Dear Sh Raju & group Linux-Delhi group members,
Sub : Suggestions to the proposed amendments in the
Information Technology Act, 2000
===================================================
Regarding the proposed amendments, I would like to
draw the attentions of the members of the group and
would like to apraise you of the suggestions/ analysis
of the proposed amendments, that to my mind are
necessary for a brain storming sessions for all of us.
Since the matter relates to all of us.
Thanks & Regards
Kamal Dave
Advocate
=====================================================
From: kamal dave <[EMAIL PROTECTED]>
To: [EMAIL PROTECTED]
CC: [EMAIL PROTECTED], kam <[EMAIL PROTECTED]>
Subject: Suggestions to the Proposed amendments in the Information
Technology act, 2000
Date: Thu, 15 Sep 2005 04:59:15 -0700 (PDT)
To,
Respect Sh Dayanidhi Maran,
Hon'ble Min for IT & Telecommunication
Suggestions for the proposed Amendments
to the Information Technology Act, 2005
=======================================
Dear Sir,
Reference is made to the proposed amendments to the
information technology Act, 2000.
To beginwith, I hereby give my brief introduction.
I am a practicing advocate, enrolled with Supreme
Court Bar, New Delhi.
I have studied the subject Electronic Commerce as I
recently completed my Post Graduation in EDI/EC and
during the said course carried out a project/ research
on two topics viz two Project/ Research works/ case
studies i.e. case study on the electronic commerce and
electronic governance and its effects on new economic
world order vis-à-vis corporate world in Indian
context and case study to understand probable effects
of cyber terrorism on new economic world order
vis-à-vis corporate world in Indian context titled :
Project I :"e-COMMERCE, e-GOVERNANCE, INTERNET -
ADMINISTRATIVE & LEGAL FRAMEWORK/ INFRASTRUCTURE FOR
EDI/E-COMMERCE AND CYBER TRADING" & Project II :
"CYBER TERRORISM - A POTENTIAL THREAT".
Thus I have fairly good knowledge about the subjects &
topics since my study included an exhaustive analysis
of the Act & Technology.
I have gone through the proposed amendments in the
Information Technology Act, 2000.
I here with submit suggestion to some of the prominent
amendments to the said Act for your perusal.
Thanking You
Kamal Dave
Advocate
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Proposed Amendments to the Information Technology Act
============================================
The government of India has proposed many amendments by the Information
Technology (Amendment) Act, 2005. The government of India, owing to the
recent spurt of cyber crimes & exposures, has proposed amendments to the
Information Technology Act 2000. Amongst the proposed amendments, major are
:
1. Provision for technology neutral authentication mechanism : The amendment
Act provides for Electronic Signature (however it includes digital
signature) instead of Digital Signature as a move towards for providing
technology neutral authentication mechanism for authentication of electronic
records.
2. Generalising/ Broadening the definition of Cyber offences to include more
computer related offences viz. Cyber Crimes : Provision for including
cyber crimes under the head computer related offences with penal punishment
instead of hacking of the computer by broadening the definition of cyber
crimes.
3. Reduced Punishment : Reduction of punishment for Cyber offences viz.
punishment for computer related offences to imprisonment for one year or two
years respectively and for publishing the pornography/ obscene matter on the
electronic media to three years. Specific enhanced punishment for child
pornography.
4. Provision for compounding of offences : Provision for compounding of
offences even for matters pending prosecution/ adjudication before the
court.
5. Exclusion of liability : Specific provision explicitly reducing the
liability for offence committed by the intermediaries.
6. Introduced provision for punishment for Invading Privacy : Punishment for
offence of unauthorizedly recording pictures/ photographs of persons thereby
invading their privacy.
7. Provision for a authority/ body of expert of examiner of Electronic
Evidence : Provision for a authority/ body of examiner of Electronic
Evidence.
8. Reducing the burden on CCA : Reducing the burden on CCA (Controller of
Certifying Authorities) by excluding it from being a repository for Digital
Signatures issued by the CAs (Certifying Authorities).
Analysis of the proposed amendments : The analysis to amendments as
proposed by the Act are as follows :
Analysis of Amendment 1 : Provision for technology neutral authentication
mechanism :
The step to have a technology neutral mechanism as valid electronic
signatures is a welcome step. However, the step is wanting in practical
perspective as the Amendment Act itself mentions that the technology is yet
to be developed and that rules can not be formed in absence of fully
developed technology. Furthermore the technology is required to meet three
primary/ elementary criteria/ condition viz. firstly, the technology should
be able to detect any alteration in the electronic document; secondly the
electronic documents should have provision for distinct & unalterable date &
time stamp on them; And thirdly it should be able to provide for signature
& counter signatures (without limitations of levels) and entire contents
should be capable of being distinctly identified and separately
authenticated and counter authenticated with specific electronic signatures
of individual & authorities.
Amendment 2 : Generalising/ Broadening the definition of Cyber offences to
include more computer related offences viz. Cyber Crimes
The broadening of definition of the Computer related offence attempts to
define the situations and circumstances that makes the act an offence.
However, an attempt is made by the amendment to include any act out that may
fall in the category of offence. However, the two terms viz. "Fraudulently"
& "Dishonestly" tend have subjective interpretations.
The main fallback of the proposed amendment is the generic definition of the
act forming offence leads to discretionary/ skewed interpretation due to
absence of specific definition/ terminology to the offence leading thereby
the to chances of biased decisions. This may lead to complete disruption in
delivering impartial justice and putting off the lid from the discretionary
powers to authorities giving rise to multiple interpretation of the proposed
provision and variation in decision could be attributed to probability or
discretion. The matter sub-judice i.e. the act should withstand the
scrutiny of law, but with such provision, the veracity of decision gets
shaked.
Furthermore the amendment has twin effect, firstly adjudication gets
adversely impacted due to the inclusion of two subjective clauses, which
tends to have discretionary interpretation to the matters sub-judice;
secondly, in cases where the act is not done "Fraudulently" & "Dishonestly",
however causes substantial loss remain unpunished and offenders remain
undeterred. This will lead to adventurism and increase in cyber crimes and
would tend to lower the confidence on the entire process of electronic
commerce and electronic governance and the government/ corporate houses/
individual would suffer due to the voyeurism of the youthful offenders.
The lowering of the punishment for the offence, reduces the fear of law
thereby creating a perception of non-existence of effective law and order
machinery in the state leads to increase in offences & contravention of law.
This overall effect of it would be chaos/ jeopardy in the state
administration & collapse of system.
Amendment 3 : Reduced Punishment
The reduction of punishment is a regressive step. By this proposed
amendment, the offences gets loose string of being categorized into bailable
category meaning thereby accused/ offender on his/ her arrest, as a matter
of right, can claim to be released on bail despite having committed offence
grave enough to jeopardize/ collapse the system itself. With
disproportional punishment, i.e. lower punishment the deterrence of law &
administration reduces. The law would loose its due respect and result in
increase in crimes, leading to diminution of faith & confidence in
administration of justice. Thus with reduction of punishment for the offence
will encourage offenders to commit cyber crimes more freely. Thus to
control these offences appropriate check & balance and controls on
electronic transactions is necessary.
Amendment 4 : Provision for compounding of offences
The introduction for a clause for compounding of offences is a regressive
act. The amendment makes the provision allowing/ enabling the authorities
to compound the offences and it even allows the authorities to compound the
offences pending trial before the court. This may send wrong signals that
any such illegal act/ offence/ contravention can be done away with by paying
a paltry sum and it will further lead to diminution of faith & confidence in
law and collapse of system of administration of justice and lead to chaos in
the society.
Amendment 5 : Exclusion of liability
The proposed amendment to exclude the liability of Intermediary in fact
exists in the existing act also but the amended provision, explicit
provision to exclude the liability of intermediary, however, it is with two
riders i.e. preconditions viz. "conspiracy" or "abetment" in commission of
offence. However the amendments, imposes no direction/ condition on
authorities concerned to take necessary preventive/ remedial steps to avoid
any such disorderly situation. It also does not impose any liabilities on
authorities to have recourse to remedial measure to prevent any such
illegal/ prohibitive action or its recurrence in any such circumstances.
Amendment 6 : Punishment for Invading Privacy
The proposed amendment is a welcome step as right to have privacy &
confidentiality gets protected. The amendment, however, is difficult to be
implemented in case the offender remains elusive due to the technology
itself.
Amendment 7 : Provision for a authority/ body of expert of examiner of
Electronic Evidence
The proposed amendment for establishing a separate authority a creation of
separate body of Expert for examining Electronic Evidence is like creating
another authority parallel to the Centre for Forensic Science Laboratory
(CFSL). The composition and place of offices too are not mentioned.
Further the amendment makes no option for parties in dispute or any
interested person to approach the authority for redressal of their private
grievance and the fee thereof need also to be decided keeping into mind the
liability of it on the end user.
Amendment 8 : Reducing the burden on CCA
The proposed amendment of reducing the liability of CCA by discharging it
from maintaining the database of private keys of the certificate holder
(Digital Signature Certificate), inline with practice in other countries,
will although reduce the burden on CCA. However, this will, in case of any
question arising out of authenticity/ veracity of electronic transaction
based on the digital signature would not be able to withstand test legal
scrutiny and would tend to become a matter of discretion and likelihood of
unfair play.
Conclusion :
These proposed amendments although are patchwork sort of amendments and are
outcome of recent cases of cyber crimes cases exposed by the media and not a
result of serious analysis of all the problems. These are piece meal
arrangements to the problems. The proposed amendments should incorporate
not only specific act or omission forming offences but also include
provision relating to cyber terrorism in the present act to prevent
commission of any cyber crime including heinous cyber crime i.e. cyber
terrorism.
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