Is Section 66A coming back?

While you were on Twitter and Parliament was getting adjourned, a new version of Section 66A may sneak in through the backdoor.

ByMadhu Trehan
Is Section 66A coming back?
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On December 22, 2008, Section 66A was passed without any debate in the Lok Sabha. Bear with me. There’s a reason I’m taking you back to something that happened eight years ago. All political parties unanimously passed Section 66A, an amendment to the IT Act that ended up affecting so many lives and was ultimately declared unconstitutional by the Supreme Court on 24 March, 2015.

When our politicians accepted Section 66A, the Lok Sabha presented the Executive with powers to arrest numerous people for frivolous and vindictive reasons, close down websites and freeze Twitter accounts. The people of the country just did not know when the amendment was passed. They were not informed because the media was asleep when it happened.

Now, there are whiffs in the air that suggest Section 66A could come back. You could explain it as “hathi ke dant dekhane ke aur, khane ke aur”. Or as a wolf in sheep’s clothing. Would you say I’m making a storm in a teacup? Or a mountain out of a molehill? Well, all I can tell you is that history might just be repeating itself. The only thing that seems evident is that the ball will never be in the people’s court.

An Action Taken Report, compiled by Delhi Police, was tabled in the Lok Sabha and Rajya Sabha by the Parliamentary Standing Committee on Home Affairs,108th Report, titled Action Taken by the Government on the Recommendations/Observations contained in the 176th Report on the Functioning of Delhi Police on December 7, 2015.

The report consists of 119 pages and the portions related to Section 66A begin on page 79. Two of the members on the committee, who were vociferously against the erstwhile Section 66A, were contacted by Newslaundry and it turns out they were not aware that these portions existed in the report.

Would you be aware of such if you received an Action Taken Report about Delhi Police that had three pages with smatterings of Section 66A buried within it? It’s a needle in a haystack and it seems most of the members of the committee are not even aware there’s a needle.

Cautious deliberations

The comments about Section 66A and its potential new avatar appear in the third chapter: “Recommendation/ Observations in respect of which the Committee has not accepted the replies of the Ministry”. However, it appears contradictory because before this section begins, the Report states:

“Recommendation Review of IT Act

3.5.4 The Committee feels that the suggestions given by Delhi Police need thorough and cautious deliberations. The Committee is of the considered view that the IT Act dealing with cyber crime need to be reviewed on a regular basis given the rapid development of technology and the sophisticated modus operandi the criminals adopt. All the suggestions made by Delhi Police may be looked into and appropriate action may be taken in the matter.”

Then again the section ends with,

“3.5.9 The Law Ministry and Department of Technology, Govt. of India may work in tandem to decide the course of action to face the cyber crimes and formulate amendments to Information and Technology Act and Indian Penal Code to cover the multi-facets of cyber crimes with rapid development of technology and sophisticated modus the criminals adopt. The changes suggested in the reply may be thoroughly examined and government may come out with necessary amendments.”

The perspective expressed in the Action Taken Report is that because the Supreme Court struck down Section 66A, the government is powerless against online misconduct.

“Now, a situation has arisen before law enforcement agencies where some of the aspects of on-line conduct of persons, hitherto covered under Section 66A have gone beyond the mandate of law. Many of such aspects need consideration for bringing them under the ambit of law which are discussed below”.

In short, They (“They” will hitherto will be known as “They” for the purpose of this document) need to keep the troublemakers and the Internet under their thumb.

Many governments around the world have introduced laws to circumvent how terrorists are using the Internet and technology successfully for nefarious purposes. Worth a read is Jason Burke’s article on this.

Although Burke’s article is titled “How Changing Media is Changing Terrorism”, a follow-up article in India could be titled would be “How Changing Terrorism is Changing Laws” and then, “How These Changed Laws are Affecting People”. Yes, we would be the first ones to complain if the government was not up to speed with the iniquitous environment, but it’s important to discuss how our freedoms may be affected if the suggestions in the report come to pass.

Obviously, They feel that the Supreme Court threw out the baby with the bath water when the bench struck down Section 66A. But, how do we ensure that the bits that are unwelcome are not brought back again? Who is going to decide which was part of the baby and which part the bath water? After all, the erstwhile Section 66A was passed and accepted by all parties with little dissent, because all governments seek as much control as they can get away with. The UPA government merrily passed Section 66A and it enabled them to arrest people on frivolous grounds, which seriously affected freedom of speech. When the Supreme Court struck it down, the people celebrated. But did the politicians?

What’s a spoof?

In case your memory is fuzzy about Section 66A, read this little reminder.

The Action Taken Report acknowledges the Supreme Court’s action against Section 66A: 

  1. Recently, a writ petition was filed in the Hon’ble Supreme Court challenging the constitutional validity of Section 66-A of Information Technology Act. Hon’ble Supreme Court held Section 66-A as violative of Article 19 of the Constitution and hence struck it down.
  2. The erstwhile sec-66-A specifically covered spoofing under its ambit as

Subsection (c) of sec-66-A stated:

“Any person who sends, by means of a computer resource or communication device

(a) …….

(b) ……

(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages.

3.5.6 As of now, there is no section of law to cover spoofing which should be an offence under the law. This law may be made more elaborate and specific in view of experience gained so far as below:

“whoever, willfully, knowingly or purposely transmits electronic mail messages with the intent to deceive or mislead the recipient or any Internet Access Service as to the origin of such messages, or materially falsifies header information in electronic mail message and intentionally initiates transmission of such message, or registers using information that materially falsifies that identity of the actual registrant for an electronic mail account on online user account for domain name and intentionally initiates the transmission of electronic mail message from such account and domain name, or falsely represents oneself to be registrant or the legitimate successor in interest to the registrant of an internet protocol address and intentionally initiates the transmission of multiple electronic messages from such address shall be punishable with ………”

Now, let’s get clear on this. “Spoofing” is a legal term used for disguising mailer identity and the IP address. It is also used in the financial world, where it has a different meaning altogether.

  • Spoofing: A trader makes a large bet on or against a security.
  • The market reacts to that bet – sending the security’s price up or down.
  • The trader cancels their bet once the market reacts.
  • The trader takes advantage of other investors’ reactions by betting on or against the security for real.

In ordinary parlance “spoof” includes satire, jokes and cartoons. Two birds, meet one stone of a recommendation.

Are we going down the tried and tested political trick of lets-keep-a-law-vague-so-we-can-use-it-whenever-and-to-crack-down-on-whoever-we-want? While we understand this is not a draft bill, going by historic evidence of how the political class across party lines approach dissent, there is reason enough for concern. One would expect a more specific list of recommendations, unless the intent was to keep it even more vague than the erstwhile 66-A.

According to The Centre for Internet and Society, the definition of spam in Section 66A was characterized by “careless phrasing” because it didn’t include the two chief characteristics of spam — it needs to be unsolicited and sent in bulk. This problem extended to Section 66A’s understanding of email too. The CIS concluded, “Hence, the anti-spam provision does not cover spam, but covers everything else. This provision is certainly unconstitutional.”

Coming back to the recommendations in the ATR, what do They mean by “spoofing”? Are Cyrus Broacha and his brilliant team doomed? What about the funny and clever AIB? They have already been roasted once, so maybe they are safe for now. Or, could They mean the spoof Twitter accounts?

One person who was spoofing me on Twitter sent a message to Subramanian Swamy asking for help to get an interview with Narendra Modi. Swamy answered by telling ‘me’, “You know Modi. Why can’t you ask him yourself?”

Quite funny, I thought.

Could that “me” and other Twitteratis be facing jail as per suggested by law? Or should all stand up comics and writers of spoof move to Nauru, an obscure island in the Pacific Ocean?

Punishing routine

Please don’t apply for a visa and book tickets right away. Let us take you through more of this document.

In one paragraph — paragraph C — the ATR states:

“Any content which promotes ill will, hatred and enmity amongst communities, race religions etc. and is transmitted online must be covered under IT Act by means of a separate section which may be drafted on the following lines: 

D.“whoever, by means of a computer resource or a communication device sends or transmits any information (as defined under 2 (1) (v) of IT Act ) a) which promotes or attempts to promote, on the ground of religion, race, sex, place of birth, residence, language, caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between religious, racial, linguistic or regional groups or caste, or communities, or

b) which carries imputations that any class of persons cannot, by reason of their being members of any religious, racial, linguistic or regional group or caste or community bear true faith and allegiance to constitution of India, as by law established or uphold the sovereignty or integrity of India, or c) which counsels advices or propagates that any class of persons shall or should be by reason of their being members of any religious, racial, language or religion group or caste or community or gender be denied or deprived of their rights as citizens of India, or

d) carries assertion, appeal, counsel, plea concerning obligation of any class of persons, by reasons of their being members of any religion, racial, language or religion group or caste or community or gender and such assertion, appeal, counsel or plea causes or is likely to cause disharmony or feeling of enmity or hatred or ill-will between such members or other persons.” shall be punishable with ………”

Considering the bit about “computer resource or a communication device”, I would read this to include tweets. Now read this in Russell Peters’ voice: “Somebody is going to be in big trouble!”

Can you imagine the world of Twitter without “disharmony or feelings of enmity, hatred or ill will between religious, racial, linguistic or regional groups, or caste, or communities”? It just won’t be the same again. (Sigh) And, the addition of, “shall be punishable with….”, is ominous. They are going to beat us into love and harmony.

And if you thought putting “RTs are not endorsements” in your Twitter bio was saving your virtual skin, think again.

The ATR makes it clear:

3.5.7 In the above section, any transmission of information which is claimed as only innocently forwarding any such information should not be excluded and any such person sending or transmitting the information should also be liable for the offence. This would act as a deterrent in the viral spread of such content.

Evidently, They are keenly aware of the Internet’s potential and the power wielded by viral trends. The document says as much:

3.5.8 It may be argued that since there is already provision under IPC (Sec-153-A & 153-B) to cover these offences, there is no need to cover them under IT Act. But because of fast and wider spread of the online material, the impact caused may be more severe and damaging. Thus, stricter penalties may be prescribed for the same as against similar sections mentioned in IPC. Further, as stated above, it will also cover persons who just forward such content online (which will also serve as deterrent from spreading such material). Also, term ‘gender’ has been added at places to cover offences not already covered in IPC.

The underlined words are in the document and not added by Newslaundry. Perhaps because past requests to take certain pages offline have been stonewalled by sites that are headquartered abroad, the document adds this little detail:

To investigate an offence and bring evidence on record, many a time the content of the mail or communication transmitted through computer device is required to be obtained. The social networking sites or email clients are required to provide the content of communication along with IP Address of the sender and also they are asked

to furnish certificate under Sec 65 B of Indian Evidence Act (IEA) which is necessary requirement under the law to prove the electronic evidence. However, these sites only provide the IP Address, that too, after a lot of persuasion and do not provide the content. They also do not furnish certificate under 65B of IEA (mainly those sites whose servers are located outside India), which results in acquittals in courts. There is a need to take measures to ensure that such information as required above by Indian law enforcement agencies are duly provided by these sites. Preferably they should be asked to host their servers in India and store the data for a minimum period of three years.

Servers in India? Social networking sites to provide content of emails? If news websites are located in India, it simply makes the data more accessible to the authorities and this in turn makes it easier to block or shut down a website or URL. If there is a silver lining here, it’s that the fail whale is going to make many more appearances if social media networks have to host their servers in India.

Amreekan desi

In addition to the ATR, Newslaundry was able to access preparatory recommendation notes which have not been tabled yet. This includes a section entitled “Fraud and Related Activities in Connection with Computers”:

“any information accessed from a protected computer without authorisation that obtains

  1. Information contained in a financial record of a financial institution, it of a credit/financial facility; or contained in a file of a consumer reporting agency on a consumer credit history;
  2. Information from any department of the Government of India
  3. Information from any such protected computer
  4. Intentionally exceeds authorized access to a protected computer, and thereby obtains information from such computer, and (i) the value of the information obtained exceeds XXXXX; (ii) the offense committed in furtherance of any felony violation of the laws of the India or of any State, unless such violation would be based solely on obtaining the information without authorization or in excess of authorization”.

It must be noted here that it is obvious that this text has been lifted from an American document since India does not have any “felony” laws and “laws of the India” stems from “laws of the United States of America”. Arrey bhai, copy-paste karo toh dhang se karo!

This is not a public document, has not been tabled and is only in the preparatory stage. But, this is what it also includes:

Offenders could face for violating A – a fine or imprisonment for not more than ten years, or both, in the case of an offense under subsection (a)(1) of this section which does not occur after a conviction for another offense under this section, or an attempt to commit an offence punishable under this subparagraph.

For B, a fine or imprisonment for not more than twenty years, or both, in the case of an offense under subsection (a)(1) of this section which does not occur after a conviction for another offense under this section, or an attempt to commit an offence punishable under this subparagraph.

For C, a fine or imprisonment for not more than ten years or both, in the case of an offence under subsection (a)(2), (a)(3) or (a)(6) of this section which occurs after a conviction of another offence under this section, or an attempt to commit an offence punishable under this subparagraph; after a conviction for another offence under this section, or an attempt to commit an offence punishable under this subparagraph.

If the offender attempts to cause or knowingly or recklessly causes death from conduct in violation of subparagraph (a)(5)(A), a fine under this title, imprisonment for any term of years or for life or both”.

For D, a fine under this title, imprisonment for not more than twenty years, or both, in the case of an offence under subparagraph (a)(5)(A) of this section, if the offence cause – (i) loss to 1 or more persons during any 1-year period (and, for purposes of an investigation, prosecution, or other proceeding brought by the Government of India only, loss resulting from a related course of conduct affecting 1 or more examination, diagnosis, treatment, or care of one or more individuals; (iii) physical injury to any person; (iv) a threat to public safety; (v) damage affecting a computer used by or for an entity of the Government in furtherance of the administration of justice, national defence, or national security; or (vi) damage affecting ten or more protected computers during any one-year period.”

What all that legalese basically tells us is that the government is taking hacking as seriously as national security. It also tells us that the net is being cast wider than it was with Section 66A. Think about it: Could this article and the information I am giving you through it qualify under clause B? Would I be investigated to check if I had hacked into a computer?

Judgement call

The most important question that arises is, if all of the above is brought to action, is it going against the Supreme Court ruling on Section 66A?

On March 24, 2015, a Bench of Justices J Chelameswar and Rohinton F Nariman struck down Section 66A of the Information Technology (IT) Act, 2000, holding it unconstitutional. The judgment said,

“It is clear that Section 66A arbitrarily, excessively and disproportionately invades the right of free speech and upsets the balance between such right and the reasonable restrictions that may be imposed on such right.”

Justice Nariman read the judgment and stated, “Section 66A is unconstitutional and we have no hesitation in striking it down.” The Justices pointed out: “The public’s right to know is directly affected by Section 66A.” The Supreme Court also ruled that the controversial section 66A is “open ended, undefined, and vague” and “nebulous in meaning”. 

The judgment observed that Section 66A was cast so widely that virtually any opinion on any subject would be covered by it and any serious opinion dissenting with the mores of the day would be caught within its net. The judges also ruled,

“The information disseminated over the Internet need not be information which ‘incites’ anybody at all. Written words may be sent that may be purely in the realm of ‘discussion’ or ‘advocacy’ of a ‘particular point of view’. Further, the mere causing of annoyance, inconvenience, danger, etc., or being grossly offensive or having a menacing character are not offences under the [Indian] Penal Code at all. What may be offensive to one may not be offensive to another. What may cause annoyance or inconvenience to one may not cause annoyance or inconvenience to another”. 

The words “annoyance or inconvenience” are included in the ATR. Depending on the actual wording, the new and improved version of Section 66A could be considered contempt of court (and I would add, contempt of people). At this moment in time, could the ATR and the not yet public preparatory notes be considered a conspiracy to commit contempt of court? Funny thought, no?

So, will we get a new Section 66A or will bits of it be smuggled in Action Taken Reports and then passed without anyone noticing? Given that Section 66A was passed unanimously, why is it necessary to sneak in the new version inside an ATR? The cloak-and-dagger element seems unnecessary. What are the steps left for Section 66A’s new avatar to be revived? Is Section 66A about to be resurrected as a law or is it just at the level of recommendation? We just do not know.

Indian citizens are being forced to be more and more transparent every day. Yet we find ourselves in a space where we know less and less about the government and what its departments are up to. The government, however, will know everything about you. How comforting.

You are being watched. In January this year, the National Security Council Secretariat (NSCS) announced that a National Media Analytics Centre (NMAC) will monitor and analyse round-the-clock blogs, web portals of TV channels and newspapers, and social media platforms such as Facebook, Twitter, Instagram and YouTube, among others. The first question that arises is; Why? For what purpose? Does it benefit citizens of India in any way, or does it protect the party in power?

The secret team pulled together to mark news reports ‘positive’, ‘negative’ or ‘neutral’ is assessing journalists on the basis of their reports.

So what category does this article fall in? It has to be positive because I have shown what the Government of India is planning to keep all of us safe. Phew.

In Part 2 of this report, Newslaundry will analyse further other changes that are being recommended and surprise, some of them are good and sorely needed.

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