Scrap the draconian amendments to the controversial IT (Amendment) Act, 2008

THE INFORMATION TECHNOLOGY(AMENDMENT) BILL, 2006 Bill No. 96 of 2006 (Last petition update: Thu, Mar 26, 2009 @ 09:15 hrs
India: Section 69 of the Information Technology (Amendment) Act 2008 Violates The Constitution of India
Parliament approves cyber crime Bill The Hindu
Email users beware, Big Brother is watching-India-The Times of India 
New law will let govt snoop on your PC - Economic Times - Dec 25, 2008
EDITORIAL COMMENT | Licence To Snoop Times of India Dec 28, 2008 
Accidental porn surfing can get you five years jail Herald Publications, 28 Dec 2008
technology - Bill gives Centre right to spy on e-mail
India's Information Technology (Amendment) Bill Passed By Lok...
Big Brother (Government of India or GOI) could really be watching.

Messages can be intercepted to investigate any offence
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".

Introduced after the terrorist attacks in Mumbai, the government sees this legislation as instrumental in fighting terrorism. This Bill is a hurried reaction to 26/11 (Mumbai Carnage).

Monitoring of all online activity
Since the terrorists have used the ease and relative anonymity of the Internet to plan and execute attacks, the government's decided to monitor all online activity.

The government's move to bring in new provisions to tackle cyber terrorism comes after repeated instances of terrorists using the web to propagate mayhem and claim responsibility after every act.

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.

Censorship
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.

Ambiguous and vague provisions are open to misuse
Several ambiguous provisions like those prescribing punishment for the transmission of any sexually explicit material electronically, quite separate from the measure dealing with child pornography, are too vague and open to misuse.

Punishment for accidentally browsing pornography
The Bill was passed by Parliament without debate with as many as 45 amendments in the original Act treats both purveyors of pornography and recipients on equal footing.

Browsing or downloading pornography 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.

Liable to misuse
Lack of independent oversight makes these powers liable to misuse. Perhaps the most alarming aspect of the Bill is that it fails to put in place a safeguard mechanism that can prevent the state from misusing this Act.

Because the bill states that safeguards would be stipulated at a later date, it would clamp down on civil liberties right away. The Bill only says that safeguards will be stipulated at a later date, which is clearly insufficient.

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 any Indian 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 pornographic 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.

Safeguards against misuse of this kind of electronic surveillance?
The Bill does not detail them but leaves them to be formulated later as it says the procedures and safeguards "shall be such as may be prescribed."

Same kind of uncertainty has been kept in the provision that empowers monitoring of the Internet traffic for cyber security.

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 contaminant has been defined any set of computer instructions that are designed to modify, destroy, record, transmit data or programme residing within a computer, computer system or computer network or usurps the normal operation of the computer, computer system or network and as such includes Trojans and viruses that are lurking in a menacingly increasing number.

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.

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The Intelligence Bureau (IB) has prepared a list of new keywords w.e.f. December 2001 that are being used to intercept mails emanating from IP addresses in India.

This move came after investigations had revealed that Mohammad alias 'Burger,' who led the Parliament attack, was in constant touch with his counterparts in Pakistan as well as within India through email.

A laptop was recovered from the terrorists as well, the contents of which are/were under investigation.

The IB earlier reported that terrorists connected to the Lashkar-E-Taiba or Lashkar-E-Toiba or LeT and the Jaish-E-Mohammed or JeM are tech-savvy.

Till now, the IB had concentrated more on email IDs with reference to obvious giveaways such as Kashmir, Lashkar, Pakistan, Musharraf etc. for example, an email id such as lashkar@hotmail.com should be under the surveillance of the IB.

The IB has now gone further and prepared a new list of keywords used in the copy of mails that will be intercepted.

The system works like this: a software filters mails that repeatedly use the words that the IB has shortlisted.

The more obvious keywords would include Jaish, Kashmir, Lashkar, Jihad/Jehad, J&K. Others are attack, kill, rocket. Mails with repeated reference to Arab names will also be under surveillance.

Emails that carry names of Indian political leaders will also be under surveillance. However, the software can't decipher code words since they can be common words.

Interestingly, the CIA is using the same software with a good success rate. Mails that have several references to the keywords that have been identified are being monitored.

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Sections that are most likely to be misused have been reproduced below:

(Substitution of new sections for sections 66 and 67)
For sections 66 and 67 of the principal Act, the following sections shall be
substituted, namely:-

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

Explanation.-For the purposes of this section,-
(a) the word -dishonestly- shall have the meaning assigned to it in section 24 of the Indian Penal Code;
(b) the word -fraudulently- shall have the meaning assigned to it in section 25 of the Indian Penal Code.

(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.

(Substitution of new section for section 69-Power to issue directions for interception or monitoring or decryption of any information through any computer resource.)
For section 69 of the principal Act, the following section shall be substituted, namely:-

"69. (1) Where the Central Government is satisfied that it is necessary or expedient so to do in the interest of the sovereignty or integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above or for investigation of any offence, it may subject to the provisions of sub-section (2), for reasons to be recorded in writing, by order, direct any agency of the Government to intercept or monitor or decrypt or cause to be intercepted or monitored or decrypted any information transmitted through any computer resource.

(2) The Central Government shall prescribe safeguards subject to which such interception or monitoring or decryption may be made or done, as the case may be.

(3) The subscriber or intermediary or any person incharge of the computer resource shall, when called upon by any agency which has been directed under subsection (1), extend all facilities and technical assistance to-
(a) provide access to the computer resource containing such information;
(b) intercept or monitor or decrypt the information;
(c) provide information contained in computer resource.

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

(Insertion of new section 84C-Punishment for attempt to commit offences)
84C. Whoever attempts to commit an offence punishable by this Act or causes such an offence to be committed, and in such an attempt does any act towards the commission of the offence, shall, where no express provision is made for the punishment of such attempt, be punished with imprisonment of any description provided for the offence, for a term which may extend to one-half of the longest term of imprisonment provided for that offence, or with such fine as is provided for the offence, or with both.
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India: Section 69 of the Information Technology (Amendment) Act 2008 Violates The Constitution of India Feb 06, 2009

http://www.sacw.net/article606.html

http://www.indianexpress.com/news/yes-snoopings-allowed/419978/

Some recent commentary on the amendments to the Information Technology Act has claimed that the amendments are little different from powers already with the state in the Indian Telegraph Act of 1885, and thus civil-liberties concerns are mistaken. This is not correct.

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.

Until the passage of the amended IT Act, phone tapping was governed by Clause 5(2) of the Indian Telegraph Act of 1885, which said that "On the occurrence of any public emergency, or in the interest of the public safety, the Government may, if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order".

Other sections of the act mention that the government should formulate "precautions to be taken for preventing the improper interception or disclosure of messages".

Many calls have been made, both inside and outside Parliament, to formulate rules to govern the operation of Clause 5(2).

But ever since 1885, no government has formulated any such precautions, since all governments have wanted to retain the right to spy on their opponents unfettered.

A writ petition was filed in the Supreme Court in 1991 by the People's Union for Civil Liberties, challenging the constitutional validity of Clause 5(2). The petition argued that it infringed the constitutional right to freedom of speech and expression and to life and personal liberty.

In December 1996, the Supreme Court delivered its judgment: it pointed out that "unless a public emergency has occurred or the interest of public safety demands, the authorities have no jurisdiction to exercise the powers" given them under 5(2).

They went on to define them thus: a public emergency was the "prevailing of a sudden condition or state of affairs affecting the people at large calling for immediate action", and public safety "means the state or condition of freedom from danger or risk for the people at large".

Without those two, however "necessary or expedient", it could not 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 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.

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This petition's been addressed to:
The Hon'ble Supreme Court of India, President, Prime Minister (PM), Ministry of Information Technology (MIT), Ministry of Home Affairs (MHA) & Ministry of Law.