Monday, February 28, 2011

Pranab Mukherjee Allotted Rs.55, 469 Crore To Home Ministry

Union Finance Minister Pranab Mukherjee presented the Union Budget for the Financial Year 2011-12 in Parliament on Monday. He also sanctioned around Rs 55,469 crore to the Central Home Ministry for security and law enforcement purposes.

He also proposed Rs.384 crore for the Crime and Criminal Tracking Network System (CCTNS) project and Rs.909.92 crore for the Intelligence Bureau. The National Investigation Agency (NIA) has been allotted Rs.55.68 crore for its functioning.

Finance Minister also proposed to earmark Rs.125 crore for Immigration, Visa and Foreigners Registration and Tracking (IVFRT). This project intends to develop a secure and integrated service delivery framework that facilitates legitimate travellers without compromising on national security.

Similarly, a sum of Rs.39.75 crore has been sanctioned for the National Intelligence Grid (Natgrid). Natgrid is a project that would provide real time information sharing among various intelligence agencies.

Home Minister P. Chidambaram was happy and contended with the budget allocation to his Ministry. He analysed the budget as a whole as a “balance one”. According to Chidambaram, Finance Minister has focused on high growth through investment augmentation and by providing for larger financial resources to education, health and security.

Now the financial resources are at place and Home Ministry is required to implement its ambitious projects one by one and in a timely manner. The only factor that Chidambaram must keep in mind is that “constitutional issues” are resolved in an appropriate and timely manner.

Projects like Natgrid, CCTNS, National Counter Terrorism Centre (NCTC), Central Monitoring System (CMS), etc must be implemented in a constitutionally sound manner.

Indian Government in general and Home Ministry in particular must maintain a delicate and constitutional balance between National Security and Constitutional Rights. Giving priority of one over other would be counter productive and would be against National Interest.

I hope the year 2011 would be a good year for National Security of India and Chidambaram would successfully implement various National Security Projects of India.

E-Courts Infrastructure Of India Needs Rejuvenation

Union Finance Minister Pranab Mukherjee presented the Union Budget for the Financial Year 2011-12 in Parliament on Monday. He also sanctioned around Rs 1000 Crore to judiciary for establishment of e-courts.

This is welcome step as Indian judiciary, especially subordinate judiciary, is suffering severely from lack of physical infrastructure in general and e-courts infrastructure in particular. The judicial e-infrastructure of India needs urgent reforms and overhaul.

Establishment of e-courts in India was originally conceived in 2003. However, we do not have a single e-court in India till the month of February 2011. Of course, some productive and effective computerisation initiatives have been undertaken by Indian judiciary. However, these initiatives are far from satisfactory and definitely not enough for the successful establishment of e-courts all over India.

Now the judiciary has enough financial resources, so there would be no money crunch as well. But would India get its first e-court in the year 2011? This is a big question that cannot be answered easily.

If we keep in mind the past performance and the year 2003 as the beginning, this seems to be a too ambitious claim. This is so for at least two reasons.

Firstly, we do have a legal enablement of ICT systems in India. Till a legal framework conducive for techno legal development of Indian judiciary is not established, legal and judicial systems of India have little incentives to adopt technology.

Secondly, the techno legal expertise needed for the sufficient completion of e-courts project of India is missing. India has a single techno legal e-courts research, training and consultancy centre that is managed by Perry4Law Techno Legal Base (PTLB).

India needs more such techno legal e-courts centers so that e-court project of India may be successful. Till now the e-court centre of PTLB is not extending its expertise to the e-courts project of India. This may be one of the reasons why establishment of e-courts in India failed to materialise.

Law Minister Veerappa Moily must urgently take some effective steps so that there is a good team of techno legal experts who can successfully implement the e-court project. The present institutional framework adopted by the Supreme Court of India lacks this expertise and the e-courts committee must actively seek services of techno legal experts in general and institutions like PTLB in particular.

Sunday, February 27, 2011

National Counter Terrorism Centre (NCTC) Of India

Intelligence agencies of India such as Research and Analysis Wing (RAW), Aviation Research Centre (ARC), Intelligence Bureau (IB), National Technical Research Organisation (NTRO) and Defence Intelligence Agency (DIA), etc are working separately and independently in India.

There is no coordination and collaboration between these agencies and at times of crisis this becomes fatal as well. There is no centralised mechanism that can govern and assist in effective and instant collaboration and coordination between these agencies.

In this background, establishment of the National Counter Terrorism Centre (NCTC) was proposed by the Home Minister P. Chidambaram. According to the proposal, the NCTC would function as an umbrella outfit under the Home Ministry with representation from all security and intelligence agencies, including those working directly under the Prime Minister's Office (PMO), the Defence Ministry and the Finance Ministry.

Projects like national intelligence grid (Natgrid), crime and criminal tracking and systems (CCTNS), central monitoring system (CMS), Aadhar project/UID project, etc were also launched to strengthen NCTC. The purpose was to have real time intelligence information sharing among law enforcement and various security agencies.

Neither NCTC nor projects like Natgrid, CCTNS, CMS and Aadhar would be successful if the various intelligence agencies keep on guarding their own turf. The whole purpose of “collective intelligence” would fail if these agencies keep on operating independently.

Further, there is an urgent need to bring these intelligence agencies under Parliament scrutiny and accountability. Presently there is no Parliamentary oversight of these intelligence agencies.

Saturday, February 26, 2011

Open Letter To Government On National Security Projects In India

In this “Open Letter”, Praveen Dalal, Managing Partner of Perry4Law and leading techno legal expert of India, has discussed the importance of maintaining a balance between national security and civil liberties in India. He has also offered his techno legal expertise and a copy of his latest book on cyber forensics to government of India.

National Security, Civil Liberties and Constitutional Aspirations are on “Cross Roads” these days. Projects like Aadhar/UID, National Intelligence Grid (NATGRID), Crime and Criminal Tracking and Systems (CCTNS), Central Monitoring System (CMS), etc are required for National Security but Civil Liberties and Fundamental Rights are also of Prime Importance.

Enacting suitable Techno Legal Laws and Regulations in fields like Cyber Law, Cyber Security, Cyber Forensics, etc is of Paramount Importance. However, these fields are emerging World over and India need to streamline its Techno Legal Jurisprudence.

We have been in the process of “Compiling” and “Formulating” a Techno Legal Framework for India. To start with, we have already written on the topic of Cyber Forensics and Compiled it in the form of a Book.

The First Edition of the Book has been written in September 2010 and we are working towards not only “Improving and Upgrading” the same but also coming up with the Second Edition of the same very soon. The Book carries possible useful information in the field of Cyber Forensics in India and includes International Best Practices in this field.

We are also working in the direction of Compiling Techno Legal Literature in the Fields like Cyber Law, Cyber Security, Cyber Terrorism, Cyber Espionage, Cyber Warfare, etc. We have been trying to “Reconcile” National Security with Fundamental Rights of Indian so that Projects like Aadhar/UID, NATGRID, CCTNS, CMS, can be effectively and “Constitutionally” launched in India.

We look forward for your Active and Constructive Cooperation and Support in this regard. We would be glad to provide you with a “Copy” of our Book on Cyber Forensics somewhere in the month of June/July 2011.

If interested, kindly send us a request in this regard on the official Letterhead of your concerned Ministry/Department.

We look forward for a Cooperative and Collaborative Alliance and Public Private Partnership (PPP) in this regard.

Wednesday, February 23, 2011

Digital Preservation In India Is Needed

Digital preservation is an important issue when it comes to preserving national heritage and other historic and current documents, manuscripts, heritage, etc. This is the reason why developed countries have a well established framework for digital preservation.

Digital preservation in India has yet to take a start. Although some discussions in this regard have been undertaken by some department of India government yet they are far from satisfactory.

Even a national digital preservation programme (NDPP) of India has been launched but it has been lying dormant for many years. Presently, India has no well defined legal framework for digital preservation in India. Neither the technical nor the legal issues have been resolved by India in this regard so far.

According to Praveen Dalal, a Supreme Court lawyer and leading techno legal expert of India, Digital Preservation Framework in India is missing as we do not have a “dedicated” techno legal Digital Preservation Law in India.

Further, laws like Public Records Act, 1993, Right to Information Act, 2005, proposed Electronic Delivery of Services Bill 2011 (Bill), etc also mandates Digital Preservation and Digitilisation of records in “Electronic Form”, informs Praveen Dalal.

Digital preservation issues in India are going to be more complicated with the enactment of laws like digital millennium copyright act (DMCA). Efforts are in the pipeline for adoption of an efficient digital rights management (DRM) system in India.

It would be a better strategy if the Indian government starts working in the direction of enacting a suitable techno legal framework for digital preservation in Indian as soon as possible.

Tuesday, February 22, 2011

Internet Banking Laws In India

Internet banking is increasingly becoming popular in India. However, Internet banking is a risky venture and India must be prepared to deal with the risks associated with it. The increasing cases of ATM frauds, online banking frauds, credit cards frauds, etc have shaken the confidence of Indian consumers in Internet banking in India.

Similarly, mobile banking in India is also being explored. Some segments have suggested active use of mobile banking in India. While the idea is great yet India is still not ready for mobile banking. In fact, mobile banking in India is a risky business.

The problem of Internet banking frauds has become even more sever due to absence of legal framework in this regard. However, the Reserve Bank of India (RBI) has recently recommended use of “cyber due diligence” for banks in India. With the present guidelines, banks can no more ignore due diligence requirements that they have been ignoring for long.

Although the requirements of due diligence may arise out of many laws, but cyber due diligence is the most required one. Realising the seriousness of the situation, RBI has recently released a report of its working group on information security, electronic banking, technology risk management, and cyber frauds.

Previously, banks were required to manage due diligence arising out of laws alone but now the responsibility of banks have become very wide. The banks must now manage due diligence requirements of both technical and legal nature. In other words, the due diligence requirements of banks have now become techno legal in nature.

However, Internet banking in India cannot succeed till a strong legal framework in this is enacted. According to Praveen Dalal, leading techno legal expert of India and a Supreme Court lawyer, we have no dedicated Internet Banking Law in India. Although, RBI has issued many guidelines in this regard and even our Information Technology Act, 2000 contains some indirect and implied provisions for Internet Banking yet we need a separate and dedicated law in this regard, opines Praveen Dalal.

It would be a good idea if RBI starts working in the direction of enacting a suitable Internet banking law of India. The same may also incorporate cyber due diligence requirements and punishments for cyber crimes against banking institutions. The call is for the RBI to take and it would definitely take it.

E-Courts In India Still A Dream

Indian courts are suffering from many drawbacks. These include lack of infrastructure, inadequate strength of judges to handle growing cases, increasing backlog of cases, inadequate use of information and communication technology (ICT) for judicial purposes in India, etc.

Some very good computerisation initiatives were undertaken by Indian government and Supreme Court of India in the past. However, none of them are even closer to the establishment of e-courts in India. Naturally, we are still waiting for the establishment of first e-court of India.

On the other hand, it is clear that will of selective few individuals can also bring much needed legal and judicial reforms in India. For instance, a division bench of Chief Justice Dipak Misra and Justice Sanjiv Khanna has ensured early release of undertrials and accused who are granted bail by directing all Delhi courts as well as its own officials to e-mail a copy of bail orders to Tihar jail authorities within 24 hours of being pronounced. This is how legal and judicial reforms are undertaken.

The major obstacle before the successful completion of e-courts project of India is that the project is just an “institutional effort” on behalf of Supreme Court of India. For some strange reasons expertise of techno legal institutions and experts has still not been requested by the e-court project of India.

At the institutional level, e-court project is bound to fails as there is no techno legal expertise present there. This is the reason why despite the national e-governance plan (NEGP) of India being launched, it has largely remained a failure to bring legal enablement of ICT systems in India.

India has a single techno legal e-courts research, training and consultancy centre that is managed by exclusive techno legal firm of India Perry4Law. The e-court centre is managed by the premier techno legal segment of Perry4Law known as Perry4Law Techno Legal Base (PTLB).

India needs more such techno legal e-courts centers so that e-court project of India may be successful. Till now the e-court centre of PTLB is not extending its expertise to the e-courts project of India.

Hopefully, Ministry of Law and Justice would consider taking techno legal services of PTLB and similar institutions so that e-courts may see the light of the day.

Monday, February 21, 2011

Exclusive Cyber Forensics Book For Government Departments Of India

Cyber forensics is receiving attention of Indian government these days. Whether it is Ministry of Home Affairs, Income Tax Department of India, Ministry of Communication and Information Technology (MCIT), etc, all of them are dealing with cyber forensics in one form or other.

However, of all Ministries/Departments, Ministry of Home Affairs is most interested in developing cyber forensics capabilities. This is so because the central Home Ministry is managing not only law enforcement issues but also issues pertaining to national security.

Further, very soon we may see a National Security Policy of India as well. Whenever such a Policy would be drafted, cyber security and cyber forensics would be essential part of the same.

Even cyber forensics has become very important for Indian legal and judicial system as well because cyber crimes and white color crimes convictions require effective use of cyber forensics to prove the guilt of the accused.

However, cyber forensics is a new field for India and there are very few research works in this regard. Even the Parliament of India has no ready made research material on the basis of which suitable cyber forensics and cyber security laws can be enacted in India.

Praveen Dalal, managing partner of Perry4Law and Supreme Court lawyer, believes that Cyber Forensics is a field that requires greater attention and support from Executive, Judiciary and Parliament of India. He maintains that there is an urgent need to “Sensitise” the three Constitutional Pillars of Indian Constitution and these Pillars must pay more attention to issues like Cyber Law, Cyber Security, Cyber Forensics, Cyber Warfare, Cyber Espionage, etc.

In this background, Praveen Dalal has taken a pro active step. He has released the first edition (September 2010) of his book on cyber forensics in India. He informs that presently, the Book is available under “Limited Circulation Only” and that also after receiving a “Written Request” in this regard from the Head of the Department (HOD) of the “Selective” Governmental Department alone.

Presently, the book is available for executive, legislature and judiciary of India alone. However, do not loose heart as very soon the “public version” of the same would be released after June 2011.

Hopefully, this book would provide meaningful insights of the field of cyber forensics to Indian government. It may also be helpful while drafting future technology related laws, especially techno legal laws, as it is providing many world class and international level “best practices” in the field of cyber forensics.

I am waiting for the “public version” of the same so that I can have one.

Cloud Computing in India Is Risky

The moment we heard about cloud computing, a question comes to our mind. The question is whether cloud computing in India is safe and secure? In other words, is India ready for cloud computing and should India use cloud computing?

India has no legal framework that can help in the safe, secure and successful use of cloud computing. For instance, India does not have data security and cyber security laws. This means crucial and sensitive data is not safe in India. Even the cyber law of India is a weak and ineffective law to deal with data breaches and cyber security breaches.

Similarly, there are no cloud computing regulations in India. With an ever increasing hunger for e-surveillance in India by Indian government and its agencies, cloud computing is a sure method of unlawful and illegal e-surveillance and interceptions. Even research in motion (RIM) has arranged for an architecture that allows Indian intelligence agencies to snoop upon blackberry messenger services at will and in real time.

Cloud computing in India also cannot be successful because of absence of privacy laws in India. In fact, cloud computing is a landmine for privacy rights in India. There is no reason whatsoever that cloud computing would not violate privacy rights, data protection principles and data security practices in India.

The truth is that India is still not ready for concepts like m-commerce and cloud computing. Cloud computing is a risky business from all counts.

Before cloud computing is imposed upon Indian citizens, Indian government must ensure a constitutionally sound privacy law for India. Absence of privacy laws in India has already made projects like Aadhar, Natgrid, CCTNS, central monitoring system, etc unconstitutional.

In the absence of legal framework for cloud computing in India and privacy laws in India, cloud computing is risky and must be avoided by private and government players.

Sunday, February 20, 2011

Telemarketing Policy Of India Is Anti Consumers

Ministry of communication and information technology (MCIT) and telecom regulatory authority of India (TRAI) have not been taking privacy rights of consumers seriously at all. In fact, telecom policy of India is anti consumer in nature.

Both MCIT/TRAI need to make the telecom policy of India more pro active and telecom users’ friendly. However, till now this seems to be just a dream incapable of being fulfilled. Except, mobile number portability (MNP), there is no second policy decision that is user friendly and respects telecom consumer’s rights in India.

However, of all the bad policy decisions of MCIT/TRAI the worst one pertains to telemarketing. Firstly, MCIT/TRAI forced the do not call registry upon Indian telecom consumers. The proper course should have been a default do call registry.

Then MCIT/TRAI did not bother to introduce any deterrent to block telemarketing calls in India. The procedure has been deliberately made too complicated and unproductive that it does not benefit telecom consumers at all.

Further, even if a fine has been imposed, the troubled consumer would not get the same. Where is the incentive to take all the pain to get the guilty telemarketer held responsible? The telemarketing guidelines are inherently and apparently faulty and are violating privacy rights of Indians without any fear or deterrent.

Now the latest to add to this list is the proposal that telemarketers would get new landline number series. This would help customers recognise unsolicited calls, in line with the separate series for mobile telemarketers. MCIT has already issued a number series starting from '140' for calls and SMSes made from mobile services of registered telemarketers.

However, how this exercise would help in preventing violation of privacy rights of telecom consumers in India is still not clear. If a consumer is taking rest or is busy in a meeting or is of bad health, the mere fact of receiving a call from telemarketing companies is a big nuisance.

Strangely enough, neither MCIT nor TRAI have common sense of blocking all telemarketing calls and communications altogether and allow the same only in cases where the consumers have expressly asked to do so in their selective cases only.

However, MCIT and TRAI would never do to as the telemarketing lobby is strong enough to get a decision in their favour. And all other measures are just eyewash to show that MCIT and TRAI care for telecom consumers in India. The truth is that neither MCIT nor TRAI are in favour of protecting consumer rights and privacy rights in India. May be the Supreme Court of India would do something in this regard.

Saturday, February 19, 2011

Internet Censorship In India Has Increased

Internet has been under constant and furious attacks all over the world. The fact is that Internet is under potential threat these days. The threat is not only from malicious users, rouge nations and automated viruses and worms but also from our own governments.

Take the example of Internet kill switch (IKS) that has been increasingly seen as a solution to cyber threats. But IKS is no solution to cyber security threats. Rather it is a remedy worst than the malady and would prove dangerous in the long term.

The only purpose of IKS is to strengthen the e-surveillance powers of governments and its agencies. This is the reason why we must have anti Internet kill switch measures at hand.

Internet censorship is a result of this desire to control the Internet and online activities of netizens. Internet censorship has drastically increased in India in recent times. With adoption of projects like central monitoring system (CMS) by Indian government, this is quiet clear. Like other projects, CMS also is not under parliamentary scrutiny and this raises serious civil liberties violations issues in India.

Recently Blogspot was blocked in India once again under an “experimental blocking” exercise. It is believed that the same has been done using the CMS of India. This exercise was undertaken to analyse the websites blocking capabilities of Indian government and its agencies.

India has a draconian but cyber criminals’ friendly cyber law in the form of information technology act, 2000 (IT Act 2000). It was amended in 2008 to confer unregulated e-surveillance, Internet censorship and website blocking powers to Indian government and its agencies. The present cyber law of India is an unconstitutional one in the absence of procedural safeguards that can prevent these abusive draconian powers under the IT Act 2000. It requires an urgent repeal.

If at all India is serious about national security and cyber security, it must formulate a national security policy of India. This policy must cover issues like national security, cyber security, internal security, external security, etc. It must also provide constitutionally sound guidelines regarding cyber security and national security.

Presently, e-surveillance, phone tapping, interceptions, etc are not done under a constitutionally sound law. In fact, India has no constitutionally valid phone tapping and lawful interception law so far.

If India wishes to safeguard its cyberspace, Internet censorship is no solution. Rather, Internet censorship does not give positive results and always gives a bad taste afterwards. India must seriously consider this aspect and come up with effective laws and policies regarding lawful and constitutional regulation of Internet in India.

PMO Is Supporting Unconstitutional Aadhar Project And UIDAI

Unique identification project of India (UID project) or Aadhar project of India is one of the most offensive and undesirable project of India. It is not supported by any legal framework and is outside Parliamentary scrutiny. This makes it illegal and unconstitutional.

Despite these serious shortcomings and unconstitutional nature, both Aadhar project and unique identification authority of India (UIDAI) managed to survive so long due to the simple reason that our Prime Minister’s Office (PMO) and Planning Commission have extended their “blind and unthoughtful support” to Aadhar project and UIDAI.

The truth is that Indian government and UIDAI are fooling Indian citizens regarding the nature and purpose of Aadhar project. The real purpose of Aadhar project is to make it the most offensive and unaccountable tool of e-surveillance.

Presently, there is No Parliamentary Oversight of projects like Aadhar/UID, national intelligence grid (Natgrid), criminal tracking network and systems (CCTNS), central monitoring system (CMS), etc. If we add biometric data with other data gather by National Census and National Population Register of India and supplement it with projects like Natgrid, CCTNS, CMS, etc, an endemic e-surveillance model is apparent.

This is the reason why Indian government has deliberately failed to enact suitable procedural, constitutional and civil liberty safeguards to prevent abuses by these projects. Even the basic level privacy law in India is missing.

Unfortunately, the Cabinet Committee on Security (CCS) has not been considering civil liberties and procedural safeguards while supervising these controversial projects. Even our Parliament has not been performing its legislative businesses these days.

These projects have seriously disturbed the delicate balance of powers between the Executive, Judiciary and Parliament of India. Experts have doubted that Separation of Power no longer exists in India. With Executive taking control of entire constitutional powers, Parliament and Judiciary are looking helplessly. This is a situation that requires immediate attention lest it is too late to remedy the situation.

Centralised Monitoring System Of India Needs Parliamentary Oversight

All the Blogspot users of India must have noticed that their Blogs, both hosted and free one, were inaccessible for many hours. While Google’s Help Forum was flooded with queries and complaints, Google preferred to keep a mum and till date it has not come out with an answer in this regard.

Google has neither confirmed nor denied that Blogspot was blocked in India or it faced any technical glitch. However, a very educated and technical guess attributes this non availability of Blogspot to “experimental blocking” by the government of India.

So how this experimental blocking took place? This experimental blocking may have taken place with the help of the central monitoring system (CMS) of the government of India. CMS is one of the initiatives suggested by Kapil Sibal, Minister of Communication and Information Technology (MCIT). However, Kapil Sibal failed to provide any procedural and constitutional safeguards to prevent the abuse of this system.

In the meantime, the Cabinet Committee on Security (CCS) has suggested that phone tapping should be done directly from the Centre without the involvement of the telecom operators. Realising that constitutional impediments would be there, the CCS has already played the card of national security and claimed that since the proposal is related to national security, public accountability is not relevant.

This approach of CCS and MCIT is clearly unconstitutional and CCS must play a more positive and pro active role regarding protecting civil liberties of Indians. India presently does not have a constitutionally sound phone tapping and lawful interception law. Even privacy laws are missing in India.

In these circumstance, there is an urgent need of Parliamentary Oversight of projects like Aadhar/UID, national intelligence grid (Natgrid), criminal tracking network and systems (CCTNS), CMS, etc.

This is more so when the Executive branch of Indian constitution has literally hijacked the constitution and there is no provision for “judicial review” of phone tapping and other unlawful interceptions made by the Indian government and its agencies.

These projects and activities of Indian government and its agencies only prove that India is witnessing a complete “constitutional failure” and if Indian government still does not wakes up, it would be too late to do anything in this regard.

Friday, February 18, 2011

Privacy Laws In India Urgently Required

Indian government never thought that its indifference towards privacy laws, data security laws and data protection laws would become its headache. With controversies like illegal phone tapping, imposition of Aadhar project, launch of projects like national intelligence grid (Natgrid) and crime and criminal tracking network and systems (CCTNS) without any procedural safeguards, etc enactment of a dedicated and constitutionally sound privacy law has become absolutely essential.

Aadhar project or UID project is the most controversial project of all and it is surprising why it has not been scrapped till now. Under the fa├žade of welfare scheme and public good, an endemic e-surveillance project is under process. The truth is that both government and unique identification authority of India (UIDAI) are fooling Indians.

Another vice that Indian government is openly adopting and supporting pertains to illegal phone tapping in India. Till now we do not have any constitutionally sound phone tapping law in India. The Indian telegraph Act, 1885 must be declared unconstitutional by the Supreme Court of India and a constitutionally sound phone tapping law must be enacted by the Parliament of India.

Similarly, the projects like Natgrid, CCTNS, central monitoring system (CMS), etc must also be undertaken only after proper and adequate constitutional safeguards are at place. Till now there is no constitutional safeguards provided by projects like Aadhar, Natgrid, CCTNS, CMS, etc.

If Indian government in general and cabinet committee on security (CCS) in particular is serious about respecting constitution of India, they must operate all these projects within the constitutional limits. CCS must play a pro active role in this regard as presently it is playing a passive role only.

Finally, all the unconstitutional laws, including cyber law of India incorporated in information technology act, 2000 (IT Act 2000) and Indian telegraph act, 1885 must be immediately repealed and must be substituted with proper, strong, effective and constitutionally sound laws.

The safest and most effective method to achieve this task is by formulating a good and effective national security policy of India that reconciles the national security and civil liberty concerns.

Cabinet Committee On Security Must Be Pro Active

Cabinet Committee on Security (CCS) of India is entrusted with analysing many security related aspects of India. CCS may have been constituted keeping in mind different aspects of internal and external security. However, it is clearly not constituted for projects likes Aadhar/UID, national intelligence grid (Natgrid), crime and criminal tracking network and systems (CCTNS), etc.

While in the past CCS has dealt with the issues pertaining to Natgrid, but it is no more taking interest in Natgrid project. It seems CCS is now more interested in imposing Natgrid upon India without much analysis, deliberations and suggestions.

As far as Aadhar project, CCNTS, etc are concerned, CCS has no role to play even if they essentially are part of its roles and responsibilities. CCS is shying away from these controversial projects as there cannot be any justification for their existence and continuance.

Even on the front of cyber security, CCS has not taken any encouraging steps. Neither the cyber law of India not the cyber security of India is in good shape. However, CCS has not realised that securing Indian cyberspace is equally important like securing our boundaries.

Now CCS has considered another crucial and controversial issue by proposing new norms for phone tapping in India. The Committee has proposed a centralised hub on the lines of central monitoring system (CMS) for phone taps.

Once again the CCS failed to consider constitutional safeguards pertaining to same. In the past the CCS has not considered the civil liberty issues of projects like Aadhar, Natgrid, CCTNS, etc. Now even the central monitoring system has been added to this list.

Although CMS be used only if there is a lawful interception law in India yet it seems to have been tested recently without any lawful interception law in India at place. India has no constitutionally sound lawful interception law at present.

CCS has a very crucial role to play as it has to safeguard national security of India. However, it has also to respect constitutional rights and protections. By giving priority to some assumed and fictitious national interest over fundamental rights, it would be shaking the very foundation of our constitution.

CCS must be pro active and it must consider all these issues while taking any decision. Presently, it seems to be taking single sided decisions going in favour of Indian government and private players and against the constitutional aspirations. I hope, CCS would consider all these issues before approving any project like Aadhar, Natgrid, CCTNS, CMS, etc.

Wednesday, February 16, 2011

Unconstitutional Phone Tapping Is A Constitutional Failure Of India

Despite what Indian government says there is no doubt that phone tapping in India is done in an unconstitutional manner. From the very beginning Indian government has deliberately retained a model that goes against the very philosophy of Indian constitution.

It deliberately retained the Indian Telegraph act, 1885 that is simply not constitutional and deserves to be struck down by the Supreme Court of India as unconstitutional. However, it has also shown the grim picture of our Parliamentary democracy.

Whether it is Bharatiya Janata Party (BJP) or Indian National Congress none have fulfilled their responsibilities in this regard. Now BJP has started shouting upon Congress led government regarding abuse of phone tapping powers but what BJP did to make the Telegraph Act constitutional? Why did not BJP raise the question in Indian Parliament till now?

Leaving the politics aside, I would like to say that there is a complete failure of Parliamentary democracy in India. Noted lawyer Praveen Dalal recently asked a very pertinent question. His question was do we have separation of powers in India anymore? In short, his question pertains to the declining role of Parliamentary democracy in India.

According to Praveen Dalal Indian Parliament is slightly better than a non operational one. It does not conduct any relevant business these days and even if it does not operate at all, not much difference would be there.

This is practically the situation in India as Executive have hijacked all the constitutional powers. While other countries require a judicial review of phone tapping, Indian Executive has been doing this not only without any judicial review but also without any constitutionally sound phone tapping law in this regard.

What is surprising is the fact that Supreme Court has not declared the Telegraph Act as unconstitutional till now. This is the most obvious solutions for the present crisis where Parliament is sleeping, Executive is openly violating constitutional provisions and Judiciary is looking helplessly. In short, incidences like these show that India is heading towards a “constitutional failure”.

Tuesday, February 15, 2011

If You Love Blogging Use Two Platforms

Blogs are the most effective tools to express your views and opinions. If a sufficient number of qualitative Bloggers are united, even the government of a nation feels threatened. This results in exercise of Internet censorship and website blocking powers by governments all over the world.

Blogs hosted on Blogspot are most widely targeted for website blocking, Internet censorship or any other kind of experimental blocking. This makes it absolutely essential that you maintain two blogs at two different platforms. This necessitates having a Blog at Wordpress as well.

The point is proved due to the recent experimental blocking of Blogspot domain and sub domain by Indian government. Although the access to the same has been restored yet Google has still not given any reason why Blogs hosted at its platform went blank.

Having a Blog at either platform has its own advantages and disadvantages. While Blogs at Blogspot are more users friendly easy to manage yet Blogs at Wordpress are somewhat difficult to manage. However, Blogs at Wordpress are more responsive to search engines and give a better viewer ship to the user. Of course, this is what almost all of us would like to have. This may be because of the proper sitemap of Wordpress plus a more liberal robot crawling policy.

Google on the other hand is more responsive to users’ requests and communications. Even Google is more responsive to copyright violation notices that Wordpress fails to achieve. Google is also free from compulsory advertisements that Wordpress sometimes forces upon it users.

In short, Wordpress is user friendly whereas Google is more adaptive and responsive. If a Blogger has to choose between either of them, he may have a choice of his own. But if he is really serious about Blogging, that also beyond the big brother reach, he must choose both.

Why Blogspot Was Blocked In India?

Recently the Blogspot domain (hosted services) and sub domain (free blogs) were systematically blocked by many of the internet service providers (ISPs) of India. The blogs and hosted contents were inaccessible to many site/blog owners. At the same time many did not even noticed this fact and doubted whether something like this happened at all.

While there is no doubt that Blogspot faced a serious outage in India yet there are two viewpoints regarding this outage. One view considers this as a mere technical glitch whereas other viewpoint considers it as an exercise of blocking by Indian government.

For some strange reasons, Google did not reply back as to the cause of this outage and this is something that is troubling me. Google had enough time to analyse the traffic reports and respond back yet it preferred to keep a mum.

In this situation and without any technical analysis and inputs from Google’s side, I would presume this outage as a part of experimental blocking on the part of Indian government. In the past Blogspot was blocked due to lack of technical capabilities of Indian ISPs. The ISPs were ordered to block certain specific Blogs and without expertise they blocked the entire domain.

The present episode is not a result of either lack of expertise or mistake or a technical glitch. It is also not aimed at curbing the freedom of speech and expression of Indian Bloggers. So what was the reason for this blockage?

As I said before it may be an “experimental blockage” that took place at the point where Internet traffic enters and exists India. This exercise may have different names. Some may call it an Internet Kill Switch (IKS) whereas others may call it a Centralised Monitoring System (CMS). Whatever the name you may wish to give it, we need measures to prevent its abuse in India.

Since the recent blocking of Blogspot has no political purpose, we should restrain from associating the episode with politics. However, the episode is inseparable with civil liberties issues, especially when there are no procedural safeguards against the abuse of projects like IKS, CMS, national intelligence grid (Natgrid), Aadhar project, etc.

It is high time for the Parliament of India to fulfill the responsibilities entrusted to it by Indian Constitution and enact suitable laws and procedural safeguards in this regard. Presently there are none and this is not healthy for our Democracy.

Monday, February 14, 2011

The Dark Truth Of Phone Tapping In India

As per a recent media report, Indian government agencies were tapping more than one lakh phones every year. The figure is even more and there are many lakhs phone taps that are simply not within the knowledge of public or are not reported at all.

Further, the veil of secrecy and exemptions that Indian government claims from disclosing even the basic number of phone taps every year makes the task of their estimation even more difficult. The truth is that phone tapping in India is not constitutionally performed.

This entire problem is arising because we do not have a constitutionally valid lawful interception law in India. For instance, for engaging in telephone tapping we have India Telegraph Act, 1885. The Telegraph Act does not meet the requirements of present times and is a legislation that immediately requires to be repealed. In fact, the Telegraph Act is not a constitutional piece of legislation and it deserves to be struck down as unconstitutional by the Supreme Court of India.

Further, to escape the scrutiny of courts, telecom companies have been hiring private individuals for tapping purposes. These private individuals even do not bother to get proper authorisation from the competent authority and have been indulging in phone tapping on the basis of forged documents.

While none can deny the importance of phone tapping for law enforcement and genuine security reasons yet phone tapping in India is being done for all sorts of purposes. Civil liberties like privacy rights and right to speech and expressions have no value when it comes to phone tapping in India.

Even Supreme Court’s guidelines regarding phone tapping are not followed. In fact, it is a mistake on the part of Supreme Court to just give guidelines and leave everything upon Executive to do. Nothing short of declaring the Telegraph Act as unconstitutional by the Supreme Court would serve the purpose.

Till the Telegraph Act is not declared unconstitutional, the Parliament would not enact a constitutionally sound lawful interception law in India. The truth is that India urgently needs a lawful interception law and Executive and Parliament are deliberately ignoring this issue.

UID Illegality Now Spread To Subsidies Also

The illegality and unconstitutionality of Aadhar project and Unique Identification Authority of India (UIDAI) have now been spread to subsidies on kerosene, LPG and fertilizers as well. This has happened after a task force has been constituted by Indian government for the direct transfer of subsidies in these fields.

The task force has been constituted under the chairmanship of Nandan Nilekani, chairman, of UIDAI. What is worrisome is the fact that the task force would use UID numbers for this purpose. This has automatically crept in the illegality and unconstitutionality of UID system in subsidies as well.

Indian government and UIDAI are fooling Indians with false promises and useless Aadhar project. The truth is that Indian government is imposing an unconstitutional project upon Indians through a backdoor.

While Aadhar cannot see the light of the day either through legislative mechanism or otherwise yet Indian government is tying it up with essential services and subsidies to make it indirectly mandatory.

The Parliament’s Standing Committee on Finance has recently grilled Nandan Nilekani and Planning Commission secretary Sudha Pilla. They were not even able to answer basic level questions. Obviously, they have no answers for these basic questions. However, what would happen when the constitutional questions would be asked?

Nandan Nilekani cannot answer the civil liberties questions and that is why they have been deliberately sidelined. Even Indian government has been avoiding Parliamentary oversight of Aadhar project and UIDAI.

However, what is most worrisome is the fact that an illegal and unconstitutional project like Aadhar has got the approval of our Prime Minister Dr Manmohan Singh. This is a matter of great concern because being the head of our government he has a larger and greater responsibility to respect constitutional aspirations that he is not doing presently.

Friday, February 11, 2011

Fight Websites Blocking And Internet Censorship In India

Blogspot has been subjected to domain blocking on numerous occasions in India. The latest in the series is the blocking of Blogspot domain by Indian internet service providers (ISPs).

As more and more blog owners are reporting non access to their blogs, the issue must be investigated. In fact, a dedicated thread has been started at Google’s help forum to address this problem.

Till now there has been neither any confirmation nor denial of this issue by Google. An official response from Google may be expected very soon.

However, blocking of websites or internet censorship should not be taken lightly in India. Information technology act, 2000 (IT Act, 2000) was amended by the information technology amendment act, 2008 (IT Act, 2008) to confer unrestricted and unregulated internet censorship, website blocking and e-surveillance powers upon Indian government and its agencies.

Even after Kapil Sibal took charge of the ministry of communication and information technology (MCIT), nothing in this regard has improved. Even he is indifferent towards providing adequate safeguards to protect civil liberties of Indian citizens from vast and unregulated powers under the IT Act, 2000.

Fortunately, some self defence measures have been suggested by noted techno legal expert of India Praveen Dalal. He has also provided the resources through with the blocking of websites and internet censorship can be defeated in India.

Internet users in India can avail these self defence measures and resources mentioned at the site. We would keep on updating all of you about the situation.

Has Blogspot Been Censored Or Blocked In India?

Blogspot Blogs are increasingly becoming non-accessible in India. Surprisingly, if a person uses a proxy, she can have access to her blog. This logically means that Indian Internet Service Providers (ISPs) are blocking access to Blogspot Blogs in India.

Why this step has been taken is still not known. Even at Google’s Help Forum this question has been put for further discussion and diagnosis of the problem. But even at the Forum the possibility of Blogspot being Blocked/Censored has not been ruled out.

Under the Indian Cyber Law, incorporated in the Information Technology Act, 2000 (IT Act, 2000) unlimited and unregulated Internet Censorship and Website Blocking powers have been given to Indian Government and its Agencies.

If this is a case of Internet Censorship or Website Blocking, Indian Government succeeded in achieving what it was desperately looking for. The Information Technology Amendment Act, 2008 was instrumental in conferring these Unconstitutional and Illegal powers upon Indian Government and its agencies.

We would keep on our reader posted about this issue. In case, you also face similar problems or you wish to share your views with us, contact us with your suggestions and inputs.

Wednesday, February 9, 2011

DDOS: A Growing Threat To Civil Liberties

Distributed denial of service (DDoS) attack has been in existence for long but its uses were limited. Now DDoS has many uses these days. Form cyber attacks to curbing speech and expression, DDOS is playing a role in all these situations.

What is more disturbing is the fact that governments and government sponsored organisations are increasingly using DDoS to target and take down civil liberty oriented websites. Whether it is WikiLeaks or any other site that is expressing views against any particular government, DDoS attacks are instantly launched against such sites.

The reverse is also true. For instance, the supporters of WikiLeaks launched a DDOS against the sites that declined to deal with and support its activities. While there is no doubt about the fact that every person, organisation and website has a right to self defence against cyber attacks yet none should exceed this right.

Surprisingly, while DDOS attacks against governments and its supporting sites are instantly investigated no action is ever taken against cyber attacks to sites like WikiLeaks. Government must be as brisk as it is while investigating attacks against civil liberty sites as it is in case of its own sites.

There is an urgent need to have detailed international legal framework regarding DDOS, especially against its uses and misuses. Otherwise, nation supported DDoS would become a permanent norm.

Thursday, February 3, 2011

Mobile Towers In India Are Health Hazard

One of the best directions by a High Court of India was stayed by Supreme Court in the month of January, 2010. The decision was given by the Punjab and Haryana High Court banning installation of mobile phone towers in residential areas in Punjab. The ban was imposed because these towers were emitting hazardous rays to people residing in residential areas.

On appeal, a bench headed by Chief Justice of India K G Balakrishnan also asked a sarcastic question, “if towers are not to be installed in residential areas will they be installed in forest?”. I was appalled by this statement as the Bench was clueless what it was talking about.

However, the protests did not die even after that stay and public pressure finally resulting in submission of a contrary Inter Ministerial Report (IMR) to the Department of Telecommunications (DoT). The report has recommended what Supreme Court failed to appreciate. It has recommended the cutting down of mobile phone tower radiation by one-tenth of the present level.

India has the worst cell phone tower radiation norms in the world. The upper limit is so high that within 2 years the health of 1 crore Indians could be affected. But if the recommendations of the IMR are accepted by DoT, then India may witness stricter norms regarding radiations emissions from towers and their installation in residential areas.

In the past DoT has been taking anti Indian and anti common man decisions and there are very little chances that these recommendations would be rejected to further disgrace its image. Even the hard core industrial lobbying from mobile industry is not going to work in these circumstances. Let us hope the Supreme Court of India would not take a casual approach and misguided agenda this time.

Wednesday, February 2, 2011

Bail Orders Would Now Be Sent Through E-Mail

While use of information and communication technology (ICT) for judicial purposes has got no attention of executive yet judiciary in India has taken a stand. After Supreme Court of India asked its registry to send legal notices through e-mail, the Delhi High Court has taken it a step further.

A division bench of Chief Justice Dipak Misra and Justice Sanjiv Khanna has ensured early release of undertrials and accused who are granted bail by directing all Delhi courts as well as its own officials to e-mail a copy of bail orders to Tihar jail authorities within 24 hours of being pronounced. This is a great step in the right direction.

While the Code of Criminal Procedure, 1973 is on book since then, this is the first prison and judicial reform that has been undertaken in this regard using ICT, besides use of video conferencing.

“Right to a speedy trial is contained in Article 21 of the Indian Constitution. It mandates a speedier and timely disposal of a case. Presently, India is facing a mammoth backlog of cases that can be reduced drastically by use of ICT and e-courts,” said Praveen Dalal, techno-legal ICT specialist, and a practicing lawyer at the Supreme Court. Dalal is also a managing partner with Perry4Law.

Although the national e-governance plan (NEGP) of India has been launched, it has largely remained a failure to bring legal enablement of ICT systems in India. Till the month of February 2011 we are still waiting for the establishment of first e-court in India. India is confusing computerisation with e-courts and by simply putting some hardware and software, it is claiming to have established e-courts in India.

The efforts for the establishment of e-courts in India are not sufficient and needs rejuvenation. This is happening because the legislature and executive are not versed with the litigation and the legal fraternity is never consulted while making Techno-Legal Laws,” said Dalal.

The primary reason for this failure can be attributed to lack of techno legal expertise to implement an ambitious e-court project of India. However, a committed mind can bring much faster and better legal and judicial reforms in India, as has been shown by the Bench of Delhi High Court.

Blackberry Again Refused To Give BES Access To India

Home Ministry of India has been pressuring research in motion (RIM) to ensure real time e-surveillance and interception to its security and intelligence agencies. Succumbing to the pressure, RIM has already agreed for allowing e-surveillance of its messenger services.

However, RIM is still showing its inability to provide similar assistance for its blackberry enterprise server (BES) product and services. RIM is maintaining that it is technically not possible to part away with encryption keys that are residing with the users.

India on the other hand is contending that when RIM has provided similar services to other nations, why cannot it be extended to India? Now this is a genuine demand. If RIM is allowing access to its BES services in America, there is no reason why such an arrangement cannot be made in India.

Now RIM has to either establish that the BES services are not subject to any sort of real time analysis, even in America, or it must extend real time e-surveillance assistance to India as well.

It seems RIM is taking the first stand i.e. incapability to provide encryption keys of users to any person or nation, including America. However, there is a significant difference between Indian and American situation.

India does not have a constitutionally sound lawful interception law. India is demanding e-surveillance support without judicial review and adequate civil liberty safeguards and this may be challenged by RIM in Indian courts.

According to Praveen Dalal, a Supreme Court lawyer and leading techno legal expert of India, those believing in a good combination of Privacy and Security must use Pretty Good Privacy (PGP) along with any good smart phone. This way you can have a better and e-surveillance free mobile infrastructure than the future controversial Blackberry phones.

He has even suggested some self defence measures that users can take in case of excessive and unconstitutional e-surveillance and unlawful interceptions in India against them.

However, like all other things, there is limit beyond which this right of self defence is not available to law abiding individuals. Beyond this limit, self defence would become illegal and unlawful. Within these limits, users can use technology to safeguard their privacy rights and civil liberties.