Self defence in cyberspace is a much needed capability that must be developed by not only a nation but also by its citizens. Nations are facing increasing threats of cyber espionage and cyber security breaches by cyber criminals and other nations. Similarly, citizens are under constant threats of unconstitutional privacy violations through e-surveillance, eavesdropping and electronic interceptions. Both nations and citizens must know the methods of self defence.But the crucial question is what the dividing line is between self defence and cyber crime? Legally speaking, while using such self-help measures the property and rights of the general public, companies, government, etc should not be affected. It would also not be unreasonable to demand that such self-help measures should not themselves commit any illegal act or omission.
According to Praveen Dalal, a Supreme Court lawyer and leading techno legal expert of India, the Right of Self Defence ceases the moment it violates a “Constitutionally Sound Law”. It is not any law that ends Self Defence but a Constitutionally Valid Law alone that can restrict its applicability, suggests Dalal.
With a growing zest for getting greatest e-surveillance and interception powers, governments all over the world are enacting laws that are not constitutionally sound. Though ordinary citizens silently follow these laws, technical minds are at constant rebel.
Take the example of the recent distributed denial of service (DDoS) attacks on web sites of Visa, MasterCard, Amazon, and PayPal that severed ties with WikiLeaks. The group Anonymous, accused of the attack, claims that DDoS attacks are simply the digital equivalent of a protest or sit-in. They claim it to be a form of modern civil protest in cyberspace.
Whether Anonymous would be guilty for DDoS or not depends upon the fact whether they “exceeded their Constitutional Rights” and “Violated a Constitutionally Valid Law”, says Praveen Dalal. If they did exceed their “Constitutional Rights”, they would be held liable. If either they have not exceeded that limit or there is “no Constitutionally Valid Law” under which they could be booked, they are not liable, says Dalal.
In the Indian context, one such law that is definitely unconstitutional is information technology act, 2000 (IT Act, 2000) as it provides unregulated, unaccountable and unconstitutional e-surveillance, Internet censorship and website blocking powers to Indian government and its agencies. There are no procedural safeguards that can prevent civil liberties violations through misuse of such powers. In fact, phone tapping is already happening in India in an unconstitutional manner and the matter is pending before the Supreme Court of India. Let us see how Indian government would face self defence in Indian cyberspace and prove it an offence in India.
