Open Access Research Article
TELECOMMUNICATION AND PRIVACY
Published Paper
Article Details
TELECOMMUNICATION AND PRIVACY
AUTHORED BY
- RAJEEV SHIRISHKUMAR GANDHI
Introduction
Today in
India, privacy is threatened perhaps the most by the internet and
telecommunications. On one hand the increased use of these technologies allows
individuals to become more visible, accessible, and interconnected. On the
other hand, the same technologies allow governments, corporations, and other
entities unrestricted access into the lives of the public. For example,
individuals are plagued with spam messages and unsolicited marketing calls/text
messages, risk fraud and phishing attacks as they transact online, have
personal information gathered, used, and sold without permission or knowledge,
and risk having service providers retain user data and history.
Furthermore,
online privacy is threatened as the users often do not have control over the
information that they generate and the line between what is private
information, and what is public information is often fuzzy. This has created a
situation where information displayed on social networking sites can be used as
evidence against an individual or to make decisions about the individual.
Employers now look into an individual's Facebook profile as part of the process
for deciding whether to hire or promote a person and law enforcement agencies
make decisions based off of social media content.
Another large component of privacy on
the internet is with regards to how law enforcement can access online communications
and habits through interception, access, or monitoring. The interception of
private or personal communications involves restrictions on the right to
freedom of expression and the right to privacy. While the Constitution does not
explicitly guarantee a right to privacy, the courts in India have consistently
read that right into the definition of the fundamental right to life and
personal liberty. These rights are not absolute and the courts have held that
parliament may impose reasonable restrictions on the exercise of fundamental
rights. Countries around the world have taken steps to address privacy issues
that arise from the internet, including adopting legislation implementing do
not track standards, the right to be forgotten, breach notification, standards
around lawful access, and data retention policies.
The
Information Technology Act, 2000
In India
the Information Technology Act, 2000 (ITA) was passed as a law addressing
digital content and to grant legal recognition to transactions carried out by
means of electronic communication. The ITA contains a number of provisions that
can, in some cases, safeguard online and computer related privacy, or in other
cases, can dilute online and computer privacy. For example, the ITA contains
interception provisions for authorized agencies, allows the government to set
the national encryption standard, regulates what content can and cannot be put
online, and prohibits the anonymous use of the internet.
The
Information Technology Act applies to any offence or contravention of the Act
committed in or outside of India if the offence involves a computer, computer
system, or computer network located in India. Below is a description and
analysis of provisions that relate to privacy.
Digital Signatures: The ITA provides for the use of
digital signatures for authenticating electronic records. This is done through
the use of asymmetric encryption, so that the electronic record can be verified
using the public key of the subscriber. In India, the issuance of Digital
Signatures is the responsibility of the Controller of Certifying Authorities,
who can either issue digital signatures to End Users directly, or through the
Registration Authorities/Local Registration Authority.
Hacking:
The ITA does not define the term ‘hacking’ activities such as accessing
a computer, downloading copies or extracts of data, introducing a computer
virus in the system, etc. are made punishable under the ITA.
Voyeurism:
The ITA clarifies that a “private area” means the naked or undergarment
clad genitals, pubic area, buttocks or female breast”, “publishes” means
reproduction in the printed or electronic form and making available to the
public, “under circumstances violating privacy” means circumstances in which a
person can have a reasonable expectation that he or she could disrobe in
privacy, without being concerned that an image of his private areas was being
captured or, any part of his or her private area would not be visible to the
public, regardless of whether that person is in a public or private place.
Child
Pornography: The ITA prohibits the publishing and
transmission of digital material that depicts children in a sexually explicit
way. This includes: publishing, transmitting, creating text or images,
collecting, seeking, browsing, downloading, advertising, promoting, exchanging,
or depicting the same. Furthermore, cultivating, enticing, or inducing children
into a sexually explicit act online is prohibited. The term ‘children’ is
defined as any person under the age of 18.
Regulations
for Cyber Café: The Information Technology (Guidelines for
Cyber Café) Rules, 2011 provide regulations for the maintenance of user records
by cyber cafés. Critical information under the Rules includes forms of
identification and user browsing information.
Encryption
Standards: There are two places in Indian law which lay
down regulations for encryption in India. The ITA, provides the Central
Government with the power to set the nationally permitted standard for
encryption. The Internet Service Providers License, currently sets this limit
at 40 bit (even though the ISP License is issued under the Telegraph Act, 1885
and not the ITA
Policies/Licences
In
India interception powers are also given to the government through the Internet
Services License (ISP) Agreement and the Unified Service Agreement License
(UASL) for service providers. In practice, both licenses afford the government
expansive access to communication data held and processed by service providers.
It
must be noted that since both the ISP and the UAS License Agreements are issued
under the TA, technically the interception of messages under both these
licenses can only be done if the conditions specified under the TA and the
interception rules are satisfied.
Security
Protection
of privacy: There is a responsibility on the ISP to protect the privacy of its
communications transferred over its network. This includes securing the
information and protecting against unauthorized interception, unauthorized
disclosure, ensure the confidentiality of information, and protect against over
disclosure of information- except when consent has been given.
Case
Law
Amar Singh v. Union of India
and others,17
In
Amar Singh v. Union of India and others,18 Supreme Court of India, 11-05-2011
the petitioner claimed that his privacy had been invaded by interception of his
calls. The importance of this case lies in the fact that here the Supreme Court
discussed the duties of a service provider when it receives an official request
for interception, and held that if the request is full of procedural mistakes,
then it is the duty of the service provider to simultaneously verify its
authenticity while at the same time acting upon it. Discussing these duties the
Court held:
·
Service provider is duty bound to verify the
authenticity of a request for interception if on a reasonable reading it falls
short of a genuine official communication.
·
It is the duty of the service provider to act
carefully and with a sense of responsibility.
·
Service provider must immediately act upon a
request for interception, but if it seems to be full of mistakes, should
simultaneously verify its authenticity.
Conclusion
? Going through many options which are available to get our data secured,
the activities in the online world are getting very secure these days.
? But due to illiteracy and lack of awareness in the cyber field, many
people tend to lose their hard earned money in seconds by entering just one OTP
on the request of the fraudsters.
? Even though the Cyber World is more secure now, people still have to be
more vigilant and try to understand the loopholes in the working of the online
transactions, so that they do not get caught in the fraud and lose their money
easily to a fraudster.
Article Information
TELECOMMUNICATION AND PRIVACY
Authors: RAJEEV SHIRISHKUMAR GANDHI
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/06/22
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
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