Law Catches Up With It

Cyber junkies and e-commerce enthusiasts rejoice. Cyberspace is about to see some much-required laws which will define the cyberterrain and facilitate e-business. Outlook has managed to gain access to a copy of The Information Technology Bill, 1999, which will be tabled in the winter session of Parliament. This is the much-awaited bill which aims to end the confusion about regulation of cyberspace, which currently falls under archaic laws, some formulated over 100 years ago. The bill will put India in an exclusive league of 10-12 countries to have similar laws. In Asia, only Japan, Malaysia and Singapore have laws for the infotech sector.

WHAT’S ON THE CARDS

Electronic is legal: How will the bill, if passed, change the life of the connected Indian? In many ways, the bill is the government’s recognition, though belated, of the fact that a more vibrant, virtual world exists parallel to the real world (what cyber junkies refer to derisively as "meatspace"). So, for one, the bill will give legal recognition to electronic records and data. No longer can the authorities insist on typewritten or printed documents and records. The bill says maintenance and retention of electronic records and data will not only be permissible but also acceptable as evidence in court. However, no authority will have the right to insist only on electronic document or data.

Cyberforms are fine: It will now be possible to fill up forms, file applications or any other documents at any authority, create records or grant licences or permits electronically using an on-line form. Says Mehta: "The bill will now allow you to even file firs through the Net." As a result, changes in laws and regulations, which are currently mandatorily published in the Official Gazette of India, can be published electronically when the law is in force. In other words, they can be put on the Gazette on the official website of the government and enjoy the same official recognition.

Heralding e-commerce: The bill will help provide a regulatory framework for and give legal recognition to electronic entities. That covers transactions carried out through electronic data interchange and other means of electronic communication. This is expected to give the green signal for e-commerce and on-line transactions, which are still nascent in India.

Digital signatures: Perhaps the most far-reaching change will be legal sanction for digital signatures, a long-standing demand. Says an e-commerce professional: "For business-to-business and business-to-consumer deals, it was essential to have credit card-led transactions over the Net. That was not possible without making digital signatures valid. Without proper security, who would give his card details over the Net?"

Digital signatures are the electronic equivalent of handwritten signatures and have the same validity as the latter in most countries. The bill provides that any matter or information can be authenticated by the attachment of a digital signature in the same manner as a physical signature. Digital signatures will be protected through "private keys", a system of passwords and codes. The government will hold a "public key" and a combination of the two will make the signature effective. "Standards-based digital signatures are critical to e-business," says Arun Kumar, president, Hughes Software Systems. "The government is focusing in the right direction," he adds.

However, the bill lays down stringent rules for the nature and content of digital signatures and provides for a licensing authority. It also says the government will have the sole rights to register and grant licences for digital signatures to individuals or companies.

The rules give the government exclusive rights to prescribe the type and nature of digital signature, the format and the procedure for identification of the owner of the signature. The government will also have to lay down rules and ensure adequate security of such signatures so that these can’t be forged. For this, the government will prescribe a detailed security procedure.

The cyberauthority: The bill provides for the appointment of a Controller of Certifying Authorities who will issue digital signature licences, lay down standards to be followed by the authorities registering digital signatures, specify content and nature of such signatures and be in charge of the security of such signatures. The controller will have the power to recognise foreign authorities for licensing digital signatures. The official would be the repository of all digital signatures issued from India. It would come at a cost: the fee for obtaining digital signatures will be a maximum of Rs 25,000.

The controller will be responsible for conducting probes and checking contraventions. For this, the official will have access to any computer system, data or material connected with such a system for obtaining information. For searches, the provision of a warrant under the Code of Criminal Procedure won’t apply. The controller will have powers similar to those conferred upon Income-Tax authorities. The official can confiscate any system or peripheral or even a document in the case of contravention.

The bill takes a detailed look at computer crimes and penalties. According to it, a person can be fined up to Rs 10 lakh for any cybercrime which may include hacking or unlawful access to a system, network or database, illegal download of data or material from a computer, disruption of work or damaging a system by destroying data or injecting a virus or even tampering with a system or network security. The fine for this will be a minimum of Rs 25,000.

Targeting cybercrime: Computer crime and obscenity are common problems across the world. The bill lays down stringent norms for such crimes. Henceforth, people who publish obscene material on the Net will face a fine of Rs 25,000 and two years in jail. If caught again, the penalty doubles. For intentionally destroying data or computer documents maintained for public or other specific use, the fine can go up to Rs 2 lakh. The bill makes other issues like misrepresentation (of digital signature), breach of trust and corporate cyber offences punishable. However, all network service providers will be exempt from the provisions if any contravention is proved to be committed by a subscriber/subscribers without the former’s knowledge.

Interestingly, to put an end to circumvention of local laws by publishing material from portals based in the US or Europe, the government has made it clear that the proposed bill will apply to offences committed outside India by any person of Indian origin.

E-watchdog: The pioneering piece of legislation also provides for the establishment of a Cyber Regulations Appellate Tribunal to be presided over by a high court judge to receive appeals from aggrieved parties. Such a tribunal will not be bound by the Code of Civil Procedure and will be guided by the bill and principles of natural justice. No civil court will have the jurisdiction to try a related case; appeals may be made only at a high court. There will also be a Cyber Regulation Advisory Committee which will guide the government on provisions and help it frame the regulations. This committee will also act as a watchdog for the infotech sector.

The passing of the bill by Parliament will also automatically amend the relevant clauses in the Indian Penal Code of 1860, the Indian Evidence Act, 1872, the Banker’s Book Evidence Act, 1891 and the Reserve Bank of India Act, 1934 (it’s interesting to note that the youngest act which needs to be amended is all of 65 years old!).

While several experts are unhappy with the bill’s provisions in respect of cybercrimes, which they feel are grossly inadequate, many also feel it’s as good a beginning as any. Says Mehta: "The way things are moving, one cannot have a comprehensive piece of legislation. This will at least make e-commerce happen in India. What’s required now is a half-yearly review of the provisions for adding new and relevant clauses as and when the need is felt. This has succeeded in the US." Concurs Kumar of Hughes: "The bill will be a shot in the arm for India’s Net entrepreneurs." The IT sector and Internet use have been on a vertical lift-off in India. The new bill may trigger a mega leap forward.