MOBILE LAWS IN INDIA: INFRINGEMENTS TO IMPRISONMENTS

       

Mobile devices have become amazing technology instruments. With increasing use of mobile phones, the applications which are built on mobile platforms, have become essential part in the life of people. The increased use of mobiles and the data and information resident therein, has started throwing up significant challenges. The mobile laws are constantly evolving.

The Indian Telegraph Act, 1885 was a futuristic piece of legislation. It provided that on the occurence of any public emergency, or in the interest of public safety, the Governments(State and Central)or any officer specially authorised in this behalf may,if satisfied,that it is necessary or expedient so to do in the interests of the sovereignty and Integrity of India, the security of state, friendly relations with foreign states or public order or for preventing incitement to the Commission of an offence,for reasons to be recorded in writing,by order,direct that any message or messages to or from any person or class of persons, brought for transmission, received and transmitted shall be intercepted or detailed or shall be disclosed to the Govt. making the order or to an officer thereof mentioned in the order. As telephones started becoming more and more popular, the Indian Telegraph Act, 1885 was used for the purposes of phone tapping.

        

“Phone Tapping” means secretly listening and or recording, a communication channel in order to get information. It is also known as ‘Wire Tapping’ in some countries (primarily in USA). It can only be done in an authorised manner,with permission from the department concerned. If it is undertaken in an unauthorized manner, then it is illegal and will result in prosecution of the person responsible for breach of privacy. Both the Central and State Governments have the powers under section 5 of Indian Telegraph Act, 1885.

It was in the early nineties that the famous “People’s union for civil liberties vs Union of India” case came upto the Supreme Court of India and became a land mark judgement. It was a Public Interest Litigation under Article 32 of the Constitution of India about tapping of politician’s phones by the Central Bureau of Investigation.Supreme Court held that-

         

“The right to privacy by itself has not been identified under the Constitution. As a concept it may be too broad and moralistic to define it judicially. Whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the solid case. But the right to hold a telephone conversation in the privacy of one’s home or office without interference can certainly be claimed as ‘Right to Privacy’.....Telephone conversation is a part of modern man’s life.....Conversations are often of an intimate and confidential character. Right to privacy would certainly include telephone conversation in the privacy of home or office. Telephone tapping would, thus infract (breach) Article 21 of the Constitution of India unless it is permitted under the Procedure established by law.”

“Right to Freedom of Speech and Expression is guaranteed under Article 19(1)(A) of the Constitution of India. This freedom means to express one’s convictions and opinions freely by word of mouth, writing, printing, picture or in any other manner. When a person is talking on telephone, he is exercising his right to freedom of speech and expression. Telephone-Tapping, unless it comes within the grounds of restriction under article19(2), would infract article 19(1)(A) of the Constitution”.

               The question that arises in today’s context is whether the Government has enough powers to tackle with potential misuse of mobile phones. India has such dramatic increase not just in the adoption of mobile phones but also in the manner and methodology in which mobile phones are being increasingly misused against the interest of the nation as also National Security. One thing is very clear that the Government of any Sovereign Nation is never so powerless to defend its own interests as also those of its citizens.

              The GOI enacted the Information Technology (Amendment) Act, 2008, which amended the Information Technology Act, 2000. One of the biggest advances the Amendment Act has made is about Regulation of mobile phones, smart phones,personal digital assistance and all kinds of communication devices. The law has provided very broad definition of the term “Communication Device”. Thus the powers of GOI have been enhanced to regulate not just computers, computer systems, computer networks and computer resources but also communication devices and their potential misuse.Of particular relevance are the powers granted under section 69, 69A, 69B and also section 70 and 70B of the amended Information Technology Act, 2000.

Section 69 of the amended act has provided powers to the appropriate Government, Central as well as State, to issue directions for the interception or monitoring or decryption of information through any computer resource.

Section69A deals with the broad powers to the Central Government to issue directions for blocking for public access of any information through any computer resource.

Section 69B strengthens the hands of the Government to enhance cyber security by authorising it to monitor and collect traffic data or information through any computer resource.

Section 70 gives powers to Central as well as State Government to declare any computer resource as a protected system and the unauthorised access or attempt to access or secure access to any protected system has been brought within the ambit of severe criminal penalty. Under this section the punishment is imprisonment of either description for a term which may extend to ten years and shall also be liable to fine.

The aforesaid powers pertain to not just interception of any electronic communication between two or more communication devices, but also the power to monitor communications between mobile phones. While such powers granted to Government are necessary for protection and preservation of the Sovereignty and Integrity of India, yet one of the drawbacks of the Information Technology (Amendment Act, 2008) is that it does not have adequate checks and balances for the exercise of such powers. History has been witness to the fact that as and when legislations have brought such powers for National Governments, the said powers, apart from being used for genuine purposes, are often also arbitrarily used to settle political scores and personal grievances.

                  

There are concerns about mobiles and terrorism, mobiles and children protection, and mobiles and confidential information. For the purposes of our Profession-Private Investigation, it would be desirable to deal with laws and intricacies about confidential information.

OFFENCES PERTAINING TO BREACH OF CONFIDENTIALITY AND PRIVACY

The meaning of the words ‘Confidentiality’ and ‘Privacy’ are somewhat synonyms. Confidentiality involves a sense of ‘expressed’ or ‘implied’ contractual obligation. It may also exist independantly of any contract, on the basis of an independant equitable principle of confidence. Privacy is the claim of individuals, groups or institutions to determine for themselves, to what extent information about them is communicated to others. Right to privacy is “The right to be let alone”.

                

In the legal parlance, the issue of confidentiality comes up where an obligation of confidence arises between a ‘data collector’ and a ‘data subject’.‘Right’ is an interest recognised and protected by moral or legal rules. It is an interest, the violation of which would be a legal wrong. It is the basic principle of jurisprudence that every right has a corelative duty and every duty has a corelative right. It is, therefore prudent to view the issues related to privacy and confidentiality as “right along with duties”.

A provision pertaining to breach of confidentiality and/or privacy is dealt in section 72 of Information Technology Act, 2008, imposing penalty for the criminal offence, thus: “Save as otherwise provided in this act or any other law for the time being in force, any person, who in pursuance of any of the powers conferred under this act, rules or regulations made thereunder, has secured access to any electronic record, book register, correspondance, information, document or other material to any other person shall be punished with imprisonment for a term which may extend to two years or with fine which may extend to one lakh rupees or both”. The limitations of this section are that its applicability is only for the persons who were conferred powers under the Information Technology Act and in pursuance of the said power, had secured access to electronic record etc of the concerned person.

           

However, the I.T(Amendment) Act, 2008 has introduced a new section being Section 72-A which has provided statuary remedy to victims of disclosure of information and breach of lawful contract. It provides that: “Save as otherwise provided in this act or any other law for the time being in force, any person including an intermidiary who, while providing services under the terms of lawful contract, has secured access to any material containing personal information about another person, with the intent to cause or knowing that he is likely to cause wrongful loss or wrongful gain discloses without the consent of the person concerned, or in breach of a lawful contract, such material to any other person, shall be punished with imprisonment for a term which may extend to three years, or with fine which may extend to five lakh rupees or with both”.The provisions are applicable to any person including intermediaries. This is so because intermediaries, today, are the repositories of third party information and have invariably been found to be disclosing information belonging to third parties, in breach of lawful contracts. This particular section is of direct relevance in today’s context, to the intermidiaries and network service providers, especially in the context of the mobile ecosystem.

    

On one hand the provisions are meant to protect privacy and on the other hand complete sweeping powers have been handed over to Governments (Law enforcement agencies) for intercepting mobile phones and communication devices. These powers tantamount to violation of privacy of individuals in the letter and spirit of the word “privacy”. These powers given with reference to monitoring, blocking and interception of electronic communication have not been effectively challenged or set aside in any court of law in India.

Some important litigations are on record and merit attention:

1. Harsh Pathak vs Union of India:

Under article 32 of the Constitution of India to check, regulate and end the invasion of privacy of the subscribers of mobile telephone services. They are not allowed to use or share personal data of the subscriber for their business purposes under provisions of sections 427 and 513 of the Indian Telegraph Act, 1885. This important litigation is still pending before the Hon’able Supreme Court of India.

PRIVATE INVESTIGATORS: NEXUS WITH INTERMEDIARIES/ENFORCEMENT AUTHORITIES:

Professional Private Investigators are the easy targets of law enforcement agencies as and when there is a complaint against them for having procured and supplied CDRs(Call Detail Records) to their clients. Actually private detectives fall prey to the temptations of the repositories of CDRs (the authorised law enforcement officer, or his team), who in routine manner call for these details in connection with offences being investigated.

Mobile network providing companies have appointed executives as nodle officers to recieve, evaluate and supply details of the mobile numbers requested by law enforcement agencies for investigative,intelligence or preventive measures being pursued by these agencies. As such the nodle officers or their staff are also part of the repositories of call details and thus become liable for infringements as intermediaries.Exemptions from liability of intermediary in certain cases is dealt with under Section 79 of the I.T Act, 2000. It is a legal proposition that a mobile intermediary or telecom service provider or mobile value added service provider shall not be liable for any third party intervention,data or communication link made available or hosted by them.Explanation to,Section 79 states “Third party information” means any information dealt with by an intermediary in the capacity of an intermediary. Under section 2(1)(W) of the amended Information Technology Act, 2000 the term ‘intermediary’ has been defined to mean “any person who, on behalf of another person receives, stores or transmits electronic records or provides any service with respect to that record.

Section 81 of the amended Information Technology Act, 2000 prescribes that in case of a conflict between Information Technology Act, 2000 and the general law, the provisions of Information Technology Act, 2000 shall apply over and above the inconsistent provisions of the general law.Thus any private investigator, who procures, by any means, electronic records either from authorised network providers, bonafide intermediaries, (exempted under section 79), law-enforcement agencies or any other source, becomes liable for punishment under Section-84-B of the Information Technology Act, 2000. The section reads “whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, be punished”

Explanation to section 84B provides that:

“An act or offence is said to be committed in consequence of the abetment, when it is committed in consequence of the instigation, or in pursuance of the conspiracy, or with the aid which constitutes the abetment”.Call details of mobile phones are electronic records. Procurement of a subscriber’s call details, by an unauthorized person (say detective, relative or any other intermediary) by itself constitutes an offence.Section 84-B states that abetment is an offence even when no express provision is made by the Act. Section 84C is the penal section for attempt to commit offences under this act..

Futhermore, tendering, supplying of such details to clients etc, compounds the offence under IPC Provisions of Conspiracy.Private Investigators must acquaint themselves with all the legal provisions discussed above and should never entertain any request for procuring CDRs. Even if the client insists, the assignment must be refused. Otherwise also,such details cannot be adduced as evidence in any court of law till legally and officially obtained by the law enforcement agencies or by courts directly from the service providers.None other than subscriber of mobile phone can request for call details to be supplied for his/her phone.

VIEWS ABOUT EFFECTIVENESS OF THE INFORMATION TECHNOLOGY ACT

Questions arise whether the Act has sufficient “byte” to become an effective legislation in view of draconian power to Police,disability for Consumer Protection,studied silence on intellectual property rights etc. The Act is different from other branches of law in the sense that it is ‘dynamic’ rather than ‘static’. The act is able to recognise the computer as a ‘weapon of offence’ as well as a ‘victim of crime’. This could not be said about a revolver, a pistol or knife- they are always identified as ‘weapons of offence’ but not as ‘victim of crime’.

It is for the judiciary to ascertain the intention of the legislature behind the Act. A paradigm shift has taken place in Jurisprudence. Tangible rights have given way to Intangible rights. The act is a proactive piece of legislation.

                          

As author of this feature, I am only a witness of my time.My experience as Investigator, as an Advocate, and my interpretation is not law by itself.Please do not put trust in my understanding alone but put trust in your judgement of Legislation.