PERRY4LAW’S TECHNO-LEGAL BASE (PTLB TM/SM)

New National Telecom Network Security Policy Of India

2012-02-02T08:01:00.000-08:00

Recently a body named National Telecom Network Security Coordination Board (NTNSCB) of India has been proposed to be constituted by Indian government. The aim of establishment of NTNSCB is to ensure cyber security and telecom network security in India in a centralised manner.

The establishment of proposed NTNSCB would require formulation of telecom security policy in India and telecom equipments security framework in India at the first instance. There is no local or indigenous mechanism in India through which telecom hardware and software can be analysed for backdoors and malware.

However, Indian government has declared in the past that telecom equipments must be certified by TEC before use in India. A proposal to store call data records has also been given. The norms for import of telecom equipments in India would also be formulated very soon. Similarly, a telecom security policy of India may also be drafted.

Now as per recent media reports, telecom operators, equipment vendors, enterprise communication network users will all be made responsible for securing telecom networks under a new telecom network security policy of India. It has been reported that the policy would be drafted by the Department of Telecom (DoT) and it also intends to make network robust so that they can deal with disasters and crisis situations.

Under the proposed telecom network security policy, all telecom network equipments will have to get a “safe to connect certification” before they can be used in India. The certification will have to be done through a testing laboratory. Periodic test of the telecom networks will be carried out to ensure that no threat has crept into the network.

The proposed telecom network security also wants corporates using global enterprise communication networks to ensure that the network within the country complies with the security requirements. It is possible that network of these enterprises are subjected to laws of different countries, which may not be the same. Therefore, enterprises would have to adopt a little flexible approach in building their network security policies in such a way that part of the network in the geographical boundary of the country follows the security requirements mandated by this policy.

The policy also suggests setting up a centralised institution to address network and cyber security issues. Presently, the central monitoring system (CMS) project of India is one such centralised mechanism that DoT is planning to launch. A national cyber security policy of India may strengthen this initiative of DoT.

Google And Facebook Must Comply With Indian Laws

2012-01-29T04:29:00.000-08:00

Companies like Google, Facebook, etc are facing criminal trial in India. With the passage of time, more and more legal arsenal is now becoming available for Indian courts to hold these companies liable for violation of Indian laws. In fact, hints are now given that these companies are deliberately ignoring and violating Indian laws like copyright law, trademarks law and cyber law of India of which United States must take a serious and urgent notice.

Even laws of United States like Digital Millennium Copyright Act (DMCA) 1998 (DMCA) and Online Copyright Infringement Liability Limitation Act (OCILLA) are not complied with by many US companies and websites. A recent DMCA complaint filed with Google Incorporation and notice to Google India are still to be complied with as per US and Indian laws.

In fact, Perry4Law and Perry4Law Techno Legal Base (PTLB) have also provided their suggestion for the strengthening of remedies for small copyright claims in US that covers acts or omissions of companies like Google as well. These suggestions also cover the practical difficulties that Indian nationals, companies and Indian government face while getting the offending contents removed from companies like Google, WordPress, etc.

The new privacy policy and terms of service of Google have been recently announced and the same would become applicable from 01-03-2012. It has many far reaching legal consequences that are applicable to Indian cyberspace as well. India must develop alternatives of DMCA complaint to Google, WordPress and other companies and websites. Wherever applicable, legal blocking of foreign websites in India as per Indian laws must also be performed.

We believe that India must take urgent steps so that companies and websites like Google, Facebook, etc comply with legal demands as per Indian laws as well. We suggest the following in this regard:

(1) All subsidiary/Joint ventures companies operating in India that deal in information technology and online environment, must mandatorily establish a server in India. Otherwise, such companies and their websites should not be allowed to operate in India.

(2) A stringent liability for Indian subsidiaries dealing in information technology and online environment must be established by laws of India.

(3) More stringent online advertisement and e-commerce provisions must be formulated for Indian subsidiary companies and their websites.

We at Perry4Law and PTLB believe that any attempt by Internet intermediaries to pre screen contents uploaded by users in India is not practical and feasible. However, we believe that cyber law due diligence by Internet intermediaries operating in India cannot be taken casually and with great disregard to India laws as is presently happening in India. If companies are not willing to follow either foreign laws like DMCA or Indian laws, they clearly lack the intention to comply with various legal frameworks.

In any case, companies and websites that have Indian existence and are deriving financial gains from India must adhere to India’s laws that they are currently flouting. We hope the lower court and Delhi High Court would consider these aspects as well while deciding the fate of these companies.

India Must Invent Alternatives Of DMCA Complaint To Google And Others

2012-01-28T04:15:00.000-08:00

Of late foreign companies and websites like Google, Facebook, etc are increasingly finding themselves in the legal net of India. In fact, a criminal case is already pending against Google, Facebook, etc for failure to exercise cyber law due diligence.

If websites like Google, Facebook, etc fail to exercise cyber law due diligence as per the requirements of Indian information technology act, 2000 (IT Act 2000), the Internet intermediary protection is lost. All that is required to make Internet intermediaries like Google, Facebook, etc liable under Indian laws is to notify them about the objectionable contents.

The objectionable contents may take the form of defamatory contents, cyber stalking, pornography, religious riots incitement materials, intellectual property violating contents, etc. Indian cyber law allows 36 hours to such Internet intermediaries to remove the offending contents from their platforms.

While there is no problem in applying Indian laws to foreign companies and websites operating in India yet these companies and websites use the façade of parent company by declaring themselves as mere subsidiaries of such parent companies. And when these parent companies are called to comply with Indian laws, they openly deny the same by saying that they are governed by foreign laws.

Naturally, Indians also cannot be forced to follow foreign laws like Digital Millennium Copyright Act (DMCA) 1998 and Online Copyright Infringement Liability Limitation Act (OCILLA).

As many of you may be aware that we are currently pursuing a copyright violation, trademark infringement and impersonation matter with Google Incorporation and Google India. Further, Perry4Law and Perry4Law Techno Legal Base (PTLB) have also provided their suggestions to US Copyright office regarding remedies for small copyright claims in United States so that interests of small copyright holders can be protected.

We have also filed a DMCA complaint to Google Incorporation (US) and a notice under IT Act 2000 to Google India on 22-01-2012 for copyright violation, trademark infringement and impersonation.

From the responses we received so far, it seems Google Incorporation is not willing to respect and comply with Indian laws and Indian legal requests even if DMCA procedure is duly complied with. We are still waiting for the response of Google India and would proceed further once the time limit of 36 hours is expired.

However, this has forced us to think in a very different direction. We believe that India must take urgent steps so that companies and websites like Google, Facebook, etc comply with legal demands as per Indian laws as well. We suggest the following in this regard:

(1) All subsidiary/Joint ventures companies in India, especially those dealing in information technology and online environment, must mandatorily establish a server in India. Otherwise, such companies and their websites should not be allowed to operate in India.

(2) A stringent liability for Indian subsidiaries dealing in information technology and online environment must be established by laws of India.

(3) More stringent online advertisement and e-commerce provisions must be formulated for Indian subsidiary companies and their websites.

Further, US government needs to change its policies towards foreign IP infringements and enforcements. Incidences like not following laws of other jurisdictions are responsible for enacting harsh laws like SOPA and PIPA. These incidences are also responsible for filing of civil and criminal complaints against companies like Google in India.

Indian government and Indian courts need to consider these aspects while deciding various cases against foreign websites and social media platforms. If Indian intellectual property and cyber laws are not respected, there is no other option but to choose a harsh stand of foreign websites blocking in India.

The matter would come for hearing before the Delhi High Court on 02-02-2012 and we hope the Delhi High Court would take judicial note of these facts also while adjudicating upon that matter.

Google’s New Privacy Policy And Terms Of Service As On March 2012

2012-01-26T08:50:00.000-08:00

Google is presently managing 60 different privacy policies across multiple products and services of Google and is in the process of replacing them with a single privacy policy that’s a lot shorter and easier to read. The updated Google Privacy Policy and Terms of Service are available online to read and analyse. These changes will take effect on March 1, 2012.

Google new privacy policy would allow sharing of personal information for many reasons including for legal reasons. Google will share personal information with companies, organizations or individuals outside of Google if it has a good-faith belief that access, use, preservation or disclosure of the information is reasonably necessary to:

(a) Meet any applicable law, regulation, legal process or enforceable governmental request.
(b) Enforce applicable Terms of Service, including investigation of potential violations.
(c) Detect, prevent, or otherwise address fraud, security or technical issues.
(d) Protect against harm to the rights, property or safety of Google, our users or the public as required or permitted by law.

Google’s enforcement aspects have also been explained by the new privacy policy. Google regularly reviews its compliance with the Privacy Policy. Google also adheres to several self regulatory frameworks. When Google receives formal written complaints, Google will contact the person who made the complaint to follow up. Google works with the appropriate regulatory authorities, including local data protection authorities, to resolve any complaints regarding the transfer of personal data that Google cannot resolve with our users directly.

Google’s Terms of Services (TOS) also carry many interesting aspects. These TOS provide that the user must follow any policies made available to him within the Services. Google does not allow misusing its Services. For example, a user must not interfere with Google’s Services or try to access them using a method other than the interface and the instructions that Google provides. A user may use Google’s Services only as permitted by law, including applicable export and re-export control laws and regulations. Google may suspend or stop providing its Services to the user if he does not comply with Google’s terms or policies or if Google is investigating suspected misconduct.

Google’s Services display some content that is not Google’s. This content is the sole responsibility of the entity that makes it available. Google may review content to determine whether it is illegal or violates its policies, and Google may remove or refuse to display content that Google reasonably believe violates its policies or the law. But that does not necessarily mean that Google reviews content.

Google responds to notices of alleged copyright infringement and terminate accounts of repeat infringers according to the process set out in the U.S. Digital Millennium Copyright Act.

Google provides information to help copyright holders manage their intellectual property online. If you think somebody is violating your copyrights and want to notify Google, you can find information about submitting notices and Google’s policy about responding to notices in its Help Center.

The laws of California, U.S.A., excluding California’s conflict of laws rules, will apply to any disputes arising out of or relating to these terms or the Services. All claims arising out of or relating to these terms or the Services will be litigated exclusively in the federal or state courts of Santa Clara County, California, USA, and you and Google consent to personal jurisdiction in those courts.

Video Conferencing Laws In India

2012-01-26T07:21:00.000-08:00

Video conferencing is increasingly being used for the purposes of digital evidencing in India. Video conferencing would also be an important part of e-courts of India once they would be established. Presently, video conferencing is used for many computerised courts in India.

The information technology act 2000 (IT Act 2000) is the cyber law of India that has provided a legal framework for electronic governance, electronic commerce and many other aspects of online dealing. By implications, the IT Act 2000 also allows use of video conferencing for various purposes.

Despite these provisions and active use of video conferencing in India, video conferencing in India is a troubled technology. The recent episode of Rajasthan government and Rajasthan police not allowing the video conferencing of Salman Rushdie shows Indian anxiety with use information technology.

This controversy happened because we have no dedicated video conferencing laws and regulations in India. Obviously, we have no dedicated video conferencing blocking laws in India as well. In the absence of a clear cut law, Indian government is still applying traditional methods to regulate video conferencing in India. However, if at all any law applies to video conferencing in India the same must be the IT Act 2000 and not any Police Act or local law.

Surprisingly, few of our posts pertaining to video conferencing disappeared from Google India’s SERPs and Blogs search results and appeared again only after reporting of the same. It seems controversial posts that are well within the constitutional right to speech and expressions are screened in India once they are posted. But who is doing so is still a big question that must be answered to properly analyse the role of Internet intermediaries in India in this regard.

While Internet intermediaries have declined to pre screen users generated contents yet post screening is happening in many cases. If this post screening is happening due to Internet intermediary law of India then such post screening and removal may be fine if legally and constitutionally done. This is so because if the companies and Internet intermediaries fail to observe cyber law due diligence in India they may face civil and criminal trials in India.

It would be a good idea to clarify the position of use of video conferencing in India by Indian government so that its uses, abuses and regulation can be legally managed.

Foreign Exchange (Compounding Proceedings) Rules, 2000 Of India

2012-01-25T02:26:00.000-08:00

Reserve Bank of India (RBI) has been appointed as one of the Compounding Authority under the Foreign Exchange Management Act 1999 (FEMA 1999) that can compound certain contravention under the FEMA 1999. The regional offices of RBI have been given compounding powers under the FEMA Act 1999.

Further, the RBI master circular on compounding of contraventions under Indian FEMA 1999 has been recently issued. It prescribes a set procedure for compounding of contraventions under Indian FEMA 1999. The compounding authority (CA) can compound contraventions committed under the FEMA Act 1999 if an application has been duly made in the prescribed manner. Even a post compounding procedure of compounding authority under the Indian FEMA 1999 has been prescribed.

The Central Government has formulated the Foreign Exchange (Compounding Proceedings) Rules, 2000 under section 46 read with sub-section (1) of section 15 of the FEMA, 1999. The Rules are as follow:

(1) These Rules have come into force on the 1st day of June, 2000.

(2) Definitions - In these rules, unless the context otherwise requires -
(a) 'Act' means the Foreign Exchange Management Act, 1999 (42 of 1999);
(b) 'Authorised officer' means an officer authorised under sub-rule (1) of rule 3;
(c) 'Applicant' means a person who makes an application under section 15 (1) of the Act to the compounding authority;
(d) 'Compounding Order' means an order issued under sub-section (1) of Section 15 of the Act;
(e) 'Form' means a form appended to these rules;
(f) 'Section' means a section of the Act;
(g) All other words and expressions used in these rules and not defined but defined in the Act, shall have the meaning respectively assigned to them in the Act.

(3) (1) 'Compounding Authority' means the persons authorised by the Central Government under sub-section (1) of section 15 of the Act, namely;
(a) An officer of the Enforcement Directorate not below the rank of Deputy Director or Deputy Legal Adviser (DLA).
(b) An officer of the Reserve Bank of India not below the rank of the Assistant General Manager.

(4) Power of Reserve Bank to compound contravention -
[(1) If any Person contravenes any provisions of Foreign Exchange Management Act, 1999 (42 of 1999) except clause (a) of Section 3 of the Act.]
(a) In case where the sum involved in such contravention is ten lakhs rupees or below, by the Assistant General Manager of the Reserve Bank of India;
(b) In case where the sum involved in such contravention is more than rupees ten lakhs but less than rupees forty lakhs, by the Deputy General Manager of Reserve Bank of India;
(c) In case where the sum involved in the contravention is rupees forty lakhs or more but less than rupees hundred lakhs by the General Manager of Reserve Bank of India;
(d) In case the sum involved in such contravention is rupees one hundred lakhs or more, by the Chief General Manager of the Reserve Bank of India;

Provided further that no contravention shall be compounded unless the amount involved in such contravention is quantifiable.

(2) Nothing contained in sub-section (1) shall apply to a contravention committed by any person within a period of three years from the date on which a similar contravention committed by him was compounded under these rules.

Explanation: For the purposes of this rule, any second or subsequent contravention committed after the expiry of a period of three years from the date on which the contravention was previously compounded shall be deemed to be a first contravention.

(3) Every officer specified under sub-rule (1) of rule 4 of the Reserve Bank of India shall exercise the powers to compound any contravention subject to the direction, control and supervision of the Governor of the Reserve Bank of India.

(4) Every application for compounding any contravention under this rule shall be made in Form to the Reserve Bank of India, Exchange Control Department, Central Office, Mumbai along with a fee of Rs. 5000/- by Demand Draft in favour of compounding authority.

(5) The Power of Enforcement Directorate to compound contraventions -

2[(1) If any Person contravenes provisions of Section 3(a) of Foreign Exchange Management Act.]

(a) In case where the sum involved in such contravention is five lakhs rupees or below, by the Deputy Director of the Directorate of Enforcement;
(b) In case where the sum involved in such contravention is more than rupees five lakhs but less than rupees ten lakhs, by the Additional Director of the Directorate of Enforcement;
(c) In case where the sum involved in the contravention is rupees ten lakhs or more but less than fifty lakhs rupees by the Special Director of the Directorate of Enforcement;
(d) In case where the sum involved in the contravention is rupees fifty lakhs or more but less than one crore rupees by Special Director with Deputy Legal Adviser of the Directorate of Enforcement;
(e) In case the sum involved in such contravention is one crore rupees or more, by the Director of Enforcement with Special Director of the Enforcement Directorate.
Provided further that no contravention shall be compounded unless the amount involved in such contravention is quantifiable.

(2) Nothing contained in sub-section (1) shall apply to a contravention committed by any person within a period of three years from the date on which a similar contravention committed by him was compounded under these rules.

Explanation: For the purposes of this rule, any second or subsequent contravention committed after the expiry of a period of three years from the date on which the contravention was previously compounded shall be deemed to be a first contravention.

(3) Every officer of the Directorate of Enforcement specified under sub-rule (1) of this rule shall exercise the powers to compound any contravention subject to the direction, control and supervision of the Director of Enforcement.

(4) Every application for compounding any contravention under this rule shall be made in Form to the Director, Directorate of Enforcement, New Delhi, along with a fee of Rs.5000 by DD in favour of the Compounding Authority.

(6) Where any contravention is compounded before the adjudication of any contravention under section 16, no inquiry shall be held for adjudication of such contravention in relation to such contravention against the person in relation to whom the contravention is so compounded.

(7) Where the compounding of any contravention is made after making of a complaint under sub-section (3) of section 16, such compounding shall be brought by the authority specified in rule 4 or rule 5 in writing, to the notice of the Adjudicating Authority and on such notice of the compounding of the contravention being given, the person in relation to whom the contravention is so compounded shall be discharged.

(8) Procedure for Compounding -

(1) The Compounding Authority may call for any information, record or any other documents relevant to the compounding proceedings.
(2) The Compounding Authority shall pass an order of compounding after affording an opportunity of being heard to all the concerned as expeditiously as possible and not later than 180 days from the date of application.

(9) Payment of amount compounded -

The sum for which the contravention is compounded as specified in the order of compounding under sub-rule (2) of rule 8, shall be paid by demand draft in favour of the Compounding Authority within fifteen days from the date of the order of compounding of such contravention.

(10) In case a person fails to pay the sum compounded in accordance with the rule 9 within the time specified in that rule, he shall be deemed to have never made an application for compounding of any contravention under these rules and the provisions of the Act for contravention shall apply to him.

(11) No contravention shall be compounded if an appeal has been filed under section 17 or section 19 of the Act.

(12) Contents of the order of the Compounding Authority -

(1) Every order shall specify the provisions of the Act or of the rules, directions, requisitions or orders made there under in respect of which contravention has taken place along with details of the alleged contravention.
(2) Every such order shall be dated and signed by the Compounding Authority under his seal.

(13) Copy of the order - One copy of the order made under rule 8(2) shall be supplied to the applicant and the Adjudicating Authority as the case may be.

Post Compounding Procedure Of Compounding Authority Under Indian FEMA Act 1999

2012-01-24T21:06:00.000-08:00

In this special column, Mr. B.S.Dalal, Senior Partner at Perry4Law and a Techno Legal Banking and Financial Expert, is discussing the post compounding procedure for Compounding Of Contraventions Under Indian FEMA, 1999, as followed by the Compounding Authority.

Reserve Bank of India (RBI) is one of the Compounding Authority under the Indian Foreign Exchange Management Act (FEMA), 1999 that compounds certain contravention under the FEMA Act 1999. The regional offices of RBI have been given compounding powers under the FEMA Act 1999.

RBI master circular on compounding of contraventions under Indian FEMA 1999 has been recently issued. It prescribes a set procedure for compounding of contraventions under Indian FEMA 1999. The compounding authority (CA) can compound contraventions committed under the FEMA Act 1999 if an application has been duly made in the prescribed manner.

Once an application has been made in prescribed manner and a compounding order has been made, the post compounding procedure starts. It is as follows:

(1) The sum for which the contravention is compounded as specified in the order of compounding under sub-rule (2) of Rule 8 of Foreign Exchange (Compounding Proceedings) Rules, 2000 is payable by way of a demand draft in favour of the “Reserve Bank of India” within fifteen days from the date of the order of compounding of such contravention. The demand draft has to be deposited in the manner as directed in the compounding order.

(2) The provisions of the Rules do not confer any right on the contravener, after a compounding order is passed, to seek to withdraw the order or to hold the compounding order as void or request a review of the order passed by the CA.

(3) In case of failure to pay the sum compounded within the time specified in the compounding order, it shall be deemed in terms of Rule 10 of the Foreign Exchange (Compounding Proceedings) Rules, 2000, that the contravener had never made an application for compounding of any contravention under these Rules.

(4) On realization of the demand draft for the sum for which contravention is compounded, a certificate in this regard shall be issued by the Reserve Bank subject to the specified conditions, if any, in the order.

(5) In respect of the contraventions of FEMA, 1999 (as defined in section 13 of the FEMA, 1999), which are not compounded by the Compounding Authority, other relevant provisions of FEMA, 1999, shall apply.

However, there are certain pre-requisites for compounding process that must be met by the contravener before a compounding order can be passed. These are as follow:

(1) In respect of a contravention committed by any person within a period of three years from the date on which a similar contravention committed by him was compounded under the Compounding Rules, such contraventions would not be compounded. Such contravention would be dealt with under relevant provisions of the FEMA, 1999 for contravention. Any second or subsequent contravention committed after the expiry of a period of three years from the date on which the contravention was previously compounded shall be deemed to be a first contravention.

(2) Contraventions relating to any transaction where proper approvals or permission from the Government or statutory authority concerned, as the case may be, have not been obtained, such contraventions would not be compounded unless the required approvals are obtained from the authorities concerned.

(3) Cases of contravention, such as, those having a money laundering angle, national security concern and / or involving serious infringements of the regulatory framework or where the contravener fails to pay the sum for which contravention was compounded within the specified period in terms of the compounding order, shall be referred to the Directorate of Enforcement for further investigation and necessary action under FEMA, 1999 or to the authority instituted for implementation of the Prevention of Money Laundering Act 2002, (PMLA) or to any other agencies, for necessary action , as deemed fit.

(4) The Reserve Bank generally advises the persons concerned of their choice and option to make an application for compounding as and when such contraventions come to its notice. The facts constituting such contraventions will be brought to the notice of the Directorate of Enforcement in case no application for compounding is made within the time indicated by the Reserve Bank.

RBI Master Circular On Compounding Of Contraventions Under Indian FEMA, 1999

2012-01-24T08:42:00.000-08:00

In this special column, Mr. B.S.Dalal, Senior Partner at Perry4Law and a Techno Legal Banking and Financial Expert, is discussing the current position of Compounding Of Contraventions Under Indian FEMA, 1999.

In the past, Reserve Bank of India (RBI) has liberalised and decentralized many crucial issues of Indian Foreign Exchange Management Act (FEMA), 1999. This includes the procedure for compounding of contraventions under the FEMA 1999. Now the RBI has issued a master circular that further elaborates about this crucial issue.

The compounding of contraventions under FEMA, 1999 is a voluntary process by which an applicant can seek compounding of an admitted contravention of any provision of FEMA, 1999 under Section 13(1) of the FEMA, 1999.

The compounding provisions are presently available till 30th June 2012 as they are subject to a sunset clause of one year. In short, the master circular would cease to be operative on July 1, 2012 and would be replaced by a new Master Circular in this regard.

Under the FEMA 1999, if an individual/person violates the provisions of this Act or corresponding rules, notifications, direction, etc, he shall, upon adjudication, be liable to a penalty up to thrice the sum involved in such contravention where the amount is quantifiable or up to Rupees Two lakh, where the amount is not quantifiable.

For repeated infringers more stringent provisions have been prescribed. The Act provides that where the contravention is a “continuing one”, further penalty, which may extend to Rupees Five thousand for every day after the first day during which the contravention continues, may be imposed.

As per the Rule 4 of the Foreign Exchange (Compounding Proceedings) Rules, 2000, the powers to compound the contraventions have been prescribed for compounding authorities with regard to the sum involved in such contravention and no contravention shall be compounded unless the amount involved in the contravention is quantifiable.

The Foreign Exchange (Compounding Proceedings) Rules, 2000 empowers RBI to compound contraventions under FEMA, 1999. The provisions of Section 15 of FEMA, 1999 permit compounding of contraventions and empower the Compounding Authority to compound any contravention as defined under Section 13 of the Act on an application made by the person committing such contravention either before or after the institution of adjudication proceedings.

The responsibility of administering compounding of contraventions has been entrusted to RBI except contraventions that are covered under Section 3(a) of FEMA, 1999. Thus, collectively the compounding powers of RBI and the Directorate of Enforcement (DoE), respectively, are as under:

(a) RBI has been empowered to compound the contraventions of all the Sections of FEMA, 1999, except clause (a) of Section 3 of the Act,

(b) Directorate of Enforcement would exercise powers of compounding under clause (a) of Section 3 of FEMA, 1999 (dealing essentially with Hawala transactions).

For effective implementation of compounding process under FEMA, 1999, RBI has framed the procedure for compounding of contraventions. Once a contravention has been compounded by the Compounding Authority, no proceeding or further proceeding will be initiated or continued, as the case may be, against the contravener.

The Regional Offices of the RBI, as mentioned below, can compound the contraventions of FEMA involving (i) delay in reporting of inward remittance, (ii) delay in filing of form FC-GPR after allotment of shares and (iii) delay in issue of shares beyond 180 days (viz. paragraphs 9(1)(A), 9(1)(B) and 8, respectively, of the Schedule I to the Foreign Exchange Management (Transfer or Issue of Security by a Person Resident Outside India) Regulations, 2000, notified vide Notification No. FEMA 20/2000-RB dated 3rd May 2000 and as amended from time to time:

(a) Bhopal, Bhubaneshwar, Chandigarh, Guwahati, Jaipur, Jammu, Kanpur, Kochi, Patna and Panaji for amount of contravention below Rupees One hundred lakh only (Rs. 1,00,00,000 /-).

(b) Ahmedabad, Bangalore, Chennai, Hyderabad, Kolkata, Mumbai and New Delhi for amount of contravention without any limit.

Video Conferencing Blocking Laws In India

2012-01-24T07:29:00.000-08:00

Video conferencing has revolutionized the way our say to day affairs are managed. Video conferencing facilitates many important commercial and personal communications in a cost effective and efficient manner.

Obviously, video conferencing is regulated by laws of various nations. However, we have no dedicated video conferencing law in India. Of course, some shades of video conferencing regulations are governed by the cyber law of India incorporated in the form of information technology act 2000 (IT Act 2000).

However, there is no express provision that talks about blocking of video conferencing in India except to the extent permitted by the IT Act 2000. Video conferencing, just like other electronic communications, should be allowed unless it can be blocked as per the provisions of IT Act 2000 or other applicable laws. Even for such blocking of video conferencing in India, the norms established by the IT Act 2000 or any other similar law must be followed.

It seems the norms laid down by the IT Act 2000 have not been followed by the Rajasthan government and Rajasthan police and by not allowing the video conferencing of Salman Rushdie, without complying with the requirements of IT Act 2000, they have clearly transgressed the constitutional limitations that they are constitutionally bound to observe.

The fundamental right to speech and expression cannot be defeated through arbitrary and extraneous methods. Right to speech and expression can be curtailed only as per the well established constitutional procedure.

Although the intentions of Rajasthan government may be legal and justified yet the manner of executing those intentions is clearly unconstitutional. The legality and constitutionality of the Rajasthan government’s action is still doubtful and appropriate action must be taken in this regard.

Video Conferencing Laws And Regulations In India

2012-01-24T02:43:00.000-08:00

Use of vide conferencing in business community of India is not new and it is in use for long. Even use of vide conferencing for legal and judicial purposes is not new in India. Courts in India have been using video conferencing for litigation purposes especially for receiving evidence from witness.

Even Indian laws like Information Technology Act, 2000 (IT Act 2000), Code of Criminal Procedure, 1973, Indian Evidence Act, 1872, etc allows use of video conferencing for various legal and judicial purposes. The cyber law of India even confers recognition to electronic documents, e-governance and e-commerce.

Use of information technology for legal and judicial purposes is well known. For instance, IT can be use for establishment of e-courts in India. Similarly, IT can also be used for establishing online dispute resolution (ODR) mechanism in India. Even electronic bail granting and communication system in India may be a possibility in near future.

However, use of video conferencing in India is not free from trouble. Recently a man who filed his divorce petition through a video conference from Canada was directed to make a personal appearance in the court. Now personal appearance is a concept that strikes at the very concept of e-courts and video conferencing.

Similarly, the recent cancellation of the Salman Rushdie’s video conferencing in India is another example of troubled use of the same in India. It seems the permission to broadcast such video conferencing was not given by the police.

Crucial speech and expression and law and order maintenance issues are involved in such cases. There is an urgent need to formulate clear and constitutional norms and regulations regarding video conferencing in India.

Legal Issues Of Cloud Computing In India

2012-01-23T08:51:00.000-08:00

Cloud computing is a process in which essential hardware and software based services are provided by a third party with no requirement to install such hardware and software by the service seeker. In other words, computational powers, hardware upgrades and latest software are provided on rent in an online environment where individuals and organisations can use the same.

Cloud computing is basically a cost saving mechanism where hardware and software costs are saved by using third party hardware and software. However, cloud computing has its own share of troubles especially in countries like India.

For instance, as per the research and studies of Perry4Law and Perry4Law Techno Legal Base (PTLB), cloud computing in India is risky and India is not ready for cloud computing. Now even other companies have endorsed this conclusion and it has been reported that chief information officers (CIOs) in India are not comfortable using cloud computing in India.

So the chief problem that is emerging in India is that cloud computing in India is still not trusted and India is still not ready for cloud computing. We have no cloud computing policy of India.

This is the reason why cloud computing in India is still at the infancy stage. The primary reasons for this situation is absence of legal framework for cloud computing in India, missing privacy laws, absence of data protection laws in India, inadequate data security in India, etc. Even the basic level cloud computing regulations in India are missing.

Even the cloud computing due diligence in India is missing and companies and individuals are using the same in great disregard of the various laws of India. Cloud computing service providers in India are required to follow cyber law due diligence in India. The cyber law due diligence for Indian companies is now well established but cloud computing and e-commerce service providers are not taking it seriously.

In fact, some companies are already facing a criminal trial in India for posting of objectionable contents by third parties on their platforms. Cloud companies are also required to follow the cyber law of India before they establish their businesses in India. This seems to be missing for the time being.

In fact, many legal experts in India have opined that India must not use software as a service (SaaS), cloud computing, m-governance, etc till proper legal frameworks and procedural safeguards are at place. This has also been accepted by the CIOs community and it is now for the Indian government to do the needful.

Huawei And ZTE In Telecom Security Tangle Of India

2012-01-23T07:34:00.000-08:00

With the proposal to establish National Telecom Network Security Coordination Board (NTNSCB) of India, the issues of cyber security and telecom security in India have arisen once again. Even the national telecom policy of India 2011 reflects these concerns.

The issues pertaining to telecom security policy in India and telecom equipments security framework in India are not new. The home ministry of India and ministry of information and communication technology have been raising security concerns regarding telecom hardware manufactured by foreign dealers. Concerns regarding possible existence of backdoors in such hardware are frequently raised in India.

There is no mechanism in India through which telecom hardware and software can be analysed for backdoors and malware. Indian government has declared that telecom equipments must be certified by TEC before use in India. A proposal to store call data records has also been given. The norms for import of telecom equipments in India would also be formulated very soon (may be already formulated).

At present, India has two separate policy guidelines for import of telecom gear. Chinese vendors such as Huawei and ZTE follow the July 2010 guidelines while Western telecom equipment manufacturers were given the option of following the policy issued in late 2009, after they refused to operate in India under the July rules.

According to latest news, in an internal report, the security unit of the department of telecommunication (DoT) has raised fresh concerns about Chinese equipment vendors - Huawei and ZTE. The report adds that India must also be on the guard against equipment from the West, including US and Europe. It has been reported that the new security norms had brought all these vendors under a common security framework.

To counter the possible threats from foreign hardware vendors, India is encouraging to develop indigenous hardware manufacturing capabilities. In fact, India has announced to give preferences, including tax cuts, to indigenously manufactured telecoms equipment, despite concerns raised by the United States and the European Union, which had said that such concessions would violate WTO commitments.

There is an urgent need to provide reasonable and sufficient regulatory norms regarding telecom security in India. The sooner they are formulated the better it would be for all the telecom stakeholders in India.

National Telecom Network Security Coordination Board (NTNSCB) Of India

2012-01-23T02:19:00.000-08:00

Announcement pertaining to telecom security and cyber security in India have been made from time to time. Even a new national telecom policy of India 2011/2012 has also been suggested by Department of Telecommunication (DoT), India.

DoT has also suggested the creation of the Telecoms Security Council of India (TSCI) that would look into security related aspects of hardware and network equipments. In the past proposals for the establishment of Telecom Security Regulatory Authority of India (TSRAI) were also mooted.

However, till now we have no telecom security policy in India and telecom equipments security framework in India. There is no mechanism in India through which telecom hardware and software can be analysed for backdoors and malware. Now Indian government has declared that telecom equipments must be certified by TEC before use in India. A proposal to store call data records has also been given. The norms for import of telecom equipments in India would also be formulated very soon. Similarly, a telecom security policy of India may also be drafted.

In the past news regarding establishment of various authorities to safeguard telecom security in India have also surfaced. These proposed authorities include Authority for Telecom Security in India, Telecom Security Council of India, etc. Further legal framework to streamline telecom related issues in India have also bee suggested. The National Spectrum Act of India is also in pipeline.

Now as per the latest news, Indian government is planning to form a new body to supervise telecom and cyber security in India. This may be a good step in right direction or just another declaration with no actual implementation, just like the past declarations.

The proposed body plans to oversee telecom and cyber security to avoid overlap between various ministries and intelligence agencies that are currently handling this issue. The proposed body has been given the name National Telecom Network Security Coordination Board (NTNSCB) of India.

It has been proposed to establish the same at Department of Information technology (DIT) and it may be headed by the telecom secretary. The NTNSCB will have representatives from the defence and home ministries, intelligence agencies, IT department, intelligence bureau, National Security Advisor and NTRO, among others reports Economic Times.

In addition to suggesting measures to address network security related issues, NTNSCB will also set up objectives and targets to the various departments and agencies handling telecom and cyber security related issues. The NTNSCB may also facilitate the Central Monitoring system (CMS) Project of India. This is a good step and its implementation is urgently required.

Legal Actions Against Offending Foreign Websites In India

2012-01-21T02:16:00.000-08:00

Websites based in foreign jurisdictions are engaging in various forms of illegal activities that are offences under Indian laws. For instance, they are openly violating intellectual property rights (IPRs) like copyright of Indian nationals. When these foreign websites are contacted to remove the offending contents, they simply ask you to follow foreign law procedures that are neither practical nor effective for an Indian national.

Take another example. A foreign website is openly hosting defamatory remarks as per Indian laws against you. You request the website to remove the same and the same are still not removed.

Another common example is hosting and publication of pornographic and obscene contents upon a platform or website. Even worst is the case when a morphed photograph of a female member of your family is posted on such platform. You contact the website to remove the same but they never listen to you.

Even worst case is the illegal sales of drugs and medicines online without a prescription slip. Many prohibited medicines are sold in countries through websites in clear disregard of local laws.

Another example may be of offering illegal sex determination tests through websites. Many countries of the world prohibit such testing and India is one of them.

These are some of the examples where day to day lives are affected by culpable conducts in an online environment. Many believe that no effective actions can be taken against such foreign websites in India. However, this is not true.

Under the cyber law of India, appropriate legal actions can be taken against such foreign websites if they have sufficient connection or nexus with Indian jurisdiction. Although an international cyber law treaty is required to being uniformity in legal frameworks yet till such time local laws of India and foreign laws can be invoked to get appropriate remedy.

Further, if nothing works, blocking of such offending websites in India can be undertaken. It would be wrong to suggest that such websites cannot be blocked in India by a court order or through an order of department of information technology, India.

India must formulate appropriate laws or regulations to make such offending foreign websites liable under Indian laws. Further, special regulations for their subsidiaries operating in India must be made so that they cannot do more business than as mentioned in such regulations. A sound tax framework for such subsidiaries must be formulated so that there cannot be any case of tax evasion and tax manipulations by such subsidiaries.

Cyber Law Trends Of India 2012

2012-01-16T18:33:00.000-08:00

The cyber law trends of India 2011 were provided by Perry4Law and Perry4Law Techno Legal Base (PTLB). This trend covered many techno legal issues that are of tremendous importance to various stakeholders. However, it seems various stakeholders have still not taken issues like cyber law, cyber security, cyber due diligence, e-discovery, social media due diligence, etc seriously.

The year 2012 would be even more challenging for various stakeholders in India and world wide. This is more so for US based companies and websites that are increasingly involved in various conflict of laws issues with India. Some of the issues that may be challenging of various stakeholders in 2012 include legal issues of cyber security, privacy and data protection requirements, cloud computing security and privacy issues, e-surveillance and Internet censorship issues, cyber due diligence requirements, social media due diligence, data privacy laws, online IP violations including copyright violations issues, etc.

The cyber law due diligence in India struck the first blow in the year 2012. Companies like Google, Yahoo, Microsoft, Facebook, etc are already facing criminal prosecution under the cyber law of India and other criminal laws. So serious is the situation that the executives of parent companies of these companies have been summoned to personally appear before Indian court.

Further, online copyright violations by US websites are also testing the effectiveness of US laws vis-à-vis foreign IP rights enforcement. Many websites in US are talking advantage of the conflict of laws and hide behind US laws to escape copyright violation liabilities. In fact, the US copyright office is trying to streamline the Digital Millennium Copyright Act (DMCA) 1998 requirements pertaining to DMCA agents so that safe harbour protection cannot be misused by US based websites.

Perry4Law and PTLB believe that the year 2012 would bring many techno legal challenges in the fields like cyber law, cyber security, e-discovery, cyber law due diligence, online IP enforcements, etc. Further, new fields like e-legal due diligence and technological legal due diligence in India would also assume significance. It would be a good idea to formulate suitable policies in this regard by various stakeholders.

US Companies, India, Conflict Of Laws And Criminal Liabilities

2012-01-16T17:50:00.000-08:00

Companies like Google, Microsoft, Yahoo, etc and social media websites like Facebook, etc are currently facing criminal trail in India for not removing objectionable contents from their respective websites.

According to cyber law of India and laws of other jurisdiction, the safe harbour protection of Internet intermediaries is lost the moment they are notified of the offending act or omission. However, till they are notified regarding offending contents, they are not liable for violations committed by their users.

However, US companies are not following Indian laws and they are insisting upon following of US laws even if Indian laws are clearly violated. For instance, websites located in US are openly violating the copyright of Indian websites and when they are contacted in this regard to remove the copyright violating posts they ask Indians to use US laws like Digital Millennium Copyright Act (DMCA) 1998.

Surprisingly, even if these US companies are informed in writing and with relevant information like weblinks of copyright violating posts and copyright subsisting posts, they still insist upon following of DMCA procedure. What is more frustrating is that a majority of these US websites and companies are themselves not following the requirements of DMCA and hence are not entitled to its safe harbour protection.

Even in the case of cyber laws, US companies are applying US standards and are not following Indian standards. This is a classic situation that is occurring due to conflict of laws. This is also the reason why an international cyber law treaty is required to being harmonious application of cyber law principles.

US need to change its policy regarding enforcement of foreign IP rights and cyber laws. By not respecting the laws of other countries, US websites and companies are imposing laws like SOPA and PIPA upon themselves. Further, companies like Google must pay special attention as they are deriving revenue out of online advertisements placed upon such copyright violating posts. This makes them not only a beneficiary but also liable for damages in appropriate cases.

Companies like Microsoft, Yahoo, Google and Facebook are facing prosecution under the Indian cyber law. Further, if we analyse the cyber law trends in India of 2012 and cyber security trends of India 2012, such prosecutions are going to increase further in future. Insisting upon following of US laws to take action against offenders and websites located in US would not serve any purpose if branches or subsidiaries of such companies are located in India. Further, if such websites and companies fail to comply with Indian laws, Indian government can block such foreign websites in India.

The present litigation before Indian courts is just a beginning and US companies and websites must start respecting Indian laws. If cyber crimes are committed with great disregard to Indian laws and the copyright and other IP rights are openly violated by such companies and websites, their prosecution in India is inevitable. Perry4Law and Perry4Law Techno Legal Base (PTLB) strongly recommend that such foreign companies and websites must ensure cyber due diligence in India to escape various civil, criminal and financial obligations.

Why Vinay Rai Did Not Contact The Concerned Websites?

2012-01-16T09:15:00.000-08:00

Vinay Rai, the person behind criminal complaint against social media websites and companies like Facebook and Google, has become instrumental in testing the internet intermediary law of India. Presently, Google and Facebook are gripped in the Indian cyber law tangle.

To make the matter worst, not only the executives of parent companies have been personally summoned by the trial court but it has also been proved that Google and Facebook are beneficiaries of the revenue arising out of offending contents. This may make even the subsidiary companies of Google and Facebook liable for violation of Indian laws.

It is not the case that these companies have not protested in the past against the provisions of the Indian laws. For instance, Yahoo had filed a petition raising the questions regarding the right to privacy of a company that stores sensitive data of its customers and users and to what extent Indian authorities can coerce it to part with the information considered necessary to either track terror perpetrators or thwart future attacks.

The Google’s outcry for lack of Internet intermediary law in India is another example of growing dissatisfaction towards Indian cyber laws, especially Internet intermediary laws and social media laws of India. But the same has come too late and is too insignificant at this stage.

However, in this entire episode one thing is simply not understandable. Why Vinay Rai did not contact the concerned websites and brought to their knowledge about the offending contents? As per Vinay he did not deem it appropriate to approach foreign companies himself. Rather he thought it fit to invoke the governmental machinery to get appropriate remedy.

Surprisingly, he has been pursuing this matter with the information technology ministry for over a year now. The ministry took no action despite constant reminders and follow ups from his end. It was only two to three months ago that the ministry held an internal meeting on the issue and ordered enquiry.

It seems both Vinay Rai and our IT ministry are guilty of not taking appropriate steps in this regard. Clearly, Vinay Rai did not approach these companies and informed them about the offending contents. Now the only question that remains to be seen is whether the IT ministry has also not contacted these companies in this regard?

If even the IT ministry has not intimated these companies “appropriately”, then this may be as serious lapse on the part of Indian government. In such a situation companies like Google, Facebook, etc cannot be held liable for offensive contents posted by the users. Only time would tell what was communicated and what was not and who is responsible and who is not.

Corruption And Technology Related Due Diligences In India

2012-01-16T03:54:00.000-08:00

The recent spate of corruption related disclosures in India has sent a strong message to Indian and foreign companies to ensure that their business are strictly in compliance with Indian and foreign laws. Naturally, companies that have entered into merger and acquisitions (M&A) in the past are now looking forward to ensure that nothing fishy happened during such M & A transactions.

These Indian and foreign companies are worried about the potential legal and tax liabilities arising out of various scams and corporate frauds and they are engaging law firms to do a due diligence analysis on the M&As or foreign direct investments (FDIs) they’ve made in India. Law firms are carrying out legal due diligence exercises to detect any loopholes that could result in liabilities on behalf of their clients to avoid litigation possibilities arising out of deals done in the past.

Some multinational companies are also doing legal due diligence to ensure that the Indian subsidiaries and companies they are about to invest or have already invested in are complying with the foreign laws like Foreign Corrupt Practices Act (FCPA) 1977 of the US and the UK Bribery Act 2010.

Even companies that are now exploring the possibility of M&A are taking precautions before entering into such partnerships. While there is no particular department for dealing with all the aspects of corporate business at a single place (Ministry of Corporate Affairs deals with corporate matters) yet department of information technology (DIT) is the chief department that deals with technology related issues. These include cyber law, cyber security, e-commerce, e-governance, spectrum allocation, telecom licensing, etc.

However, till now companies were not very cautious in their dealings in cyberspace and technology related fields. The information technology act 2000 (IT Act 2000) is the cyber law of India that prescribes various cyber law due diligence in India for areas like e-commerce, e-governance, Internet intermediary liability in India, social media due diligence in India, etc.

However, companies are in controversy these days in India. For instance, doubts have been raised regarding the manner in which Reliance and Airtel blocked websites in India. Similarly, some have even suggested that DIT must investigate the case of blocking of websites in India by Reliance, Airtel and other Internet service providers (ISPs).

Similarly, companies like Google, Facebook, etc are already in cyber law legal tangle in India. Indian government is claiming that these companies failed to comply with Indian laws, including cyber law of India. While the guilt or innocence of these companies is still to be established yet this episode has shown the importance of cyber due diligence for Indian companies.

Cyber crimes at social media websites in India are increasing and these social media platforms cannot ignore the same especially once they are made aware of the same. The social media websites investigation in India is going to increase and more and more e-discovery for social media in India would be conducted. Even cyber law due diligence for banks in India is going to increase.

Another area that requires a special mention is the contemporary practice known as e-legal due diligence in India. This requires domain specific techno legal expertise and a sound knowledge of both technical and legal aspects. It is an advanced and improved form of traditional legal due diligence in India that is done in an offline environment. With companies now shifting their data and information to data centers and virtual data rooms (VDRs), e-legal due diligence in India and abroad would be the norm.

Perry4Law and Perry4Law Techno Legal Base (PTLB) strongly recommend that Indian and foreign companies must conduct a thorough corruption and technology related due diligence analysis in India as soon as possible.

India Must Stress Upon International Cyber Law Treaty

2012-01-12T05:55:00.000-08:00

United States (US) has been working in the direction of making laws that are primarily targeted towards foreign websites. This means that foreign websites that are indulging in unethical behaviours like cyber crimes, intellectual property rights (IPRs) violations, etc can be forced to be taken down or blocked in US by US government.

While this is a policy decision of US that has been widely criticised yet very few have raised points regarding violations of IPRs by US companies of foreign nationals. For instance, if an Indian has to inform a US website of copyright violation, he has to essentially follow the provisions of Digital Millennium Copyright Act (DMCA) 1998. In fact, even those US websites that are themselves not following DMCA and are not entitled to “safe harbour” provisions are insisting upon DMCA notices.

Clearly, US policy towards IP violations of foreign nationals needs to be revised. On the contrary laws like Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011 (PIPA) and the "Stop Online Piracy Act (SOPA) has also been proposed. They target foreign nationals and websites with almost no additional liabilities for US websites and citizens. Clearly, US websites and companies are forcing US and other nations to enact laws like SOPA and PIPA by not taking down IPRs violating materials.

If the attitude of US websites and companies is not changed other countries may also consider enacting draconian laws like SOPA and PIPA. In the absence of reciprocal arrangement between US and India, the least India can do to prevent cyber crimes against and IPRs violation of Indian citizens is to block websites that engage in such activities. This is more so for those websites and Internet intermediaries that deliberately ignore compliances of Indian laws.

While laws like SOPA and PIPA are targeting foreign websites including Indian websites yet the foreign websites, including US websites, are not complying with Indian cyber law and copyright law. The Indian Copyright Act, 1957 and Indian Information technology Act, 2000 prescribes various civil, criminal and administrative penalties that are presently not implantable against such foreign websites. India must seriously discuss this issue with US as this also amounts to non compliance of the provisions of Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS Agreement).

The real problem in this regard seems to be that there is no International cyber law treaty that is universally followed. Different countries have different cyber laws and this result in confusion and non enforcement. Even there is no international cyber security treaty that can be followed globally. International cyber law treaty and Indian role cannot be underestimated in this regard.

India must stress upon formulation of an international cyber law treaty to safeguard the interests of its own citizens as countries like US are doing in the absence of mutual cooperation.

Electronic Authentication Policy Of India

2012-01-11T04:46:00.000-08:00

Electronic authentication (e-authentication) is a very useful service provided it is safe, secure and reliable. Similarly, e-authentication must also be supported by a sound legal framework that governs its uses and abuses.

We have no e-authentication policy in India. Even we have no legal framework for e-authentication in India. Although some efforts in this regard were made through the Aadhar project of India yet the very constitution and functioning of Aadhar project is unconstitutional. For some strange reasons, the unique identification authority of India (UIDAI), which is managing the Aadhar project, thinks that it is above constitution of India. This attitude of Aadhar and UIDAI has brought it to a stage where it is about to be scrapped.

So as on date we have no legal framework for e-authentication in India, no authority that can deal with e-authentication in India and no policy framework for e-authentication in India that has been implemented at the national level. If this is not enough, we have no encryption usage policy of India that can ensure cyber security of e-authentication in India.

If both cyber security in India and use of encryption in India are missing, the credibility of any e-authentication system is in great doubt. Possibility of data breaches and cyber attacks cannot be ruled out. Securing of critical national infrastructure of India from cyber attacks has still not achieved and introducing an e-authentication system without robust cyber security is not a wise move.

The cyber security trends in India 2011 by Perry4Law Techno Legal Base (PTLB) indicate that cyber security in India is still ignored by various stakeholders. Whether it is banks or strategic computers of Indian government, all of them have proved to be vulnerable to cyber attacks.

E-authentication is also useful for providing mobile banking services in India. Cyber security of Internet banking in India is still poor and e-banking risks in India are abundant. Mobile banking cyber security in India is still to be established before it can be explored in India.

E-authentication cannot succeed in India till we take care of various techno legal policy issues. Without removing various obstacle of e-authentication, using the same in India would create more problem than solutions providing.

Mobile Banking Cyber Security In India

2012-01-08T07:57:00.000-08:00

Mobile Banking is the buzz word these days. While the idea of mobile banking is promising yet it requires certain prerequisites to be successful in India. The chief among these requirements is the requirement to have a robust cyber security for mobile banking in India.

Cyber security in India in general and cyber security for online banking transactions in particular is not in good shape. The Cyber security trends in India 2011 also reflected this position. Mobile banking in India is still not popular due to various factors. For instance, e-banking in India is not safe, Internet banking cyber security in India is missing and online banking in India is not safe. In these circumstances, mobile banking in India is risky due to absence of mobile cyber security in India.

Even the Reserve Bank of India (RBI) is aware of this situation. RBI constituted a working group on information security to ensure cyber security among Indian banks. As per RBI’s recommendations, all banks should create a position of chief information officers (CIOs) as well as steering committees on information security at the board level at the earliest.

However, banks of India have shown no willingness to incorporate cyber security into their day to day functions. Till now the directions of RBI to appoint CIOs and steering committee has not been followed by banks of India. The recommendations of the RBI have still not been implemented.

Naturally, Indian banks are poor at developing cyber security policies and implementing the same. Banks of India are also not providing positive confirmation to the originator of NEFT transactions. When basic level aspects are missing, incorporating cyber security in the day to day transactions of banks in India is really difficult. In these circumstances, the decision of RBI to remove financial limits from mobile banking transaction in India can be a trouble than facility. Hopefully, the proposed integrated banking law of India would address all these issues.

However, Indian banks cannot afford to ignore one aspect. The cyber law in India has prescribed cyber law due diligence for various stakeholders. Cyber due diligence for banks in India is just a part of the same. Cyber due diligence for Indian companies including banks operating in India is very stringent. If these due diligence requirements are not followed by Indian banks, civil, criminal and financial penalties can occur.

Cyber security for banking and financial sectors of India is urgently required as they perform very crucial functions. RBI must ensure the same by getting its directions strictly enforced as soon as possible.

Electronic Filing Of Consumer Complaints In India

2012-01-08T06:27:00.000-08:00

The use of information and communication technology (ICT) for justice delivery system is well known. Even use of ICT for judicial and legal reforms in India is well understood. The role of ICT for effective judicial system in India is though well known yet very few efforts in this regard have been undertaken in India.

One can understand this position from the fact that till now we are still waiting for the establishment of first e-court in India. Even we have a single techno legal e-courts training and consultancy centre in India. Similarly, online dispute resolution in India is still a distant dream.

However, India cannot remain aloof for long in this regard. The information technology act, 2000 (IT Act 2000) already carries non enforceable e-governance provisions and with the proposed electronic delivery of services bill 2011 of India this e-governance mandate is going to be little bit more enforceable.

In fact, positive developments in this regard have already taking a shape in India. For instance, the financial limits of mobile banking transactions in India have been removed to give better options of banking in India. Similarly, SEBI is contemplating electronic initial public offer (EIPO) in India. Even Indian judiciary is exploring the possibility of using an electronic bail communication system in India. Through the proposed Cable TV Networks (Regulation) Second Amendment Bill 2011 of India, digital television services would be offered to consumers at affordable prices and with superior quality.

In a latest development in this direction, electronic filing of consumer complaints would be allowed if the proposed consumer protection (amendment) bill 2011 is made an enforceable law. The proposed amendment has made provision for making of a complaint by electronic form also to the District Forum.

This is a positive development and it would help in expanding consumer protection in India. However, there are many techno legal issues that must also be adhered to before e-filing of consumer complaints in India is made fully operational. But these issues would be sorted out with the passage of time.

Critical Infrastructure Protection (CIP) And Homeland Security (HS) In India

2012-01-06T00:33:00.000-08:00

World over critical infrastructure protection (CIP) and homeland security (HS) are considered as top priority areas. This is logical as well since both CIP and HS are important parts of national security of any nation.

With the growing use and dependence upon information and communication technology (ICT), nations are focusing upon ensuring robust cyber security. The international cyber security policy framework and Indian response to the same are proof of the same. In fact, India is considering use of public private partnership (PPP) for internal security of India. Although India is also considering working in the direction of cyber security yet its speed and efforts in this direction are slower as compared to international cyber security standards and efforts.

Cyber security in India is not what is required. As per the cyber security trends in India 2011 by Perry4Law Techno Legal Base (PTLB), cyber security expertise and practices adopted in India are neither adequate nor qualitative. There is an urgent need to strengthen the cyber security mechanisms of various stakeholders in India.

Homeland security in India needs to be strengthened. In fact, India US homeland security dialogue has already been initiated. Homeland security and cyber security market in India is growing. In fact, Microsoft and Symantec are exploring the cyber security market of India. European Union (EU) has also invited India to participate in a mega cyber security and cyber crime project.

Critical national infrastructure security in India needs to be strengthened. Highly sophisticated malware like Duqu, Stuxnet, etc targeted India in the year 2011 and India is still investigating the Duqu malware. Indian nuclear facilities, automated power grids, satellites, defense networks, governmental informatics infrastructures, etc are vulnerable to sophisticated cyber attacks. It is still not clear whether Indian satellites are safe from cyber attacks.

Supervisory control and data acquisition (SCADA) is another area of concern. Cyber protection of SCADA systems in India must also be ensured. Similarly, Indian defense and security against cyber warfare needs to be developed so that cyber attacks against India can be thwarted. A good cyber security policy in India must be formulated that must include a critical ICT infrastructure protection policy of India as well. Similarly, effective legal and policy framework for cyber security must also be created in India.

Although there are numerous aspects of Cyber Security Policy of India yet Critical Infrastructure Protection in India and Critical ICT Infrastructure Protection in India are the most important aspects of the same. Similarly, cyber law of India must also be strengthened to effectuate cyber security in India. Hopefully Indian government would consider these aspects this year.

Social Media Websites Investigation In India

2012-01-04T23:07:00.000-08:00

Social media websites have become ubiquitous these days. Ask any Internet using person or organisations and he/it would tell you about usage of some form of social media websites. Social media is not only helpful in projecting own policies, thoughts and ideas but is also helpful in exploring new ventures and partnerships.

However, abuses of social media are also rampant. Social media is occasionally used for committing various cyber crimes and cyber contraventions. Although we have no dedicated social media laws in India yet the information technology act, 2000 (IT Act 2000), the cyber law of India, carries some provisions in this regard. These provisions have mandated social media due diligence in India for these platforms.

Further the cyber law of India has also prescribed an Internet intermediary liability in India. According to this liability social media websites in India are required to observe due diligence in order to escape civil and criminal sanctions.

The cyber law due diligence in India has now become well established and companies, social media websites and Internet intermediaries cannot take it lightly. However, this has not restrained the cyber criminals to use social media websites for criminal purposes. Even in many cases these social media websites fail to observe due diligence especially when they have actual knowledge of the offending act. This has resulted in an increased prosecution of social media websites in India.

The prosecution of social media websites in India is going to increase tremendously if they keep on ignoring the cyber law of India. Presently, the cyber crimes investigation in India is not upto the mark and this in many cases result in non prosecution of the offenders. With the growth of e-discovery in India and cyber forensics in India more prosecution of social media websites would be witnessed. E-discovery for social media in India is going to increase as the social networking laws in India are pointing towards this direction.

In short, cyber due diligence for Indian companies is increasingly being enforced and social media websites are no exception to this rule. Social media websites investigation in India is going to increase in future and these platforms must be well prepared to deal with this same.

In their own interest, social media websites must not only meet the cyber due diligence requirements but must also ensure e-discovery compliances so that social media websites investigation can be facilitated and they can defend themselves more appropriately in various court cases and quasi judicial forums.

Internet Access Is A Human Right But Is It Useful?

2012-01-03T07:12:00.000-08:00

Civil liberties are essential for the sustainable growth of human beings. A country that does not respect civil liberties cannot be a democratic and civilised nation. This is the reason why we have human rights that are protected by United Nations and respective country.

However, civil liberties protections in cyberspace are still ignored for unknown reasons. It may be due to lack of knowledge and expertise regarding cyberspace or because nations do not wish to extend the human rights protection to the same.

Fortunately some good steps in this regard have been taken by international community especially the European Council. The European Council is stressing upon protecting human rights in cyberspace and civil liberties protection in cyberspace. The European Council has also issued a resolution in this regard that deals with prohibition of abuse of state secrecy and national security for violating civil liberties. It has also expressed concerns regarding cyber attacks and political pressures upon cyber dissidents.

The United Nations must also work in the direction of defending human rights in cyberspace. Recently, UN declared that access to Internet is a basic human right. This is a good step in right direction. However, the efforts of United Nations regarding cyber laws and human rights in cyberspace need to be further expedited as they are slow in nature. An international cyber law treaty must be formulated by UN that must address the issues like freedom of speech and expression, Internet censorship, websites blocking, Internet kill switch, access to Internet, etc.

At the national level, India is desperate to control information technology. It has been forcing Internet intermediaries like Google and Facebook to pre screen and censor users contents. Blogs are manipulated in India to suppress critical issues that have been reported by few. The mainstream media is already not covering sensitive and controversial topics and even if some bold bloggers dare to do so they face censorship and penalties by various social media platforms like Google and Facebook. Manual action censorship by Google is very common regarding controversial posts and blogs that disappear instantly. Similarly, blocking of accounts by Facebook is also very common.

If access to Internet has been declared a human right by UN there is no sense in limiting it to mere access. What is the purpose of such Internet access if Internet censorship and websites blocking are deployed by states? If a citizen has access to Internet but her posts are deleted or censored the whole purpose is defeated. It seems UN has failed to consider this aspect of Internet access that has defeated the protection it has extended.

Civil Liberties Protection In Cyberspace

2012-01-03T05:51:00.000-08:00

Protection of civil liberties in cyberspace is an area that has been ignored for long. Even international organisations like United Nations have not taken many steps in this crucial direction. This has also resulted in a limited growth of human rights protection in cyberspace in both public international law as well as private international law.

When totalitarian and orwellian states started blocking access to Internet altogether through mechanisms like Internet kill switch (IKS), Internet censorship, websites blocking, blocking of social media websites, etc, United Nations decided to step in. UN declared that access to Internet is basic human right.

Through a UN’s May 2011 report on freedom of expression on the internet, UN reminded parties to the International Covenant on Civil and Political Rights that they must uphold their obligation under Article 19 of that Covenant. Article 19 mandates that any limitation on the right to freedom of expression has to pass a three-part cumulative test that is designed to ensure the limitations are done in the least restrictive way and reflect a clear national security threat. Although existing principles of international law apply online, just as they do offline, yet states are not following this norm in reality.

Thus, this declaration of UN has provided only a very limited standing to individuals and organisations to challenge actions of states that violate civil liberties protection in cyberspace. Further, although this declaration of UN may bring some respite in the regime of public international law yet private international law is still untouched and protected from this declaration.

States are still engaging in endemic e-surveillance activities world over. Even worst is the fact that they are actively enacting laws that goes against the very concept of civil liberties protection in cyberspace. Civil liberties like privacy rights, data security, data protection, speech and expression, etc are at grave risks in such circumstances. Till UN comes up with an international legal framework in this regard that can harmonise laws across the world not much can be expected from individual states.

An international cyber law treaty must be formulated of which the states should become parties and signatories. Civil liberties protection in cyberspace cannot be achieved till rights and obligations of various nations are demarcated in such treaty. Till then nations would keep on indulging in civil liberties violations in cyberspace.

Electronic Legal Due Diligence In India

2012-01-02T08:35:00.000-08:00

Legal due diligence in India is not a new concept. Legal due diligence involves assessing the suitability, efficiency and viability of a company or organisation. Legal due diligence may be required to meet statutory and regulatory requirements or it may be necessary when a company wishes to invest in another company.

A contemporary form of legal due diligence, especially for companies and individuals engaged in information and communication technology (ICT) related services, is known as cyber due diligence. Cyber law due diligence in India has become mandatory due to the stringent nature of cyber law of India. In fact, cyber due diligence for companies in India and cyber due diligence for banks in India has already been prescribed. Similarly, cyber security due diligence in India is also becoming a must to have requirement.

Securities and Exchange Board of India (SEBI) is planning to use electronic initial public offer (IPO) in India. Foreign investments in pharmaceutical in India has been liberalised by Reserve Bank of India. Similarly, foreign direct investment (FDI) in India has also been liberalised in many crucial areas. Naturally, lots of investments, IPOs, private equity funds exchange and many more collaborative and cooperative activities would take place in India in the year 2012.

These developments would also make legal due diligence necessary. However, the traditional legal due diligence procedure relies heavily upon paper based documents and transaction. A better option is to engage in electronic legal due diligence in India (e-legal due diligence in India). The e-legal due diligence in India is cost effective, timely and efficient. It also can provide the best possible results for legal due diligence purposes.

Even legal frameworks are in the process of being established to accommodate these contemporary changes. For instance, the electronic delivery of services bill 2011 (EDS Bill 2011) has been proposed by Indian government that would make electronic delivery of services in India an acceptable norm.

Similarly, existing legal frameworks also facilitates digital preservation in India, e-governance, e-commerce, etc that would also require e-legal due diligence in India. The public records keeping framework of India requires keeping of public records that very few organisations in India are doing. Of course, public records keeping framework of RBI is an exception in this regard. Public records are also required to be maintained by the information technology act 2000 and right to information act 2005 of India.

All these requirements of public records keeping and e-legal due diligence in India can be managed by establishing virtual data rooms (VDRs). Many leading companies are already using VDRs to ensure legal due diligence in a smooth and efficient manner. With VDRs thousands of pages of content can be made available in just 24hrs or less. VDRs provide a secure and highly efficient method for sharing critical business information for electronic due diligence in merger and acquisition (M&A) advisory, IPO and secondary offerings, asset purchases, venture capital due diligence, bio tech licensing, commercial and corporate real estate ventures, financial restructuring, preparing for exit strategies, and many other transactions that require large amounts of document sharing.

Further, e-legal due diligence in India would also ensure that electronic discovery (e-discovery) requirements in India are duly met whenever needed. E-discovery services in India would be required in near future in India and e-legal due diligence can greatly facilitate the same. Individuals and companies must start exploring using e-legal due diligence as soon as possible for greater benefits of their own.

Internet Access Is A Fundamental Human Right In Cyberspace

2012-01-02T05:48:00.000-08:00

Civil liberties protection in cyberspace has taken a centre stage these days. International community is getting serious in protecting valuable civil liberties that are openly violated by various nations. For instance, the Council of Europe issues a resolution that prohibits abuse of state secrecy and national security for violating civil liberties. Similarly, United Nations has also declared that access to Internet is a basic human right that cannot be taken away by national governments.

A few years back talking about human rights in cyberspace generated skeptic reactions. Things have not changed much even today but at least now we know that human rights can be extended to cyberspace. For instance, blanket e-surveillance, Internet censorship and websites blocking cannot be adopted lest human rights are absolutely ignored. The cyber law trends in India 2011 have shown that India has performed poorly on all these front. In fact, India is acting desperately to control technology.

At Perry4Law Techno Legal Base (PTLB) we have been supporting the efforts that can ensure recognition of human rights in cyberspace at both national and international level. At the national level, India is still not ready and willing to recognise human rights in cyberspace. At the international level, part of human rights in cyberspace has started gaining importance.

For instance, the United Nations (UN) has declared that right to access to Internet is a human right. Similarly, Organisation for Security and Cooperation in Europe (OSCE) has also supported this stand of UN through a recently released report.

The report has analysed the first ever of state regulations on Internet access within the 56-member OSCE. Finland and Estonia have already declared access to Internet as a human right and this is a good step in right direction. PTLB welcomes these reformative actions of Finland and Estonia.

Countries around the world are restricting human rights in cyberspace by citing national security, sovereignty, law and order and many such grounds. While none can doubt that national security is an important function of a sovereign state yet there must be a harmony between national security and human rights.

Giving a blind and absolute primacy to national security even if clearly means violating basic human rights is not a wise approach for a welfare state like India. We hope Indian government would consider empowering Indian netizens by recognising and strengthening their human rights in cyberspace.

Abuse Of State Secrecy And National Security: Obstacles To Parliamentary And Judicial Scrutiny Of Human Rights Violations

2012-01-02T04:45:00.000-08:00

The Council of Europe has issued many important and far reaching resolutions and notifications in the year 2011. One such important resolution is titled as abuse of state secrecy and national security: obstacles to parliamentary and judicial scrutiny of human rights violations. This is in addition to the concerns shown by the European Council regarding cyber attacks and political pressures upon cyber dissidents. It seems European Council is stressing upon protecting human rights in cyberspace and civil liberties protection in cyberspace.

This also shows that the international community is getting serious about protection of civil liberties in cyberspace. For instance, the connection between United Nations and human rights in cyberspace is also well known where UN declared that access to Internet is a basic human right. However, the efforts of United Nations regarding cyber laws and human rights in cyberspace need to be further expedited as they are slow in nature.

As far as India is concerned the situation is really alarming. Law enforcement and intelligence agencies of India are practically working with no legal framework. Parliamentary scrutiny of law enforcement and intelligence agencies of India is still missing. Although draft bills for central bureau of investigation (CBI) and intelligence agencies of India were made, they were never considered by Indian parliament. Till now agencies like CBI, research and analysis wing (RAW), etc are working with no constitutionally sound law governing their operations.

Further, numerous e-surveillance oriented projects like Aadhar, national intelligence grid (Natgrid), central monitoring system (CMS), national counter terrorism centre (NCTC), crime and criminals tracking and networks system (CCTNS), etc have been launched without any legal framework and parliamentary scrutiny. Phone tapping in India is also not done in a constitutional manner. E-surveillance in India and Internet censorship in India has also increased a lot. Clearly, parliament has failed to address abuses of state secrecy and national security powers in India.

Even judicial scrutiny of e-surveillance and Internet censorship issues in India is not up to the mark. Fortunately, the Supreme Court of India is dealing with privacy violations through illegal phone tapping in India. While doing so the Supreme Court has observed that with the present state of technology used in India by law enforcement agencies and private individuals, privacy rights of Indians are at grave risk. The Supreme Court also recommended reformation of official secrets act of India keeping in mind the contemporary requirements and environment. This is a good sign but the Supreme Court of India must expedite these matters as they have been pending for long.

Parliamentary oversight and judicial scrutiny are the twin safeguards that can prevent excessive abuse of state secrecy and national security powers in India. Unfortunately, presently both of them are missing and this has resulted in an intelligence mess in India. Further, India is desperate to control technology rather utilising it.

We need dedicated and separate privacy laws, data privacy laws and data protection laws in India to tackle state abuse of its sovereign powers. The sooner these procedural and constitutional safeguards are adopted in India the better it would be for the larger interest of India.

Council of Europe’s Draft Resolution On Abuse Of State Secrecy And National Security

2012-01-02T01:13:00.000-08:00

In this “Guest Column”, Praveen Dalal, Managing Partner of Perry4Law has examined one of the most important resolutions of Council of Europe. It is titled abuse of state secrecy and national security: obstacles to parliamentary and judicial scrutiny of human rights violations.

Recently European Council had also shown its concern regarding cyber attacks and political pressures upon cyber dissidents. It seems European Council is very serious in protecting human rights in cyberspace and civil liberties protection in cyberspace.

National Security and National Secrets are two of the most common “Excuses” given by the Nations to bypass Constitutional and Human Rights Protections. Civil Liberties are blatantly violated under the garb of exercising powers under these two issues.

India is no exception to this rule as Laws like Indian Telegraph Act, 1885, Official Secrets Act, 1923 etc are frequently used in clear contraventions of Constitution of India, Right to Information Act, 2005 and similar Laws.

Unconstitutional Phone Tapping is the example of former Law whereas Non Disclosure of relevant and essential information under an RTI Application is the example of latter. Even the Supreme Court of India has shown its “Displeasure” with both the Laws.

While “Guidelines” for prevention of “Unauthorised Phone Tapping” have been provided by Supreme Court to cover the deficiencies of the former Law, yet it has suggested “Repealing” of the latter. However, Indian Parliament is least bothered about formulating “Essential Laws” and the Executive has made India an “Endemic E-Surveillance Society”.

This E-Surveillance Model of Indian Government is just “Harassing” the law Abiding Citizens of India and Cyber Criminals and Terrorists are still successfully giving effect to their nefarious activities. It is high time for the Indian Supreme Court to take note of this “Constitutional Anomaly”.

The Council of Europe has released a Resolution titled “Abuse of State Secrecy and National Security: Obstacles to Parliamentary and Judicial Scrutiny of Human Rights Violations”. It reads as follows:

1. The Assembly considers that judicial and parliamentary scrutiny of government and its agents is of vital importance for the rule of law and democracy. This also applies especially to so-called special services whose activities are usually kept secret. Security and intelligence services, the need for which cannot be put into doubt, must nonetheless not become a “state within the state”, exempted from accountability for their actions. Such lack of accountability leads to a dangerous culture of impunity, which undermines the very foundations of democratic institutions.

2. In combating terrorism, governments are increasingly invoking “state secrecy” or “national security” in order to ward off parliamentary or judicial scrutiny of their actions.

3. In some countries, in particular the United States, the notion of state secrecy is used to shield agents of the executive from prosecution for serious criminal offences such as abduction and torture, or to stop victims from suing for compensation. The United States also refused to co-operate, in particular, with the judicial authorities of Germany, Lithuania and Poland in the criminal investigations launched in those countries in view of numerous elements of proof of abductions, secret detentions and illegal transfers of detainees (see Resolution 1507 and Recommendation 1754 (2006) and Resolution 1562 and Recommendation 1801 (2007) of the Assembly).

4. The Assembly recognises the need for states to ensure effective protection of secrets affecting national security. But it considers that information concerning the responsibility of state agents who have committed serious human rights violations, such as murder, enforced disappearance, torture or abduction, should not be subject to secrecy provisions. Such information should not be shielded from judicial or parliamentary scrutiny under the guise of “state secrecy”.

5. The Assembly believes that there is no reason why judicial and parliamentary institutions should be less trusted than state executive bodies and their agents where the protection of legitimate secrets is concerned. As Canada demonstrated in the Maher Arar case, it is possible to put in place special procedures for the supervision of the activities of the special services guaranteeing both the adequate protection of legitimate state secrets and the protection of fundamental rights and freedoms.

6. Parliamentary supervision of the security and intelligence services, both civilian and military, is either non-existent or grossly inadequate in many Council of Europe member states. The permanent or ad hoc parliamentary commissions set up in several countries to oversee the activities of the secret services are hampered by a lack of information, which is under the exclusive control of the executive itself, and most often of a very small circle within the latter.

7. The Assembly welcomes the growing co-operation between different countries’ secret services, which constitutes an indispensible tool to confront the worst forms of organised crime and terrorism. This international co-operation should, however, be accompanied by equivalent co-operation between oversight bodies. It is unacceptable that activities affecting several countries should escape scrutiny because the services concerned in each country invoke the need to protect future co-operation with their foreign partners to justify the refusal to inform their respective oversight bodies.

8. The media play a vital role in the functioning of democratic institutions, in particular by investigating and publicly denouncing unlawful acts committed by state agents, including members of the secret services. They rely heavily on the co-operation of “whistleblowers” within the services of the State. The Assembly reiterates its calls for adequate protection for journalists and their sources (Recommendation 1950 (2011) and for “whistleblowers” (Resolution 1729 and Recommendation 1916 (2010)).

9. The Assembly can only welcome the publication, in particular via the “Wikileaks” site, of numerous diplomatic reports confirming the truth of the allegations of secret detentions and illegal transfers of detainees published by the Assembly in 2006 and 2007. It is essential that such disclosures are made in such a way as to respect the personal safety of informers, human intelligence sources and secret service personnel. The appearances of such websites is also the consequence of insufficient information made available and a worrying lack of transparence of Governments.

10. In some circumstances, in particular in the framework of the fight against terrorism, measures restricting freedom and violating fundamental rights are taken against suspect individuals who are not even informed of the – “secret” – grounds for suspicion on which these measures are based and do not have the possibility to seize an independent complaints mechanism. The Assembly reiterates its appeal in Resolution 1597 (2008) to the competent United Nations and European Union bodies to reform the “blacklisting” procedures, putting an end to such arbitrary methods and putting into place mechanisms that are both effective and respectful of the rule of law in order to neutralise persons suspected of supporting terrorism.

11. With regard to judicial inquiries, the Assembly:

11.1. welcomes the inquiries conducted professionally by the competent German and Italian authorities, which have shed considerable light on the abductions of Khaled El-Masri and Abu Omar;

11.2. welcomes the friendly settlements reached by the British authorities with the alleged victims of abuses committed by the British services and urges all interested parties to agree immediately on a framework satisfying the requirements of the European Convention on Human Rights regarding the duty to investigate allegations of torture for the special inquiry under the aegis of Sir Peter Gibson announced by the Prime Minister in July 2010;

11.3. urges the Lithuanian, Polish, Portuguese and Spanish prosecuting authorities to persevere in seeking to establish the truth about the allegations of secret CIA detentions and urges the American authorities to cooperate with them;

11.4. calls on the Romanian judicial authorities and those of “the former Yugoslav Republic of Macedonia” to finally initiate serious investigations following the detailed allegations of abductions and secret detentions in respect of those two countries, and on the American authorities to provide without further delay the judicial assistance requested by the prosecuting authorities of the European countries concerned;

12. With regard to parliamentary inquiries, the Assembly:

12.1. welcomes the determination of many members of the commission of the German Bundestag responsible for investigating the alleged involvement of the German services in CIA actions, while regretting that the government persisted in withholding the information requested by the commission, to the point that the Federal Constitutional Court, following an application by the opposition representatives, was forced to censure the government’s behaviour; deplores, however, that the end of the legislature did not allow for the commission’s work to continue after the judgment, as it was dissolved and not reconstituted;
12.2. welcomes the inquiry by the national security and defence committee of the Lithuanian Seimas which established the existence of two CIA secret detention centres on Lithuanian territory, while noting that the inquiry was unable to establish whether people had actually been detained and illtreated in those places, and whether Lithuanian senior officials were aware of the CIA actions in collaboration with agents of the Lithuanian secret service (SSD);

12.3. welcomes the untiring efforts of the All Party Parliamentary Group to establish the truth about the involvement of the British authorities in cases of illegal transfers of detainees concerning the United Kingdom;

12.4. Deplores that the Polish and Romanian parliaments confined themselves to inquiries, whose main purpose seems to have been to defend the official position of the national authorities;

12.5. Is surprised that the parliament of “the former Yugoslav Republic of Macedonia” considered it unnecessary to launch an inquiry into the El-Masri case, in the light of the clear findings of the European and German inquiries on this subject.

13. With regard to procedures for monitoring the secret services in general, the Assembly calls on Council of Europe member and observer states still lacking equivalent bodies to set up:

13.1. A parliamentary mechanism for monitoring the secret services, while ensuring that it has sufficient access to all the information needed to discharge its functions whilst respecting a procedure which protects legitimate secrets;

13.2. Special procedures so that legitimately secret information can be handled without endangering state security in criminal or civil proceedings concerning the activities of special services;

13.3. An adversarial procedure before a body allowed unrestricted access to all information to decide, in the context of a judicial or parliamentary review procedure, on whether or not to publish information which the government wishes to remain confidential.

14. With regard to international co-operation between oversight bodies, the Assembly calls on parliaments participating in the development of the future “Network of European expertise relating to parliamentary oversight of security and intelligence services” to consider widening the terms of reference of the future network and the range of participants in order to make it an effective instrument of co-operation between the competent bodies of all Council of Europe member and observer states, making it possible to remedy the shortcomings in parliamentary oversight resulting from increased international co-operation between the services in question….. [See the Report (PDF) for all points]

50. Finally, the fundamental role played by whistleblowers must not be forgotten. Their importance of their contribution is in fact proportionate to the extent that secrecy is still imposed. It is not exaggerated that, still today – and in some cases even more so than in the past – we are confronted with a real cult of secrecy; secrecy as an instrument of power, as Hannah Arendt reminds us in the citation at the very beginning of this report. It is therefore justified to say that whistleblowers play a key role in a democratic society and that they contribute to making up the existing deficit of transparency. We said so before: the Assembly’s reports of 2006 and 2007 and, more recently, the revelations concerning “black sites” in Lithuania are due to a large extent to honest officials who, for ethical reasons and taking great risks, could not and would not take part any longer in illegal activities or cover them up by remaining silent. In this connection, we should also remember Bradley Manning, the young American soldier accused of providing Wikileaks with a large number of confidential documents. High-ranking American officials and numerous voices of international public opinion have expressed indignation at the inhuman and degrading treatment which Mr Manning is said to have undergone. It will be up to the courts to judge. But we cannot ignore that according to the very accusations made against him we are indebted to him for the publication both of a recording of a helicopter attack in Iraq, in which the crew seems to have intentionally targeted and killed civilians. The video recording seemingly indicates a deliberate criminal act which deserves at least an investigation, which, without this indiscretion, would have never been requested. This is a classic example of an illegitimate secret. In addition, the publication of a large number of embassy reports has allowed us to learn significant details of important recent events and which are obviously of general interest. We must not forget either that these publications have brought numerous confirmations of findings included in the Assembly’s reports of 2006 and 2007 on the CIA flights and secret prisons. All those who at the time called for “proof, proof!” have in any case been well served.

This is a good step in right direction and I hope India would also deal with the issues mentioned in this Resolution very soon.

Cyber Law Of India Should Be Reformed

2012-01-01T19:53:00.000-08:00

Technological issues when collaborated with legal framework bring complex situations. It is very difficult to provide a legal framework for technological issues. India is also trying to grapple with this problem. Although cyber law in India has been enacted in the form of information technology act 2000 (IT Act 2000) yet it has remained archaic and non performer. The cyber law trends in India 2011 proved this point.

Cyber law of India needs to be rejuvenated. The emphasis must be to develop and protect Indian cyberspace rather than considering as a threat to be tackled through Internet censorship, websites blocking, e-surveillance, phone tapping and similar anti civil liberties protection in cyberspace.

Similarly stress should be given to cyber security of India through cyber security due diligence and mandatory obligations. The cyber security trends in India 2011 have proved that various stakeholders in India are not paying enough attention to cyber security. This is more so regarding banks in India that are not following the cyber security guidelines of Reserve Bank of India (RBI).

Perry4Law and Perry4Law Techno Legal Base (PTLB) believe that a major reason for poor performance on Indian cyber law and cyber security is that we have mixed all the aspects in a single law. For instance, although IT Act 2000 covers issues like cyber law, cyber security, cyber forensics, encryption, e-governance, e-commerce, cyber terrorism, etc yet the same are covered by a single section or more. This way none of them are individually effective.

We must have a separate and dedicated law for each of these issues that seem to have been dumped into a single law making it ineffective and useless for those issues. Further, the information technology amendment act 2008 (IT Act 2008 amendments) have further complicated the issue. By making almost all the cyber crimes “bailable”, Indian government has created a big nuisance for itself.

Perry4Law and PTLB hope that the year 2012 would bring major relief in this regard. Law making is a lengthy and tedious process and the sooner it is started the better it would be for the larger interest of India.

Cyber Laws In India

2011-12-31T02:51:00.000-08:00

Cyber laws in India are very much required especially to manage the culpable dealings of big corporate houses. IT frauds and cyber crimes in Indian companies are increasing at a great speed. Currently there is no cyber due diligence for Indian companies that has been mandatorily provided by the Indian Companies Act, 1956.

The Information Technology Act, 2000 (IT Act 2000) is the sole cyber law of India. The companies in India are required to follow cyber law due diligence in India and cyber security due diligence in India. In the absence of proper due diligence these companies may find themselves in trouble.

Indian companies are neither prepared nor willing to deal with these sophisticated technology crimes and organised crimes. Recently the companies bill 2011 was tabled in lok sabha that carried few reformatory provisions in this regard. It was planned to give more powers to serious frauds investigation office (SFIO) of India. Under the proposed companies bill 2011, SFIO had been given a statutory recognition. However, the bill failed to become law and the position still remains gloomy.

Cyber crimes in India are increasing unchecked. However, efforts to curb the same are still far from satisfactory. In fact, by making almost all the cyber crimes and cyber contraventions under the IT Act 2000 bailable, Indian government has further complicated the situation. In fact, experts have been demanding that cyber law of India should be repealed and new and better laws must be enacted.

We need separate and dedicated legal frameworks in India. For instance, e-commerce laws in India, social media laws in India, e-governance laws in India, cyber security laws in India, cyber forensics laws in India, e-discovery laws in India, digital evidencing laws in India, etc must be enacted separately.

In short, cyber law of India must be given an importance that it deserves. Presently, it is given a piecemeal treatment that is not conducive for its long term growth in India.

Digital Preservation In India Needed

2011-12-30T08:06:00.000-08:00

Digital preservation is an issue that has not received much attention in India. Digital preservation is a process in which materials are converted into electronic form for future uses. Digital preservation also ensures that the material has a longer life shelf than the original form.

Digital preservation in India is still in infancy stage. Although we have a Public Records Act 1993 that mandates a digital preservation usage, the same has remained abysmal in India. Public records keeping framework of India has by and large remained ignored. Of course, some institutions like Reserve Bank of India (RBI) have good public records keeping framework.

Digital framework and public records keeping are issues that have a direct bearing upon multiple legal frameworks. For instance, Intellectual property rights (IPRs) are commonly found conflicting with digital preservation initiatives. Technological issues of IPRs would also pose great challenges before the digital preservation initiatives of India.

Recent traditional knowledge digital library (TKDL) of India is one of the most innovative and much needed initiatives undertaken by Indian government. Being a digital library it must ensure digitalisation of contents as well as their digital preservation.

Similarly, cyber law of India also has a direct bearing upon records keeping and digital preservation. In fact, Public Records Act 1993 and IT Act 2000 mandates are very apparent and they cannot be ignored. Similarly, Right to Information Act 2005 and Public Records Act 1993 are also closely related.

Electronic delivery of services and Public Records Act 1993 are also correlated as in future archives and digital documents would be required to be provided to effectuate electronic delivery of services. The proposed Electronic Delivery of Services Bill (EDS) 2011 of India has proved this point.

Surprisingly, despite the importance of public records and digital preservation, Indian national digital preservation policy is still missing and there is no legal framework for digital preservation in India. Digital preservation initiatives of India need urgent reforms if we have to effectual electronic delivery of archives and public records. The sooner it is done the better it would be in the larger interest of India.

Ethical Hacking Training And Courses In India

2011-12-26T00:23:00.000-08:00

The need of ethical hackers in India has emerged out of the necessity to tackle growing cases of cyber crimes and cyber attacks. For too long strategic systems and computers located at Indian government departments and sensitive faculties have been targeted by cyber criminals and enemy states. Incidences of cyber espionage against India have increased a lot.

Naturally, India needs a skilled ethical hacking workforce that can ward off such cyber threats. Cyber skills development in India has, therefore, gained importance and demand for skilled workforce in fields like cyber security, cyber forensics, cyber law, etc has increased globally.

These fields are techno legal in nature that required a thorough understanding of both technical and legal aspects at the same time. Neither technical nor legal knowledge in itself is sufficient. Techno legal e-learning courses in India need to be developed to meet the techno legal demands of India.

Ethical hacking trainings and courses in India need to be developed on techno legal lines. Similarly, ethical hacking training institutes in India must also ensure that the trainings provided by them are techno legal in nature. Further, ethical hacking training providers in India must also ensure that they provide only practical trainings and courses whose main aim should be to develop techno legal skills.

Ethical hacking skills development in India is not an easy task. The amalgamation of technology and law is not easy to teach. It is even more difficult to practically apply these techno legal principles in real life. At Perry4Law Techno Legal Base (PTLB) we understand these issues and are providing the exclusive techno legal ethical hacking trainings and courses in India. Other techno legal courses are also provided by PTLB that covers areas like cyber law, cyber forensics, cyber security, etc. PTLB is also managing the exclusive techno legal ethical hacking software and tools repository in India.

PTLB e-learning platform is providing ethical hacking training and courses in India among various other techno legal courses, trainings, educations and skills development initiatives. We hope these initiatives of PTLB would be useful for all the stakeholders.

Financial Frauds And IT Crimes In Indian Companies Is Increasing

2011-12-24T07:30:00.000-08:00

Financial frauds and cyber crimes have plagued Indian corporate sector. IT and cyber frauds in Indian companies has increased a lot. Corporate IT frauds and cyber crime investigations in India have also increased. This has also necessitated cyber due diligence for Indian companies.

White collar crimes and financial frauds are increasing in India. By its very nature these high profile crimes affect corporate sector. Indian companies are also facing increased corporate frauds, financial frauds, white color crimes and technological frauds.

With growing dependence upon information and communication technology (ICT) for various corporate functions, corporate systems and corporate assets are exposed to diverse forms of cyber attacks. Further, data privacy laws in India, data protection laws in India, privacy laws in India, etc have further added responsibilities for corporate sector of India.

Further, companies in India are also required to follow cyber law due diligence in India and cyber security due diligence in India. However, absence of techno legal cyber skills and cyber crimes investigation trainings in India, technology related crimes and cyber crimes have increased in India. Companies in India are facing growing threats from malware attacks, phishing attacks, ATM frauds, online banking threats, trading fraud, etc.

Clearly, Indian companies are not prepared to deal with these sophisticated technology crimes and organised crimes. Recently the companies bill 2011 has been tabled in lok sabha that carries few reformatory provisions in this regard. It was planned to give more powers to serious frauds investigation office (SFIO) of India. Under the proposed companies bill 2011, SFIO has been given a statutory recognition. This is a good step as it would help in curbing corporate frauds in India.

Perry4Law and Perry4Law Techno Legal Base (PTLB) strongly recommend that it is high time for Indian companies to take care of the cyber due diligence and cyber security due diligence requirements under various laws of India. These due diligence requirements are essential part of overall audit strategy of each company. The sooner cyber law and cyber security are taken seriously by Indian companies the better it would be for the larger interest of all stakeholders.

Corporate IT Frauds And Cyber Crimes Investigation In India

2011-12-23T05:31:00.000-08:00

Corporate frauds and crimes have taken a new shape in the present information technology age. Data theft, privacy violations, intellectual property rights (IPRs) violation, trade secrets theft, financial frauds, etc have also increased in the corporate sector of India. Even white collar crimes and organised crimes have increased a lot.

Clearly, IT and cyber frauds in Indian companies have increased a lot. These frauds have necessitated cyber due diligence for Indian companies. Further, these IT frauds and corporate cyber crimes have necessitated for their timely and proper investigation. Corporate laws of India must be suitable amended to address these issues in India.

There are multiple investigation agencies in India depending upon the nature of the wrong or crime. Corporate frauds and corporate cyber crimes can be prosecuted at the administrative level or in civil and criminal courts.

Investigation of corporate IT frauds and corporate cyber crimes is a complicated process that requires techno legal training and expertise. These offences require a good working knowledge of both technical and legal knowledge.

Cyber crime investigation methods in India are still maturing. There are very few cyber crime investigators in India that can investigate a cyber crime in techno legal manner. Cyber crime investigation training in India is urgently required so that more such investigators can be produced. With growing cases of corporate IT frauds and corporate cyber crimes, the demand for such cyber crime investigators in India is going to increase.

Perry4Law and Perry4Law Techno Legal Base (PTLB) are providing world renowned and exclusive techno legal trainings to various stakeholders. Some of the areas covered by PTLB are cyber due diligence training in India, cyber forensics trainings in India, cyber security training in India, corporate IT frauds prevention training in India, cyber crime investigation training in India, etc.

Recently, corporate frauds like Satyam fraud, Citibank fraud at Gurgaon, etc came to the light in India. More such frauds may be possible in near future. Realising the gravity of the situation, Indian government decided to further strengthen the powers of serious frauds investigation office (SFIO) of India. The proposed companies bill 2011 has also decided to grant a statutory recognition to SFIO so that corporate frauds can be effectively tackled. Further, corporate and banking laws in India are in the process of being strengthened.

This is a good decision. However, SFIO must develop techno legal expertise to effectively tackle the growing cases of corporate IT frauds and corporate cyber crimes in India. SFIO should immediately start developing techno legal capabilities so that we have a strong and effective authority that can not only deter corporate IT frauds but can also successfully prosecute and punish them. Perry4Law and PTLB would extend their techno legal expertise in this regard if requested by SFIO or any other law enforcement agency or other agency of Indian government.

Cyber Due Diligence For Indian Companies

2011-12-23T03:26:00.000-08:00

Cyber due diligence in India has finally arrived in India. The information technology act, 2000 (IT Act 2000) is the sole cyber law of India. IT Act 2000 prescribes cyber due diligence requirements on the part of various stakeholders like banks, companies, individuals, Internet intermediaries, e-commerce sites, etc.

However, till now cyber due diligence in India has not been taken seriously. This is so because cyber law awareness is not very good among various stakeholders. Similarly, civil and criminal prosecutions for lack of cyber due diligence in India is a rare phenomenon. Since ignorance of law if no excuse, in future cases for lack of cyber due diligence would increase in India.

IT and cyber frauds in Indian companies is increasing these days. However, a majority of Indian companies are not performing cyber due diligence in India. The companies in India are required to follow cyber law due diligence in India and cyber security due diligence in India. In the absence of proper due diligence these companies may find themselves in trouble.

Social media laws in India and social networking laws in India would bring their own share of cyber due diligence. Cyber law on social media and networking sites in India is pretty stringent and employees of a company may violate the same intentionally or unintentionally. Internet intermediary law in India and cyber due diligence cannot be taken lightly in India anymore.

Another sector that is urgently demanding cyber due diligence is banking industry of India. Cyber due diligence for banks in India is long due. Banks and companies in India are facing growing threats from malware attacks, phishing attacks, ATM frauds, online banking threats, trading fraud, etc. If a bank cannot show that it performed cyber due diligence and such cyber frauds and cyber crimes occurred without its negligence, it may be required to bear the financial loss. Presently Indian banks are not complying with cyber law due diligence requirements in India.

Finally, the scope and use of e-discovery in India is also increasing. Whether it is a corporate investigation, civil suit or criminal proceedings, e-discovery is playing a decisive role world over. Further, e-discovery laws and practices in India are developing as well. Even e-discovery related litigation, LPO and KPO services in India are growing.

Perry4Law and Perry4Law Techno Legal Base (PTLB) strongly recommend that cyber due diligence training in India needs to be developed so that cyber due diligence compliances by various stakeholders is possible. This training should be a regular and integral part of the corporate strategy of each company. There is no escape from cyber due diligence in India and companies must accept this reality as soon as possible.

IT And Cyber Frauds In Indian Companies Is Increasing

2011-12-23T02:07:00.000-08:00

White collar crimes and financial frauds are increasing in India. By its very nature these high profile crimes affect corporate sector. Indian companies are also facing increased corporate frauds, financial frauds, white color crimes and technological frauds.

With growing dependence upon information and communication technology (ICT) for various corporate functions, corporate systems and corporate assets are exposed to diverse forms of cyber attacks. Further, data privacy laws in India, data protection laws in India, privacy laws in India, etc have further added responsibilities for corporate sector of India.

Further, companies in India are also required to follow cyber law due diligence in India and cyber security due diligence in India. However, absence of techno legal cyber skills and cyber crimes investigation trainings in India, technology related crimes and cyber crimes have increased in India. Companies in India are facing growing threats from malware attacks, phishing attacks, ATM frauds, online banking threats, trading fraud, etc.

Clearly, Indian companies are not prepared to deal with these sophisticated technology crimes and organised crimes. Recently the companies bill 2011 has been tabled in lok sabha that carries few reformatory provisions in this regard. It was planned to give more powers to serious frauds investigation office (SFIO) of India. Under the proposed companies bill 2011, SFIO has been given a statutory recognition. This is a good step as it would help in curbing corporate frauds in India.

Perry4Law and Perry4Law Techno Legal Base (PTLB) strongly recommend that it is high time for Indian companies to take care of the cyber due diligence and cyber security due diligence requirements under various laws of India. These due diligence requirements are essential part of overall audit strategy of each company. The sooner cyber law and cyber security are taken seriously by Indian companies the better it would be for the larger interest of all stakeholders.

Online Dispute Resolution (ODR) In India

2011-12-22T07:37:00.000-08:00

Information and communication technology (ICT) is considered to be a good option for resolving disputes of modern days. Concepts like online dispute resolution (ODR) and e-courts are proof of the same.

Unfortunately, neither online dispute resolution in India nor e-courts in India has been accepted and implemented. In fact, we have a single techno legal e-courts training and consultancy centre of India and a single online dispute resolution (ODR) centre in India. Further, Perry4Law Techno Legal Base (PTLB) is the sole techno legal ADR and ODR services provider in India.

The scope for online dispute resolution (ODR) services in India in general and techno legal online dispute resolution (ODR) services in India in particular is really good. However, in order to capatilise the same, an early and proper start is necessary.

Online dispute resolution (ODR) and international response is still lukewarm but at least a beginning has been made there. While international online dispute resolution regime has started exploring use of ICT for disputes resolution, online dispute resolution in Asia is still growing. Online dispute resolution in Asian countries is largely confined to a single or two countries that also to a limited extent. Clearly online dispute resolution standards of practice for India and Asia need to be developed urgently.

In fact, techno legal ODR services have become necessary due to growing use of information technology for business and commercial purposes world over. For instance, ODR and cross border e-commerce transactions are also interrelated. Similar is the case regarding dispute resolution of cross border technology transactions.

Dispute resolution in technology transactions is the upcoming trend in the field of ODR. Dispute resolution of cross border technology transactions is a complicated process if we adopt traditional litigation methods to resolve them. Dispute resolution in technology transactions and dealings requires an effective, timely and cost effective mechanism. Traditional litigation is definitely not the place to achieve these objectives.

Obviously, we need an effective alternative to traditional litigation methods to resolve cross border technology transactions and dispute resolutions. Alternative dispute resolution (ADR) mechanisms like arbitration, conciliation, mediation, etc can be used effectively to resolve these technology transactions disputes. For instance, online dispute resolution (ODR) for cross border e-commerce transactions is already been used to resolved small value disputes.

Similarly, legal issues of media and entertainment industry of India have assumed tremendous importance. Entertainment and media industry dispute resolution in India can be resolved using online dispute resolution. Dispute prevention and resolution in the film and media industry in India is presently not exploring use of online dispute resolution.

However, nothing can strengthen ODR more than international efforts and international coordination activities. International legal standards for online dispute resolution (ODR) and international harmonisation of ODR is urgently required.

United Nations can play am important role in international development and international harmonisation of ODR. United Nations and online dispute resolution are closely related in this regard. In fact, UNCITRAL, ODR and India are interconnected and we need an international harmonisation of ODR legal framework as well as suitable policies at the national level. Efforts in this direction have already been undertaken at the international level and very soon we may see some development in this regard.

Alternative dispute resolution in India is well known in India and we need to make efforts in the direction of ODR as well. While doping so we must keep in mind the requirements of privacy laws in India, dispute resolution and ODR. Online commercial arbitration in India also needs to be developed. The sooner these issues are addressed the better it would be for the growth and development of ODR in India.

Terror Funding Template Of National Investigation Agency (NIA) Of India

2011-12-21T00:24:00.000-08:00

National investigation agency (NIA) of India is the exclusive central agency that deals with terrorism related cases in India. It has been created under the National Investigation Agency Act, 2008. It intends to strengthen Indian capabilities to fight terrorism in India.

Terrorist activities heavily depend upon financial resources. Since legal channels of transfer of money are closely guarded, terrorists use illegal means and channels to transfer money. Even fake currency is used by them to support their nefarious activities.

Recently, in case numbered RC/07/2011/NIA/DLI DLI, NIA filed a criminal case under the provisions of Indian Penal Code and Unlawful Activities (Prevention) Act, 1967 against four accused persons. NIA claimed it is a case of circulation of high quality fake Indian currency notes (FICN) by some members of the banned terrorist organisation. Hizbul Mujahideen (HM), in association with the co-accused in the case, based at Malda (W.B.), located near Indo-Bangladesh border pursuant to a criminal conspiracy to fund terrorist activities in the State of Jammu and Kashmir. Investigation will be conducted further to locate the source of FICN.

Now NIA has prepared a Terror Funding Template (TFT), which will help its officials and investigators of states' anti-terror agencies to extract information on terror funding. The Template describes core sources and methods for terror funding and it can be utilised for getting relevant information from terrorists and terror suspects during their interrogation and probe. It can also be used to keep an eye on various other activities that directly or indirectly contribute to funding terrorist organisations in India and elsewhere.

Besides usual source of terror funding through hawala, narcotics trade and printing\circulation of fake Indian currency notes, the Template has taken into account misuse of zakat - giving alms to poor and needy as prescribed by the Quran - to fund terror activities. It has been “indianised” to cover issues and areas relevant for India.

These efforts have been further strengthened by the banking reforms in India. For instance, an integrated modern banking law of India has been recently suggested that can be really helpful in this case. Similarly, Reserve Bank of India (RBI) has prescribed enhanced due diligence measures by banks of India for higher risks customers that include terrorist outfits and organisations.

However, there are some very crucial issues that are posing constitutional problems for the intelligence and security agencies of India. For instance, intelligence gathering in India is unconstitutional. Similarly, counter terrorism capabilities of India are not sufficient and Indian counter terrorism capabilities needs rejuvenation. Finally, parliamentary oversight and constitutional safeguards are missing in the functions of these agencies. Time has come to approach these issues in a holistic manner.

Indian Research And Analysis Wing (RAW) Granted E-Surveillance Powers

2011-12-20T22:15:00.000-08:00

Indian government is in controversies these days. Controversial functions like e-surveillance in India, websites blocking in India, Internet censorship in India, etc are performed by Indian government and its agencies without any procedural and constitutional safeguards and without any constitutionally sound legal framework supporting these functions.

India does not have a constitutionally sound lawful interception law. Phone tapping in India is still done in an unconstitutional manner and at times by private individuals as well. Further surveillance of Internet traffic in India is now openly acknowledged by Indian government.

Recently Internet intermediaries in India were asked to pre screen contents before they are posted on their platforms by the account holders. Before that Yahoo took Indian government to court over e-surveillance. In its petition, Yahoo has raised questions on the right to privacy of a company that stores such sensitive data and to what extent authorities can coerce it to part with the information considered necessary to either track terror perpetrators or thwart future attacks.

The intelligence infrastructure of India has become synonymous for non accountability and mess. There is neither any parliamentary oversight nor and transparency and accountability of the working of Intelligence Agencies of India. Intelligence infrastructure of India needs rejuvenation keeping in mind the constitutional obligations. As on date, intelligence gathering in India is performed unconstitutionally.

Among all these controversial issues, now the Ministry of Home Affairs has added and notified the intelligence agency, the Research and Analysis Wing (RAW) in the list of eight agencies to intercept phone calls, e-mails and data communications. This would give RAW a cover for intercepting phone calls, e-mails and voice and data communication domestically.

RAW would not be able to deploy its communication interception equipment at international gateways to snoop on all forms of data, be it international telephony emanating from India, or any form of electronic data including e-mails. However, this notification has failed to mention how such interceptions would be in conformity with civil liberties protection in Indian cyberspace.

Intelligence Gathering In India Is Unconstitutional

2011-12-20T21:16:00.000-08:00

Intelligence gathering and fighting terrorism are essential national security and sovereign functions. They cannot be equated at par with other governmental functions. That is the reason why every country provides some extra protection and immunity from public scrutiny to such functions.

None can doubt that Indian counter terrorism capabilities need rejuvenation. We have an obvious but unresolvable terrorism dilemma in India. With the growing use of social media by cyber criminals and terrorists, the intelligence agencies world over are engaging in open source intelligence through these social media and platforms.

However, the real problem is that in India intelligence agencies and law enforcement agencies are practically governed by no law. Whether it is Central Bureau of Investigation (CBI) or Intelligence Agencies of India, none of them are presently “accountable” to Parliament of India.

Even the constitutional validity of national investigation agency act, 2008 is still doubtful. Further, India does not have a constitutionally sound lawful interception law. Phone tapping in India is still done in an unconstitutional manner and at times by private individuals as well.

E-surveillance in India, websites blocking in India, Internet censorship in India, etc are also not done a strictly constitutional manner. Till now Indian courts have not tested the acts of intelligence agencies of India on the touchstone of constitutional protections. There is no e-surveillance policy in India and protection of human rights in Indian cyberspace has still not been considered by Indian government.

In fact, intelligence infrastructure of India has become synonymous for non accountability and mess. There is neither any parliamentary oversight nor and transparency and accountability of the working of Intelligence Agencies of India. Intelligence infrastructure of India needs rejuvenation keeping in mind the constitutional obligations.

A private Bill titled Intelligence Services (Powers and Regulation) Bill, 2011 was circulated in the last session of the Parliament. However, instead of discussing the same in the current Monsoon Session (August 2011) and winter session (December 2011) of the Parliament, Indian Prime Minister Dr. Manmohan Singh has announced that Law on Intelligence Agencies would be formulated soon.

The national intelligence grid (Natgrid) project of India is also without any constitutional safeguards. The Cabinet Committee on Security (CCS) has also given only “Partial In Principle Approval” to NATGRID Project. Since NATGRID Project is not supported by any Legal Framework and Parliamentary Oversight, the “Crucial Stages” of NATGRID Project has not yet been approved by the CCS. Thus, NATGRID Project of India is still in troubled waters as lack of Privacy Laws and Data Protection Laws has put it in doldrums.

On top of it we have the proposed central monitoring system (CMS) project of India that has been proposed without any parliamentary oversight. Further, stress upon Internet kill switch is also given by India without realising that Internet kill switch is not a solution to cyber threats. Anti Internet kill switch measures are needed to prevent Indian government from taking recourse of any such unconstitutional and draconian action.

Finally, intelligence gathering skills developments in India are far from satisfactory. Intelligence agencies of India are insisting upon use of 40 bits encryption level in India. This has been suggested so that surveillance of Internet traffic in India is possible. However, e-surveillance is not a substitute for cyber skills. Encryption policy of India is urgently needed to resolve all these issues.

Presently, Indian government and intelligence agencies of India are engaging in many unconstitutional activities that are not subject to any parliamentary or judicial scrutiny. It is high time to bring some order in the chaos created by this situation unless it is too late.

E-Delivery Of Public Services Development Policy Loan (DPL) Project Of India

2011-12-20T08:22:00.000-08:00

Electronic delivery of services is an effective method to introduce transparency in governmental dealings and to reduce corruption therein. Similarly, e-delivery of services can also bring efficiency that can reduce costs and unnecessary time taking by government departments.

For instance, Securities and Exchange Board of India (SEBI) is planning to use electronic initial public offer (E-IPO) in India. With this investors would be able to bid for shares electronically and without the need for signing any papers physically. This could also be used as a mean to provide an exit to companies which are listed exclusively on defunct exchanges.

Similarly, Indian judiciary is exploring the possibility of using an electronic bail communication system in India. This system would ensure sending of bail order in real time so that unreasonable detention in jail can be avoided.

Further, with the passing of the proposed Cable TV Networks (Regulation) Second Amendment Bill 2011 of India, digital television services would be offered to consumers at affordable prices and with superior quality.

Even on the front of social networking, Indian government is considering enacting a framework and guidelines for use of social media for government organisations. This would ensure an interaction between government departments and general public on crucial issues and public grievances. A good social media policy of India can be really helpful in this regard.

Even private outsourcing models have been developed where citizen to government LPO and KPO services in India would be extended in future. This would be an extension of e-delivery of services from private sector to the government in India as pioneered by Perry4Law and Perry4Law Techno Legal Base (PTLB).

Recently the World Bank and Indian government signed a loan agreement of $150 million for the e-delivery of public services in India. In order to get the benefits of such loan, electronic services delivery in India has been proposed in the past. E-delivery of public services in India would still take few years as we have no legal framework for mandatory e-governance in India.

With the proposed draft Electronic Delivery of Services Bill 2011 (EDS Bill 2011) Indian government has for the first time shown its willingness to provide e-governance services in India. However, the proposed Draft Electronic Services Delivery Bill 2011 “failed” to provide mandatory e-governance services in India. The real problem with Indian e-governance initiatives in general and proposed ESD Bill 2011 in particular is that legal framework for mandatory electronic services delivery in India is still missing from it.

Legal framework for mandatory e-governance services in India is long due. Till mandatory e-governance services in India are ensured, e-delivery services in India cannot succeed.

An electronic services delivery policy of India must be formulated as soon as possible that must mandate a compulsory e-delivery of services in India. Such e-delivery of services must be provided in a time bound manner to be successful. Till now there are no hints of these pre requisites and the e-delivery of public services DPL project of India cannot succeed in these circumstances.

The Cable TV Networks (Regulation) Second Amendment Bill 2011 Of India

2011-12-20T05:29:00.000-08:00

Entertainment and media industry in India is witnessing an incredible growth rate. Indian government is also streamlining the legal frameworks that would help in the sustainable growth of media and entertainment industry in India.

Technological advances and the need to shift from analog spectrum to digital broadcasting by television broadcasters have put digital television (DTV) on a fast track. At the same time, development of digital television has necessitated balancing competing interests – those of content holders, and those of the consumer and technological industries.

Once the switch from analog to digital broadcasts is complete, analog TVs are incapable of receiving over-the-air broadcasts without the addition of a set-top converter box. Consequently, a digital-to-analog converter, an electronic device that connects to an analog television, must be used in order to allow the television to receive digital broadcasts.

However, this shift from analog to digital broadcasting in India is required to be done keeping in mind various techno legal aspects. Legal issues of entertainment and media industry of India are yet to be resolved especially the techno legal issues. This transition to digital television in India must be done in a systematic and techno legal manner.

Recently, Parliament of India gave its clearance for the initiating the digitisation step in the country. It passed the Cable TV Networks (Regulation) Second Amendment Bill 2011 in this regard. The Bill will now go to the President for her assent before it is notified as an Act.

The consumer will now be free to choose the channels he/she wanted instead of being forced to accept the bouquets offered by the direct-to-home operators or multi-system operators. The Telecom Regulatory Authority of India (TRAI) has been authorised under the Bill to fix the tariff for a-la-carte basis.

The drive will now allow multi-specialty operators and big DTH players to grab a larger pie of shares from local cable operators, who are reported to declare lower subscriber numbers and in turn revenues. Digitisation would also give a true assessment of the subscriber base of the broadcasters. Under the new regime, all satellite channels will be beamed to houses through set-top boxes. The government is also assuring cable operators that the proposed move would not harm them.

The measure is claimed to be a major step which would enable digitisation of the analog TV network and bring India on a par with other countries like US, Britain, Korea and Taiwan. The cable and satellite television industry is expected to be worth Rs.20,000 crore. Some contend that this legislation would end the fight for more TRPs among channels. The government would also stand to benefit as it would ensure proper tax collection. According to an estimate, carriage and placement fee contribute around 20 percent of the total cost of running a channel.

Indian media and entertainment industry may face the legal challenges of Intellectual Property Rights (IPRs) laws and cyber law of India. IPRs laws like copyright, trademark, etc may be frequently violated and occasionally invoked to redress IPRs violations of media and entertainment industry in India. Similarly, online IPRs issues like domain name disputes may also be agitated in the future. Similarly, media and entertainment industry must keep in mind the mandates like “cyber due diligence” and other provisions of Information Technology Act, 2000.

Media and entertainment industry will also face technological challenges in future. For instance, the issues pertaining to digital preservation of entertainment industry products may assume significance in future. All these issues require sound planning and actual implementation so that media and entertainment industry of India can grow.

Electronic Bail Granting And Communication System In India

2011-12-19T01:33:00.000-08:00

Granting of bail in a criminal matter ensures the right to life and liberty of an individual. While granting a bail, it is ensured that the normal life off the grantee is not jeopardised due to the initiation of a criminal proceeding. In many cases, although the bail is granted yet its communication and final execution may take some time. This seems to be an unreasonable exercise and avoidable evil.

Information and communication technology (ICT) can easily, instantly and most effectively solve this problem that Indian judiciary has unnecessarily prolonged. Use of ICT for judicial and legal reforms in India is well recognised and establishment of e-courts in India could bring many far reaching legal and judicial reforms in India.

Although e-courts project of India has been launched since 2003 yet it has still not seen the light of the day. There are many reasons why e-courts in India failed to take a start. Lack of will and technical expertise seem to be the main reasons. We must concentrate upon “e-courts capacity development” aspect that is still missing. We have to ensure e-courts related skills development in India that is presently missing. Further, ICT training for judges in India is also long due.

Establishment of e-courts in India must be expedited. We have a single techno legal e-courts training and consultancy centre of India managed by Perry4Law Techno Legal Base (PTLB) that is working in this direction.

However, some positive developments are also taking place in India. Few judges in India are encouraging use of ICT for judicial purposes and to ensure a speedier justice. For instance, it has been recognised that bail orders through e-mail can be sent. Further validity of electronic legal notices in India is by and large confirmed and acknowledged.

Supreme Court of India recently decided to experiment with email notices to respondents to cut the delay in the traditional method of serving notices. The bench clarified that it is not making a new rule but providing for an additional mode for service of notices. The traditional method of notice sending is still kept intact.

The bench also realised that there may be some difficulties in implementing this initiative. It asked all the lawyers present in the court about putting in practice the serving of notice through emails, at least to start with in commercial matters.

Recently a petition in Bombay High Court challenged the detention of an accused that has been either acquitted or released on bail. It was contended that if the accused are acquitted or released on bail, the time taken to communicate the acquittal by the court to jail authorities resulted in illegal detention. In order to mitigate the hardships to such accused, it was suggested that the current practice of using snail mail for communication of acquittal and bail orders be replaced with a web-based service that links all district courts. The court inquired as to the cyber security efficacy of this proposal and asked the National Informatics Centre (NIC) to give its opinion in this regard. The NIC vouched for the feasibility and cyber security of such a proposal.

However, NIC opined that while a web-based portal would be safe as a temporary measure, using emails for communication would be vulnerable to fraud. NIC suggested two methods - delivery through web portals and emails, and highlighted security issues and procedures to ensure that no fraudulent orders are accessed for action. NIC also suggested that in future digital signatures can also be sued to further secure such electronic communications.

This is a good development in the right direction. It would be even better if granting of bail itself can be done in a cyber secure online environment. When e-courts are finally established in India, both application for bail as well as its granting and communication can be done through online mechanisms. Perry4Law and PTLB strongly recommend use of such methods in future.

E-Commerce Laws In India

2011-12-18T04:56:00.000-08:00

Technology has brought many important changes the way we deal in our day to day lives. Whether it is e-governance or e-commerce, individuals and companies are equally benefited due to use of technology.

Realising that cyberspace can bring many commercial benefits; both individuals and companies are ensuring that they have strong online presence. More and more brand promotion and protection in India are done these days in an online environment. Companies and individuals are also ensuring domain name protection in India so that their reputation and goodwill is not misappropriated by others.

We have no dedicated e-commerce laws in India. However, the information technology act 2000 (IT Act 2000), which is the sole cyber law of India, is regulating the e-commerce business and transactions in India. Internet intermediaries liability in India under the IT Act 2000 is very stringent. Cyber law due diligence in India is one aspect that all e-commerce site owners must frequently engage in.

Electronic commerce in India (E-commerce in India) has slowly and steadily entered the Indian market. Toady from tickets booking to purchasing of good and services, everything happens in an online environment.

Of course, where commercial transactions occur, disputes and differences are bound to occur. To prevent and resolve these disputes we need norms, regulations and laws that are acceptable to all the stakeholders.

The e-commerce law of India is primarily incorporated in the information technology act, 2000 (IT Act 2000) that takes cares of legal obligations of both sellers and buyers of good and services in cyberspace.

The IT Act 2000 prescribes rules and norms for online contract formulation. The traditional concepts of offer, acceptance etc, as applicable under the contractual laws, have also been covered by the IT Act 2000. The only difference is that they have been customised as per the requirements of cyberspace.

However, e-commerce transactions and contracts also attract certain additional legal liabilities that e-commerce players in India are not very much aware. For instance, very few e-commerce players in India are aware that they are “intermediaries” within the meaning of IT Act 2000. Further, there are very few e-commerce lawyers and law firms in India that can provide expert services in this regard.

Further, other laws, including intellectual property laws, make these e-commerce players labile for civil and criminal actions. For instance, these e-commerce players can be held liable for online infringement of copyright in India of the copyright owners.

Similarly, if any person posts an offending material at the e-commerce site or otherwise deal with the e-commerce site in an illegal manner, the e-commerce site owner may find himself in trouble.

Cyber law due diligence in India is one aspect that all e-commerce site owners must frequently engage in. The present laws of India are stringent in nature and subsequently claiming ignorance of such laws would not make much difference.

Perry4Law and Perry4Law Techno Legal Base (PTLB) strongly recommend that before opening an e-commerce site or business, the owner of the same must consult a good techno legal law firm that can advice him upon all the possible and applicable aspect of e-commerce laws in India.

Cyber Law On Social Media And Networking Sites In India

2011-12-17T20:27:00.000-08:00

Social media and networking sites have a crucial role to play. Now even governments across the world acknowledge this importance of social media websites. India is one such country that is currently trying to deal with social media sites. However, we have no dedicated social media laws in India. It has even been reported that guidelines for social media contents monitoring in India would be issued very soon.

However, till now we have no social media policy in India. Even we do not have dedicated social networking laws in India that can take care of the misuses of social platforms. However, the framework and guidelines for use of social media for government organisations has been recently suggested by department of information technology. Theses guidelines provide an Indian social media framework for governmental departments and organisations that employees of these organisations must follow.

Social media is considered to be an Internet intermediary as per Indian cyber law. The recent controversy of Internet censorship in India has once again reiterated the importance of effective social media laws in India.

Cyber law due diligence in India has become very stringent. This applies to various fields and to multiple stakeholders. For instance, cyber due diligence for banks in India is now a well known requirement for banks in India. However, Internet intermediaries are the most widely covered stakeholders in this regard. Intermediaries liability for cyber law due diligence in India is really tough.

Indian government is very keen in regulating the contents of social media in a constructive manner. This occasionally results in censorship of Internet in India. Further, Indian government is now openly acknowledging surveillance of Internet traffic in India.

Recently Internet intermediaries in India have been asked to pre screen contents before they are posted on their websites. India wants companies like Google and Facebook to censor users’ contents before they are posted.

In a related incidence, Yahoo has filed a petition raising the questions regarding the right to privacy of a company that stores sensitive data of its customers and users and to what extent authorities can coerce it to part with the information considered necessary to either track terror perpetrators or thwart future attacks. The Google’s outcry for lack of Internet intermediary law in India is another example of growing dissatisfaction towards Indian cyber laws, especially Internet intermediary laws of India.

However, social media sites have certain techno legal obligations and liabilities as per Indian laws. For instance, social networking sites are liable for online IPRs violations, including online copyright violations in India. Although we have no law on the lines of online copyright infringement liability limitation Act (OCILLA) of United States yet the “safe harbour” provisions protecting intermediaries are not available under certain conditions as per Indian laws. Social networking sites must be aware of these limitations while operating in India. However, if social media sites are working within the framework of Indian laws, unreasonable e-surveillance, Internet censorship and websites blocking should not be by Indian government.

The corporate environment of India is changing rapidly as per global; requirements. Corporate laws in India are proposed to be streamlined with the introduction of the proposed Companies Bill 2011. The foreign direct investment (FDI) in India has been liberalised in many sectors. Even FDI in pharmaceuticals sector in India has been liberalised. Securities and Exchange Control Board (SEBI) has also proposed an electronic Initial public offer in India (E-IPO in India). These steps are pointing towards and open and transparent governmental functioning and not e-surveillance and Internet censorship oriented model.

Internet censorship in India can create problems for not only FDI in India but also for the growth of various sectors including banking sector of India. An integrated modern banking law for India is already in pipeline and an e-surveillance model of India would not be beneficial for the same.

Perry4Law and Perry4Law Techno Legal Base (PTLB) strongly recommend that Indian government must enact strong and effective social media laws, e-governance laws and e-commerce laws in India. Social networking laws in India must be so drafted as would benefit all the stakeholders.

Social Networking Laws In India

2011-12-16T23:30:00.000-08:00

With the fast growing social networking platforms in India it has become essential to enact effective social media laws in India. Presently social networking laws in India are not mature enough to take care of social media in the most appropriate manner. Social media is considered to be an Internet intermediary as per Indian cyber law. The recent controversy of Internet censorship in India has once again reiterated the importance of effective social media laws in India.

Social networking in India has increased tremendously. This has also given rise to many legal issues as well. Most of these legal issues are related to online acts or omissions that are resulting in giving rise to civil and criminal liabilities.

Laws ranging from intellectual property rights (IPRs) to information technology laws are applicable to social networking acts or omissions in India. The growing demands for cyber due diligence in India has further necessitated for adopting of a sound social networking policy in India by various stakeholders.

Social networking media is an “intermediary” within the meaning of Indian information technology act 2000 (IT Act 2000). Thus social networking sites in India are liable for various acts or omissions that are punishable under the laws of India. For instance, social networking sites are liable for online IPRs violations, including online copyright violations in India.

Although we have no law on the lines of online copyright infringement liability limitation Act (OCILLA) of United States yet the “safe harbour” provisions protecting intermediaries are not available under certain conditions as per Indian laws. Social networking sites must be aware of these limitations while operating in India.

At Perry4Law and Perry4Law Techno Legal Base (PTLB) we have been spreading public awareness about social networking issues in general and cyber laws in particular. We hope that social networking sites would be cautious while operating in India.

Social Media Laws In India

2011-12-16T23:17:00.000-08:00

Social media laws in India are in limelight these days. Social media websites are very popular among technology savvy as well as ordinary Netizens. More and more Netizens are joining social platforms to share their opinions, views, data and details. However, social networking laws in India are not adequate and properly drafted.

Social media includes social networking sites, blogs, forums, wikis, etc. Social media is growingly seen as a medium to connect with millions of professionals, friends and like minded individuals and organisations.

India is also witnessing a growing revolution of information and communication technology (ICT) and social media usage. However, till now we have no social media policy in India. Even we do not have dedicated social networking laws in India that can take care of the misuses of social platforms.

However, the framework and guidelines for use of social media for government organisations has been recently suggested by department of information technology. Theses guidelines provide an Indian social media framework for governmental departments and organisations that employees of these organisations must follow.

Perry4Law and Perry4Law Techno Legal Base (PTLB) strongly recommend that Indian government must enact strong and effective social media laws, e-governance laws and e-commerce laws in India. These three fields are going to assume centre stage in the near future and their regulation by Indian government would be required.

Till now India has enacted a single technology law in the form of information technology act 2000 (IT Act 2000). It has tried to cover all the three issues but not with great success. This is so because these three fields are very vast and require a different treatment and separate law. Perry4Law and PTLB strongly recommend enacting suitable laws in this regard.

Internet Censorship In India

2011-12-06T20:36:00.000-08:00

Internet in India is under potential threat of censorship and e-surveillance. Internet censorship in India has increased a lot. Similarly, e-surveillance in India has also increased to intolerable limits.

India has a draconian but cyber criminals’ friendly cyber law in the form of information technology act, 2000 (IT Act 2000). It was amended in 2008 to confer unregulated e-surveillance, Internet censorship and website blocking powers to Indian government and its agencies. The present cyber law of India is an unconstitutional one in the absence of procedural safeguards that can prevent these abusive draconian powers under the IT Act 2000. It requires an urgent repeal.

On top of it we have the proposed central monitoring system (CMS) project of India that has been proposed without any parliamentary oversight. Further, stress upon Internet kill switch is also given by India without realising that Internet kill switch is not a solution to cyber threats. Anti Internet kill switch measures are needed to prevent Indian government from taking recourse of any such unconstitutional and draconian action.

Website blocking and Internet censorship should be resisted as far as possible in India. This fight should be techno legal in nature where both technical and legal measures must be adopted to thwart surveillance and censorship activities of Indian government and its agencies. Proactive self defence in cyberspace is needed not only against alien enemies but also against our own Orwellian government.

Self defence in cyberspace is a concept whose time has come at both national and international level. At the national level of India self defence is required not only against cyber criminals but also against our own over zealous and e-surveillance oriented Indian government. Suggestions have been given in the past that United Nations (UN) must protect human rights in cyberspace as well. However, UN is not serious about protecting human rights in cyberspace.

At the national level, Indian government acquired itself unregulated, illegal and unconstitutional e-surveillance, Internet censorship and website blocking powers with no procedural safeguards. The information technology act, 2000 (IT Act 2000) was amended through the information technology amendment act 2008 (IT Act 2008) and this amendment gave unconstitutional and illegal powers to Indian government and its agencies. With the notification of the IT Act, 2008, the journey from welfare state to a police state was completed for India.

Instances of website blocking in India and Internet censorship in India have increased a lot. What is more worrisome is the fact that e-surveillance and Internet censorship in India have increased without any lawful interception law in India. Lawful interception law in India is missing and phone tapping in India is done in an unconstitutional manner.

Of all e-surveillance project, nothing is worst than the Aadhar project of India and its implementing unique identification authority of India (UIDAI) headed by Nandan Nilekani. Irrespective of what Nandan Nilekani and Indian government says, Aadhar project and UIDAI are serving a very vicious, evil and nefarious objective of e-surveillance without procedural safeguards. Surprisingly, even Google is censoring results pertaining to Aadhar project and UIDAI and is messing up with search placement results.

Now Internet intermediaries in India have been asked to pre screen contents before they are posted on their platforms by the account holders. India wants companies like Google and Facebook to censor users’ contents. In fact, Goggle web censorship has greatly increased in the past. Perhaps somebody at Google was already doing the pre screening of some web contents in India, with or without knowledge of Google.

Google has been in controversies from time to time. Whether it is illegal data gathering, censorship of Google news searches, manipulation of search results, etc, Google has been doing it all. In fact, it seems Google was actively helping Indian government and its agencies for messing up with Aadhar project, UIDAI, World Bank or any other similar post that questions the wrong practices of Indian government. During that period Google continued its censorship drive in India and many posts failed to appear in news, blogs and search segments.

What Internet intermediaries are facing now is a direct result of their succumbing to Indian government pressure and unconstitutional laws like IT Act 2008. They should have challenged the constitutional validity of IT Act 2008 that is the root cause of all these troubles. Fortunately Yahoo took Indian government to court over e-surveillance and more such litigations are expected in the near future. Let us see how cyber law of India would develop in this regard.

Online Dispute Resolution Services Are Growing

2011-11-30T02:34:00.000-08:00

International online dispute resolution (international ODR) is no more a fiction. With growing disputes being resolved through an online mechanism, ODR has also assumed significance. ODR has significant advantages over not only traditional litigation methods but also against alternative dispute resolution (ADR) mechanisms.

International community is working really hard in the direction of recognising use of ODR as an effective dispute resolution mechanism. For instance, European Union has been considering use of ODR for cross border consumer disputes. Similarly, efforts of United Nations to streamline ODR are also well known. Similarly, use of ODR for cross border e-commerce transactions is also suggested. Similarly, WIPO is also using ODR for dispute resolution.

These international efforts must also be implemented at the national level. In other words, ODR needs international harmonisation to be effective. If we implement ODR at the international level alone, using ODR at national level would never be successful.

For instance, online dispute resolution in India is still evolving. ADR and ODR services in India are still in their infancy stages. Obviously, online dispute resolution services in India are still maturing. We have very few online dispute resolution centers in India. Further, Perry4Law Techno Legal Base (PTLB) is the sole techno legal ADR and ODR services provider in India.

Interest in ODR must be invoked among the stakeholders at both national and international level. ODR can be really effective where stakeholders are located at different jurisdiction. With the help of technology, disputes can be resolved without even leaving the residence of any party. Let us hope that ODR would be used at mass scale and at all levels to resolve disputes in the best possible manner.

Surveillance of Internet Traffic In India

2011-11-26T05:31:00.000-08:00

E-surveillance in India is no more a secret as Indian government is openly engaging in e-surveillance activities. This is despite the fact that an unregulated and unguided e-surveillance is violating the civil liberties protection in cyberspace in India.

Now e-surveillance is proposed to be expanded to even mobile infrastructure. The cell site location based e-surveillance in India is also in contemplation. Cell site data location laws in India and privacy issues are once again bypassed for this proposal. Even the e-surveillance policy of India is missing that can provide some safeguards against illegal and unconstitutional e-surveillance in India.

Similarly projects like Aadhar project of India, central monitoring system project of India, etc are also intended to strengthen the e-surveillance capabilities of India without and constitutional safeguards.

On the top of India, India is trying every possible method to discourage the cyber security initiatives like encryption. Encryption policy of India is missing and so are encryption laws in India.

Now Indian government has forced the telecom service providers and internet service providers (ISPs) to deploy monitoring equipment for surveillance of internet traffic as per the conditions of the respective license agreements and as per the requirements of security agencies. At present, indigenous internet monitoring systems are being deployed in the network of ISPs.

Based on the feedback and traffic projections provided by the ISPs, the internet monitoring systems are upgraded and deployed continuously as per the requirement of security agencies.

India needs to upgrade its intelligence infrastructure that is in real mess. Intelligence agencies need to develop intelligence gathering and analysis skills so that situations like the present one can be taken care of. E-surveillance is not a substitute for cyber skills and Indian government and its agencies must realise this truth as soon as possible.

Even by forcing the telecom service providers and ISPs to filter internet traffic at large would not serve any purpose. Cyber criminals and terrorists are already well aware to use sophisticated technology to hide their tracks. This exercise would only violate the civil liberties of law abiding citizens.

Fortunately, Yahoo has dragged Indian government regarding e-surveillance to the Delhi High Court and a judicial scrutiny of e-surveillance in India may be possible. Time has come to consider all these aspects in detail and at the highest levels by the Indian government and parliament of India.

Yahoo Took Indian Government To Court Over E-Surveillance

2011-11-25T01:44:00.000-08:00

E-surveillance in India has become a big nuisance for intermediaries like internet service providers (ISPs), e-commerce sites, search engines, e-mail providers, etc. The liability of Internet intermediaries for copyright violations is also well known that has further increased the troubles of intermediaries in India.

Intermediaries liability for cyber law due diligence in India has become very stringent after the information technology amendment act 2008 has been notified. Information technology act 2000 (IT Act 2000) now carries many e-surveillance, websites blocking and Internet censorship provisions.

The problem is that there are “no procedural safeguards” subject to which these wide and sweeping powers can be exercised. This is also the reason why these provisions are unconstitutional and illegal as they are violating the provisions of Indian constitution.

However, in the larger interests of their commercial activites in India, these intermediaries not only accepted the draconian amendments in the cyber law of India but they are also complying with the legal as well as illegal orders of Indian government and its agencies. However, this approach would be counter productive for them in the long run and they must come forward against such laws and draconian provisions.

Yahoo has taken a very significant step in this regard. Yahoo has approached the Delhi High Court against the Union home ministry's attempts to obtain information about nearly a dozen Yahoo IDs/IP addresses it suspects are used by Islamic terrorists and Maoists.

Yahoo has challenged the legality of the government's decision to penalise it by slapping it with a fine of Rs 11 lakh because Yahoo refused to share profile details of the users of these email ID's that are under the scanner of the agencies. Recently, the HC stayed the imposition of the fine, and sought a response from the Centre.

In its petition, Yahoo has raised questions on the right to privacy of a company that stores such sensitive data and to what extent authorities can coerce it to part with the information considered necessary to either track terror perpetrators or thwart future attacks. "The government cannot under the cloak of national security implications bypass legal procedures," the petitioner has argued, claiming the section and clauses invoked by the Union ministry to demand information from Yahoo doesn't empower the government to do so.

Yahoo has taken a bold step that even companies like Google have not been able to do so. The matter is pending before the Delhi high court that has a good chance to bring some order in the otherwise chaosed e-surveillance world of India. The issue of phone tapping and privacy violations in India is also pending before the Supreme Court of India.

The matter must also be looked from another angle. Human rights protections in cyberspace in India are not safeguarded at all. Even at the international level United Nations has not shown much interest in protecting civil liberties in cyberspace. The data privacy laws in India are also missing. In short, there is complete negation of human rights in cyberspace in the Indian context.

Yahoo’s case may bring to the knowledge of Indian courts this situation and we may expect some respect for the constitutional rights and freedoms that are seldom respected in India these days.

Data Privacy Laws In India

2011-11-23T09:09:00.000-08:00

Privacy rights and data protection are essential for protecting civil liberties and commercial interests. We do not have a dedicated privacy law in India as well as data protection law in India. There is no second opinion that privacy laws in India and data protection law in India is needed.

Privacy rights and laws in India have been ignored for long. Privacy rights in India in the information era are seldom respected in India. Although right to privacy bill of India 2011 has been suggested many times in the year 2011 yet till now we do not have any conclusive draft in this regard that can be introduced in that parliament of India. In fact, we are still waiting for a public disclosure of final and conclusive proposed draft right to privacy bill 2011 of India that can be discussed in the parliament.

Fortunately, the issue of phone tapping and violation of privacy rights as a result of the same is pending before the Supreme Court of India. The unconstitutional phone tapping in India is wide prevalent and the Supreme Court of India must also address this issue.

The Supreme Court of India must expand privacy rights in India as that is the need of hour. Fortunately, the issue is already pending before it and there would not be much trouble in formulating a privacy framework for India.

However, the real solution can come from the parliament of India alone. The parliament of India must pass strong and effective privacy and data protection laws for India. Even there is a need to revisit the telephone tapping legal framework of India.

At the executive level, Indian government must formulate the national privacy policy of India that must address all these issues. Unfortunately, Indian government is deliberately avoiding these crucial issues on one pretext or other. In the larger interest of India and as a direct obligation under the constitution of India, executive, legislature and judiciary must protect the fundamental rights and civil liberties of Indian citizens.

Are Indian Satellites Safe From Cyber Attacks?

2011-11-21T07:00:00.000-08:00

Cyber attacks and cyber espionage by one nation against another are very common these days. Though nations are attacking one another through cyber intrusions yet none of them come forward to accept the same. Whether we like it or not but cyber attacks and cyber espionage would continue to be used by various nations against each other.

This process is a part of traditional strategic information gathering by defence forces, intelligence agencies, etc. For instance, the systems and techniques capable of destroying an adversary’s satellites have been a major focus of arm race in outer space. With the active use of Internet, the same process has taken a shape of cyber espionage and cyber attacks.

Naturally, we must focus upon a robust and effective cyber security in India. For instance, Indian preventive and offensive capabilities against cyber warfare must be developed to ward off growing incidences of cyber espionage and cyber attacks against India.

Indian critical infrastructure if frequently targeted by cyber attacks. Malware like Stuxnet and Duqu are increasingly found in the computers managing the critical infrastructure of India. In fact some believe that Stuxnet was also responsible for the destruction of an Indian broadcasting satellite. Cyber security of Indian satellites is a natural choice in these circumstances.

The Indian government must deliberate upon cyber threats like cyber espionage and cyber warfare that are increasingly targeting strategic computers and facilities. With growing interest in cyber security, this may be achieved within few years in India.

Indian Legal Workforce Needs To Be Skill Driven

2011-11-20T05:50:00.000-08:00

Practical training and skills are two of the most important attributes of a successful and highly paying career. These attributes are also the most commonly absent essentials of various educational courses. As a natural result, almost 75% of the educated masses are either unemployable or simply not suitable for the relevant jobs.

Even Indian companies are facing shortage of skilled workforce to manage their day to day functions. In the information technology field, there is an urgent need of cyber skilled workforce in India. Further, technical education and skill development in India need to be considered on a top priority basis.

As far as legal field is concerned, the situation is not very different. For instance, the legal research in India is not qualitative and plagiarism is rampant in Indian legal research community.

Although legal process outsourcing (LPO) in India is flourishing yet there are very few e-discovery related LPO and KPO firms in India. In future e-discovery related LPO and KPO services in India would increase considerably. However, the skilled workforce needed to execute such high end and domain specific work is missing.

PTLB online skills development initiative is trying to bridge all these gaps so that a skilled legal workforce can meet all the future employment related challenges in India. Interested stakeholders, students and professional from around the globe can enroll for these courses, training, education and skills development programs of PTLB.

National Cyber Security Policy of India Is Needed

2011-11-18T20:51:00.000-08:00

Cyber security policy and strategy is an important aspect of national security. Till now we have no national security policy of India. There is no second opinion about the fact that national security policy of India is required and the sooner it is drafted and implemented the better it would be for India.

In fact, national security of India is affected by turf war that is putting the entire national security at risk. For instance, Indian nuclear facilities may not be cyber secure. Indian websites are occasionally defaced.

Crucial computers at strategic government departments and defense forces are frequently compromised. The servers of national informatics centre (NIC) of India were recently hacked. This puts the entire governmental web infrastructure at risk.

A sound national security policy must have many essential and important aspects incorporated into it. One such essential component is cyber security policy and strategy of India. Till now we have no implementable national cyber security policy of India.

India’s national cyber security policy must be suitable formulated and immediately implemented. Further, Indian counter terrorism capabilities needs rejuvenation to deal with traditional terrorism and cyber terrorism. Indian banks are also not very good at cyber security and they are not willing to upgrade their cyber security despite the mandatory recommendations by Reserve Bank of India (RBI).

At the international level efforts have been streamlined to strengthen cyber security and global cyber security cooperation. Recently NATO requested cyber security cooperation from India.

Even at the individual level countries are strengthening their offensive and defensive cyber capabilities. In United States, the DARPA is developing offensive and preventive cyber capabilities. Indian defense and security against cyber warfare must also be developed.

It is high time for India to develop cyber offensive and defensive capabilities so that it can manage cyber threats like cyber terrorism, cyber warfare, cyber espionage, etc in a timely and effective manner.

Indian Defense And Security Against Cyber Warfare

2011-11-17T03:32:00.000-08:00

Of late, India is increasingly targeted for cyber espionage, cyber warfare, cyber terrorism and many similar cyber attacks. Indian response to the same remained lukewarm. Obviously the news of sophisticated Malware targeting Indian critical infrastructure is no big surprise.

For instance, some claim that Stuxnet Malware was responsible for the destruction of an Indian broadcasting satellite. Similarly the Duqu Malware used the command and control servers located in India. The latest being that the servers of National Informatics Centre (NIC) of India were compromised and used for launching cyber attacks upon other nations.

In this background India must analyse its cyber skills and capabilities. Is India ready for cyber warfare, cyber terrorism, cyber espionage, cyber attacks, etc? We have still not formulated any cyber warfare policy of India. In fact, cyber security in India is an ignored world. Even there is no cyberspace crisis management plan of India that is actually implemented at the national level.

At the legal framework level as well India is lagging far behind. We have no dedicated legal framework for cyber security in India. Even the cyber law of India needs many suitable amendments as it has become outdated.

These issues require political will to resolve and presently that seems to be missing. Although Kapil Sibal is doing a great job yet he seems to be overburdened with many responsibilities. This is resulted in sidelining of cyber law and cyber security issues.

Now Kapil Sibal has given positive hints about these issues, things may change in the near future. But till then Indian cyberspace is vulnerable to all sorts of cyber attacks.

India is not at all ready to tackle cyber warfare, cyber terrorism, cyber espionage, etc with the present framework of mind and cyber capabilities. Indian defense and security against cyber warfare is missing and the same needs to be strengthened as soon as possible.

Virtual Campuses Can Eliminate Corruption In Higher Education Of India

2011-10-18T23:53:00.000-07:00

All of you must remember Jaspal Bhatti’s flop show and the episode pertaining to PhD. The episode explained how PhD researchers in India are exploited by their supervisors in cash and kind. That was a classical comedy that portrayed the corrupt higher educational system of India.

Years have passed but the bitter truth still prevails in India. Although HRD minister Kapil Sibal is doing great to improve and strengthen the dying educational system of India yet PhDs in India are still facing the menace of corruption.

Recently, e-mails were also sent to both Kapil Sibal and Salman Khurshid to bring to their notice the deteriorating conditions of higher legal education in India. The truth is that higher legal education in India needs urgent reforms.

Higher education in India is suffering from many deficiencies and irregularities. These include lack of practical training, academic nature of education, absence of skills development, corruption, lack of research capabilities, etc.

Universities and colleges are engaging in all sorts of undesirable behaviours and practices and this is affecting the higher education and research oriented courses like PhDs. Indian government is also not very much enthusiastic in curing these deficiencies and eliminating the irregularities.

The lack of transparency and prevalent corruption is eating up the higher education system of India and it can be cured if we allow foreign educational institutions to open their centers in India. This way not only the monopoly of Indian colleges and institutions can be eliminated but better and qualitative education can be made available to Indian students.

Further, this would also force the Indian educational institutions and colleges to focus and stress upon quality rather than upon corrupt practices and exploitation. We need more virtual campuses as well so that Indian students can have qualitative education through e-learning and distance learning method.

At Perry4Law Techno Legal Base (PTLB) we are trying to bridge this qualitative gap in a corruption free environment. PTLB is managing the exclusive techno legal e-learning portal of India and world wide. It provides many qualitative and highly specialised courses that would remain a dream through traditional Indian educational institutions. We hope this initiative of ours would be beneficial for all the stakeholders.

Privacy Laws In India

2011-10-08T03:37:00.000-07:00

We have no dedicated privacy laws in India and data protection laws in India. Naturally, this is a troublesome and undesirable situation. The supreme court of India has interpreted Article 21 as empowering Indian citizens with right to privacy in India.

However, despite this constitutional protection, various governmental projects in India are opening ignoring Article 21 and are clearly violating the same. This is happening because we have no national privacy policy in India.

Further, we have no privacy laws in India as well. Although some privacy guidelines have been issued by one or two departments of Indian government yet they are far from satisfactory and cannot replace a well structured privacy law of India.

Privacy rights in the information era require a totally different outlook. In fact, privacy rights form an essential part of civil liberties protection in cyberspace that India is presently ignoring.

For instance, consider the projects like Aadhar, National Intelligence Grid (NATGRID), Crime and Criminal Tracking Network and Systems (CCTNS), National Counter Terrorism Centre (NCTC), Central Monitoring System (CMS), Centre for Communication Security Research and Monitoring (CCSRM), etc.

They must be supported by a techno legal framework and must be civil liberty complaint. Presently, none of them are governed by any Legal Framework and none of them are under Parliamentary Scrutiny. These projects are openly violating various human rights/civil liberties, including right to privacy.

It is high time to formulate privacy laws in India so that constitutional freedoms and rights are not considered to be just legal jargon we no actual implementation.

Cyber Warfare Policy Of India

2011-10-06T00:00:00.000-07:00

Cyber Warfare is a concept that is not clear yet. Some believe that there is nothing like Cyber Warfare as there is no involvement of traditional military actions. Others believe that Cyber Warfare is a reality of the present time and future wars would be fought in Cyberspace. Whatever the opinion may be but it is clear that Nations have to protect their Critical ICT Infrastructures and Strategic Computers from growing Cyber Attacks.

Cyber Warfare and Cyber Terrorism are issues that cannot be taken lightly by any Country. From these threats emerge the necessity of having a robust Cyber Security for Defense Forces in India. These issues are important as they strike at the very root of the Critical ICT Infrastructure Protection in India. However, India is not doing the needful in this regard. Cyber War Capabilities should be an Integral Part of Indian National Defense and Security.

India needs a sophisticated and robust Technological Command Centre to defend its global network of computer systems. It must develop both offensive and defensive capabilities under one roof. Strategic information and tactical inputs are essential part of modern warfare that can be lost or gained through Cyber War methods. There is no doubt that India needs good Cyber War Capabilities to meet the growing threats of Cyber Warfare.

Malware are posing significant threat to India yet there is no attention towards Cyber Security in India. For instance, we need Express Legal Provisions and Specified Policies to deal with issues like Denial of Service (DOS), Distributed Denial of Services (DDOS), Bots, Botnets, Trojans, Backdoors, Viruses and Worms, Sniffers, SQL Injections, Buffer Overflows Exploits, etc. Till now India has done nothing in this crucial direction and we are still waiting for the Cyber Security Policy and Strategy of India. Obviously, we have no Cyber Warfare Policy of India as well. Even the Cyber Law of India is weak and ineffective and deserves to be repealed.

The biggest hurdle before curbing Cyber Warfare Threats at the International level is Lack of Harmonisation in this regard. Till now we have no “Internationally Acceptable Definition” of Cyber Warfare. Further, we have no Universally Acceptable Cyber Crimes Treaty as well. There is also no International Cyber Security Treaty. India is not a part of any International Treaty or Conventions regarding Cyber Crimes, Cyber Security, etc.

We cannot have a Cyber Terrorism Policy in India till we have a Cyber Crimes Policy in India, Cyber Security Policy in India other similar Policies. Indian Government must urgently work in this crucial direction as it is the most urgent need of the hour.

Cyber Warfare Against India

2011-10-05T00:54:00.000-07:00

Cyber warfare is a concept that is still haunting the international community. The situation is so serious that north atlantic treaty organisation (NATO) has sought stronger cooperation with India to counter growing cyber threats.

Cyber warfare is still a murky area as different countries deal with cyber attacks and cyber warfare attacks differently. While countries like US are considering it as an act of aggression on the footing of war yet other countries are taking divergent views. However, all countries are willing to use every possible cyber capabilities as preventive and curative cyber methods.

Till United Nations (UN) steps in and enacts “universally acceptable” international cyber law treaty and international cyber security treaty, this problem would remain murky and difficult to resolve. Further, nothing can benefit more than an international cyber security cooperation that is urgently required.

The incidences of cyber attacks, cyber terrorism, cyber espionage, cyber warfare, etc are increasing against India. However, in the absence of India’s national cyber security policy, cyber security in India is a neglected field. We must urgently develop cyber warfare capabilities in India to thwart growing cyber attacks against India. Further, we must also formulate a cyber warfare policy in India that is presently missing.

Cyber warfare is also the reason why we need to ensure critical infrastructure protection in India and critical ICT infrastructure protection in India. In fact the growing cyber attacks are affecting Indian critical infrastructure. Thus, cyber security capabilities through techno legal cyber security trainings in India must be strengthened. We must stress upon cyber security skills development in India.

The situation is equivalent to a wake up call and Indian government must take urgent steps to strengthen Indian cyber security. The sooner it is adopted the better it would be for a safe and secure cyberspace of India.

Cyber Crimes Investigation Training In India

2011-09-27T00:47:00.000-07:00

Modernisation of police force of India requires not only basic knowledge of information and communication technology (ICT) but also practical trainings in the areas like cyber law, cyber crimes investigation, cyber forensics, etc.

Cyber crimes investigation capabilities in India are not up to the standards. Law enforcement agencies of India need to develop good techno legal cyber skills to improve their investigative capabilities.

Police must also ensure cyber law skills development. Similarly, police in India also need to undertake cyber frauds detection trainings so that cyber frauds can be anticipated even before they are committed.

Perry4Law Techno Legal Base (PTLB) is providing many techno legal courses and trainings for police force of India. These include cyber crime investigation trainings, cyber forensics trainings, cyber security trainings, cyber fraud detection trainings, etc.

Techno legal e-learning in India by PTLB also provides many more courses and trainings. These are basic level techno legal courses that have been specially customised to the requirements of Indian police.

With increasing cyber crimes, Indian police need to develop sufficient capabilities so that cyber crimes can be punished adequately in India. Presently, most of the police stations and police officers find it difficult to deal with cyber law and cyber crimes related cases.

We need a trained cyber police force in India. The present cyber crimes police cells of India are not competent enough to deal with growing cyber crimes in India. Law enforcement in India needs to have techno legal trainings to deal with these cyber crimes. Further, police also need to undergo courses in cyber crimes investigation in India so that they can sharpen their cyber skills.

With more and more stress upon modernisation of police force in India and developing their cyber capabilities, these issues of lack of cyber skills would be resolved very soon.

National Cyber Security Policy Of India

2011-09-27T00:39:00.000-07:00

The recent cyber attacks upon India have proved once again that we need to pay more attention to cyber security in India. Cyber security in India is required not only to protect sensitive information stored in the computers of strategic Indian departments and ministries but also to safeguard the present and future critical infrastructure of India.

Not only critical infrastructure protection in India is needed but also critical ICT infrastructure protection in India (CIIP in India) is need of the hour. CIIP in India is an area that requires urgent attention of our policy makers. We must formulate a critical ICT infrastructure protection policy of India as soon as possible.

Similarly, cyberspace crisis management plan of India is also required to be formulated. We must formulate a national ICT crisis management plan of India. Further, Indian crisis management plan against cyber attacks and cyber terrorism must also be formulated.

All these, and many more, aspects must be made a part of the cyber security policy of India. A national cyber security policy of India must be formulated in this regard that is made implementable after a reasonable period. Issues like cyber warfare, cyber terrorism, cyber espionage, international cyber security cooperation, etc must be part of the same.

We need a clear and implementable cyber security strategy of India. The cyber security policy and strategy of India must be techno legal in nature that can take care of both technical and legal aspects of cyber security.

There is no second opinion that national security policy of India is required and cyber security is an essential and indispensable part of the same. The sooner we formulate and adopt the same the better it would be for the larger interests of India.

Cyber Attacks Are Affecting Indian Critical Infrastructure

2011-09-26T05:11:00.000-07:00

These days information and communication technology (ICT) has become an indispensable part of our day to day life. Many critical infrastructures have now been connected with ICT in one form or another.

This is the reason why we need to ensure critical infrastructure protection in India and critical ICT infrastructure protection in India. We also need to strengthen the cyber security of India and the best way to do so is to formulate the national cyber security policy of India.

Cyber attacks and cyber threat are increasing against India. However, cyber security in India is not up to the mark and is ailing badly. There are many factors for the poor performance of Indian cyber security and lack of adequate expertise is one of them.

Whether it is strategic government department’s computers or critical infrastructure, all of them are under constant cyber attack risks. Take the example of the recent cyber security incidence that has affected the Indira Gandhi International Airport (IGIA) security systems.

Three months ago, a ‘technical snag’ had hit operations at the state-of-the-art T3 terminal at IGIA. It now turns out it was caused by a “malicious code” sent from a remote location to breach the security at the airport.

A hunt has been launched to nab the perpetrator with the CBI registering a case under the IT Act and IPC. Investigators say that the “malicious code” was in the form of “attack scripts”, which means a programme was written by an expert to exploit the system’s security weakness.

While the efforts of CBI is praiseworthy yet when it comes to timely and appropriate actions, CBI does not score well. For instance, the case of CBI’s website defacement has not been investigated in the manner it was required. Cyber crimes investigations in India need to be improved to make effective investigation and get desired results.

In the present case of IGIA as well the news of the cyber attack has come after three months and this has weakened the case to a great extent. We need timely detection and effective cyber crime investigation capabilities in India to deal with cyber attacks and cyber crimes. Indian government must conduct effective trainings and courses for cyber crimes investigations in India.

Coming to the present case, the check-in counters, transfers counters and boarding gates at the IGI are operated using the Common Use Passengers Processing System (CUPPS), maintained by Aeronautical Radio Incorporated (ARINC). The CUPPS operates on a common software-and-hardware platform that integrates all information such as an airline’s reservation system, the expected time of departure and the capacity at waiting lounges. The problem in CUPPS started at 2.30 am on June 29 due to which check-in counters of all airlines at T3 became non-operational.

“This forced the airlines to opt for manual check-in and as a result passengers had to wait. There are around 172 CUPPS counters and only a third were functioning online,” said an official. The investigation revealed that someone had hacked into the main server of the CUPPS and introduced a virus.

It took nearly 12 hours to restore the system. The CBI was also called in as officials suspected it was a security breach. “We found that there were serious security lapses,” said a CBI official.

The agency had also asked for details of records of CUPPS and staff handling the system. “Once we receive the details, it will be analysed to see if any official is involved. It appears that someone sitting at a remote location had operated the system. We have registered a case under the IT Act and other relevant section of the IPC,” added the CBI official.

Indian critical infrastructures are under strong cyber attacks and we need to take this seriously. In cyber crimes and cyber attacks cases taking months to investigate them means loosing the case. We have to develop real time cyber security capabilities in India to avoid such failures.

E-Commerce Laws In India

2011-09-25T22:16:00.000-07:00

Information and communication technology (ICT) has changed the way we make our commercial transactions. Even payments for such online dealings and transactions can be made through an online mode. One such commercial use of ICT is electronic commerce.

Electronic commerce in India (E-commerce in India) has slowly and steadily entered the Indian market. Toady from tickets booking to purchasing of good and services, everything happens in an online environment.

Of course, where commercial transactions occur, disputes and differences are bound to occur. To prevent and resolve these disputes we need norms, regulations and laws that are acceptable to all the stakeholders.

The e-commerce law of India is primarily incorporated in the information technology act, 2000 (IT Act 2000) that takes cares of legal obligations of both sellers and buyers of good and services in cyberspace.

The IT Act 2000 prescribes rules and norms for online contract formulation. The traditional concepts of offer, acceptance etc, as applicable under the contractual laws, have also been covered by the IT Act 2000. The only difference is that they have been customised as per the requirements of cyberspace.

However, e-commerce transactions and contracts also attract certain additional legal liabilities that e-commerce players in India are not very much aware. For instance, very few e-commerce players in India are aware that they are “intermediaries” within the meaning of IT Act 2000.

Further, other laws, including intellectual property laws, make these e-commerce players labile for civil and criminal actions. For instance, these e-commerce players can be held liable for online infringement of copyright in India of the copyright owners.

Similarly, if any person posts an offending material at the e-commerce site or otherwise deal with the e-commerce site in an illegal manner, the e-commerce site owner may find himself in trouble.

Cyber law due diligence in India is one aspect that all e-commerce site owners must frequently engage in. The present laws of India are stringent in nature and subsequently claiming ignorance of such laws would not make much difference.

Perry4Law and Perry4Law Techno Legal Base (PTLB) strongly recommend that before opening an e-commerce site or business, the owner of the same must consult a good techno legal law firm that can advice him upon all the possible and applicable aspect of e-commerce laws in India.

Indian Centre For ICT In Parliament

2011-09-25T10:24:00.000-07:00

World over parliaments are becoming aware of the benefits of information and communication technology (ICT). India is also following the pursuit. However, the use of ICT by Indian parliament is very limited and traditional in nature.

For instance live telecasting of the proceedings of parliament, maintaining of websites by parliament, etc are some of the examples where ICT has been used by Indian parliament. However, Indian parliament has to cover a long gap before it can be safely called fully ICT compliant.

Parliament is a place where laws are made. If we combine technology with law, the requirement of parliament becomes techno legal in nature. This also means that we need research and training centers for parliament that are techno legal in nature.

At Perry4Law Techno Legal Base (PTLB) and Perry4Law Techno Legal ICT Training Centre (PTLITC) we have established the exclusive techno legal ICT research and training centre for parliament of India. This is the exclusive techno legal Indian centre for ICT in parliament. The centre intends to empower Indian parliament and parliaments of other jurisdictions in a techno legal manner.

PTLB and PTLITC have also started various techno legal e-learning courses, education, research and trainings for staff, employees, committees, committee members, members of parliament, etc. This includes techno legal courses and trainings for legislative drafting, legislative research, legislative education, public legal awareness trainings, etc.

We hope this initiative of PTLB and PTLITC would be beneficial for various stakeholders in general and Indian parliament and other parliaments in particular.

Online Commercial Arbitration In India

2011-09-23T21:05:00.000-07:00

Arbitration is a cost effective and expeditious dispute resolution mechanism. A majority of commercial disputes are resolved through the mode of arbitration. International commercial arbitration has also become an emerging trend these days. Generally, an arbitration clause is incorporated in various contracts and commercial contracts that prescribe resolution of a future dispute through arbitration.

Traditional litigation is not a productive mechanism to resolve disputes as it is costly and time consuming in nature. Thus, there is a gradual shift from litigation to arbitration in commercial matters.

A new aspect has been added to commercial dispute resolution and commercial arbitration by the information and communication technology (ICT). ICT has introduced a novel dispute resolution mechanism known as online dispute resolution (ODR). Although ODR in India has still to keep a pace yet it has been used in developed countries for many purposes, especially for resolving cross border e-commerce disputes.

At Perry4Law Techno Legal Base (PTLB) we are not only providing training and courses on ODR but are also actively using the same for contractual and commercial disputes resolution in India. In fact, Perry4Law and PTLB have provided the exclusive technology dispute resolution policy of India and ODR policy of India so that ODR may gain popularity and a wider acceptance in India.

PTLB has supplemented its ODR initiatives with other techno legal initiatives. The chief among them are e-courts research and training centre, digital evidencing centre, cyber forensics centre, etc. We hope our initiatives and efforts would be beneficial for the growth of online commercial arbitration in India and world wide.

ICT Research And Training Centres In India

2011-09-21T23:50:00.000-07:00

Information and communication technology (ICT) is a specialised field that requires good working knowledge and expertise. ICT covers many areas like ICT legal framework, cyber security, cyber forensics, e-learning, e-commerce, e-governance, electronic services delivery, digital preservation, etc.

Further, ICT is no more technological in nature these days. Today ICT has to take care of both technical as well as legal issues. For instance, fields like cyber law, cyber forensics, digital evidencing, video conferencing for judicial purposes, e-courts, etc are essentially techno legal in nature.

World over ICT research and training is in infancy stage. However, developed countries are better situated than developing countries like India in this regard. In order to compete and defeat these developed countries, India needs to establish good and effective techno legal ICT research and training institutions and centers.

At Perry4Law Techno Legal Base (PTLB) we have opened many techno legal ICT research, training and education centers. PTLB manages the exclusive techno legal research, education and training centers in the fields like cyber law, cyber security, cyber forensics, e-courts, digital evidencing, online dispute resolution (ODR), human rights protection in cyberspace, techno legal skills development, techno legal e-learning, etc.

Perry4Law Techno Legal ICT Training Centre (PTLITC) is providing highly specialised and domain expertise based techno legal research, education and trainings in India and world wide. PTLITC is also the exclusive techno legal ICT research and training institution of India and world wide.

PTLB/PTLITC provides all these and many more techno legal e-learning courses in India and world wide. A prototype of the techno legal e-learning courses of PTLB is available to have an idea about the basic level techno legal courses of PTLB (PDF).

Since this initiative of PTLB is an online initiative, students and professionals from any part of the world can get themselves enrolled. The application form (Doc) for getting enrolled to various courses of PTLB is also available online.

PTLB intends to widen its research, education and training activities and with the active use of e-learning and online learning methodologies, the same would be achieved very soon.

ICT Training Institutes In India

2011-09-18T11:09:00.000-07:00

Information and communication technology (ICT) has transformed the way we live in today’s environment. All aspects of our day to day life have ICT as an essential component. ICT has also transformed the way trainings are imparted for various professional courses.

These days training, education and courses are imparted in an online environment through e-learning method. Skills developments are also performed in an online environment. However, there is a shortage of good ICT training institutions in India.

Today employers and companies are not looking for just academic degrees or diplomas. In fact, they are looking for actual skills and practical knowledge. This makes a dominant majority of our educated young generation jobless.

The aim of any education must be to develop skills and expertise rather than imparting mere academic discourse. India must work in this direction and ICT training and education institutions must be encouraged.

At Perry4Law Techno Legal Base (PTLB) we are working in this crucial direction. PTLB manages the exclusive techno legal ICT training and education centre of India. PTLB also provides the exclusive techno legal e-learning in India and world wide.

Some of the courses and trainings offered by PTLB include cyber law, cyber security, cyber forensics, cyber crime investigation, cyber fraud investigation, etc. Besides areas like e-commerce, e-governance, e-courts, electronic delivery of services, Natgrid, CCTNS, etc are also covered. Interested individuals and organisations may contact PTLB in this regard for these trainings, courses and partnership offers.

Legal E-Learning Courses In India

2011-09-17T08:57:00.000-07:00

E-learning has changed the entire game of education providing in India. In a country like India, qualitative and timely education is very difficult to find. Universities, colleges and educational institutions of India are not only overcrowded but they are also following the traditional and old academic model.

This has sacrificed practical trainings and skills development in India to a greater extent. Skills development for technical education in India is especially in urgent need of rejuvenation. Online skills development in India through e-learning is a viable option to fill this gap that is costing us skilled workforce in India.

Legal e-learning in India has also witnessed a growing interest in India. At Perry4Law Techno Legal Base (PTLB) we provide exclusive techno legal e-learning education, courses, trainings, etc. Techno legal e-learning in India by PTLB has the unique advantage that it combines both technical as well as legal knowledge that very few in the world are doing.

Some of the courses where e-learning can play a conclusive role in India include cyber law, cyber security, cyber forensics, due diligence, intellectual property rights, digital evidence, e-courts, Natgrid, CCTNS, human rights in cyberspace, etc.

PTLB provides all these and many more techno legal e-learning courses in India and world wide. A prototype of the techno legal e-learning courses of PTLB is available to have an idea about the basic level techno legal courses of PTLB (PDF).

Since this initiative of PTLB is an online initiative, students and professionals from any part of the world can get themselves enrolled. The application form (Doc) for getting enrolled to various courses of PTLB is also available online.

Indian government must announce incentives and supports for private institutions that are providing valuable trainings and education through e-learning methodology. This is more so in the legal field where e-learning is almost non existent. We hope our initiatives would prove useful to all concerned.