Cyber legislation: Forecasting the future

INTRODUCTION

This is the era of digitalized and internet society. Due to the rapid rise in the number of ways in which we use information, this period is referred to as ‘the information age’. As mentioned by Elon Musk, over time we will see a close merger of biological intelligence and digital intelligence. Every single aspect of our lives is impacted by the digital world. Be it waking up with an alarm, or to updating our daily lives to the cyber world, most activities we undertake revolve around our fingertips. Amidst the outbreak of COVID-19, everything and anything is done via the online medium from online school/university classes to working from home, live-streamed religious ceremonies — even weddings and funerals — this network joins us to loved ones in this period of quarantine. 

Since digitalization and the internet have revolutionized the world, cyberspace also acts as our personal locker storing, important information about our personal lives, which paves way for various crimes. The Internet has become the backbone of our economy. Therefore, there must exist firm legislation on this matter. 

PRESENT-DAY LEGISLATION 

The Information Technology Act, 2000 (IT Act) is the main statute that regulates the cyber world, from e-commerce to cybercrimes, Internet surveillance, and intermediary liability. Since technology is now at the epicenter of issues like privacy, cybercrime, delivery of services and digital payments, the IT Act needs to reflect that too. Cybercrime is not defined per se in the statute, but it could be described as any criminal or illegal activity which is carried over through the online medium. 

This legislation was brought into the picture under the backdrop of Model Law on E-commerce passed by The United Nations Commission on International Trade Law (UNCITRAL). The objective was to provide legal recognition for transactions carried out through electronic data interchange and other means of electronic communication. An amendment was made in 2008, focusing on data privacy, information security, digital signature etc. Through the commencement of this Act, the Indian Internet Laws were drafted to bring in to record all the electronic transactions and online activities to legal recognition.

In 2016, the United Nations declared internet access a human right. The resolution condemned any country intentionally disrupting the internet access of its citizens and also mentioned that ‘the same rights that people have offline must also be protected online’. Supreme Court in Anuradha Bhasin v. UOI[1], declared that access to the internet is protected under Article 19 of the Constitution. Kerala high court in Faheema Shirin v. State of Kerala[2], declared the right to Internet access as a fundamental right forming a part of the right to privacy and the right to education under Article 21 of the Constitution and that no one should arbitrarily be deprived of web connectivity.

ISSUES FACED 

Due to speedy and nonstop development in this field of technology, it is very difficult to legislate with the rapidly transforming conditions. The law about this subject can easily fall behind in time and context due to this day to day advancement. New applications are being created and modified to suit the needs of people. Especially with several internet users increasing every day, the need to regulate and prevent unlawful acts becomes more vital. The graph indicates that there are roughly 560 million internet users in India, and the number is expected to exceed 600 million by 2021. It was assessed that by 2023, there would be beyond 650 million internet users in the country. According to a report by Internet and Mobile Association of India (IAMAI), nearly 2/3rd of the Internet population in India were daily users and nearly 1/3rd of users accessed Internet for ‘more than one hour’.

Jurisdiction 

Cyberspace is the electronic medium of computer networks through which online transactions are being held. The term “cyberspace” was first introduced in the science fiction book written by William Gibson, where he defined it as “evocative and essentially meaningless buzzword”. One of the main limitation when formulating a law for the cyberspace is that there exist no physical borders, making it difficult to decide the jurisdiction. This will not ben an issue if both parties are residing within one country but the problem arises when there are inter-country offences. Due to globalization and the availability of internet in all nations, the transactions as well are taking places poles apart. In such cases, there arise restrictions to the scope of application of some laws, particularly between public and private sectors that each face challenges of information access for use in investigations with security implications, privacy rights, and commercial interests. One such example is the FBI- Apple encryption dispute, which aroused out of an application that the agency filed with a federal magistrate judge in California, looking for assistance with the search of an iPhone that was seized during the investigation into the December 2015 attacks. The issue was to what extent courts in the United States can induce manufacturers to help in unlocking cell phones whose data are cryptographically protected. 

To overcome this issue one solution undertaken by UN is the Global Agenda Council Report on Cybersecurity, based on the Budapest Convention, formed to explore and advance practical answers to the complications on changing cybersecurity trends and developing new challenges.

Personal Privacy v. Public Protection

One of the pressing issues of the current times, that is, how far can government interfere with the personal privacy of an individual about the cyberspace to prevent illegal activities taking place under this sphere. Most social platforms offer end-to-end encryption can be read-only by the sender and the recipient. This can be used for criminal activities as it is not monitored by any law enforcement. 

But this feature has not stopped law enforcement agencies and lawmakers to force platforms to generate so-called “backdoors” that would allow them to meddle on the contents of those messages. But the platforms have resisted, and the issue has generally been in a deadlock.

There has been a growing concern by both the government and the public that India needs privacy legislation, specifically one that is concerning collection, processing, and use of personal data. 

Recently, a rule is proposed that would force tech platforms to cooperate as per the government requests, without requiring so much as a warrant or court order. As per the proposed rules the tech companies, have to help the government trace the origins of a post within 72 hours of a request. This would lead to a large violation of privacy matters, and tech companies are fighting against it. Even though no such rules are brought into action, we could expect it sooner or later as the governments around the globe are trying to hold social media companies accountable for the content circulating on their platforms, be it fake news, child porn, racist invective or terrorism-related material. India’s new proposed guidelines is a drastic measure undertaken compared to most other countries. These proposed rules are only concerning social media platforms and not for browsers, operating systems, and online repositories of knowledge, software development platforms. 

It does have its advantage of preventing fake news and other unlawful content reaching millions of users but on the other hand, it violates privacy and creates an opportunity for the government to get unlimited access into a citizens private life. 

THE FUTURE 

With an estimate of 450 million Internet users and a growth rate of 8%[3], India has the potential to be one of the largest digital economies in the world, which could attract a large number of global players to the market. Demonetization created a drastic change in the digital economy, specifically concerning the usage of digital money. There was a massive growth in digital payments, especially with the government and the banking regulator’s attempt to make India a ‘less-cash economy’. Even with the growing concern of the coronavirus could be spread through paper currency, many are opting to use digital currency. 

The corona outbreak has brought all the activities to the cyberspace, hence the growth of this sphere is expected to be massive. Therefore, the growth of cyberspace is going to be rapid with new users every day. Such a platform must be regulated with adequate measures that will balance between protection of personal privacy and the prevention of cybercrimes. 

The legislation needs to address as well as amend regularly so that there lies no loophole concerning the activities undertaken. A global body that could regulate transactions in an international platform could solve the issue of jurisdiction. Apart from all this, the public must be taught about the cyberspace so that they will not fall into prey by the scamsters hiding behind the screens. 

The effective implementation and enforcement of IT law is a need of the hour. Proactive planning would enable society to make a safe transformation to a completely digital economy and society. 

CONCLUSION

India is rapidly altering itself into a digital community. As our world becomes increasingly dependent on the internet, additional protections must be put in place to keep our information and services we rely on secure. A developing nation like India must have a constant monitoring environment, which ensures the probability of regulatory action to cultivate a trillion digital economy by 2024. Thus, there should be legislation which will link current regulatory gaps and the needed protocols for the future.

Undoubtedly, privacy is a developing and vital field in India’s internet society. As companies collect important information from and about online users, and as the government continues to pursue greater access and scrutiny, it is of grave importance that India prioritizes privacy and puts in place strong defense system to protect the privacy of both Indians and foreigners whose data resides temporarily or permanently in India. 

But one thing that should be kept in mind while indulging in the cyberspace is that all your actions undertaken in the digital world will be forever haunted by traceable communications displayed in the digital world.

• [1]WP(C) 1031/2019
• [2]2019(2) KHC 220
• [3]Data Protection in India, Digital India Government, https://digitalindia.gov.in/writereaddata/files/6.Data%20Protection%20in%20India.pdf