The proposed amendments to ITA 2000 through the ITA 2000 Amendment Bill 2006 which is in the Parliament for passage during the current session is expected to define “Cyber Terrorism” and prescribe stringent punishment for the perpetrators of Cyber Terrorism.However,  at the same time, there could be a possibility that other changes proposed in the Act could  make this introduction of Cyber Terrorism as an offence meaningless in practice.The danger lies in the possibility of Section 79 of the current ITA 2000 being amended. Before the Bill was sent back to the department for re drafting by the Parliamentary Standing Committee,  the  proposed Section 79 read as under:

79. Exemption from liability of intermediary in certain cases

1.   An “Intermediary” shall not be liable under any law for the time being in force, for any third party information, data, or link made available by him, except when the intermediary has conspired or abetted in the commission of the unlawful act. 2.      The provisions of sub-section (1) shall apply in circumstances including but not limited to where: a.      Intermediary’s function is limited to giving access to a communication network over which information made available by third parties is transmitted or temporarily stored; or The intermediary:

(i) does not initiate the transmission,

(ii) does not select the receiver of the transmission, and

(iii) does not select or modify the information contained in the transmission.

 3. The provisions of sub-section (1) shall not apply if, upon receiving actual knowledge of, or being notified by the Central Government or its agency that any information, data or link residing on a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails expeditiously to remove or disable access to that material on that resource.

 Explanation: For the purpose of this section:-

a.      Term ‘Intermediary’ has been defined in Chapter I, Section 2(w).b.‘Intermediary’ shall include, but not limited to, telecom service providers, network service providers, Internet service providers, web-hosting service providers, search engines  including on-line auction sites, online-market places, and Cyber Cafes.

 c.      ‘Third Party Information’ means any information dealt with by an intermediary in his capacity as an intermediary

Compare this with the present version of Section 79 which states as under: 

For the removal of doubts, it is hereby declared that no person providing any service as a network service provider shall be liable under this Act, rules or regulations made thereunder for any third party information or data made available by him if he proves that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention.

Explanation:- For the purposes of this section, –

 (a)             “network service provider” means an intermediary;

(b)             “third party information” means any information dealt with by a network service provider in his capacity as an intermediary; 

 We may observe that while the current provision made Intermediaries prima facie liable under ITA 2000 unless they proved lack of knowledge and due diligence, the proposed law generously exempts them from liability from “any law” unless “Abetment” and “Conspiracy” is proved.

The liability can be ascribed only on or after a suitable notice is served on the intermediary by the Central Government or its agency and after providing time for him to remove the offensive content.

As a result of this provision, any content which carries terrorist propaganda or any intermediary who is providing web hosting facilities, money exchange facilities, anonymizer facilities, e-mail facilities etc cannot be held liable unless he is proved to be a conspirator etc.

This provision will apply not only to ISPs and hosting companies but also the Cyber Cafes.Since the notice in case of any violation has to come from the Central Government, it may be difficult even for the State Police let alone NGOs serving such notices and holding the intermediaries liable.

The provision will therefore be providing a safe haven for terrorists to keep using Internet unless their activity is found out, noticed by Central Government and a “Cease and Desist” notice is served. If the ISP or the service provider is a foreign body, the Government will take several days to reach its notice to them.Another alrming feature of the provision is that it applies even for offences under “Other Laws”.

What this means is that Intermediaries will be exempted from liability under this section even for offences under IPC including the traditional Terrorist Acts.Just to think that  such an amendment was proposed in the first place itself makes us shudder.

Added to this, Section 80 was proposed for deletion, Section 66 etc were diluted to make the offences non cognizable,  most of the offences were made compoundable. All these together appeared as a conspiracy against the country by dilution of the existing laws. Just as POTA was removed to make the anti terror law ineffective, ITA 2000 was diluted to make it “Criminal Friendly”. 

Those who are interested in reading a more detailed analysis of the provisions may visit here.

It was therefore apt that the Parliamentary Standing committee  headed by Mr Nikhil Kumar commented in its report prescribed as under

” ..The department’s reasoning for not making the intermediaries/service providers liable in certain cases is….. The committee donot agree with this. What is relevant is that when their platform is abused for transmission of allegedly obscene and objectional contents, the intermediaries/service providers should not be absolved of responsibility. The Committee, therefore recommend that a definite obligation should be cast upon the intermediaries/service providers in view of the immense and irreparable damages caused to the victims through reckless activities that are undertaken in the cyber space using the service provider’s platform. Casting such an obligation seems imperative..”

The mandate of the Parliamentary committee is therefore very clear. Will the proposed amendments honour this mandate? Or will it brush it under the carpet?

We need to watch when the draft is made public.

While we feel that we need a US PATRIOT Act of India to be passed to meet the current requirements, we need to also ensure that ITA 2000 does not become weak after the amendments. If this is done it will  also seriously hamper the anti terrorist investigations of the Police.

I therefore urge our Members of Parliament to be vigilant about the possibility of these suggestions being ignored in a bid to make the Intermediaries happy.

[P.S: The comments are based on the publicly available draft and to ensure that the final draft to be passed takes care of these concerns even at the time of the debate. Only our MPs hold the key for ensuring this.]

Naavi of Naavi.org

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