Centre for Internet and Society

The trouble with trolls

praskrishna — 2014-07-28T05:42:36Z

Social networking sites give trolls the ability to hide their real identity and cause grief to others. Here is what you need to do if you face an online attack.

The article by Vishal Mathur was published in Livemint on July 22, 2014. Sunil Abraham gave his inputs.

Social networking sites give trolls the ability to hide their real identity and cause grief to others. Here is what you need to do if you face an online attack.

Though social networks were not designed with the intention of letting someone anonymously abuse another online, the reality is that people utilize the ability to hide behind online identities to threaten other users. These could be veiled attacks, direct abuse, or even threats to “cause bodily harm”. What can you do if you’re trolled and threatened on any social network? Follow our five-step guide. Avoid conversation if you can The responses could come in relation to something you may have just posted online. Or perhaps it could be just a random trolling attempt, to get a response from you. It is important to understand and identify such intentions. And as difficult as it may be, do not respond. Getting into a direct interaction with a bully only makes things worse. Report to the social network You should report any instance of cyber bullying or harassment to the host social network—the website or forum on which the interaction happened. There are various methods of getting in touch with the moderators—customer support email, contact submission forms or even via phone, in certain locations. Describe the problem in detail, and persist till the offending account is blocked from the platform. “Most social networks have systems that allow you to report abusive content and users. However, there is great variance in the speed with which they respond across different platforms, jurisdictions, etc.,” says Sunil Abraham, executive director at the Bangalore-based non-profit research organization Centre for Internet and Society. New Delhi-based Anja Kovacs, project director, at civil society organization Internet Democracy Project, adds: “Blocking and reporting an account can be two ways to stop harassment on some social networks, but on other platforms, such as Twitter, it is possible for the person to immediately make a new account under a different username, meaning that these measures do not necessarily stop the harassment.” Ankhi Das, director, public policy, India and South Asia at social network Facebook, says: “Every reported piece of content is reviewed. Serial offenders are notified for non-compliance.” Facebook’s Community Standards, that prevent harassment and offensive posts, have an 11-point categorization for reported content—violence and threats, hate speech, graphic content, bullying and harassment, to name some. Raheel Khursheed, head of news, politics and government at Twitter India, did not respond to our mail about how Twitter handles trolls at the time of going to press. On blogs and forums, it may be a bit easier to deal with trolling and abuse. If it is your own blog, you can delete comments and block users. If it is a forum, the administrator can do it for you. But, with social networks having millions of users, it is not possible to have one administrator managing it all. And it is not just Facebook and Twitter, all social networks have a method by which you can register your complaint. LinkedIn, for example, automatically blocks a user who gets multiple “I don’t know” responses to invitations to connect. There is a strong monitoring policy where any reported content (recommendations or direct messages) is examined and immediate warnings are sent out to offending parties. Keep a copy of the offensive posts Be it a post, or a series of posts, direct message or even an offending photograph, always save it for future reference. Never assume that the matter will end soon, and always prepare for the worst. Don’t ignore privacy settings Most people start using Facebook, Twitter and other social networks without paying much attention to the privacy settings—what content people can see on your page, and who can directly contact you. Be conservative in sharing information—the less you share, the lower the chances of someone picking on you. “Avoid friending or linking to people whom you don’t know in real life unless you are certain of the chain of trust that exists between you and the unknown person,” says Abraham. New Delhi-based cyber lawyer Apar Gupta, adds: “The privacy settings on most social networking platforms allow users to prevent (restrict) the audience for their posts as well as strangers from contacting them. This will prevent most cases of online harassment.” Get help from the law In case social networks are not able to effectively block a user, or are in some way unwilling to do so, take help from the law-enforcement authorities. File an FIR in the nearest police station. Unfortunately, the progress may not be very smooth. The reality is that not every law-enforcement officer may know about social networking sites. “You could try and go to the police, but without support from the social network platform, they are often at a loss to do much themselves,” warns Kovacs. The police may look for hints of threat to cause bodily harm or worse still, to life. In such cases, they may recommend the case to the Cyber Crime Cell of the Central Bureau of Investigation. “Generally, while the substantive offences do exist under law, the process for having them enforced is deficient. These are deeper structural problems of delay, investigation and conviction which are prevalent across criminal justice or civil litigation,” clarifies Gupta. Officials at the Cyber Crime Cell say they take up cases after reference from the local police, who file the report first and do a preliminary level of investigation. But it is important to realize that only the police and the law-enforcement agencies have the right to demand further details about the perpetrator from the social networks, starting with profile details and Internet Protocol (IP) addresses, which will help track the person down. Das clarifies: “Facebook has a point-of-contact system through which the law-enforcement agencies tell us what the actual case is, depending on severity. The police may ask us to take down particular content, or even ask for user information like IP info, to prevent real crime.” According to Facebook’s Government Requests Report for July-December 2013, the network restricted access to 4,765 pieces of content after requests from the Indian government and law-enforcement agencies.

Though social networks were not designed with the intention of letting someone anonymously abuse another online, the reality is that people utilize the ability to hide behind online identities to threaten other users. These could be veiled attacks, direct abuse, or even threats to “cause bodily harm”. What can you do if you’re trolled and threatened on any social network? Follow our five-step guide.

Avoid conversation if you can
The responses could come in relation to something you may have just posted online. Or perhaps it could be just a random trolling attempt, to get a response from you. It is important to understand and identify such intentions. And as difficult as it may be, do not respond. Getting into a direct interaction with a bully only makes things worse.

Report to the social network
You should report any instance of cyber bullying or harassment to the host social network—the website or forum on which the interaction happened. There are various methods of getting in touch with the moderators—customer support email, contact submission forms or even via phone, in certain locations. Describe the problem in detail, and persist till the offending account is blocked from the platform. “Most social networks have systems that allow you to report abusive content and users. However, there is great variance in the speed with which they respond across different platforms, jurisdictions, etc.,” says Sunil Abraham, executive director at the Bangalore-based non-profit research organization Centre for Internet and Society. New Delhi-based Anja Kovacs, project director, at civil society organization Internet Democracy Project, adds: “Blocking and reporting an account can be two ways to stop harassment on some social networks, but on other platforms, such as Twitter, it is possible for the person to immediately make a new account under a different username, meaning that these measures do not necessarily stop the harassment.” Ankhi Das, director, public policy, India and South Asia at social network Facebook, says: “Every reported piece of content is reviewed. Serial offenders are notified for non-compliance.” Facebook’s Community Standards, that prevent harassment and offensive posts, have an 11-point categorization for reported content—violence and threats, hate speech, graphic content, bullying and harassment, to name some. Raheel Khursheed, head of news, politics and government at Twitter India, did not respond to our mail about how Twitter handles trolls at the time of going to press. On blogs and forums, it may be a bit easier to deal with trolling and abuse. If it is your own blog, you can delete comments and block users. If it is a forum, the administrator can do it for you. But, with social networks having millions of users, it is not possible to have one administrator managing it all. And it is not just Facebook and Twitter, all social networks have a method by which you can register your complaint. LinkedIn, for example, automatically blocks a user who gets multiple “I don’t know” responses to invitations to connect. There is a strong monitoring policy where any reported content (recommendations or direct messages) is examined and immediate warnings are sent out to offending parties.

Keep a copy of the offensive posts
Be it a post, or a series of posts, direct message or even an offending photograph, always save it for future reference. Never assume that the matter will end soon, and always prepare for the worst.

Don’t ignore privacy settings
Most people start using Facebook, Twitter and other social networks without paying much attention to the privacy settings—what content people can see on your page, and who can directly contact you. Be conservative in sharing information—the less you share, the lower the chances of someone picking on you. “Avoid friending or linking to people whom you don’t know in real life unless you are certain of the chain of trust that exists between you and the unknown person,” says Abraham. New Delhi-based cyber lawyer Apar Gupta, adds: “The privacy settings on most social networking platforms allow users to prevent (restrict) the audience for their posts as well as strangers from contacting them. This will prevent most cases of online harassment.”

Get help from the law
In case social networks are not able to effectively block a user, or are in some way unwilling to do so, take help from the law-enforcement authorities. File an FIR in the nearest police station. Unfortunately, the progress may not be very smooth. The reality is that not every law-enforcement officer may know about social networking sites. “You could try and go to the police, but without support from the social network platform, they are often at a loss to do much themselves,” warns Kovacs. The police may look for hints of threat to cause bodily harm or worse still, to life. In such cases, they may recommend the case to the Cyber Crime Cell of the Central Bureau of Investigation. “Generally, while the substantive offences do exist under law, the process for having them enforced is deficient. These are deeper structural problems of delay, investigation and conviction which are prevalent across criminal justice or civil litigation,” clarifies Gupta. Officials at the Cyber Crime Cell say they take up cases after reference from the local police, who file the report first and do a preliminary level of investigation. But it is important to realize that only the police and the law-enforcement agencies have the right to demand further details about the perpetrator from the social networks, starting with profile details and Internet Protocol (IP) addresses, which will help track the person down. Das clarifies: “Facebook has a point-of-contact system through which the law-enforcement agencies tell us what the actual case is, depending on severity. The police may ask us to take down particular content, or even ask for user information like IP info, to prevent real crime.” According to Facebook’s Government Requests Report for July-December 2013, the network restricted access to 4,765 pieces of content after requests from the Indian government and law-enforcement agencies.

For more details visit https://cis-india.org/news/livemint-july-22-2014-vishal-mathur-the-trouble-with-trolls

Summary Report Internet Governance Forum 2015

jyoti — 2015-11-30T10:47:13Z

Centre for Internet and Society (CIS), India participated in the Internet Governance Forum (IGF) held at Poeta Ronaldo Cunha Lima Conference Center, Joao Pessoa in Brazil from 10 November 2015 to 13 November 2015. The theme of IGF 2015 was ‘Evolution of Internet Governance: Empowering Sustainable Development’. Sunil Abraham, Pranesh Prakash & Jyoti Panday from CIS actively engaged and made substantive contributions to several key issues affecting internet governance at the IGF 2015. The issue-wise detail of their engagement is set out below.

INTERNET GOVERNANCE

I. The Multi-stakeholder Advisory Group to the IGF organised a discussion on Sustainable Development Goals (SDGs) and Internet Economy at the Main Meeting Hall from 9:00 am to 12:30 pm on 11 November, 2015. The discussions at this session focused on the importance of Internet Economy enabling policies and eco-system for the fulfilment of different SDGs. Several concerns relating to internet entrepreneurship, effective ICT capacity building, protection of intellectual property within and across borders were availability of local applications and content were addressed. The panel also discussed the need to identify SDGs where internet based technologies could make the most effective contribution. Sunil Abraham contributed to the panel discussions by addressing the issue of development and promotion of local content and applications. List of speakers included:

Lenni Montiel, Assistant-Secretary-General for Development, United Nations
Helani Galpaya, CEO LIRNEasia
Sergio Quiroga da Cunha, Head of Latin America, Ericsson
Raúl L. Katz, Adjunct Professor, Division of Finance and Economics, Columbia Institute of Tele-information
Jimson Olufuye, Chairman, Africa ICT Alliance (AfICTA)
Lydia Brito, Director of the Office in Montevideo, UNESCO
H.E. Rudiantara, Minister of Communication & Information Technology, Indonesia
Daniel Sepulveda, Deputy Assistant Secretary, U.S. Coordinator for International and Communications Policy at the U.S. Department of State
Deputy Minister Department of Telecommunications and Postal Services for the republic of South Africa
Sunil Abraham, Executive Director, Centre for Internet and Society, India
H.E. Junaid Ahmed Palak, Information and Communication Technology Minister of Bangladesh
Jari Arkko, Chairman, IETF
Silvia Rabello, President, Rio Film Trade Association
Gary Fowlie, Head of Member State Relations & Intergovernmental Organizations, ITU

Detailed description of the workshop is available here http ://www .intgovforum .org /cms /igf 2015-main -sessions

Transcript of the workshop is available here http://www.intgovforum.org/cms/187-igf-2015/transcripts-igf-2015/2327-2015-11-11-internet-economy-and-sustainable-development-main-meeting-room

Video link Internet economy and Sustainable Development here https://www.youtube.com/watch?v=D6obkLehVE8

II. Public Knowledge organised a workshop on The Benefits and Challenges of the Free Flow of Data at Workshop Room 5 from 11:00 am to 12:00 pm on 12 November, 2015. The discussions in the workshop focused on the benefits and challenges of the free flow of data and also the concerns relating to data flow restrictions including ways to address them. Sunil Abraham contributed to the panel discussions by addressing the issue of jurisdiction of data on the internet. The panel for the workshop included the following.

Vint Cerf, Google
Lawrence Strickling, U.S. Department of Commerce, NTIA
Richard Leaning, European Cyber Crime Centre (EC3), Europol
Marietje Schaake, European Parliament
Nasser Kettani, Microsoft
Sunil Abraham, CIS India

Detailed description of the workshop is available here http ://www .intgovforum .org /cms /workshops /list -of -published -workshop -proposals

Transcript of the workshop is available here http://www.intgovforum.org/cms/187-igf-2015/transcripts-igf-2015/2467-2015-11-12-ws65-the-benefits-and-challenges-of-the-free-flow-of-data-workshop-room-5

Video link https://www.youtube.com/watch?v=KtjnHkOn7EQ

III. Article 19 and Privacy International organised a workshop on Encryption and Anonymity: Rights and Risks at Workshop Room 1 from 11:00 am to 12:30 pm on 12 November, 2015. The workshop fostered a discussion about the latest challenges to protection of anonymity and encryption and ways in which law enforcement demands could be met while ensuring that individuals still enjoyed strong encryption and unfettered access to anonymity tools. Pranesh Prakash contributed to the panel discussions by addressing concerns about existing south Asian regulatory framework on encryption and anonymity and emphasizing the need for pervasive encryption. The panel for this workshop included the following.

David Kaye, UN Special Rapporteur on Freedom of Expression
Juan Diego Castañeda, Fundación Karisma, Colombia
Edison Lanza, Organisation of American States Special Rapporteur
Pranesh Prakash, CIS India
Ted Hardie, Google
Elvana Thaci, Council of Europe
Professor Chris Marsden, Oxford Internet Institute
Alexandrine Pirlot de Corbion, Privacy International

Detailed description of the workshop is available here http ://www .intgovforum .org /cms /worksh o ps /list -of -published -workshop -proposals

Transcript of the workshop is available here http://www.intgovforum.org/cms/187-igf-2015/transcripts-igf-2015/2407-2015-11-12-ws-155-encryption-and-anonymity-rights-and-risks-workshop-room-1

Video link available here https://www.youtube.com/watch?v=hUrBP4PsfJo

IV. Chalmers & Associates organised a session on A Dialogue on Zero Rating and Network Neutrality at the Main Meeting Hall from 2:00 pm to 4:00 pm on 12 November, 2015. The Dialogue provided access to expert insight on zero-rating and a full spectrum of diverse views on this issue. The Dialogue also explored alternative approaches to zero rating such as use of community networks. Pranesh Prakash provided a detailed explanation of harms and benefits related to different approaches to zero-rating. The panellists for this session were the following.

Jochai Ben-Avie, Senior Global Policy Manager, Mozilla, USA
Igor Vilas Boas de Freitas, Commissioner, ANATEL, Brazil
Dušan Caf, Chairman, Electronic Communications Council, Republic of Slovenia
Silvia Elaluf-Calderwood, Research Fellow, London School of Economics, UK/Peru
Belinda Exelby, Director, Institutional Relations, GSMA, UK
Helani Galpaya, CEO, LIRNEasia, Sri Lanka
Anka Kovacs, Director, Internet Democracy Project, India
Kevin Martin, VP, Mobile and Global Access Policy, Facebook, USA
Pranesh Prakash, Policy Director, CIS India
Steve Song, Founder, Village Telco, South Africa/Canada
Dhanaraj Thakur, Research Manager, Alliance for Affordable Internet, USA/West Indies
Christopher Yoo, Professor of Law, Communication, and Computer & Information Science, University of Pennsylvania, USA

Detailed description of the workshop is available here http://www.intgovforum.org/cms/igf2015-main-sessions

Transcript of the workshop is available here http://www.intgovforum.org/cms/187-igf-2015/transcripts-igf-2015/2457-2015-11-12-a-dialogue-on-zero-rating-and-network-neutrality-main-meeting-hall-2

V. The Internet & Jurisdiction Project organised a workshop on Transnational Due Process: A Case Study in MS Cooperation at Workshop Room 4 from 11:00 am to 12:00 pm on 13 November, 2015. The workshop discussion focused on the challenges in developing an enforcement framework for the internet that guarantees transnational due process and legal interoperability. The discussion also focused on innovative approaches to multi-stakeholder cooperation such as issue-based networks, inter-sessional work methods and transnational policy standards. The panellists for this discussion were the following.

Anne Carblanc Head of Division, Directorate for Science, Technology and Industry, OECD
Eileen Donahoe Director Global Affairs, Human Rights Watch
Byron Holland President and CEO, CIRA (Canadian ccTLD)
Christopher Painter Coordinator for Cyber Issues, US Department of State
Sunil Abraham Executive Director, CIS India
Alice Munyua Lead dotAfrica Initiative and GAC representative, African Union Commission
Will Hudsen Senior Advisor for International Policy, Google
Dunja Mijatovic Representative on Freedom of the Media, OSCE
Thomas Fitschen Director for the United Nations, for International Cooperation against Terrorism and for Cyber Foreign Policy, German Federal Foreign Office
Hartmut Glaser Executive Secretary, Brazilian Internet Steering Committee
Matt Perault, Head of Policy Development Facebook

Detailed description of the workshop is available here http://www.intgovforum.org/cms/workshops/list-of-published-workshop-proposals

Transcript of the workshop is available here http://www.intgovforum.org/cms/187-igf-2015/transcripts-igf-2015/2475-2015-11-13-ws-132-transnational-due-process-a-case-study-in-ms-cooperation-workshop-room-4

Video link Transnational Due Process: A Case Study in MS Cooperation available here https://www.youtube.com/watch?v=M9jVovhQhd0

VI. The Internet Governance Project organised a meeting of the Dynamic Coalition on Accountability of Internet Governance Venues at Workshop Room 2 from 14:00 – 15:30 on 12 November, 2015. The coalition brought together panelists to highlight the challenges in developing an accountability framework for internet governance venues that include setting up standards and developing a set of concrete criteria. Jyoti Panday provided the perspective of civil society on why acountability is necessary in internet governance processes and organizations. The panelists for this workshop included the following.

Robin Gross, IP Justice
Jeanette Hofmann, Director Alexander von Humboldt Institute for Internet and Society
Farzaneh Badiei, Internet Governance Project
Erika Mann, Managing Director Public PolicyPolicy Facebook and Board of Directors ICANN
Paul Wilson, APNIC
Izumi Okutani, Japan Network Information Center (JPNIC)
Keith Drazek , Verisign
Jyoti Panday, CIS
Jorge Cancio, GAC representative

Detailed description of the workshop is available here http://igf2015.sched.org/event/4c23/dynamic-coalition-on-accountability-of-internet-governance-venues?iframe=no&w=&sidebar=yes&bg=no

Video link https://www.youtube.com/watch?v=UIxyGhnch7w

VII. Digital Infrastructure Netherlands Foundation organized an open forum at Workshop Room 3 from 11:00 – 12:00 on 10 November, 2015. The open forum discussed the increase in government engagement with “the internet” to protect their citizens against crime and abuse and to protect economic interests and critical infrastructures. It brought together panelists topresent ideas about an agenda for the international protection of ‘the public core of the internet’ and to collect and discuss ideas for the formulation of norms and principles and for the identification of practical steps towards that goal. Pranesh Prakash participated in the e open forum. Other speakers included

Bastiaan Goslings AMS-IX, NL
Pranesh Prakash CIS, India
Marilia Maciel (FGV, Brasil
Dennis Broeders (NL Scientific Council for Government Policy)

Detailed description of the open forum is available here http://schd.ws/hosted_files/igf2015/3d/DINL_IGF_Open%20Forum_The_public_core_of_the_internet.pdf

Video link available here https://www.youtube.com/watch?v=joPQaMQasDQ

VIII. UNESCO, Council of Europe, Oxford University, Office of the High Commissioner on Human Rights, Google, Internet Society organised a workshop on hate speech and youth radicalisation at Room 9 on Thursday, November 12. UNESCO shared the initial outcome from its commissioned research on online hate speech including practical recommendations on combating against online hate speech through understanding the challenges, mobilizing civil society, lobbying private sectors and intermediaries and educating individuals with media and information literacy. The workshop also discussed how to help empower youth to address online radicalization and extremism, and realize their aspirations to contribute to a more peaceful and sustainable world. Sunil Abraham provided his inputs. Other speakers include

1. Chaired by Ms Lidia Brito, Director for UNESCO Office in Montevideo

2.Frank La Rue, Former Special Rapporteur on Freedom of Expression

3. Lillian Nalwoga, President ISOC Uganda and rep CIPESA, Technical community

4. Bridget O’Loughlin, CoE, IGO

5. Gabrielle Guillemin, Article 19

6. Iyad Kallas, Radio Souriali

7. Sunil Abraham executive director of Center for Internet and Society, Bangalore, India

8. Eve Salomon, global Chairman of the Regulatory Board of RICS

9. Javier Lesaca Esquiroz, University of Navarra

10. Representative GNI

11. Remote Moderator: Xianhong Hu, UNESCO

12. Rapporteur: Guilherme Canela De Souza Godoi, UNESCO

Detailed description of the workshop is available here http://igf2015.sched.org/event/4c1X/ws-128-mitigate-online-hate-speech-and-youth-radicalisation?iframe=no&w=&sidebar=yes&bg=no

Video link to the panel is available here https://www.youtube.com/watch?v=eIO1z4EjRG0

INTERMEDIARY LIABILITY

IX. Electronic Frontier Foundation, Centre for Internet Society India, Open Net Korea and Article 19 collaborated to organize a workshop on the Manila Principles on Intermediary Liability at Workshop Room 9 from 11:00 am to 12:00 pm on 13 November 2015. The workshop elaborated on the Manila Principles, a high level principle framework of best practices and safeguards for content restriction practices and addressing liability for intermediaries for third party content. The workshop saw particpants engaged in over lapping projects considering restriction practices coming togetehr to give feedback and highlight recent developments across liability regimes. Jyoti Panday laid down the key details of the Manila Principles framework in this session. The panelists for this workshop included the following.

Kelly Kim Open Net Korea,
Jyoti Panday, CIS India,
Gabrielle Guillemin, Article 19,
Rebecca McKinnon on behalf of UNESCO
Giancarlo Frosio, Center for Internet and Society, Stanford Law School
Nicolo Zingales, Tilburg University
Will Hudson, Google

Detailed description of the workshop is available here http://www.intgovforum.org/cms/workshops/list-of-published-workshop-proposals

Transcript of the workshop is available here http://www.intgovforum.org/cms/187-igf-2015/transcripts-igf-2015/2423-2015-11-13-ws-242-the-manila-principles-on-intermediary-liability-workshop-room-9

Video link available here https://www.youtube.com/watch?v=kFLmzxXodjs

ACCESSIBILITY

X. Dynamic Coalition on Accessibility and Disability and Global Initiative for Inclusive ICTs organised a workshop on Empowering the Next Billion by Improving Accessibility at Workshop Room 6 from 9:00 am to 10:30 am on 13 November, 2015. The discussion focused on the need and ways to remove accessibility barriers which prevent over one billion potential users to benefit from the Internet, including for essential services. Sunil Abraham specifically spoke about the lack of compliance of existing ICT infrastructure with well established accessibility standards specifically relating to accessibility barriers in the disaster management process. He discussed the barriers faced by persons with physical or psychosocial disabilities. The panelists for this discussion were the following.

Francesca Cesa Bianchi, G3ICT
Cid Torquato, Government of Brazil
Carlos Lauria, Microsoft Brazil
Sunil Abraham, CIS India
Derrick L. Cogburn, Institute on Disability and Public Policy (IDPP) for the ASEAN(Association of Southeast Asian Nations) Region
Fernando H. F. Botelho, F123 Consulting
Gunela Astbrink, GSA InfoComm

Detailed description of the workshop is available here http://www.intgovforum.org/cms/workshops/list-of-published-workshop-proposals

Transcript of the workshop is available here http://www.intgovforum.org/cms/187-igf-2015/transcripts-igf-2015/2438-2015-11-13-ws-253-empowering-the-next-billion-by-improving-accessibility-workshop-room-3

Video Link Empowering the next billion by improving accessibility https://www.youtube.com/watch?v=7RZlWvJAXxs

OPENNESS

XI. A workshop on FOSS & a Free, Open Internet: Synergies for Development was organized at Workshop Room 7 from 2:00 pm to 3:30 pm on 13 November, 2015. The discussion was focused on the increasing risk to openness of the internet and the ability of present & future generations to use technology to improve their lives. The panel shred different perspectives about the future co-development of FOSS and a free, open Internet; the threats that are emerging; and ways for communities to surmount these. Sunil Abraham emphasised the importance of free software, open standards, open access and access to knowledge and the lack of this mandate in the draft outcome document for upcoming WSIS+10 review and called for inclusion of the same. Pranesh Prakash further contributed to the discussion by emphasizing the need for free open source software with end‑to‑end encryption and traffic level encryption based on open standards which are decentralized and work through federated networks. The panellists for this discussion were the following.

Satish Babu, Technical Community, Chair, ISOC-TRV, Kerala, India
Judy Okite, Civil Society, FOSS Foundation for Africa
Mishi Choudhary, Private Sector, Software Freedom Law Centre, New York
Fernando Botelho, Private Sector, heads F123 Systems, Brazil
Sunil Abraham, CIS India
Pranesh Prakash, CIS India
Nnenna Nwakanma- WWW.Foundation
Yves MIEZAN EZO, Open Source strategy consultant
Corinto Meffe, Advisor to the President and Directors, SERPRO, Brazil
Frank Coelho de Alcantara, Professor, Universidade Positivo, Brazil
Caroline Burle, Institutional and International Relations, W3C Brazil Office and Center of Studies on Web Technologies

Detailed description of the workshop is available here http://www.intgovforum.org/cms/workshops/list-of-published-workshop-proposals

Transcript of the workshop is available here http://www.intgovforum.org/cms/187-igf-2015/transcripts-igf-2015/2468-2015-11-13-ws10-foss-and-a-free-open-internet-synergies-for-development-workshop-room-7

Video link available here https://www.youtube.com/watch?v=lwUq0LTLnDs

For more details visit https://cis-india.org/internet-governance/blog/summary-report-internet-governance-forum-2015

Call for Comments: Model Security Standards for the Indian Fintech Industry

pranav — 2019-12-16T13:16:25Z

The Centre for Internet and Society is pleased to make available the Draft document of Model Security Standards for the Indian Fintech Industry, for feedback and comments from all stakeholders. The objective of this document which was first published in November 2019, is to ensure that the data of users is dealt with in a secure and safe manner by the Fintech Industry, and that smaller businesses in the Fintech industry have a specific standard to look at in order to limit their liabilities for any future breaches.

We invite any parties interested in the field of technology policy, including but not limited to lawyers, policy researchers, and engineers, to send in your feedback/comments on the draft document by the 16th of January 2020. We intend to publish our final draft by the end of January 2020. We look forward to receiving your contributions to make this document more comprehensive and effective. Please find a copy of the draft document here.

For more details visit https://cis-india.org/internet-governance/call-for-comments-model-security-standards-for-the-indian-fintech-industry

Automated Facial Recognition Systems (AFRS): Responding to Related Privacy Concerns

Arindrajit Basu, Siddharth Sonkar — 2020-01-02T14:09:14Z

Arindrajit Basu and Siddharth Sonkar have co-written this blog as the second of their three-part blog series on AI Policy Exchange under the parent title: Is there a Reasonable Expectation of Privacy from Data Aggregation by Automated Facial Recognition Systems?

The Supreme Court of India, in Puttaswamy I recognized that the right to privacy is not surrendered merely because the individual is in a public place. Privacy is linked to the individual as it is an essential facet of human dignity. Justice Chelameswar further clarified that privacy is contextual. Even in a public setting, people trying to converse in whispers would signal a claim to the right to privacy. Speaking on a loudspeaker would naturally not signal the same claim.

The Supreme Court of Canada has also affirmed the notion of contextual privacy. As recently as on 7 March, 2019, the Supreme Court of Canada in a landmark decision defined privacy rights in public areas implicitly applying Helena Nissenbaum’s theory of contextual integrity. Helena Nissenbaum explains that the extent to which the right to privacy is eroded in public spaces with the help of her theory of contextual integrity.

Nissenbaum suggests that labelling information as exclusively public or private fails to take into account the context which rationalises the desire of the individual to exercise her privacy in public. To explain this with an illustration, there exists a reasonable expectation of privacy in the restroom of a restaurant, even though it is in a public space.

In R v Jarvis (Jarvis), the Court overruled a Court of Appeal for Ontario decision to hold that people can have a reasonable expectation of privacy even in public spaces. In this case, Jarvis was charged with the offence of voyeurism for secretly recording his students. The primary issue that the Supreme Court of Canada was concerned with was whether the students filmed by Mr. Jarvis enjoyed a reasonable expectation of privacy at their school.

The Court in this case unanimously held that students did indeed have a reasonable expectation of privacy. The Court concluded nine contextual factors relevant in determining whether a person has a reasonable expectation to privacy would arise. The listed factors were:

“1. The location the person was in when he or she was observed or recorded,

2. The nature of the impugned conduct (whether it consisted of observation or recording),

3. Awareness of or consent to potential observation or recording,

4. The manner in which the observation or recording was done,

5. The subject matter or content of the observation or recording,

6. Any rules, regulations or policies that governed the observation or recording in question,

7. The relationship between the person who was observed or recorded and the person who did the observing or recording,

8. The purpose for which the observation or recording was done, and

9. The personal attributes of the person who was observed or recorded.” (paragraph 29 of the judgement).

The Court emphasized that the factors are not an exhaustive list, but rather were meant to be a guiding tool in determining whether a reasonable expectation of privacy existed in a given context. It is not necessary that each of these factors is present in a given situation to give rise to an expectation of privacy.

Compared to the above-mentioned factors in Jarvis, the Indian Supreme Court in Justice K.S Puttaswamy (Retd.) v. Union of India: Justice Sikri (Puttaswamy II) — the case which upheld the constitutionality of the Aadhaar project relied on the following factors to determine a reasonable expectation of privacy in a given context:

“(i) What is the context in which a privacy claim is set up?

(ii) Does the claim relate to private or family life, or a confidential relationship?

(iii) Is the claim a serious one or is it trivial?

(iv) Is the disclosure likely to result in any serious or significant injury and the nature and extent of disclosure?

(v) Is disclosure relates to personal and sensitive information of an identified person?

(vi) Does disclosure relate to information already disclosed publicly? If so, its implication?”

These factors (acknowledged in Puttaswamy II in paragraph 292) seem to be very similar to the ones laid down in Jarvis, i.e., there is a strong reliance on the context in both cases. While there is no explicit mention of individual attributes of the individual claiming a reasonable expectation, the holding that children should be given an opt out indicates that the Court implicitly takes into account personal attributes (e.g. age) as well.

The Court in Jarvis further (in paragraph 39) took the example of a woman in a communal change room at a public pool. She may expect other users to incidentally observe her undress but she would continue to expect only other women in the change room to observe her and reserve her rights against the general public. She would also expect not to be video recorded or photographed while undressing, both from other users of the pool and by the general public.

If it is later found out that the change room had a one-way glass which allowed the pool staff to view the users change — or if there was a concealed camera recording persons while they were changing, she could claim a breach of her reasonable expectation of privacy under such circumstances and it would constitute an invasion of privacy.

So, in the context of an AFRS, an individual walking down a public road may still signal that they wish to avail of their right to privacy. In such contexts, a concerted surveillance mechanism may come up against constitutional roadblocks.

What is the nature of information being collected?

The second big question — the nature of information which is being collected plays a role in determining the extent to which a person can exercise their reasonable expectation of privacy. Puttaswamy II laid down that collection of core biometric information such as fingerprints, iris scans in the context of the Aadhaar-Based Biometric Authentication (‘ABBA’) is constitutionally permissible. The basis of this conclusion is that the Aadhaar Act does not deal with the individual’s intimate or private sphere.

The judgement of the Supreme Court in Puttaswamy II is in a very specific context (i.e. the ABBA). It does not explain or identify the contextual factors which determine the extent to which privacy may be reasonably expected over biometrics generally. In this judgment, the Court observed that demographic information and photographs do not raise a reasonable expectation of privacy under Article 21 unless there exist special circumstances such as the disclosure of juveniles in conflict of law or a rape victim’s identity.

Most importantly, the Court held that face photographs for the purpose of identification are not covered by a reasonable expectation of privacy. The Court distinguished face photographs from intimate photographs or those photographs which concern confidential situations.

Face photographs, according to the Court, are shared by individuals in the ordinary course of conduct for the purpose of obtaining a driving license, voter id, passport, examination admit cards, employment cards, and so on. Face photographs by themselves reveal no information.

Naturally, this pronouncement of the Apex Court is a huge boost for the introduction of AFRS in India.

Abroad, however, on 4 September 2019, in Edward Bridges v. Chief Constable of South Wales Police, a Division Bench of the High Court in England and Wales heard a challenge against an AFRS introduced by law enforcement (see Endnote 1). The High Court rejected a claim for judicial review holding that the AFRS in question does not violate inter alia the right to privacy under Article 8 of the European Convention of Human Rights (‘ECHR’).

According to the Court, the AFRS was used for specific and limited purposes, i.e., only when the image of the public matched a person on an existing watchlist. The use of the AFRS was therefore considered a lawful and fair restriction.

The Court, however, acknowledged that extracting biometric data through AFRS is “well beyond the expected and unsurprising”. This seems to be a departure from the Indian Supreme Court’s observation in Puttaswamy II that there is no reasonable expectation of privacy over biometric data in the context of ABBA, and may be a wiser approach for the Indian courts to adopt.

Endnote

1. The challenge was put forth by Edward Bridges, a civil liberties campaigner from Cardiff for being caught on camera in two particular deployments of the AFRS a) when he was at Queen Street, a busy shopping area in Cardiff and b) when he was at the Defence Procurement, Research, Technology and Exportability Exhibition held at the Motorpoint Arena.

This was published by AI Policy Exchange.

For more details visit https://cis-india.org/internet-governance/automated-facial-recognition-systems-afrs-responding-to-related-privacy-concerns

Automated Facial Recognition Systems and the Mosaic Theory of Privacy: The Way Forward

Arindrajit Basu, Siddharth Sonkar — 2020-01-02T14:12:38Z

Arindrajit Basu and Siddharth Sonkar have co-written this blog as the third of their three-part blog series on AI Policy Exchange under the parent title: Is there a Reasonable Expectation of Privacy from Data Aggregation by Automated Facial Recognition Systems?

The Mosaic Theory of Privacy

Whether the data collected by the AFRS should be treated similar to face photographs taken for the purposes of ABBA is not clear in the absence of judicial opinion. The AFRS would ordinarily collect significantly more data than facial photographs during authentication. This can be explained with the help of the mosaic theory of privacy.

The mosaic theory of privacy suggests that data collected for long durations of an individual can be qualitatively different from single instances of observation. It argues that aggregating data from different instances can create a picture of an individual which affects her reasonable expectation of privacy. This is because a mere slice of information reveals a lot less if the same is contextualised in a broad pattern — a mosaic.

The mosaic theory of privacy does not find explicit reference in Puttaswamy II. The petitioners had argued that seeding of Aadhaar data into existing databases would bridge information across silos so as to make real time surveillance possible. This is because information when integrated from different silos becomes more than the sum of its parts.

The Court, however, dismissed this argument, accepting UIDAI’s submission that the data collected remains in different silos and merging is not permitted within the Aadhaar framework. Therefore, the Court did not examine whether it is constitutionally permissible to integrate data from different silos; it simply rejected the possibility of surveillance as a result of Aadhaar authentication.

Jurisprudence in other jurisdictions is more advanced. In United States v. Jones, the United States Supreme Court had observed that the insertion of a global positioning system into Antoine Jones’ Jeep in the absence of a warrant and without his consent invaded his privacy, entitling him to Fourth Amendment Protection. In this case, the movement of Jones’ vehicle was monitored for a period of twenty-eight days. Five concurring opinions in Jones acknowledges that aggregated and extensive surveillance is capable of violating the reasonable expectation of privacy irrespective of whether or not surveillance has taken place in public.

The Court distinguished between prolonged surveillance and short term surveillance. Surveillance in the short run does not reveal what a person repeatedly does, as opposed to sustained surveillance which can reveal significantly more about a person. The Court takes the example of how a sequence of trips to a bar, a bookie, a gym or a church can tell a lot more about a person than the story of any single visit viewed in isolation.

Most recently, in Carpenter v. United States, the Supreme Court of the United States held that the collection of historical cell data by the government exposes the physical movements of an individual to potential surveillance, and an individual holds a reasonable expectation of privacy against such collection. The Court admitted that historical-cell site information allows the government to go back in time in order to retract the exact whereabouts of a person.

Judicial decisions have not addressed specifically whether facial recognition through law enforcement constitutes a search under the Fourth Amendment or a “mere visual observation”.

The common thread linking CCTV footages and cellular data is the unique ability to track the movement of an individual from one place to another, enabling extreme forms of surveillance. It is perhaps this crucial link that would make ARFS-enabled CCTVs prejudicial to individual privacy.

The mosaic theory as understood in Carpenter helps one understand the extent to which an AFRS can augment the capacities of law enforcement in India. This in turn can help in understanding whether it is constitutionally permissible to install such systems across the country.

AFRS enabled-CCTV footages from different CCTVs. if viewed in conjunction could reveal a sequence of movements of an individual, enabling long-term surveillance of a nature that is qualitatively distinct from isolated observances observed across unrelated CCTV footages.

Subsequent to Carpenter, federal district courts in the United States have declined to apply Carpenter to video surveillance cases since the judgement did not “call into question conventional surveillance techniques and tools, such as security cameras.”

The extent of processing that an AFRS-enabled CCTV exposes an individual to would be significantly greater. This is because every time an individual is in the zone of a AFRS-enabled CCTV, the facial image will be compared to a common database. Snippets from different CCTVs capturing the individual’s physical presence in two different locations may not be meaningful per se. When observed together, the AFRS will make it possible to identify the individual’s movement from one place to another.

For instance, the AFRS will be able to identify the person when they are on Street A at a particular time and when they are Street B in the immediately subsequent hour recorded by respective CCTV cameras, indicating the person’s physical movement from A to B. While a CCTV camera only records movement of an individual in video format, AFRS translates that digital information into individualised data with the help of a comparison of facial features with a pre-existing database.

Through data aggregation, which appears to be the aim of the Indian government in their tender that links three databases, it is apparent that the right to privacy is in danger. Yet, at present, there does not exist any case law or legislation that can render such efforts illegal at this juncture.

Conclusions and The Way Forward

Despite a lack of judicial recognition of the potential unconstitutionality of deploying AFRS, it is clear that the introduction of these systems pose a clear and present danger to civil rights and human dignity. Algorithmic surveillance alters a human being’s life in ways that even the subject of this surveillance cannot fully comprehend. As an individual’s data is manipulated and aggregated to derive a pattern about that individual’s world, the individual or his data no longer exists for itselfbut are massaged into various categories.

Louis Amoore terms this a ‘data-derivative’, which is an abstract conglomeration of data that continuously shapes our futures without us having a say in their framing. The branding of an individual as a criminal and then aggregating their data causes emotional distress as individuals move about in fear of the state gaze and their association with activities that are branded as potentially dangerous — thereby suppressing a right to dissent — as exemplified by their use reported use during the recent protests in Hong Kong.

Case law both in India and abroad has clearly suggested that a right to privacy is contextual and is not surrendered merely because an individual is in a public place. However, the jurisprudence protecting public photography or videography under the umbrella of privacy remains less clear globally and non-existent in India.

The mosaic theory of privacy is useful in this regard as it prevents mass ‘data-veillance’ of individual behaviour and accurately identifies the unique power that the volume, velocity and variety of Big Data provides to the state. Therefore, it is imperative that the judiciary recognise safeguards from data aggregation as an essential component of a reasonable expectation of privacy. At the same time, legislation could also provide the required safeguards.

In the US, Senators Coons and Lee recently introduced a draft Bill titled ‘The Facial Recognition Technology Warrant Act of 2019’. The Bill aims to impose reasonable restrictions on the use of facial recognition technology by law enforcement. The Bill creates safeguards against sustained tracking of physical movements of an individual in public spaces. The Bill terms such tracking ‘ongoing surveillance’ when it occurs for over a period of 72 hours in real time or through application of technology to historical records. The Bill requires that ongoing surveillance only be conducted for law enforcement purposes and in pursuance of a Court Order (unless it is impractical to do so).

While the Bill has its textual problems, it is definitely worth considering as a model going forward and ensure that AFR systems are deployed in line with a rights-respecting reading of a reasonable expectation of privacy. Parsheera suggests that the legislation should narrow tailoring of the objects and purposes for deployment of AFRS, restrictions on the person whose images may be scanned from the databases, judicial approval for its use on a case by case basis and effective mechanisms of oversight, analysis and verification.

Appropriate legal intervention is crucial. A failure to implement this effectively jeopardizes the expression of our true selves and the core tenets of our democracy.

For more details visit https://cis-india.org/internet-governance/automated-facial-recognition-systems-and-the-mosaic-theory-of-privacy-the-way-forward

Cryptocurrency Regulation in India – A brief history

vipul — 2020-03-05T18:36:09Z

In March 2020, the Supreme Court of India quashed the RBI order passed in 2018 that banned financial services firms from trading in virtual currency or cryptocurrency. Keeping this policy window in mind, the Centre for Internet & Society will be releasing a series of blog posts and policy briefs on cryptocurrency regulation in India

The story of cryptocurrencies started in 2008 when a paper titled “Bitcoin: A Peer to Peer Electronic Cash System” was published by a single or group of pseudonymous developer(s) by the name of Satoshi Nakamoto. The actual network took some time to start with the first transactions taking place only in January 2009. The first actual sale of an item using Bitcoin took place a year later with a user swapping 10,000 Bitcoin for two pizzas in 2010, which attached a cash value to the cryptocurrency for the first time. By 2011 other cryptocurrencies began to emerge, with Litecoin, Namecoin and Swiftcoin all making their debut. Meanwhile, Bitcoin the cryptocurrency that started it all started getting criticised after claims emerged that it was being used on the so-called “dark web”, particularly on sites such as Silk Road as a means of payment for illegal transactions. Over the next five years cryptocurrencies steadily gained traction with increased number of transactions and the price of Bitcoin, the most popular cryptocurrency shot up from around 5 Dollars in the beginning of 2012 to almost 1000 Dollars at the end of 2017.

Riding on the back of this wave of popularity, a number of cryptocurrency exchanges started operating in India between 2012 and 2017 providing much needed depth and volume to the Indian cryptocurrency market. These included popular exchanges such as Zebpay, Coinsecure, Unocoin, Koinex, Pocket Bits and Bitxoxo. With the price of cryptocurrencies shooting up and because of its increased popularity and adoption by users outside of its traditional cult following, regulators worldwide began to take notice of this new technology; in India the RBI issued a Press Release cautioning the public against dealing in virtual currencies including Bitcoin way back in 2013. However, the transaction volumes and adoption of cryptocurrencies in India really picked up in earnest only after the demonetisation of high value currency notes in November of 2016, with the government’s emphasis on digital payments leading to alternatives to traditional online banking such as cryptocurrencies forcing their way into the public consciousness. Indian cryptocurrency exchanges started acquiring users at a much higher pace which drove up volume for cryptocurrency transactions on all Indian exchanges. The growing popularity of cryptocurrencies and its adoption by large numbers of Indian users forced the RBI to issue another Press Release in February 2017 reiterating its concerns regarding cryptocurrencies raised in its earlier Press Release of 2013.

In October and November, 2017 two Public Interest Petitions were filed in the Supreme Court of India, one by Siddharth Dalmia and another by Dwaipayan Bhowmick, the former asking the Supreme Court to restrict the sale and purchase of cryptocurrencies in India, and the latter asking for cryptocurrencies in India to be regulated. Both the petitions are currently pending in the Supreme Court.

In November, 2017 the Government of India constituted a high level Inter-ministerial Committee under the chairmanship of Shri Subhash Chandra Garg, Secretary, Department of Economic Affairs, Ministry of Finance and comprising of Shri Ajay Prakash Sawhney (Secretary, Ministry of Electronics and Information Technology), Shri Ajay Tyagi (Chairman, Securities and Exchange Board of India) and Shri B.P. Kanungo (Deputy Governor, Reserve Bank of India). The mandate of the Committee was to study various issues pertaining to Virtual Currencies and to propose specific actions that may be taken in relation thereto. This Committee submitted its report in July of 2019 recommending a ban on private cryptocurrencies in India.

In December 2017 both the RBI as well as the Ministry of Finance issued Press releases cautioning the general public about the dangers and risks associated with cryptocurrencies, with the Ministry of Finance Press Release saying that cryptocurrencies are like ponzi schemes and also declaring that they are not currencies or coins. It should be mentioned here that till the end of March 2018, the RBI and the Finance Ministry had issued various Press Releases on cryptocurrencies cautioning people against their risks, however none of them ever took any legal action or gave any enforceable directions against cryptocurrencies. All of this changed with the RBI circular dated April 6, 2018 whereby the RBI prevented Commercial and Co-operative Banks, Payments Banks, Small Finance Banks, NBFCs, and Payment System Providers not only from dealing in virtual currencies themselves but also directing them to stop providing services to all entities which deal with virtual currencies.

The effect of the circular was that cryptocurrency exchanges, which relied on normal banking channels for sending and receiving money to and from their users, could not access any banking services within India. This essentially crippled their business operations since converting cash to cryptocurrencies and vice versa was an essential part of their operations. Even pure cryptocurrency exchanges which did not deal in fiat currency, were unable to carry out their regular operations such as paying for office space, staff salaries, server space, vendor payments, etc. without access to banking services.

As a the operations of cryptocurrency exchanges took a severe hit and the number of transactions on these exchanges reduced substantially. People who had bought cryptocurrencies on these exchanges as an investment were forced to sell their crypto assets and cash out before they lost access to banking facilities. The cryptocurrency exchanges themselves found it hard to sustain operations in the face of the dual hit of reduced transaction volumes and loss of access banking services. Faced with such an existential threat, a number of exchanges who were members of the Internet and Mobile Association of India (IMAI), filed a writ petition in the Supreme Court on May 15, 2018 titled Internet and Mobile Association of India v. Reserve Bank of India, the final arguments in which were heard by the Supreme Court of India in January, 2020 and the judgment is awaited. If the Supreme Court agrees with the arguments of the petitioners, then cryptocurrency exchanges would be able to restart operations in India; as a result the cryptocurrency ecosystem in India may be revived and cryptocurrencies may become a viable investment alternative again.

For more details visit https://cis-india.org/internet-governance/blog/cryptocurrency-regulation-in-india-2013-a-brief-history

European Summer School on Internet Governance

Admin — 2019-07-23T00:30:15Z

The 13th European Summer School on Internet Governance was held at Meissen in Germany from 13 - 20 July 2019. Akriti Bopanna attended the school. The event was organized by EuroSSIG.

More information on the event can be accessed on this page.

For more details visit https://cis-india.org/internet-governance/news/european-summer-school-on-internet-governance

India is falling down the facial recognition rabbit hole

Prem Sylvester and Karan Saini — 2019-07-25T13:40:00Z

Its use as an effective law enforcement tool is overstated, while the underlying technology is deeply flawed.

The article by Prem Sylvester and Karan Saini was published in the Wire on July 23, 2019.

In a discomfiting reminder of how far technology can be used to intrude on the lives of individuals in the name of security, the Ministry of Home Affairs, through the National Crime Records Bureau, recently put out a tender for a new Automated Facial Recognition System (AFRS).

The stated objective of this system is to “act as a foundation for a national level searchable platform of facial images,” and to “[improve] outcomes in the area of criminal identification and verification by facilitating easy recording, analysis, retrieval and sharing of Information between different organizations.”

The system will pull facial image data from CCTV feeds and compare these images with existing records in a number of databases, including (but not limited to) the Crime and Criminal Tracking Networks and Systems (or CCTNS), Interoperable Criminal Justice System (or ICJS), Immigration Visa Foreigner Registration Tracking (or IVFRT), Passport, Prisons, Ministry of Women and Child Development (KhoyaPaya), and state police records.

Furthermore, this system of facial recognition will be integrated with the yet-to-be-deployed National Automated Fingerprint Identification System (NAFIS) as well as other biometric databases to create what is effectively a multi-faceted system of biometric surveillance.

It is rather unfortunate, then, that the government has called for bids on the AFRS tender without any form of utilitarian calculus that might justify its existence. The tender simply states that this system would be “a great investigation enhancer.”

This confidence is misplaced at best. There is significant evidence that not only is a facial recognition system, as has been proposed, ineffective in its application as a crime-fighting tool, but it is a significant threat to the privacy rights and dignity of citizens. Notwithstanding the question of whether such a system would ultimately pass the test of constitutionality – on the grounds that it affects various freedoms and rights guaranteed within the constitution – there are a number of faults in the issued tender.

Let us first consider the mechanics of a facial recognition system itself. Facial recognition systems chain together a number of algorithms to identify and pick out specific, distinctive details about a person’s face – such as the distance between the eyes, or shape of the chin, along with distinguishable ‘facial landmarks’. These details are then converted into a mathematical representation known as a face template for comparison with similar data on other faces collected in a face recognition database. There are, however, several problems with facial recognition technology that employs such methods.

Facial recognition technology depends on machine learning – the tender itself mentions that the AFRS is expected to work on neural networks “or similar technology” – which is far from perfect. At a relatively trivial level, there are several ways to fool facial recognition systems, including wearing eyewear, or specific types of makeup. The training sets for the algorithm itself can be deliberately poisoned to recognise objects incorrectly, as observed by students at MIT.

More consequentially, these systems often throw up false positives, such as when the face recognition system incorrectly matches a person’s face (say, from CCTV footage) to an image in a database (say, a mugshot), which might result in innocent citizens being identified as criminals. In a real-time experiment set in a train station in Mainz, Germany, facial recognition accuracy ranged from 17-29% – and that too only for faces seen from the front – and was at 60% during the day but 10-20% at night, indicating that environmental conditions play a significant role in this technology.

Facial recognition software used by the UK’s Metropolitan Police has returned false positives in more than 98% of match alerts generated.

When the American Civil Liberties Union (ACLU) used Amazon’s face recognition system, Rekognition, to compare images of legislative members of the American Congress with a database of mugshots, the results included 28 incorrect matches.

There is another uncomfortable reason for these inaccuracies – facial recognition systems often reflect the biases of the society they are deployed in, leading to problematic face-matching results. Technological objectivity is largely a myth, and facial recognition offers a stark example of this.

An MIT study shows that existing facial recognition technology routinely misidentifies people of darker skin tone, women and young people at high rates, performing better on male faces than female faces (8.1% to 20.6% difference in error rate), lighter faces than darker faces (11.8% to 19.2% difference in error rate) and worst on darker female faces (20.8% to 34.7% error rate). In the aforementioned ACLU study, the false matches were disproportionately people of colour, particularly African-Americans. The bias rears its head when the parameters of machine-learning algorithms, derived from labelled data during a “supervised learning” phase, adhere to socially-prejudiced ideas of who might commit crimes.

The implications for facial recognition are chilling. In an era of pervasive cameras and big data, such prejudice can be applied at unprecedented scale through facial recognition systems. By replacing biased human judgment with a machine learning technique that embeds the same bias, and more reliably, we defeat any claims of technological neutrality. Worse, because humans will assume that the machine’s “judgment” is not only consistently fair on average but independent of their personal biases, they will read agreement of its conclusions with their intuition as independent corroboration.

In the Indian context, consider that Muslims, Dalits, Adivasis and other SC/STs are disproportionately targeted by law enforcement. The NCRB in its 2015 report on prison statistics in India recorded that over 55% of the undertrials prisoners in India are either Dalits, Adivasis or Muslims, a number grossly disproportionate to the combined population of Dalits, Adivasis and Muslims, which amounts to just 39% of the total population according to the 2011 Census.

If the AFRS is thus trained on these records, it would clearly reinforce socially-held prejudices against these communities, as inaccurately representative as they may be of those who actually carry out crimes. The tender gives no indication that the developed system would need to eliminate or even minimise these biases, nor if the results of the system would be human-verifiable.

This could lead to a runaway effect if subsequent versions of the machine-learning algorithm are trained with criminal convictions in which the algorithm itself played a causal role. Taking such a feedback loop to its logical conclusion, law enforcement may use machine learning to allocate police resources to likely crime spots – which would often be in low income or otherwise vulnerable communities.

Adam Greenfield writes in Radical Machines on the idea of ‘over transparency,’ that combines “bias” of the system’s designers as well of the training sets – based as these systems are on machine learning – and “legibility” of the data from which patterns may be extracted. The “meaningful question,” then, isn’t limited to whether facial recognition technology works in identification – “[i]t’s whether someone believes that they do, and acts on that belief.”

The question thus arises as to why the MHA/NCRB believes this is an effective tool for law enforcement. We’re led, then, to another, larger concern with the AFRS – that it deploys a system of surveillance that oversteps its mandate of law enforcement. The AFRS ostensibly circumvents the fundamental right to privacy, as ratified by the Supreme Court in 2018, through sourcing its facial images from CCTV cameras installed in public locations, where the citizen may expect to be observed.

The extent of this surveillance is made even clearer when one observes the range of databases mentioned in the tender for the purposes of matching with suspects’ faces extends to “any other image database available with police/other entity” besides the previously mentioned CCTNS, ICJS et al. The choice of these databases makes overreach extremely viable.

This is compounded when we note that the tender expects the system to “[m]atch suspected criminal face[sic] from pre-recorded video feeds obtained from CCTVs deployed in various critical identified locations, or with the video feeds received from private or other public organization’s video feeds.” There further arises a concern with regard to the process of identification of such “critical […] locations,” and if there would be any mechanisms in place to prevent this from being turned into an unrestrained system of surveillance, particularly with the stated access to private organisations’ feeds.

The Perpetual Lineup report by Georgetown Law’s Center on Privacy & Technology identifies real-time (and historic) video surveillance as posing a very high risk to privacy, civil liberties and civil rights, especially owing to the high-risk factors of the system using real-time dragnet searches that are more or less invisible to the subjects of surveillance.

It is also designated a “Novel Use” system of criminal identification, i.e., with little to no precedent as compared to fingerprint or DNA analysis, the latter of which was responsible for countless wrongful convictions during its nascent application in the science of forensic identification, which have since then been overturned.

In the Handbook of Face Recognition, Andrew W. Senior and Sharathchandra Pankanti identify a more serious threat that may be born out of automated facial recognition, assessing that “these systems also have the potential […] to make judgments about [subjects’] actions and behaviours, as well as aggregating this data across days, or even lifetimes,” making video surveillance “an efficient, automated system that observes everything in front of any of its cameras, and allows all that data to be reviewed instantly, and mined in new ways” that allow constant tracking of subjects.

Such “blanket, omnivident surveillance networks” are a serious possibility through the proposed AFRS. Ye et al, in their paper on “Anonymous biometric access control”, show how automatically captured location and facial image data obtained from cameras designed to track the same can be used to learn graphs of social networks in groups of people.

Consider those charged with sedition or similar crimes, given that the CCTNS records the details as noted in FIRs across the country. Through correlating the facial image data obtained from CCTVs across the country – the tender itself indicates that the system must be able to match faces obtained from two (or more) CCTVs – this system could easily be used to target the movements of dissidents moving across locations.

Constantly watched

Further, something which has not been touched upon in the tender – and which may ultimately allow for a broader set of images for carrying out facial recognition – is the definition of what exactly constitutes a ‘criminal’. Is it when an FIR is registered against an individual, or when s/he is arrested and a chargesheet is filed? Or is it only when an individual is convicted by a court that they are considered a criminal?

Additionally, does a person cease to be recognised by the tag of a criminal once s/he has served their prison sentence and paid their dues to society? Or are they instead marked as higher-risk individuals who may potentially commit crimes again? It could be argued that such a definition is not warranted in a tender document, however, these are legitimate questions which should be answered prior to commissioning and building a criminal facial recognition system.

Senior and Pankanti note the generalised metaphysical consequences of pervasive video surveillance in the Handbook of Face Recognition:

“the feeling of disquiet remains [even if one hasn’t committed a major crime], perhaps because everyone has done something “wrong”, whether in the personal or legal sense (speeding, parking, jaywalking…) and few people wish to live in a society where all its laws are enforced absolutely rigidly, never mind arbitrarily, and there is always the possibility that a government to which we give such powers may begin to move towards authoritarianism and apply them towards ends that we do not endorse.”

Such a seemingly apocalyptic scenario isn’t far-fetched. In the section on ‘Mandatory Features of the AFRS’, the system goes a step further and is expected to integrate “with other biometric solution[sic] deployed at police department system like Automatic Fingerprint identification system (AFIS)[sic]” and “Iris.” This form of linking of biometric databases opens up possibilities of a dangerous extent of profiling.

While the Aadhaar Act, 2016, disallows Aadhaar data from being handed over to law enforcement agencies, the AFRS and its linking with biometric systems (such as the NAFIS) effectively bypasses the minimal protections from biometric surveillance the prior unavailability of Aadhaar databases might have afforded. The fact that India does not have a data protection law yet – and the Bill makes no references to protection against surveillance either – deepens the concern with the usage of these integrated databases.

The Perpetual Lineup report warns that the government could use biometric technology “to identify multiple people in a continuous, ongoing manner [..] from afar, in public spaces,” allowing identification “to be done in secret”. Senior and Pankanti warn of “function creep,” where the public grows uneasy as “silos of information, collected for an authorized process […] start being used for purposes not originally intended, especially when several such databases are linked together to enable searches across multiple domains.”

This, as Adam Greenfield points out, could very well erode “the effectiveness of something that has historically furnished an effective brake on power: the permanent possibility that an enraged populace might take to the streets in pursuit of justice.”

What the NCRB’s AFRS amounts to, then, is a system of public surveillance that offers little demonstrable advantage to crime-fighting, especially as compared with its costs to fundamental human rights of privacy and the freedom of assembly and association. This, without even delving into its implications with regard to procedural law. To press on with this system, then, would be indicative of the government’s lackadaisical attitude towards protecting citizens’ freedoms.

The views expressed by the authors in this article are personal.

For more details visit https://cis-india.org/internet-governance/blog/india-is-falling-down-the-facial-recognition-rabbit-hole

CIS Cybersecurity Series (Part 20) – Saumil Shah

purba — 2014-09-06T05:03:00Z

CIS interviews Saumil Shah, security expert, as part of the Cybersecurity Series.

“If you look at the evolution of targets, from the 2000s to the present day, the shift has been from the servers to the individual. Back in 2000, the target was always servers. Then as servers started getting harder to crack, the target moved to the applications hosted on the servers, as people started using e-commerce applications even more. Eventually, as they started getting harder to crack, the attacks moved to the user's desktops and the user's browsers, and now to individual user identities and to the digital personas.”

Centre for Internet and Society presents its twentieth 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.

Saumil Shah is a security expert based in Ahmedabad. He has been working in the field of security and security related software development for more than ten years, with a focus on web security and hacking.

Video

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-20-saumil-shah

Cyber Dialogue Conference 2014

praskrishna — 2014-04-08T05:09:54Z

The Cyber Dialogue conference, presented by the Canada Centre for Global Security Studies at the Munk School of Global Affairs, University of Toronto, will convene an influential mix of global leaders from government, civil society, academia and private enterprise to participate in a series of facilitated public plenary conversations and working groups around cyberspace security and governance.

Malavika Jayaram is participating in this event being held on March 30 and 31, 2014. Full event details here.

After Snowden, Whither Internet Freedom?

A recent stream of documents leaked by former NSA contractor Edward Snowden has shed light on an otherwise highly secretive world of cyber surveillance. Among the revelations — which include details on mass domestic intercepts and covert efforts to shape and weaken global encryption standards — perhaps the most important for the future of global cyberspace are those concerning the way the U.S. government compelled the secret cooperation of American telecommunications, Internet, and social media companies with signals intelligence programs.

For American citizens, the NSA story has touched off soul-searching discussions about the legality of mass surveillance programs, whether they violate the Fourth and Fifth Amendments of the U.S. Constitution, and whether proper oversight and accountability exist to protect American citizens' rights. But for the rest of the world, they lay bare an enormous “homefield advantage” enjoyed by the United States — a function of the fact that AT&T, Verizon, Google, Facebook, Twitter, Yahoo!, and many other brand name giants are headquartered in the United States.

Prior to the Snowden revelations, global governance of cyberspace was already at a breaking point. The vast majority of Internet users — now and into the future — are coming from the world’s global South, from regions like Africa, Asia, Latin America, and the Middle East. Of the six billion mobile phones on the planet, four billion of them are already located in the developing world. Notably, many of the fastest rates of connectivity to cyberspace are among the world’s most fragile states and/or autocratic regimes, or in countries where religion plays a major role in public life. Meanwhile, countries like Russia, China, Saudi Arabia, Indonesia, India, and others have been pushing for greater sovereign controls in cyberspace. While a US-led alliance of countries, known as the Freedom Online Coalition, was able to resist these pressures at the Dubai ITU summit and other forums like it, the Snowden revelations will certainly call into question the sincerity of this coalition. Already some world leaders, such as Brazil’s President Rousseff, have argued for a reordering of governance of global cyberspace away from U.S. controls.

For the fourth annual Cyber Dialogue, we are inviting a selected group of participants to address the question, “After Snowden, Whither Internet Freedom?” What are the likely reactions to the Snowden revelations going to be among countries of the global South? How will the Freedom Online Coalition respond? What is the future of the “multi-stakeholder” model of Internet governance? Does the “Internet Freedom” agenda still carry any legitimacy? What do we know about “other NSA’s” out there? What are the likely implications for rights, security, and openness in cyberspace of post-Snowden nationalization efforts, like those of Brazil’s?

As in previous Cyber Dialogues, participants will be drawn from a cross-section of government (including law enforcement, defence, and intelligence), the private sector, and civil society. In order to canvass worldwide reaction to the Snowden revelations, this year’s Cyber Dialogue will include an emphasis on thought leaders from the global South, including Africa, Asia, Latin America, and the Middle East.

For more details visit https://cis-india.org/news/cyber-dialogue-conference-2014

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