ESSENTIALS OF INFORMATION TECHNOLOGY LAW

Transcription

1 ESSENTIALS OF INFORMATION TECHNOLOGY LAW

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3 ESSENTIALS OF INFORMATION TECHNOLOGY LAW Sujata Pawar Yogesh Kolekar

4 Notion Press 5 Muthu Kalathy Street, Triplicane, Chennai First Published by Notion Press 2015 Copyright Sujata Pawar and Yogesh Kolekar 2015 All Rights Reserved. ISBN: No part of this publication can be reproduced or transmitted in any form or by any means, without prior written permission of the authors. This publication containing information, comments and views are merely for guidance and reference. It must not be taken as authority of or being binding on, the author, editors, publishers, and sellers, who do not owe any responsibility whatsoever for any loss, damage, or distress to any person, whether or not a purchaser of this publication, on account of any action taken or not taken on the basis of this publication. Despite all the care taken, error or omission may have crept inadvertently into this publication. For the authoritative text information, please contact the department concerned or refer to the Government publication or Gazette publication.

5 Contents Foreword Preface ix xi 1. Information Technology Law in India 1 Uncitral Model Law on Electronic Commerce 2 The Information Technology Act, The Information Technology (Amendment) Act, Scheme of The Information Technology Act, 2000 (With 2008 Amendment) Offences Related to s 15 Advantages of s 19 Crime Related to s 20 Phishing Scams 21 Sending Offensive Messages 23 Sending of Sexually Explicit Contents 26 Cyber Terrorism 32 Precautionary Measures for using Safely E-Governance in India 39 Advantages of E-Governance 41 Access to Vital Information at a Click 42 Transparency 42 Cost Saving 42 Centralization 43 Accountability 43 Educative Value 43 The National E-Governance Plan 44 Examples of National E-Governance Plan 45 Income Tax 45 Mca21 45

6 vi Contents Judis 46 Legal Framework for E-Governance 47 Legal Recognition of Electronic Records 47 Legal Recognition of Electronic Signature 48 Electronic Records and Electronic Signatures in Government Agencies 48 Audit of Documents Etc., Maintained in Electronic Form 50 Publication of Rule, Regulation, etc., in Electronic Gazette Electronic Signature - Function and Offences 52 Technical Aspect of Digital Signature 54 Digital Signature Certificates 56 Legal Aspect of Digital Signature 57 Functions of Electronic Signature 59 Offences Related to Electronic Signature E- Contracts 64 E-Contracts Under The Information Technology Law 66 Types of e-contract 72 Click wrap contract 72 Browse wrap contract 73 Shrink wrap contract 74 Transaction to which the Act is not applicable Data Protection 76 Data theft 78 Compensation for Failure to Protect Data 82 Power to Intercept, Monitor and Decrypt Information Electronic Evidence 90 Electronic Evidence 92 Admissibility of Electronic Evidence 96 Presumptions of Electronic Evidence 102 Presumption as to Gazettes in Electronic Forms 102 Presumption as to Electronic Agreements 102

7 Contents vii Presumption as to Electronic Records and Digital Signatures 102 Presumption as to Digital Signature Certificates 103 Presumption as to Electronic Messages 103 Presumption as to Electronic Records Five Year Old Regulatory Authority 105 Controller of Certifying Authorities 106 The Cyber Appellate Tribunal 108 Adjudicating Officer 111 Investigation Officer 112 Appendices 114 The Information Technology Act, 2000 as amended by The Information Technology (Amendment) Act, 2008 The Information Technology (Electronic Service Delivery) Rules, 2011 The Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 The Information Technology (Intermediaries guidelines) Rules, 2011 The Information Technology (Guidelines for Cyber Cafe) Rules, 2011

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9 Foreword The Information Technology has brought remarkable changes in the different area of society including teaching learning process. Today education is no more restricted to classrooms. The online teaching leaning process has widened it scope with far reaching effect, cutting across boundaries. The growth of e-commerce has opened new avenues for both business community and consumers. The technology is no more restricted to elite, and, falling prices of smart phones and internet tariff have given the power of cyber space into hands of masses. However it has also increased its hazards, as common men is neither aware of its laws nor of its implication. The growth of Information Technology has presented new challenges of both social and legal nature. The use of technology for crime especially cyber terrorism, cyber defamation or cyber frauds is a matter of concern, in terms of its effect and aftermath. Information Technology law has created special jurisdiction for dealing special jurisdiction for dealing with cyber-crimes, however, many times common man and police personnel are equally unaware and reluctant to pursue the formalities under cyber law. Young generation, professionals and student community is comparatively more techno savvy but lack of legal awareness may create difficulties of adherence to Cyber Law. This book goes a long way in generation of interest and creation of legal and technical expertise in this much awaited field of cyber jurisdiction. Writing a book on information technology and law can be a difficult task as alluring the interest of readers in complex phrases is tricky and hard. However this book has done away with such technical and legal jargon. Both the authors are learned in Law as well as Computer Technology and, the book very well keeps the interest of reader with its simple illustrations and screenshots and makes reading appealing and vivid. Chapters are designed keeping in view, interest of both, novel as well as advance reader and the detailed footnotes are added advantage for research students and keen academic readers. The

10 x Foreword book very well stands to its name as it is inclined towards the vital areas of information technology law. The Chapters covering offences related to s, e-governance, Data protection, electronic signature, Digital evidence are areas which every law student and persons in legal fraternity must know. The book is highly informative and covers almost everything that, legal professionals as well as laymen must know about Information Technology Law. I am confident that it will serve its intended goal to reach out to all in this cyber age and disseminate cyber knowledge to create digital society. Prof. Dr Dilip Ukey Ex Vice Chancellor of SRTM University, Nanded, Professor and Head, Dept. of Law, Savitribai Phule University, Pune

11 Preface In this era of information technology, significant developments in cyber space, 2G, 3G, 4G spectrums and technological advancements in electronic instruments of mass communication, are transforming human life at galloping speed with repercussions in socio-legal, economic as well as administrative, commercial and political fields. The growth of telecom sector and use of smart phones has given the power of internet technology into the hand of masses. The information technology can be said to be the fifth pillar of democracy, after free press. A technology driven Government is a need of large size country like India, where millions of people still live in remote areas, far from bureaucratic setup. E-Governance is a panacea for people and antidote for ill information, delay and denial. Information technology has simplified communication both at personal as well as business level, making this world truly a global village and has increased opportunities and avenues of trade and commerce globally where a buyer buys a product or books a ticket at mere click of a button. These technological advancements have been used as facilitating tools by educators, bankers, executives and administrators, in e governance. But at the same time, it has also created new series of crimes, with means and methods beyond contemplation of common man, where a culprit can easily cause havoc sitting far way from place of crime. The earnest desire behind writing this book is, to make people aware of different concepts associated with the Information Technology Act. In law fraternity, there is no dearth of books on Information Technology law but most of them are too foreign in concept or too technical, making concept difficult to understand. Burtrand Russell once stated that, Law seeks clarity at the cost of brevity, and, in the process looses both. We have made sincere efforts to avoid legal jargon while explaining the provisions and have added illustrations when found relevant and necessary. This is an attempt to simplify both, concepts of law and the technology, while intensively dealing with, only the essentials of IT Law. We hope the readers would find examples and illustrations given in this book practical and useful. This book covers the legislative history behind Information Technology Act, 2000 which is based on UNCITRAL Model draft and covers important concepts like cyber space, s, e-contract, e-signature, e-governance, followed by related offences and the penalties in the respective chapters. This book also narrates various presumptions created by law regarding electronic

12 xii Preface evidence and the rules about data protection and power of surveillance, interception and decryption available with the authorities. Information Technology Act has created a special jurisdiction for cyber crimes and everyone must know the powers and functions of adjudicating officer and investing officer which have been explained along with other necessary information about the regulating authorities. This book will prove useful not only for students of Law and Commerce, but also for candidates appearing for various UPSC, MPSC, Banking and Competitive exams. The book may also be used by Police and adjudicating or investigating officers while dealing with Cyber Crimes. It is equally useful and indispensible for a common man, who is constantly and invariably indulged in the use of information technology, through computers, internet, mobiles, tablets and other electronic devices. Innovative and effective use of the information technology has transformed the means and methods of social communication and commercial transactions, through e-banking, e-payment, social networking, twitters and blog writing, bringing the world closer, at our finger tips. Numerous opportunities are created in spread of education, art, literature, networking by media, governance and business, transgressing all narrow, regional frontiers, and at the same time, have increased the risk and threat of cyber crime and cyber terrorism at an alarming speed. This necessitates that; the knowledge of information technology law must be possessed by everyone, by elite and masses equally, for taking necessary precautions to avoid deceit. We have taken our best efforts to provide up to date, correct and useful information with academic precision backed by authentic research, as far as possible and have attempted to avoid errors. However, regardless of our efforts if any mistake has crept in, we shall be grateful to hear from readers, for necessary rectification in future edition. Dr. Sujata Pawar Yogesh Kolekar

13 1 INFORMATION TECHNOLOGY LAW IN INDIA Today we live in technology driven world. Industrial revolution gave birth to giant machines for industrial advancement 1 and information technology has delivered intelligent machines to revolutionize human development. Today we are surrounded by automated smart technology which has touched almost all spheres of human life, from military to medicine and from education to election. We live in a world with boundaries which is secured but still it can be intruded virtually. 2 This is real and this is cyber space. 3 The New Oxford Dictionary Image courtesy Image page at 1 The Industrial Revolution is the name given the movement in which machines changed people s way of life as well as their methods of manufacture. 2 UK, National Criminal Intelligence Services, Director of Intelligence, Roger Gaspar, says The internet is a global system; we can now be attacked by criminals who do not need to come to this territory. Lots of policing arrangements have their roots in the fact that victim and offender are geographically co-located. co.uk/hi/english/static/in_depth/uk/2001/life_of_crime/cybercrime.stm 3 William Gibson in his novel Neuromancer, 1984 had coined the word cyber space.

14 2 Essentials of Information Technology Law defines cyberspace as The notional environment in which communication over computer networks occurs 4 The new boon brought by information technology is also accompanied by its bane i.e. new technology crimes. The conventional provisions of penal laws are insufficient to address this issue, 5 likewise the new business environment required new regulations for its legal endorsement as more and more business communities are moving towards electronic commerce and trans-border contracts. To address this issue the United Nation through its core agency United Nations Commission on International Trade Law 6 (UNCITRAL) had formulated 7 model legislation on electronic commerce 8. UNCITRAL MODEL LAW ON ELECTRONIC COMMERCE The increase in use of electronic data interchange 9 and electronic commerce in international trade necessitated the need of securing legal sanctity to such transaction. 10 The United Nations commission on international trade law formulated model law on electronic commerce which sets out rules for providing equal treatment of electronic documents with paper documents. The purpose of UNICITRAL model law on electronic commerce is to provide frame work for commerce through electronic means providing guidelines to individual countries to prepare their own legislation. The model law contains seventeen articles and is divided into two parts. 11 The model law seeks to provide legal recognition to electronic documents and electronic commerce and validates Crimes like tampering with computer source documents, hacking with computer system, publishing of information which is obscene in electronic form are not adequately protected under traditional penal laws. 6 Resolutions adopted by the General Assembly during its twenty-first session, 2205 (XXI)17 December June 1996 (additional article 5 bis adopted in 1998) Article 2(b) of United Nations Model Law on Electronic Commerce, Electronic data interchange means the electronic transfer from computer to computer of information using an agreed standard to structure the information 10 Statement of object, UNCITRAL model law on Electronic commerce, Noting that an increasing number of transactions in international trade are carried out by means of electronic data interchange and other means of communication, commonly referred to as electronic commerce, which involve the use of alternatives to paperbased methods of communication and storage of information 11 Part one: Electronic commerce in general and Part two: Electronic commerce in specific areas

15 Information Technology Law in India 3 contracts concluded through electronic means. 12 The Information Technology Act 2000, 13 enacted by the Government of India 14 is also based on this model law. UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW (UNCITRAL) The United Nations commission on international trade law was established in 1966 to further the goal of harmonizing and modernizing international commercial law. It prepares and promote legislative and non legislative instrument in field of commercial law. Certain core areas include alternate dispute resolution, international contract, electronic commerce, international payment etc. THE INFORMATION TECHNOLOGY ACT 2000 The Information Technology Act, is a prime legislation in India dealing with cyber offences 16 and electronic commerce 17 in India, and is based on the United Nations Model Law on Electronic Commerce adopted by the United 12 Article 11, Formation and validity of contracts 13 The object of the Act provides that An Act to provide legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as electronic commerce, which involve the use of alternatives to paper-based methods of communication and storage of information, to facilitate electronic filing of documents with the Government agencies and further to amend the Indian Penal Code, the Indian Evidence Act, 1872, the Bankers Books Evidence Act, 1891 and the Reserve Bank of India Act, 1934 and for matters connected therewith or incidental thereto. 14 The Act received the assent of the President on the 9 th June, Without amendments 16 The term is nowhere been defined in any statute /Act passed or enacted by the Indian Parliament. Cybercrime is a crime in which a computer is the object of the crime (hacking, phishing, spamming) or is used as a tool to commit an offense (child pornography, hate crimes). Cyber criminals may use computer technology to access personal information, business trade secrets, or use the Internet for exploitive or malicious purposes. Criminals can also use computers for communication documents or data storage. Criminals who perform these illegal activities are often referred to as hackers. Cybercrime may also be referred to as computer crime The object of the Information Technology Act, 2000 defines ecommerce as. transactions carried out by means of electronic data interchange and other means of electronic communication, commonly referred to as electronic commerce, which involve the use of alternatives to paper-based methods of communication and storage of information..

16 4 Essentials of Information Technology Law Nations Commission on International Trade Law. The Act initially contained 94 sections divided into 13 chapters and 4 schedules. The Act is applicable to the whole of India 18 including offences or contravention committed outside the territory of India by any person irrespective of his nationality. 19 The Act is provides for legal recognition to electronic records 20 and facilitates electronic filing of documents with Government agencies. 21 The core object of the Information Technology Act, 2000 was, a) To provide legal recognition of e-records. b) To provide legal recognition of digital signature. 22 Traditional signatures are prone to forgery and tempering, hence insufficient for online transaction and contracts. Online transaction requires unique and strong protection which is fulfilled by the legal provisions related to digital signature. c) To provide legal recognition to electronic governance. 23 The term e-governance implies technology driven government, where government adopts technology to provide efficient delivery of services, information and education. 18 S. 1(2). It shall extend to the whole of India and, save as otherwise provided in this Act, it applies also to any offence or contravention there under committed outside India by any person. 19 S. 75. Act to apply for offences or contravention committed outside India. (1) Subject to the provisions of sub-section (2), the provisions of this Act shall apply also to any offence or contravention committed outside India by any person irrespective of his nationality. (2) For the purposes of sub-section (1), this Act shall apply to an offence or contravention committed outside India by any person if the act or conduct constituting the offence or contravention involves a computer, computer system or computer network located in India. 20 S. 4. Legal recognition of electronic records 21 S. 6. Use of electronic records and digital signatures in Government and its agencies 22 S. 5. Legal recognition of digital signatures 23 The US E-Government Act of 2002 (Section 3601) defines electronic Government to mean electronic Government means the use by the Government of web-based Internet applications and other information technologies, combined with processes that implement these technologies, to - (A) enhance the access to and delivery of Government information and services to the public, other agencies, and other Government entities; or (B) bring about improvements in Government operations that may include effectiveness, efficiency, service quality, or transformation.

17 ESSENTIALS OF INFORMATION TECHNOLOGY LAW