Legal Framework Governing Information Technology

Presented By S G Shah

Information Technology Act, 2000

Introduced in Parliament as Bill in 1999 Enacted in 2000 Received the assent on 9th June , 2000 Came into force on 17th October 2000 Based on the model Law on E-Commerce adopted by UN General Assembly Resolution of 1997 Model Law only to aid for drafting and not a guide to interpretation, Konkan Railway Corpn. v Rani construction (2002) 2 SCC 388

Amendment to IT Act
Act 55 of 2002 The Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002

Purpose of the Act

To make law on information technology simple and transparent and to the advantage of New Technology

I T Act provides for

Electronic Camera Transactions Electronic Filing Maintenance of Electronic Records Electronic Transactions involving Government

Content
94 Sections 4 Schedules 13 Chapters

Allied Rules
I T Certifying Authorities Rules, 2000 Cyber Regulations Appellate Tribunal (Procedure) Rules, 2000 I T Certifying Authority Regulations, 2001 I T (Other Standards) Rules, 2003 I T (Other Powers of Civil Court vested in Cyber Appellate Tribunal) Rules, 2003

Cyber Laws
Cyber Laws has enabled: # Internet Transactions Recognised # Online Contracts enforced # E-mail Legally Acknowledged # Domestic & International Trade and Commerce Coefficient

Applicability
Extends to the Whole of India Including Jammu & Kashmir Also applies to any offence or contravention falling under this Act committed outside India

I T Act Not Applicable to

Negotiable Instruments (Other than Cheque) Power of Attorney Trust Will Contract of Sale of Immovable Property I T Act has restrictive applicability

Definitions
Section 2 defines various technolegal words like: access; digital signatures; asymmetric crypto system; certifying authority; certification practice statement; computer network, resource; E-records; private key & public key etc.

Digital Signatures
Section 3 Not a digitalized image of handwritten signatures It is a block of Data 2 way process 2 parties Signer & Recipient

E-Governance
Sections 4, 5, 6, 7, 8, 9 & 10 Use of information and Communication Technologies by Government agencies to transform relations with citizens, business and other arms of the government Section 8 provides for publication of rules, regulations etc. in Electronic gazette

Examples
Indian Railways reservation facility HARIS Haryana Registration Information System Gyandoot Madhya Pradesh Project Sauakryam Vishakhapatnam Smart Ration Card Kerala Khajane & Bhoomi - Karnataka

Electronic Records
Sections 11, 12 & 13 Indian Contract Act, 1872 Proposal & Acceptance : Promisor & Promisee I T Act, 2000 accepts the above

Security Procedures
Sections 14, 15 & 16 Secure Electronic Records Secure Digital Signatures

Regulation of Certifying Authority

Sections 17 to 34 Sections 17 & 18 Appointment and Functions of Controller Section 19 Recognition of Foreign CA Sections 20 to 26 Application, Renewal, Suspension of License

Hierarchy Levels
1. Controller of Certifying Authorities 2. Certifying Authority 3. Subscriber

Office of CCA
Controller of Certifying Authorities 3 Deputy Controllers Technology Finance & Legal Investigation 3 Assistant Controllers Same Functional departments as above

Digital Signature Certificate

Sections 35 to 39 Section 35 Issue Section 37 Suspension Section 38 Revocation

Duties of Subscribers
Sections 40, 41 & 42 Generating Key Pairs Acceptance of Digital Signature Certificate Control of Private Key

Steps to become a Subscriber

Approach Registration Authority (RA) of a Licensed Certifying Authority (CA) Fill Application Form Enter into Certifying Authority-Subscriber Agreement Applicant to generate signing Key Pair RA forwards application to CA CA generates Digital Signature Certificate Subscriber Downloads, verifies and accepts CA to publish DSC in its Repository

Penalties & Adjudication

Sections 43 to 47 Section 43 identifies 8 causes of causing damage to computer, computer system and computer network Fine amount upto Rs 1 Crore

8 causes as per section 43

Accesses or secures access Downloads, copies or extracts Introduces computer virus Damages Disrupts Denies the access of authorized person Provides any assistance to facilitate Charges the services availed to another person

Penalties under Section 44

Not furnishing documents etc upto Rs. 1,50,000/ Not furnishing documents within time upto Rs. 5,000 per day Not maintaining books of Accounts etc upto Rs. 10,000 per day

Residuary Penalty u/s 45

Where no penalty has been separately provided in the Act up to Rs. 25,000

Recovery of Penalty
If Penalty not Paid Can be recovered as an arrear of Land Revenue Licence & DSC can also be suspended

Adjudicating Officer
Sections 46 & 47 Not below the rank of Director GOI or equivalent State Govt. officer Should be experienced in I T and Legal / judicial Shall have Powers of Civil Court Deemed to be Judicial Proceedings under Sections 193 & 228 IPC Deemed to be Civil Court for the purpose of Sections 345 & 346 Cr PC

Adjudging Quantum of Compensation

Amount of Gain of Unfair Advantage Amount of Loss Repetitive nature of default

Cyber Appellate Tribunal

Sections 48 to 64 Establishment, Composition, Appointment, Term etc. Sections 48 to 54 Orders of Tribunal are final Section 55 Appeals to the Tribunal Section 56 No Appeal if Adjudicating Officers Order was with the consent of parties Appeal to be filed within 45 days

Appeal
No Jurisdiction of Civil Court Section 61 Appeal to High Court Section 62
Within 60 days

Compounding of Contraventions
Can be Compounded by Controller / Adjudicating Officer Amount of Contravention cannot exceed maximum amount of Penalty under the Act

Cyber Offences
Sections 65 to 78 Cyber Crime Cyber Offences Cyber Contraventions Cyber Crime is any illegal act which comprises of Computer, Computer System or Computer Network 2 ingredients: (1) Intention to access (2) Knowing it is unauthorised

Cyber Contraventions & Offences

Contraventions
Unauthorised access Sec 43 (a) to (h) Civil Prosecution Adjudicating Officer

Offences
Serious offences Sections 65 to 74 Civil & Criminal Prosecution Appropriate Court as per the Offence Appealable

Appealable

Tampering Computer Programme

5 Steps to create a Computer Programme 1. Needs Analysis 2. Systems Design 3. Development 4. Implementation 5. Maintenance I T Act Protects this Proprietary Intellect

Hacking
Intentionally accessing a computer system without permission to destroy or alter information Hacking is similar to Mischief as defined u/s 425 IPC

Obscene Information
Comparison of Punishments - IT Act & IPC Sec 67 IT Act Sec 292 IPC First Conviction Imprisonment upto 5 years Imprisonment upto 2 Yrs Fine upto Rs. 1 Lakh Fine upto Rs. 2000/ Second Conviction Imprisonment upto 10 Years Imprisonment upto 5 Yrs Fine upto Rs. 2 Lakhs Fine upto Rs. 5000/ Cognizable & Non Bailable Cognizable & Bailable Triable by Magistrate of Ist Class Any Magistrate Dr Prakash v. State of Tamil Nadu, AIR 2002 SC 3533

Classification of Offences
Section Offence Cognizable Bailable Triable -----------------------------------------------------------------------------------65 Tampering Yes No Ist Class Magistrate 66 Hacking Yes No Ist Class Magistrate 67 Obscene Information Yes No Ist Class Magistrate 71 Misrepresentation No Yes Any Magistrate 72 Breach of Confidentiality and Privacy No Yes Any Magistrate 73 False DSC No Yes Any Magistrate

Network Service Provider

Any Person who provides access to information service in electronic form Internet Service Providers (ISPs) Cellular Mobile Service Customer Access Service (Call Centers) Cable Operators Bandwidth Services Mobile Satellite Services

No Liability of Network Service Provider

For any third party information or data made available by him: If he proves that Offence committed without his knowledge Exercised all due diligence to prevent the commission of such offence section 79

Power of Police Officers

Police Officer not below the rank of Deputy Superintendent of Police has the Power to Investigate Cognizable (Ss 65-70) and Non-Cognizable (Ss 71-74 and 33) Offences under the I T Act

Power of Police Officers [Cont.]

Police officer may enter any Public Place and Search and Arrest without Warrant Public Place includes any Public Conveyance; Hotel; shop; etc Section 80

Miscellaneous Provisions
Sections 79 to 94
Powers of Police Officers Section 79 Application of Act to Electronic Cheques Section 81A Amendments to IPC Section 91 & Sch I Amendments to Evidence Act Section 92 & Sch II Amendments to Bankers Book Evidence Act Section 93 & Sch III Amendments to RBI Act Section 94 & Sch IV

Other Side of IT Act

Missing Important Provisions Chatrooms; Dating Sites: An innocent person can cross over and may be attracted by punitive action IPR issues No Specific Provision for dealing with Domain Name Disputes (ICCAN Rules comes to rescue)