India Waking Up To Encryption Realities

Indian companies are adopting many technological methods to streamline their production and efficiency. While these methods can bring cost economy and production efficiency yet these technologies must be used in such a manner that they do not violate the laws of India.

For instance, the virtualisation, cloud solutions and encryption usage in India is subject to many laws like the cyber law of India incorporated in the information technology act 2000 (IT Act 2000), privacy laws, data protection and data security laws, etc. Cyber law due diligence in India is now well established and websites, companies and individuals must ensure the same in their own interests.

According to Praveen Dalal, managing partner of Perry4Law and leading techno legal expert of Asia, we have no dedicated Encryption Laws in India. Since this is a very crucial issue, Indian Encryption Policy must be formulated as soon as possible. Realising that Encryption Policy of India is needed, India is now considering formulating the same, informs Dalal. The proposed Encryption Policy plans to increase the encryption strength from 40 bits to 128 Bits, informs Dalal.

The new encryption policy would be announced by the Department of Information Technology (DIT) and it intends to strengthen the online and cyber security standards in India. However, this move may make the law enforcement agencies and intelligence agencies of India nervous as they are not comfortable with high encryption levels.

However, a Higher Encryption Level would strengthen E-Commerce in India as online sales, purchases and payments in India could then be made in a more “Secure” manner, suggests Praveen Dalal. For instance, Online Shopping in India has certain Legal and Cyber Security Issues that must be resolved before launching any Online Payment or E-Commerce Platform, informs Dalal.

India has so far failed to maintain a balance between national security, civil liberties and commercial requirements. Even a matter is pending before the Supreme Court of India where it would try to reconcile the Mobile Verification and National security Requirements in India, informs Dalal.

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

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.