CJNEWS INDIA

Online Payment Market Of India Is Growing

2012-03-20T04:26:00.001-07:00

The banking, financial and regulatory environment in India is becoming very conducive for online payment market of India. Companies like PayPal have already realised the potential of online payment markets of China and India. PayPal is planning to make its presence in India and China more prominent.

Another reason why companies like PayPal are entering into Indian market is the strong growth of e-commerce in India. With the growth of e-commerce and e-governance in India, online payment market would also grow. For instance, electronic delivery of services in India would also result in a parallel growth of online payment platforms in India.

In fact, an electronic delivery of services bill of India 2011 has already been adopted by Indian government and it may become an applicable law very soon when the parliament of India clears the same. Add to this the initiatives of mobile governance in India. Very soon we may have an implementable m-governance policy of India. Also an integrated modern banking law for India is in pipeline that may strengthen online payments making in India.

While things are happening in the right direction yet there are some shortcomings as well. For instance, a majority of e-commerce payments are still made in an offline manner. The cash on delivery may harm e-commerce in India in the long run. A shift toward online payments is not only desirable but is also inevitable.

Similarly, e-commerce players, online payment companies and websites in India are still not aware of the key provisions of cyber law of India. E-commerce players and online payment management companies are still not aware about the Information Technology (Intermediaries Guidelines) Rules 2011 of India.

Similarly, both e-commerce platforms and online payment companies are required to ensure cyber law due diligence in India. The cyber law due diligence for Indian companies is very stringent and there is no reason to take it lightly. In fact, cyber due diligence for foreign and Indian websites in India is an issue that is frequently agitated before Indian courts. Further, legal requirements of undertaking e-commerce in India must also be strictly followed.

While the opportunities for e-commerce and online payment companies are great yet the corresponding obligations are also equally troublesome. If e-commerce and online payment companies wish to make good profits they have to ensure sound compliance with Indian laws, especially the cyber law of India.

Cloud Computing In India Is Legally Risky

2012-03-12T21:46:00.002-07:00

It is a severe jolt to freedom to speech and expression if critical news and views are either censored or they are removed from various search platforms, news, etc. Our latest news upon e-commerce and cloud computing topics were first appeared and later disappeared.

We have also reported the matter to a very good civil liberties protection platform in this regard known as Websites, Blogs and News Censorship by Google and India for their evaluation and reporting. The platform is a repository for many sorts of censorships and manipulations activities done by Indian government and Google.

In this article we are exploring the potential benefits and risks of using cloud computing in India. Legal risks of cloud computing in India are numerous and unless they are mitigated cloud computing in India cannot be successful.

Cloud computing is the buzz word these days in India. Cloud computing has many advantages over maintaining your own data centers and storage spaces. However, if the data is not of great quantity, cloud computing is not a viable option at all.

The data generated on Internet and computing world is tremendous in volume. The processing and management may be a costly affair at an organisational level. This is the reason why individuals and organisations prefer to use cloud computing services to reduce their costs and improve their efficiencies.

The benefits of cloud computing are correlated with the drawbacks associated with the same. For instance, cloud computing is a potential landmine for privacy violations. Similarly, cloud computing may also be responsible for data theft, data breaches, confidentiality breach, etc.

Obviously cloud computing without legal framework and procedural safeguards should not be adopted at all. This is exactly the problem of cloud computing in India. We have no dedicated cloud computing laws in India and cloud computing regulations in India. Despite may protests the legal framework for cloud computing in India is still missing.

Further, we have no dedicated privacy law or data protection law in India as well. Handing over of personal, secret and confidential information to law enforcement agencies of India without any judicial order is also possible as Indian laws does not requires a court warrant to be the prerequisite before such data and information can be parted away by an Internet intermediary or Internet service provider.

According to a recent research analysis by Perry4Law and Perry4Law Techno Legal Base (PTLB), Indian chief information officers (CIOs) and chief executive officers (CEOs) are not comfortable using cloud computing in the present situations. Many other organisations have also endorsed this analysis of Perry4Law and PTLB. Now even Telecom Regulatory Authority of India (TRAI) has endorsed these research results of Perry4Law and PTLB.

TRAI has accepted the suggestions of Perry4Law on telecom policy of India 2012. TRAI has clearly maintained that there must be a balance between privacy protection and law enforcement requirements vis-à-vis cloud computing usage in India.

So for all practical purposes, use of cloud computing in India is risky. India is still not ready for cloud computing and India should not use software as a service (SaaS) or cloud computing till suitable legal frameworks and procedural safeguards are at place.

Legal Risks Of Cloud Computing In India

2012-03-12T08:22:00.002-07:00

Cloud computing is the buzz word these days in India. Cloud computing has many advantages over maintaining your own data centers and storage spaces. However, if the data is not of great quantity, cloud computing is not a viable option at all.

The data generated on Internet and computing world is tremendous in volume. The processing and management may be a costly affair at an organisational level. This is the reason why individuals and organisations prefer to use cloud computing services to reduce their costs and improve their efficiencies.

The benefits of cloud computing are correlated with the drawbacks associated with the same. For instance, cloud computing is a potential landmine for privacy violations. Similarly, cloud computing may also be responsible for data theft, data breaches, confidentiality breach, etc.

Obviously cloud computing without legal framework and procedural safeguards should not be adopted at all. This is exactly the problem of cloud computing in India. We have no dedicated cloud computing laws in India and cloud computing regulations in India. Despite may protests the legal framework for cloud computing in India is still missing.

Further, we have no dedicated privacy law or data protection law in India as well. Handing over of personal, secret and confidential information to law enforcement agencies of India without any judicial order is also possible as Indian laws does not requires a court warrant to be the prerequisite before such data and information can be parted away by an Internet intermediary or Internet service provider.

According to a recent research analysis by Perry4Law and Perry4Law Techno Legal Base (PTLB), Indian chief information officers (CIOs) and chief executive officers (CEOs) are not comfortable using cloud computing in the present situations. Many other organisations have also endorsed this analysis of Perry4Law and PTLB. Now even Telecom Regulatory Authority of India (TRAI) has endorsed these research results of Perry4Law and PTLB.

TRAI has accepted the suggestions of Perry4Law on telecom policy of India 2012. TRAI has clearly maintained that there must be a balance between privacy protection and law enforcement requirements vis-à-vis cloud computing usage in India.

So for all practical purposes, use of cloud computing in India is risky. India is still not ready for cloud computing and India should not use software as a service (SaaS) or cloud computing till suitable legal frameworks and procedural safeguards are at place.

False Prosecution Of Websites In India Must Be Discouraged

2012-03-03T00:24:00.002-08:00

Foreign companies and websites are increasingly finding themselves in the legal net for violating Indian laws. As per the recent trends predicted by Perry4Law and Perry4Law Techno Legal Base (PTLB) the cyber litigations against foreign websites and companies in India would increase further.

However, not all cases filed against these foreign websites, social networking websites and foreign companies are legally sustainable. For instance, the criminal case filed by Vinay Rai is suffering from many irregularities. The chief among them is the fact that he did not contact the websites in question for removal of offending contents.

Similarly, the civil case filed against many websites and companies by Mufti Aijas Arshad Quasmi is also suffering from irregularities. Many parties to the case have been added without ascertaining whether they are actually liable or not.

However, what is really troublesome is the fact that the civil and criminal courts of India did not apply their mind to ascertain whether a prima facie case is made out against the accused social media websites, foreign websites and accused companies. Legal processes were issued against them without application of mind by the courts.

The only solace comes in the form that some of them have been pronounced to be not liable to be prosecution by the civil court and criminal court. While the Delhi High Court quashed the criminal trail against Yahoo the civil court dismissed the case filed against Microsoft as not maintainable. Even better is imposition of fine of Rs. 5000 upon Mufti Aijas Arshad Quasmi for making unwarranted accusations against Microsoft.

This entire harassment to Yahoo and Microsoft could have been avoided by simple application of mind by concerned courts while summoning them. If foreign websites violate Indian laws they must be severely prosecuted. However, if they are not violating any Indian law, such frivolous cases and complaints against foreign websites should be seriously discouraged by Indian judiciary.

Legal Requirements Of Undertaking E-Commerce In India

2012-02-28T02:45:00.001-08:00

Electronic commerce in India is all set for big growth. However, there are many technological, legal and regulatory challenges that are forcing limited growth of electronic commerce in India.

Electronic commerce laws in India are still evolving and there are many legal regulatory requirements that must be complied with before an e-commerce project is launched in India. At the same time, there is an urgent need to enact full fledged and dedicated e-commerce laws in India.

So what does techno legal experts of India think about e-commerce environment and regulatory aspects of the same? According to Praveen Dalal, managing partner of New Delhi based ICT law firm Perry4Law and leading techno legal expert of Asia, E-Commerce in India requires compliance with various Statutory Laws of India. The chief among them are the Cyber Law of India, Indian Contract Act, Privacy and Data Protection Regulations, Cyber Security Regulations, Foreign Investments Regulations, etc.

Although E-Commerce in India has great potentials yet Legal Aspects of E-Commerce in India must be taken care of before launching an E-Commerce Project or Website, suggests Praveen Dalal.

Of all these legal requirements, the requirements prescribed by the cyber law of India are most stringent. For instance, e-commerce players are intermediaries for the purpose of affixing their Internet intermediaries’ liability in India under the IT Act 2000. Similarly, e-commerce players are also required to ensure cyber law due diligence in India that is frequently ignored by them.

However, legal awareness about e-commerce requirements is missing among masses. Even there are very few e-commerce lawyers and law firms in India that can provide expert services in this regard. The e-commerce players must undertake a prior and proper techno legal due diligence for establishing e-commerce business in India. Jumping upon the e-commerce terrain without proper compliances may prove a landmine instead of a goldmine.

NCTC, Intelligence Agencies And Censorship By Google In India

2012-02-21T11:13:00.002-08:00

The proposed national counter terrorism centre (NCTC) of India is suffering from many irregularities. This is the reason why NCTC is facing stiff opposition in India. Indian government is trying every possible method to get out of this situation. It is not only denying the basis of such oppositions but is also putting pressure upon companies like Google to filter news and search results.

However, Indian government is not doing what it is absolutely required to do. It is not formulating a constitutionally sound legal framework for NCTC and most importantly for the intelligence agencies of India that are still operating in wild. Despite all wrongs and misuses, parliamentary oversight of intelligence agencies of India is missing.

According to Praveen Dalal, leading techno legal expert of Asia and Managing Partner of India’s exclusive techno legal ICT Law Firm Perry4Law, Parliamentary Oversight of NCTC is a Secondary Issue and the more important issue is Parliamentary Oversight of Intelligence Agencies of India. Presently, Intelligence Agencies of India are operating without any Legal Framework and Parliamentary Oversight and this needs to be changed, opines Praveen Dalal. Even NCTC has been put under the control of Intelligence Bureau (IB) and this practically means no oversight of NCTC as well, suggests Praveen Dalal.

So NCTC without a Legal Framework is definitely Unconstitutional and even tagging it with the Unlawful Activities (Prevention) Act, 1967 would not save it from the Patent and Apparent Unconstitutionality with which it is suffering, opines Praveen Dalal.

If this is the legal and constitutional position, Indian government has every reason to panic but neither Indian government nor Google has any justification to censor news and articles simply because they are critical in nature.

It has been reported that Google is censoring NCTC and intelligence agencies related results in India. On further analysis and research, even we are of the same opinion that Google censored NCTC news and search results in India. It seems this is handwork of Google manual manipulation of news and search results. Google has not only dumped NCTC and intelligence agencies related critical articles deep in the news and search results but has also removed the pointer pointing towards the news posts.

Some of the results that first appeared in Google search results and Google news and then disappeared are:

(1) National Counter Terrorism Centre (NCTC) of India

(2) National Counter Terrorism Centre (NCTC) of India Is Required

(3) Parliamentary Oversight of Intelligence Agencies of India Is Needed.

This is not the right manner of reaching at a consensus about establishment of NCTC in India. It is now evident why states are so apprehensive about the establishment of NCTC as such an institution without constitutional and legal safeguards would bring more troubles than solutions.

With these intentions and acts of Indian government, it is clear that NCTC has not been proposed to deter terrorism in India but to gain more and more control over law and order situations across states and state executive and legislative powers. In such situation, establishment of NCT would only impose further financial and manpower constraints with no actual benefits. It would be better if we have no NCTC than having a handicapped and self serving institution as has been presently suggested.

Parliamentary Oversight Of Intelligence Agencies Of India Is Needed

2012-02-21T05:59:00.002-08:00

In this exclusive guest column, Praveen Dalal, leading techno legal expert of Asia and Managing Partner of India’s exclusive techno legal ICT Law Firm Perry4Law, has shared his viewpoints about the growing needs of parliamentary oversight of intelligence agencies and law enforcement agencies of India.

Indian Government is too reluctant to ensure Parliamentary Oversight for Intelligence Agencies and Law Enforcement Agencies of India. If this is not enough, Indian Government has been launching new Projects having serious “Constitutional Ramifications” and “Civil Liberties Violation” effects.

For instance, the National Counter Terrorism Centre (NCTC) Project of India, National Intelligence Grid (Natgrid) Project of India, Aadhar Project of India, Crime and Criminal Tracking Network and System (CCTNS), etc are not governed by any Legal Framework and Parliamentary Oversight. Indian Government is not willing to understand and accept that Intelligence Work is not an excuse for Non Accountability.

For some strange reasons Intelligence Infrastructure of India has become synonymous for Non Accountability and Mess. There is neither any Parliamentary Oversight nor and Transparency and Accountability of the working of Intelligence Agencies of India.

Even a basic level effort to enact a Legal Framework for Intelligence Agencies of India is missing in India. The first and foremost challenge to such Parliamentary Oversight mechanism comes from the Intelligence Agencies themselves that do not wish to be governed by any Rules and Norms at all.

Then we have “Bureaucratic Hurdles” in India that do not allow such a Legal Framework to be proceeded with. Finally, the Parliament of India itself is not interested in bringing these Intelligence Agencies within the fold of Parliamentary Oversight.

Take the example of the recent Private Bill titled Intelligence Services (Powers and Regulation) Bill, 2011. It was shelved out by none other than the Indian Prime Minister Dr. Manmohan Singh who announced that Law on Intelligence Agencies would be formulated soon. However, it proved nothing but a “Time Gaining Tactics” and so far Intelligence Agencies of India are not governed by any Legal Framework and Parliamentary Oversight.

Interestingly, even the Central Bureau of Investigation (CBI) is riding the same boat. The Draft Central Bureau of Investigation Act, 2010 is another example where the Indian Government is just interested in making “Declaration” with no actual “Intention” to implement the same.

In these circumstances, can the States trust the Centre regarding the establishment of National Counter Terrorism Centre (NCTC) of India? The answer is definitely negative even if States keep their “Political Interests” aside. This is also the reason why NCTC is facing stiff oppositions. Of course, there are “Practical Difficulties” and “Internal Turf War” among various Agencies and Ministries of Central Government a well. It seems the obvious but unsolvable Terrorism Dilemma in India would continue as National Interest of India and fighting Terrorism is not a “National Priority”.

Till now the constitutionality of the National Investigation Agency Act 2008 (NIAA 2008) has not been accepted by States and now NCTC has been launched through an “Executive Order”. The practice of clubbing new Projects, Agencies and Institutions with existing laws is a bad approach. So NCTC without a Legal Framework is definitely Unconstitutional and even tagging it with the Unlawful Activities (Prevention) Act, 1967 would not save it from the Patent and Apparent Unconstitutionality with which it is suffering.

NCTC Of India Facing Stiff Oppositions

2012-02-20T07:43:00.000-08:00

National counter terrorism centre (NCTC) of India is an initiative taken by the home ministry of India to tackle the growing menace of terrorism in India. However, it is a very sensitive constitutional issue where states are not in a mood to let centre start this initiative.

The constitutionality of the national investigation agency act 2008 is still doubtful and new projects like national intelligence grid (Natgrid), national counter terrorism centre (NCTC), etc are also treading on similar path.

There are obvious practical difficulties for the establishment of NCTC in India. Not only centre state relationship in this regard is at crossroad but even there is an internal rift among various ministries that need to be sorted out.

According to Praveen Dalal, leading techno legal expert of Asia and Managing Partner of India’s exclusive techno legal ICT Law Firm Perry4Law, there are many “practical difficulties” that may prevent the actual implementation of the much needed NCTC of India. Presently intelligence agencies of India are operating under different Department/Ministries and there would be a “reluctance” to submit to the centralised NCTC of India, suggests Dalal.

Besides practical difficulties, lack of proper Legal Framework is also a big shortcoming of projects like NATGRID, NCTC, etc opines Praveen Dalal. Indian Government is simply “tying up” Projects with existing Legal Frameworks although they require Separate and Constitutionally Sound Legal Frameworks, suggests Dalal.

In the absence of constitutionally sound legal frameworks, states have been opposing opening of NCTC in India. They are claiming that this amounts to violating their constitutional rights and powers.

Of course, the ruling government is trying to pass these projects by tying up the same with existing legal frameworks that is a fallacious policy on their part. This approach is also unconstitutional in nature that can be challenged in Indian courts.

With this attitude and tying up policy, States are well within their rights to challenge the establishment of NCTC in India even though it is absolutely required in India, says Praveen Dalal. It seems the obvious but unsolvable terrorism dilemma in India would continue.

National Counter Terrorism Centre (NCTC) of India Is Required

2012-02-20T04:26:00.001-08:00

In this exclusive guest column, Praveen Dalal, leading techno legal expert of Asia and Managing Partner of India’s exclusive techno legal ICT Law Firm Perry4Law, has shared his viewpoints about the needs for and methods of establishment of National Counter Terrorism Centre (NCTC) of India.

The doubts of the Constitutionality of the National Investigation Agency Act 2008 (NIAA 2008) are still raised and the Union Home Ministry has decided to launch few more Projects and Initiatives that have “Serious Constitutional Ramifications”. These include the National Intelligence Grid (NATGRID) Project, National Counter Terrorism Centre (NCTC) of India, etc. NCTC of India is a pet project of Home Minister Mr. P. Chidambaram.

Fortunately, the NCTC of India got the Cabinet approval. NCTC would be supported by NATGRID Project, Crime and Criminal Tracking Network and System (CCTNS), etc. There is no second opinion that intelligence work is not an excuse for non accountability. Similarly, there is also no second opinion that NCTC of India is also a much needed institution.

The NCTC Project of India is also “Very Significant” for the National Security of India. Terrorist attacks against India are on increase and we need a “Specilaised Institution” like NCTC to provide and analyse valuable intelligence inputs and leads.

The real problem seems to be “Lack of Coordination and Harmonisation” between the Centre and States. The Constitution of India has made a clear demarcation between the Legislative, Executive and Judicial Powers of Centre and State. The NIAA 2008 and NCTC are sitting at the “Border Line” of the Legislative and Executive Powers of Centre.

The intentions of Home Minister Mr. P.Chidambaram are good but the concerns of States are also of equal force. Further, the turf war between multiple Intelligence Agencies operating under different Government Ministries is also causing problem for the successful establishment of NCTC. Even there is a lack of proper Planning and Management on the part of Union Home Ministry that is causing delayed implementation of Projects like Natgrid, NCTC, CCTNS, etc.

If Mr. P. Chidambaram really wants his Projects to become successful, he has to think well beyond the present “Parameters and Objectives” set by Indian Government in general his own Ministry in particular.

A good starting point can be formulation of a “Constitutionally Sound Legal Framework” that can confer Legitimacy and Constitutionality to Projects like NATGRID, NCTC, CCTNS, etc. Obviously, States must be taken into confidence before starting any such Legislative Exercise.

This must be supplemented by Sound Planning and Management. The Projects of Home Ministry are neither simple nor easy to execute. They required dedicated efforts from all directions. Experts from diverse fields must be on panel of Home Ministry so that these Projects can be successfully implemented. I am sure Home Minister Mr. P. Chidambaram would have already considered these aspects and I wish all the best to him in this regard.

Cyber Due Diligence For Foreign Websites In India

2012-02-20T00:03:00.000-08:00

Foreign websites and companies are facing growing court cases and litigations for violation of Indian laws. This trend was already predicted by techno legal experts of India. According to techno legal experts in India, legal action against offending foreign websites can be taken in India if they fail to exercise cyber due diligence. Further, as a measure of last resort, these foreign websites can be blocked in India for not complying with Indian laws.

Experts have also suggested appointment of nodal officers so that these foreign websites and companies can comply with Indian laws. The Information Technology (Intermediaries Guidelines) Rules, 2011 of India prescribe stringent provisions regarding Internet intermediary liability in India. However, till now foreign companies and websites have not followed the guidelines and rules issued by Indian government in this regard.

This is the main reason for growing incidences of litigations and cases against foreign websites in India. A criminal complaint has been filed against companies like Google, Facebook, Microsoft, Yahoo, etc before a Trail Court for non observation of cyber due diligence by them. Even the Delhi High Court has not quashed the criminal complaint against these companies so far.

Fortunately, the Delhi High Court has granted an exemption from personal appearance of the executives of Google and Facebook. However, executives of other 19 co-accused companies are still required to personally appear before the trial court.

Now a new petition has been filed with the AP High Court seeking directions to the Central Government that it may ask social networking site Facebook to publish its security architecture and safeguard mechanisms to protect its user profiles. It has also been pleaded that Facebook makes its users authenticate accounts with official identification documents.

Although the present petition against Facebook seems to be premature and unnecessary yet the criminal and civil cases against social networking websites and foreign companies is worth trying. This situation also is a wake up call for these websites and companies to fall in line with Indian laws.

Google and Facebook In Indian Cyber Law Tangle

2012-01-15T21:49:00.000-08:00

Internet intermediaries in India are required to follow certain due diligence requirements under the cyber law of India incorporated in the information technology act, 2000 (IT Act 2000). If they fail to observe such cyber due diligence, the safe harbour protection available under the IT Act 2000 is lost.

While pre screening of contents and expecting Internet intermediaries like Google, Facebook, Microsoft, Yahoo, YouTube, Linkedin, etc to keep a vigil watch upon the Internet is simply unreasonable and unrealistic yet asking Internet intermediaries to block or remove offending contents, after they have been duly notified in this regard, is a genuine need and reasonable demand.

Such removal or non removal of objectionable and offending contents cannot be considered to be right or wrong as per Internet intermediaries or Indian government’s viewpoint. Rather an independent analysis of the same must be made by courts keeping in mind the facts and applicable laws.

Further, there must be uniformity in application of Indian laws to all in similar situations. If there is a discrimination against foreign companies and favour for domestic companies, this undermines the confidence and trust of online community world over. For instance, recently Reliance and Airtel blocked websites in India whose legality is still doubtful. Department of information technology (DIT) must investigate such blocking in order to rule out favoritism for domestic companies.

It has also been reported that social media websites users in other states of India are planning to engage in legal battles in such states to access any blockage of such websites. Legally they can do so but in the long run such a move would be counter productive.

Companies like Google and Facebook would appear today before the Delhi High Court to prove their innocence in the recently filed criminal case before a trial court. In fact, the trial court has asked the representatives of the parent companies to appear before it and face the trial.

Clearly, the argument of being a subsidiary has kicked back and now the parent company has to face the trial. Even if the subsidiaries are exempted from any criminal liability, the liability of parent company is now emerging as an even bigger issue. Let us see how Delhi High Court would decide the case today.

How Would Google, Facebook, Microsoft And Yahoo Approach Delhi High Court?

2012-01-15T08:54:00.000-08:00

Recently the Indian government granted its approval to criminally prosecute companies like Google, Facebook, Microsoft and Yahoo for posting objectionable contents on their websites. Indian government claims that despite repetitive requests being made to these websites, they failed to remove the objectionable contents from their websites.

Before that companies like Google and Facebook approached the Delhi High Court to quash the complaint against them. However, the Delhi High Court refused to do so and this cleared the way for continuance of the complaint against these companies. With the granting of sanction by central government under section 196 of the Code of Criminal Procedure (CrPC), 1973, the criminal trial against these companies can now be started for diverse offenses under Indian laws.

The trial court has adjourned the matter till March 13, 2012. The trial court has also directed the external affairs ministry to serve the summons issued to foreign-based social networking and other websites. With this the excuse of being an Indian subsidiary is also gone and now parent companies would have to face the heat and their executives have to appear personally before the trial court. Now the Delhi Police can also prosecute these parent companies after the sanction has been received.

The representatives of companies may or may not appear before the trial court. If they appear, they have to face the trial and prove their innocence as per Indian laws. If they do not appear, this may have serious ramifications that these companies cannot afford to face.

On 16th January 2012 the Delhi High Court would hear further arguments of these companies. However, it seems the matter would not be settled easily and lightly by Delhi High Court. Techno legal experts like Praveen Dalal have been warning against unconstitutional cyber laws in India. He was the only cyber law expert of India who protested against the information technology amendment act 2008 (IT Act 2008) in its present form that is root of all present cyber law related distortions in India.

According to Praveen Dalal, the cyber law of India should be repealed. There is no second opinion about the fact that the cyber law of India needs urgent reforms if not a repeal. However, the companies like Google, Facebook, Microsoft, Yahoo, etc cannot complain now when they did not complain earlier at the time of IT Act 2008, opines Praveen Dalal. Now the IT Act 2000, as amended by the IT Act 2008, is the law of the land and these companies must follow the same, suggests Dalal.

It seems these companies are in hot water as they have not complied with Indian cyber laws requirements and now they cannot turn back and question the very same cyber law that they silently endorsed earlier.

DOT India Must Investigate Reliance Websites Blocking Case

2012-01-14T03:07:00.000-08:00

The department of information technology (DIT) is the concerned department that deals with issues pertaining to websites blocking in India. DIT has prescribed a standard procedure if an individual or company wishes to get a website blocked in India. Such procedure has been prescribed under the information technology act 2000 (IT Act 2000) and its rules that is the cyber law of India.

In a recent criminal case, a trial court of Delhi has asked representatives of companies like Google, Facebook, Yahoo, Microsoft, etc to appear in person. If these companies fail to make a proper representation and comply with Indian laws, Indian government can block their websites in India.

Every country has this right to block websites to enforce its national laws and India is not unique in adopting this approach. However, the laws of website blocking must be uniformly applied without any discrimination. If foreign websites and companies are treated stringently then domestic websites and companies must also be treated similarly.

According to Praveen Dalal, managing partner of law firm Perry4Law and leading cyber expert of Asia, Websites can be “Legally Blocked” in India on the direction of a Competent Court of India if these Websites fail to “Comply” with such Court’s Directions. Further, Websites can also be blocked in India if the Designated Officer, appointed by Indian Government, Directs an Indian Government Agencies like Computer Emergency Response Team, India (CERT-IN) to block such Websites, informs Praveen Dalal.

Clearly, there is no provision where private individuals or companies can block websites according to their own whims and fancies. Recently, doubts about the legality of websites blocking by Reliance entertainment have surfaced. If DIT wishes to maintain a neutral and justice oriented approach towards all companies and websites, then it must investigate whether Reliance entertainment has blocked such site legally or illegally?

If telecom companies are allowed to block websites by bypassing Indian cyber law, then the entire purpose of the same is frustrated. Further, in such situations it is wrong to ask companies like Google, Facebook, Yahoo, Microsoft, etc to comply with Indian laws.

DIT must first set its own home in order so that its can ask others to follow its directions. This episode of Reliance has put a question mark upon the very system that has been used in India to block domestic and foreign websites. We hope Reliance in general and DIT in particular would publicly come up with an explanation in this regard.

Has Reliance Entertainment Blocked Websites Illegally In India?

2012-01-13T22:20:00.000-08:00

Broadly speaking, websites blocking in India can be done either by a court order or by an order of competent authority of Indian government. There is nothing that allows private individuals or companies to block websites on their own and in their self interests. It is also now well settled that Indian government can and should block offending websites if they fail to comply with Indian laws.

Many US based websites and social media platforms are showing great reluctance to comply with Indian laws and requests originating out of the same. These include companies like WordPress, Google, Facebook, etc. Similarly, many Indian websites may be involved in copyright violations and other contraventions and may not be responsive to demands originating from US. Naturally, countries have no other option but to block such websites in their respective jurisdictions either by a court order or by enacting draconian laws like SOPA and PIPA.

However, such blocking of websites by any country must be done in a proper manner. According to Praveen Dalal, managing partner of law firm Perry4Law and leading techno legal expert of India, Websites Blocking in India by Judiciary must be Just, Reasonable and Fair. There should not be an “Unreasonable” or “Casual Approach” towards Blocking of Websites in India by Indian Courts. If Websites are “Violating” Laws of India and they have been “Notified” to this effect and still they “do not Remedy the Situation”, then the Safe Harbour Protection under Indian Information Technology Act, 2000 is “Lost” and such Websites/Owners can be Prosecuted in India, informs Praveen Dalal.

Such Websites can be “Legally Blocked” in India if they fail to “Comply” with Court’s Directions or Directions of Indian Government Agencies like Computer Emergency Response Team, India (CERT-IN) that are duly ordered in this regard by a Designated Officer, informs Praveen Dalal.

In this background we must analyse the recent blocking of foreign websites in India. Recently, Reliance Entertainment has once again convinced the court to issue an order in its favour or at least it is interpreting it so. The broadband customers of Reliance were not able to access certain legitimate file sharing/hosting websites as Reliance blocked such sites. Hints have been given that CERT-In has not been involved in this process at all and Reliance blocked the website unilaterally. The same websites were accessible on the networks of other ISPs.

Naturally, the question arises has the Delhi High Court ordered such blocking of websites? The relevant portion of order of Delhi High Court reads:

“One can also not lose sight of the fact that film piracy in respect of such new release is not uncommon and judicial note of this fact can be taken. In the facts of this case as detailed above, in my view plaintiff (Reliance) has succeeded in making a, prima facie, case in its favour. Plaintiff has exclusive copyright over the film “DON2” which is yet to be released. For the forgoing reasons, defendants and other unnamed and undisclosed persons (websites), are restrained from copying, recording or allowing camcording or communicating or making available or distributing, or duplicating, or displaying, or releasing, or showing, or uploading, or downloading, or exhibiting, or playing, and/or defraying the movie “DON2” in any manner without a proper license from the plaintiff or in any other manner which would violate/infringe the plaintiff’s copyright in the said cinematograph film “DON2” through different mediums like CD, DVD, Blue- ray disc, VCD, Cable TV, DTH, Internet services, MMS, Pen drives, Hard drives, Tapes, CAS or in any other like manner”.

Obviously this is a simple order of temporary injunctions and not blocking of any website whatsoever. On what basis Reliance Entertainment, as an Internet service provider (ISP), blocked websites in question is still not clear. In fact, from the bare reading of these facts and order, it seems Reliance Entertainment illegally blocked such websites in India.

Cert-In must investigate this matter unless it has itself given permission to block such websites. However, this does not seem to be the case and now it is for the Reliance Entertainment and Cert-In to explain this unreasonable websites blocking and Internet censorship behaviour.

Indian Government Can And Should Block Offending Websites

2012-01-13T11:05:00.000-08:00

Lots of hue and cry has been seen these days due to the stern warning of Delhi High Court to block websites that do not comply with Indian laws and legal demands arising out of the same. It seems the mainstream media is not understanding the situation and just hysterically reporting the matter for the sake of reporting.

The better news is that the Indian government has sanctioned prosecution of websites and social networking platforms like Facebook, Google, Microsoft and Yahoo India over objectionable content on their sites. Now the question arises is blocking of Facebook, Google, Microsoft, Yahoo, etc in India is required? Can Indian government block such websites and should it block such websites?

The answer is very simple. Yes it can and in fact Indian government should block all such websites that do not comply with Indian laws as in force. Few of us already believe that such websites must be blocked in India if they violate copyright and other laws of India and fail to comply with them despite them being suitably notified.

In fact, Indian government has already started the process in this regard. Filing its reply in the trial court the government gave its nod to invoke serious charges against the accused websites.

Meanwhile, the trial court on Friday adjourned till March 13, the hearing in the case of 21 social networking sites allegedly hosting objectionable content. The court has directed the external affairs ministry to serve the summons issued to foreign-based social networking sites and websites. The efforts of trail court are worth praising and let us hope that these efforts would come out with a concrete result.

So what is the law of India in this regard? According to Praveen Dalal, managing partner of law firm Perry4Law and leading techno legal expert of India, Websites Blocking in India by Judiciary must be Just, Reasonable and Fair. There should not be an “Unreasonable” or “Casual Approach” towards Blocking of Websites in India by Indian Courts. If Websites are “Violating” Laws of India and they have been “Notified” to this effect and still they “do not Remedy the Situation”, then the Safe Harbour Protection under Indian Information Technology Act, 2000 is “Lost” and such Websites/Owners can be Prosecuted in India, informs Praveen Dalal.

Thus, as far as prosecution of these accused websites are concerned that is perfectly legal as per Indian laws. Now let us examine the desirability of blocking of such websites if they do not comply with orders of Indian courts. Websites can be “Legally Blocked” in India if they fail to “Comply” with Court’s Directions or Directions of Indian Government Agencies like Computer Emergency Response Team, India (CERT-IN) that are duly ordered in this regard by a Designated Officer, informs Praveen Dalal. So even blocking of such websites is justified and legal in India.

I am sure when the Delhi High Court would hear the accused websites lawyers in next hearing; the offending contents would be already removed by these websites. There was no need to drag the matter to such an extent and the offensive material should have been deleted earlier. All that was required to be seen was whether the offending material in question violates any law of India. If it does the material must be removed after the communication in this regard is duly made to the concerned website.

You have a right to speech and expression but you cannot defame others and post pornographic materials upon sites. The poster of such material is definitely liable for punishment but even the Internet intermediaries like websites and social media websites loose their safe harbour protection if they fail to exercise due diligence.

There is nothing new in this position as even US laws like Digital Millennium Copyright Act (DMCA) 1998 do not extend safe harbour protection if the internet intermediary fails to observe due diligence. When these websites are following similar norms, rather more stringent one, in US why they are reluctant in doing so in India. The entire episode has shown just one thing that these websites do not wish to follow Indian laws and if they cannot be successfully tried in India, blocking of such websites is a good option.

I am a firm believer of civil liberties in cyberspace and am against unreasonable and illegal technology control, e-surveillance, Internet censorship and websites blocking, but i also believe that laws of various countries must be followed by all as well. Thus, Indian government and courts can and should block these websites in India if they keep on ignoring Indian laws anymore. Of course, those who wish to access such websites in India can still access the same through anti censorship mechanism.

Should Wordpress.Com Be Blocked In India For Copyright Violations?

2012-01-08T22:28:00.000-08:00

A Wordpress.Com hosted blog named legal locus, managed by author/owner Raghu Vamsy Dasika, has recently engaged in copyright violation. These things are common in cyberspace and so are the redressal mechanisms to resolve copyright infringement complaints.

The article e-banking in India is not safe has been posted without our approval. Even another article titled mobile banking cyber security is required in India has been posted without permission. Complaints with Wordpress.Com were made on three different grounds yet Wordpress is adamant upon using DMCA procedure to remove apparent copyright violating posts.

What I have realised from this episode is that lack of international harmonised cyber law is the main problem as we have no universally applicable cyber law. Situations like these suggest that an international cyber law treaty is urgently required. Strangely, intellectual property rights (IPRs) are protected by TRIPS Agreement at the international level to which both India and US are parties. Despite this Internet intermediaries like Wordpress have developed their regional procedures with great disregard to International comity and cooperation.

The real problem is that when there is a clear copyright violation, insisting upon following a DMCA notice procedure by a non citizen and international entity is more a problem and façade and a supporting tool to copyright infringer than a solution. The US government in general and US Department of Justice in particular must device some mechanism so that sites like Wordpress.com must comply with international laws as well especially when countries like India and US are both parties to the TRIPS Agreement. Otherwise such episodes can affect mutual harmony and international relations between various countries.

Similarly, the Indian department of telecommunication (DoT) in general and computer emergency response team, India (Cert-In) in particular must device some mechanisms to make companies like Wordpress.Com liable for cyber crimes and IPRs violations if the matter has been brought to their knowledge. If such websites fail to comply with Indian laws, they should be blocked in India. This is more so if a website continuously flouts Indian laws. Wordpress is consistently denying removal of copyright infringing articles from its platform. It seems Wordpress policy and TOS is encouraging copyright violations than curbing the same. If this is not enough, Wordpress is also engaging in censorship of blogs unilaterally without any information to the blog owners.

Now the big question is what should Indian government do to make sites like Wordpress follow Indian laws? If a site or platform has no base in India, it would obviously prefer to apply the law of its country. However, this does not solve the problem of copyright violations and cyber crimes committed by using such platform in India. Blocking of such platform in India may be a viable option to get the Indian laws enforced at such platforms.

However, in India there are no rules and mechanisms through which private individuals can request blocking of websites like Wordpress.Com. India must amend its rules in this regard so that private individuals can enforce their rights as well.

Alternatively, DoT and Cert-In can act on the basic of public information like the present article after being satisfied of a prima facie case in this regard. Sufficient is to say that when copyright violation is apparent on the face of a case, that should be sufficient ground for DOT and Cert-In to block a site if it fails to act even after a written notice pointing towards such copyright violation. Let us see how US Department of Justice, DoT and Cert-In reacts to this proposal.

Consumer Protection (Amendment) Act, 2011 Proposes E-Filing

2012-01-08T01:22:00.000-08:00

Consumer Protection Act, 1986 is one of the most pro active laws of India. It was serving its legislative purpose very well till information and communication technology (ICT) related issues overshadowed its utility. Telecom disputes and consumer protection in India received biggest jolt when the Supreme Court of India ousted the jurisdiction of consumer forums over telecom related disputes. The Supreme Court order declared that in case of telecom disputes, consumer forums/courts do not have jurisdiction as appropriate remedy is by way of arbitration.

This was not a good decision and it needs to be “Reviewed” by a Larger Bench of Supreme Court, suggests Praveen Dalal, Leading Techno Legal Expert of India and managing partner of techno legal ICT law firm Perry4Law. While the ambit, scope and merit of the order is debatable and controversial, yet it would be a good idea if the Consumer Protection Act (CPA) is properly amended to neutralise this decision, opines Dalal.

According to Dalal, the CPA was enacted long time back and contemporary ICT related disputes and dispute resolution mechanisms were well beyond Parliament’s contemplation at that time. However, it is high time for the Department of Consumer Affairs in general and Parliament of India in particular to bring suitable amendments in the CPA to make it more effective and responsive, suggests Dalal.

It seems the Parliament of India has agreed with the suggestions of Praveen Dalal regarding use of ICT for consumer dispute resolution mechanism in India. The proposed draft Consumer Protection (Amendment) Bill 2011 has now suggested using electronic mode for filing consumer complaints to the District Forum.

This is a good step in the right direction, says Praveen Dalal. However, the proposed Amendments have still to “Nullify” the decision of Supreme Court regarding Telecom Disputes in India. It would be a good idea if the Parliament of India also includes a provision to this effect in the proposed Bill, suggests Dalal.

These are good suggestions and hopefully Indian Parliament would incorporate them while passing the ultimate amending bill.

UIDAI Thinks It Is Above Indian Constitution

2012-01-07T06:36:00.000-08:00

Unique Identification Authority of India (UIDAI) is managing one of the most controversial projects of India known as Aadhar project of India. Till now it is well known and established that Aadhar project of India is unconstitutional, undemocratic and anti parliamentarian. This is also the reason that in all probability Aadhar project of India would be scrapped.

Although UIDAI framed a legal framework titled National Identification Authority of India Bill-2010 (NIDAI Bill 2010) yet techno legal experts like Praveen Dalal out rightly rejected such Bill. He maintained that in the absence of various Procedural and Constitutional Safeguards in the proposed Bill, both Aadhar Project and UIDAI were Unconstitutional. Even today, Aadhar Project and UIDAI are Unconstitutional, opines Praveen Dalal.

However, UIDA persisted in its endeavours without meeting the constitutional requirements and the NIDAI Bill 2010 was finally rejected by the Parliament's standing committee on finance. The panel unanimously recommended that the government should withdraw the present NIDAI Bill 2010 and bring a new one. Further, the committee also found the Aadhar project directionless and recommended that the project should reviewed by bringing in a fresh Bill. This seems to be acceptance of the suggestions provided by experts like Praveen Dalal and endorsing the concerns raised by Aadhar Watch Initiative of India.

So for the time being the UIDAI is functioning under an executive order of the ministry of planning. So legally Aadhar project and UIDAI are working without any legal framework and with great disregard to the constitutional requirements. If this was not enough, UIDAI director general R.S. Sharma believes that the authority will take up the legal framework matter at the Union cabinet level and continue to function as per the mandate of the planning ministry.

He is of the opinion that the need for legislation was felt to give a separate and independent role to the UIDAI so that the process becomes fast, easy and flexible but in case any proposed Bill is not passed, work of the authority is not going to be affected.

This is a strange opinion that shows how our constitution and parliamentary functioning is of no significance to the executive of this nation. The executive branch of Indian constitution is simply bypassing the Indian parliament and constitution of India with great disregard to the constitutional safeguards. This explains how the Aadhar project and UIDAI continued unconstitutionally for such a long period of time. This is also a warning that constitutional failure is imminent if this approach continues for long.

Cloud Computing in India Is Still Not Trusted

2012-01-06T02:15:00.000-08:00

Cloud computing in India has not been able to generate trust among various cloud computing users. As per the research and studies of Perry4Law and Perry4Law Techno Legal Base (PTLB), cloud computing in India is risky and India is not ready for cloud computing. Now even other companies have endorsed this conclusion and it has been reported that chief information officers (CIOs) in India are not comfortable using cloud computing in India.

India has no legal framework for cloud computing and cloud computing regulations in India are missing. India has no dedicated privacy laws, data protection laws and data security laws. Even leading techno legal expert of India Praveen Dalal believes that India should not use Software as a Service (SaaS) and cloud computing for crucial governmental services.

In these circumstances, use of cloud computing in India is a landmine for privacy violations. Further, the cyber law of India also prescribes cyber law due diligence in India that must be adhered to by cloud computing service providers in India. Even cloud computing due diligence in India is required to be followed. Similarly, the cloud computing security in India must also be ensured.

In these circumstances, it is safe to conclude that India is not ready for cloud computing and before conditions are not made favourable cloud computing should not be used in India.

Securing Critical National Infrastructure Of India From Cyber Attack

2012-01-05T22:03:00.000-08:00

This is the updated version of my previous article on similar topic. Lots of changes have taken place since then and it is essential to incorporate those changes in this new piece of article.

The cyber security trends in India 2011 by Perry4Law Techno Legal Base (PTLB) indicate that cyber security in India is still ignored by various stakeholders. Whether it is banks or strategic computers of Indian government, all of them have proved to be vulnerable to cyber attacks.

Highly sophisticated malware like Duqu, Stuxnet, etc targeted India in the year 2011 and India is still investigating the Duqu malware. Indian nuclear facilities, automated power grids, satellites, defense networks, governmental informatics infrastructures, etc are vulnerable to sophisticated cyber attacks. It is still not clear whether Indian satellites are safe from cyber attacks.

The supervisory control and data acquisition (SCADA) systems may be the new cyber attack priority for cyber criminals and rouge nations. We must ensure sufficient cyber protection of SCADA systems in India in general and critical infrastructure in particular. In short, Indian defense and security against cyber warfare needs to be streamlines to meet the growing cyber attacks upon its critical infrastructures.

Although cyber security in India has started gaining attention of Indian government yet the cyber security initiatives of Indian government are still far from satisfactory. We do not have a cyber security policy in India that clearly stipulates the cyber security strategy of India.

Cyber security of India is also an essential part of national ICT policy and strategy of India. However, despite some very good suggestions by experts, India has not taken cyber security seriously. On the other hand, the International Community is focusing really hard to make cyber security an essential part of their day to day lives.

Internationally, it is an accepted fact that to ensure effective cyber security, there must be a coordinated and collaborative approach, metrics and assessment tools must be developed, an effective legal and policy framework for cyber security must be created and the human dimension of cyber security must be addressed.

Although there are numerous aspects of Cyber Security Policy of India yet Critical Infrastructure Protection in India and Critical ICT Infrastructure Protection in India are the most important aspects of the same, informs Praveen Dalal, leading techno legal expert of India and managing partner of New Delhi based techno legal law firm Perry4Law. The Critical National Infrastructure of India is under constant cyber attacks and India must urgently do something in this regard, informs Dalal.

Experts like Praveen Dalal also feel that India does not have strong and effective cyber laws to deal with issue pertaining to critical infrastructure. India is blind towards cyber law, cyber security and cyber forensics requirements. The IT Act, 2000 is a poorly drafted law and badly implemented legislation. It is weak and ineffective in dealing with growing cyber crimes in India as it is the most soft and cyber criminal friendly legislation of the world.

Thus, on all the fronts of policy, legal framework and effective cyber security initiatives, India has failed to give proper attention. In these circumstances, critical national infrastructures of India are at grave cyber security risks. They are vulnerable to cyber threats and cyber attacks. India must urgently do something in this regard as soon as possible.

Aadhar Project Of India Is Unconstitutional Says Praveen Dalal

2011-12-21T23:06:00.000-08:00

Aadhar project of India or unique identification project of India (UID project of India) is a project that is a classic example of lack of management and planning. Aadhar project has been launched despite numerous shortcomings and deficiencies and as a futile project. Techno legal experts of India have been warning against the continuance of Aadhar project and have suggested that it should be scrapped.

The futility of Aadhar project and UIDAI was very apparent from the very beginning but Indian government and unique identification authority of India (UIDAI) kept on wasting crores of public money without any benefit. Finally, Aadhar project of India may be scrapped.

According to experts like Praveen Dalal, managing partner of techno legal ICT law firm Perry4Law and a Supreme Court lawyer, there is no second opinion about the fact that Aadhar Project and UIDAI are “Unconstitutional” in the absence of a “Constitutionally Sound Law” in this regard. This is more so when there are no dedicated Privacy Laws in India and Data Protection Laws in India, opines Praveen Dalal.

Even after the National Identification Authority of India Bill 2010 (NIDAI Bill 2010) would have become an applicable law, both Aadhar and UIDAI would have remained “Unconstitutional”. This is so because the “Constitutional Safeguards” that are required to make Aadhar/UIDAI Constitutional were still missing from the proposed Bill.

In fact, a parliamentary committee has rejected the NIDAI Bill 2010, inflicting a severe blow to UIDAI chairman Nandan Nilekani and raising doubts about Prime Minister Manmohan Singh's pet project. This decision of parliamentary committee seems to be an acceptance of suggestions of experts like Praveen Dalal.

The parliamentary committee has recommended that the government should review or reconsider the project by a bringing in a fresh Bill. The committee has said that the Bill and the project are not acceptable in the present form.

Privacy laws in India and privacy rights in India have always been ignored. We have no national privacy policy in India as well. Data protection laws in India are missing and so are data privacy laws in India. Privacy, data protection and India seem to be separable and unrelated concepts.

Indian government launched projects like Aadhar, National Intelligence Grid (Natgrid), Crime and Criminal Tracking Network and Systems (CCTNS), National Counter Terrorism Centre (NCTC), Central Monitoring System (CMS), Centre for Communication Security Research and Monitoring (CCSRM), etc. None of them are governed by any Legal Framework and none of them are under parliamentary scrutiny. It must be appreciated that intelligence gathering is not above privacy rights in India.

In reality, Aadhar project and UIDAI are booty sharing mechanisms meant for few companies. Praveen Dalal has been constantly suggesting that Aadhar project must be supported by a Techno Legal Framework that must be supplemented by robust Cyber Security, Privacy Protection and Data Protection.

Indian government, Aadhar project and UIDAI are hiding truth from Indian citizens and are fooling them. However, sooner or later the truth was bound to be revealed. Besides experts in India now even the home ministry of India has been opposing the Aadhar project and UIDAI.

Aadhar project is the most evil project of India that aims at strengthening illegal and unconstitutional privacy violation and e-surveillance in India. Internet censorship in India has already increased multifold. Censorship of Internet in India is a hint towards the growing hunger for e-surveillance by Indian government.

The truth of Aadhar project and UIDAI is too frightening to elaborate. Aadhar project and UIDAI have evil intentions that are executed under the façade of welfare and social good. Both Indian government and UIDAI are fooling Indians by using the façade of benefits and welfare. Aadhar project and UIDAI are big troubles. Still the PMO is supporting the unconstitutional Aadhar project and UIDAI.

Aadhar project and UIDAI are big brother project. Nandan Nilekani is wrong regarding Aadhar project. It is high time that Aadhar project of India and UIDAI must be scrapped. There is no sense in wasting any more time and money on a project like Aadhar that has no legal and constitutional basis to continue.

Aadhar Project Of India May Be Scrapped

2011-12-08T21:19:00.000-08:00

Aadhar project of India or unique identification project of India (UID project of India) is one of the projects that have been imposed upon India and Indian citizens by Indian government. From the very beginning the futility of Aadhar project of India and UIDAI was apparent. However, Indian government kept on wasting crores of hard earned public money for the sake of commercial benefits of few Indian and foreign companies. In reality, Aadhar project and UIDAI are booty sharing mechanisms meant for few companies.

Techno legal expert and Supreme Court lawyer Praveen Dalal who is managing partner of techno legal ICT law firm Perry4Law has been constantly suggesting that Aadhar Project must be supported by a Techno Legal Framework that must be supplemented by robust Cyber Security, Privacy Protection and Data Protection.

In the absence of these Procedural and Constitutional Safeguards, both Aadhar Project and UIDAI are Unconstitutional, says Praveen Dalal. So much so that even after the passing of the National Identification Authority of India Bill 2010 (NIDAI Bill 2010), both Aadhar Project and UIDAI would “Remain Unconstitutional”, opines Praveen Dalal. We need an altogether different law than NIDAI Bill 2010 suggests Praveen Dalal.

Indian government, Aadhar project and UIDAI are hiding truth from Indian citizens and are fooling them. However, sooner or later the truth was bound to be revealed. Besides experts in India now even the home ministry of India has been opposing the Aadhar project and UIDAI.

Aadhar project is the most evil project of India that aims at strengthening illegal and unconstitutional privacy violation and e-surveillance in India. Internet censorship in India has already increased multifold. Censorship of Internet in India is a hint towards the growing hunger for e-surveillance by Indian government.

The truth of Aadhar project and UIDAI is too frightening to elaborate. Aadhar project and UIDAI have evil intentions that are executed under the façade of welfare and social good. Both Indian government and UIDAI are fooling Indians by using the façade of benefits and welfare. Aadhar project and UIDAI are big troubles. Still the PMO is supporting the unconstitutional Aadhar project and UIDAI.

Aadhar project and UIDAI are big brother project. Nandan Nilekani is wrong regarding Aadhar project. It is high time that Aadhar project of India and UIDAI must be scrapped. Sensing the gravity of the situation a parliamentary committee is set to reject the NIDAI Bill 2010, inflicting a severe blow to UIDAI chairman Nandan Nilekani and raising doubts about Prime Minister Manmohan Singh's pet project. This decision of parliamentary committee seems to be an agreement with the suggestions of experts like Praveen Dalal.

Parliament's standing committee on finance, headed by Yashwant Sinha of the BJP, held deliberations on the controversial NIDAI Bill 2010 for a year. It considered the suggestions and recommendations of various experts in this regard. The committee's draft report giving the thumbs down to the NIDAI Bill 2010 is ready.

Sources in the panel indicated that the decision to recommend that the government should withdraw the present NIDAI Bill 2010 and bring a new one was taken "unanimously". Even Congress members found the project "directionless". It is learnt that the draft report has recommended that the government should review or reconsider the project by a bringing in a fresh Bill. The committee has said that the Bill and the project are not acceptable in the present form. The PMO must seriously think about continuation of Aadhar project now.

Google Outcry Lack of Proper Internet Intermediary Law In India

2011-12-07T09:28:00.000-08:00

Internet intermediaries in India have started showing their dissatisfaction towards the draconian policies and rules of Indian government pertaining to Internet and its use. E-surveillance in India and surveillance of Internet traffic in India have increased to a considerable limit that now requires judicial scrutiny. Censorship of Internet in India should be challenged as soon as possible in the larger interests of Indian Internet users.

Intermediaries liability for cyber law due diligence in India has been extended to such levels that Internet intermediaries are now finding it difficult to comply. Internet censorship in India has become a big nuisance for these Internet intermediaries. Naturally these Internet intermediaries cannot remain silent anymore.

In fact, Yahoo has filed a petition raising the questions regarding the right to privacy of a company that stores sensitive data of its customers and users and to what extent authorities can coerce it to part with the information considered necessary to either track terror perpetrators or thwart future attacks.

Now Internet intermediaries in India have been asked to pre screen contents before they are posted on their websites. India wants companies like Google and Facebook to censor users’ contents before they are posted. Naturally this is an unreasonable and impractical demand that Internet intermediaries cannot fulfill.

Google has reacted to this dictate by responding that they follow the law regarding removal of illegal contents. It has also clarified it stand that when content is legal but controversial it do not remove it because people's differing views should be respected, so long as they are legal. Further, even where content is legal but breaks Google’s own terms and conditions, it is removed once Google is notified about the same.

Internet intermediaries are now complaining that India has no clear guidelines about what constitutes offensive and hateful contents. Sources from Indian government claims that the officials had got instructions to draw up the guidelines in this regard soon. Indian government is working upon the guidelines that may take three/four months to formulate. Let us hope that Indian government would formulate suitable and sensible guidelines in this regard.

Censorship Of Internet In India

2011-12-07T01:49:00.000-08:00

Internet censorship in India has crossed all the limits. Firstly, we have a bizarre cyber law of India that provides for Internet censorship without any procedural safeguards. Secondly, India has formulated rules that have prescribed stringent Internet intermediary liability in India. Thirdly, there are no dedicated data protection and privacy rights in India.

All these loopholes are allowing Indian government and its agencies to ask for data, information and records from Internet intermediaries of India. Surprisingly, no court order is required to ask for such sensitive and personal information from Internet intermediaries in dominant majority of cases.

Intermediaries liability for cyber law due diligence in India has become very stringent after the information technology amendment act 2008 has been notified. Information technology act 2000 (IT Act 2000) now carries many e-surveillance, websites blocking and Internet censorship provisions.

Surveillance of Internet traffic in India has become a nuisance for internet intermediaries of India. In fact, Internet intermediaries like Yahoo has already dragged Indian government to court to resist illegal and unconstitutional e-surveillance demands of Indian government.

In its petition, Yahoo has raised questions on the right to privacy of a company that stores such sensitive data and to what extent authorities can coerce it to part with the information considered necessary to either track terror perpetrators or thwart future attacks.

It is high time for constitutional courts of India to take notice of these unconstitutional developments and stop the initiatives of Indian government and its agencies before it is too late.

Is SCADA The New Cyber Attack Battlefield For India?

2011-11-20T00:41:00.000-08:00

The supervisory control and data acquisition (SCADA) has been in limelight these days. This is because malware are specifically designed these days to target SCADA systems. It is not the case that malware were not used in the recent past to target SCADA systems but their sophistication and intensity has increased tremendously these days.

SCADA generally refers to industrial control systems (ICS) like computer systems that monitor and control industrial, infrastructure, or facility-based processes. The SCADA systems may involve a human machine interface (HMI), a supervisory system managing the processes, remote terminal units (RTUs) interacting with the supervisory systems, programmable logic controller (PLCs) usable as field devices, etc.

An attack upon SCADA is essentially an attack upon the critical infrastructure of a nation. Recently, cyber criminals used SCADA to burn out a public utility water pump in United States. Malware like Stuxnet and Duqu have further created nuisance for US and other nations. These incidences have also forced the defense advanced projects research agency (DARPA) of US to further strengthen its offensive and defensive cyber capabilities.

In the Indian context, the critical infrastructure protection of India is not in good shape. There is neither an implementable cyber security policy of India nor there is any critical ICT infrastructure protection policy of India. Even the Indian nuclear facilities may not fully cyber secure.

As more and more ICT would be used for critical infrastructures like SCADA, the risks of cyber attacks sabotaging the same are great. India has already received enough hints about the possible cyber warfare, cyber espionage and attacks upon its critical infrastructure. It is high time for India to protect its critical infrastructure from local and foreign cyber threats.

Indian Higher Legal Education Needs Reforms

2011-10-16T23:30:00.000-07:00

Higher education in India is suffering from many deficiencies and irregularities. These include lack of practical training, academic nature of education, absence of skills development, corruption, lack of research capabilities, etc.

Universities and colleges are engaging in all sorts of undesirable behaviours and practices and this is affecting the higher education and research oriented courses like PhDs. Indian government is also not very much enthusiastic in curing these deficiencies and eliminating the irregularities.

This guest column is analysing all these irregularities and illegalities happening in the higher education field in India. Law minister Salman Khurshid and HRD Minister Kapil Sibal must urgently intervene to save higher education in India in general and higher legal education in India in particular.

There is no second opinion about the fact that legal education in India needs urgent reforms. This is more so regarding higher legal education in India that is in really bad shape. Despite many suggested measures, higher legal education in India is still in a very poor state.

This is also the reason why continuing professional legal education in India has failed miserably. Further, this is also the reason why PhDs in India are almost extinct as far as legal education is concerned.

Naturally, higher legal education in India is in doldrums. Vast spread corruption has destabilised the higher education in India. These are serious issues that must be resolved by both the education minister and law minister of India.

Higher legal educational reforms in India must comprise of many essential elements. Transparency to support for higher legal research and education in India are essential components of the same.

These days news of international cooperation in the field of education between India and other nations is in abundance. However, that is just stressing upon the outer shell without curing the diseased inner core of decaying educational system of India.

India needs to urgently take care of the fallacies and deficiencies of its educational system that is not serving any purpose except brain drain. The sooner we do this the better Indian education system would be.

Is Corruption Undermining The Higher Education In India?

2011-10-14T05:50:00.000-07:00

India is projecting itself as a global education hub. This claim seems to be exaggerated and far from realities. Before claiming India as a global educational hub we must have a reality check. Do we have qualitative education in India? Do we encourage research and novelty in India? Do we discourage corruption and arbitrariness in India so that education can be qualitative?

The answers to these questions seem to be in negative. Neither have we qualitative education in India nor our educational system is free from arbitrariness and corruption. Our educational system is academic in nature that is far from developing skills and practical acumen in our educated masses.

The truth is that PhDs in India are dying despite our boastful claims. Higher education in India needs to be rescued from arbitrariness, lack of transparency, corruption and other vices.

Take the example of higher legal education in India. The truth is that higher legal education in India is in jeopardy. The same is so tardy, troublesome and difficult to be successfully achieved that a majority of researchers do not wish to engage in the same. Even if some dare to go for higher education in India, the flawed educational system of India does not allow successful completion of the same.

While India is making lots of efforts to make Indian educational system qualitative in nature yet till corruption and arbitrariness is eradicated all such efforts would be futile.

Time has come to question and punish those who have made Indian educational system a menace and breeding ground for corruption. Unless this is done, all educational development initiatives of India would fail.

Higher Legal Education In India Is Dying

2011-10-14T03:45:00.000-07:00

In this guest column, Praveen Dalal, managing partner of India’s exclusive techno legal ICT and IP law firm Perry4Law, has shared his recent communication with Kapil Sibal and Salman Khurshid. This communication has drawn the attention of these two ministers towards the decaying standards of higher legal education in India.

Kapil Sibal and Salman Khurshid are two of the most Important and Learned Politicians of India. If we have to take care of the “Deteriorating Conditions” of Higher Legal Research and Education in India, their “active participation and continuous attention” is a must.

While Kapil Sibal has been working hard in the field of Higher Education Cooperation with United States and other Countries, yet in our own Nation Higher Education Standards are not upto the mark and are prone to various “Corrupt Practices” and “Arbitrary Decision Making”.

Recently, I sent E-Mails to both Kapil Sibal and Salman Khurshid and brought to their notice the deteriorating conditions of Higher Legal Education in India. This is the excerpts/relevant portion of the same.

“I hope this E-Mail would find you in the best your Health and Strength.

Although I can wish a Good Health for You but I am afraid I cannot expect the same from our Dying Educational System, especially our Legal Educational System. I am personally acquainted of this decaying of our Legal Education in India.

Higher Legal Education is a must for Country like India. Being a Pioneer in Legal Fraternity and then as a Productive and Useful Member of Parliament, You are Yourself aware of the importance of Legal Education in India. However, Higher Legal Education in India is in “Doldrums”.

Corruption and Lack of Transparency has eaten up the Good Legal Standards and quality that was once a “Benchmark” of our Legal Education. Whether it is the “Funds” for PhD Candidates or other Financial and Non Financial Facilities, Legal Researchers are finding it really difficult to do PhD except by “Compromising” with Moral and Ethical Standards.

A person like Me, who believes in Transparency and Lack of Corruption, is seldom satisfied with the Legal Education of India. While I would prefer a Foreign University to do my PhD due to these “Irregularities” yet I hope You would not allow this “Negative Precedent” to repeat in the future. I hope You can do a “Great Service” to this Nation by eliminating the “Factors” that are responsible for the deaths of PhD in India”.

If PhD is a “Breeding Ground” for Corrupt Practices and Irregularities, there is no scope for Higher Legal Education in India. I hope the two Learned Ministers would take an immediate and urgent note of this “Precarious Situation”.

Civil Liberties And National Security Must Be Reconciled

2011-09-21T04:54:00.000-07:00

Nations across the world are ignoring civil liberties for the false claims of national security. This is a disturbing trend especially when the United Nations is silent on the protection of human rights in cyberspace. This applies to India as well that has draconian laws like information technology act 2000 to violate civil liberties in cyberspace.

Unfortunately, UN has not been able to formulate a universally acceptable legal framework of cyber law and human rights protection in cyberspace. The obvious result is that different jurisdictions have different cyber laws. The only thing common in these cyber laws is that virtually none of them is protecting human rights in cyberspace.

According to Praveen Dalal, managing partner of New Delhi based ICT and IP law firm Perry4Law and leading techno legal expert of India, there is need to have “Reconciliation” between National Security needs of India on the one hand and Protection of Fundamental Rights on the other. I have also sent a communication in this regard to Government of India in the past, informs Dalal.

It seems some segments of Indian government agree with this “reconciliation theory” suggested by techno legal experts of India. For instance, the Union Minister of Communications and Information Technology, Shri Kapil Sibal has said that adequate balance needs to be maintained between needs of ‘privacy of individual’ and ‘genuine security concerns of state’ while dealing with challenges of cyber security.

Another area that deserves the attention of Indian government in general and UN in particular pertains to Human Rights Protection in Cyberspace. According to techno legal experts like Praveen Dalal, presently UN and Human Rights in Cyberspace are two separate issues although they need to be one. Similarly, we have no International Cyber Law Treaty, International Cyber Security Treaty, International Cooperation in Techno Legal fields, etc, informs Dalal.

Interestingly, Kapil Sibal appealed to the global community to collaborate and evolve global protocols in security of information and network. Sibal assured that India stands committed to contribute and cooperate with international community on this issue. It seems at least Kapil Sibal is aware of the details of techno legal issues and that is good news for India.

Ravi Shankaran’s Extradition To India Is Now Doubtful

2011-09-20T05:14:00.000-07:00

Today information and communication technology (ICT) is involved in almost all crimes. Today’s era belongs to cyber crimes and the corresponding cyber forensics capabilities and cyber forensics skills development to solve the same.

Law enforcement agencies, security agencies and intelligence agencies of India need to have good techno legal cyber forensics trainings. However, we have very few cyber forensics research, education and training institutions in India. As a result our law enforcement agencies, security agencies and intelligence agencies are not well equipped to deal with cyber crimes and cyber forensics cases.

Even lawyers and judges are not well versed with techno legal issues and this at times results in acquittal of the accused. While lawyers in India can affords to take techno legal issues lightly yet this casual approach may prove fatal if a well versed and technologically sound lawyer is pitted against them.

This is exactly what happened in the Naval war-room leak case’s investigation. The Central Bureau of Investigation (CBI) is now facing a setback in the extradition of Naval war-room leak case accused Ravi Shankaran.

The secret evidence provided by CBI has been declared to be shaky by the experts appointed by London court. This has demolished the case of CBI to a great extent. The case appears to be falling apart as the UK court-appointed cyber forensic expert has raised doubts over the secret evidence provided by Government of India.

The prosecutors of India had earlier presented secret evidence about an e-mail with an attachment of Sir Creek sent by Commander Virender Rana to a person called Vic Branson of Inmaty company in Belgium, which they claimed was owned by Shankaran.

These attachments they alleged had material which compromised the integrity of India. The Judge noted that the alleged e-mail by Vic Branson to Rana, produced by the prosecution as the main evidence against Shankaran, had no date and time and an independent court approved expert has confirmed that it is not possible to create an email, type 11 words, attach 8 documents and then save it all in 2 seconds only.

Cyber forensic expert Jason Coyne has, according to the judge, stated that such an e-mail could not have been sent based on the evidence produced by Government of India.

Earlier James Lewis, representing Shankaran, pointed out that Coyne's conclusion on the e-mail in question "has completely destroyed the Indian Government's case" against Shankaran. The Judge at the City of Westminster Magistrates' Court put off the hearing after a plea from the Crown Prosecution Service John Hardy, who sought time to consult Government of India. The hearing about admissibility of the extradition case against Shankaran, will be held for two days from October 10, District Judge Nicholas Evans said.

In the past as well, the CBI has failed to act in a timely manner while investigating the case of defacement of its website.

Editorial Comments

We just came across some media reports after our posting. Hence the editorial comments. If possible, we would also come up with techno legal expert’s testimony in this regard very soon.

Dismissing reports of a setback in the extradition case involving Ravi Shankaran, main accused in the Naval War Room leak case, the CBI today claimed that a UK-based cyber expert has "wrongly considered" the creation time of email, presented as evidence by it in a London court. The agency said there was "no setback" to it in the case and it will present its views before the Westminster Court on October 10.

CBI will present its argument that the expert has wrongly considered creation time of the 'Temporary' internet file, related to email in question; which is actually an automatic process in the computer system to cache open files, which can be recovered in case of any crash" a senior CBI official said.

Will Indian Courts Accept Technology Ever?

2011-09-19T22:20:00.000-07:00

Technology is most often used in civil cases especially matrimonial cases. Even in criminal cases, video conferencing is frequently used by courts for various purposes. This is the beginning of a larger effort known as e-courts.

We have no e-courts in India till September 2011. This means there is something grossly wrong with our management and expertise in this regard. For instance, we have a single techno legal e-courts research, training and consultancy centre in India.

It is managed by Perry4Law Techno Legal Base (PTLB), the premier techno legal segment of Perry4Law, the exclusive techno legal ICT and IP law firm of India and world wide. We need more such techno legal e-courts centers in India.

Further, there is also reluctance on the part of Indian courts to use technology for legal and judicial purposes. This is also the reason why e-courts could not be established in India till now.

Police, lawyers and judges are finding it difficult to deal with cyber crimes. More sophisticated fields like cyber forensics have yet to be introduced in Indian legal and judicial system. Here is an urgent need to develop cyber skills of police, lawyers and judges in India.

Take the example of a very recent case in this regard. A man who filed his divorce petition through a video conference from Canada has been directed to make a personal appearance in the court on December 15. Second additional family court judge G Manjula passed the order. Personal appearance is a concept that strikes at the very concept of e-courts and video conferencing.

This means courts and judges in India are still not comfortable with the use of technology. However, technological issues would be required to be taken care of by courts and judges in future.

Police, lawyers and judges must stress upon cyber skills development in India. E-learning for lawyers in India must be strengthened. Similarly, techno legal training and courses like cyber forensics trainings in India must also be undertaken by our police force, legal fraternity and judicial community.

The Futility Of Aadhar Project Of India And UIDAI

2011-09-06T09:36:00.000-07:00

The Aadhar project of India and unique identification authority of India (UIDAI) have never been considered to be legal and constitutional. This is because both Aadhar project and UIDAI have been imposed upon India that also without any parliamentary oversight.

In fact Aadhar project and UIDAI are both undemocratic and unconstitutional as they are openly violating various fundamental rights of Indian citizens that also without following the constitutional procedure. Form time to time, experts have been suggesting that Aadhar project and UIDAI must be scrapped.

Indian government, Aadhar project and UIDAI are hiding truth from Indian citizens and are fooling them. However, sooner or later the truth was bound to be revealed. Besides experts in India now even the home ministry of India has been opposing the Aadhar project and UIDAI.

Neither Aadhar project nor UIDIA have been able to provide the mandatory legal framework under which they can operate. Further, both Aadhar project and UIDAI are openly violating various civil liberties like right to privacy in India.

Realising that Aadhar/UIDAI may be challenged in the Indian Courts; a façade was created in the form of National Identification Authority of India Bill 2010 (Bill). The Bill is still to become an applicable law as it has not been approved by the Parliament of India.

However, according to experts like Praveen Dalal, a Supreme Court lawyer and leading techno legal expert of India, even after the Bill becomes and applicable law, both Aadhar and UIDAI would remain “Unconstitutional”. This is so because the “Constitutional Safeguards” that are required to make Aadhar/UIDAI Constitutional are still missing from the proposed Bill.

The Home Ministry has now further identified flaws in the enrolment process followed by the UIDAI, citing cases where people have got UID numbers on the basis of false affidavits. None can doubts that fake UID cards has made Aadhar project further vulnerable to misuse. What is surprising that our Prime Minister Dr. Manmohan Singh has failed to take notice of these unconstitutional and illegal irregularities in the functioning of Aadhar project and UIDAI.

In a note written to the Cabinet Committee on UIDAI headed by Prime Minister Manmohan Singh, the home ministry has questioned the security of the biometric data captured by the UIDAI and pointed out uncertainties in its revenue model.

The UIDAI has sought an additional 15,000 crore to do biometric scanning of all residents of the country through its own registrars, a proposal that is being opposed by the home ministry and the planning commission, as the government has already tasked the census office with the primary responsibility of collecting biometric data of all Indian residents for a National Population register card.

The data collected by the census office is supposed to be shared with the UIDAI and every NPR card will carry the UID number of the card holder. The census office is part of the home ministry and so far has collected biometric data for 30 lakh individuals. The home ministry has urged the Cabinet to restrict the authority's multi-registrar model of biometric enrolment to the already decided level of 20 crore by March 2012.

"The home ministry, the Planning Commission and others have given their comments," Home Minister P Chidambaram said about the UIDAI proposal for more funding recently. He also said that the Cabinet Committee on UIDAI (CCUIDAI) would take a call on the overlap between the NPR and the UIDAI. Why CCUIDAI is allowing futile Aadhar project and UIDAI to continue is still a big mystery?

An Ideal Jan Lokpal Authority Of India

2011-08-29T22:48:00.000-07:00

In this Guest Column, Praveen Dalal, Managing Partner of New Delhi based Techno Legal ICT Law Firm Perry4Law and leading Techno Legal Expert of India, has shared his views about the Jan Lokpal Authority of India. He maintains that the proposed Jan Lokpal Authority of India must be Techno Legal in nature to be most effective.

Till now it is absolutely clear that the proposed Jan Lokpal Law of India must be Techno Legal in nature. The existing Bills are suffering from many “Deficiencies” and absence of “Techno Legal Aspect” is one of them.

For instance, Technology is the Best Whistleblower and a Jan Lokpal Authority or Law that does not believe in this “Technological Use” is bound to be another Authority with practically little benefits and uses. That is why a Strong and Effective Whistleblowers Protection Law in India is urgently required.

However, I wish to cover another related aspect of the proposed Jan Lokpal Law of India. The “Real Strength” of the proposed Jan Lokpal Law of India would be the “Jan Lokpal Authority of India”. If we have a Weak or Ineffective Jan Lokpal Authority in India, the proposed Law cannot serve its purpose.

The first aspect that must be resolved is what should be the “Composition” of the proposed Jan Lokpal Authority of India. I believe that the composition of the proposed Jan Lokpal Authority of India must essentially involve Experts representing fields like Judicial, Legal, Technological, Social Justice, etc.

No matter how many Experts from each field are made part of the Authority, the Authority must be Techno Legal in nature. Preference must be given to Experts who have knowledge of both Technical and Legal aspects.

Another aspect that needs to be considered is the “Nature” of such Authority. Should such authority be a “Constitutional Authority” or can it be a “Statutory Body” under the proposed Jan Lokpal Law of India? If it is a Constitutional Body, what additional efforts we need to make to make it “Functional” immediately? If it is a Statutory Body, it can be Constituted along with the passing of the Jan Lokpal Law of India.

These issues require immediate deliberations before the Parliamentary Standing Committee and they must be resolved while passing the Jan Lokpal Law of India by the Parliament.

Law Students Of India Are Not Getting Practical Training

2011-08-28T06:52:00.000-07:00

Legal education in India is not up to the mark and it requires serious reforms. At the moment, the legal education is not professional in nature as it suffers from being excessive academic in nature and is producing law graduates who lack good research and analytical skills.

This fact came to the knowledge of Justice Markandeya Katju, a judge of the Supreme Court, while addressing an audience of law students at the Dr Ambedkar Law University. Justice Markandeya Katju posed a simple question before the law students who found it difficult to answer.

The question was “what will you do if a client approaches you alleging that the cop refused to register his complaint?". The law students failed to give a satisfactory answer to this question. Justice Markandeya Katju showed his dissatisfaction with the practical knowledge of Indian laws on the part of law students. He also showed his dissatisfaction with the Bar Council of India (BCI), the statutory body governing legal education in the country, for prescribing the syllabus which did not include practical training.

Justice Markandeya Katju opined that mere theoretical classes would not bring the result, unless it is supported by practical training classes. The students should get to know the day-to-day legal problems of common man and the way to get rid of them if the students were imparted practical training by way of participation in free legal clinics. Justice Markandeya Katju further said that the legal education system of India needs radical change. Answering a valley of questions posed by the students, Justice Markandeya Katju at times also complemented them for their brilliant queries and their up-to-date knowledge.

The law students and law graduates need to undergo practical legal training in India. They must stress hard upon legal skills development . In the present era of information technology, e-learning can greatly assist them in achieving this task. Online skills development in India is now possible for legal professionals.

There are some very good online legal research, education and training institutions in India. In fact, institutions like Perry4Law Techno Legal Base (PTLB) are even providing research, education and training in techno legal fields. PTLB is the exclusive techno legal research, education and training institution of India and world that provides online education and training in the fields like cyber law, cyber forensics, e-courts, legal research, legal drafting, digital evidencing, etc.

Law students, law graduates, lawyers, corporate counsels, etc must take full advantage of the research, education and training courses of PTLB so that they are not only well versed with the practical aspects of Indian and foreign laws but also well equipped to deal with techno legal issues like cyber law and cyber forensics.

Indian Whistleblowers Protection Laws Needed

2011-08-28T03:25:00.000-07:00

Now the Indian government has finally shown some interest in bringing the jan lokpal bill of India, it is high time to move towards making it a strong, effective and robust law. Experts have been claiming that the present jan lokpal versions are neither strong nor effective. In fact, they have claimed that the present versions of jan lokpal bills do not address many important issues that must be combined to make the jan lokpal law strong and effective.

Although there are many areas that need to be included in the proposed jan lokpal bill of India yet extending a strong and effective protection to the whistleblowers, who raise their voices against the corruption in India, needs a specific mention and adoption.

In fact, in the year 2004/2005 itself a techno legal whistleblowers protection code was suggested by Praveen Dalal, managing partner of New Delhi based techno legal ICT law firm Perry4Law and leading techno legal expert of India. The code was complete techno legal solution till a proper law was formulated by Indian parliament.

However, even after 6 years of providing of such code, Indian parliament has not deemed it necessary to protect the lives of our heroic whistleblowers that have been loosing their lives one by one.

Till now we have no whistleblowers protection law in India and this is making other laws weak and ineffective. Either people are not willing to come forward or if they come forward they loose their lives.

We have to develop Techno Legal Mechanisms that can safeguard the Information provided by and Details of Whistleblowers, opines Praveen Dalal. If lives of Whistleblowers cannot be Safeguarded, Corruption in India can never be eliminated, suggests Dalal.

India has a bad reputation of “Ignoring Formulation of Essential Laws” and Jan Lokpal and Whistleblowers Protection Laws are classic examples of the same. If Parliament of India keeps on functioning only through “Public Disruptions and Agitations”, that would be a death knell of Democracy and Parliamentary Supremacy, opines Praveen Dalal.

It would be better if parliament of India enacts a strong and effective whistleblowers protection law before this cause is also picked up by Indian masses and it forces again the parliament to succumb to its pressure. This is not the way any Parliament, especially the Parliament of the largest Democracy of the World, should function, says Dalal.

Whistleblowers Protection Law In India

2011-08-27T06:45:00.000-07:00

Just like anti corruption laws, whistleblower protection laws in India have been long ignored by Indian government and Parliament of India. Of course, if the Parliament of India fails to fulfill its constitutional duties of law making, the balance between the three organs of Indian constitution would be disturbed. This also raises the doubt about the very existence of separation of powers under the constitution of India.

Absence of whistleblower protection requirements from various drafts Jan Lokpal bills presented by civil society and Indian government is also the reason why experts are not considering them as ideal and strong. In fact, experts have openly claimed that the suggested Jan Lokpal Bills are not strong and effective. The proposed drafts of Jan Lokpal Bills have failed to incorporate many good suggestions of experts that could have made the proposed law more comprehensive, robust and effective.

One of the areas that require an “Immediate and Urgent Attention” of the Parliamentary Standing Committee constituted in this regard is to ensure a Strong, Robust and Constitutionally Sound Jan Lokpal Law, opines Praveen Dalal, a Supreme Court Lawyer and leading techno legal expert of India. A Strong and Effective Whistleblower Protection Law in India is “Mandatorily Required” for the successful application and functioning of many other Laws, including the proposed Jan Lokpal Law, suggests Dalal.

Presently, whistleblowers are at the mercy of hard core criminals who are least afraid of the law and order of India. This is evident from the killing of many Indian whistleblowers in the past that have raised their voices against the corruption existing in governmental dealings.

It would be a prudent exercise to involve maximum intellectuals and experts by the Parliamentary Standing Committee so that a national consensus in this regard can be obtained.

By confining the Jan Lokpal Bill to the version of either the civil society or government version, the Parliamentary Standing Committee would be doing injustice to India. Further, a Jan Lokpal law without whistleblowers protection is nothing but wastage of time, money and resources. I hope the Parliamentary Standing Committee would consider all these aspects before coming out with the final draft of Jan Lokpal law of India.

Cyber Crime Investigation In India

2011-08-26T03:27:00.000-07:00

Modernisation of police force of India is need of the hour. We need modern police forces that can easily deal with technology related crimes and its misuses. With growing cases of cyber crimes in India, people are finding themselves helpless as they are unable to get justice in a timely and proper manner.

This is happening as Indian police force lacks the cyber crime investigation capabilities. Even the cyber crime cells of India lack expertise in fields like cyber law and cyber crimes. The truth is that police in India needs urgent cyber law training and a trained cyber police force of India is urgently needed.

There is no ready reference for cyber crime investigation in India. Recently, Perry4Law Techno Legal Base (PTLB), the techno legal segment of exclusive techno legal ICT and IP firm of India Perry4Law, informed that a cyber crime investigation manual for various stakeholders of India would be available very soon.

This is the exclusive techno legal cyber crime investigation manual of India. The manual is in the final phase of preparation and it may be available to governmental departments and general public after few months. You may also download the first cyber crime investigation manual of India if an electronic version of the same is also released by Perry4Law and PTLB.

Police in India urgently needs good techno legal trainings in the fields like cyber law, cyber forensics, digital evidencing, etc. PTLB has been providing techno legal trainings to police officers for long and the cyber crime investigation manual is a part of this initiative.To improve the cyber crimes investigation skills of police officers of India as well as to help in the successful prosecution and punishment of the cyber criminals, Perry4Law and PTLB are also imparting exclusive online techno legal trainings in the fields like cyber law, cyber forensics, digital evidencing and much such other training.

With these pro active initiatives, cyber crime investigation and prosecution would be successful in India to a great extent. However, the government of India needs to take the issue seriously. Techno legal issues like cyber law, cyber security, cyber forensics, etc needs a national level policy decision. The sooner it is done the better it would be for the interest of India.

Jan Lokpal Bill Of India 2011 Is Not Strong And Effective

2011-08-25T07:29:00.000-07:00

Jan Lokpal bill of India has become a bone of contention between Anna Hazare group and Indian government. Finally, after lots of protest and anti corruption movement, Indian government finally decided to bring a law in this regard.

However, Anna group is not convinced with the law suggested by the government and has been adamant to get its own bill introduced in the Parliament.

In this tussle between both these groups, very few have appreciated that it is not the law that is enough but an effective, strong and robust anti corruption law that alone would serve the purpose.

Unfortunately, both the versions of Jan Lokpal Bills are not adequate to cover all the aspects of anti corruption movement in India. Experts like Praveen Dalal, a Supreme Court lawyer and leading techno legal specialist of India, have opined that the proposed Jan Lokpal Bills are not strong and effective to deal with the deep rooted problem of corruption in India.

So what are the aspects that have been missed by both the parties regarding a strong and effective Jan Lokpal Bill of India? According to Praveen Dalal, if Jan Lokpal Act 2011 of India has to be successful it must incorporate many more issues like Technology, Whistleblower Protection, Harmonisation between Judicial and Lokpal fields, Right to Information, Mandatory E-Governance Services, etc. These issues are very relevant to make Lokpal law effective, flexible and robust. Unfortunately, none of these issues are covered by either version of the Bill or independently by a separate anti corruption law.

The Jan Lokpal Bill 2011 itself requires numerous “Improvements and Additions” suggests Dalal. The Jan Lokpal Bill 2011 must be Techno Legal to be most successful. In short, the proposed Jan Lokpal Bill 2011 must be Strong and Effective. By confining it to either the Governmental version or the version of Civil Activists, we are not going to achieve anything, suggests Dalal.

We do not need a Code that contains Ineffective and Weak Provisions. On the contrary, we need a “Holistic Law” in this regard that covers all the aspects of Anti Corruption in India, suggests Dalal.

Indian Jan Lokpal Bill Is Not Ideal And Strong Says Expert

2011-08-25T05:45:00.000-07:00

The initiatives of Prime Minister and Anna Hazare camps are worth praising. However, the versions proposed by both camps are myopic in nature and are at best a reflection of their respective ideology.

Firstly, Jan Lokpal law in itself would not be a panacea for all corruption related problems in India unless the same is constitutional, robust, effective and strong. To be an ideal Jan Lokpal law, the same must encompass many more issues that have been ignored by both camps even after they have been suggested by many experts.

Secondly, according to experts like Praveen Dalal, if Jan Lokpal Act 2011 of India has to be successful it must incorporate many more issues like Technology, Whistleblower Protection, Harmonisation between Judicial and Lokpal fields, Right to Information, Mandatory E-Governance Services, etc. These issues are very relevant to make Lokpal law effective, flexible and robust. Unfortunately, none of these issues are covered by either version of the bill or independently by a separate anti corruption law.

The Jan Lokpal Bill 2011 itself requires numerous “Improvements and Additions” suggests Dalal. The Jan Lokpal Bill 2011 must be Techno Legal to be most successful. In short, the proposed Jan Lokpal Bill 2011 must be Strong and Effective. By confining it to either the Governmental version or the version of Civil Activists, we are not going to achieve anything, suggests Dalal.

Let us not enact an impotent law that has no impact at all upon corruption and faulty governmental machinery. Let us insist upon a robust and strong anti corruption law that provides protection to anti corruption crusaders and whistle-blowers. If you are interested in this version of anti corruption law, read on and contribute.

Home Ministry Of India Banned Google And Facebook For Its Employees

2011-08-12T11:42:00.000-07:00

Restricting access to social networking sites at governmental offices is a common feature. This is done to prevent compromise of crucial government computers at such departments.

It has now been reported that the home ministry of India has banned its officials and staff from opening social networking sites such as Google, Facebook, etc and the websites of free online games on official government computers after it has received fresh reports of cyber espionage attacks on sensitive government installations, including the home ministry.

While this is not an absolute measure to prevent compromise of Government Computers yet it can reduce the numbers of compromised computers to a great extent, says Praveen Dalal, managing partner of New Delhi based ICT and IP law firm Perry4Law and the leading techno-legal expert of India.

The home ministry advisory warns that attackers have used “Google, Facebook and some other social networking web portals” to “identify critical individuals” to “steal information and passwords for further espionage from the infected computer”. Ministries and departments, particularly the home, defence and external affairs ministries and the Delhi police, need to take extra precautions, an MHA official said.

MHA officials have also been told not to access personal emails on the Internet from an official computer. There should be a restricted usage of USB computer storage media such as pen drives, memory sticks and external hard disk drives. Officers, moreover, should not visit any website “not connected” to his/her work, the advisory said.

The officials have also been directed not to use personal email accounts such as those on Yahoo, Rediffmail, Gmail, Hotmail, etc for official matters, even for drafting concept notes, and use only NIC email accounts to send official information. The MHA also asked its officials to change passwords every 15 days and not disclose these to anyone.

Law Firms Are Giving Cyber Law A New Shape

2011-08-12T08:27:00.000-07:00

A few years back law firms in general and lawyers in particular were not aware of the concepts like cyber law. However, now the trend is changing with lawyers and law firm updating their knowledge about cyber law and technological issues.

As far as India is concerned, the awareness of cyber law among judges, lawyers and law firms is still at infancy stage. In this situation Perry4Law, the exclusive techno legal ICT and IP firm of India and world wide has emerged as a good tend setter.

While other law firms across the globe are struggling to deal with even the basics of cyber law, Perry4Law has emerged as a global leader in the techno legal field. It has crossed the frontiers of cyber law to areas like cyber forensics, cyber security, ICT and telecom policy, etc.

Further, Perry4Law also maintains a blog on international ICT policies and strategies that no other law firm of the world is maintaining. The blog carries good and qualitative discourses upon techno legal issues like cyber law, cyber security, cyber forensics, data protection, lawful interception, privacy protection, data security, intelligence gathering, e-governance, phone tapping, e-courts, etc.

It seems law firms are realizing the potential of technological fields and firms like Perry4Law are not only leading the race but are also paving path for other firms to follow.

If this is not enough, the leading techno legal segment of Perry4Law known as Perry4Law Techno Legal Base (PTLB) is providing world class techno legal trainings in fields like cyber law, cyber security, cyber forensics, etc.

Clearly, Perry4Law and PTLB have crossed the frontiers that are even difficult for technology firms to achieve. Let us see how the journey of Perry4Law and PTLB goes from here.

Legal Immunity To US Armed Forces At Foreign Jurisdictions

2011-08-03T23:22:00.000-07:00

A question was asked at the social platform Linkedin to the following terms “Does anyone know whether data transmitted from a server at a US Army Post Office (APO) and Fleet Post Office (FPO) location overseas is subject to the data privacy laws of the country in which the server sits, or is considered a US transfer?".

I personally believe it is subject to jurisdiction and laws of the nations where such APO/FPO has been based. Further, I also believe that if a crime like cyber espionage has been committed by such unit or any person stationed therein, that nation can take cognizance of such matter.

However, the matter must be elaborated further. I believe that a US military base/facility would not become automatically entitled to diplomatic or legal immunity from host country’s civil and criminal laws and US laws would not apply to it in such circumstances. There is nothing like automatic immunity, implied immunity or absolute immunity that is available to US armed forces, including US APO/FPO.

Armed forces immunity can be claimed either under the international law and in a member country alone that is also part to any treaty in this regard to which US is also a member or it must be claimed through an executive agreement with the concerned country where US armed forces are stationed.

Until the post-World War II era, status of forces agreement (SOFAs) addressed this conflict between sovereigns and US policy was to rely heavily on the concept of immunity from host nation criminal jurisdiction created by the host nation's implied consent in expressly consenting to US forces being stationed there. The US policy of insisting on complete immunity from foreign criminal jurisdiction continued in the early post-World War II period, but ultimately gave way to the negotiation of systems of "concurrent jurisdiction" in SOFAs and bilateral supplementary agreements.

With the exception of the multilateral SOFA among the United States and North Atlantic Treaty Organization (NATO) countries, a SOFA is specific to an individual country and is in the form of an executive agreement.

It is not correct that no matter whatever criminal acts US APO/FPO commits, it or people behind the same would not be punishable in the host country, especially if it has nothing to do with the official duty as mentioned by me earlier through the cyber espionage example.

Parliamentary Scrutiny For Intelligence Agencies Of India

2011-07-30T06:19:00.000-07:00

Intelligence agencies of India are not governed by any legal framework and parliamentary oversight. Legal experts in India have been stressing upon existence of such parliamentary scrutiny for intelligence agencies and law enforcement agencies of India for long. In fact, intelligence infrastructure of India is in big mess.

However, for one reason or other, Indian government has ignored this much required constitutional mandate. Now the problem has taken a serious dimension, so our Prime Minister Dr. Manmohan Singh found the situation alarming. He has commissioned a new law to be drafted that would make India’s intelligence agencies accountable to the parliament.

According to Praveen Dalal, the leading techno legal expert of India and a Supreme Court lawyer, till now we have no laws that govern the functioning of Central Bureau of Investigation (CBI), Intelligence Agencies of India, etc. The draft Central Bureau of Investigation Act 2010 has proposed a law for CBI and the draft Intelligence Services (Powers and Regulations) Bill, 2011 has been suggested for Intelligence Agencies of India.

Since the PM has commissioned a new law to be drafted for intelligence agencies, it seems the proposed law would be independent of the recent proposed Bill 2011. It would be appropriate if techno legal issues are covered by the proposed law as suggested by our PM.

Software Patent Trolls In India

2011-07-23T02:58:00.000-07:00

Patent trolls are people or organisation that acquires a patent with the primary objective of non use of the same. Their main objective is to get maximum commercial benefit through licensing mechanism. They also intend to sue others for patent infringement and derive monetary benefits through compensation for the alleged patent infringement.

Software developers in US are frequently targeted by such patent trolls through cease and desist orders by alleging patent infringement. So bad has become the situation that software developers in US have threatened to leave US unless they are duly protected from such trolls.

So what is the position regarding the same in India. Patent Trolls and their Regulations in India is well founded says Praveen Dalal, managing partner of New Delhi based IP and ICT law firm Perry4Law. Indian Patents Act 1970 “Prohibits” Unfair Trade Practices of Hoarding a Patent by not using the same and hindering its availability to general public, informs Dalal

If a cease and desist order is issued in respect of such a “Hoarded Patent”, the very grant of Patent can be challenged. This is sufficient “Deterrent” for Patent Trolls operating in India, opines Dalal.

It seems Indian patent law is well founded to protect software developers as software is not a patentable product or process in India. If something cannot be patented in India, there are practically no chances of its violation in India hence there cannot be any litigation as well.

So the chances of software patent trolls to flourish in India are not much provided people are aware of the intellectual property rights (IPRs) laws of India, especially the patent law of India.

United Nation’s Regional Economic Commissions And India

2011-07-16T04:21:00.000-07:00

While discussing the regional initiatives of United Nations regarding economic development, i asked myself about the true nature of such regional initiatives. Are these regional initiatives truly regional in nature or can they cooperate and collaborate among themselves or with other individuals and organisations residing beyond their regions?

In other words, does the charter of such institutions or commissions allow them to engage at international level directly or indirectly? If these regional initiatives are strictly regional in nature, this may hamper their effectiveness.

For instance, recently I came across the activities of United Nation’s Economic Commission for Europe (UNECE) regarding intellectual property rights (IPRs). I found this initiative really impressive. However, can India be a part of UNECE directly or indirectly?

According to Geeta Dalal, partner at New Delhi based ICT and IP law firm Perry4Law, UN-ECE is one of five regional commissions of United Nations, working for economic integration and growth in Europe primarily. For Asian countries/ India, UN regional commission is Economic and Social Commission for Asia and the Pacific (UN-ESCAP).

Does this mean professionals and organisations working as members or otherwise of UNECE and UNESCAP have to essentially confine their initiatives and efforts to their regional initiatives alone?

This may not necessarily be the case. For instance, the International PPP Center for Excellence by UN-ECE, to my understanding, is global initiative having much wider objectives useful for all countries although it is primarily designed as a regional initiative, suggests Geeta Dalal.

Considering the ever increasing scope of engaging PPP model in growth map of Asian countries like India particularly in infrastructure projects such as road, transport, telecom, ICT etc, initiatives like UN-ESCAP and UN-ECE could play a possible pivotal role. In any case, it should engage experts from all over the world as there is nothing that restricts this exercise, suggests Geeta.

.It seems, although many UN initiatives have been launched as regional, their public private partnership (PPP) model may help in expanding their expertise and scope. At the end of the day, any regional initiative that helps in achieving a global objective is always welcome irrespective of its mandate.

EU India FTA, Data Exclusivity And Foreign Direct Investment

2011-07-14T05:23:00.000-07:00

European Union (EU) is actively working in the direction of strengthening the regional and international intellectual property rights (IPRs) protection for its member States. Working in this direction, the United Nations Economic Commission for Europe (UNECE) has recently held a two day meeting to increase IPRs awareness throughout the Europe.

Similarly, EU and India would also sign a letter of understanding which will ensure that EU countries would not seize Indian medicines passing through Europe on the ground of violation of IPRs.

These are positive developments despite some initial hiccups like EU decision to withdraw the generalised system of preferences (GSP) scheme where India was on the receiving end, says Geeta Dalal, partner at Perry4Law a New Delhi based IP and ICT law firm. Now Indian government has made it clear that the “data exclusivity” provision would not form part of the proposed EU India foreign trade agreement (FTA), informs Geeta Dalal.

Asia is a very important market for EU companies and by adopting a very strict attitude this market could have been jeopardised. Similarly, India is also a very important market for pharmaceutical companies of Europe. The proposed EU India FTA may open new markets for these pharmaceutical markets.

By adopting a flexible approach, both EU and India can be benefited. Indian would get good foreign direct investment in the pharmaceutical and allied fields and European companies may get access to Indian pharmaceutical market, informs Geeta Dalal.

The proposed FTA would be concluded within this year and many trade related issues would be discussed there. Let us wait for the final version of the EU India FTA.

Renewal Of An Expired Trademark

2011-07-09T03:29:00.000-07:00

Trademark registration in India is well founded and properly regulated. The trademarks act 1999 of India regulates the registration and management of trademarks in India. It protects trademarks, well known marks and brands.

Once registered, a trademark is granted for a period of 10 years and can be subsequently renewed for another 10 years period. During the registration period the trademark holder can enjoy the benefits of registration that prevents others from using the registered mark.

At times a trademark is not renewed and this makes the mark in question susceptible to registration by others. Thus, it is very important that trademarks are renewed at appropriate time. The questions is can we re-register a trademark whose duration has expired?

Even if the mark has been expired, one can apply for its re-registration. And in case, someone else applies for registration of expired trademark as per the prescribed procedure, owner of expired trademark can file objections at the registry, tribunal or appropriate forum, says Geeta Dalal, partner at New Delhi based IP and ICT law firm Perry4Law.

It is a good strategy to keep a close watch at the registered trademarks as renewal of a trademark is definitely less cumbersome as compared to opposition and re-registration efforts, suggests Geeta Dalal.

So even if your trademark registration period has expired do not loose heart and approach a good lawyer or law firm to get it renewed or registered as soon as possible.

Indian Government Would Clarify New Data Protection Rules Soon

2011-07-01T11:29:00.000-07:00

Indian government is planning to clarify the nature and scope of the newly proposed data protection rules very soon. These rules have raised lots of concerns in India and abroad, especially among the outsourcing industry.

There has been some confusion over the interpretation of Sec 43 A of the information technology act 2000 (IT Act 2000), the sole cyber law of India.

.IT Act 2000 has been in controversies ever since the information technology amendment act 2008 (IT Act 2008) was notified in India. The IT Act 2008 incorporated many provisions that are not in conformity with the spirit of Indian constitution. In fact, experts like Praveen Dalal have suggested the repeal of the IT Act 2000 so that a better and constitutional law can be formulated.

The new data protections rules have raised many concerns for foreign companies and outsourcing players. They believe that under section 43A, an Indian outsourcing provider would be required to obtain written consent from each individual of an organisation whose outsourced work it would manage. They fear that such a consent requirement will potentially put a huge additional financial burden on these companies and thus affect their profitability.

The new Rules for Data Protection need to be “analysed in detail” and these issues must be sorted out so that outsourcing industry can work in an effective manner, suggests Dalal. This is exactly what the Indian government is planning to do.

On the one hand India needs to ensure privacy and data protection laws whereas on the other hand concerns of outsourcing industry have also to be accommodated. Let us see how things would come up finally as the matter is of utmost importance.

Natgrid Is Still A Nebulous And Unconstitutional Project

2011-06-25T13:25:00.000-07:00

A friend of mine has written a very apt article titled Natgrid and NIA became more Obscure and unconstitutional. This piece has been widely appreciated and generously quoted. However, surprisingly, the original source of this article has disappeared from Google’s search results.

However, keeping in mind the fact that Wordpress has censored and deleted our Blogs and Google is censoring the search and news results, this is no big surprise. Wordpress has crossed all the limits by even disabling the accounts of all our contributors at the Techno Legal News and Views platform as well. If you have observed, you must also be aware of the strange behaviour of Blogspot during the last few months.

However, despite the Internet censorship, website blocking and e-surveillance exercises of Wordpress, Blogspot and Indian government, the constitution of India empowers me to freely express my views in India. Now even the United Nations has declared that access to internet is a human right.

So what is this national intelligence grid (Natgrid) project of India? Natgrid is a project pertaining to intelligence gathering and its analysis. While there is nothing wrong with having a project like Natgrid but the way it has been implemented makes it illegal and unconstitutional.

Firstly, Natgrid is not at all trying to reconcile the conflicting interests of civil liberties and national security. On the contrary it is expressly violating the civil liberties of Indians in cyberspace. Till now Indian government has not specified the procedural safeguards that can prevent the misuse of Natgrid.

Secondly, there is no official website of Natgrid where the objects, purpose, scope, limitations, etc of Natgrid have been mentioned. In the absence of adequate information about Natgrid, its veracity and genuineness is in great doubts.

Thirdly, neither the Natgrid project nor the intelligence agencies and other agencies who are going to use it are subject to any “parliamentary oversight”. When the Natgrid project and agencies are themselves governed by no legal framework and they are not accountable to the parliament and judiciary, this make the very project unconstitutional and unwarrantable.

Fourthly, even the cabinet committee on security (CCS) is aware of the “constitutional limitations” and that is the reason why it gave Natgrid a “conditional approval”. Statutory enactments have to be enacted before Natgrid can proceed with the crucial stages of its implementation.

Despite the media campaign to give a positive image to Natgrid project, it is and would always remain an e-surveillance project that has no constitutional sanction and is unconstitutional in nature.

Infosys And CII Endorsed Opinion Of Perry4Law On Cloud Computing Regulation

2011-06-24T09:56:00.000-07:00

Use of cloud computing in India has many cost benefits. However, it has to solve many regulatory issues as well. For instance, we have no dedicated data protection law in India, no privacy law in India and no data security law in India.

In these circumstances, cloud computing is not a viable option for India as cloud computing is based upon essentials like privacy protection, data protection and data security and India has none. As a matter of fact, we have no cloud computing policy in India except the one suggested by Perry4Law, the exclusive techno legal ICT law firm of India.

According to Geeta Dalal, Partner at Perry4Law and a techno legal specialist, “There is no cyber security in India and even cyber security policy of India is missing. There is no privacy law in India. There is no data protection law in India. And there is no data security law in and cyber security law in India. In short, there is no legal framework for cloud computing in India at all. With these negative developments India should not use software as a service (SaaS) and cloud computing for crucial governmental services”.

This viewpoint has now got the support of corporate house like Infosys and industrial body like CII. Infosys, which is sharpening focus on tapping “cloud computing”, today said India needed a policy framework for the new service that enables companies to share IT infrastructure and cut costs. It opined that some of the issues like data privacy and security should be addressed properly, which is possible only with a regulatory framework.

Regulatory framework would give confidence that the service providers will provide the service securely and reliably. We need a regulatory framework in place also to ensure data privacy.

Perry4Law is in the process of providing techno legal inputs regarding privacy, data security and data protection laws to the Indian government very soon. Let us hope the suggestions of Perry4Law would be accepted for better cloud computing environment in India.

Was Pranab Mukherjee's Office Bugged For E-Surveillance?

2011-06-21T22:36:00.000-07:00

Last September, finance minister Pranab Mukherjee complained that his office was bugged. Mukherjee requested the PM to order a secret inquiry into the "serious breach of security in his office" in the form of "planted adhesives" in 16 locations in a possible surveillance attempt. Though no live microphone devices were found, he had reported it to the PM. Realising the seriousness of the issue, Intelligence Bureau (IB) immediately swept into action.

However, IB found nothing wrong at Mukherjee’s office and no surveillance equipment was found. To be on the safer side, IB increased the frequency of its “technical sweeping” in high offices.

Technical sweeping is a more advanced form of surveillance detection than the ordinary surveillance detection technique. Now instead of occasional anti-bugging exercise inside finance ministry, the IB has now included this ministry in North Block as part of its regular “technical sweeping” work like what it does for its own premises and offices of the PM in South Block and home minister in North Block.

E-surveillance has become a nuisance for not only Indian citizens but also for the government itself. Private individuals have been doing e-surveillance and phone tapping in India with or without governmental orders. We have no constitutionally sound e-surveillance and phone tapping law in India. Further, even the e-surveillance policy of India is missing. We urgently need a lawful interception law in India.

There is no provision for “judicial scrutiny” of e-surveillance and “phone tapping orders in India and this is giving lots of room for private individuals and those who have no authority of law to indulge in illegal e-surveillance and phone tapping.

Indian government must urgently do something about this serious problem that has already taken a gigantic shape. A system devised by Indian government is itself proving a nuisance for it. Time has come for the Indian government to clean the mess created by itself.

Natgrid And NIA Became More Obscure And Unconstitutional

2011-06-21T04:35:00.000-07:00

Accountability and transparency are two words that do not apply to Indian law enforcement and intelligence agencies. India has chosen to stick to the British legacy of non transparency. Whether it is laws like official secrets act, Indian telegraph act or the accountability of Indian law enforcement and intelligence agencies, Indian government has even surpassed the Britishers in this regard.

Instead of strengthening the transparency and Parliamentary scrutiny, India is further making these agencies more unaccountable and lawless. The right to information act 2005 (RTI Act 2005) is the sole transparency law of India that needs further amendments and strengthening. However, the proposed right to information rules 2010 instead of strengthening the RTI Act, 2005 took steps that are retrograde in nature.

Firstly, India amended the cyber law of India through the draconian information technology amendment act 2008 that empowered Indian government and its agencies with unconstitutional e-surveillance, internet censorship and website blocking powers. Subsequently, it made the RTI Act 2005 weaker and redundant.

Now Indian government has announced that Central Bureau of Investigation (CBI), national investigation authority of India (NIA) and national intelligence grid (Natgrid) would be exempted from the applicability of RTI Act, 2005. The constitutional validity of national investigation agency act, 2008 (NIA 2008) is still doubtful and CBI and Natgrid are not governed by any law at all. Even the proposed central monitoring system of India is without any parliamentary oversight.

Whether it is CBI or Intelligence Agencies of India, none of them are presently Accountable to Parliament of India, informs Praveen Dalal, managing partner of New Delhi based ICT law firm Perry4Law and CEO of exclusive Human Rights Protection Centre for Cyberspace in India. This casts a doubt about the Impartiality and Transparency of these Agencies, suggests Dalal. Exempting these Agencies without any parallel “Parliamentary Oversight” is against the provisions of Indian Constitution, informs Dalal.

In these days the role of Indian Parliament has been reduced to almost nothing. Important laws are never passed and existing laws like the cyber law of India have been made e-surveillance instrumentality for Indian government and its agencies. The Parliament of India needs to take its legislative role seriously, at least now.

What ICANN’s 41st Meeting At Singapore Must Also Consider

2011-06-19T00:36:00.000-07:00

The Internet Corporation for Assigned Names and Numbers (ICANN) would hold the Second Public Meeting of the year on 20th June 2011 at Singapore. There are many crucial issues that would be discussed by ICANN in this meeting and allotting new gTLDs would be just one of them. Of course, ICANN 41 meeting is more than a gTLD meeting.

However, it is clear that not everybody agrees with the agenda and issues of this meeting. Besides, this is also not a “one for all” meeting as many more crucial issues have yet to be decided by ICANN in this meeting or subsequent meetings.

According to Praveen Dalal, Managing Partner of New Delhi based IP and ICT Law Firm Perry4Law and CEO of the exclusive Techno Legal Online Dispute Resolution Centre of India (TLODRCI), ICANN needs to consider and adopt many more crucial issues like upgradation of UDRP procedure, better and expeditious Dispute Resolution Mechanism, enhanced Cyber Security Initiatives for Domain Name and DNS, better National and International Cooperations with Governments, NGOs and Dispute Resolution Providers, considering interests of Developing Countries and NGOs, etc.

In the present meeting, ICANN would also consider other crucial issues like internationalised domain names (IDNs), inter-registrar transfers, new gTLD applicants from developing countries, etc.

These are just a few examples of dozens of topics that the ICANN Community will discuss during a week containing more than 120 panels, presentations, workshops and other sessions.

Let us see the outcome of this meeting and how the domain name framework changes with this crucial meeting.

Icann’s Generic Top Level Domain Names Dispute Resolution

2011-06-18T06:03:00.000-07:00

The Internet Corporation for Assigned Names and Numbers (ICANN) is the authority that is administering the implementation of Internet’s domain name system. ICANN has proposed to hold its second public meeting of the year on June 20th, 2011.

ICANN could approve its proposed program to introduce an unlimited number of new generic top-level domain names (gTLD). These gTLDs are in great demand among world reputed brands and trademarks owners. The new gTLDs would allow such brand and trademark owners to register their brands and trademarks as the domain name.

Naturally, these GTLDs are in great demand and there would be attempts to squat famous brands and trademarks of others. ICANN would stringently deal with such attempts by allotting the GTLDs to only “Bonafide Applicants” after verifying their “Claims”, informs Praveen Dalal, managing partner of New Delhi based IP and ICT law firm Perry4Law and a Neutral at World Intellectual Property Organisation’s (WIPO) Arbitration Centre.

Earlier WIPO had informed that cyber squatting cases are on rise. This proves that well known brands and trademarks are at risk of being misappropriated by dubious individuals and organisations.

The present allotment of GTLD would also face similar problems if an effective “Pre Screening Procedure” along with “Reasonably High Application Fee” is not prescribed by ICANN, suggests Dalal. ICANN and WIPO would also be required to “Streamline” their Dispute Resolution Services keeping in mind the recent Technological Advances, suggests Dalal.

Let us see how ICANN, WIPO and similar organisations would deal with the issues of cyber squatting, brand violations and trademark violations in the near future.

WordPress Is Engaging In Unreasonable Blogs Censorship

2011-06-16T01:46:00.000-07:00

Blogging platform Wordpress is engaging in unilateral and unreasonable Blogs censorship. Our platform Techno Legal Journalists was censored by Wordpress without any information. Our query to WordPress in this regard has not been answered even after a week. Further, Wordpress has also disabled the accounts of all our contributors at the Techno Legal News and Views platform as well.

Even Blogs hosted upon Blogspot platform are inaccessible in New Delhi, India once more. But they keep on shifting as accessible and non accessible from time to time. Till the time of writing this news piece, Blogspot Blogs are not accessible once more.

As far as the Wordpress censorship issue is concerned, this is a serious matter as it violates the civil liberties in cyberspace of all those who dare to speak against the authorities. We appreciate very much the bold support of prolific Blogger Jayasree Saranathan in this regard and we expect similar courage from the Blogging community. Today it is our Blog tomorrow it may be yours.

Issues of civil liberties violations must be agitated at the United Nations level and UN must protect human rights in cyberspace. Finally, UN has shown some inclination in this regard. UN now considers Internet access a Human Right and considers disconnecting people from the Internet as a violation of Human Rights and International Law, informs Praveen Dalal, managing partner of New Delhi based law firm Perry4Law and CEO of the exclusive Cyberspace Human Rights Protection Centre of India.

If disconnecting people from Internet is human right, censorship of Blogs and websites is definitely a violation of human rights in cyberspace. I wish UN also takes issues of Blogs and websites censorship seriously and expressly declare them violation of human right in cyberspace.

Jan Lokpal Bill Of India Still A Dream

2011-06-15T13:48:00.000-07:00

Jan lokpal bill of India has been lingering for more than 42 years. What miracle could have been expected from Indian government in two months? At the end of the prescribed period, it is now clear that Jan lokpal bill may still not be an accomplished dream.

Jan Lokpal Bill must not be any simple piece of Legislation. Rather, it must be Strong, Robust and Effective, says Praveen Dalal, a Supreme Court Lawyer and leading techno legal expert of India. None can doubt the effectiveness of Technology for bringing Accountability and Transparency. Unfortunately, the version of both Civil Society and Indian Government failed to consider this aspect, says Dalal.

It seems Indian government is not willing to accommodate suggestions and inputs of public at large. If this is the scenario then the chances of Jan lokpal being a good one are very bleak.

Even the concerns and suggestions of the civil society members of the joint drafting committee were not considered by the governmental representative. The core issues have been rejected by the member of government and without those core issues and the one suggested by experts of India, Jan lokpal bill would be just a formality.

In these circumstances we are trying to win a game that we have already lost. Well begun is half done but this maxim just applies to Indian government that has tactfully sidelined the main issues and has ignored the critical inputs of various experts.

22nd Session Of WIPO’s Standing Committee On Copyright And Related Rights

2011-06-15T13:38:00.000-07:00

World Intellectual Property Organisation (WIPO) is conducting a very landmark meeting these days. WIPO’s Standing Committee on Copyright and Related Rights is holding its Twenty-Second Session from June 15, 2011 to June 24, 2011 at Geneva, Switzerland.

The session is covering many far reaching issues pertaining to copyright and related rights. For instance, issues like protection of audiovisual performances, protection of broadcasting organisations, copyright limitations and exceptions for the visually impaired persons and other persons with print disabilities, exceptions and limitations for the persons with disabilities, educational and research institutions, libraries and archives, etc would be discussed at the present session. This session would also prepare the background drafts for various international treaties on the abovementioned issues.

This is a landmark Session for the WIPO’s Standing Committee on Copyright and Related Rights, says Praveen Dalal, managing partner of New Delhi based IP and ICT law firm Perry4Law and a Neutral at WIPO Arbitration and Mediation Centre dealing with highly specialised technology related dispute resolutions.

The Copyright Laws around the World must be more “Receptive and Liberal” towards the demands and requirements of differently abled people, suggests Dalal. By considering suggestions of “Fair Use Exceptions” in favour of differently abled people, WIPO is moving in the right direction and Perry4Law welcomes this initiative of WIPO.

The talks are in the initial stage and once the session is over WIPO may come out with the summary of the same.

Entertainment And Media Industry Disputes Resolutions

2011-06-15T05:14:00.000-07:00

Entertainment and media industry has to invest a lot to create commercial contents. This also necessitates the protection of such digital contents in both online and offline environment. Although creation of digital contents requires lots of efforts, money and manpower yet its violation and misuse requires little effort and expenditure. This is the reason why there are lots of entertainment, media and film industry related disputes these days.

A very strange trend in the Asian countries, especially India, regarding entertainment, media and film industry related disputes is that they are essentially resolved through traditional litigation methods. There is hardly any use of alternative dispute resolution (ADR) or online dispute resolution (ODR) methods to resolve such disputes.

Even more bizarre is the fact that such disputes are seldom taken to International level, informs Praveen Dalal, managing partner of New Delhi based IP and ICT law firm Perry4Law and a Neutral at World Intellectual Property Organisation (WIPO) Arbitration and Mediation Centre. Although WIPO has a dedicated mechanism to resolve Entertainment and Film Industry related Disputes yet Asian Countries are mostly “Respondents” there, inform Dalal.

This shows that Asian countries are not utilising international platforms of organisations like WIPO for getting their disputes resolved. This is a trend that needs to be changed as use of ADR and ODR is certainly “More Beneficial” for Entertainment, Media and Film Industry, suggests Dalal.

However, despite all assurances, entertainment, media and film industry would not be encouraged to approach international platforms in the absence of national level participations. Perry4Law Techno Legal Base (PTLB) has opened a techno legal ODR platform where ADR and ODR is used for resolving all sorts of commercial and civil disputes that can be resolved using ADR and ODR.

With national initiatives becoming popular and frequently used, international platforms may also be approached later on. However, collaboration between national and international ADR and ODR institutions is need of the hour to achieve that objective.

First EU´s Digital Assembly Meeting

2011-06-15T02:52:00.000-07:00

The first digital agenda assembly would be held during 16th and 17th June, 2011. Issues like open data and re-use of public sector information, e-identity and e-signatures, interoperability and standards, cyber security, financing and facilitating broadband projects, partnership-based ICT research and innovation, importance of social networks, mainstreaming e-learning in education and training, access and digital ability, smart mobility, ICT and management of creative content, IPv6 deployment in Europe, online safety of children, spectrum for wireless innovation in Europe, cloud computing strategy for Europe, digital literacy and e-inclusion, e-government driving innovation, etc would be discussed.

The European Commission launched the Europe 2020 Strategy in March 2010 to strengthen the EU economy for the ICT challenges of the next decade. The Digital Agenda for Europe is one of the seven flagship initiatives of the Europe 2020 Strategy, informs Praveen Dalal, managing partner of New Delhi based IP and ICT law firm Perry4Law and leading techno legal expert of India.

ICT has to play a key role if Europe wants to succeed in its ambitions Europe 2020 Strategy. Issues like E-Governance, E-Commerce, Online Dispute Resolution (ODR) and E-Courts, Technological issues of IPRs, etc must also be discussed in this or subsequent meetings, suggests Dalal.

It is also expected that issues like copyright, piracy, broadcasting rights, digital contents, cross-border distribution of audiovisual contents, etc may also be discussed. As per the recent studies, losses caused by counterfeiting and piracy could reduce the EU GDP by €8 billion annually.

The issues that would be discussed at this meeting are very important and the outcome of the same would definitely be productive for European countries.

What Ails Jan Lokpal Bill Of India?

2011-06-14T04:52:00.000-07:00

Till now all of us are aware of the fiasco of jan lokpal bill of India. It is now clear that there is no material consensus between the civil society members and government members of the joint drafting committee.

Further, it is also obvious that government would not make the contents of the proposed draft jan lokpal bill of India, if any, public. The same may be introduced in the parliament during the forthcoming session. However, even there is no guarantee of the same.

Further, even if the Bill is introduced there is no guarantee that it would become a law. Techno legal experts of India have been pointing out many technical and legal shortcomings that government is not willing to hear at all.

The Jan Lokpal Law of India must be “Techno Legal” in nature that must incorporate the benefits of Law, Technology and Constitutional Duties, suggests Praveen Dalal, managing partner of New Delhi based law firm Perry4Law and leading techno legal expert of India.

Further, if Jan Lokpal Law Of India 2011 has to be successful it must incorporate many more issues like Technology, Whistleblower Protection, Harmonisation between Judicial and Lokpal fields, Right to Information, Mandatory Electronic Services Delivery, etc, suggests Dalal.

Till now even the suggestions of the member of joint drafting committee have not been accepted. There are little chances that suggestions of experts and general public would also be incorporated in the proposed Bill.

We are still far from an ideal jan lokpal bill of India. In these circumstances, enactment of a strong, robust and effective jan lokpal law is ruled out.

Asian Film And Entertainment Industry And WIPO Dispute Resolution

2011-06-10T07:06:00.000-07:00

Asian film industry engages in lots of disputes pertaining to intellectual property rights (IPRs) issues. Surprisingly, Asian companies prefer to utilise tradition litigations methods instead of alternative dispute resolution (ADR) or online dispute resolution (ODR).

Although the World Intellectual Property Organisation (WIPO) has a dedicated centre known as WIPO Mediation and Expedited Arbitration for Film and Media yet Asian countries are shy to use such international platforms.

Instead they prefer to approach the courts to get their disputes resolved. Further, a majority of Asian companies are respondents at such dispute resolution platforms. So where lies the problem?

According to Praveen Dalal, managing partner of New Delhi based IP and ICT law firm Perry4Law and a Neutral at WIPO’s Arbitration and Mediation Centre, this may be due to two reasons. Firstly, a majority of Respondents may be defending themselves against the Intellectual Property Rights (IPRs) violations cases. Secondly, Asian Companies may not be effectively using the ADR and ODR Dispute Resolution Services of International Organisations and Institutions, informs Dalal.

This is very surprising as use of ADR and ODR is definitely more beneficial for these companies. However, they still prefer the litigation route than the ADR and ODR route.

According to Dalal, a great deal of ADR and ODR Disputes are “Referred” by Law Firms and Practicing Legal Professionals. They incorporate suitable “ADR and ODR Clauses” in the Technology Agreements, Film and entertainment related Agreements, etc. If these Firms and Professionals do not incorporate proper Arbitration Clause, a Dispute can never reach to International Organisations and would land up in a Court of Law, informs Dalal.

It seems the need to collaborate with the locals seems to be the success formula. Local disputes are generally settled using local means and it requires great persuasion an awareness to utilise the services of international organisations in this regard.

Citigroup Confirms Bank’s Network Faced Cyber Attack

2011-06-09T00:50:00.000-07:00

Reserve Bank of India (RBI) has been stressing upon ensuring cyber security for banks in India. RBI has also constituted the working group on information security. As per the recommendations of the working group, RBI has directed that all banks would have to create a position of chief information officers (CIOs) as well as steering committees on information security at the board level at the earliest.

Meanwhile, RBI sought the inputs of various stakeholders upon the report of the working group. After analysing the public inputs, the final notification has been recently released by the RBI. The notification mandates complying with the recommendations of RBI in a time bound manner.

However, it seems the recommendations of the working group constituted by RBI have still not been implemented. A “progress report” must be sought from banks of India in this regard by RBI as soon as possible.

RBI has also made the appointment of chief of internal vigilance mandatory for banks in India. RBI has also prescribed cyber security due diligence for banks in India. In fact, cyber due diligence and banking due diligence could have prevented the recent Citibank fraud.

The truth is that banks and financial institutions in India are not serious at all regarding cyber due diligence, cyber crimes, financial frauds and cyber security. This is resulting in an increase in banking related cyber crimes and financial frauds.

As per the latest news, Citigroup Inc said computer hackers breached the bank's network and accessed data on hundreds of thousands of bank card holders in the latest of a string of cyber attacks on high-profile companies. Citigroup said about 1% of its card customers were affected by the breach, which had been discovered in May during routine monitoring. The names of customers, account numbers and contact information, including email addresses, were viewed during this cyber attack. However, other information such as birth dates, social security numbers, card expiration dates and card security codes (CVV) were not compromised.

Cyber attacks against banking and financial institutions are very common and frequent. They cannot be eliminated absolutely but efforts must be made to make them as less as possible. Banks and financial institutions of India must consider cyber security very seriously in the larger interest of their customers.

United Nations Must Protect Human Rights In Cyberspace

2011-06-06T10:04:00.000-07:00

United Nations has been regulating many international issues all over the world and the most important one is protection of human rights. However, UN is not very serious about protection of human rights in cyberspace.

In the past as well suggestions have been given by many techno legal experts to UN to ensure protection of human rights in cyberspace. However, this issue seems to be a complicated one as UN is taking lots of time to protect human rights in cyberspace.

The World community on Human Rights, Cyber Law and Cyber Security must start thinking in this direction as issues like Cyber Warfare, Cyber Terrorism, Cyber Espionage, Cyber Crimes, E-Surveillance, Unlawful Interceptions, etc are “Transnational” in nature, says Praveen Dalal, managing partner of New Delhi based law firm Perry4Law and CEO of the exclusive Cyberspace Human Rights Protection Centre of India.

If different Countries would have different laws for these issues, it would be very difficult to truly enforce protective provisions against these menaces at National and International levels, opines Dalal.

Finally, UN has shown some inclination in this regard. UN now considers Internet access a Human Right and considers disconnecting people from the Internet as a violation of Human Rights and International Law, informs Dalal.

A Report by the UN Human Rights Council’s 17th Session underscored the “unique and transformative" nature of the Internet allowing individuals to exercise a range of Human Rights, and to promote the progress of society as a whole.

This is a good step taken by the UN especially with the growing use of e-surveillance, Internet censorship and website blockings all over the world. India is one such country that is indulging in endemic e-surveillance activities that also without any legal framework or with the help of unconstitutional laws like cyber law of India.

Experts in India have even suggested repeal of the information technology act 2000, the sole cyber law of India. Let us hope UN would come up with international standards for protection of human rights in cyberspace very soon.

An Ideal Jan Lokpal Bill 2011 Of India By Praveen Dalal

2011-06-05T02:08:00.000-07:00

In this guest column, Praveen Dalal, Managing Partner of New Delhi based Law Firm Perry4Law and leading Techno Legal Specialist of India has shared his views regarding the ideal Jan Lokpal Law of India. He has also sent his suggestions in this regard to the Government of India.

Any Person or Institution that believes that Jan Lokpal Law of India is not requires is certainly Corrupt and Anti National. This is the reason why the Government of India cannot deny its enactment. However, Indian Government can “Delay” it enactment and the same would amount to “Denial” of the very Jan Lokpal Law of India.

This “Delaying Tactics” is not new to Indian Government. The Lokpal Bill has been drafted for more than 42 years by Indian Government and it has failed to become an applicable law till now. The first Lokpal Bill was passed in the 4th Lok Sabha in 1969 but could not get through in the Rajya Sabha. Subsequently, Lokpal bills were introduced in 1971, 1977, 1985, 1989, 1996, 1998, 2001, 2005 and in 2008.

India’s intentions to ignore Corruption were also apparent when it did not “Ratified” the United Nations Convention against Corruption. Although India signed the Convention in 2005 but Indian Government refused to ratify the same. This is also the reason why Anti Corruption Laws of India remained not only “National’ in nature but also redundant and ineffective. Of course, India has now ratified the Convention and it has become mandatory for India to keep its laws in line with the same.

Realising that India is not at all serious in eradicating corruption, the Civil Society took up the task upon itself. Under the leadership of Anna Hazare the fight against widespread corruption in India was started. This resulted in the formulation of a “Joint Drafting Committee” (JDC) to draft a Jan Lokpal Bill of India 2011. However, the JDC failed to reach at a “Consensus” and it is believed that the deadline of drafting of the Jan Lokpal Bill would pass without any such Bill being drafted.

In the meanwhile, Baba Ramdev also started his fight against widespread corruption in India. He also raised a demand to consider black money deposited in foreign bank accounts as “National Property” and to formulate a law in this regard. Unfortunately, in my personal opinion, the Government of India adopted “Unconstitutional Methods” to derail and demoralise this agitation of Baba Ramdev and he was detained and then deported from New Delhi. This entire episode is “Highly Unfortunate” and it would have been better if the matter could have been solved through “Negotiations”.

Although Indian Government has taken a “Drastic Step” yet my “Concerns” are more than that alone. In this entire episode we have forgotten about enactment of suitable Corruption Laws in India like Jan Lokpal Act of India 2011. My specific concerns at this stage are what the Indian Jan Lokpal Act 2011 must incorporate to make it Just, Reasonable, Strong, Robust and Effective. I believe that Jan Lokpal Act 2011 of India is “Not a Panacea” for all sorts of Corruption related problems in India. Nevertheless it is an important “Milestone” in the fight against corruption in India. So besides fighting Corruption, India must also focus upon Administrative, Legal and Judicial Reforms.

Further, if Jan Lokpal Act 2011 of India has to be successful it must incorporate many more issues like Technology, Whistleblower Protection, Harmonisation between Judicial and Lokpal fields, Right to Information, Mandatory Electronic Services Delivery, etc.

The Jan Lokpal Act 2011 of India must be Techno Legal to be most successful. It must “Empower” Indian Citizens not only Legally but also Electronically. E-Governance and use of Information and Communication Technology (ICT) must be an essential part of the Lokpal Mechanism. Further, the proposed Jan Lokpal Act 2011 of India must be kept “Flexible” by incorporating “Enabling Provisions” now for which Rules can be framed subsequently. This way a “Vested Right” is created in favour of Indian Citizens to fight against corruption in India and even the Government of India would have sufficient time to develop finer modalities at a later stage.

I hope India Government would consider these “Concerns and Suggestions” of mine and they would prove useful to all concerned.

Is India Serious About Cyber Security?

2011-06-04T23:54:00.001-07:00

Cyber security is an international issue but its dealings are still mostly national in nature. Recently the second worldwide cyber security summit was organised at London. It emerged from the summit that there are little chances of having an international cyber security treaty.

Naturally, countries are working in the direction of protecting their own turfs rather than protecting the cyberspace at large. For instance, Scotland Yard has established a cyber flying squad to fight cyber crimes. Australia has planned a cyber defence strategy to combat cyber crimes. India and US have signed a cyber security agreement. ICANN and INTERPOL have decided to ensure Internet security. The list is endless but all these initiatives have missed a crucial point.

These are “Piecemeal Efforts” and without “International Harmonisation” Cyber Crimes and Cyber Security Attacks cannot be effectively tackled, opines Praveen Dalal, managing partner of Perry4Law and CEO of Indian Human Rights Protection Centre for Cyberspace.

International Organisations must be more proactive towards fighting Cyber Crimes at International level. Time has come to abandon the “Bilateral Agreements” approach and adopt Multilateral and International Harmonisation approach, suggests Dalal.

At the national level, we are not at all good at cyber security in India. We have no cyber security strategy of India. Further, we have neither the cyber warfare policy of India nor critical ICT infrastructure protection policy of India. The worst aspect is that we have no legal framework for cyber security in India. Even the cyber law of India is redundant and impotent and it deserves to be repealed.

Our banks and financial institutions are not safe from cyber attacks. Even though a RBI working group on information security has provided guidelines to ensure cyber security due diligence by banks of India no banks has implemented these cyber security guidelines so far.

India has adopted a casual approach towards cyber security and the same need to be changed as soon as possible.

Repeal Indian Cyber Law Says Experts

2011-06-04T22:55:00.000-07:00

Cyber law of India is present in the form of information technology act 2000 (IT Act 2000). It was drastically amended by the information technology amendment act 2008 (IT Act 2008). This amendment was supposed to strengthen the cyber law of India.

However, the IT Act 2008 made the cyber law of India impotent and ineffective. India has become a safe heaven for cyber criminals who have no fear as there is no stringent law to punish them. This is also the reason why phishing frauds and spam communications have increased a lot in India.

Although we have a Cyber Law but we do not have a Cyber Crimes Law, says Praveen Dalal, managing partner of New Delhi based ICT law firm Perry4Law and leading techno legal expert of India. This is so because after the IT Act 2008 Amendments almost all the Cyber Crimes have been made “Bailable” in India, says Dalal. The IT Act 2000 is vaguely dealing with issues like E-Commerce, E-Governance, Cyber Crimes, etc but practically it caters the requirements of none, opines Dalal.

India has committed a big mistake by incorporating provisions regarding e-governance, e-commerce, cyber crimes, etc at a single place. This way India could not do justice to either of them. This is also the reason why experts in India have been suggesting that cyber law of India should be repealed.

It would be a better approach if issues of E-governance, E-Commerce, Cyber Law, Cyber Security, Cyber Forensics, etc have “Independent Legislations” rather than clubbing them all at a single place, suggests Dalal. It would be better if the Cyber Law of India is repealed and separate laws are formulated for each of the abovementioned areas, opines Dalal.

Although this is a good suggestion but it would be expecting too much from Parliament of India that is very indifferent towards law making these days.

Privacy, Data Protection And India

2011-06-04T21:45:00.000-07:00

India has no privacy laws and data protection laws. This is despite the fact that without these essential laws many governmental projects are simply illegal and unconstitutional. Even future technologies like cloud computing are not safe to be used in India. Further, a special protection to privacy rights in the information age is need of the hour.

However, instead of strengthening the privacy laws and data protection laws in India the government is working in the opposite directions. Indian government has increased its e-surveillance activities and established many e-surveillance oriented projects without proper legal framework.

India has launched many crucial Projects like Aadhar, National Intelligence Grid (NATGRID), Crime and Criminal Tracking Network and Systems (CCTNS), National Counter Terrorism Centre (NCTC), Central Monitoring System (CMS), Centre for Communication Security Research and Monitoring (CCSRM), etc, informs Praveen Dalal, managing partner of Perry4Law and leading techno legal expert of India. None of these Projects and Initiatives are governed by any Legal Framework and none of them are under Parliamentary Scrutiny, informs Dalal.

The latest to add to this e-surveillance wish list is the demand to ensure call data records storage for Five years. However, of all these e-surveillance projects nothing can match the Aadhar project of India or UID project of India that is hiding truth from Indian citizens. Further, illegal phone tapping in India is also a big nuisance that would be put under a scrutiny very soon.

All these illegal and unconstitutional projects are a direct violation of privacy rights and data protection rights of Indians. This lack of privacy has already stalled national intelligence grid (Natgrid) project. The truth is the irrespective of governmental claims, Natgrid is in doldrums.

India must not only formulate a good e-surveillance policy but must also enact strong and effective privacy laws, data protection laws and data security laws. The sooner they are formulated the better it would be for the larger interest of India.

Techno-Legal Measures To Prevent ATM Frauds In India

2011-06-03T07:57:00.000-07:00

Reserve Bank of India (RBI) has recently released the report of its working group on securing card present transaction that covers ATM security as well. RBI has also prescribed cyber security due diligence for banks of India. Despites these pro active steps, ATM frauds are increasing in India.

ATM frauds are executed by techniques like wire tapping, replicating the digital signature of the card, getting authentic personal data at fake data call centres, tampering ATM slots by rigging, phishing through e-mail accounts and fixing hidden cameras at vantage points inside ATM installations to steal the secret PIN number of the customers. Fraudsters use special devices like skimmers, duplicate ATMs, to withdraw stacks of money from ATMs.

In this interview of Praveen Dalal, Managing Partner of New Delhi based ICT Law Firm Perry4Law and leading Techno Legal Expert of India, he has shared the techno legal methods to prevent ATM Frauds in India. ATM frauds can be tackled by using techno legal measures alone.

Q-1 Apart from the spamming and phishing, what are the various kinds of ATM frauds? Please specify the ones that take place at the ATM machine or at the counter.

A.1 ATM frauds happen when someone leaves his/her credit card unattended in a vehicle or changing room or allows anyone else to use the card or looses the card that is misused by others or discloses the Personal Identification Number (PIN) to others, etc. These mistakes allow the offender to withdraw money by using the stolen information. Fraudsters are using special devices, skimmers, duplicate ATMs, etc to withdraw money from ATMs. Sometimes such frauds are an insider job with the collusion of the employees of the company issuing those cards.

Q-2 Out of all the techniques, which one is the most common?

A.2 The misuse of disclosed PIN for withdrawing money is the most common techniques used for committing ATM Frauds.

Q. 3 What the individual can do to avoid their money from being siphoned off due to ATM fraud?

A.3 Some basic precautions by the card holders can be very effective in preventing ATM frauds. For instance, never leave your credit card unattended in a vehicle or changing room, never allow anyone else to use your card, always retain sales/charge slips to compare with the amount specified on the billing statement, do not disclose your PIN to anyone, etc.

Q. 4 Is any new technology available to handle ATM frauds? If yes, please elaborate.

A.4 The technological mechanisms like Designated time, Microchip technology, Biometric tokens, Enhanced security, ATM Monitoring, Customised softwares, Customer motivation, Alerts, etc can be used to minimise and prevent ATM frauds in India.

Q.5 What is the scenario abroad? Are ATM frauds more rampant outside?

A.5 The culture of e-banking is more prevalent in foreign countries. Obviously, the menace of ATM frauds is more in those countries. However the problem of ATM frauds is global in nature and its ramifications have been felt in India as well. Information and Communication Technology (ICT) is forcing Indian legal system to adapt itself as per its requirements. Presently, there is a lack of legal enablement of ICT systems in India and we need good laws in this regard.

Q. 6 What does IT Act 2000 say about ATM frauds?

A.6 The IT Act, 2000 does not contain any specific provisions regarding the same and the traditional law of IPC, 1860 also cannot be relied solely and independently to tackle this problem. We need a better law for this purpose and Perry4Law has already provided its suggestions and recommendations in this regard and other ICT related matters to the Government of India, Department of Information Technology, Department of Science and Technology, Prime Minister’s Office, etc. Till we have suitable and apt laws, we must apply existing laws in a purposive and updating manner.

Are Indian Banks Ready For Cyber Due Diligence?

2011-06-03T03:37:00.000-07:00

Recently Reserve Bank of India (RBI) constituted a working group on information security that gave its report to RBI. Subsequently RBI issued a notification asking the bank to follow the guidelines and recommendations mentioned in the notification. The notification had demarcated the immediately implementable and subsequently implementable aspects of these recommendations.

This “notification” has set a specific timeline for implementation of the final recommendations of working Group. While not all these recommendations are immediately implementable yet some of them are and banks of India must comply with the same till October 31, 2011, informs B.S.Dalal, senior partner of New Delhi based law firm Perry4Law and an ex manager of RBI. These mandatory recommendations pertain to policies and procedures which do not require extensive investment, informs Dalal.

In order to provide focused project oriented approach towards implementation of these guidelines, banks would be required to conduct a formal gap analysis between their current status and stipulations as laid out in the circular and put in place a time-bound action plan to address the gap and comply with the guidelines.

However, banks need to ensure implementation of basic organizational framework and put in place policies and procedures which do not require extensive budgetary support, infrastructural or technology changes, by October 31, 2011. The rest of the guidelines need to be implemented within period of one year unless a longer time-frame is indicated in the circular. There are also a few provisions which are recommendatory in nature, implementations of which are left to the discretion of banks.

It is clear that not all provisions of the report are discretionary but only a small portion of the same. Banks have to establish adequate cyber security and cyber due diligence mechanisms within stipulate periods otherwise action can be taken against them by RBI.

Recently RBI imposed penalty upon 19 banks for non compliance of prescribed standards. Similarly, RBI has also directed that any strictures passed against directors of a bank by any financial sector regulators must be reported to it. Non compliance of the recommendations of RBI working group may attract both penalty and strictures, suggest B.S.Dalal.

The notification also suggests a quarterly review process and the first calendar quarter after the issue of the guideline falls on 30th June 2011. Banks must do the needful in their own interest. They may also seek the expert techno legal services of Perry4Law and Perry4Law Techno Legal Base (PTLB) in this regard. Interested banks and financial institutions may contact them in this regard.

Can Raghu Raman Deliver Natgrid Project On Time?

2011-05-31T05:14:00.000-07:00

Intelligence infrastructure of India is in big mess. Whether it is legal framework or technological infrastructure, Indian intelligence agencies have none. However, even if there are no laws to justify the working of intelligence agencies and law enforcement agencies in India yet their works and projects are well beyond the justifications provided under the constitution of India.

In short, intelligence agencies of India and projects related to them are working without constitutional sanction and parliamentary oversight. Even worst is the fact that they are openly violating privacy rights and civil liberties of Indians.

Take the example of Aadhar project of India or UID project of India. It is managed by Nandan Nilekani as the chairman of unique identification authority of India (UIDAI). Aadhar project is hiding truth from Indians and is a very dangerous and e-surveillances oriented project.

Another project is national intelligence grid (Natgrid) that is also not supported by any legal framework and is well beyond parliamentary scrutiny. Projects like Aadhar, NATGRID, Central Monitoring System (CMS), etc are not desirable without “Constitutionally Sounds Laws” supporting them, opines Praveen Dalal, managing partner of Perry4Law and leading techno legal expert of India. Till now none of these projects are governed by any Legal Framework and Parliamentary Scrutiny informs Dalal.

Now Raghu Raman, project coordinator of Natgrid, has barely got an extension of six months. However, it is doubtful that he can deliver results in such a short period of time. Further, there is an urgent need to establish e-surveillance policy of India as soon as possible.

Lacks of Privacy Safeguards have already stalled Natgrid Project. Irrespective what Indian Government claims, Natgrid Project of India is in troubled waters. Natgrid would remain in doldrums till it is properly planned and legally implemented, opines Dalal.

WIPO Patent Committee Discussed Tech Transfer And Public Health

2011-05-31T04:10:00.000-07:00

Due to some technical problem, our article on similar topic has not appeared in Google news. We are reposting it here for our readers. Any inconvenience in this regard is highly regretted.

The article pertains to initiatives undertaken in the direction of Patents laws by WIPO Patent Committee. These initiatives are very important for both developed and developing countries. However, no consensus has been established in this regard so far.

World intellectual property organisation (WIPO) is the premier international organisation regarding intellectual property rights (IPRs). The sixteenth session of the WIPO’s Standing Committee on the Law of Patents (SCP) was recently conducted from 16th to 29th May, 2011.

The SCP discussed various far reaching issues like patents and public health, technology transfer, and exceptions and limitations to patents. Although these issues are most arguable ones yet some progress has been shown in this session of SCP.

Issues like Pharmaceuticals and Public Health, Data Exclusivity, Technology Transfer, etc are still to be resolved at the International Level, informs Praveen Dalal, managing partner of New Delhi based IP and ICT Law Firm Perry4Law and a Panelist at WIPO Arbitration and Mediation Centre. We welcome the latest effort of SCP and consider it as the beginning of Future Negotiations, says Dalal.

Developing nations are still struggling to deal with technological issues and technology transfer is a must to successfully meet them. While developing countries are insisting upon effective technology transfers yet developed countries are not that enthusiastic regarding the same.

Similarly, the data exclusivity issues are also a bone of contention. European Union and developed countries are insisting upon the same while it is not covered by TRIPS Agreement.

Let us see how future negotiations in these crucial fields would take a shape that can be beneficial for both developed and developing countries.

WIPO Patent Committee Considered Public Health And Tech Transfer

2011-05-31T03:10:00.000-07:00

World intellectual property organisation (WIPO) is the premier international organisation regarding intellectual property rights (IPRs). The sixteenth session of the WIPO’s Standing Committee on the Law of Patents (SCP) was recently conducted from 16th to 29th May, 2011.

The SCP discussed various far reaching issues like patents and public health, technology transfer, and exceptions and limitations to patents. Although these issues are most arguable ones yet some progress has been shown in this session of SCP.

Issues like Pharmaceuticals and Public Health, Data Exclusivity, Technology Transfer, etc are still to be resolved at the International Level, informs Praveen Dalal, managing partner of New Delhi based IP and ICT Law Firm Perry4Law and a Panelist at WIPO Arbitration and Mediation Centre. We welcome the latest effort of SCP and consider it as the beginning of Future Negotiations, says Dalal.

Developing nations are still struggling to deal with technological issues and technology transfer is a must to successfully meet them. While developing countries are insisting upon effective technology transfers yet developed countries are not that enthusiastic regarding the same.

Similarly, the data exclusivity issues are also a bone of contention. European Union and developed countries are insisting upon the same while it is not covered by TRIPS Agreement.

Let us see how future negotiations in these crucial fields would take a shape that can be beneficial for both developed and developing countries.

Empanelment Of Neutrals At PTLB

2011-05-30T04:01:00.000-07:00

Alternative dispute resolution (ADR) and online dispute resolution (ODR) are becoming popular these days. However, technology dispute resolution in India is the new field that arbitrators, mediators and neutrals must be looking forward.

However, there are very few technology dispute resolution providers in the world. Further, when it comes to techno legal dispute resolution services, there is none except Perry4Law Techno Legal Base (PTLB). PTLB is the exclusive techno legal ODR service provider of the world. It provides a wide variety of techno legal dispute resolution services.

PTLB is currently empanelling neutrals for its fast growing techno legal ADR and ODR services. A minimum five years experience in arbitration matters is required to be empanelled with PTLB. The empanelment would be for minimum of one year (1) and maximum of five (5) years.

The empanelment may be renewed at the discretion of PTLB and Perry4Law. The requisite Performa for Individuals can be downloaded from “Here”. The Firms, Companies, Institutions, etc can download the Performa from “Here”.

The application form must be accompanied with proper fees in order to be analysed. Perry4Law and PTLB have the sole discretion to accept or reject the empanelment requests.

For all those arbitrators and mediators who wish to expand their practice to international markets, this is a golden opportunity. If a neutral has dealt with domain name disputes or other similar technology related disputes, he/she may prefer to empanel with PTLB. Contact PTLB with the prescribed fees and application form in this regard.

Should Uniform Dispute Resolution Policy (UDRP) Be Changed?

2011-05-27T22:53:00.000-07:00

Internet Corporation for Assigned Names and Numbers (ICANN) has formulated the Uniform Dispute Resolution Policy (UDRP) long before. It has stood the test of the time. However, with the passage of time, new challenges and issues have also arisen.

This has forced the GNSO Council to consider a revision of UDRP norms. The UDRP has not been reviewed by the GNSO Council since its inception. ICANN has come up with a preliminary issue report on the current state of UDRP. This report is seeking inputs from UDRP specialists and public at large for the desirability to bring necessary changes in the UDRP policy.

According to Praveen Dalal, managing partner of New Delhi based IP and ICT Law firm Perry4Law and a Panelist at WIPO Arbitration and Mediation Centre, ICANN has been taking many pro active steps for streamlining the Domain Name world. For instance, recently ICANN and INTERPOL have agreed to work in the direction of Securing Internet, informs Dalal. Now a Preliminary Issue Report on the Current State of the UDRP has been released by ICANN to gather popular opinions of Stakeholders, informs Dalal.

There is opinion for both in favour of and against such revision. WIPO’s Erik Wilbers is not in favour of bringing changes in the present UDRP scheme. In fact, WIPO has written a letter to ICANN advising it against revising the UDRP. WIPO argues that the UDRP has proven to be flexible and fair; that this is in any event the wrong time to revise it given expansion of the domain name system and introduction of new rights-protection mechanisms; that review would probably end up overburdening the UDRP; and that any review should be preceded by an analysis of cybersquatting.

As far as India is concerned, technological issues of IPRs in India are still not popular. For instance, we do not have a Dedicated Law on Domain Name Protection in India, informs Dalal. Domain Name Protection in India is needed and in order to do so we need a Dedicated Domain Name Law, suggests Dalal. It would be better if India makes its choice and opinion regarding the Report very clear opines Dalal.

While none can doubt that UDRP is far from perfect yet whether it must be amended or not have to be decided only after analysing the opinions of both sides.

WIPO Must Strengthen Its Technology Dispute Resolution Services

2011-05-25T01:44:00.000-07:00

World Intellectual Property Organisation (WIPO) is a well known name in the fields of intellectual property rights (IPRs) and dispute resolution. WIPO has its own Arbitration and Mediation Centre (AMC) that provides world renowned dispute resolution services.

WIPO also provides world class domain name dispute resolution services. Parties to the dispute can draw upon a growing database of over 1,500 independent WIPO arbitrators, mediators and experts from 70 countries. The candidates on the WIPO List of Neutrals range from seasoned dispute resolution generalists to highly specialized practitioners and experts covering the entire legal and technical spectrum of intellectual property. Their geographical diversity suits the international character of many disputes. The general WIPO List of Neutrals is not made available as such to the public. However, the WIPO Center does publish its specific list of WIPO Domain Name Panelists.

One area that WIPO must pay special attention is Dispute Resolution of Cross Border Technology Transactions and E-Commerce Disputes, suggests Praveen Dalal, managing partner of New Delhi based IP and ICT law firm Perry4Law and a Neutral at WIPO Arbitration and Mediation Centre. The future disputes would be Techno Legal in nature and WIPO must be well prepared to deal with the same, suggests Dalal.

Although WIPO is world renowned for its domain name dispute resolution services yet in areas like cyber law disputes, cyber forensics disputes, e-discovery related disputes, etc, WIPO is still establishing itself.

WIPO must establish a “Separate and Dedicated List” of Panelists who can manage the Techno Legal Disputes in an effective manner, suggests Dalal. This List must be made Public so that the expertise of Panelists of WIPO is well known in advance, suggests Dalal.

This seems to be a good suggestion that WIPO must seriously consider. Its present list of domain name specialists is not reflective enough upon its true capabilities. With growing competition from other international institutions and organisations like European Union (EU), United Nationals Commission on International Trade Law (UNCITRAL), etc, WIPO cannot afford to take it lightly.

Even at the national level, ODR services providers like Perry4Law and Perry4Law Techno Legal Base (PTLB) have been working hard in his regard. In fact, Perry4Law and PTLB have recently provided the first Technology Dispute Resolution Policy of India and ODR Policy of India.

Bilateral agreements between various countries may also be beneficial in this regard. EU India has lots in common in this regard and we must engage in an EU India ODR Development Dialogue, suggests Dalal. Let us see how the techno legal ADR and ODR dispute resolution services would take a shape in the future.

EU India Cross Border Consumer Disputes Resolution

2011-05-24T23:07:00.000-07:00

International organisations and stakeholders like United Nations, United Nations Commission on International Trade Law (UNCITRAL), European Union Commission (EU Commission), World Intellectual Property Organisation (WIPO), World Trade Organisation (WTO), etc have been stressing hard on the use of Alternative Dispute Resolution (ADR) and Online Dispute Resolution (ODR) for resolving various disputes.

However there is no bridge between EU Commission and India in this regard. Thanks to the initiatives of Perry4Law and Perry4Law Techno Legal Base (PTLB) that ODR Policy of India and Technology Dispute Resolution Policy of India has finally been suggested.

Now EU Commission has considered use of ADR and ODR for Cross Border Consumer Disputes. As far as India is concerned, Cross Border Dispute Resolution, especially Cross Border Technology Transactions Dispute Resolution, is still at the infancy stage.

Even the basic level ODR in India is facing sever legal roadblocks. There is no Dedicated Legal Framework for ODR in India, informs Praveen Dalal, managing partner of New Delhi based ICT law firm Perry4Law and CEO of exclusive techno legal ODR service provider centre of India. Even the Arbitration and conciliation Act 1996 needs urgent Amendments so that it may not contribute for further increase in backlog of cases in India, suggests Dalal.

EU has been working in the direction of use of Information and Communication Technology (ICT) for effective Dispute Resolution and it must work in association with countries like India in this regard, suggests Dalal. There is an urgent need of EU India ODR Development Dialogue, suggests Dalal.

Even the Law Ministry of India in general and Veerappa Moily in particular must seriously consider changing the ADR and ODR environment of India. The present legal and judicial setup of India is not conducive for the same.

Perry4Law And PTLB Suggested ODR Policy Of India

2011-05-24T10:44:00.000-07:00

Online dispute resolution (ODR) and technology dispute resolution (TDR) are issues that have not been explored much by India. Even alternative dispute resolution (ADR) mechanism has also not been explored to the maximum possible extent in India.

Further, there are very few ADR and ODR service providers in India. However, when it comes to technology dispute resolution and techno legal dispute resolution services, there are only handfuls of ODR service providers in India.

Perry4Law and Perry4Law Techno Legal Base (PTLB) are providing the exclusive techno legal ODR and technology dispute resolution services in India. However, both ODR and Technology Dispute Resolution requires a National Policy for effective use in India, says Praveen Dalal, managing partner of Perry4Law and leading techno legal expert of India.

Presently India has no policy in this regard. Realising the same, Perry4Law and PTLB have provided the exclusive Technology Dispute Resolution Policy of India, informs Dalal.

The policy covers issues like legal standards of ODR, international harmonisation of ODR, cross border technology dispute resolution, cross border e-commerce dispute resolution, etc.

The policy has also suggested bringing suitable amendments in the arbitration and conciliation act 1996 that is the sole ADR law of India.

The policy has arranged and assembled all the possible information that Perry4Law and PTLB have shared in this regard so that individuals and international organisations like United Nations, United Nations Commission on International Trade Law (UNCITRAL), World Intellectual Property Organisation (WIPO), World Trade Organisation (WTO), etc can be benefited from the same.

Let us hope the Law Ministry of India in general and international organisations like UN, UNCITRAL, WIPO, WTO, etc would consider the same while formulating national and international policies, norms and regulations.

Will Natgrid And NCTC Be Established In India?

2011-05-17T00:23:00.000-07:00

National intelligence grid (Natgrid) of India and national counter terrorism centre (NCTC) of India has been planned for a long. Despite many deadlines, both Natgrid and NCTC have failed to take a start. Both are very important projects yet they must be subjected to Parliamentary oversight as well as must balance fundamental rights with national security requirements.

According to Praveen Dalal, managing partner of India’s exclusive techno legal ICT law firm Perry4Law and CEO of human rights protection centre of India for cyberspace, NATGRID and NCTC are essential for National Security of India. However, certain Constitutional, Legal and Technical issues must be resolved beforehand for the successful implementation of these Projects, suggests Dalal.

NATGRID and NCTC are essential for robust and effective Intelligence Agencies and Law Enforcement Functions in India. The only requirement is to ensure that their “Abuses” can be anticipated, prevented and remedied, suggests Dalal. The present intelligence infrastructure of India is in bad shape and there is an urgent need to rejuvenate the same.

For instance, hints have been given that Blackberry, Gmail, Skype and other similar encryption oriented services would not be banned in India. In the near future, intelligence agencies of India and law enforcement agencies of India would be required to develop intelligence gathering skill development. With the present skills of these agencies technological issues would pose great trouble for them in future.

Meanwhile, the very projects of Natgrid and NCTC are in danger of being redundant and no starter. The Home Ministry has informed the Cabinet Committee on Security (CCS) that any further delay in establishing the Natgrid could have serious repercussions for the country’s internal security.

There are many techno legal issues that Home Ministry, Natgrid, NCTC, etc have to resolve. In the absence of resolving these issues, these projects may never see the light of the day.

Aadhar Project And UIDAI Booty Sharing Got Sour

2011-05-16T22:16:00.000-07:00

Till now it is absolutely clear that Indian government, unique identification project of India (UID project) or Aadhar project of India and unique identification authority of India (UIDAI), led by Nandan Nilekani, are fooling Indians.

Aadhar project and UIDAI are evil designs to indulge in illegal and unconstitutional e-surveillance upon Indians. Aadhar project and UIDAI are based upon deceit and deception. There is no legal framework, no defined policies and guidelines and most importantly no procedural and civil liberty safeguards.

In reality, Aadhar project and UIDAI have evil intentions. In fact, Aadhar project and UIDAI are the most evil projects of India till now. This is the reason why Aadhar project or UIDAI have never got a smooth sail. The failure of Aadhar project is also attributable to the controversial nature of the project as well as due to the arbitrary manner of its launch.

Surprisingly, till now the UID project has not shown any of the requisite parameters that allow it to receive huge public money that government of India is very willing to give charitably. Even the loans and grants by World Bank are without any transparency and accountability. In the absence of any transparency and accountability, the whole project seems to be “booty sharing” by big companies at the cost of public interest.

This is also evident the way finance ministry is allotting public money to UIDAI even in the absence of any legal framework. Further, the UIDAI is itself deviating from its adopted policies and guidelines. For instance, UIDAI is now backing away from its open technological standards and is indulging in the vendor lock-in tactics. The intention is to simply share the hard earned public money with few even when freely available software options are readily available.

Similarly, UIDAI is encouraging making Aadhar number mandatory despite its initial stand. In fact, the Mysore district authorities have declared that quoting of Aadhar number would be compulsory at various levels in the state government offices in the district.

According to Praveen Dalal, managing partner of New Delhi based ICT law firm Perry4Law and leading techno legal expert of India, we have no “Dedicated” Data Protection Law in India. Even India does not have a Data Security Law and Privacy Law. This makes the sensitive information and personal details of Indian Citizens “Highly Vulnerable” to misuse, informs Dalal.

Surprisingly L-1 Identity Solutions, headquartered in Stamford, Connecticut, and another U.S.-headquartered company, lead two of the three vendor consortia, which have been “prequalified” by the UIDAI for the first phase of an effort to register Indian residents with a 12-digit unique number using biometric identifiers. It is ironical that the countries who discarded similar projects themselves are implementing the same in India.

Frustrated by the management of Aadhar project, two of the world's largest technology companies - IBM and HP - on Monday opted out from bidding for the 2,000-crore outsourcing contract to manage the world's biggest citizen identity database. It seems the booty sharing of Aadhar project and UIDAI has got sour. No matter how much controversial the Aadhar project and UIDAI may get, we Indians have a habit of discussing the same and then forget about it. Indians wake up before it is too late or another multi billion rupees scam hits you. Similarly, wake up before your civil liberties are sold forever to foreign vendors and our e-surveillance hungry nation.

Blackberry, G Mail And Skype May Not Be Banned In India

2011-05-16T05:04:00.000-07:00

Blackberry, Gmail and Skype have been asked to provide encryption free services in India. When these companies conveyed their inability to do so, Indian government warned them of banning their services in India. Subsequently, India issued directions to telecom service providers forcing them to drop Blackberry’s services if Blackberry does not provide free and unencrypted access to its services in India.

This episode has happened because we have no lawful interception law in India, no encryption policy in India, no effective telecom policy in India, a draconian and ineffective cyber law of India that needs urgent repeal and many more such factors.

According to Praveen Dalal, managing partner of New Delhi base law firm Perry4Law and leading techno legal expert of India, India is the only country of the World where Phone Tapping and Interceptions are done without a Court Warrant and by Executive Branch of the Constitution of India. Phone Tapping in India is “Unconstitutional” and the Parliament of India has not thought it fit to enact a “Constitutionally Sound Law” for Phone Tappings and Lawful Interceptions. Even the Supreme Court’s directions in PUCL case have proved futile and presently the Court is dealing with the issue once more, informs Dalal.

While none can doubt about the National Security and Law Enforcement Requirements yet they must be “Reconciled” with Fundamental Rights of Indians, says Dalal. Further, Intelligence Infrastructure of India also needs urgent rejuvenation, suggests Dalal. Recently the Home Ministry of India asked the Departments of Telecommunication (DoT) and Department of Information Technology (DIT) to examine the existing legal framework and recommend appropriate amendments of the laws to ensure smooth access to services like BlackBerry and Skype.

DoT has now clarified its stand in this regard and it is against the proposal of discontinuing about 14 communication services that intelligence agencies cannot track currently. Further, DoT is also not in favour of imposing responsibility upon mobile phone companies to provide assistance to decrypt all the services they provide.

Keeping in mind this latest development, it can be assumed that services of Blackberry, Gmail, Skype, etc would not be banned in India for some more time.

However, Indian intelligence agencies and law enforcement agencies must concentrate upon skills development in India. Further, one thing that Indian intelligence agencies must develop on priority basis is techno legal Intelligence gathering skills development. Encrypted services in India are going to stay and law enforcement and intelligence agencies must develop skills to deal with the same in future.

Has Parliament Of India Become Redundant?

2011-05-14T22:30:00.000-07:00

Indian constitution provides, to a great extent, separation of powers between executive, legislature and judiciary. However, of late this separation of power has ceased to exist in India. The balance has been disturbed as parliament of India is not performing the tasks assigned to it by Indian constitution.

India is perhaps the only country of the World whose Agencies and Instrumentalities are working without any law supporting their existence, informs Praveen Dalal, managing partner of new Delhi based law firm Perry4Law and leading techno legal expert of India. Whether it is the Aadhar Project/ UID Project, Unique Identification Authority of India (UIDAI), Intelligence and Law Enforcement Agencies of India, etc none of them are “Practically Governed” by any Legal Framework and Parliamentary Scrutiny, informs Dalal.

Instead of increasing the transparency and parliamentary scrutiny, India is further making these agencies more unaccountable and lawless. The right to information act 2005 (RTI Act 2005) is the sole transparency law of India that needs further amendments and strengthening. However, the proposed right to information rules 2010 instead of strengthening the RTI Act, 2005 took steps that are retrograde in nature.

Whether it is Central Bureau of Investigation (CBI) or Intelligence Agencies of India, none of them are presently Accountable to Parliament of India, informs Dalal. This casts a doubt about the Impartiality and Transparency of these Agencies, suggests Dalal.

The latest to add to this list of doubts is the proposal to exclude CBI, national investigation authority of India (NIA) and national intelligence grid (Natgrid) from the applicability of RTI Act, 2005. The constitutional validity of national investigation agency act, 2008 (NIA 2008) is still doubtful and CBI and Natgrid are not governed by any law at all. Even the proposed central monitoring system of India is without any parliamentary oversight.

In these circumstances it can be safely said that 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.

Are Indian Parliamentarians listening or has Indian Constitution been “Bypassed” for surrendering all its “Constitutional Powers” to its Executive Branch and Bureaucrats?, asks Dalal. Perhaps, the concept of “Separation of Power” no longer exists under Indian Constitution, says Dalal.

Why Aadhar Project And UIDAI Are Dangerous

2011-05-14T02:18:00.000-07:00

It seems Google is still facing the technical problems as its news servers are giving a 503 error. Despite our posting this article twice, it failed to appear at Google news. While Google's Blogger platofm says that everything is alright, it seems many technical issues have yet to be resolve by it before Blogger is finally back.

Google’s Blogger platform has recently faced a technical glitch due to data corruption. This resulted in inability to post to Blogger platforms as well as deletion of some recent posts and comment. With the diligent efforts of Google, not only Blogger is back but even the posts have been restored.

Our citizen journalism platform is also Blogger based. This may be reason why our post titled “the dangers of Aadhar project and UIDAI” did not appear in the Google’s News segment. We are posting the same once again for our readers. Any inconvenience is regretted.

Unique identification project (UID project) or Aadhar project of India is always portrayed as a welfare scheme. In reality, Aadhar project and UIDAI have evil intentions. In fact, Aadhar project and UIDAI are the most evil projects of India till now.

What is more surprising is why this e-surveillance and big brother project has not been scrapped by the Prime Minister’s office (PMO). In this interview of Praveen Dalal, managing partner of New Delhi based ICT Law Firm Perry4Law and a Supreme Court Lawyer, he has shared his opinion and concerns regarding Aadhar project and UIDAI.

Q 1. Is India ready for a controversial project like Aadhar?

A 1. In my personal opinion, India is not yet ready for either Aadhar Project/UID Project or Unique Identification Authority of India (UIDAI). In fact, both Aadhar and UIDAI are “Highly Undesirable” at this stage. Aadhar and UIDAI must be preceded by a Constitutionally Sound Legal Framework and Parliamentary Oversight. Both of these are missing presently making it an “Unconstitutional Project”.

Q 2. What is the process of making a constitutionally sound law in India?

A 2. Constitutionally preparation of a Legislation/Bill is the duty of Indian Government and it must be passed by the Parliament of India. In this case, an authority like UIDAI is suggesting the Bill that (UIDAI) itself is devoid of any Constitutional Validity. Indian Government must come up with its own Bill on Aadhar Project as even the Bill by UIDAI is mere “Eyewash” and does not make much difference. Even if it is passed by Parliament of India, the Unconstitutional Nature of the Aadhar Project and UIDA would remain the same.

Q-3. What are the serious concerns that have been ignored by Indian Government, UIDAI and Indian Cabinet?

A-3 I found it really surprising the way the Bill prepared by UIDAI was cleared by Cabinet and introduced in the Parliament. Many issues, including Profiling, Privacy Safeguards, Civil Liberties Protection, E-Surveillance, etc have been totally neglected by UIDAI and Cabinet and perhaps would be ignored by the Parliament of India as well.

Q 4. How do you see the present activities of Aadhar project and UIDAI?

A 4. The present exercise of taking Biometric Details of Indians is simply “Unconstitutional”. A Project and Authority without any Legal Sanction and Parliamentary Oversight cannot indulge in these activities on such a mass scale. I believe the Government of India is violating various Civil Liberties of Indian though Aadhar Project and UIDAI by making it, Directly and Indirectly, Relevant and Mandatory.

Q-5. Is Aadhar project and UIDAI still not governed by any legal framework and what are the recent developments in this regard?

A 5 Yes. Till now the position has not changed. Rather it has become worst where the District like Mysore has made UID Number Mandatory for various Public Services even though UIDAI claims it to be Optional. Practically UID never was, and never will be, Optional.

Q 6. What are the possible Civil Liberty violations that Indians can face in near future?

A 6. There are great chances that Biometric Details of Indian would be shared with Intelligence Agencies of India and Law Enforcement Agencies of India. Projects like National Intelligence Grid (NATGRID), Crime and Criminal Tracking Network and Systems (CCTNS). Central Monitoring System (CMS), etc would love to utilise these Biometric Details.

Aadhar Project And UIDAI Are Big Brother Projects

2011-05-14T01:58:00.000-07:00

Media reports have been revealing the truth of Aadhar project of India and unique identification authority of India (UIDAI). Media has been pointing towards e-surveillance and big brother role of Aadhar project and UIDAI.

The danger of Aadhar project and UIDAI are apparent and now the evil intentions of Aadhar project and UIDAI are appearing one by one. In fact, Aadhar project and UIDAI are the most evil projects of India till now.

In this interview of Praveen Dalal, managing partner of New Delhi based ICT law firm Perry4Law and leading techno legal expert of India, some of the issues that make Aadhar project and UDIAI illegal and unconstitutional have been discussed. According to Praveen Dalal nothing short of a “Legislative Deliberation” between UIDAI and Stakeholders/Experts can resolve this problem.

Q-1 Why are Aadhar project and UIDAI illegal and unconstitutional?

A-1 Aadhar/UIDAI is illegal for many reasons. The primary being that neither Aadhar Project nor UIDAI is governed by any Legal Framework. As I said before the Legal Framework must be “Constitutionally Valid”, i.e. it must pass the tests of Part III (Fundamental Rights) and other Parts of the Constitution of India. I am not commenting upon the “Constitutional Validity” of an Executive Order at this point of time, though it is a very important and controversial issue as well.

Q-2 What are your main concerns regarding Aadhar project and UIDAI?

A-2 My biggest concerns are absence of Legislative Framework for Aadhar Project and UIDAI. Further, absence of Privacy Laws and Data Protection Laws would also seriously jeoparidise Aadhar Project and UIDAI.

Q-3 What Indian government and UIDAI must do now?

A-3 The Government of India/UIDAI must at least enact a “Constitutionally Valid” Legal Framework for Aadhar Project and UIDAI before proceeding further. National Identification Authority of India Bill 2010 (Bill) proposed by UIDAI is a good “Administrative Framework” but it is far from being a “Constitutionally Sound” Law that can protect Aadhar Project and UIDAI from the attacks of Unconstitutionality.

Q-4 Has Aadhar project and UIDAI been legally challenged so far?

A-4 I am not aware of any Petition that has challenged UIDAI’s constitutionality. Of course, there are some Citizen Groups and NGOs that are also raising these objections. I do not recollect the name of these Groups and NGOs.

Q-5 What is the current legal status of Aadhar project and UIDAI? Are they legally binding upon Indian citizens?

A-5 Neither Aadhar Project nor UIDAI would be “Fait Accompli” for Indian citizens. The formal launch of Aadhar is of not “Significance” as it has neither been “Successful” in India nor it is “Immuned” to any sort of legal or Constitutional challenge. All the past and present acts or omissions of Aadhar Project/UIDAI can be, and would be, challenged in a Constitutional Court in due course of time.

The Dangers Of Aadhar Project And UIDAI

2011-05-13T21:50:00.000-07:00

Unique identification project (UID project) or Aadhar project of India is always portrayed as a welfare scheme. In reality, Aadhar project and UIDAI have evil intentions. In fact, Aadhar project and UIDAI are the most evil projects of India till now.

What is more surprising is why this e-surveillance and big brother project has not been scrapped by the Prime Minister’s office (PMO). In this interview of Praveen Dalal, managing partner of New Delhi based ICT Law Firm Perry4Law and a Supreme Court Lawyer, he has shared his opinion and concerns regarding Aadhar project and UIDAI.

Q 1. Is India ready for a controversial project like Aadhar?

A 1. In my personal opinion, India is not yet ready for either Aadhar Project/UID Project or Unique Identification Authority of India (UIDAI). In fact, both Aadhar and UIDAI are “Highly Undesirable” at this stage. Aadhar and UIDAI must be preceded by a Constitutionally Sound Legal Framework and Parliamentary Oversight. Both of these are missing presently making it an “Unconstitutional Project”.

Q 2. What is the process of making a constitutionally sound law in India?

A 2. Constitutionally preparation of a Legislation/Bill is the duty of Indian Government and it must be passed by the Parliament of India. In this case, an authority like UIDAI is suggesting the Bill that (UIDAI) itself is devoid of any Constitutional Validity. Indian Government must come up with its own Bill on Aadhar Project as even the Bill by UIDAI is mere “Eyewash” and does not make much difference. Even if it is passed by Parliament of India, the Unconstitutional Nature of the Aadhar Project and UIDA would remain the same.

Q-3. What are the serious concerns that have been ignored by Indian Government, UIDAI and Indian Cabinet?

A-3 I found it really surprising the way the Bill prepared by UIDAI was cleared by Cabinet and introduced in the Parliament. Many issues, including Profiling, Privacy Safeguards, Civil Liberties Protection, E-Surveillance, etc have been totally neglected by UIDAI and Cabinet and perhaps would be ignored by the Parliament of India as well.

Q 4. How do you see the present activities of Aadhar project and UIDAI?

A 4. The present exercise of taking Biometric Details of Indians is simply “Unconstitutional”. A Project and Authority without any Legal Sanction and Parliamentary Oversight cannot indulge in these activities on such a mass scale. I believe the Government of India is violating various Civil Liberties of Indian though Aadhar Project and UIDAI by making it, Directly and Indirectly, Relevant and Mandatory.

Q-5. Is Aadhar project and UIDAI still not governed by any legal framework and what are the recent developments in this regard?

A 5 Yes. Till now the position has not changed. Rather it has become worst where the District like Mysore has made UID Number Mandatory for various Public Services even though UIDAI claims it to be Optional. Practically UID never was, and never will be, Optional.

Q 6. What are the possible Civil Liberty violations that Indians can face in near future?

A 6. There are great chances that Biometric Details of Indian would be shared with Intelligence Agencies of India and Law Enforcement Agencies of India. Projects like National Intelligence Grid (NATGRID), Crime and Criminal Tracking Network and Systems (CCTNS). Central Monitoring System (CMS), etc would love to utilise these Biometric Details.