CBI Website Defacement Investigation In Progress

It has been more than four months since the website of central bureau of investigation (CBI) was defaced by accused Pakistani cyber army. There has been a constant cyber fights between so called Indian cyber army and Pakistani cyber army.

However, by and large these cyber fights have remained to be works of mere script kiddies alone. Much more sophisticated cyber attacks are in progress and some of them are even untraceable for the time being.

As per the recent media report, the CBI has identifies the source of these cyber attacks. According to CBI the portals located at US and Latvia were used to launch the cyber attacks upon CBI site.

CBI along with Computer Emergency Response Team-India (CERT-In) has produced a report in the court of Chief Metropolitan Magistrate Vinod Yadav and has requested the permission to approach authorities in the US and Latvia for collecting required information from technical incharge/ administrators/ web managers of the said portals. Their statements will be recorded so as to ascertain the users of the Internet protocol address (IP address) through which the attack on the website was committed.

However, the chances of catching the culprits are very dim, claims Praveen Dalal, managing partner of New Delhi base techno legal firm Perry4Law and leading techno legal expert of India. This is because of two reasons. Firstly, it has been more than Four Months since the attack took place. Till now most of the Logs would have been either deleted, tampered with or modified, informs Dalal. Secondly, there are great chances that Insecure Wireless Connection must have been used for committing this attack, informs Dalal. This makes it next to impossible to detect the true identity of the attacker after this long delay, claims Dalal.

Moving the court, the CBI sought issuance of letters of request to the US Department of Justice and Latvia’s Ministry of Justice for legal assistance. The CBI said that it was essential to get the user details of the three IP addresses in order to locate and ascertain the present whereabouts of the users and examine them on their role in the hacking. The application stated that besides drawing out necessary information from the incharges of the web portals to elicit names, addresses, e-mail addresses and other details of the users, certain documents and articles were also to be collected.

However, what is not understandable is why it took CERT-In and CBI four months to retrieve the crucial IP addresses. This delay is going to cost them crucial evidence that would have been lost as per the experts. I wish CBI and CERT-In all the best and see if they get any evidence out of the portals mentioned by them.

Indian National Digital Preservation Policy

This is the updated version of my previous article titled national digital preservation policy of India. Digital contents issues in India have not received the attention of Indian government for long. The fields of digital contents creation and management as well as digital preservation in India have effectively remained untouched.

Digital preservation means transforming, storing, archiving various forms of media that has been transferred to a digital format and getting a long term access to it. The aim is to ensure that past and present information is accessible in digital format to subsequent generations.

For instance, the Indian government has asked for a nationwide search to locate at least one print of the first Indian Talkies film Alam Ara that introduced sound in Indian cinema. If there were a sound digital preservation policy of India at place, this would not have happened.

Digital preservation (DP) in India is a very recent concept that has not even been conceptualised properly. There is neither a legal framework in this regard nor national policies and strategies in India. Although a National Digital Preservation Programme (NDPP) of India has been launched but it is at a very nascent stage. DP is becoming an important requirement all over the World and India cannot ignore the importance of the same.

The DP initiatives are facing many road blocks that are preventing them from materialising in India. For instance, Intellectual Property Rights (IPRs) are occasionally found on the crossroads of DP initiatives. The IPRs Issues in the digital era are also closely related to the requirements of DP in India.

With the rapid advancement of technology day by day, old applications and methods are becoming obsolete. We need to upgrade them from time to time. We also need to change form of various IPRs protected works from one form to another. This sometimes results in copyright, trademark, patents, etc violations. In short, IPRs issues in the digital era and cyber space are difficult to manage and we need both good policies and laws to manage the same effectively.

There is no Regulatory Framework for Digital Preservation in India and it is managed by Administrative Side of Indian government, informs Praveen Dalal, managing partner of New Delhi based IP and ICT Law Firm Perry4Law and leading techno legal expert of India. Even the Information Technology Act, 2000 (IT Act, 2000) is not sufficient to accommodate the issues of Digital Preservation, Digital Curation, etc and we need a dedicated Digital Preservation Legal Framework in India, suggests Dalal.

According to Dalal Digital Preservation issues are also going to be more complicated with the enactment of laws like Digital Millennium Copyright Act, 1998 (DMCA). Efforts are in the pipeline for adoption of an efficient Digital Rights Management (DRM) system in India. This seems to be a step in the direction of protecting fast-growing Indian Digital Entertainment and Media Industry, informs Dalal.

This may not be fruitful if we fail to appreciate the ground realities existing in India. India needs a Techno-Legal Law that is in conformity with Indian Standards and Norms”. The first and foremost requirement for DP in India is to formulate a good and effective techno-legal digital preservation policy of India.

The task is really difficult unless good experts are involved in this much needed project. With the basic policy framework we can further proceed towards techno-legal framework as well. For the time being, digital preservation initiatives of India are falling well short of the desired actions.

Cyber Terrorism In India

Cyber terrorism in India and its solutions has become a topic of much discussion these days. There is no second opinion that cyber terrorism is a national security hazard and India must take good care of the same.

India is facing serious cyber threats and cyber terrorism against India is one of them. Cyber terrorism in India and its preparedness are not upto the mark. This is primarily because of the reason that India has no national security policy. National security policy of India is required so that issues like cyber crimes, cyber security threats, cyber attacks, cyber terrorism, cyber espionage, cyber warfare, etc can be effectively tackled.

Another crucial lacuna in Indian national security policy is that cyber security policy of India is missing. Till now we have not yet formulated any information security policy of India.

Further, critical infrastructure protection in India is also need of the hour. As more and more crucial public functions and essential services are attached to and delivered through technology, critical infrastructure of India is at grave risk. India is planning to provide mandatory e-governance services for Indian citizens by government departments. This would tie up the essential computer systems of Indian government with cyberspace and thereby making them vulnerable to cyber attacks.

Securing Critical National Infrastructure of India from Cyber Attacks is not an easy task, suggests Praveen Dalal, managing partner of New Delhi base ICT law firm Perry4Law and leading techno legal expert of India. It has to be tackled in a Techno Legal manner. A sound Legal Framework must be supplemented by Technical Expertise to achieve this crucial task, suggests Dalal. Indian Crisis Management Plan to tackle Cyber Attacks and Cyber Terrorism is need of the hour, says Dalal.

Cyber terrorism is an issue that cannot be taken lightly by India. The cyber law of India, i.e. information technology act, 2000, carries a single provision to deal with cyber terrorism. When we need an entire legislation for cyber security and cyber terrorism, enacting a single provision is not enough.

In fact, this shows the indifference and insensitivity of Indian government towards one of the most potential form of national security threat, i.e. cyber threats. Time has come to enact good cyber laws and cyber security laws in India so that cyber threats and cyber crimes can be tackled effectively.

Cross Border Technology Transactions And Dispute Resolution

International commercial arbitration is becoming a preferable mode of dispute resolution. Generally, the stakes are very high in international commercial disputes and parties to the dispute do not wish to lock large amount of money in traditional litigation methods.

Naturally, alternative dispute resolution (ADR) methods like arbitration, conciliation, mediations, etc are more attractive than court litigations, which are more expensive, time consuming and less productive.

The scope of international commercial dispute resolution (ICDR) services in India is increasing day by day. ICDR can be availed of for disputes arising out of contracts on sales of goods, distributorship, agency and intermediary contracts, construction industry disputes, engineering and infrastructure contracts, intellectual property contracts, domain name dispute resolutions, joint venture agreements, maritime contracts, employment contracts, etc.

Further, information and communication technology (ICT) has given a new meaning to international commercial transactions and business. E-commerce has now become an indispensable part of our day to day commercial activities. This has also given rise to both traditional as well as contemporary international commercial disputes all over the world.

International commercial arbitration in India has been passing through a transformation stage. India is trying to harmonise its norms and regulations as per the international standards. Further, India is also trying to develop ADR capabilities at both individual experts’ levels as well as at institutional level.

Dispute Resolution of Cross Border Technology Transactions is the latest trend in international commercial arbitration, informs Praveen Dalal, managing partner of New Delhi based IP and ICT law firm Perry4Law. Further, Domain Name Dispute resolution Services in India would also see an increase in near future, informs Dalal. India must be ready to develop Online Dispute Resolution (ODR) Capabilities to encash upon these opportunities, suggests Dalal.

While opportunities are definitely there yet technology related dispute resolution would bring its own limitations and challenges. Let us see how the dispute resolution industry reacts to the same.

Cyber Squatting Has Increased Significantly Says WIPO

Cybersquatting, also known as domain squatting, is a process where the goodwill of a famous brand is used in bad faith to make profit out of the same. In this process domain name carrying the name of famous brands are deliberately registered so that they can be resold to the trademark owners subsequently at an exorbitant amount.

As far as India is concerned, we have no domain name protection law in India. Cybersquatting cases are decided under the Indian Trademark Act, 1999. This situation requires to be changed as soon as possible. As far as international community is concerned, it has separate mechanisms for dealing with trademark disputes and cybersquatting cases. Internationally both out of court settlements and legal proceeding are used to solve the growing cybersquatting cases.

World Intellectual Property Organisation (WIPO) has recently announced that Cybersquatting has hit record level, informs Praveen Dalal, managing partner of New Delhi based IP and ICT law firm Perry4Law. This trend would continue in future as well, suggests Dalal. In fact, Dispute Resolution in Cross Border Technology Transactions would be one of the areas that would emerge in the near future, predicts Dalal.

Cybersquatting cases are normally resolved using alternative dispute resolution (ADR) methods like arbitration, mediation, etc. These days even the online dispute resolution (ODR) methods are used to resolve cybersquatting disputes. For instance, WIPO Arbitration and Mediation Centre is one of the leading centers of the world that resolve cybersquatting and domain name disputes using ODR mechanism.

One area that requires immediate attention of international community is harmonisation of dispute resolution protocols and procedures. For instance, international harmonisation of ODR is required that is presently governed by different sets of Rules and Procedures, suggests Dalal. Institutions like WIPO, United Nations Commission on International Trade Law (UNCITRAL), etc must think and work in this direction, suggests Dalal. We must also either amend the Indian Trademark Act, 1999 or enact a separate Cybersquatting Law of India, suggests Dalal.

For the time being, cybersquatting is going to stay. It is for us to decide how to fight this nuisance at national and international level.

Dispute Resolution In Technology Transactions And Dealings

Information and communication technology (ICT) is no more an external factor to any business model or commercial transaction. ICT has become so intertwined with the business model that it is now difficult to separate business from ICT and technology that business uses.

This has also given rise to technology related disputes at both national and international levels. However, dispute resolution of technology transactions and contracts are not easy to perform. This is more so where technology transfer and technology licensing agreements are involved that are usually complex and prone to different interpretations.

Individuals and Organisations are exploring the use of Alternative Dispute Resolution (ADR) and Online Dispute Resolution (ODR) mechanisms to resolve Technology Related Disputes, informs Praveen Dalal, managing partner of New Delhi based law firm Perry4Law and leading techno legal expert of India.

While drafting and vetting contractual agreements involving Technology Transfers and Licensing, we specifically and consensually incorporate an ADR/ODR clause mandating “Institutional Arbitration” through Institutions like WIPO Arbitration and Mediation Center or UNCITRAL based Arbitration Institutions, informs Dalal.

Although current use of ADR/ODR, as compared to court litigation in technology related disputes, is far better yet there are many legal roadblocks to the same. For instance, ODR in India is facing sever roadblocks and this make ODR less attractive for technology related disputes, informs Dalal. Even Best Practices in technology dispute resolution have not yet been established, informs Dalal.

Another reason that is responsible for lower use of ADR/ODR for technology related disputes is lack of adequate and proper representation of Indian players at international platforms like WIPO, UNCITRAL, etc. These organisations and institutions give more importance to institutions and lesser to individuals and individuals are the real players of this field, informs Dalal.

There are also no internationally acceptable legal standards for ODR and telecom related dispute resolution. International harmonisation of ODR and technology related dispute resolution is also missing.

These are some of the reasons that are preventing a full fledged dispute resolution mechanism for technology related disputes at national and international levels.

The Intelligence Services (Powers and Regulation) Bill, 2011

Has it ever occurred to you that the law enforcement agencies that helps in the upholding the laws of India are themselves not governed by any law. This equally applies to intelligence agencies of India. In fact, intelligence infrastructure of India is in big mess and India is not at all ready for projects like CCTNS, Natgrid, NCTC, etc.

It is no surprise that the central bureau of India (CBI) is also not governed by any law and it is operating in India without any law. It is only now that the central bureau of investigation act 2010 was drafted. Till now it is a mere draft and has not become an enforceable law. Even the constitutional validity of the national investigation agency act 2008 is doubtful.

India has been indifferent towards legal framework for law enforcement and intelligence agencies for long. This may also be attributable to the fact that Centre State relationship is very complicated and law enforcement is a State subject for legislation. However, the net result was that law enforcement and intelligence agencies of India are not regulated by any Parliamentary oversight. Even there is no lawful interception law in India and India does not bother to maintain a balance between national security and fundamental rights of Indians.

In this background the recent circulation of the draft Intelligence Services (Powers and Regulations) Bill, 2011 (Draft Intelligence Bill 2011) in the Lok Sabha came as a pleasant surprise. Presently, Intelligence Agencies of India are not governed by any Legal Framework and they are not under Parliamentary Scrutiny, informs Praveen Dalal, leading techno legal expert of India and a Supreme Court lawyer. This is a serious “Constitutional Issue” as exercise of Law Enforcement and Intelligence Powers without any “Constitutionally Valid Law” is serious violations of Constitutional provisions, opines Dalal. Finally, some sort of law making has been sought that would also bring Transparency and Accountability among the Intelligence Operations in India, suggests Dalal.

However, the proposed Bill requires some fine tuning before it is finally passed. According to Dalal there are many “Techno Legal and Constitutional Issues” that are “still missing” from the Bill. The Bill is a very good beginning though it requires many “improvements” before it is finally passed by both the Houses of Parliament. I hope and wish the Modified and Improved Bill would become an applicable law very soon, says Dalal.

Whatever the fate of the Bill may be, at least a good beginning has been made. It would have been better if opinion and suggestions of techno legal experts would have also been incorporated. But still something is better than nothing.