[governance] Internet Authoritarianism refuge in South Asia

[Fouad Bajwa]

>From Fred Noronha on Bytes for All list:

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http://www.telegraphindia.com/1090415/jsp/opinion/story_10824259.jsp

There is an inspector in my email
Date: Wed Apr 29, 2009 1:57 pm ((PDT))

There is an inspector in my email
The IT Amendment Act gives sweeping powers to the government and these
affect the civil rights of ordinary citizens. Manjula Sen reports

Total control: The new law allows the State to monitor all on-line
activities of its citizens

In some quarters, it is being called the Indian version of America's
Patriot Act. Like the infamous act, it gives the government
overarching powers to rummage around its citizens' telephone, email
and all other modes of technological communications.

The American law was enacted in the wake of the September 11 attacks
in the US. Less than a month after the terrorist attacks in Mumbai
last November, the Indian Parliament passed the Information Technology
(Amendment) Bill 2008, giving the State the authority to go into
people's homes to watch, monitor and intercept all electronic and
technological communication. With the President's assent in February
this year, the IT Amendment Act 2008 passed into the statute books.
The act covers massive ground, ranging from cyber terrorism, Internet
censorship and child pornography to e-commerce, e-governance and data
theft.

Although the law was rushed on the back of the Mumbai attacks, where
the terrorists showed a propensity to use computers and the Internet,
and a perceived rise in cyber terrorism, the catch-all act empowers
the State to use its new surveillance and interception powers for "any
offence," which would include non-cognisable ones. Non-cognisable
offences are non-criminal transgressions which require a court
directive to investigate or arrest.

"The net effect of this will be that almost all digital communication
that people use in India would be amenable to interception and
monitoring, irrespective of whether they are targetted or whether they
are potentially involved in any criminal activities," says Pavan
Duggal, chairman of the Associated Chambers of Commerce & Industry's
Cyberlaw Committee.

What is striking is that the two year-old pending amendment bill to
the original IT Act, 2000, was passed with 45 new sweeping amendments
without any debate in Parliament. Members were busy working up a din
over Central minister A.R. Antulay's controversial remarks about the
circumstances in which Maharashtra ATS chief Hemant Karkare was
killed. The clauses of the bill were read out and the two houses
passed the bill at the end of it.

Under the new act, the State through any government official or police
can now eavesdrop on your emails, smses, phone conversations and all
online activity. Unlike in the past, they will not even require a
warrant to do so. And that is not all.

Earlier, only a deputy superintendent of police (or senior) could raid
a home to search and seize. Now an inspector can raid and haul off a
computer user for questioning - and without a warrant.

Lack of independent oversight makes these intercepting powers liable
to misuse. Perhaps the most alarming aspect of the act is its failure
to put in place a safeguard mechanism that would stop the State from
misusing it.

Right now, neither is an ombudsman nor a law nor any other safety
mechanism in place for redress. The act says checks and balances will
flow from safeguards such as "may be prescribed".

Says Yogesh Kamdar, vice-president of People's Union for Civil
Liberties (PUCL), "This act which vests a huge chunk of power without
corresponding responsibility to record justification in writing has
tremendous potential for abuse."

He says that spying on a person or group cannot be permanent. "Issues
such as whether mails or smses of the target's family members would be
scanned, the context of the order and a review have not been
addressed. Should the monitoring continue if nothing suspicious is
found after several months?"

Until the passage of the amended IT Act, Clause 5(2) of the Indian
Telegraph Act of 1885 allowed phone tapping on grounds of public
emergency, or for public safety. In December 1996, the Supreme Court
reiterated this position in a petition filed by the People's Union for
Civil Liberties.

Section 69 of the amended IT Act drops all references to public
emergency or public safety. Combined with the absence of clearly
defined checks against misinterpretation of the law, the new law
effectively gives the government a carte blanche to check a citizen's
use of communication tools.

Moreover, the IT Act, 2000, was restricted to decryption of messages.
Section 69 of the new act includes interception and monitoring.

Some also question its effectiveness. Ajai Sahni, executive director
of the Delhi-based Institute for Conflict Management, doesn't knock
the new act but argues that a law depends upon the mechanisms that are
effectively put in place to implement it. "At this moment, I don't see
this capacity in the State to execute it. Where, for instance, are the
technical personnel? The act provides powers for immediate post-event
investigation like checking cyber cafes, or tracing an online message.
But this is only a small tool."

To be truly effective, counter-terrorism measures need to be
anticipatory. He continues, "There is no preventive value that arises
from this act with regard to cyber terrorism. Who, for instance, will
monitor a large quantum of correspondence between several groups of
people? Secondly, cyber forensics, or examining digital evidence, is
still weak in our country. Until these capacities are developed, the
act is of limited value."

In its expansiveness, the act impacts technological communication and
utility, businesses such as call centres and the software industry,
civil liberties such as the right to privacy and freedom of
expression, and censorship. The new act also empowers the government
to block any website on the grounds of national interest, which some
argue could result in censorship.

"It has provided enhanced e-surveillance power to the State without
adequate safeguards to citizens. The language of various sections is
lax and uncertain and would give rise to a lot of dispute," says cyber
law expert and advocate Praveen Dalal.

Two new provisions in the amended act deal with sexually overt images.
Section 67A covers a "sexually explicit act" and 67B "child explicit
act or conduct" (child pornography). The fine and imprisonment for
those engaging in pornography is between five and seven years, with a
fine of up to Rs 10 lakh.

Critics welcome the clampdown on child pornography but fear that the
wording of 67A and 67B will result in treating suppliers of porn and
recipients as equally at fault. The act says whoever "publishes or
transmits or causes to be published or transmitted in the electronic
form any material which contains a sexually explicit act or conduct
shall be punished."

Other sections of the act mention that the government should formulate
"precautions to be taken for preventing the improper interception or
disclosure of messages." There has been no move yet to initiate such
safeguards.

"Such huge powers of interception without any checks and balances are
likely to have a detrimental impact upon the preservation of civil
liberties of Indians after the passing of the IT Amendment Act," warns
Duggal.

Caveat emptor.

-- 

Regards.
--------------------------
Fouad Bajwa
@skBajwa
Answering all your technology questions
http://www.askbajwa.com
http://twitter.com/fouadbajwa
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