertaken under the Paris Act of 24 July 1971 revising the Bern Convention for the Protection of Literary and Artistic Works, the Agreement on Trade-Related Aspects of Intellectual Property Rights and the WIPO Copyright Treaty, with the exception of any moral rights conferred by such conventions, where such acts are committed wilfully, on a commercial scale and by means of a computer system.

2 Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law the infringement of related rights, as define under the law of that Party, pursuant to the obligations it has undertaken under the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations (Rome Convention), the Agreement on Trade-Related Aspects of Intellectual Property Rights and the WIPO Performances and Phonograms Treaty, with the exception of any moral rights conferred by such conventions, where such acts are committed wilfully, on a commercial scale and by means of a computer system.

3 A Party may reserve the right not to impose criminal liability under paragraphs 1 and 2 of this article in limited circumstances, provided that other effective remedies are available and that such reservation does not derogate from the Party’s international obligations set forth in the international instruments referred to in paragraphs 1 and 2 of this article.

81 Act to have Overriding effect

The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.

Provided that nothing contained in this Act shall restrict any person from exercising any right conferred under the Copyright Act, 1957 or the Patents Act, 1970

The use of the term "pursuant to the obligations it has undertaken" in both paragraphs makes it clear that a Contracting Party to the Convention is not bound to apply agreements cited (TRIPS, WIPO, etc.) to which it is not a Party; moreover, if a Party has made a reservation or declaration permitted under one of the agreements, that reservation may limit the extent of its obligation under the present Convention.

The IT Act does not try to intervene in the existing copyright regime of India and creates a special exemption for the Copyright Act and the Patents Act in the clause which provides this Act overriding effect. India’s obligations under the various treaties and conventions on intellectual property rights are enshrined in these legislations.^{^[6]}

Convention on Cybercrime

Information Technology Act, 2000

Article 11 – Attempt and aiding or abetting

1 Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally, aiding or abetting the commission of any of the offences established in accordance with Articles 2 through 10 of the present Convention with intent that such offence be committed.

2 Each Party shall adopt such legislative and other measures as may be necessary to establish as criminal offences under its domestic law, when committed intentionally, an attempt to commit any of the offences established in accordance with Articles 3 through 5, 7, 8, and 9.1.a and c of this Convention.

3 Each Party may reserve the right not to apply, in whole or in part, paragraph 2 of this article.

84 B Punishment for abetment of offences

Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Act for the punishment of such abetment, be punished with the punishment provided for the offence under this Act.

Explanation: An Act or offence is said to be committed in consequence of abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment.

84 C Punishment for attempt to commit offences

Whoever attempts to commit an offence punishable by this Act or causes such an offence to be committed, and in such an attempt does any act towards the commission of the offence, shall, where no express provision is made for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence or with both.

As can be seen, both attempts as well as abetment of criminal offences under the IT Act have also been criminalised.

Convention on Cybercrime

Information Technology Act, 2000

Article 12 – Corporate liability

1 Each Party shall adopt such legislative and other measures as may be necessary to ensure that legal persons can be held liable for a criminal offence established in accordance with this Convention, committed for their benefit by any natural person, acting either individually or as part of an organ of the legal person, who has a leading position within it, based on:

a a power of representation of the legal person;

b an authority to take decisions on behalf of the legal person;

c an authority to exercise control within the legal person.

2 In addition to the cases already provided for in paragraph 1 of this article, each Party shall take the measures necessary to ensure that a legal person can be held liable where the lack of supervision or control by a natural person referred to in paragraph 1 has made possible the commission of a criminal offence established in accordance with this Convention for the benefit of that legal person by a natural person acting under its authority.

3 Subject to the legal principles of the Party, the liability of a legal person may be criminal, civil or administrative.

4 Such liability shall be without prejudice to the criminal liability of the natural persons who have committed the offence.

85 Offences by Companies.

(1) Where a person committing a contravention of any of the provisions of this Act or of any rule, direction or order made there under is a Company, every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of business of the company as well as the company, shall be guilty of the contravention and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention.

(2) Notwithstanding anything contained in sub-section (1), where a contravention of any of the provisions of this Act or of any rule, direction or order made there under has been committed by a company and it is proved that the contravention has taken place with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly.

Explanation-

For the purposes of this section

(i) "Company" means any Body Corporate and includes a Firm or other Association of individuals; and

(ii) "Director", in relation to a firm, means a partner in the firm.

The liability of a company or other body corporate has been laid out in the IT Act in a manner similar to the Budapest Convention. While, the test to determine the relationship between the legal entity and the natural person who has committed the act on behalf of the legal entity is a little more detailed[7] in the Convention, the substance of the test is laid out in the IT Act as “a person who is in charge of, and was responsible to, the company”.

Convention on Cybercrime

Information Technology Act, 2000

Article 14

1 Each Party shall adopt such legislative and other measures as may be necessary to establish the powers and procedures provided for in this section for the purpose of specific criminal investigations or proceedings.

2 Except as specifically provided otherwise in Article 21, each Party shall apply the powers and procedures referred to in paragraph 1 of this article to:

a the criminal offences established in accordance with Articles 2 through 11 of this Convention;

b other criminal offences committed by means of a computer system; and

c the collection of evidence in electronic form of a criminal offence.

3 a Each Party may reserve the right to apply the measures referred to in Article 20 only to offences or categories of offences specified in the reservation, provided that the range of such offences or categories of offences is not more restricted than the range of offences to which it applies the measures referred to in Article 21. Each Party shall consider restricting such a reservation to enable the broadest application of the measure referred to in Article 20.

b Where a Party, due to limitations in its legislation in force at the time of the adoption of the present Convention, is not able to apply the measures referred to in Articles 20 and 21 to communications being transmitted within a computer system of a service provider, which system:

i is being operated for the benefit of a closed group of users, and

ii does not employ public communications networks and is not connected with another computer system, whether public or private, that Party may reserve the right not to apply these measures to such communications.

Each Party shall consider restricting such a reservation to enable the broadest application of the measures referred to in Articles 20 and 21.

This is a provision of a general nature that need not have any equivalence in domestic law. The provision clarifies that all the powers and procedures provided for in this section (Articles 14 to 21) are for the purpose of “specific criminal investigations or proceedings”.

Convention on Cybercrime

Information Technology Act, 2000

Article 15 – Conditions and safeguards

1 Each Party shall ensure that the establishment, implementation and application of the powers and procedures provided for in this Section are subject to conditions and safeguards provided for under its domestic law, which shall provide for the adequate protection of human rights and liberties, including rights arising pursuant to obligations it has undertaken under the 1950 Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms, the 1966 United Nations International Covenant on Civil and Political Rights, and other applicable international human rights instruments, and which shall incorporate the principle of proportionality.

2 Such conditions and safeguards shall, as appropriate in view of the nature of the procedure or power concerned, inter alia, include judicial or other independent supervision, grounds justifying application, and limitation of the scope and the duration of such power or procedure.

3 To the extent that it is consistent with the public interest, in particular the sound administration of justice, each Party shall consider the impact of the powers and procedures in this section upon the rights, responsibilities and legitimate interests of third parties.

This again is a provision of a general nature which need not have a corresponding clause in the domestic law. India is a signatory to a number of international human rights conventions and treaties, it has acceded to the International Covenant on Civil and Political Rights (ICCPR), 1966, International Covenant on Economic, Social and Cultural Rights (ICESCR), 1966, ratified the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), 1965, with certain reservations, signed the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 1979 with certain reservations, Convention on the Rights of the Child (CRC), 1989 and signed the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), 1984. Further the right to life guaranteed under Article 21 of the Constitution takes within its fold a number of human rights such as the right to privacy. Freedom of expression, right to fair trial, freedom of assembly, right against arbitrary arrest and detention are all fundamental rights guaranteed under the Constitution of India, 1950.^{^[8]}

In addition, India has enacted the Protection of Human Rights Act, 1993 for the constitution of a National Human Rights Commission, State Human Rights Commission in States and Human Rights Courts for better protection of “human rights” and for matters connected therewith or incidental thereto. Thus, there does exist a statutory mechanism for the enforcement of human rights^{^[9]} under Indian law. It must be noted that the definition of human rights also incorporates rights embodied in International Covenants and are enforceable by Courts in India.

Convention on Cybercrime

Information Technology Act, 2000

Article 16 – Expedited preservation of stored computer data

1 Each Party shall adopt such legislative and other measures as may be necessary to enable its competent authorities to order or similarly obtain the expeditious preservation of specified computer data, including traffic data, that has been stored by means of a computer system, in particular where there are grounds to believe that the computer data is particularly vulnerable to loss or modification.

2 Where a Party gives effect to paragraph 1 above by means of an order to a person to preserve specified stored computer data in the person’s possession or control, the Party shall adopt such legislative and other measures as may be necessary to oblige that person to preserve and maintain the integrity of that computer data for a period of time as long as necessary, up to a maximum of ninety days, to enable the competent authorities to seek its disclosure. A Party may provide for such an order to be subsequently renewed.

3 Each Party shall adopt such legislative and other measures as may be necessary to oblige the custodian or other person who is to preserve the computer data to keep confidential the undertaking of such procedures for the period of time provided for by its domestic law.

4 The powers and procedures referred to in this article shall be subject to Articles 14 and 15.

Article 17 – Expedited preservation and partial disclosure of traffic data

1 Each Party shall adopt, in respect of traffic data that is to be preserved under Article 16, such legislative and other measures as may be necessary to:

a ensure that such expeditious preservation of traffic data is available regardless of whether one or more service providers were involved in the transmission of that communication; and

b ensure the expeditious disclosure to the Party’s competent authority, or a person designated by that authority, of a sufficient amount of traffic data to enable the Party to identify the service providers and the path through which the communication was transmitted.

2 The powers and procedures referred to in this article shall be subject to Articles 14 and 15.

29 Access to computers and data.

(1) Without prejudice to the provisions of sub-section (1) of section 69, the Controller or any person authorized by him shall, if he has reasonable cause to suspect that any contravention of the provisions of this chapter made there under has been committed, have access to any computer system, any apparatus, data or any other material connected with such system, for the purpose of searching or causing a search to be made for obtaining any information or data contained in or available to such computer system. (Amended vide ITAA 2008)

(2) For the purposes of sub-section (1), the Controller or any person authorized by him may, by order, direct any person in charge of, or otherwise concerned with the operation of the computer system, data apparatus or material, to provide him with such reasonable technical and other assistant as he may consider necessary.

67 C Preservation and Retention of information by intermediaries

(1) Intermediary shall preserve and retain such information as may be specified for such duration and in such manner and format as the Central Government may prescribe.

Rule 3(7) of the Information Technology (Intermediary Guidelines) Rules, 2011

3(7) - When required by lawful order, the intermediary shall provide information or any such assistance to Government Agencies who are lawfully authorised for investigative, protective, cyber security activity. The information or any such assistance 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 request in writing staling clearly the purpose of seeking such information or any such assistance.

It must be noted that Article 16 and Article 17 refer only to data preservation and not data retention. “Data preservation” means to keep data, which already exists in a stored form, protected from anything that would cause its current quality or condition to change or deteriorate. Data retention means to keep data, which is currently being generated, in one’s possession into the future.^{^[10]} In short, the article provides only for preservation of existing stored data, pending subsequent disclosure of the data, in relation to specific criminal investigations or proceedings.

The Convention uses the term "order or similarly obtain", which is intended to allow the use of other legal methods of achieving preservation than merely by means of a judicial or administrative order or directive (e.g. from police or prosecutor). In some States, preservation orders do not exist in the procedural law, and data can only be preserved and obtained through search and seizure or production order. Flexibility was therefore intended by the use of the phrase "or otherwise obtain" to permit the implementation of this article by the use of these means.

While Indian law does not have a specific provision for issuing an order for preservation of data, the provisions of section 29 as well as sections 99 to 101 of the Code of Criminal Procedure, 1973 may be utilized to achieve the result intended by Articles 16 and 17. Although section 67C of the IT Act uses the term “preserve and retain such information”, this provision is intended primarily for the purpose of data retention and not data preservation.

Another provision which may conceivably be used for issuing preservation orders is Rule 3(7) of the Information Technology (Intermediary Guidelines) Rules, 2011 which requires intermediaries to provide “any such assistance” to Government Agencies who are lawfully authorised for investigative, protective, cyber security activity. However, in the absence of a power of preservation in the main statute (IT Act) it remains to be seen whether such an order would be enforced if challenged in a court of law.

Convention on Cybercrime

Information Technology Act, 2000

Article 18 – Production order

1 Each Party shall adopt such legislative and other measures as may be necessary to empower its competent authorities to order:

a. a person in its territory to submit specified computer data in that person’s possession or control, which is stored in a computer system or a computer-data storage medium; and

b. a service provider offering its services in the territory of the Party to submit subscriber information relating to such services in that service provider’s possession or control.

2 The powers and procedures referred to in this article shall be subject to Articles 14 and 15.

3 For the purpose of this article, the term “subscriber information” means any information contained in the form of computer data or any other form that is held by a service provider, relating to subscribers of its services other than traffic or content data and by which can be established:

a the type of communication service used, the technical provisions taken thereto and the period of service;

b the subscriber’s identity, postal or geographic address, telephone and other access number, billing and payment information, available on the basis of the service agreement or arrangement;

c any other information on the site of the installation of communication equipment, available on the basis of the service agreement or arrangement.

Section 28(2)

(2) The Controller or any officer authorized by him in this behalf shall exercise the like powers which are conferred on Income-tax authorities under Chapter XIII of the Income-Tax Act, 1961 and shall exercise such powers, subject to such limitations laid down under that Act.

Section 58(2)

(2) The Cyber Appellate Tribunal shall have, for the purposes of discharging their functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908, while trying a suit, in respect of the following matters, namely -

(b) requiring the discovery and production of documents or other electronic records;

While the Cyber Appellate Tribunal and the Controller of Certifying Authorities both have the power to call for information under the IT Act, these powers can be exercised only for limited purposes since the jurisdiction of both authorities is limited to the procedural provisions of the IT Act and they do not have the jurisdiction to investigate penal provisions. In practice, the penal provisions of the IT Act are investigated by the regular law enforcement apparatus of India, which use statutory provisions for production orders applicable in the offline world to computer systems as well. It is a very common practice amongst law enforcement authorities to issue orders under the Code of Criminal Procedure, 1973 (section 91) or the relevant provisions of the Income Tax Act, 1961 to compel production of information contained in a computer system. The power to order production of a “document or other thing” under section 91 of the Criminal Procedure Code is wide enough to cover all types of information which may be residing in a computer system and can even include the entire computer system itself.

Convention on Cybercrime

Information Technology Act, 2000

Article 19 – Search and seizure of stored computer data

1 Each Party shall adopt such legislative and other measures as may be necessary to empower its competent authorities to search or similarly access:

a a computer system or part of it and computer data stored therein; and

b a computer-data storage medium in which computer data may be stored in its territory.

2 Each Party shall adopt such legislative and other measures as may be necessary to ensure that where its authorities search or similarly access a specific computer system or part of it, pursuant to paragraph 1.a, and have grounds to believe that the data sought is stored in another computer system or part of it in its territory, and such data is lawfully accessible from or available to the initial system, the authorities shall be able to expeditiously extend the search or similar accessing to the other system.

3 Each Party shall adopt such legislative and other measures as may be necessary to empower its competent authorities to seize or similarly secure computer data accessed according to paragraphs 1 or 2. These measures shall include the power to:

a seize or similarly secure a computer system or part of it or a computer-data storage

medium;

b make and retain a copy of those computer data;

c maintain the integrity of the relevant stored computer data;

d render inaccessible or remove those computer data in the accessed computer system.

4 Each Party shall adopt such legislative and other measures as may be necessary to empower its competent authorities to order any person who has knowledge about the functioning of the computer system or measures applied to protect the computer data therein to provide, as is reasonable, the necessary information, to enable the undertaking of the measures referred to in paragraphs 1 and 2.

5 The powers and procedures referred to in this article shall be subject to Articles 14 and15.

76 Confiscation

Any computer, computer system, floppies, compact disks, tape drives or any other accessories related thereto, in respect of which any provision of this Act, rules, orders or regulations made thereunder has been or is being contravened, shall be liable to confiscation:

Provided that where it is established to the satisfaction of the court adjudicating the confiscation that the person in whose possession, power or control of any such computer, computer system, floppies, compact disks, tape drives or any other accessories relating thereto is found is not responsible for the contravention of the provisions of this Act, rules, orders or regulations made there under, the court may, instead of making an order for confiscation of such computer, computer system, floppies, compact disks, tape drives or any other accessories related thereto, make such other order authorized by this Act against the person contravening of the provisions of this Act, rules, orders or regulations made there under as it may think fit.

While Article 19 provides for the power to search and seize computer systems for the investigation into criminal offences of any type of kind, section 76 of the IT Act is limited only to contraventions of the provisions of the Act, rules, orders or regulations made thereunder. However, this does not mean that Indian law enforcement authorities do not have the power to search and seize a computer system for crimes other than those contained in the IT Act; just as in the case of Article 18, the authorities in India are free to use the provisions contained in the Criminal Procedure Code and other sectoral legislations which allow for seizure of property to seize computer systems when investigating criminal offences.

Convention on Cybercrime

Information Technology Act, 2000

Article 20 – Real-time collection of traffic data

1 Each Party shall adopt such legislative and other measures as may be necessary to empower its competent authorities to:

a collect or record through the application of technical means on the territory of that Party, and

b compel a service provider, within its existing technical capability:

i to collect or record through the application of technical means on the territory of that Party; or

ii to co-operate and assist the competent authorities in the collection or recording of,

traffic data, in real-time, associated with specified communications in its territory transmitted by means of a computer system.

2 Where a Party, due to the established principles of its domestic legal system, cannot adopt the measures referred to in paragraph 1.a, it may instead adopt legislative and other measures as may be necessary to ensure the real-time collection or recording of traffic data associated with specified communications transmitted in its territory, through the application of technical means on that territory.

3 Each Party shall adopt such legislative and other measures as may be necessary to oblige a service provider to keep confidential the fact of the execution of any power provided for in this article and any information relating to it.

4 The powers and procedures referred to in this article shall be subject to Articles 14 and 15.

69B Power to authorize to monitor and collect traffic data or information through any computer resource for Cyber Security

(1) The Central Government may, to enhance Cyber Security and for identification, analysis and prevention of any intrusion or spread of computer contaminant in the country, by notification in the official Gazette, authorize any agency of the Government to monitor and collect traffic data or information generated, transmitted, received or stored in any computer resource.

(2) The Intermediary or any person in-charge of the Computer resource shall when called upon by the agency which has been authorized under sub-section (1), provide technical assistance and extend all facilities to such agency to enable online access or to secure and provide online access to the computer resource generating , transmitting, receiving or storing such traffic data or information.

(3) The procedure and safeguards for monitoring and collecting traffic data or information, shall be such as may be prescribed.

(4) Any intermediary who intentionally or knowingly contravenes the provisions of sub-section (2) shall be punished with an imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation: For the purposes of this section, (i) "Computer Contaminant" shall have the meaning assigned to it in section 43.

(ii) "traffic data" means any data identifying or purporting to identify any person, computer system or computer network or location to or from which the communication is or may be transmitted and includes communications origin, destination, route, time, date, size, duration or type of underlying service or any other information.

Section 69B in the IT Act enables the government to authorise the monitoring and collection of traffic data through any computer system. Under the Convention, orders for collection and recording of traffic data can be given for the purposes mentioned in Articles 14 and 15. On the other hand, as per the Information Technology (Procedure and safeguard for Monitoring and Collecting Traffic Data or Information) Rules, 2009, an order for monitoring may be issued for any of the following purposes relating to cyber security:

(a) forecasting of imminent cyber incidents;

(b) monitoring network application with traffic data or information on computer resource;

(d) tracking cyber security breaches or cyber security incidents;

(e) tracking computer resource breaching cyber security or spreading virus or computer contaminants;

(f) identifying or tracking of any person who has breached, or is suspected of having breached or being likely to breach 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 resources;

(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.

As can be seen from the above, the reasons for which an order for monitoring traffic data can be issued are extremely wide, this is in stark contrast to the reasons for which an order for interception of content data may be issued under section 69. The Rules also provide that the intermediary shall not disclose the existence of a monitoring order to any third party and shall take all steps necessary to ensure extreme secrecy in the matter of monitoring of traffic data.

Convention on Cybercrime

Information Technology Act, 2000

Article 21 – Interception of content data

1 Each Party shall adopt such legislative and other measures as may be necessary, in relation to a range of serious offences to be determined by domestic law, to empower its competent authorities to:

a collect or record through the application of technical means on the territory of that Party, and

b compel a service provider, within its existing technical capability:

i to collect or record through the application of technical means on the territory of that Party, or

ii to co-operate and assist the competent authorities in the collection or recording of,

content data, in real-time, of specified communications in its territory transmitted by means of a computer system.

2 Where a Party, due to the established principles of its domestic legal system, cannot adopt the measures referred to in paragraph 1.a, it may instead adopt legislative and other measures as may be necessary to ensure the real-time collection or recording of content data on specified communications in its territory through the application of technical means on that territory.

4 The powers and procedures referred to in this article shall be subject to Articles 14 and 15.

69 Powers to issue directions for interception or monitoring or decryption of any information through any computer resource

(1) Where the central Government or a State Government or any of its officer specially authorized by the Central Government or the State Government, as the case may be, in this behalf may, if is satisfied that it is necessary or expedient to do in the interest of the sovereignty or integrity of India, defense 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 transmitted received or stored through any computer resource.

(2) The Procedure and safeguards subject to which such interception or monitoring or decryption may be carried out, shall be such as may be prescribed

(3) The subscriber or intermediary or any person in charge of the computer resource shall, when called upon by any agency which has been directed under sub section (1), extend all facilities and technical assistance to -

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

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

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

There has been a lot of academic research and debate around the exercise of powers under section 69 of the IT Act, but the current piece is not the place for a standalone critique of section 69.[11] The analysis here is limited to a comparison of the provisions of Article 20 vis-à-vis section 69 of the IT Act.

In that background, it needs to be pointed out that two important issues mentioned in Article 20 of the Convention are not specifically mentioned in section 69B, viz. (i) that the order should be only for specific computer data, and (ii) that the intermediary should keep such an order confidential; these requirements are covered by Rules 9 and 20 of the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009, respectively.

Convention on Cybercrime

Information Technology Act, 2000

Article 22 – Jurisdiction

1 Each Party shall adopt such legislative and other measures as may be necessary to establish jurisdiction over any offence established in accordance with Articles 2 through 11 of this Convention, when the offence is committed:

a in its territory; or

b on board a ship flying the flag of that Party; or

c on board an aircraft registered under the laws of that Party; or

d by one of its nationals, if the offence is punishable under criminal law where it was committed or if the offence is committed outside the territorial jurisdiction of any State.

2 Each Party may reserve the right not to apply or to apply only in specific cases or conditions the jurisdiction rules laid down in paragraphs 1.b through 1.d of this article or any part thereof.

3 Each Party shall adopt such measures as may be necessary to establish jurisdiction over the offences referred to in Article 24, paragraph 1, of this Convention, in cases where an alleged offender is present in its territory and it does not extradite him or her to another Party, solely on the basis of his or her nationality, after a request for extradition.

4 This Convention does not exclude any criminal jurisdiction exercised by a Party in accordance with its domestic law.

5 When more than one Party claims jurisdiction over an alleged offence established in accordance with this Convention, the Parties involved shall, where appropriate, consult with a view to determining the most appropriate jurisdiction for prosecution.

1. Short Title, Extent, Commencement and Application

(2) It shall extend to the whole of India and, save as otherwise provided in this Act, it applies also to any offence or contravention hereunder committed outside India by any person.

75 Act to apply for offence or contraventions committed outside India

(1) Subject to the provisions of sub-section (2), the provisions of this Act shall apply also to any offence or contravention committed outside India by any person irrespective of his nationality.

(2) For the purposes of sub-section (1), this Act shall apply to an offence or contravention committed outside India by any person if the act or conduct constituting the offence or contravention involves a computer, computer system or computer network located in India.

The Convention provides for extra territorial jurisdiction only for crimes committed outside the State by nationals of that State. However, the IT Act applies even to offences under the Act committed by foreign nationals outside India, as long as the act involves a computer system or computer network located in India.

Unlike para 3 of Article 22 of the Convention, the IT Act does not touch upon the issue of extradition. Cases involving extradition would therefore be dealt with by the general law of the land in respect of extradition requests contained in the Extradition Act, 1962. The Convention requires that in cases where the state refuses to extradite an alleged offender, it should establish jurisdiction over the offences referred to in Article 21(1) so that it can proceed against that offender itself. In this regard, it must be pointed out that Section 34A of the Extradition Act, 1962 provides that “Where the Central Government is of the opinion that a fugitive criminal cannot be surrendered or returned pursuant to a request for extradition from a foreign State, it may, as it thinks fit, take steps to prosecute such fugitive criminal in India.” Thus the Extradition Act gives the Indian government the power to prosecute an individual in the event that such individual cannot be extradited.

International Cooperation

Chapter III of the Convention deals specifically with international cooperation between the signatory parties. Such co-operation is to be carried out both "in accordance with the provisions of this Chapter" and "through application of relevant international agreements on international cooperation in criminal matters, arrangements agreed to on the basis of uniform or reciprocal legislation, and domestic laws." The latter clause establishes the general principle that the provisions of Chapter III do not supersede the provisions of international agreements on mutual legal assistance and extradition or the relevant provisions of domestic law pertaining to international co-operation.^{^[12]} Although the Convention grants primacy to mutual treaties and agreements between member States, in certain specific circumstances it also provides for an alternative if such treaties do not exist between the member states (Article 27 and 28). The Convention also provides for international cooperation on certain issues which may not have been specifically provided for in mutual assistance treaties entered into between the parties and need to be spelt out due to the unique challenges posed by cyber crimes, such as expedited preservation of stored computer data (Article 29) and expedited disclosure of preserved traffic data (Article 30). Contentious issues such as access to stored computer data, real time collection of traffic data and interception of content data have been specifically left by the Convention to be dealt with as per existing international instruments or arrangements between the parties.

Conclusion

The broad language and wide terminology used IT Act seems to cover a number of the cyber crimes mentioned in the Budapest Convention, even though India has not signed and ratified the same. Penal provisions such as illegal access (Article 2), data interference (Article 4), system interference (Article 5), offence related to child pornography (Article 9), attempt and aiding or abetting (Article 11), corporate liability (Article 12) are substantially covered and reflected in the IT Act in a manner very similar to the requirements of the Convention. Similarly procedural provisions such as search and seizure of stored computer data (Article 19), real-time collection of traffic data (Article 20), interception of content data (Article 21) and Jurisdiction (Article 22) are also substantially reflected in the IT Act.

However certain penal provisions mentioned in the Convention such as computer related forgery (Article 7), computer related fraud (Article 8) are not provided for specifically in the IT Act but such offences are covered when provisions of the Indian Penal Code, 1860 are read in conjugation with provisions of the IT Act. Similarly procedural provisions such as expedited preservation of stored computer data (Article 16) and production order (Article 18) are not specifically provided for in the IT Act but are covered under Indian law through the provisions of the Code of Criminal Procedure, 1973.

Apart from the above two categories there are certain provisions such as misuse of devices (Article 6) and Illegal interception (Article 3) which may not be specifically covered at all under Indian law, but may conceivably be said to be covered through an expansive reading of provisions of the Indian Penal Code and the IT Act. It may therefore be said that even though India has not signed or ratified the Budapest Convention, the legal regime in India is substantially in compliance with the provisions and requirements contained therein.

Thus, the Convention on Cybercrime is perhaps the most important international multi state instruments that may be used to combat cybercrime, not merely because the provisions thereunder may be used as a model to bolster national/local laws by any State, be it a signatory or not (as in the case of India) but also because of the mechanism it lays down for international cooperation in the field of cyber terrorism. In an increasingly interconnected world where more and more information of individuals is finding its way to the cloud or other networked infrastructure the international community is making great efforts to generate norms for increased international cooperation to combat cybercrime and cyber terrorism. While the Convention is one such multilateral effort, States are also proposing to use bilateral treaties to enable them to better fight cybercrime, the United States CLOUD Act, being one such effort. In the backdrop of these novel efforts the role to be played by older instruments such as the Convention on Cybercrime as well as by important States such as India is extremely crucial.

[1] Explanatory Report to the Convention on Cybercrime, Para 304, https://rm.coe.int/16800cce5b.

[2] The analysis here has been limited to only Chapter I and Chapter II of the Convention, as it is only adherence to these two chapters that is required under the CLOUD Act.

[3] The only possible enforcement that may be done with regard to the Convention on Cybercrime is that the Council of Europe may put pressure on the signatory State to amend its local laws (if it is refusing to do so) otherwise it would be in violation of its obligations as a member of the European Union.

[4] Alexander Seger, “India and the Budapest Convention: Why Not?”, https://www.orfonline.org/expert-speak/india-and-the-budapest-convention-why-not/

[5] Explanatory Report to the Convention on Cybercrime, Para 50, https://rm.coe.int/16800cce5b.

[6] India is a party to the Berne Convention on Literary and Artistic Works, the Agreement on Trade Related Intellectual Property Rights and the Rome Convention. India has also recently (July 4, 2018) announced that it will accede to the WIPO Copyright Treaty as well as the WIPO Performances and Phonographs Treaty.

[7] The test under the Convention is that the relevant person would be the one who has a leading position within the company, based on:

a power of representation of the legal person;
an authority to take decisions on behalf of the legal person;
an authority to exercise control within the legal person.

[8]Vipul Kharbanda and Elonnai Hickock, “MLATs and the proposed Amendments to the US Electronic Communications Privacy Act”, https://cis-india.org/internet-governance/blog/mlats-and-the-proposed-amendments-to-the-us-electronic-communications-privacy-act

[9] The term “human rights” has been defined in the Act as “rights relating to life, liberty, equality and dignity of the individual guaranteed by the Constitution or embodied in the International Covenants and enforceable by courts in India”.

[10] Explanatory Report to the Convention on Cybercrime, Para 151, https://rm.coe.int/16800cce5b. .

[11] A similar power of interception is available under section 5 of the Telegraph Act, 1885, but that extends only to interception of telegraphic communication and does not extend to communications exchanged through computer networks.

[12] Explanatory Report to the Convention on Cybercrime, Para 244, https://rm.coe.int/16800cce5b.

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

Cyberspace and External Affairs:A Memorandum for India Summary

Arindrajit Basu and Elonnai Hickok — 2018-12-01T04:10:51Z

This memorandum seeks to summarise the state of the global debate in cyberspace; outline how India can craft it’s global strategic vision and finally, provides a set of recommendations for the MEA as they craft their cyber diplomacy strategy.

It limits itself to advocating certain procedural steps that the Ministry of External Affairs should take towards propelling India forward as a leading voice in the global cyber norms space and explains why occupying this leadership position should be a vital foreign policy priority. It does not delve into content-based recommendations at this stage. Further, this memorandum is not meant to serve as exhaustive academic research on the subject but builds on previous research by the Centre for Internet & Society in this area to highlight key policy windows that can be driven by India.

This memorandum provides a background to global norms formation focussing on key global developments over the past month; traces the opportunities s for India to play a lead role in the global norms formulation debate and then charts out process related recommendations on next steps towards India taking this forward.

Click here to read more

For more details visit https://cis-india.org/internet-governance/blog/arindrajit-basu-and-elonnai-hickok-november-30-2018-cyberspace-and-external-affairs

A Critical Look at the Visual Representation of Cybersecurity

Paromita Bathija, Padmini Ray Murray, and Saumyaa Naidu — 2019-08-21T08:00:11Z

The Centre for Internet and Society and design collective Design Beku came together on the 15th of November for a workshop on Illustrations and Visual Representations of Cybersecurity. Images in the public sphere such as visuals in the media, Wikipedia commons, and stock images - play a vital role in the public’s perception of cybercrime and cybersecurity.

Edited by Karan Saini / Illustrations by - Paul Anthony George, and Roshan Shakeel

Download the file here

The existing imagery comprises of largely stereotypical images of silhouettes of men in hoodies, binary codes, locks, shields; all in dark tones of blue and green. The workshop aimed at identifying the concerns with these existing images and ideating on creating visuals that capture the nuanced concepts within cybersecurity as well as to contextualise them for the Global South. It began with a discussion on the various concepts within cybersecurity including disinformation, surveillance in the name of security, security researchers, regulation of big technology companies, gender and cybersecurity, etc. This was followed by a mapping of different visual elements in the existing cybersecurity imagery to infer the biases in them. Further, an ideation session was conducted to create alternate visualisations that counter these biases. A detailed report of the workshop can be read here.

The participants began by discussing the concerning impacts of present visualisations – there is a lack of representation and context of the global south. Misrepresentation of cybersecurity leads people to be susceptible to disinformation, treats cybercrime as an abstract concept that does not have a direct impact, and oversimplifies the problem and its solutions. The ecosystem in which this imagery exists also presented a larger issue. A majority of the images are created as clickbait alongside media articles. Media houses thus benefit from the oversimplification and mystification of cybersecurity in such images.

Through the mapping of existing images present online, several concerns were identified. The vague elements and unclear representation add to the mystification of cybersecurity as a concept. In present depictions, the use of technological devices and objects, leads to the lack of a human element, distancing the threat from any real impact to people using these devices. The metaphor of a physical threat is often used to depict cybersecurity using elements such as a lock and key. Recurring use of these elements gives a false idea of what is being secured or breached and how. Representations rely on tropes regarding the identity of hackers, and fail to capture the vulnerability of the system. The imagery gives the impression that systems which are breached are immensely secure to begin with and are compromised only as a result of sophisticated attacks carried out by malicious actors. The identity of hackers is commonly associated with cyber attacks and breaches, and the existing imagery reinforces this. Visuals showing a masked man or a silhouette of a man in dark background are the usual markers of a malicious hacker in conventional cybersecurity imagery. While there is a lack of representation of women in stock cybersecurity images, another trope found was that of a cheerful woman coder. There were also images of faceless women with laptops^{^[1]}. The reductive nature of these images point to deeper concerns around gender representation in cybersecurity.

The participants examined what the implications of such visual representation would be, and why there is a need to change the imagery. How can visual depictions be more representative? Can they avoid subscribing to a homogenised idea of an Indian context – specific without being reductive? Can better depiction broaden understanding of cybercrime and emphasize the proximity of those threats? With technology, concepts are often understood through metaphors – how data is explained impacts how people perceive it. Visual imagery can play a critical role in demystifying concepts when done well; illustrations can change the discourse. They must begin to incorporate intersecting aspects of gender, privacy, susceptibility of vulnerable populations, generational and cultural gaps, as well as manifestations of the described crimes to make technological laypersons more aware of the threat.

Potential new imagery would need to address aspects such as disinformation, the importance of privacy and who has a right to it, change representation of hackers, depict the cybersecurity community, explain specific concepts to both – the general user and to the people part of cybersecurity efforts in the country, the implications of cybercrime on vulnerable populations, and more in an attempt to deconstruct and disseminate what cybersecurity looks like today.

The ideation session involved rethinking specific concepts such as disinformation, and ethical hacking to create alternate imagery. For instance, disinformation was visually imagined as a distortion of an already distorted message being perceived by the viewer. In order to bring attention to the impact of devices, a phone was thought of as a central object to which different concepts of cybersecurity can be connected.

‘Fake News Cascade’ by Paul Anthony George

‘Fake News’ by Paul Anthony George

‘Disinformation/ Fake News’ by Roshan Shakeel; The sketch is about questioning the validity of what we see online, and that every message we see is constructed in some form or the other by someone else.

‘Disinformation/ Fake News’ by Roshan Shakeel; The sketch visualizes how the source of information ('the original') gets distorted after a certain point.

For ethical hacking, a visualisation depicting a day in the life of an ethical hacker was thought of to normalize hacking and to focus on their contribution in security research.

‘A Day in the Life of an Indian Hacker’ by Paul Anthony George

'Surveillance in the Name of Security' by Roshan Shakeel

Resources on ethical hacking (HackerOne)^[2] and hacker culture (2600.com)^[3] were also consulted as part of the exercise to gather references on the work done by hackers. This allowed a deeper understanding of how the hacker community depicts itself. Check Point Research^[4] and Kerala Police Cyberdome^[5] were also examined for further insight into cybersecurity. With regard to gender representation, sources that use visual techniques to communicate concerns and advocacy campaigns were also referred to. The Gendering Surveillance^[6] initiative by the Internet Democracy project^[7], which looks at how surveillance harms and restricts women, also offered insights on the use of illustrations supporting the case studies. Another reference was the "Visualising Women's Rights in the Arab World"^[8] project by the Tactical Technology Collective^[9]. The project aims to “strengthen the use of visual techniques by women's rights advocates in the Arab world, and to build a network of women with these skills”.^[10]

More visual explainers and animations^{^[11]} from the Tactical Technology Collective were noted for their broader engagement with digital security and privacy. A video by the Internet Democracy Project that explains the Internet through rangoli^{^[12]}, was observed specifically for setting the concept in Indian context through the use of aesthetics.

The workshop concluded with a discussion of potential visual iterations – imagery of cybersecurity that is not technology-oriented but focussed on the behavioural implications of access to such technology, illustrated public service announcements enhancing the profile of cybersecurity researchers or the everyday hacker. The impact of the discussion itself can indicate the relevance of such an effort. Artists and designers can be encouraged to create a body of imagery that shifts discourse and perception, to begin visualising for advocacy, demystify and stop the abstraction of cybercrime that can lead to a false sense of security, incorporate unique aspects of the debate within the Indian context, and generate new dialogue and understanding of cybersecurity. A potential step forward from this workshop would be to engage with the design community at large along with the domain experts to create more effective imagery for cybersecurity.

^{^[1]} https://www.hackerone.com/

^{^[2]} https://2600.com/

^{^[3]} https://research.checkpoint.com/about-us/

^{^[4]} http://www.cyberdome.kerala.gov.in/

^{^[5]} https://genderingsurveillance.internetdemocracy.in/

^{^[6]} https://internetdemocracy.in/

^{^[7]} https://visualrights.tacticaltech.org/index.html

^{^[8]} https://tacticaltech.org/

^{^[9]} https://visualrights.tacticaltech.org/content/about-website.html

^{^[10]} https://tacticaltech.org/projects/survival-in-the-digital-age-ono-robot-2012/

^{^[11]} https://internetdemocracy.in/2018/08/dots-and-connections/

^{^[12]} https://www.independent.co.uk/life-style/gadgets-and-tech/features/women-in-tech-its-time-to-drop-the-old-stereotypes-7608794.html

For more details visit https://cis-india.org/internet-governance/blog/paromita-bathija-padmini-ray-murray-and-saumyaa-naidu

European E-Evidence Proposal and Indian Law

vipul — 2018-12-23T16:45:02Z

In April of 2018, the European Union issued the proposal for a new regime dealing with cross border sharing of data and information by issuing two draft instruments, an E-evidence Regulation (“Regulation”) and an E-evidence Directive (“Directive”), (together the “E-evidence Proposal”). The Regulation is a direction to states to put in place the proper legislative and regulatory machinery for the implementation of this regime while the Directive requires the states to enact laws governing service providers so that they would comply with the proposed regime.

The main feature of the E-evidence Proposal is twofold: (i) establishment of a legal regime whereunder competent authorities can issue European Production Orders (EPOs) and European Preservation Orders (EPROs) to entities in any other EU member country (together the “Data Orders”); and (ii) an obligation on service providers offering services in any of the EU member countries to designate legal representatives who will be responsible for receiving the Data Orders, irrespective of whether such entity has an actual physical establishment in any EU member country.

In this article we will briefly discuss the framework that has been proposed under the two instruments and then discuss how service providers based in India whose services are also available in Europe would be affected by these proposals. The authors would like to make it clear that this article is not intended to be an analysis of the E-evidence Proposal and therefore shall not attempt to bring out the shortcomings of the proposed European regime, except insofar as such shortcomings may affect the service providers located in India being discussed in the second part of the article.

Part I - E-evidence Directive and Regulation

The E-evidence Proposal introduces the concept of binding EPOs and EPROs. Both Data Orders need to be issued or validated by a judicial authority in the issuing EU member country. A Data Order can be issued to seek preservation or production of data that is stored by a service provider located in another jurisdiction and that is necessary as evidence in criminal investigations or a criminal proceeding. Such Data Orders may only be issued if a similar measure is available for the same criminal offence in a comparable domestic situation in the issuing country. Both Data Orders can be served on entities offering services such as electronic communication services, social networks, online marketplaces, other hosting service providers and providers of internet infrastructure such as IP address and domain name registries. Thus companies such as Big Rock (domain name registry), Ferns n Petals (online marketplace providing services in Europe), Hike (social networking and chatting), etc. or any website which has a subscription based model and allows access to subscribers in Europe would potentially be covered by the E-evidence Proposal. The EPRO, similarly to the EPO, is addressed to the legal representative outside of the issuing country’s jurisdiction to preserve the data in view of a subsequent request to produce such data, which request may be issued through MLA channels in case of third countries or via a European Investigation Order (EIO) between EU member countries. Unlike surveillance measures or data retention obligations set out by law, which are not provided for by this proposal, the EPRO is an order issued or validated by a judicial authority in a concrete criminal proceeding after an individual evaluation of the proportionality and necessity in every single case.^{^[1]} Like the EPO, it refers to the specific known or unknown perpetrators of a criminal offence that has already taken place. The EPRO only allows preserving data that is already stored at the time of receipt of the order, not the access to data at a future point in time after the receipt of the EPRO.

While EPOs to produce subscriber data^{^[2]} and access data^{^[3]} can be issued for any criminal offence an EPO for content data^{^[4]} and transactional data^{^[5]} may only be issued by a judge, a court or an investigating judge competent in the case. In case the EPO is issued by any other authority (which is competent to issue such an order in the issuing country), such an EPO has to be validated by a judge, a court or an investigating judge. In case of an EPO for subscriber data and access data, the EPO may also be validated by a prosecutor in the issuing country.

To reduce obstacles to the enforcement of the EPOs, the Directive makes it mandatory for service providers to designate a legal representative in the European Union to receive, comply with and enforce Data Orders. The obligation of designating a legal representative for all service providers that are operating in the European Union would ensure that there is always a clear addressee of orders aiming at gathering evidence in criminal proceedings. This would in turn make it easier for service providers to comply with those orders, as the legal representative would be responsible for receiving, complying with and enforcing those orders on behalf of the service provider.

Grounds on which EPOs can be issued

The grounds on which Data Orders may be issued are contained in Articles 5 and 6 of the Regulation which makes it very clear that a Data Order may only be issued in a case if it is necessary and proportionate for the purposes of a criminal proceeding. The Regulation further specifies that an EPO may only be issued by a member country if a similar domestic order could be issued by the issuing state in a comparable situation. By using this device of linking the grounds to domestic law, the Regulation tries to skirt around the thorny issue of when and on what basis an EPO may be issued. The Regulation also assigns greater weight (in terms of privacy) to transactional and content data as opposed to subscriber and access data and subjects the production and preservation of the former to stricter requirements. Therefore while Data Orders for access and subscriber data may be issued for any criminal offence, orders for transactional and content data can only be issued in case of criminal offences providing for a maximum punishment of atleast 3 years and above. In addition to that EPOs for producing transactional or content data can also be issued for offences specifically listed in Article 5(4) of the Regulation. These offences have been specifically provided for since evidence for such cases would typically be available mostly only in electronic form. This is the justification for the application of the Regulation also in cases where the maximum custodial sentence is less than three years, otherwise it would become extremely difficult to secure convictions in those offences.^{^[6]}

The Regulation also requires the issuing authority to take into account potential immunities and privileges under the law of the member country in which the service provider is being served the EPO, as well as any impact the EPO may have on fundamental interests of that member country such as national security and defence. The aim of this provision is to ensure that such immunities and privileges which protect the data sought are respected, in particular where they provide for a higher protection than the law of the issuing member country. In such situations the issuing authority “has to seek clarification before issuing the European Production Order, including by consulting the competent authorities of the Member State concerned, either directly or via Eurojust or the European Judicial Network.”

Grounds to Challenge EPOs

Service Providers have been given the option to object to Data Orders on certain limited grounds specified in the Regulation such as, if it was not issued by a proper issuing authority, if the provider cannot comply because of a de facto impossibility or force majeure, if the data requested is not stored with the service provider or pertains to a person who is not the customer of the service provider.^{^[7]} In all such cases the service provider has to inform the issuing authority of the reasons for the inability to provide the information in the specified form. Further, in the event that the service provider refuses to provide the information on the grounds that it is apparent that the EPO “manifestly violates” the Charter of Fundamental Rights of the European Union or is “manifestly abusive”, the service provider shall send the information in specified Form to the competent authority in the member state in which the Order has been received. The competent authority shall then seek clarification from the issuing authority through Eurojust or via the European Judicial Network.^{^[8]}

If the issuing authority is not satisfied by the reasons given and the service provider still refuses to provide the information requested, the issuing authority may transfer the EPO Certificate along with the reasons given by the service provider for non compliance, to the enforcing authority in the addressee country. The enforcing authority shall then proceed to enforce the Order, unless it considers that the data concerned is protected by an immunity or privilege under its national law or its disclosure may impact its fundamental interests such as national security and defence; or the data cannot be provided due to one of the following reasons:

(a) the European Production Order has not been issued or validated by an issuing authority as provided for in Article 4;

(b) the European Production Order has not been issued for an offence provided for by Article 5(4);

(c) the addressee could not comply with the EPOC because of de facto impossibility or force majeure, or because the EPOC contains manifest errors;

(d) the European Production Order does not concern data stored by or on behalf of the service provider at the time of receipt of EPOC;

(e) the service is not covered by this Regulation;

(f) based on the sole information contained in the EPOC, it is apparent that it manifestly violates the Charter or that it is manifestly abusive.

In addition to the above mechanism the service provider may refuse to comply with an EPO on the ground that disclosure would force it to violate a third-country law that either protects “the fundamental rights of the individuals concerned” or “the fundamental interests of the third country related to national security or defence.” Where a provider raises such a challenge, issuing authorities can request a review of the order by a court in the member country. If the court concludes that a conflict as claimed by the service provider exists, the court shall notify authorities in the third-party country and if that third-party country objects to execution of the EPO, the court must set it aside.^{^[9]}

A service provider may also refuse to comply with an order because it would force the service provider to violate a third-country law that protects interests other than fundamental rights or national security and defense. In such cases, the Regulation provides that the same procedure be followed as in case of law protecting fundamental rights or national security and defense, except that in this case the court, rather than notifying the foreign authorities, shall itself conduct a detailed analysis of the facts and circumstances to decide whether to enforce the order.^{^[10]}

Service Provider “Offering Services in the Union”

As is clear from the discussion above, the proposed regime puts an obligation on service providers offering services in the Union to designate a legal representative in the European Union, whether the service provider is physically located in the European Union or not. This appears to be a fairly onerous obligation for small technology companies which may involve a significant cost to appoint and maintain a legal representative in the European Union, especially if the service provider is not located in the EU. Therefore the question arises as to which service providers would be covered by this obligation and the answer to that question lies in the definitions of the terms “service provider” and “offering services in the Union”.

The term service provider has been defined in Article 2(2) of the Directive as follows:

“‘service provider’ means any natural or legal person that provides one or more of the following categories of services:

(a) electronic communications service as defined in Article 2(4) of [Directive establishing the European Electronic Communications Code];^{^[11]}

(b) information society services as defined in point (b) of Article 1(1) of Directive (EU) 2015/1535 of the European Parliament and of the Council^{^[12]} for which the storage of data is a defining component of the service provided to the user, including social networks, online marketplaces facilitating transactions between their users, and other hosting service providers;

(c) internet domain name and IP numbering services such as IP address providers, domain name registries, domain name registrars and related privacy and proxy services;”

Thus broadly speaking the service providers covered by the Regulation would include providers of electronic communication services, social networks, online marketplaces, other hosting service providers and providers of internet infrastructure such as IP address and domain name registries, or on their legal representatives where they exist. An important qualification that has been added in the definition is that it covers only those services where “storage of data is a defining component of the service”. Therefore, services for which the storage of data is not a defining component are not covered by the proposal. The Regulation also recognizes that most services delivered by providers involve some kind of storage of data, especially where they are delivered online at a distance; and therefore it specifically provides that services for which the storage of data is not a main characteristic and is thus only of an ancillary nature would not be covered, including legal, architectural, engineering and accounting services provided online at a distance.^{^[13]}

This does not mean that all such service providers offering the type of services in which data storage is the main characteristic, in the EU, would be covered by the Directive. The term “offering services in the Union” has been defined in Article 2(3) of the Directive as follows:

“‘offering services in the Union’ means:

(a) enabling legal or natural persons in one or more Member State(s) to use the services listed under (3) above; and

(b) having a substantial connection to the Member State(s) referred to in point (a);”

Clause (b) of the definition is the main qualifying factor which would ensure that only those entities whose offering of services has a “substantial connection” which the member countries of the EU would be covered by the Directive. The Regulation recognizes that mere accessibility of the service (which could also be achieved through mere accessibility of the service provider’s or an intermediary’s website in the EU) should not be a sufficient condition for the application of such an onerous condition and therefore the concept of a “substantial connection” was inserted to ascertain a sufficient relationship between the provider and the territory where it is offering its services. In the absence of a permanent establishment in an EU member country, such a “substantial connection” may be said to exist if there are a significant number of users in one or more EU member countries, or the “targeting of activities” towards one or more EU member countries. The “targeting of activities” may be determined based on various circumstances, such as the use of a language or a currency generally used in an EU member country, the availability of an app in the relevant national app store, providing local advertising or advertising in the language used in an EU member country, making use of any information originating from persons in EU member countries in the course of its activities, or from the handling of customer relations such as by providing customer service in the language generally used in EU member countries. A substantial connection can also be assumed where a service provider directs its activities towards one or more EU member countries as set out in Article 17(1)(c) of Regulation 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.^{^[14]}

Part II - EU Directive and Service Providers located in India

In this part of the article we will discuss how companies based in India and running websites providing any “service” such as social networking, subscription based video streaming, etc. such as Hike or AltBalaji, Hotstar, etc. and how such companies would be affected by the E-evidence Proposal. At first glance a website providing a video streaming service may not appear to be covered by the E-evidence Proposal since one would assume that there may not be any storage of data. But if it is a service which allows users to open personal accounts (with personal and possibly financial details such as in the case of TVF, AltBalaji or Hotstar) and uses their online behaviour to push relevant material and advertisements to their accounts, whether that would make the storage of data a defining component of the website’s services as contemplated under the proposal is a question that may not be easy to answer.

Even if it is assumed that the services of an Indian company can be classified as information society services for which the storage of data is a defining component, that by itself would not be sufficient to make the E-evidence Proposal applicable to it. The services of an Indian company would still need to have a “substantial connection” with an EU member country. As discussed above, this substantial connection may be said to exist based on the existence of (i) a significant number of users in one or more EU member countries, or (ii) the “targeting of activities” towards one or more EU member countries. The determination of whether a service provider is targeting its services towards an EU member country is to be made based on a number of factors listed above and is a subjective determination with certain guiding factors.

There does not seem to be clarity however on what would constitute a significant number of users and whether this determination is to be based upon the total number of users in an EU member country as a proportion of the population of the country or is it to be considered as a proportion of the total number of customers the service provider has worldwide. To explain this further let us assume that an Indian company such as Hotstar has a total user base of 100 million customers.^{^[15]} If there is a situation where 10 million of these 100 million subscribers are located in countries other than India, out of which there are about 40 thousand customers in France and another 40 thousand in Malta; then it would lead to some interesting analysis. Now 40 thousand customers in a customer base of 100 million is 0.04% of the total customer base of the service provider which generally speaking would not constitute a “significant number”. However if we reckon the 40 thousand customers from the point of view of the total population of the country of Malta, which is approximately 4.75 Lakh,^{^[16]} it would mean approx. 8.4% of the total population of Malta. It is unlikely that any service affecting almost a tenth of the population of the entire country can be labeled as not having a significant number of users in Malta. If the same math is done on the population of a country such as France, which has a population of approx. 67.3 million,^{^[17]} then the figure would be 0.05% of the total population; would that constitute a significant number as per the E-evidence Proposal.

The issues discussed above are very important for any service provider, specially a small or medium sized company since the determination of whether the E-evidence Proposal applies to them or not, apart from any potential legal implications, imposes a direct economic cost for designating a legal representative in an EU member country. Keeping in mind this economic burden and how it might affect the budget of smaller companies, the Explanatory Memorandum to the Regulation clarifies that this legal representative could be a third party, which could be shared between several service providers, and further the legal representative may accumulate different functions (e.g. the General Data Protection Regulation or e-Privacy representatives in addition to the legal representative provided for by the E-evidence Directive).^{^[18]}

In case all the above issues are determined to be in favour of the E-evidence Directive being applicable to an Indian company and the company designates a legal representative in an EU member country, then it remains to be seen how Indian laws relating to data protection would interact with the obligations of the Indian company under the E-evidence Directive. As per Rule 6 of the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 (“SPDI Rules”) service providers are not allowed to disclose sensitive personal data or information except with the prior permission of the except disclosure to mandated government agencies. The Rule provides that “the information shall be shared, without obtaining prior consent from provider of information, with Government agencies mandated under the law to obtain information including sensitive personal data or information for the purpose of verification of identity, or for prevention, detection, investigation including cyber incidents, prosecution, and punishment of offences….”. Although the term “government agency mandated under law” has not been defined in the SPDI Rules, the term “law” has been defined in the Information Technology Act, 2000 (“IT Act”) as under:

“’law’ includes any Act of Parliament or of a State Legislature, Ordinances promulgated by the President or a Governor, as the case may be. Regulations made by the President under article 240, Bills enacted as President's Act under sub-clause (a) of clause (1) of article 357 of the Constitution and includes rules, regulations, byelaws and orders issued or made thereunder;”^{^[19]}

Since the SPDI Rules are issued under the IT Act, therefore the term “law” referred as used in the would have to be read as defined in the IT Act (unless court holds to the contrary). This would mean that Rule 6 of the SPDI Rules only recognises government agencies mandated under Indian law and therefore information cannot be disclosed to agencies not recognised by Indian law. In such a scenario an Indian company may not have any option except to raise an objection and challenge an EPO issued to it on the grounds provided in Article 16 of the Regulation, which process itself could mean a significant expenditure on the part of such a company.

Conclusion

The framework sought to be established by the European Union through the E-evidence Proposal seeks to establish a regime different from those favoured by countries such as the United States which favours Mutual Agreements with (presumably) key nations or the push for data localisation being favoured by countries such as India, to streamline the process of access to digital data. Since the regime put forth by the EU is still only at the proposal stage, there may yet be changes which could clarify the regime significantly. However, as things stand Indian companies may be affected by the E-evidence Proposal in the following ways:

Companies offering services outside India may inadvertently trigger obligations under the E-evidence Proposal if their services have a substantial connection with any of the member states of the European Union;
Indian companies offering services overseas will have to make an internal determination as to whether the E-evidence Proposal applies to them or not;
In case of Indian companies which come under the E-evidence Proposal, they would be obligated to designate a legal representative in an EU member state for receiving and executing Data Orders as per the E-evidence Proposal.
If a legal representative is designated by the Indian company they may have to incur significant costs on maintaining a legal representative especially in a situation where they have to object to the implementation of an EPO. The company would also have to coordinate with the legal representative to adequately put forth their (Indian law related) concerns before the competent authority so that they are not forced to fall foul of their legal obligations in either jurisdiction. It is also unclear the extent to which appointed legal representatives from Indian companies could challenge or push back against requests received.

Disclaimer: The author of this Article is an Indian trained lawyer and not an expert on European law. The author would like to apologise for any incorrect analysis of European law that may have crept into this article despite best efforts.

^{^[1]} Explanatory Memorandum to the Proposal for Regulation of the European Parliament and of the Council on European Production and Preservation Orders for Electronic Evidence in Criminal Matters, Pg. 4, available at https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52018PC0225&from=EN.

^{^[2]} Subscriber data means data which is used to identify the user and has been defined in Article 2 (7) as follows:

“‘subscriber data’ means any data pertaining to:

(a) the identity of a subscriber or customer such as the provided name, date of birth, postal or geographic address, billing and payment data, telephone, or email;

(b) the type of service and its duration including technical data and data identifying related technical measures or interfaces used by or provided to the subscriber or customer, and data related to the validation of the use of service, excluding passwords or other authentication means used in lieu of a password that are provided by a user, or created at the request of a user;”

^{^[3]} The term access data has been defined in Article 2(8) as follows:

“‘access data’ means data related to the commencement and termination of a user access session to a service, which is strictly necessary for the sole purpose of identifying the user of the service, such as the date and time of use, or the log-in to and log-off from the service, together with the IP address allocated by the internet access service provider to the user of a service, data identifying the interface used and the user ID. This includes electronic communications metadata as defined in point (g) of Article 4(3) of Regulation concerning the respect for private life and the protection of personal data in electronic communications;”

^{^[4]} The term content data has been defined in Article 2 (10) as follows:

“‘content data’ means any stored data in a digital format such as text, voice, videos, images, and sound other than subscriber, access or transactional data;”

^{^[5]} The term transactional data has been defined in Article 2(9) as follows:

“‘transactional data’ means data related to the provision of a service offered by a service provider that serves to provide context or additional information about such service and is generated or processed by an information system of the service provider, such as the source and destination of a message or another type of interaction, data on the location of the device, date, time, duration, size, route, format, the protocol used and the type of compression, unless such data constitues access data. This includes electronic communications metadata as defined in point (g) of Article 4(3) of [Regulation concerning the respect for private life and the protection of personal data in electronic communications];”

^{^[6]} Explanatory Memorandum to the Proposal for Regulation of the European Parliament and of the Council on European Production and Preservation Orders for Electronic Evidence in Criminal Matters, Pg. 17, available at https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52018PC0225&from=EN.

^{^[7]} Articles 9(4) and 10(5) of the Regulation.

^{^[8]} Article 10(5) of the Regulation.

^{^[9]} Article 15 of the Regulation.

^{^[10]} Article 16 of the Regulation. Also see https://www.insideprivacy.com/uncategorized/eu-releases-e-evidence-proposal-for-cross-border-data-access/.

^{^[11]} Article 2(4) of the Directive establishing European Electronic Communications Code provides as under:

‘electronic communications service’ means a service normally provided for remuneration via electronic communications networks, which encompasses 'internet access service' as defined in Article 2(2) of Regulation (EU) 2015/2120; and/or 'interpersonal communications service'; and/or services consisting wholly or mainly in the conveyance of signals such as transmission services used for the provision of machine-to-machine services and for broadcasting, but excludes services providing, or exercising editorial control over, content transmitted using electronic communications networks and services;”

^{^[12]} Information Society Services have been defined in the Directive specified as “any Information Society service, that is to say, any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.”

^{^[13]} Proposal for a Directive of the European Parliament and of the Council Laying Down Harmonised Rules on the Appointment of Legal Representatives for the Purpose of Gathering Evidence in Criminal Proceedings, Pg 8, available at https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52018PC0226&from=EN.

^{^[14]} Proposal for a Directive of the European Parliament and of the Council Laying Down Harmonised Rules on the Appointment of Legal Representatives for the Purpose of Gathering Evidence in Criminal Proceedings, Pg 9, available at https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52018PC0226&from=EN.

^{^[15]} Hotstar already has an active customer base of 75 million, as of December, 2017; https://telecom.economictimes.indiatimes.com/news/netflix-restricted-to-premium-subscribers-hotstar-leads-indian-ott-content-market/62351500

^{^[16]} https://en.wikipedia.org/wiki/Malta

^{^[17]} https://en.wikipedia.org/wiki/France

^{^[18]} Proposal for a Directive of the European Parliament and of the Council Laying Down Harmonised Rules on the Appointment of Legal Representatives for the Purpose of Gathering Evidence in Criminal Proceedings, Pg 5, available at https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52018PC0226&from=EN.

^{^[19]} Section 2(y) of the Information Technology Act, 2000.

For more details visit https://cis-india.org/internet-governance/blog/vipul-kharbanda-december-23-2018-european-e-evidence-proposal-and-indian-law

Mapping cybersecurity in India: An infographic

Arindrajit Basu, Karan Saini, Aayush Rathi and Swaraj Barooah — 2018-12-23T16:57:24Z

This infographic maps the key stakeholder, areas of focus and threat vectors that impact cybersecurity policy in India. Broadly, policy-makers should concentrate on establishing a framework where individuals feel secure and trust the growing digital ecosystem. The infographic therefore serves as a ready reference point for the research that we have done and hope to continue through our cybersecurity work at CIS.

Infographic designed by Saumyaa Naidu

For more details visit https://cis-india.org/internet-governance/blog/arindrajit-basu-karan-saini-aayush-rathi-and-swaraj-paul-barooah-december-23-mapping-cyber-security-in-india-infographic

Private-public partnership for cyber security

basu — 2018-12-26T15:02:21Z

Given the decentralised nature of cyberspace, the private sector will have to play a vital role in enforcing rules for security.

The article by Arindrajit Basu was published in Hindu Businessline on December 24, 2018.

On November 11, 2018, as 70 world leaders gathered in Paris to commemorate the countless lives lost in World War I, French President Emmanuel Macron inaugurated the Paris Peace Forum with a fiery speech denouncing nationalism and urging global leaders to pursue peace and stability through multilateral initiatives.

In many ways, it echoed US President Woodrow Wilson’s monumental speech delivered at the US Senate a century ago in which he outlined 14 points on the principles for peace post World War I. As history unkindly reminds us through the catastrophic realities of World War II, Wilson’s principles went on to be sacrificed at the altar of national self-interest and inadequate multilateral enforcement.

President Macron’s first initiative for global peace — the Paris Call for Trust and Security in Cyber Space was unveiled on November 12 — at the UNESCO Internet Governance Forum — also taking place in Paris. The call was endorsed by over 50 states, 200 private sector entities, including Indian business guilds such as FICCI and the Mobile Association of India and over 100 organisations from civil society and academia from all over the globe. The text essentially comprises a set of high-level principles that seeks to prevent the weaponisation of cyberspace and promote existing institutional mechanisms to “limit hacking and destabilising activities” in cyberspace.

Need for private participation

Given the increasing exploitation of the internet for reaping offensive dividends by state and non-state actors alike and the prevailing roadblocks in the multilateral cyber norms formulation process, Macron’s efforts are perhaps of Wilsonian proportions.

A key difference, however, was that Macron’s efforts were devised hand-in-glove with Microsoft — one of the most powerful and influential private sector actors of our time. Microsoft’s involvement is unsurprising given that private entities have become a critical component of the global cybersecurity landscape and governments need to start thinking about how to optimise their participation in this process.

Indeed, one of the defining features of cyberspace is its incompatibility with state-centric ‘command and control’ formulae that lead to the ordering of other global security regimes — such as nuclear non-proliferation. The decentralised nature of cyberspace means that private sector actors play a vital role in implementing the rules designed to secure cyberspace.

Simultaneously, private actors such as Microsoft have recognised the utility of clearly defined ‘rules of the road’ which ensure certainty and stability in cyberspace and ensure its trustworthiness among global customers.

Normative deadlock

There have been multiple gambits to develop universal norms of responsible state behaviour to foster cyber stability. The United Nations-Group of Governmental Experts (UN-GGE) has been constituted five times now and will meet again in January 2019.

While the third and fourth GGEs in 2013 and 2015 respectively made some progress towards agreeing on some baseline principles, the fifth GGE broke down due to opposition from states including Russia, China and Cuba on the application of specific principles of international law to cyberspace.

This was an extension of a long-running ‘Cold War’ like divide among states at the United Nations. The US along with its NATO allies believe in creating voluntary non-binding norms for cybersecurity through the application of international law in its entirety while Russia, China and its allies in the Shanghai Co-operation Organization (SCO) reject the premise that international law applies in its entirety and call for the negotiation of an independent treaty for cyberspace that lays down binding obligations on states.

Critical role

The private sector has begun to play a critical role in breaking this deadlock. Recent history is testament to catalytic roles played by non-state actors in cementing global co-operative regimes.

For example, Dupont — the world’s leading ChloroFluoroCarbon (CFC) producer — played a leading role in the 1970s and 1980s towards the development of The Montreal Protocol on Substances that Deplete the Ozone Layer and gained positive recognition for its efforts.

Another example is the International Committee of the Red Cross (ICRC) — a non-governmental organisation that played a crucial role in the development of the Geneva Conventions and its Additional Protocols, which regulate the conduct of atrocities in warfare by preparing initial drafts of the treaties and circulating them to key government players.

Similarly, in cyberspace, Microsoft’s Digital Geneva Convention which devised a set of rules to protect civilian use of the internet was put forward by Chief Legal Officer, Brad Smith two months before the fifth GGE met in 2017.

Despite the breakdown at the UN-GGE, Microsoft pushed on with the Tech Accords — a public commitment made by (as of today) 69 companies “agreeing to defend all customers everywhere from malicious attacks by cyber-criminal enterprises and nation-states.”

Much like the ICRC, Microsoft leads commendable diplomatic efforts with the Paris Call as they reached out to states, civil society actors and corporations for their endorsement.

Looking Forward

Private sector-led normative efforts towards securing cyberspace are redundant in the absence of three key recommendations. First, is the implementation of best practices at the organisational level through the implementation of robust cyber defense mechanisms, the detection and mitigation of vulnerabilities and breach notifications — both to consumer and the government.

Second, is the development of mechanisms that enables direct co-operation between governments and private actors at the domestic level. In India, a Joint Working Group between the Data Security Council of India (DSCI) and the National Security Council Secretariat (NSCS) was set up in 2012 to explore a Private Public Partnership on cyber-security in India , which has great potential but is yet to report any tangible outcomes.

The third and final point is the recognition that their efforts need to result in a plurality of states coming to the negotiating table. The absence of the US, China and Russia in the Paris Call are eerily reminiscent of the lack of US participation in Woodrow Wilson’s League of Nations, which was one of the reasons for its ultimate failure.

Microsoft needs to keep on calling with Paris but Beijing, Washington and Alibaba need to pick up.

For more details visit https://cis-india.org/internet-governance/blog/arindrajit-basu-hindu-businessline-december-24-2018-private-public-partnership-for-cyber-security

India-China Tech Forum 2018

Admin — 2018-12-26T15:32:20Z

Arindrajit Basu spoke at the India-China Tech Forum 2018 organised by ORF and Peking University at the Ji Xianlin Centre for India-China Studies, Mumbai on December 11 - 12, 2018. The event functioned as a bi-annual dialogue that fosters co-operation in this space between the two countries.

Arindrajit spoke on the panel 'India, China and the future of cyber norms' along with Saravjit Singh,Liu Ke and Weng Wejia. This was a closed door discussion under Chatham House rules. Click here to read the agenda.

For more details visit https://cis-india.org/internet-governance/news/india-china-tech-forum

Is the new ‘interception’ order old wine in a new bottle?

Elonnai Hickok, Vipul Kharbanda, Shweta Mohandas and Pranav M. Bidare — 2018-12-29T16:02:00Z

The government could always authorise intelligence agencies to intercept and monitor communications, but the lack of clarity is problematic.

An opinion piece co-authored by Elonnai Hickok, Vipul Kharbanda, Shweta Mohandas and Pranav M. Bidare was published in Newslaundry.com on December 27, 2018.

On December 20, 2018, through an order issued by the Ministry of Home Affairs (MHA), 10 security agencies—including the Intelligence Bureau, the Central Bureau of Investigation, the Enforcement Directorate and the National Investigation Agency—were listed as the intelligence agencies in India with the power to intercept, monitor and decrypt "any information" generated, transmitted, received, or stored in any computer under Rule 4 of the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009, framed under section 69(1) of the IT Act.

On December 21, the Press Information Bureau published a press release providing clarifications to the previous day’s order. It said the notification served to merely reaffirm the existing powers delegated to the 10 agencies and that no new powers were conferred on them. Additionally, the release also stated that “adequate safeguards” in the IT Act and in the Telegraph Act to regulate these agencies’ powers.

Presumably, these safeguards refer to the Review Committee constituted to review orders of interception and the prior approval needed by the Competent Authority—in this case, the secretary in the Ministry of Home Affairs in the case of the Central government and the secretary in charge of the Home Department in the case of the State government.

As noted in the press release, the government has always had the power to authorise intelligence agencies to submit requests to carry out the interception, decryption, and monitoring of communications, under Rule 4 of the Information Technology (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009, framed under section 69(1) of the IT Act.

When considering the implications of this notification, it is important to look at it in the larger framework of India’s surveillance regime, which is made up of a set of provisions found across multiple laws and operating licenses with differing standards and surveillance capabilities.

- Section 5(2) of the Indian Telegraph Act, 1885 allows the government (or an empowered authority) to intercept or detain transmitted information on the grounds of a public emergency, or in the interest of public safety if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign states or public order or for preventing incitement to the commission of an offence. This is supplemented by Rule 419A of the Indian Telegraph Rules, 1951, which gives further directions for the interception of these messages.

- Condition 42 of the Unified Licence for Access Services, mandates that every telecom service provider must facilitate the application of the Indian Telegraph Act. Condition 42.2 specifically mandates that the license holders must comply with Section 5 of the same Act.

- Section 69(1) of the Information Technology Act and associated Rules allows for the interception, monitoring, and decryption of information stored or transmitted through any computer resource if it is found to be necessary or expedient to do in the interest of the sovereignty or integrity of India, defense 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.

- Section 69B of the Information Technology Act and associated Rules empowers the Centre to authorise any agency of the government to monitor and collect traffic data “to enhance cyber security, and for identification, analysis, and prevention of intrusion, or spread of computer contaminant in the country”.

- Section 92 of the CrPc allows for a Magistrate or Court to order access to call record details.

Notably, a key difference between the IT Act and the Telegraph Act in the context of interception is that the Telegraph Act permits interception for preventing incitement to the commission of an offence on the condition of public emergency or in the interest of public safety while the IT Act permits interception, monitoring, and decryption of any cognizable offence relating to above or for investigation of any offence. Technically, this difference in surveillance capabilities and grounds for interception could mean that different intelligence agencies would be authorized to carry out respective surveillance capabilities under each statute. Though the Telegraph Act and the associated Rule 419A do not contain an equivalent to Rule 4—nine Central Government agencies and one State Government agency have previously been authorized under the Act. The Central Government agencies authorised under the Telegraph Act are the same as the ones mentioned in the December 20 notification with the following differences:

- Under the Telegraph Act, the Research and Analysis Wing (RAW) has the authority to intercept. However, the 2018 notification more specifically empowers the Cabinet Secretariat of RAW to issue requests for interception under the IT Act.

- Under the Telegraph Act, the Director General of Police, of concerned state/Commissioner of Police, Delhi for Delhi Metro City Service Area, has the authority to intercept. However, the 2018 notification specifically authorises the Commissioner of Police, New Delhi with the power to issue requests for interception.

That said, the IT (Procedure and safeguard for Monitoring and Collecting Traffic Data or Information) Rules, 2009 under 69B of the IT Act contain a provision similar to Rule 4 of the IT (Procedure and Safeguards for Interception, Monitoring and Decryption of Information) Rules, 2009 - allowing the government to authorize agencies that can monitor and collect traffic data. In 2016, the Central Government authorised the Indian Computer Emergency Response Team to monitor and collect traffic data, or information generated, transmitted, received, or stored in any computer resource. This was an exercise of the power conferred upon the Central Government by Section 69B(1) of the IT Act. However, this notification does not reference Rule 4 of the IT Rules, thus it is unclear if a similar notification has been issued under Rule 4.

While it is accurate that the order does not confer new powers, areas of concern that existed with India’s surveillance regime continue to remain including the question of whether 69(1) and 69B and associated Rules are constitutionally valid, the lack of transparency by the government and the prohibition of transparency by service providers, heavy handed penalties on service providers for non-compliance, and a lack of legal backing and oversight mechanisms for intelligence agencies. Some of these could be addressed if the draft Data Protection Bill 2018 is enacted and the Puttaswamy Judgement fully implemented.

Conclusion

The MHA’s order and the press release thereafter have served to publicise and provide needed clarity with respect to the powers vested in which intelligence agencies in India under section 69(1) of the IT Act. This was previously unclear and could have posed a challenge to ensuring oversight and accountability of actions taken by intelligence agencies issuing requests under section 69(1) .

The publishing of the list has subsequently served to raise questions and create a debate about key issues concerning privacy, surveillance and state overreach. On December 24, the order was challenged by advocate ML Sharma on the grounds of it being illegal, unconstitutional and contrary to public interest. Sharma in his contention also stated the need for the order to be tested on the basis of the right to privacy established by the Supreme Court in Puttaswamy which laid out the test of necessity, legality, and proportionality. According to this test, any law that encroaches upon the privacy of the individual will have to be justified in the context of the right to life under Article 21.

But there are also other questions that exist. India has multiple laws enabling its surveillance regime and though this notification clarifies which intelligence agencies can intercept under the IT Act, it is still seemingly unclear which intelligence agencies can monitor and collect traffic data under the 69B Rules. It is also unclear what this order means for past interceptions that have taken place by agencies on this list or agencies outside of this list under section 69(1) and associated Rules of the IT Act. Will these past interceptions possess the same evidentiary value as interceptions made by the authorised agencies in the order?

For more details visit https://cis-india.org/internet-governance/blog/newslaundry-elonnai-hickok-vipul-kharbanda-shweta-mohandas-and-pranav-bidare-december-27-2018-is-the-new-interception-order-old-wine-in-a-new-bottle

Economics of Cybersecurity: Literature Review Compendium

Natallia Khaniejo — 2021-05-01T06:09:09Z

The twenty first century has witnessed an unprecedented conflation of everyday experiences and technosocial practices. The emergence of technologies like the Internet of Things, Cloud Computing, Digital Payment infrastructures are all emblematic of this conflation of technology with economic, social and political modes of existence.

Authored by Natallia Khaniejo and edited by Amber Sinha

Politics and economics are increasingly being amalgamated with Cybernetic frameworks and consequently Critical infrastructure has become intrinsically dependent on Information and Communication Technology (ICTs). The rapid evolution of technological platforms has been accompanied by a concomitant rise in the vulnerabilities that accompany them. Recurrent issues include concerns like network externalities, misaligned incentives and information asymmetries. Malignant actors use these vulnerabilities to breach secure systems, access and sell data, and essentially destabilize cyber and network infrastructures. Additionally, given the relative nascence of the realm, establishing regulatory policies without limiting innovation in the space becomes an additional challenge as well. The lack of uniform understanding regarding the definition and scope of what can be defined as Cybersecurity also serves as a barrier preventing the implementation of clear guidelines. Furthermore, the contrast between what is convenient and what is ‘sanitary’ in terms of best practices for cyber infrastructures is also a constant tussle with recommendations often being neglected in favor of efficiency. In order to demystify the security space itself and ascertain methods of effective policy implementation, it is essential to take stock of current initiatives being proposed for the development and implementation of cybersecurity best practices, and examine their adequacy in a rapidly evolving technological environment. This literature review attempts to document the various approaches that are being adopted by different stakeholders towards incentivizing cybersecurity and the economic challenges of implementing the same.

Click on the below links to read the entire story:

Economics of Cybersecurity Part I

Economics of Cybersecurity Part II

Economics of Cybersecurity Part III

Economics of Cybersecurity Part IV

For more details visit https://cis-india.org/internet-governance/blog/natalia-khaniejo-december-31-2018-economics-of-cybersecurity

CIS Cybersecurity Series (Part 6) - Lhadon Tethong

purba — 2013-08-01T09:54:46Z

CIS interviews Lhadon Tethong, Tibetan human rights activist, as part of the Cybersecurity Series

"In authoritarian states, and in this case, in Tibet, I think that every person that we can teach and pass knowledge to, that can help them stay out of jail, stay in the streets, for one, two, three days longer, one week longer, that is a valuable time of time and resources. And I think we cannot rely on only tools and technology solutions to protect people. I think we can't just rely on government policies at the highest levels, and on export controls... the approach to digital security has to be comprehensive and we have to engage citizens. And not just in cases like the Tibetans or for activists or for people living under repression, but for people in free and open societies too." - Lhadon Tethong, Tibetan human rights activist.

Centre for Internet and Society presents its sixth installment of the CIS Cybersecurity Series.

The CIS Cybersecurity Series seeks to address hotly debated aspects of cybersecurity and hopes to encourage wider public discourse around the topic.

In this installment, CIS interviews Lhadon Tethong, Tibetan human rights activist. Lhadon is the Director of the Tibet Action Institute, where she leads a team of technologists and human rights advocates in developing and advancing open-source communication technologies, nonviolent strategies and innovative training programs for Tibetans and other groups facing heavy repression and human rights abuses.

Link for Tibet Action Institute: https://tibetaction.net/

This work was carried out as part of the Cyber Stewards Network with aid of a grant from the International Development Research Centre, Ottawa, Canada.

For more details visit https://cis-india.org/internet-governance/cis-cybersecurity-series-part-6-lhadon-tethong

The National Cyber Security Policy: Not a Real Policy

bhairav — 2013-09-25T09:49:11Z

Cyber security in India is still a nascent field without an organised law and policy framework. Several actors participate in and are affected by India's still inchoate cyber security regime. The National Cyber Security Policy (NCSP) presented the government and other stakeholders with an opportune moment to understand existing legal limitations before devising a future framework. Unfortunately, the NCSP's poor drafting and meaningless provisions do not advance the field.

This article was published in the Observer Research Foundation's Cyber Security Monitor Vol. I, Issue.1, August 2013.

For some time now, law and policy observers in India have been noticing a definite decline in the quality of national policies emanating from the Central Government. Unlike legislation, which is notionally subject to debate in the Parliament of India, policies face no public evaluation before they are brought in to force. Since, unlike legislation, policies are neither binding nor enforceable, there has been no principled ground for demanding public deliberation of significant national policies. While Parliament’s falling standard of competence has been almost unanimously condemned, there has been nearly no criticism of the corresponding failure of the Centre to invigilate the quality of the official policies of its ministries. Luckily for the drafters of the National Cyber Security Policy (NCSP), the rest of the country has also mostly failed to notice its poor content.

The NCSP was notified into effect on 2 July 2013 by the Department of Electronics and Information Technology – which calls itself DeitY – of the Ministry of Communications and Information Technology. As far as legislation and legal drafting go, DeitY has a dubious record. In March 2013, in a parliamentary appraisal of subordinate law framed by DeitY, a Lok Sabha committee found ambiguity, invasions of privacy and potentially illegal clauses. Apprehensions about statutory law administered by DeitY have also found their way to the Supreme Court of India, where a constitutional challenge to certain provisions of the Information Technology Act, 2000 (IT Act) continues. On more than one occasion, owing to poor drafting, DeitY has been forced to issue advisories and press releases to clarify the meaning of its laws. Ironically, the legal validity of these clarifications is also questionable.

A national policy must set out, in real and quantifiable terms, the objectives of the government in a particular field within a specified time frame. To do that, the policy must provide the social, economic, political and legal context prevalent at the time of its issue as well as a normative statement of factual conditions it seeks to achieve at the time of its expiry. Between these two points in time, the policy must identify and explain all the particular social, economic, political and legal measures it intends to implement to secure its success. Albeit concerned solely with economic growth, the Five-Year Plans – the Second and Tenth Plans in particular, without prejudice to their success or failure, are samples of policies that are well-drafted. In this background, the NCSP should be judged on the basis of how it addresses, in no particular order, national security, democratic freedoms, economic growth and knowledge development. Let us restrict ourselves to the first two issues.

There are broadly two intersections between national security and information technology; these are: (i) the security of networked communications used by the armed forces and intelligence services, and (ii) the storage of civil information of national importance. While the NCSP makes no mention of it, the adoption of the doctrine of network-centric warfare by the three armed forces is underway. Understanding the doctrine is simple – an intensive use of information technology to create networks of information aids situational awareness and enables collaboration to bestow an advantage in combat. However, the doctrine is vulnerable to asymmetric attack using both primitive and highly sophisticated means. Pre-empting such attacks should be a primary policy concern; not so, apparently, for the NCSP which is completely silent on this issue. The NCSP is slightly more forthcoming on the protection of critical information infrastructure of a civil nature. Critical information infrastructure, such as the national power grid or the Aadhar database, is narrowly defined in section 70 of the IT Act where it used to describe a protected system. Other provisions of the IT Act also deal with the protection of critical information infrastructure. The NCSP does not explain how these statutory provisions have worked or failed, as the case may be, to necessitate further mention in a policy document. For instance, section 70A of the IT Act, inserted in 2008, enables the creation of a national nodal agency to undertake research and development and other activities in respect of critical information infrastructure. Despite this, five years later, the NCSP makes a similar recommendation to operate a National Critical Information Infrastructure Protection Centre to undertake the same activities. In the absence of any meaningful explanation of intended policy measures, there is no reason to expect that the NCSP will succeed where an Act of Parliament has failed.

But, putting aside the shortcomings of its piece-meal provisions, the NCSP also fails to address high-level conceptual policy concerns. As information repositories and governance services through information technology become increasingly integrated and centralised, the security of the information that is stored or distributed decreases. Whether by intent or error, if these consolidated repositories of information are compromised, the quantity of information susceptible to damage is greater leading to higher insecurity. Simply put, if power transmission is centrally controlled instead of zonally, a single attack could black out the entire country instead of only a part of it. Or if personal data of citizens is centrally stored, a single leak could compromise the privacy of millions of people instead of only hundreds. Therefore, a credible policy must, before it advocates greater centralisation of information, examine the merits of diffused information storage to protect national security. The NCSP utterly fails in this regard.

Concerns short of national security, such as the maintenance of law and order, are also in issue because crime is often planned and perpetrated using information technology. The prevention of crime before it is committed and its prosecution afterwards is a key policy concern. While the specific context may vary depending on the nature of the crime – the facts of terrorism are different from those of insurance fraud – the principles of constitutional and criminal law continue to apply. However, the NCSP neither examines the present framework of cybersecurity-related offences nor suggests any changes in existing law. It merely calls for a “dynamic legal framework and its periodic review to address the cyber security challenges” (sic). This is self-evident, there was no need for a new national policy to make this discovery; and, ironically, it fails to conduct the very periodic review that it envisages. This is worrying because the NCSP presented DeitY with an opportunity to review existing laws and learn from past mistakes. There are concerns that cybersecurity laws, especially relevant provisions of the IT Act and its rules, betray a lack of understanding of India’s constitutional scheme. This is exemplified by the insertion, in 2008, of section 66A into the IT Act that criminalises the sending of annoying, offensive and inconvenient electronic messages without regard for the fact that free speech that is annoying is constitutionally protected.

In India, cybersecurity law and policy attempts to compensate for the state’s inability to regulate the internet by overreaching into and encroaching upon democratic freedoms. The Central Monitoring System (CMS) that is being assembled by the Centre is a case in point. Alarmed at its inability to be privy to private communications, the Centre proposes to build systems to intercept, in real time, all voice and data traffic in India. Whereas liberal democracies around the world require such interceptions to be judicially sanctioned, warranted and supported by probable cause, India does not even have statutory law to regulate such an enterprise. Given that, once completed, the CMS will represent the largest domestic interception effort in the world, the failure of the NCSP to examine the effect of such an exercise on daily cybersecurity is bewildering. This is made worse by the fact that the state does not possess the technological competence to build such a system by itself and is currently tendering private companies for equipment. The state’s incompetence is best portrayed by the activities of the Indian Computer Emergency Response Team (CERT-In) that was constituted under section 70B of the IT Act to respond to “cyber incidents”. CERT-In has repeatedly engaged in extra-judicial censorship and has ham-handedly responded to allegedly objectionable blogs or websites by blocking access to entire domains. Unfortunately, the NCSP, while reiterating the operations of CERT-In, attempts no evaluation of its activities precluding the scope for any meaningful policy measures.

The NCSP’s poor drafting, meaningless provisions, deficiency of analysis and lack of stated measures renders it hollow. Its notification into force adds little to the public or intellectual debate about cybersecurity and does nothing to further the trajectory of either national security or democratic freedoms in India. In fairness, this problem afflicts many other national policies. There is a need to revisit the high intellectual and practical standards set by most national policies that were issued in the years following Independence.

For more details visit https://cis-india.org/internet-governance/blog/orfonline-bhairav-acharya-observer-research-foundation-cyber-security-monitor-august-2013-nsp-not-a-real-policy

CIS Cybersecurity Series (Part 11) - Anja Kovacs

purba — 2013-10-15T15:25:07Z

CIS interviews Anja Kovacs, researcher and activist, and director of the Internet Democracy, Project as part of the Cybersecurity Series.

"Having the cyber security debate become more and more important was a real challenge for civil society. I think in part because many of us who were focused on human rights aren't necessarily techies. And so, when you have a conversation with a government bureaucrat, and ask questions about the kind of decisions they decided to take, very often they will come up with a technical answer in response. And then, if you don't have that expertise, it is difficult to react. In the meantime though, I think it has become clear that this is one of the biggest issues in the internet field at the moment. It is also one of the big issues that is driving the desires of governments to have a bigger role to play in internet governance. So it is an area that is unavoidable for activists. What has happened slowly is that we have come to realize that the first thing, as in most other areas, is not the technical details, but principles, and those principles are fairly similar to how they are in many other fields." - Anja Kovacs, Internet Democracy Project

Centre for Internet and Society presents its eleventh installment of the CIS Cybersecurity Series.

The CIS Cybersecurity Series seeks to address hotly debated aspects of cybersecurity and hopes to encourage wider public discourse around the topic.

In this installment, CIS speaks to Anja Kovacs, director of the Internet Democracy Project. Her work focuses on a wide range of questions regarding freedom of expression, cybersecurity and the architecture of Internet governance as they relate to the Internet and democracy. Anja is currently also a member of the of the Investment Committee of the Digital Defenders Partnership and of the interim Steering Group of Best Bits, a global network of civil society members.

(Bio from internetdemocracy.in)

Internet Democracy Project homepage: http://internetdemocracy.in/

This work was carried out as part of the Cyber Stewards Network with aid of a grant from the International Development Research Centre, Ottawa, Canada.

For more details visit https://cis-india.org/internet-governance/blog/cis-cybersecurity-series-part-11-anja-kovacs

National Seminar on Cyber Security & Cyber Laws - Issues and Concerns

praskrishna — 2014-12-31T02:04:37Z

Sharath Chandra Ram was a panelist at this seminar organized by the Advanced Centre for Research, Development & Training in Cyber Laws & Forensics on December 27 and 28, 2014 at the National Law School of India University in Bangalore.

Sharath was part of a plenary session on "Multi-Disciplinary Challenges in Ensuring Cyber Security". He spoke about 'multi-stakeholderim in cyber security and CERT programs of nations'.

PROGRAMME SCHEDULE

Day 1 - 27^th December 2014
09:00- 10:00	REGISTRATION
10:00- 11:00 INAUGURAL SESSION AT SHRI. KRISHNAPPA MEMORIAL HALL [ACADEMIC BLOCK]	Welcome & Introduction: Dr. Nagarathna. A., Seminar Director Inaugural Address: Shri. Pratap Reddy, IPS, IGP, Internal Security Division, Karnataka Police, Bangalore Key Note Address: Dr. R. Venkata Rao, Vice Chancellor, NLSIU Vote of Thanks: Dr. T. V. Subba Rao, Senior Professor, NLSIU
11:00-11:45	GROUP PHOTO & TEA BREAK
11:45-01:00 PLENARY SESSION AT SHRI. KRISHNAPPA MEMORIAL HALL [ACADEMIC BLOCK]	THEME: "MULTI-DISCIPLINARY CHALLENGES IN ENSURING CYBER SECURITY" Members of the Panel: 1. Mr. Subrahmanya Boda, CISO, GMR 2. Mr. Sunil Varkey, CISO, WIPRO 3. Mr. Ramesh Kauta , CISO, GE [India] 4. Mr. T T Thomas, CTO Synergia Technologies, 5. Mr. Rahul Matthan, Partner, Trilegal. 6. Sharath Chandra Ram (Sharathchandra Ramakrishnan), Researcher at Centre for Internet & Society 7. Mr. Srinivas P, CISO, Infosys & Anchor, DSCI Bangalore Chapter [Moderator of the session]
01:00-02:00	LUNCH BREAK
venue	Shri Krishnappa Memorial Hall (Academic Block)		International Training Centre
02:00-03:30	Technical Session 1		Technical Session 2
03:30-04:00	TEA BREAK
04:00-05:30	Technical Session 3		Technical Session 4
6:00 to 7. 00	CULTURAL EVENING Venue: Quad, Academic Block
Day 2 - 28^th December 2014
08:00-09:00	BREAK FAST
venue	Shri Krishnappa Memorial Hall (Academic Block)	International Training Centre		MPP Class Room (Academic Block)
09:30- 11:00	Technical Session 5	Technical Session 6		Technical Session 7
11:00- 11:30	TEA BREAK
	Shri Krishnappa Memorial Hall (Academic Block)	International Training Centre		MPP Class Room (Academic Block)
11:30-1:30	Technical Session 8	Technical Session 9		Technical Session 10
01:30-02:30	LUNCH BREAK
02:30-03. 45 PLENARY SESSION AT SHRI. KRISHNAPPA MEMORIAL HALL [ACADEMIC BLOCK]	THEME: "SECURING CYBER SPACE THROUGH INSTITUTIONAL INVOLVEMENT" Members of the Panel: 1. Dr. Kamble, Director, Computer Emergency Response Team [CERT] India, Dept of Electronics & IT, Ministry of IT, Government of India 2. Dr. S.B.N. Prakash, Senior Professor of Law, NLSIU 3. Mr. Naa Vijay Shankar, Cyber Law Consultant, Bangalore 4. Mr. Balasubramanya, Vice President, Tata Consultancy Services, Bangalore 5. Mr. Ranganath, Delivery Project Executive, IBM, Bangalore 6. Mr. Venkatesh Murthy, Senior Manager, Cyber Forensics, Data Security Council of India [DSCI], Bangalore. 7. Mr. M. D. Sharath, Dy. S. P., Cyber Police, Bangalore 8. Dr. Nagarathna. A., Senior Assistant Prof of Law, NLSIU [Moderator]
3. 45 to 4. 00	TEA BREAK
04:00-05:00 AT SHRI. KRISHNAPPA MEMORIAL HALL [ACADEMIC BLOCK]	VALEDICTORY SESSION Seminar Resolutions: Dr. T. V. Subba Rao, Senior Professor, NLSIU Valedictory Address & Distribution of Certificates: : Dr. R. Venkata Rao, Vice Chancellor, NLSIU Vote of thanks: Dr. Nagarathna. A., Seminar Director

For more details visit https://cis-india.org/internet-governance/news/national-seminar-cyber-security-and-cyber-laws

Bali meet to discuss Internet governance issues

praskrishna — 2013-10-23T08:29:23Z

Four-day event hosted by Internet Governance Forum to also discuss Internet access and diversity, privacy, security.

This article by Moulishree Srivastava was published in Livemint on October 22, 2013. Sunil Abraham is quoted.

Representatives of governments around the world, technology executives and activists will discuss issues such as Internet access and diversity, privacy, security, inter-governmental corporation, and Internet governance at a four-day event hosted by the Internet Governance Forum (IGF) that begins on Tuesday in Bali, Indonesia.

J. Satyanarayana, secretary, ministry of communications and information technology, confirmed India’s participation in the forum and said the country would be represented by Dr Govind, a senior director and head of department, e-infrastructure and Internet governance division, department of information technology.

“We will also be taking part in a working group on Internet governance and enhanced cooperation, which will be convened by the United Nations Commission on Science and Technology for Development in November,” said Satyanarayana.

“IGF is a valuable learning forum wherein different stakeholders can discuss Internet governance policy issues without any antagonism. Other fora for Internet policy like ICANN, WIPO (World Intellectual Property Organization), ITU (International Telecommunication Union), etc., are places where international law and policy are developed, and do not allow for such learning because negotiations are always very acrimonious. Since IGF is only meant for learning, it does not directly address the global policy vacuum that exists for cyber crime, data protection and privacy,” said Sunil Abraham, executive director of Bangalore-based Centre for Internet and Society, who will be participating in the Bali event.

“Indian government, private sector, civil society, technical and academic community can become more competent and effective through such a dialogue in other multilateral and multi-stakeholder fora where international Internet standards, policies and laws are formulated. It also helps the stakeholders contribute to the development of internationally interoperable domestic policy,” he added.

In 2006, the UN secretary general established a small secretariat in Geneva to assist him in the convening of IGF. The first meeting was convened in October-November 2006 in Athens. In December 2010, IGF’s mandate was extended for five years.

In its eighth edition, IGF will have detailed discussions on issues such as free flow of information on the Internet, regulatory approaches to privacy, and protection of interests of individuals and communities in cyberspace, Internet surveillance and legal framework for cyber crime, said the forum in a statement on its website.

During the four-event, for instance, one of the workshops “will explore what core principles and strategies are needed to achieve a balanced and fair approach to data protection that is effective internationally and regionally”, according to IGF.

Some of the prominent speakers in the event include Jari Arkko, chairman, Internet Engineering Task Force, Finland; Virat Bhatia, president, South Asia, AT&T Inc.; Chris Painter, coordinator for cyber issues, US department of state; Karen Mulberry, policy adviser, Internet Society; and Matthew Shears, director of Internet policy and human rights, Center for Democracy and Technology.

According to industry estimates, over 2.5 billion Internet users interact in shared cross-border online spaces where they can post content potentially accessible worldwide.

“No clear frameworks exist yet to handle the tensions between these competing normative orders or values and enable peaceful cohabitation in cross-border cyberspace. This challenge constitutes a rare issue of common concern for all stakeholder groups,” said IGF on its website.

According to a UN estimate, nearly 40% of the world’s population will be online by the end of 2013. “The Internet has become an essential tool for the creation of jobs and the delivery of basic public services,” said the UN undersecretary-general for economic and social affairs, Wu Hungbo, in a statement, adding that it is also essential “for improving access to knowledge and education, for empowering women, for enhancing transparency, and for giving marginalized populations a voice in decision-making processes”.

For more details visit https://cis-india.org/news/livemint-moulishree-srivastava-october-22-2013-bali-meet-to-discuss-internet-governance-issues