US India Cyber Security Relationship Needs Rejuvenation

International community is taking cyber security very seriously. Even NATO had requested cyber security cooperation from India. Indian cyber security and international cooperation must be rejuvenated in the context of contemporary developments. Keeping this is mind, the Indo US cyber security relationship needs improvements.  

United States is presently engaged in serious cyber security initiatives at national and international levels. At the national level, the Cyber Intelligence Sharing and Protection Act (CISPA) has been proposed to be enacted. It is claimed that CISPA would boost the cyber security capabilities of US.

However, the US White House has issued a dissenting Statement of Administration Policy on Cyber Intelligence Sharing and Protection Act (CISPA). After reading various media reports and dissenting opinion, one may ponder whether CISPA really a remedy or a bad idea.

Meanwhile, India has its own share of problems. Unable to deal with the technology and foreign technology companies, Facebook, Google, etc may be forced to install servers in India. Even the foreign direct investment (FDI) issues have also been impacted by the national security concerns. FDI in telecom sector of India may be modified by the national security requirements of India.

In the recent past, the India US cyber security cooperation agreement was signed. It was a part of broader India US homeland security dialogue to boost counter terrorism and cyber security capabilities. Similarly, US has already made clear its international strategy for cyberspace. Even the White House is mulling federal cyber security law.

However, international organisations must play a more direct and pro active role to fight cyber crimes. This is more so when we have no universally acceptable international cyber law treaty and international cyber security treaty. This is resulting in conflict of laws in cyberspace and India is getting impatient in this regard.

If US India cyber security cooperation has to be successful, both India and US must sort out many crucial differences. The sooner it is done the better it would be for the interests of both countries.

Consolidated FDI Policy Of India 2012 By DIPP

It is very cumbersome and inconvenient to report all links to our previous posts on the topic consolidated FDI policy of India 2012 in every subsequent post. Therefore, Perry4Law and Perry4Law Techno Legal Base (PTLB) have decided to report the previous posts in this regard at this post.

This post would act as the base for all previous posts on this topic and we would keep on updating this post from time to time to make it updated, holistic and composite. We hope our readers would find this arrangement more useful and convenient.

Till now we have covered the following posts in this regard:

(1) Consolidated FDI policy of India 2012 by DIPP: objectives,

(2) Consolidated FDI policy of India 2012 by DIPP: definitions,

(3) Consolidated FDI policy of India 2012 by DIPP: general provisions,

(4) FDI in limited liability partnerships (LLPs) in India 2012,

(5) Permissible direct and indirect foreign investment in an Indian company,

(6) Foreign investment promotion board (FIPB) and FDI policy of India 2012,

(7) Prohibited sectors under the consolidated FDI policy of India 2012,

(8)  FDI in agriculture and animal husbandry under consolidated FDI policy of India 2012,  

(9) FDI in mining sector of India under consolidated FDI policy of India 2012,

(10) FDI in petroleum and natural gas sector of India under consolidated FDI policy of India 2012

(11) FDI in micro and small enterprises (MSEs) sector of India under consolidated FDI policy of India 2012

(12) FDI in defence sector of India under consolidated FDI policy of India 2012

(13) FDI in broadcasting sector of India under consolidated FDI policy of India 2012

(14) FDI in print media sector of India under consolidated FDI policy of India 2012

(15) FDI in civil aviation sector of India under consolidated FDI policy Of India 2012

(16) FDI in courier services sector of India under consolidated FDI policy of India 2012

(17) FDI in construction development sector of India under consolidated FDI policy of India 2012

(18) FDI in industrial parks segment of India under consolidated FDI policy of India 2012

(19) FDI in satellites and private security agencies sectors of India under consolidated FDI policy of India 2012

(20) FDI in telecom services, ISPs and telecom infrastructure providing sectors of India under consolidated FDI policy of India 2012 and FDI in telecom sector of India and national security issues,

(21) FDI in wholesale trading and e-commerce sectors of India under consolidated FDI policy of India 2012

(22) FDI In Asset Reconstruction Companies Of India Under Consolidated FDI Policy Of India 2012

(23) FDI In Banking Sector Of India Under Consolidated FDI Policy Of India 2012

(24) FDI In Commodity Exchanges Sector Of India Under Consolidated FDI Policy Of India 2012

(25) FDI In Credit Information Companies (CIC) Of India Under Consolidated FDI Policy Of India 2012

(26) FDI In Infrastructure Company In The Securities Market Of India Under Consolidated FDI Policy Of India 2012

(27) FDI In Insurance Sector Of India Under Consolidated FDI Policy Of India 2012

(28) FDI In Non-Banking Finance Companies (NBFC) Sector Of India Under Consolidated FDI Policy Of India 2012

(29) FDI In Pharmaceuticals Sector Of India Under Consolidated FDI Policy Of India 2012

Latest Techno Legal Initiatives Of Perry4Law Organisation And PTLB

Perry4Law has launched certain techno legal initiatives that are of public importance. These initiatives basically cover areas like trainings and education, online disputes resolution, e-courts,

Perry4Law is the legal segment of Perry4Law’s Organisation and Perry4Law is taking care of the technology laws and ICT related legal issues. Perry4Law Organisation is the umbrella body that governs the organisational issues at national and international level.

Perry4Law Techno Legal Base (PTLB) is the premier techno legal segment of Perry4Law Organisation that takes care of basic level techno legal trainings. Perry4Law Techno Legal ICT Training Centre (PTLITC) is providing domain specific and highly expertise based techno legal trainings of Perry4Law’s Organisation.

Now Perry4Law Organisation has launched few more techno legal dispute resolution initiatives. These include initiatives named Electronic Courts, E-Judiciary, ODR India, Online Arbitration, etc.

With this disputes pertaining to technology, domain names, cross border commercial transactions, etc could be resolved in a speedier and cost effective manner. We hope all stakeholders would find these initiatives useful.

Virtualisation, Cloud Solutions And Encryption Usage In India

Virtualisation, cloud solutions and encryption are three issues that are interrelated. These aspects are interrelated through various applicable laws in India that all virtualisation and cloud computing companies must follow to avoid legal liabilities.

The present trend in India in this regard is not very encouraging. Virtualisation and cloud computing service providers are either not aware of applicable Indian laws or they are working in gross regard of the same. Even requirements of Indian laws pertaining to encryption usage in India are not followed in proper manner.

Virtualisation and cloud computing service providers in India must not only follow the encryption laws of India but they must also ensure cyber law due diligence in India. This is more so when the cyber law due diligence for companies in India has become very stringent and foreign companies and websites are frequently prosecuted in India for non exercise of cyber due diligence.

Perry4Law and Perry4Law Techno Legal Base (PTLB) have provided the projected cyber law trends of India 2012. According to this trend, cyber due diligence for cloud computing, social media, virtualisation services, etc would be required to be exercised frequently in India by various technology players.

Further, although we have no dedicated legal framework for cloud computing in India as on date yet legal and regulatory issues of cloud computing in India would arise in future. In fact, cloud computing in India is legally risky. Further, e-discovery for cloud computing in India would also bring its own share of techno legal issues.

Companies dealing in virtualisation and cloud computing services must ensure that they are complying with various techno legal requirements in India.

Legal Immunity From Criminal Prosecutions To Armed Forces At Foreign Jurisdictions

Legal immunity from criminal prosecutions of armed forces personnel of one nation present in another nation is a complicated aspect. It requires analysis of public international law, international treaties and convention, multilateral agreement, bilateral agreements between two countries and so on.

For instance, if a member of United States armed forces commits felony, sedition, murder or any other offence against national security of the nation where he/she is present, his/her criminal prosecution is imminent. However, who would criminally prosecute such US personnel is the real question. Will it be the US government/armed force or would it be the criminal courts of the nation whose criminal laws have been violated?

It all depends upon either the international treaty/multilateral agreement in this regard to which both the US and that nation are party or it may depend upon a bilateral agreement between the US and that nation. However, there is nothing like an automatic immunity or absolute immunity to such US personnel in all circumstances. In fact, there may be circumstances where such US personnel may be prosecuted under the criminal laws of the nation whose criminal laws have been violated.

In short, armed forces immunity can be claimed either under the international law and in a member country alone that is also part to any treaty in this regard to which US is also a member or it must be claimed through an executive agreement with the concerned country where US armed forces are stationed.

Until the post-World War II era, status of forces agreement (SOFAs) addressed this conflict between sovereigns and US policy was to rely heavily on the concept of immunity from host nation criminal jurisdiction created by the host nation's implied consent in expressly consenting to US forces being stationed there. The US policy of insisting on complete immunity from foreign criminal jurisdiction continued in the early post-World War II period, but ultimately gave way to the negotiation of systems of "concurrent jurisdiction" in SOFAs and bilateral supplementary agreements.

With the exception of the multilateral SOFA among the United States and North Atlantic Treaty Organisation (NATO) countries, a SOFA is specific to an individual country and is in the form of an executive agreement. A US personnel who is accused of a criminal act in another country may be criminally prosecuted in the host country, especially if the alleged criminal act has nothing to do with the official duty of such personnel.

Google Staff Got Confused While Dealing With DMCA Notice

The confusion regarding the recent suspension of some of our posts has resolved now. Simultaneously when we were sending the legal response to such suspension, we received an e-mail from the Blogger team. It intimated us that they have complied with our request to remove contents from the offending platforms.

We were surprised as we did not send any such request. All we requested was removal of “weblinks” of posts that are violating our copyright from SERPs, blog search, etc. Clearly, it is a case of misunderstanding. We replied back to Blogger team and clarified the matter as follows:

“Dear Google

Thanks for your mail.

However, it seems there has been some misunderstanding.

We requested you to remove the copyright violating posts “weblinks” from SERPs, blog search and other places at Google. We also requested you to invoke your manual action against the repeatedly offending website to demote it in your search results.

You have confused it as a “contents copyright violation” complaint. Further, you have also kept the weblinks intact and they are still appearing at your SERPs, blog search, etc.

Further, you have by mistake suspended the “original source” of contents itself instead of removing the weblinks of the copyright offending posts from your SERPS, blog searches, etc.

We said:

“This is the “second time” that posterous.com has picked up our articles despite our express and stern objections. Our previous DMCA compliant with Google in this regard is already pending bearing a number [#980893***].

We also said:

“The copyright violating posts and the original sources respectively are”

It means the first link was the copyright violating post and the later link was the original source that we represent.

You have removed the original source and left the weblinks of the copyright violating posts intact.

It seems you were confused while removing the weblinks of the offending posts.

Kindly restore the original posts and remove the weblinks of the copyright violating posts appearing at Posterous.com from SERPs, blog search, etc.

Kindly feel free to get any clarification in this regard”.

We hope with this our original contents would be restored by Google immediately and those guilty of frequent copyright violation would be punished accordingly.

Online Sale And Purchase Of Prescribed Drugs and Medicines In India

Online sales and purchase are governed by electronic commerce transactions. We have no dedicated e-commerce laws and regulations in India. However, a basic level legal e-commerce framework has been provided by the Information Technology Act, 2000 (IT Act 2000) that is the cyber law of India.

While we have basic level e-commerce legal framework in India yet e-health related legal framework is missing. For instance, e-health in India is facing legal roadblocks. Till now we do not have any dedicated e-health laws and regulations in India. The legal enablement of e-health in India is urgently required.

When technology is used for medical purposes, it gives rise to medico legal and techno legal issues. In United States, the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Health Information Technology for Economic and Clinical Health Act (HITECH Act), etc are some of the laws that take care of medico legal and techno legal issues of e-health and telemedicine.

As far as India is concerned, we have no dedicated e-health and telemedicine laws in India. Even essential attributes of these laws like privacy protection, data protection, data security, cyber security, confidentiality maintenance, etc are not governed by much needed dedicated laws.

Ordinary commodities can be comfortably sold through e-commerce websites. However, health related commodities, especially prescribed medicines and drugs, are not easy to manage in an online environment. This is the reason why we have almost nil online sales of prescribed drugs and medicines in India as on date.

We need a dedicated law regarding e-health in general and online sale and purchase of prescription drugs in particular. The laws that deal with sales of prescribed medicines and drugs were enacted many decades ago when information and communication technology (ICT) driven innovative e-commerce methods were not within the contemplation of the legislature. Naturally, these laws are silent about their applicability to online sale and purchase of prescription drugs and their online trading.

Till now many e-health players are not aware whether the present laws allows or disallows the buying and selling of medicines through websites. Though over-the-counter products are no problem, online trade of prescription medicines is a sensitive issue. There are far too many issues involved regarding safety and authenticity of online drug stores.

Most western countries have allowed online sale of medicines. Even China has recently allowed opening of online medical stores for its pharmaceutical industry when about 20 companies were given licenses in this regard and they are doing well. In India, most players are afraid of engaging in online sales of prescribed medicines because of the uncertainty in the legal framework. Time has come to enact a dedicated law that allows online sales and purchase of prescribed drugs and medicines in India.

National Cyber Coordination Centre (NCCC) Of India

India has too many agencies and authorities and they are scattered all over India. For practical reasons, there are no centralised agency that can manage law and order and cyberspace related issues. This is resulting in increased cyber attacks and cyber crimes committed against India and Indian citizens.

Cyber law issues, cyber security and national security are on agenda of Indian government these days. However, till now cyber security in India is not upto the mark and cyber law of India requires an urgent repeal. This is because the entire approach and attitude of India government is defective.

Indian government has failed to understand that e-surveillance is not a substitute for cyber security capabilities. Instead of developing cyber security capabilities of India, the Indian government is stressing upon growing use of e-surveillance in India and Internet censorship in India.

All these exercises of India government have been done without any legal framework supporting these initiatives of Indian government. Phones are tapped in India without a constitutionally valid phone tapping laws in India. The central monitoring system project of India (CMS Project of India) is also not supported by any legal framework. Surveillance of Internet traffic in India is also another area that requires a sound legal framework. Various authorities with far reaching powers have been created without any legal backing.

Now the government has proposed setting up of National Cyber Coordination Centre (NCCC) of India. The NCCC would provide actionable alerts to government departments in cases of perceived security threats. It is hoped that this would help in fighting terrorists and other cyber criminals.

The NCCC will scan whole cyber traffic flowing at the point of entry and exit at India's international Internet gateways. The web scanning centre will provide actionable alerts for proactive actions to be taken by government departments. All government departments will now talk to the Internet Service Providers (ISPs) through NCCC for real time information and data on threats. Presently, the monitoring of web traffic is done by Centre for Development of Telematics (C-DoT) which has installed its equipments at the premises of ISPs and gateways.

All tweets, messages, emails, status updates and even email drafts will now pass through the new scanning centre. The centre may probe further into any email or social media account if it finds a perceived threat.

India's National Security Council Secretariat (NCSC) has asked various departments to assess their needs for officials, who will coordinate with the scanning agency. The National Security Council handles the political, nuclear, energy and strategic security concerns of the country.

This can be another agency without a legal framework. Creating agencies without legal framework is counter productive as it violates civil liberties and human rights. Parliamentary oversight of intelligence agencies of India and proposed NCCC is absolutely required. The Indian government must keep this in mind while creating NCCC.

Cell Phone Laws In India

Legal enablement of ICT systems in India is posing big challenge before India. Cell phone laws in India are just one of the examples of such legal enablement. Although we have a cyber law for India yet we have no dedicated mobile phone law and mobile phone laws in India are needed. Similarly, efforts must also be made to strengthen the mobile cyber security in India.

With the launch of projects like central monitoring system (CMS), national cyber coordination centre (NCCC) of India, etc the requirements to have valid e-surveillance and cell phone laws are imminent.

Cell phone or mobile phone laws in India have still to evolve. Presently provisions pertaining to cell phones are scattered under various statues and governmental guidelines and rules. However, we have no dedicated cell phone laws in India.

Cell phones are playing important role in day to day activities of Indians. They are used for multiple purposes that cover both personal and commercial transactions. We cannot ignore the commercial, contractual and legal significance and consequences of cell phone transactions in India. This necessities enactment of dedicated cell phone laws in India.

However, positive developments in this direction are not happening in India. On the contrary, negative development infringing civil liberties in cyberspace are taking place in India. Human rights protection in cyberspace cannot be ignored the way Indian government is doing presently.

For instance, the proposal to allow department of telecommunication (DoT) to monitor cell phone locations in India is one such controversial issue. Big brother must not overstep its limits in India. Even proposed cell site based e-surveillance in India has crossed this limit well beyond those permitted by Indian Constitution.

We must have well defined procedure and cell site data location laws in India. As we have no dedicated privacy laws, data protection laws, data security laws, anti telemarketing laws, anti spam laws, etc, cell phones monitoring in India is not legally sustainable.

Even the proposed central monitoring system (CMS) project of India is not legitimate and legally sustainable as there is no legal framework that justifies its operation in India. Currently there is no phone tapping law in India that is constitutionally sound and we urgently need a lawful interception law in India. Similarly, the colonial phone tapping laws of India must be repealed and new and constitutionally sound phone tapping laws in India must be formulated.

DoT is excessively favouring e-surveillance in India and surveillance of Internet traffic in India. We need a legally valid e-surveillance policy of India to address these issues. Internet censorship in India has greatly increased and now the intelligence agencies of India want to ensure monitoring of cell phone usages in India as well. This is troublesome as parliamentary oversight of intelligence agencies of India is missing and this clearly violated the constitutional safeguards.

It is high time that Indian government must enact constitutionally sound cell phone laws in India so that civil liberties and law enforcement requirements can be reconciled.

Mobile Phone Laws In India Needed

In this column, Mr. B.S.Dalal, Partner of India’s exclusive techno legal ICT law firm Perry4Law, has shared his views about the requirements of enacting mobile phone laws in India.

We have no dedicated cell phone laws in India. Further, we do not have a robust mobile cyber security in India. In this background, absence of a dedicated mobile phone law in India is not a good sign.

Mobile phones are increasingly being used for multi purpose in India. However, legal framework for mobile phones in India is still missing. Some provisions can be made applicable to mobiles in India through the information technology act 2000 (IT Act 2000) but we still do not have a dedicated mobile phone laws in India.

The Department of Telecommunication (DoT) has proposed a new national telecom policy of India 2011 that would be operational very soon. The new telecom policies as well as other projects of Indian government and DoT are excessively favouring e-surveillance in India and surveillance of Internet traffic in India. We need a legally valid e-surveillance policy of India to address these issues. Otherwise, it would violate human rights protection in cyberspace.

The proposal to allow DoT to monitor cell phone locations in India is also a controversial issue. Big brother must not overstep its limits in India. The proposed cell site based e-surveillance in India has crossed this limit well beyond those permitted by Indian Constitution.

We must have well defined procedure and cell site data location laws in India. As we have no dedicated privacy laws, data protection laws, data security laws, anti telemarketing laws, anti spam laws, etc, mobile phones monitoring in India is not legally sustainable.

Even the proposed central monitoring system (CMS) project of India is not legitimate and legally sustainable as there is no legal framework that justifies its operation in India. Currently there is no phone tapping law in India that is constitutionally sound and we urgently need a lawful interception law in India. Similarly, the colonial phone tapping laws of India must be repealed and new and constitutionally sound phone tapping laws in India must be formulated.

The mobile phone laws of India must cover all these issues that are presently left unaddressed. In the absence of such laws, mobile phone data analysis, mobile phone location tracking, mobile phone tapping in India, etc are illegal and unconstitutional.