e-420

What8217;s more, it has a dark meaning for you, if you8217;re a computer user, a cyber-cafe regular, a lazy Net surfer 8212; or merely an SMS addict.

SECTION 79, as everybody and his favourite television anchor knows by now, deals with the liability on a network service provider NSP 8212; which could be Rediff or Yahoo for e-mail, Airtel or Reliance for mobile telephony 8212; in case of a cyber-offence committed by a user of the NSP.

The Baazee.com story needn8217;t be repeated here. A user of the auction site put out an advertisement for a CD that depicted child porn and, on December 17, the Delhi police arrested Baazee8217;s chief executive, Avnish Bajaj. Section 79 never seemed more severe.

Section 80 is even more complicated. It allows a police officer not below the rank of DSP to 8216;8216;enter a public place and search and arrest without warrant8217;8217; a person suspected of 8216;8216;being about to commit any offence8217;8217;. In 2000, the government had argued this was in consonance with conventional, non-cyberspace laws.

Perhaps Section 80 was the clause under which the SP of Aligarh went raiding cyber-cafes earlier this week. His men could have accused the cafe clients of being about to visit porn sites or about to send criminal e-mail.

Since the IT Act covers computer-based devices such as mobile phones, consider this. A police officer walks into your office tomorrow morning, point to the cell phone at your table, accuses you of being about to send a lewd text message to a lady and arrests you. He would be perfectly within the rules.

MUCH of the mess 8212; for lack of a stronger word 8212; is courtesy the blind application of physical world provisions to a zone defined by ever-evolving technology.

Take Section 79. The NSP can escape being implicated if it establishes that it didn8217;t know its network was being used to commit the offence or if it exercised 8216;8216;due diligence8217;8217; but still failed to prevent the crime.

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8216;The service provider liability is only part of the issue. The IT Act needs changes to tackle cyber-crime, promote e-commerce8217; 8211; PAVAN DUGGAL cyber-lawyer

In the case of Baazee.com, an offer to sell a CD that showed 8216;8216;Delhi girls having fun8217;8217; was on the site for just over 40 hours. Baazee.com says it blocked transactions as soon as it was told the CD actually depicted the infamous Delhi Public School sex clip. The police insists this wasn8217;t enough, 8216;8216;due diligence8217;8217; hadn8217;t been exercised.

So it all boils down to the definition of 8216;8216;due diligence8217;8217;, left delightfully vague in the IT Act. 8216;8216;The law is silent,8217;8217; says Delhi-based cyberlawyer Pavan Duggal, 8216;8216;on the parameters of 8216;due diligence8217;.8217;8217;

GO back to the Baazee.com case. What could 8216;8216;due diligence8217;8217; constitute here? The website managers say they have a filter that searches for key words 8212; such as, presumably, 8216;8216;porn8217;8217; and 8216;8216;guns8217;8217; 8212; among the 70,000 entries put up every day. A counter-argument may well be that the filter could be designed differently, its program could be written better.

This could end up as a highly technical argument, with the prosecution8217;s geeks debating the defendant8217;s geeks. It is not as simple as asking a landlord if he had his tenant8217;s background verified.

AFTER the Baazee.com episode, Union IT Ministry officials privately accept that their flagship law needs to be amended, if nothing else, in terms of Section 79 and NSP liability.

Yet, says, Duggal, this is not the only lacuna in the IT Act. Other failings too need to be addressed, without which e-commerce will remain a non-starter. Here8217;s a sample:

8226; In parts the Act is technology-specific. For instance, it recognises only digital signatures using the PKI technology, though a dozen other digital signature systems were prevalent in 2000 itself.

Now, falling under the rubric of electonic signatures are not just digital signatures but also biometric innovations such as iris recognition used in some European airports, digital thumb impressions used by American immigration officials, voice recognition. The Indian law doesn8217;t recognise any of these.

The reason the IT Act is so specific is because it was based on a United Nations model law of 1997. The UN has since updated its model law. India hasn8217;t kept up.

8226; The IT Act doesn8217;t legalise electronic fund transfer 8212; the movement of money across banks in real time. When your bank claims to transfer money 8216;8216;electronically8217;8217;, what it mean is a squaring up of accounts under the RBI8217;s aegis at the end of the day or given period. It8217;s delayed, not instant. The future lies in e-cheques and e-drafts.

8226; The issue of intellectual property rights IPR in the electronic medium is left unaddressed. 8216;8216;Today,8217;8217; says Duggal, 8216;8216;80 per cent of litigation surrounding the Net worldwide is on IPR issues.8217;8217;

So many of us have downloaded ringtones from websites, or listened to Kishore Kumar8217;s songs uploaded by a fan. How many of us have actually helped piracy?

The Indian film industry, the world8217;s largest, is being hurt by the gaps in the IT Act.

8226; Recently a Delhi lawyer broke off his engagement. His former fiancee sent e-mails to his clients overseas, accusing him of all sorts of misdemeanours. This is an example of 8216;8216;cyber-nuisance8217;8217;, a form of harassment simply not as effective if the letters were written in longhand and mailed at a post office.

Thanks to the Net, new crimes are being invented almost by the hour. Cyber-stalking is easy to understand, others need not be.

Phishing 8212; 8216;8216;I8217;m the widow of the former dictator of Lower Volta. I want you to help me get funds from my late husband8217;s Swiss bank account. If you send me your bank details 8230;8217;8217; 8212; is a form of cheating. In the real world, the cheat would be charged under Section 420. India needs a provision for e-420.

THEN there8217;s data mining. Say you have an e-mail account with Hotmail. Now if Hotmail hires a BPO to run its systems, and a bad apple in that BPO sells your personal details to a third party. It8217;s a crime, but under the IT Act it doesn8217;t exist, says Duggal.

Stealing of software is another issue. Recently Quark, which has a facility in Mohali, complained a rival had hacked into its systems and stolen a program it was developing. The suspicious Punjab police just refused to register an FIR.

Days later, Chief Minister Amarinder Singh said he8217;d spoken to Quark officials. He honestly admitted that software theft was too new a subject for ordinary policemen.

ADMITTEDLY, the law can8217;t be amended each time a new technology is devised or a new e-crime is thought up. Duggal suggests a 8216;8216;separate Cyber-Crimes Act and some sort of a provision to update the IT Act without having to go right back to Parliament for an amendment8217;8217;.

If India is grappling with cyberlaw, it is not alone. This is as much pioneer territory as, say, North America was when Columbus landed there. There are innumerable questions but the quick answer is there are no quick answers.

It was the search for one such instant solution that landed poor Mr Bajaj in jail. At the very least, IT Act 2.0 should ensure this doesn8217;t happen again.

After all, last week it was Avnish Bajaj. Next time it could be you.

Cam-phone? Er, scam phone
Pragya Singh

SMALL things spell big trouble, more so in the time of MMS. The DPS-Bazee.com-Avnish Bajaj rigmarole would not have occurred if, in early 2001, the first camera phone had not come into the market.

Consultancy IDC says seven million of 72 million cell phones sold in the United States come with cameras attached. By 2007, that8217;s projected to touch 50 per cent, or 51 million of 110 million cell phones.

Worldwide some 70 million camera phones are sold each year. Figures for India are not available, but mobile phone companies here say cam-phone sales 8216;8216;are growing 10-12 per cent over the last fiscal8217;8217;.

If the camera phone is as much as home in India as the rest of the world, so are its dangers. It makes voyeurism or even home porn 8212; as in the case of the infamous Delhi schoolboy 8212; easy.

Recently, actors Shahid Kapoor and Kareena Kapoor were apparently clicked kissing at a restaurant in Mumbai, by a co-diner carrying a camera phone. Privacy can be invaded at the press of a button. High-risk zones are gyms, swimming pools, dance floors.

RESPONSES range from the definitive to the unsure. At least one major club in Delhi has an informal ban on use of the camera phone on its sprawling VIP area premises. Some hotels plead their hands are tied. Says one hotel manager in the capital, 8216;8216;Guests use camera phones at their discretion. If we receive complaints, we take precautionary measures 8230; Actually we are waiting for the government to act.8217;8217;

In Mumbai, one five-star hotel banned camera phones in the vicinity of its swimming pool. South Mumbai8217;s Body Rhythm pool has a similar rule. Says Shwetank Jain, the pool8217;s owner, 8216;8216;If we catch anybody taking pictures, we have the images deleted.8217;8217;

THE search for solutions seems strongest in east Asia. Says Ish Bawa, marketing head of Chinese electronics maker BenQ, 8216;8216;In Japan, for instance, a camera phone8217;s use must be accompanied by a loud beep. This ensures the person being photographed is warned.8217;8217;

Cyberlaw specialists point to a similar law in South Korea, where industrial espionage using cam-phones is an issue. Says lawyer Pavan Duggal, 8216;8216;In Korea, a beep is heard in a radius of 10 feet each time a camera phone is used. We need similar regulations.8217;8217;

The problem can get quite vicious. Let this extract from a report on website http://www.futurepundit.com have the last word:

8216;8216;A witness told investigators Mr Vu 8212; Jack Le Vu, 20, of Sammamish, Washington, the US 8212; pretended to scan the shelves July 10 as he followed a 26-year-old woman in a supermarket, crouched down with his cell phone extended beneath her skirt and then stood up, punched a few buttons on the phone and looked at the screen.8217;8217;

Sounds pretty ugly.