The Information Technology (Amendment) Bill, 2006 that was passed by Parliament on December 28, 2008 allows the government to intercept messages from mobile phones, computers and other communication devices to investigate 'any offence'.
Unauthorised interceptions could soon become common
With Parliament on Tuesday, December 28, 2008 passing a bill, which stipulates life imprisonment for those indulging in cyber terrorism and giving the government endless power to "intercept or monitor any information through any computer resource," experts/we fear that "unauthorised interceptions could soon become common".
Absolute power over all information transmitted
This legislation goes beyond merely infringing the right to privacy of an ordinary citizen. The provisions of this Act unfortunately give the state absolute power over information transmitted through computer systems.
Where the Act earlier allowed the government to intercept and monitor any information transmitted through computer systems in the national interest, the amendment expands the government's powers to include 'any offence'.
All personal contents of computers and emails under scrutiny
This unfortunately means that e-mails, text messages and the contents of one's computer are all fair game as far as the government is concerned.
Our emails or the personal contents of our computers could soon be under the government's scrutiny without our knowledge.
The amended Act or Bill also grants/empowers the state/government with absolute power to block access to any website in the national interest, which could lead to censorship.
Punishment for accidentally browsing po*nography
The Bill was passed by Parliament without debate with as many as 45 amendments in the original Act treats both purveyors of po*nography and recipients on equal footing.
Browsing or downloading po*nography on the Internet even accidentally / unknowingly / unintentionally may send anyone behind the bars for five years with a fine that may go up to Rs 10 lakhs, the term raised to seven years on second conviction.
Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc. in electronic form.
The subtitle may mislead us that just the act of browsing won't be punishable, but the details cover everything: Creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner or cultivates, entices or induces children to an online relationship.
If any of these are found on anyone's computers, the onus is on him/her to establish that those depicted are not children, defined as persons who have not completed the age of 18 years or else s/he will be punished even if s/he not retransmitted or exchanged them with anybody.
Spying based on people based on their religion or political affiliation
The potential for misuse of these powers stipulated by the bill for political gains can't be ruled out. This could be an invitation to the government to spy on people based on their religion or political affiliation.
Police Inspector can arrest without any warrant
It gives wide powers to authorities that a computer user may realise only when he is hauled up. The worst is that an inspector can raid and haul us up without warrant.
In the original Act enacted in 2000, this power was vested in the officer not below the rank of deputy superintendent of police or DySP.
Some sites automatically open with po*nographic pictures / images / photos that may leave footprints in anyone's computers that will be enough for an inspector to arrest and prosecute anyone.
SURVEILLANCE: The inspector may not even knock at our door to check a variety of computer crimes for which we may be booked as another section of the Bill provides for any government agency to interrupt, monitor or decrypt any information generated, transmitted, received or stored in any computer.
CYBER TERRORISM: Introducing any 'contaminant' in a computer or network is covered in the new category of the cyber terrorism described in the Bill that will attract imprisonment that may extend to life term since it claims such conduct causes or is likely to cause death or injuries to persons or damages to or destruction of property.
It unfortunately does not explain how precisely/exactly and in what way a computer crime can / could cause death or injuries.
Computer experts say there are many such contaminants that sneak into a computer and then start sending emails and offensive material to all and sundry.
The person may not be able to explain such transmissions from his computer and yet he will be faulted and punished with three years of jail and fine up to Rs 5 lakhs in first instance and with five years in jail and fine up to Rs 10 lakhs for subsequent conviction if any material goes out of his computer that is lascivious or appeals to the prurient interest or deprives and corrupts persons.
If the material contains a sexually explicit act, the punishment shall be still harsher: Five years in jail and fine up to Rs 10 lakhs, which may be extended to 10 years of jail term in the case of subsequent conviction.
EMAILS and SMSs/SMSes: The Bill also provides for punishment with the jail term up to three years and fine for sending through computer or any communication device, including mobile phone, any information that is grossly offensive or has menacing character or he knows it to be false but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will or any electronic mail or message to cause annoyance or inconvenience or to deceive or mislead the addressee or recipient.
IT experts say such acts definitely deserve punishment but there is no protection provided for viruses entering into a computer and taking over transmission of such messages and information.
Sections that are most likely to be misused have been reproduced below:
(Punishment for sending offensive messages through communication service, etc.)
66A. Any person who sends, by means of a computer resource or a communication device,-
(a) any content that is grossly offensive or has menacing character; or
(b) any content which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently makes use of such computer resource or a communication device, shall be punishable with imprisonment for a term which may extend to two years and with fine.
Explanation.-For the purposes of this section, the term -communication device-means cell phones, personal digital assistance (PDA) or combination of both or any other device used to communicate, send or transmit any text, video, audio or image.
(Punishment for publishing or transmitting obscene material in electronic form.)
67. Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to two years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.
(Punishment for publishing or transmitting of material containing sexually explicit act, etc., in electronic form.)
67A. Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees.
Section 69 of the Information Technology (Amendment) Act 2008, passed by Parliament on December 23, 2008, is far more intrusive than the Indian Telegraph Act of 1885, which was drafted to protect the interests of the British Raj.
Under the new IT Act, any Government official or policeman will be able to listen in to all our phone calls, read our SMSs and emails, and monitor the websites we visit. And he will not require any warrant from a magistrate to do so.
But Section 69 of the amended IT Act drops all references to public emergency or public safety, meaning that the government's powers have been vastly extended. The earlier IT Act of 2000 mentioned only decryption of messages; interception and monitoring were not mentioned at all.
Section 69 of the new IT Act enhances the scope from the 2000 version to include interception and monitoring. It also broadens the scope of surveillance to include the investigation of any offence, whether cognisable or not.
In view of the many incidents of tapping of the phones of politicians, the Supreme Court in the PUCL case laid out procedures and guidelines to protect citizens against the arbitrary exercise of power by the government.
But this judgement as well as the relevant sections of the Telegraph Act have become infructuous with the passage of the amended IT Act, since the latter has overriding effect.
And what of the safeguards in the act? Well, when the Government has not formulated any safeguards to Section 5 of the Telegraph Act since Independence, it is unrealistic to expect it to formulate any safeguards under Section 69 (2) of the amended IT Act - especially in view of the prevailing terrorism situation.
Until suitable safeguards are in place, Section 69 of the Information Technology (Amendment) Act of 2008 appears to be in violation of Article 21 of the Constitution - "no person shall be deprived of his life or personal liberty except according to procedure established by law."
It is unfortunate that a democratic and independent India has passed a law which is far more detrimental to personal liberty than the British Raj did.
This Act was bound to infringe on civil liberties like right to privacy or right to anonymous communication with legitimate purposes, because no safeguards had been put in place to prevent such abuse.
This/Our country (India) may please do some careful thinking about the right balance between national security and civil liberties. While we're concerned about national security, we don't want these interception mechanisms to become a handle for misuse.
There's to be a proper balance between contradictory subjects of interception and privacy. So safeguards are critical. There is no effective remedy or mechanism to appeal against unauthorised interception.
The government now has the sovereign and blanket power to intercept or peep into any electronic communication of even legitimate citizens. An independent authority may please be set up at the earliest to review complaints of unauthorised / illegal interceptions.
Therefore, the amendment of this Act at the earliest is the only solution to prevent its abuse/misuse.
Edited by tanveer.indian - 23 March 2009 at 10:52am