Chinks in the Armour

India joined a select group of 12 nations when the IT Act, 2000 was en acted.

The Act is a step forward in the right direction. Alok Mohan, IPS, Deputy

Inspector General of Police, Economic Offences at Corps of Detectives (CoD) says

that the first Cyber Police Station in Bangalore registered 45 complaints in the

ten months of its existence. 13 of them fall under IT Act 2000; 14 individuals

have been arrested and three cases are under trial.

As per Section 78 of the Act, a police officer, not below the rank of a

Deputy Superintendent of Police is to investigate. In ambiguous situations, the

DSP has to decide the section of the Act under which a cyber crime is

registered. There will be teething trouble–hopefully the errors will reduce

gradually. The hacker may be in one country, the Net server through whom the

offence is committed may be in another and the victim in a third place. The DSP

has to decide where the First Information Report is to be filed.

An e-mail printout cannot be produced as evidence in a Court of Law - unless

it is authenticated with a digital signature. The digital signature is dealt

with in Section 3 of the Act and needs to be certified by the appropriate

authority. At present, d.Sig is technology specific - using public and private

keys it shall be effected by the use of asymmetric crypto system and ‘hash’

function which envelop and transform the initial electronic record into another.

Unless authorised cyber-contracts - with d.Sig–become legal and reliable on

the Net, e-Commerce will not take off.

In cybercrime, the Network Service Provider (as per Section 79) needs to

prove that the crime was committed without the service provider’s knowledge

and that due precautions were undertaken to prevent it. So, the service provider

is the first to be booked. According to Section 79 (a) network service provider

means an intermediary!

The term domain name is not even defined in the Act. The rights of domain

name owners cannot be compensated and any infringement cannot be prosecuted -

unless debated under electronic record.

Filling up an e-mail box by repetitive program will cause ‘denial of access’

- explained by sub section (f) of Section 43. The offender, if convicted, may

end up by paying a compensation of Rs 10 mn, as prescribed. There is no

anti-spamming law in India, but the accused can be booked under Section 43!

A contract comes into legal existence only with an acknowledgement.

Acknowledgement, per se, means admit, own, recognise. It is ‘acknowledgement

of receipt’ in Section 12 of the Act, which strangely states that

acknowledgement can be ‘any communication’. One wishes that it is specified

as ‘electronic record acknowledgement’ to an electronic record that is

received. As per sub-section (3) of Section 46 an ‘adjudicating officer’

shall not be below the rank of a Director to the Government of India with ‘such’

experience in the field of I T as well as in the legal or judicial professions.

The needed experience is yet to be specified and prescribed. In what time period

‘such’ experience will be built up in anyone is a moot point. Further, the

yet-to-be-promulgated Electronic Gazette is defined and will have the same

status of an official Gazette as per the Act.

Cyber theft, cyber stalking, cyber harassment, cyber defamation are not

covered in the Act. Under Section 80 the DSP in-charge of Cyber P S may enter

any public place and search and arrest without warrant any person found therein

who is reasonably suspected or (of) having committed or of committing or of

being about to commit any offence under this Act. Public place includes any

public conveyance. On second thoughts, an Indian-Netizen may feel that POTA is

better.

BY Sqn Ldr B G Prakash



The author is based in Bangalore