Tuesday, January 31, 2012

Google Blogspot Platform Is Providing Country Specific Results

As you are aware, Google is planning to use a new privacy policy and terms of service (ToS) on 01-01-2012. Many people have raised valid concerns that this may be adoption of a more intrusive and e-surveillance oriented approach by Google. On the other hand, consolidation of various privacy policies and ToS at a single place has many benefits and advantages as well.

Only time would tell whether the new privacy policy and ToS of Google would be beneficial or counter productive. However, its effects have already been visible. In the past, Google has been giving country specific news and SERPs. To meet this objective Google has been using the internet protocol (IP) address of the user.

This is a serious issue that may have grave privacy violation implications. IP based results are also the requirement for Google to place the most relevant online advertisement based upon users location, behaviour and tastes. This policy of Google deserves to be taken note of by the federal trade commission and department of justice of United States.

However, the most bizarre act of Google is bifurcation of blogspot domain into India specific results and non India specific results. If you are an Indian blogger at blogspot domain, you must have realised that your blog’s address is automatically assigned to ***.blogspot.in instead of the ***.blogspot.com.

The legality of various acts and omissions of Google Incorporation and Google India need to be legally scrutinised. Google is already facing a criminal trail in India for non removal of objectionable contents. Similarly, a DMCA notice to Google Incorporation and legal notice to Google India has also been served. In other cases, it appear that Google is deliberately ignoring and violating Indian laws like copyright law, trademarks law and cyber law of India.

Undoubtedly, Google must comply with Indian laws to escape various civil and criminal liabilities. Similarly, India must also develop alternative mechanisms to DMCA notice that Google and others must follow. This is more so when the cyber litigations against foreign websites would increase in India.

The latest privacy policy and ToS of Google as well as providing Indian and non Indian based blogspot results is not going in the right direction. There is a need to analyse the same and federal trade commission and department of justice of United States and Indian government must legally scrutinise the same. The possibilities of any unfair trade practice by Google must be ruled out before Google’s new privacy policy and ToS are made operational.

Saturday, January 28, 2012

Is Google Deliberately Avoiding Compliance Of Indian Laws?

Something terribly wrong is happening at Google India office and functions. Whether it is compliance with Indian intellectual property laws or cyber law or screening of India specific search results, everything seems to be in real mess at Google India’s part.

Recently, posts pertaining to the controversial non allowance of video conference of Salman Rushdie were mysterically removed from India specific SERPs and blog search. They reappeared only after this issue was publically discussed by us. Now SERPs of DMCA complaint with Google are not appearing properly in India.

However, the real problem seems to be that Google India in general and Google Incorporation in particular is not complying with the laws of India and legitimate demands arising out of the same. Even if DMCA procedure is followed, Google Incorporation and Google India are not complying with US and Indian laws respectively.

This situation urgently demands that India must establish an alternative legal regime that does not need to be DMCA compliant. In fact, Perry4Law Techno Legal Base (PTLB) has recommended some measures that can solve this problem of non following of Indian laws by companies like Google, Facebook, Wordpress, etc.

PTLB has suggested the following:

(1) All subsidiary/Joint ventures companies in India, especially those dealing in information technology and online environment, must mandatorily establish a server in India. Otherwise, such companies and their websites should not be allowed to operate in India.

(2) A stringent liability for Indian subsidiaries dealing in information technology and online environment must be established by laws of India.

(3) More stringent online advertisement and e-commerce provisions must be formulated for Indian subsidiary companies and their websites.

These are strong suggestions that can provide the requisite legal arsenal to the Delhi High Court that is currently hearing the case of Google, Facebook, etc. The Delhi High Court would hear Google, Facebook, etc on 02-02-2012 and there is nothing that prevents it from taking a judicial note of these suggestions.

Wednesday, January 25, 2012

Video Conferencing Is A Troubled Technology In India

Information and communication technology (ICT) is increasingly posing challenges before Indian government. Sometimes, novel situations and challenges are posed before Indian government that they have to resolve. This is the reason why companies like Google and Facebook are fighting legal battles in India.

There is no second opinion that India is anxious to control information technology. Measures like Internet censorship, websites blocking, etc have been devised by India to take control of technology. However, no matter howsoever hard Indian government would try; technological issues would keep on teasing Indian government.

The latest to add to this list is use of video conferencing in India. The recent episode of Rajasthan government and Rajasthan police not allowing the video conferencing of Salman Rushdie affirms this struggle.

We have no dedicated video conferencing laws and regulations in India. Obviously, we have no dedicated video conferencing blocking laws in India as well. In the absence of a clear cut law, Indian government is following procedures that do not justify its stand.

There is an urgent need to formulate sufficient rules or guidelines in this regard so that illegal vide conferencing blocking in India can be curbed.

Tuesday, January 17, 2012

Ministry Of Home Affairs Would Scrutinise Online Contents

Foreign websites and social media platforms are defending themselves in India under the cyber law of India. In fact, the cyber law due diligence and social media due diligence have emerged as the perspective cyber law trends of India in 2012. Clearly, foreign companies and websites must keep in mind the conflict of laws across the world that they have to adhere to.

Although cyberspace is not a safe place for any person yet children are more vulnerable to the evils of cyber crimes. Protecting children in cyberspace is of utmost importance. Realising this requirement, the home ministry of India would scrutinise social networking sites for the risks they may pose before children. Home ministry plans to monitor social networking sites that host obscene material that induces children to sexually explicit acts or crimes.

In fact, the home ministry has communicated to other states that it is essential to monitor and regulate various websites, including social networking websites, and to train teachers, cyber café owners and parents on deploying parental control software to mitigate spoofing of age, gender and identity.

B Bhamathi, additional secretary at the home ministry has issued a letter to all state police chiefs and chief secretaries and has directed that in appropriate cases, the police should request social networking sites to remove undesirable contents. Bhamathi has also suggested that police officers must act as undercover agents to identify internet criminals and apprehend them to safeguard children’s interests.

According to Praveen Dalal, managing partner of law firm Perry4Law and leading techno legal cyber law expert of Asia, if Websites are “Violating” Laws of India and they have been “Notified” to this effect and still they “do not Remedy the Situation”, then the Safe Harbour Protection under Indian Information Technology Act, 2000 is “Lost” and such Websites/Owners can be Prosecuted in India.

Thus, social networking websites that are duly notified by police officers in India are required to take down contents that are detrimental to children and may pose threat to them. If these social media websites refuse to or fail to do so, they may be prosecuted in India.

This is a reasonable step on the part of home ministry as cases of child pornography, online harassment, cyber stalking and cyber bullying are increasing world over. In fact, recently Interpol helped India to track child porn surfers in Kerala. Clearly the grip of Indian cyber law is tightening upon websites and social media platforms and they cannot afford to ignore cyber law due diligence any more.

Friday, January 13, 2012

Google, Facebook, Microsoft, Yahoo Etc Summoned Before Indian Court

There are certain offences against the State that cannot be tried by any court in India till central/state government grants its permission. Such permission is granted under section 196 of the Code of Criminal Procedure (CrPC), 1973 and once granted certain criminal offense committed against a nation/state can be prosecuted.

Lack of cyber due diligence and weak arguments before the Delhi High court has brought a situation where websites like Google, Facebook, Microsoft, Yahoo, etc would have to face criminal trial in India. The Indian government has sanctioned prosecution of social networking sites like Facebook, Google, Microsoft and Yahoo India over objectionable content on their sites and with this the criminal trial process has begun. Even these websites may be blocked in India if they fail to comply with Indian laws.

Meanwhile, the trial court adjourned the matter till March 13, 2012. The trial court has also directed the external affairs ministry to serve the summons issued to foreign-based social networking sites. With this the excuse of being an Indian subsidiary is also gone and now parent companies would have to face the heat.

Indian government, while granting such permission, said “Government of India, after being satisfied that such content are violative of the provisions of the Information Technology (Intermediaries Guidelines) Rules, 2011, and after due application of judicious minds finds it appropriate to grant sanction under section 196 of CrPC to proceed against the accused persons in the aforesaid complaint in national harmony, integration and national interest”. This was said in a report submitted by the department of information technology to the trial court.

According to Praveen Dalal, managing partner of law firm Perry4Law and leading techno legal expert of India, if Websites are “Violating” Laws of India and they have been “Notified” to this effect and still they “do not Remedy the Situation”, then the Safe Harbour Protection under Indian Information Technology Act, 2000 is “Lost” and such Websites/Owners can be Prosecuted in India.

This entire situation could have been avoided by simply removing the offending contents. I do not know why websites failed to consider such request. Even otherwise when such a media rage was raised over the issue, there was nothing that prevented such websites to remove the offending contents on their own. Now these websites cannot even claim that they had no knowledge of such offending contents.

The best option for these websites seems to be to remove the infringing material and report to the concerned courts. The sooner they do it the better it would be to diffuse this tension and situation.

Thursday, January 12, 2012

Can Google And Facebook Be Blocked In India?

Recently we covered an article titled should Wordpress be blocked in India? The article was a result of the increasingly denial of US based and foreign companies to comply with Indian laws like copyright law and cyber law of India. As matters of fact foreign companies are openly violating the intellectual property rights and cyber law of Indians and even if contacted they are not willing to remedy the situation.

Techno legal experts in India have even suggested that US must change its policy towards foreign IP infringements and must stay away from getting involved in controversial laws and actions. However, it seems foreign companies are not listening and experts in India have suggested taking drastic steps like reasonable judicial blocking of such offending websites in India.

According to Praveen Dalal, managing partner of law firm Perry4Law and leading techno legal expert of India, Websites Blocking in India by Judiciary must be Just, Reasonable and Fair. There should not be an “Unreasonable” or “Casual Approach” towards Blocking of Websites in India by Indian Courts. If Websites are “Violating” Laws of India and they have been “Notified” to this effect and still they “do not Remedy the Situation”, then the Safe Harbour Protection under Indian Information Technology Act, 2000 is “Lost” and such Websites/Owners can be Prosecuted in India, informs Praveen Dalal.

This explains the prosecution part of such websites. However, what happens if the prosecuted websites fail to comply with court’s directions? Such Websites can be “Legally Blocked” in India if they fail to “Comply” with Court’s Directions or Directions of Indian Government Agencies like Computer Emergency Response Team, India (CERT-IN) that are duly ordered in this regard by a Designated Officer, informs Praveen Dalal.

The way foreign websites are refusing to comply with Indian laws, blocking of such websites in India is going to increase. In fact, US has proposed laws like Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011 (PIPA) and the "Stop Online Piracy Act (SOPA) that are primarily targeted toward foreign websites blocking, including those of India. India must also enact such law that can block foreign websites if they do not comply with Indian laws.

While pre screening of contents is not possible yet there is nothing that prevents foreign companies from removing objectionable contents. In fact, they are legally bound to remove such offending contents once they become aware of such contents. Cyber due diligence for India companies and foreign websites is now well established and websites owners cannot deny the same.

In fact, the Delhi High Court has today reiterated this position that websites of social networking site Facebook India and search engine Google India can be "blocked" like in China if they fail to devise a mechanism to check and remove objectionable material from their web pages.

The court proceedings against Google and Facebook would continue before the magistrate's court and it would decide the fate of these two companies as per Indian laws. The arguments put forward on behalf of Google and Facebook seem to be weak and they must come up with something really brilliant to show that they are compliant with Indian laws.

Wednesday, January 4, 2012

Cyber Crimes And Role of Media In India

Cyber crimes in India are increasing rapidly. With the proliferation of social media websites in India, cyber crimes have not spared even such social media websites. A lot of cyber crimes, cyber contraventions, intellectual property rights (IPRs) violations, etc are committed due to lack of awareness about cyber law of India.

Further, there are very low cyber crimes convictions in India. This is because the cyber crime investigations in India are not proper due to lack of cyber law and cyber forensics knowledge. There is an urgent need to ensure cyber skills development in India so that cyber crimes can be prosecuted successfully.

Even judiciary needs to reform its practices and working style. Presently civil and criminal cases take decades to resolve and this frustrate the cause of justice. Technological innovations like e-courts, online dispute resolution (ODR), digital evidencing, e-discovery, cyber forensics, etc are still missing from Indian courts. These technological innovations can greatly reduce the time taken by Indian courts to decide cases.

Similarly the role of media in expediting the trials in courts is also well known. Media highlights the societal issues and this force the courts to speed up the matter. While media trial must be avoided yet public awareness must be spread by media so that cases can be debated among Indian masses. Cyber crime cases generally do not attract media attention.

Social media websites are popular places for building new relationships and contacts. However, social media websites are also becoming a place for cyber criminals to indulge in various cyber crimes.

We have no dedicated social media laws in India although guidelines for social media contents monitoring in India may be prescribed. Although we have a cyber law in India in the form of information technology act 2000 (IT Act 2000) yet we have no dedicated social networking laws in India. The cyber law for social media in India needs to be strengthened further keeping in mind a balance between civil liberties and law enforcement requirements.

Tuesday, January 3, 2012

E-Banking In India Is Not Safe

Electronic banking (e-banking) in India is seen as a viable and alternative mechanism to do traditional banking business. Even banking customers are happy to use the same for reasons of efficiency and time saving. However, there are many e-banking security related issues that are not paid attention to by Indian banks.

Cyber security of banking transactions in India is an important aspect that must be of paramount importance to all banks and financial institutions operating in India and elsewhere. Even Reserve Bank of India (RBI) has recommended ensuring strong cyber security for banking and financial institutions in India. RBI has even made the appointment of chief information officers (CIOs) mandatory for all banks operating in India. However, till now there is no sign of compliance with this requirement of RBI and online banking system of India is not cyber secure.

E-banking risks in India are increasing and cyber security of e-banking in India must be strengthened by various banks. In fact, e-banking cyber security in India needs to be strengthened so that customers’ confidence can improve. ATM frauds in India are increasing and so are e-banking related and credit cards frauds. RBI’s ombudsmen office is already flooded with ATM related complaints. Other banking financial frauds in India are also widespread.

Recently, Indian electronic delivery of services bill 2011 has been proposed by Indian government. The moment it becomes an applicable law, government departments and public authorities would be required to deliver public services in an electronic form. This makes using a strong cyber security essential for banks and financial institutions operating in India.

Similarly, the cyber law of India mandates cyber due diligence for Indian companies and other stakeholders. Banks of India are also required to ensure cyber law due diligence in India to escape financial, civil and criminal liabilities. Cyber security due diligence for banks in India must be taken very seriously by banks and financial institutions in India. Banks must ensure good chief information officers (CIOs) training for their staffs so that they can meet the cyber security requirements effectively.

For long banks have ignored cyber law due diligence and cyber security requirements and this has made e-banking transactions unsafe in India. E-banking in India is not safe and both Indian government and RBI must immediately step in to remedy this situation.

India Is Anxious To Control Information Technology

This is the updated version of my previous article titled India is desperate to control technology. It has been censored by Google through manual action penalty so it requires reposting for the larger interests of viewers and netizens.

This post has also been censored by Digital Journal where it was originally posted through the infamous trump card of spam communication used by Internet intermediaries and online community.

Of late, spam communications has been used as a façade to violate speech and expression right. It is high time to ensure civil liberties protection in cyberspace as merely saying that Internet access is a human right by United Nations is not going to serve any purpose. If posts are censored by Google after posting, freedom of speech and expression is definitely violated and so are human rights in cyberspace.

Adoption of information and communication technology (ICT) by Indian government seems to be a herculean task. Naturally, if India cannot understand the technology, it would prefer to block the same as whatever we do not understand we fear of the same.

This holds true for India. Instead of befriending technology, Indian government is considering the same its enemy. From Internet censorship to e-surveillance, Indian government has not left any stone unturned.

India has been struggling to deal with technological issues for long. Unable to deal with the same in a constitutional manner, India adopted measures that are detrimental for the growth of the same. These measures can only increase e-corruption and they are detrimental to the interest of India in the long run.

The worst affected area seems to be the cyber law of India incorporated in the information technology act 2000 (IT Act 2000). Cyber law for social media in India is draconian in nature that forces social media websites and Internet intermediaries in India to follow Indian government’s directions.

Recently, Internet intermediaries in India were asked to pre screen contents of users. Companies like Google opposed such move of Indian government. However, this does not stopped Internet censorship in India, e-surveillance in India, etc. Further, even incidences of manual action and censorship and blocking of accounts were witnessed regarding companies like Google and Facebook. In an interesting development Yahoo took Indian government to court over e-surveillance.

It seems human rights in cyberspace need to be strengthened and protected. United Nations needs to step in to prevent encroachment upon civil liberties in cyberspace. Protection of human rights in Indian cyberspace also needs to be taken seriously by Indian government. European Council has already expressed its concerns for cyber attacks and political pressures upon cyber dissidents. It is working in the direction of protecting privacy rights and free speech in cyberspace.

The recent cyber law trends in India and cyber security trends in India are pointing towards reformation of Indian cyber law. Further, even a constitutional phone tapping law in India is urgently required. The year 2011 was a bad year for legislative reforms in India and I hope the year 2012 would not be same.

Monday, January 2, 2012

India Is Desperate To Control Technology

Adoption of information and communication technology (ICT) by Indian government seems to be a herculean task. Naturally, if India cannot understand the technology, it would prefer to block the same as whatever we do not understand we fear of the same.

This holds true for India. Instead of befriending technology, Indian government is considering the same its enemy. From Internet censorship to e-surveillance, Indian government has not left any stone unturned.

India has been struggling to deal with technological issues for long. Unable to deal with the same in a constitutional manner, India adopted measures that are detrimental for the growth of the same. These measures can only increase e-corruption and they are detrimental to the interest of India in the long run.

The worst affected area seems to be the cyber law of India incorporated in the information technology act 2000 (IT Act 2000). Cyber law for social media in India is draconian in nature that forces social media websites and Internet intermediaries in India to follow Indian government’s directions.

Recently, Internet intermediaries in India were asked to pre screen contents of users. Companies like Google opposed such move of Indian government. However, this does not stopped Internet censorship in India, e-surveillance in India, etc. Further, even incidences of manual action and censorship and blocking of accounts were witnessed regarding companies like Google and Facebook. In an interesting development Yahoo took Indian government to court over e-surveillance.

It seems human rights in cyberspace need to be strengthened and protected. United Nations needs to step in to prevent encroachment upon civil liberties in cyberspace. Protection of human rights in Indian cyberspace also needs to be taken seriously by Indian government. European Council has already expressed its concerns for cyber attacks and political pressures upon cyber dissidents. It is working in the direction of protecting privacy rights and free speech in cyberspace.

The recent cyber law trends in India and cyber security trends in India are pointing towards reformation of Indian cyber law. Further, even a constitutional phone tapping law in India is urgently required. The year 2011 was a bad year for legislative reforms in India and I hope the year 2012 would not be same.