Pawan Duggal is the president of Cyberlaws.net, a Cyberlaw Consultancy. He is also a member of the Advisory Committee of the Internet Corporation for Assigned Names and Numbers (ICANN). He is also the founder of the Cyberlaw Association and is associated with the ministry of Information Technology, GOI on legal issues of electronic governance. In an interview with Priya Srinivasan he outlines the precise nature of the recently passed IT Bill and its pitfalls. He calls for concerted action on issues of privacy, payment issues and protection of online consumers through legislation.What exactly is the scope of the IT Act?
The IT Act is an Act to promote legal infrastructure for the cyberworld and seeks to ammend four Acts - The Indian Penal Code, Bankers Book Evidence Act, Indian Evidence Act and RBI Act to provide a system for electronic offer and electronic acceptance of offer in a court of law and provides legal validity and allows you to retain electronic records.
What are the `cybercrimes' defined in the Act and what are the primary areas of jurisdiction that the Act addresses?
The Act defines five cybercrimes - Damage to computer Source Code, hacking, publishing electronic information which is lascivious or prurient, breach of confidentiality and publishing false digital signatures. The Act also specifies that cybercrimes can only be investigated by an official holding no less a rank than that of Deputy Superintendent of Police (DSP) but there is another disturbing caveat which assigns undue powers to the police.
Could you explain in detail how this provision works and how it could prove detrimental to the sector?
The Act simply says "Notwithstanding anything contained in any other law for the time being in force, any police officer not below rank of DSP may enter, search and arrest any person without search warrant in any public place who he thinks is committing or about to commit a cybercrime." This assigns undue powers to the police and its quite obvious that it could wreak havoc.
Is the law out of sync with international laws for the cyberworld? If so, could you explain how?
The Indian IT Act actually defines the liability of network service providers for third party data and information made available by it, which means that if a user downloads pornographic material, the ISP could be held responsible. Nowhere in the world does such a rule exist. The ISP will have to prove in a court of law that he is "not responsible" and secondly, he has to prove that he "acted with due diligence to prevent the offence". This is really pathetic.
How will the Act work in case of issues like Privacy and Security?
The Act has certain positives for corporates since e-mail has been deemed legal, there will be penal punishment for hackers etc. but the Act does nothing for privacy, domain name owners, online brands, Intellectual Property Rights, payment systems or protection of online consumers. Cyber Stalkers are beginning to surface in India and its only going to get bigger and the Act does nothing to prosecute the guilty. The Act does not define the rights, duties and liabilities of domain name owners. It says nothing on e-cash (any form of online currency) so customers have nowhere to go in case of a dispute. Unless these things are put in place bit stake transactions cannot take place.
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