Make Law In Haste, Repent At Leisure

The Information Technology Act 2000 makes India one of the first countries to pass dedicated legislation for e-commerce. But it is also one of the worst pieces of law ever made. What is surprising and should have been debated more extensively by our politicians is the restrictive nature of the bill.

More importantly, it is a retrogressive act which has bent over backwards to protect the vested interests of government and the bureaucracy -- which obviously doesn't understand the sector -- without pausing to think about its effects on users of the Internet, that is, citizens of India.

It's a pity Indian politicians (and the government) continue to pay lip service to the information technology sector without understanding how it has the potential to change the lives (for the better) of every person in the country, regardless of caste, creed or wealth.

 

We have one of the best internet access policies around. The massive increase in internet usage can primarily be traced to dismantling of the public sector monopoly in the area of providing access through multiple ISPs and allowing these service providers to set up their own networks and international gateways.

As a result of these progressive policies on net access, India's active Internet user base will increase almost 3,074 per cent to 9 million by the year 2003, according to a report by eAsia. Last year, India's Internet use was estimated at 270,000.

But when it comes to the legal framework to let these netizens use the Net for e-commerce, politicians suddenly go into a slumber. Instead the opposition parties rant and rave about the IT Bill but without making any constructive criticism that would make the e-commerce legal framework more sustainable and give the kind of freedom to individuals and firms so that they can innovate and invent. Even the parliamentary standing committee which literally sat on the bills for six months and came up with some of the most mind-boggling recommendations.

While very little about the changes to the bill were announced to the public, it was only the strong lobbying by Nasscom and others that prevented clauses which would have meant that cyber-cafes would have to keep track not only of all users but also which sites they visited and would be liable criminally if they didn't!

I mean are our politicians so naive that they haven't even logged on to the Net to figure out what the ramifications of their "expert" suggestions are. Not to mention the fact that with computers being out of the reach of most Indians, the cybercafes are the main channel available to deliver the Net to most of India's urban populations. Putting such spokes in that wheel would inevitably mean that Net access would get de-railed.

Equally unbelievable was the "expert" suggestion that each website registered or hosted in India would have to register with the Controller of Certifying Authorities -- the new babu on the e-block -- or face liability. Again, strong lobbying pointed out this was a fruitless exercise, since all these websites already have to register while getting a domain name.

And as pointed out in previous columns, the most distressing part of the new IT Act 2000 is its absolute trampling of cyber liberties and freedom. Consumer rights and freedoms do not form a part of the bill at all. Hence, a police officer of the rank a deputy superintendent of police has been granted unheard of powers to do almost anything for the purpose of nabbing a cyber criminal.

This unrestricted power given to police officers is in the form of an absolute discretion to enter and search any public place and arrest any person without warrant who is "reasonably suspected" of having committed or of committing a cyber crime or if he is about to commit a cyber crime. The discretion of the police officer further extends to defining as to who is going to be "reasonably suspected" of a cybercrime.

While information technology minister Pramode Mahajan defends this provision vaguely by saying its better with the provision than without, given that the only computer most police stations and police officers can handle is a calculator at best, its difficult to foresee how they can stop cyberhackers and those that put viruses out before the crime is committed. As the requirements of cyberspace are very different from the actual world, it is difficult to decide till the last moment as to whether any cybercrime is about to be committed. Even after the act has been committed, the FBI has not been able to catch the Lovebug virus guy in the Philippines with their enormous resources. So what chance do we give the Punjab, Delhi or Mumbai police.

What is worst from the consumer standpoint is that the IT Act, 2000 gives immunity to the central government and its officials including police from any suit, prosecution and other legal proceedings for any act done in good faith in pursuance of the provisions of the Act. Effectively, this rules out any remedy for a person who is made a target of abuse and misuse of discretion by the police.

Experts have also been surprised that the IT Bill begins by granting a legal infrastructure for e-commerce without touching anything on other important legal issues for the corporate sector like intellectual property rights, domain names, Internet policy, linking or disclaimer.

Nor does it allow electronic negotiable instruments like cheques. Mr Mahajan responds to queries about the bill by saying that it can always be changed later if problems come up. Basically, the bill was passed in such a hurry without half the things it needs because of the minister's current trip to the USA. The IT minister couldn't possibly pitch for more investment in his country without having at least something to show. Now he has the IT Act, 2000 as his resume in his pocket to show off with. For his sake, let's hope no one looks at the IT Act too closely.