Neeraj Aarora - Cyber Lawyer

The move of the Karnataka State Government in bringing the certain provision of the Information Technology Act, 2000 under the Goonda Act is an arbitrary, unfathomable and would have serious ramifications. The another important aspect of the move is the genesis of the problem which is emerging from continuous amplification in gravity or the ramifications of such offences. With the move of the society to e-governance, the magnitude of the Cyber Offences has increased manifold with no specific answer to any remedy to deal with.

The genesis of the problem lies not only due to the challenges posed by the fast new emerging technology but also ineffectiveness of the Information Technology Act, 2000, failure of the police to investigate the same and as well as the failure of the government to provide the redressal or dispute resolution mechanism relating to the cyber offences. In the absence of the capability of  government administration to tackle / investigate such offences and to book the real culprit, such budge to Goonda Act would not only fail to meet its objective but would also be counterproductive and would have serious repercussions.

The Karnataka state government has passed an act on July 28th, “The Karnataka Prevention of Dangerous Activities of Bootleggers, Drug-offenders, Gamblers, Goondas, Immoral Traffic Offenders, Slum-grabbers and Video or Audio Pirates, (Amendment) Bill, 2014′. The amendment adds, “Acid attackers, Depradator of Environment, Digital Offenders, Money Launderers and Sexual Predators” A Digital Offender  means –

“Any person who knowingly or deliberately violates, for commercial purposes, any copyright law in relation to any book, music, film, software, artistic or scientific work and also includes any person who illegally enters through the identity of another user and illegally uses any computer or digital network for pecuniary gain for himself or any other person or commits any of the offences specified under sections 67, 68, 69, 70, 71, 72, 73, 74 and 75 of the Information Technology Act, 2000”.

The Goonda Act allows the Government to detain a person upto one year “with a view to prevent him from acting in any manner prejudicial to the maintenance of public order.” Though the Government has the power to block the websites for breach of public order under Section 69A of the Information Technology Act, 2000 but the same have rarely been used to block the pornographic websites and even there are views of various courts that the transmission of pornographic content through website does not constitute the violation of public order. Even the section 67/67A/67B which allows the police to register a case ‘suo motto’ against every website/ blog/ online publication disseminating pornographic contents but the same have not been invoked by the police ever then how the application of Goonda Act would be supportive.

Now the issue is where the genesis of the move to bring the offences relating to Information Technology Act, 2000 lies, whether it is ineffectiveness of the Information Technology Act, 2000 or the failure on the part of the part of government machinery comprising of police, adjudicating authorities to deal with the same. There is no dispute that the immediate steps are required to deal with rapidly increasing cyber offences which has gained alarming proportions. The cyber offences like Hacking, Data Theft, Phishing Frauds, Online Frauds, Identity Theft, Cyber Terrorism, Child Pornography, DDoS Attacks, Email Frauds have spurt exponentially to the extent that an individual now find its riskier to operate online and because of the multi-jurisdictional nature of the offences, the investigating agencies fails to nab the cyber criminals and in fact, cyber criminals are the uncrowned king of the cyber world.

The Information Technology Act, 2000 has much been criticised for being toothless to deal with the cyber offences and one of the main reason for such disparagement is due to the fact that the most of the offences have been made bailable by the Information Technology (Amendment) Act, 2008.  In the absence of custodial interrogation, the police has become ineffectual in collecting digital evidence resulting into escape of the cyber criminals from the prosecution and this situation has further deteriorated with the growing use of encryption technology for which the government has hardly any solution and European nations are trying to find the way out. Though recently, a few judgments of the US court have come which empowers the police/court to instruct the cyber criminals to decrypt the digital contents or continue to remain in Jail but the law on the issue is still to develop. There is no doubt that the Information Technology Act, 2000 fails to have a deterrent effect on the cyber offenders but whether the invoking of Goonda Act would provide the substitute to bridge the gap.

The present scenario clearly indicates that there is severe shortage of skilled police personnel to investigate the cases relating to the cyber offences in the country. The victims of the cyber offences have no remedy as they are rolling from one platform to another to get the justice and with the passage of time, the digital evidence vanishes and offender becomes the conqueror. No likelihood of situation recuperating seems tenuously as the government has not taken any steps to deal with the situation. To exploit the situation, in the name of initiatives, the cyber labs are being set up and crores of exchequers have found  their ways to the coffins of government officials and vendors who are interested in acquiring the hardware and software which even in some cases remain unpacked throughout their span of life. These hardware/softwares are being sold at unrealistic prices and no one is there even to handle these gadgets and no respite is apparent for the cyber victims in near future.

Despite so much hue and cry regarding the cyber offences, the Government has not notified even a single body under Section 79A of the Information Technology Act, 2000 as the “Examiner of the Electronic Documents”  and even our FSL/CFSL’s opinion does not qualify the requirement of Section 45A of The Evidence Act and as such not admissible. Even in these FSL, the persons originally from other domains are handling the cases of computer/mobile/network forensic and their outcome is limited to the use of forensic software and they are not able to handle the cases of complex digital evidence. The system of dispute redressal through the mechanism of Adjudicating Officer as provided under Chapter IX in Information Technology Act, 2000 is not yielding the result and Cyber Appellate Tribunal is headless for last two years.

The application of Goonda Act to the cyber offences empowers the police to make preventive arrest on mere suspicion but the issue is of its enforcement. How can the police come to know that a person sitting on the computer is going to commit the cyber offences and particularly when the police agencies are lacking the investigative skills to connect the offence with the offender in the digital medium. In fact, one of the reason of spurt of cyber offences is the non registration & investigation of cyber offences by the police. The use of Goonda Act by the police who lacks capability to investigate the Cyber Offences would make the perilous situation for the citizen of the state.

The hacking of the email account, online accounts, social networking sites though the use of Spyware, Trojans have become the routine activities and if an offender hacks an account and commit a cyber offence which is covered by the Goonda Act, the consequence would be harassment of the innocent citizens as police lacks the ability to track the footprint of hacking through Spywares/Trojans. The hackers are using the computer as bots to commit DDoS attacks and other offences which may implicate innocent citizens and ramification would be devastating as neither the police has skill set to appreciate nor to investigate the same. Even the innocent citizens would not have remedy to bring the evidence of bots/spyware/trojans on record and courts are also not very friendly as far as cyber offences are concerned.

The ineffectiveness of the law enforcement agencies in handling the cyber offences coupled with the lenient provisions of the Information Technology Act, 2000 has created the gaps in handling the rapidly increasing cyber crimes. The invoking of Goonda Act would not only be ineffective to deal with such gaps but also would be counterproductive. It would not make the incompetent police agencies proficient to investigate the cyber offences and secure the conviction without the appropriate digital evidence.  The only feasible solution is to prepare the police agencies capable of handling such offences coupled with suitable amendment in Information Technology Act, 2000 compatible with the changes in the technology.

One comment

Leave a Reply

Your email address will not be published.