Idea-Expression Dichotomy + Originality

I want to write about these two things in this post. Essentially question how we understand them. So here it goes.

Idea-Expression Dichotomy

Which basically says that an idea is never protected. Only the expression is. So from the same idea different expressions might be drawn out and all these expressions would be protected. Let me try doing it with some Venns.

Venn 1

Venn 2

So I am thinking this model seems to assume within itself that some clear cut-distinction between an idea and expression can be made, right? Like one may get an idea and then expression flows from that idea. 

But here's another way of thinking. What if the idea and expression are so intimately connected that an idea itself cannot exist without the expression? Because think about this. No idea would ever be revealed or even form itself inside our heads unless we had a sense of expression for it- either literary, or images. Thus in legal terminology even if it is termed idea and expression- what we are probably really doing is distinguishing between two different forms of expressions- one a very basic/primitive expression(idea), the other a more sophisticated expression which apparently involves some labour on the part of the author (expression). 

But the distinction still is not so simple. Even the formation of the sophisticated expression is more often than not borne out of the primitive expression. for example often while writing out something, one gets a flash of inspiration not just for the content but also for the expression. Or even when one is not writing. For example, I remember reading some of Ruskin Bond's published diaries where in one entry he had made a list of random sentences which hit his mind (expression) which could be used in a story. "He had a bonfire of a laugh." was one of them. Artists always look for inspiration by browsing other works of art- i.e. sophisticated expressions. (though yet again, the nature of this flash of inspiration is questionable, but going by the parlance of contemporary law, it is safe to term it as an idea.)  So thus again, the primitive expression and the sophisticated expression or idea and expression get tangled up. Neither one seems to be able to exist without the other. So rather than expression being a derivative of an idea, shouldn't the Venn diagram look something like this?

Venn 3

Okay I know...it looks stupid. But I hope I could make my point. That an idea and expression by their very nature cannot be distinguished. There are certain things to be noted here.

1. In our law, it is fully accepted that an expression cannot exist without an idea. Because any expression must have some content~ say a narrative which the idea provides. (the case of poetry might be interesting to analyse in this regard.)

2. However, our law does reckon that an idea and expression are distinct entities, as illustrated by Venn 1.

3. Our law reckons that an idea can exist without an expression- because it is the expressions which are derived from the idea, and not vice versa. In fact the nature of the idea in our law is left somewhat mystical. But it is clear that an idea is not a free floating entity- it belongs to someone, but is left free in the copyright law only for public good and progress (utilitarian concerns), while it is not in other forms 

of IP like patents. [How an idea comes to be owned by someone is yet another interesting question. Is it because an idea originates from someone, or because a person mixes his labour with it (ok- this is vague train of thought here- Ignore for reading purpose for this article).]

However, as Venn 3 illustrates, this expression-flowing-from-idea model may not necessarily be true. then how does the law attempt to achieve the idea-expression/primitive-sophisticated expression dichotomy? Of course then law says that all this is a question of fact. It's upto the Court to decide whether infringement has happened or not- that is whether there has been encroachment upon another expression or idea? But that again leaves open how a judge's mind decides the distinction between the two. Which brings me to my second point.

Originality

Originality is not defined again, but is basically the yardstick to distinguish whether the disputed expression is based on an idea or infringement on another's man expression. So the judge determines the distinction by determining whether the sophisticated expression in question is actually original. In RG Anand v. Deluxe Super Cassettes, they laid down that to determine originality, one needs to know whether from a reasonable man's point of view the two expressions seem similar, so that one gives the impression of the other. Now this is as vague as it gets, even discounting the myth of the reasonable man. Any expression is likely to remind someone of a similar content. For example, V for Vendetta gave me an impression of 1984. Now, how is a person supposed to view two expressions supposedly "derived" from the same idea, without getting an impression of the idea? This confusion is really apparent in this article by a leading IP lawyer. The problem really manifests though if an expression is an integral part of an idea (for which I've argued earlier) then it is necessary that any idea will be mixed with one expression or the other, and every expression will thus give an impression of the other expression, because the idea is formed only by the unity of all these expressions. 

Paradoxical, quite.

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A Useful Rape Analogy

(Sourced from: http://downlo.tumblr.com/post/10176644689/a-useful-rape-analogy)

Also see: http://lawandperceptions.blogspot.com/2011/02/fresh-view-of-rape-culture.html

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Contemplations on Mandatory Key Disclosure Law: II

When does self- incrimination right kick in: At trial or at  investigation?

The position in UK apparently is that it kicks in at the time  of trial. So this means police has right to collect all evidence possible- only at the time of trial it will be decided if it is incriminating or not- and hence whether it is self- incriminating. If self-incriminating it will be excluded from evidence. 

But position in Indian law is completely different- as seen in Selvi decision. Self- incrimination right extends back to the  investigation stage.

"100. ....It is suggested that this is confined to the oral evidence of a person standing his trial for an offence when called to the witness-stand. We can see no reason to confine the content of the constitutional guarantee to this barely literal import. So to limit it would be to rob the guarantee of its substantial purpose and to miss the substance for the sound as stated in certain American decisions. ...Indeed, every positive volitional act which furnished evidence is testimony, and testimonial compulsion connotes coercion which procures the positive volitional evidentiary acts of the person, as opposed to the negative attitude of silence or submission on his part. Nor is there any reason to think that the protection in respect of the evidence so procured is confined to what transpires at the trial in the court room. The phrase used in Article 20(3) is `to be a witness' and not to `appear as a witness': It follows that the protection afforded to an accused in so far as it is related to the phrase `to be a witness' is not merely in respect of testimonial compulsion in the court room but may well extend to compelled testimony previously obtained from him. It is available therefore to a person against whom a formal accusation relating to the commission of an offence has been leveled which in the normal course may result in prosecution. "

Separating the testimonial and the non-testimonial

Sample this argument. I have some documents which have content that would incriminate me for an offence. Now I'm being asked to produce the document. The act of the production of the document in itself is a testimony because by producing it I'm communicating that I have control over the document/ the document is in my possession. But the contents of the documents also communicate my involvement in a particular offense, my guilt. Now the argument goes that the contents of the document do not really constitute testimony and hence it should not be protected under the right against self incrimination. This is because the contents of the document have not been recorded by my dependence on police investigation.

On the other hand it is argued that these two processes cannot really be divorced from each other as one leads to another. So even if the act of production attracts self-incrimination provisions and the document itself does not- by being linked with the act of production, the document becomes tainted and attracts the self-incrimination provision. 

Foregone conclusion

Memory v. something physical

Idea is that accused cannot be asked to produce something which exists in his memory, and does not have a physical presence. Even though password has a real physical link- its knowledge exists only in the memory. It is this knowledge in memory which is to be protected under the self-incrimination privilege.

When it works

Foregone conclusion applies only when the prosecution is aware of the existence and location of a particular thing with the accused. When it is already known that the accused is in possession of a certain thing, then no self- incrimination will happen. But what when police randomly ask the accused to open safes and shelves and all?

....The police may compel the accused to open stuff under law- but they cannot compel the production of something.....(???)

Q. If police have a search warrant for accused's house, is it also a warrant to search their safes, locked areas etc.? Or is a separate search warrant for that needed? note however that under s. 69, IT Act, the need for a warrant is not there.

Things--

1. Analogy of a password with a physical key

If you do not give the physical key, adverse inference may be drawn against you- does 7 years in jail as prescribed under s. 69 of IT Act then be illegal?- because there is a difference between adverse inference and certain punishment.

2. Analogy of password with a testimony

Since password is a knowledge stored in mind/ memory, it cannot be asked for compulsorily. Since contents of laptop etc. can be revealed only via the password which is protected info. n which acts as a link to reach the docs. compulsion cannot be effected to get the evidence.

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Contemplations on Mandatory Key Disclosure Law: I

One of the issues raised in mandatory key disclosure controversy is about the nature of a key or password. I intend to discuss the same here.

Existence of password

It is clear that the knowledge of the password exists in the mind. But the question is whether the password in itself also exists only in the mind or has some existence in reality. This can probably be tackled by asking if the password ceases to exist when the person who knows the password, or in whose mind the password exists dies, ie. when his mind is destroyed. From Descartes point of view, probably yes. Because the destruction of the knowledge of the password obviously happens when a person dies. Once the knowledge of the password is gone, the password ceases to exist until someone else comes along and "discovers" the password. 

But can this analogy be applied here? Because people would still know there exists something which can cause the computer system to unlock- they just do not know what it is. In other words, is the password a perception? I would like to compare it with another analogy here. Imagine the situation before Ptolemy said that earth revolved around the sun. Everyone was of the opinion that the Sun revolved around the Earth. So should we be saying that the people were mistaken and "reality" was different- which is that the Earth revolves

around the Sun? Can it be said that there is a reality existing outside of our minds and perceptions? Because on the other hand, it can be said that Ptolemy "perceived" something else- this perception including certain observations- which won over the previous perceptions. So this new perception became the reality. And it is well possible that future observations can change this perception propounded by Ptolemy too- maybe the sun

and the earth revolve around each other. Physics after all does understand the importance of point of reference. Now can this analogy be used to draw parallels with existence of a password?

Maybe not really, because in our example- everyone, which means the accused and the police perceive that the password can be used to unlock the system-- no one really has a different perception here. Password would still be valid if anyone else other than the accused enters it, even after the accused's death. Even if he does it without realisation of what it is. This is because- everyone- the accused, humankind and the computer-system made by human kind operate under the same assumption- that the right password once entered will unlock the computer and give access to its contents. The problem for the police here really lies in the too large number of possibilities to find out what the password really is. And not its existance. Thus in the human reality, the password exists not just in the mind of the accused but in "reality". It is only the knowledge of what password is which exists with the accused.

Revealing password as testimony v. Password as a link to reaching incriminating material

One argument goes that revelation of password would be a testimony sure because it would be revealing knowledge within mind. Issue lies is that the defence then argues that speaking out the password would be a testimony but entering the password in the computer would not, because in entering the password the accused would not be revealing the contents of "his mind" which would be the case when he simply enters the password rather than divulging it. But the counter-argument goes that even by simply entering the password the accused in fact does reveal contents of his mind, e.g. the knowledge of the fact that he has control over any evidence found on the computer, which was earlier unknown to/unverified by law enforcement, and was only within accused's knowledge.

Now notice that law grants privilege of self incrimination to even mere knowledge about existence of a thing which exists in mind- and not just to things which completely exist in the mind, or which can be modified by mental powers. For example, self incrimination privilege is granted to the knowledge of the accused of the fact that he was carrying a knife on the night of 14th March 2011. This fact is something which would have been accepted as reality by any human who saw him on that night with a knife. Accused cannot change this fact of him carrying his knife with the power of his mind. Thus for all human purposes this fact is "reality". Yet the accused's knowledge of this fact is privileged. In the password situation, two things may happen.

a. Accused may say he has control over the computer but refuse to disclose the password pleading right against self incrimination.

b. Accused may say he has no control over the computer, so he is unable to disclose the password.

Let's take situation b. first. Accused has set the password at some prior time. Knowledge of password is only within his mind, though it sure exists in reality too. He sure cannot change the password by using his mental powers. Yet by drawing analogy with the knife carrying situation, accused can keep silent about his knowledge of the fact that he had set the password at a prior time, or that he knows the password at any level. In this case even forcing him to enter the password will demonstrate his control over the password or the computer under right against self-incrimination.

Situation a.  now. Accused has set the password at some prior time. Knowledge of password is only within his mind, though it sure exists in reality too. He sure cannot change the password by using his mental powers. Yet by drawing analogy with the knife carrying situation, accused can keep silent about his knowledge of what the password is and hence disclosing it under right against self-incrimination.

Hmm...looks like arguments for situation a. and b. are more or less the same. 

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Implications of Kelsen's conceptualism

I've been reading Kelsen's Pure theory of law, and have been finding his conceptualist methodology fascinating. The entire idea of construction of concepts before delving into legal discourse seems to be a fresh change from the empiricism whereby legal concepts as such are derived from the society.

Kelsen's calls them "concepts", but to my mind, it is better to call them "assumptions" because Kelsen does not propose their absoluteness. Rather, he actively denies the same. This is totally in contrast to empiricism, where by virtue of being derived from the social experience, the concepts, in essence become facts. Absolute, and the single truth. The latter is limiting in many ways because, within its ethics, it prevents multiple approaches to the same problem.

Though again there is sense in distinguishing between what Kelsen understood as the ethics and scope of a discipline. (ethics is just a term I'm using here- nothing Kelsenian about it as far as i know.) Ethics denotes what would be allowed in the vision of a particular discipline, while scope defines the way a particular discipline would proceed based upon its concepts, or assumptions. It is something like saying, "I think it will rain today, so I will take an umbrella with me outside. I know you think it will not rain, so you are not taking your umbrella. I'm not saying that your notion about no rain is wrong, but I would rather not proceed upon it." Here the concept for me is that it will rain and I premise my theory about taking an umbrella upon this concept. The concept for you is that it won't rain and you premise your theory about not taking an umbrella upon that. Neither of us can know for sure if it will actually rain, so I cannot outrightly refute your concept. Consequently, rather than being absolute, my concept will remain only an assumption. On the other hand, if I were an empiricist, that it would rain would be a fact I'm absolutely certain about.

In this regard, I think I would be more inclined towards the conceptualist methodology than the empiricist one, simply because facts are not truth. Which means that facts change with changing perspectives- the situation is somewhat like that of Schrodinger's Cat in a box which can never be opened, and hence the truth cannot be determined. A more illuminating example would be perhaps be to think of the idea of life after death. For those who believe in it, it is fact. For those who do not, it is not. And absolutely no one can know the truth. Similarly, when a concept is made to root in a fact or empirical observation, it does two things: a. refutes the viability of concepts rooted in different facts. b. ignores that the truth about the subject lies in something more than a fact. Which is where, in my view, conceptualism prevails.

Prima facie, Kelsen's approach might reek of philosophical nihilism. But for Kelsen, it didn't mean that this whole exercise of formulating theories was a dead end, as the truth of any could not be determined. Kelsen, instead argued that each of these various assumptions, or concepts in his words, were valuable in context of their own discipline, and only when all of these discourses are taken together, that a real picture of the concerned subject matter begins to emerge. This way philosphical absurdism rather than nihilism would more be Kelsen's line of thought.

What is important is that Kelsen uses exactly this argument to establish law as an independent discipline, clear of political, social and economic influences. In doing so, Kelsen is not unaware that such influences in deed have a significant effect upon shaping the law. But for Kelsen legal discourse is a matter of academic convinience, and not truth. Therefore legal concepts must be totally divorced from the "non-legal" influences, thus carving the legal discipline as distinct. This, in no way means that legal concepts are the only way to understand law, or even that law can be fully understood merely by the use of legal concepts. This is where Kelsen changes law from being a mere tool for the exercise of political power as envisioned by classical postivism.

I would like to compare this idea to my understanding of an anarchist conception of law, whereby law is not afforded the status of being a distinct discipline. This is basically because for the anarchist, law acts as something external to an individual. Which means that in many ways, law would sanction violence and coercion upon individuals due to some expectations and obligations under law. I was very intrigued to find that Kelsen had this point in mind too. He says in context of politics, "If the masks are stripped away from actors on the political stage and we no longer see the impersonal state 'condemning and making war', what is revealed is the reality of 'men putting coercion on other men.' (1973:67)" [Quoted from Cotterell 2003:36]

Interestingly, Cotterell sees this as Kelsen's committment to democracy, and uses it to contrast Kelsen against the Austinian illimitable sovereign. In my view, however, it is more. It is a warning against using "supra- individual forms" (a term used by Cotterell) to view human actions, without taking into account that all these supra-individual forms are built upon a certain set of concepts which are essentially assumptions and not absolute truth. Because if this happens, the danger that violence will be justified along with curtailment of freedom, increases infinitely. Consider the sovereign issuing a command to put a person to death. Politically, the action of putting that person to death would thus be justified. But legally, if that person has not committed any offence which warrants such punishment, this action cannot be justified. Thus violence which was being justified on account of politics, in this case would not be justified on account of law. There is an obvious distinction between Austinian and Kelsenian conception of law to be shown here. But I think Kelsen's point here is much larger: that justifying any action from the point of view of only a single discipline is a folly. This is more about than just separating law and politics.

I actually find here some parallels with the anarchist conception of how to treat or view human actions. Anarchists condemn law as a separate discipline only because they assume that a single discipline would be used to understand and put into perspective, human actions. This in turn, would enforce violence and curb human freedom, because human actions and experiences are too rich to be understood purely in a legal perspective. Kelsen in fact, argues the same. But then he says that a single discipline should not be used to understand any human action, thus solving anarchism's problem with recognition of law as a discipline. Though of course, how this is to be achieved, still remains obscure.

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Rawlsian Principles of Justice: Outline

Rawlsian Principle of Justice consists of two basic pronouncements.

The First Principle : Liberty and Equality

-Each person has a right to an adequate scheme of basic liberties.

-This right is equal for all persons.

-A similar scheme of basic liberties should be available to all.

The Second Principle: Inequality Parameters and Greatest Benefit to Least Advantaged

- Inequality can exist as long as:

# Such inequality arises out of differences in positions/offices which can be accessed by everyone with fair  equality of opportunity. [Note: not just equality of opportunity, but fair equality of opportunity, thus making it more subjective]

# The Difference Principle: Such inequality is of the greatest benefit of least advantaged person [Kinda ironic don't you think? Instead of curbing inequality, it allows that kind of inequality which is "beneficial" to the least advantaged person. Promoting a patriarchal/patronisation/we'll take care of you setup? rather than letting the least advantaged choose?]

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Know Your Rights: What Can You Do To Protect Your Computer From Intrusive Searches in India? (Hmm, nothing much!)

Recently, EFF released a set of guidelines regarding how one can protect one's digital devices. from illegal search in the US. If you are wondering about how much of that would be applicable in India, this guide is for you.

Can the police intercept the communications I make using my computer, laptop or cellphone via the Internet without my consent?

Yes, the police or any other government agency can intercept any information transmitted through your computer, laptop or cellphone via the Internet. They do not need your consent for such interception, but need only an order or direction by the Controller of Certifying Authorities, for reasons recorded in writing. Neither do you need to be notified that such interception is taking place. (s.69(1), IT Act)

Can the police compel me to decrypt the information they have intercepted from my computer?

Maybe. If the information transmitted via your computer, laptop etc is encrypted, the police or any other government agency directed by the Controller of Certifying Authorities can compel you to decrypt it by entering a password, etc. (s. 69(2), IT Act)

Who exactly is this “Controller of Certifying Authorities”?

The Controller of Certifying Authorities is an officer appointed by the Central Government under the Information Technology Act, 2000. More information about this office may be obtained here: http://cca.gov.in/rw/pages/index.en.do

Can a police officer access my computer, laptop or cell phone at home in order to search it?

Yes, in fact any person (and not just a police officer) who is authorised by the Controller of Certifying Authorities appointed under the Information Technology Act, 2000 (s.17, IT Act) can gain access to any computer system data or material related to such system. Such a person will have the power to search your computer, laptop or cellphone without a warrant. (s. 29, IT Act) However, they do not have the authority to search any part of your home. This is because typically no police officer cannot enter your home to search anything without a warrant, unless you consent to it.

Apart from this, the officer-in-charge of a police station can enter your home without a warrant to search your computer, laptop or cell phone for evidence which he reasonably believes can be found on it, and if such evidence needs to be immediately acquired.(s.165(1), CrPC) In such a case the police officer has to record his reasons in writing and send it to the nearest Magistrate. Upon application to the Magistrate, you can get a copy of these reasons free of cost. (s.165(5), CrPC).

Does it change things if the police have a warrant to enter my home?

Yes, with a warrant to enter and search your house, the police can search anything within your house, including your computer, laptop and phone. This is because the warrant gives police the power to search everything at the particular place specified in it. (s.93(2), CrPC). So having a search warrant will widen the powers of the police even further.

Can I see the warrant?

Yes, in fact, you should always demand to see the warrant. The police will usually knock on your door and announce that they have a search warrant for your home. Lock your computer or any other electronic devices if you are using them at the time of this announcement. You should then come out and close the door behind you, as they might attempt pushing past you inside the house. Politely ask to see the warrant, and read it carefully before letting them in. The warrant specifies the name and address of the  place or part of a place which can be searched, and the police have to confine their search to those parts only. (s. 93(2), CrPC) Additionally, the warrant bears the signature of the magistrate. If any of these are missing, the search warrant is invalid, and you should politely tell the police that you do not consent to the search.

Am I allowed to oversee the search which the police make on my computer etc.?

Yes, you are allowed to be present during the search in every instance.(s. 100(6), CrPC) Further, before making a search under a warrant, the police are also obliged to call upon two independent and respectable persons from the locality to act as witnesses to the search of your home.(s.100(4)) The search can be made only in their presence. (s.100(5), CrPC)

Can my roommate or spouse allow police access to my computer, laptop, phone, etc.?

Yes, your roomate/guest/spouse/partner/servant can legally let police or other authority access to your computer, laptop, phone etc in your absence. Any person authorised by the Controller appointed under the Information Technology Act, 2000 can ask your roommate/guest/spouse/partner to provide technical and other assistance as deemed necessary. In such cases, your roommate/guest/spouse/partner has to provide all reasonable technical and other assistance to such authorised person. (s.29(2), IT Act) This might include revealing or entering your password or encryption key (if he/she knows it) into the computer device.

Can the police compel me to turn over or enter the passwords or encryption keys I use on my computer, laptop or mobile devices?

It depends. If you are an accused in a particular investigation of any nature or if it is a criminal investigation, then you must consult a lawyer before deciding whether to turn over or enter your password or encryption key. If the investigation is non-criminal in nature and you have not been accused of anything, then you are most likely to be obliged to turn over or enter the password or encryption key. However, as the law in India is very ambiguous on this point, it is best to consult your lawyer before reaching a decision.

Do I have to answer their questions while they are searching my computer, laptop or cellphone?

No, you need not answer any question any person puts to you when searching your computer, laptop or cellphone. It is best to remain silent until you have a chance to consult a lawyer.

Can the police take my computer with them and search it somewhere else?

Yes, the police have the power to seize your computer, laptop or any other electronic device you own and search it somewhere else. (s.102, CRPC) If this happens, the police need to make a list of all the things seized and the places where they were found. This list is to be made in the presence of the two respectable witnesses to the search who need to sign it. (s. 100(5), CrPC) A copy of this list has to be given to you.(s.100(6), CrPC)

What if the data on my computer etc is obtained without following the proper legal procedures by the police? Is it still admissible as evidence?

Sadly, yes. The illegality of a search will not affect the validity of the seizure and the admissibility of that as evidence at the trial. (State of Maharashtra v. Natwarlal Damodardas Soni AIR 1980 SC 593, 1980 SCR (2) 340) The Court may examine such evidence more carefully but it does not in itself become in admissible by having being seized under an illegal or irregular search. (Radhakrishan v. State of U.P. [1963] Supp. 1 S.C.R. 408) That is why it is important that you have adequate protection for all your sensitive data to prevent access that can be obtained too easily.

Can a police officer search my laptop or other portable device, while I'm using it in a public place?

Yes, a police officer can enter any public place and search any computer, laptop and other portable device there without a warrant. (section 80, ITA). This means they can search your laptop while you use it in a cafe, or pull you up when you are driving to search your cellphone, or search the computer you are using in a cyber cafe.

Can the police arrest me without a warrant on suspicion of having committed a cyber crime?

Yes, but only if you are in a public place. Any police officer of the rank of a DSP or above or an officer of the Central or State Government who has been authorised by the Central Government can arrest you without a warrant if he suspects you of having committed or  of committing or of being about to commit a cyber crime. (section 80+ “cyber crime” in this whitepaper refers to any offence committed under the IT Act.) But the officer has to inform you of the grounds for the arrest immediately, in all circumstances (Art 22, Constitution of India)

How do I know if an officer is authorised to search my computer, laptop cellphone, or arrest me from a  public place without a warrant on suspicion of a cyber crime?

Any police officer of the rank of DSP or above is authorised to search your computer and arrest you without warrant on suspicion of a cyber crime. (s. 80, IT Act)

Apart from the police, any State or Central Government officer may also search your computer devices without a warrant in a public place and/or arrest you on suspicion of committing a cyber crime. A State or Central Government officer who searches your computer or arrests you must have been authorised by the Central Government in this regard.

Do I have to co-operate with the police at the time of search and/or arrest?

No, you need not help the police to conduct their search. However, they can ask you to decrypt content on your computer by entering a password or encryption key, which you may have to. However the law is contentious on this point, and it is best to consult a lawyer before helping them. But you should not physically interfere with them, obstruct the search, or try to destroy evidence, since that can lead to your arrest in any case. In that instance, do not interfere but write down the names and badge numbers of the officers and immediately call a lawyer.

If the police decide to arrest you, they will announce their intention. You should stay calm and co-operate with the police. Do not try to run away. If you are a woman, you cannot be arrested after sunset and before sunrise except in certain circumstances. Even in those circumstances, only a lady officer may arrest you. (s. 46(4), CrPC).

If I am arrested by an officer for on suspicion of having committed a cyber crime, what do I do?

If you are arrested by a police officer, the first thing you must do is request for legal assistance. The police are obliged to let you consult with a lawyer upon arrest and while you are in custody. (Nandini Satpathy v. P.L.Dani AIR 1978 SC 1025 pg. 469-470, Smt Selvi v. State of Karnataka, decided on 5 May 2010, by the Supreme Court, pg. 114-115).

If you are arrested by an officer of State or Central government, he must immediately take you before a magistrate or to the officer-in-charge of a police station. (s.80, IT Act)

You can further choose not to answer any question the police or the government officer asks you, thus keeping silent. It is best to wait for your lawyer's advice before answering any question you are asked.

Do I get a hearing in case I am arrested on suspicion of a cyber crime?

Yes, you have a right to be heard by a magistrate within 24 hours of your arrest in any circumstance.(Article 22(2), Constitution of India) Even if you are arrested on Friday evening, you must be produced before a magistrate within 24 hours. Excuses like the magistrate is unavailable over the weekend are illegal because in reality, there is always a magistrate on duty available 24/7.

I have stored a lot of privileged data in form of electronic correspondence with my clients. How can I protect it if I don't even know that this data is being intercepted, and when it can be easily searched?

Certain forms of communications are privileged evidence under Indian law, and their disclosure cannot be forced. These include communications between a lawyer and his client (s.126, Evidence Act), and between a husband and wife during subsistence of their marriage. (s. 122, Evidence Act). To protect these communications it is wise to use specific defensive technologies to protect your privacy. Articles providing information about how to securely delete your files, or how to use encryption to protect the privacy of your emails or instant messages may be useful in protecting your privileged information from State agencies.

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Is E2 labs right in getting zone-h.org blocked?

(Reproduced from http://www.bloggernews.net/124029 , a link admitted to as being bloacked by the Indian DIT http://cis-india.org/advocacy/igov/blog/rti-response-dit-blocking , but which is apparently (and thankfully) working fine with Tata DSL and MTNL)

It has been brought to the attention of Naavi.org that the Government of India might have blocked the website zone-h.org. Naavi.org has therefore checked the background of the non availability of zone-h.org from India and  place its reading of the situation as under.
 As of now (march 11), it appears that the site zone-h.org is not accessible in India.  Zone-h.org is a reputed information security website often referred to by security professionals and there is no apparent reason for the same to be blocked because of any content on the site.
However what is interesting is to note that the site has been carrying a few articles in recent days which are critical of a Hyderabad based company called E2 Labs. In a recent article, Zone-h has categorically stated that E2 labs has been trying to attract investors with certain project information which states that zone-h is a business partner for E2 labs. The site zone-h.org states that it has no business relationship with E2 labs and the contents of the documents released by E 2 labs and accessed by Zone-h.org through wikileaks is false. (For a copy of the complete article visithttp://www.naavi.org/cl_editorial_10/e2labs_zoneh_org.pdf )
If the contention of Zone-h .org is true, then a serious question is raised on the business ethics of  E 2 labs . It is open for Zone-h.org to take appropriate legal action against E2 labs. If the contents are incorrect,  E2 labs can take-up defamatory action against zone-h.org.
In this fight, readers may wonder where is the scope for blocking of Zone-h.org website because it carries a potentially defamatory article on E2 labs. So far except when political leaders such as Sonia Gandhi or community icons such as Shivaji have been defamed, Government has not taken any action to block the websites. In fact the Government has developed a cold feet even in blocking of kirtu.com. It is therefore surprising that potential defamation of E2 labs is considered sufficient ground to block a respected website such as zone-h.org.
In information just received, it appears that CERT In was not instrumental in the blocking of the website but the same was ordered through a Court action in Hyderabad.
One option available for Zone-h.org now is to request for reconsideration of the Court decision which should have been restricted to removing of the contentious article alone instead of blocking of the website.
 At the same time we need to take note that the document referred to in the artcile also highlights that E 2 labs is the “Principal Consultant of CERT_In”.  It also states that it is going to be appointed as an advisor of Defense establishments etc.
Since CERT-In is the nodal agency for the national cyber security of India, if the charges made by Zone-h.org is true, E 2 labs would be unsuitable for partnering CERT-In.
In veiw of the fact that this is a serious national security issue, it would be better if Government of India makes a suitable statement clarifying the role of E2 labs in national cyber security. In particular, public are entitled to know if E 2 labs is really the principal consultant of CERT-In and if E 2 labs is also going to be appointed as a consultant for the Indian Defence Forces as they have claimed in the said document.
Naavi of naavi.org

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A Fresh View of the Rape Culture

The recent sexual assault on CBS reporter Lara Logan in Egypt, once again brings into focus the continuing use of sex as a tool for violence. This is a phenomenon which transcends all cultural boundaries, for people everywhere face it. And it doesn’t look like it is coming to an end anytime soon either. Maybe it is time to consider sexual assault from an alternate perspective.

The contradiction of “inviting to be raped”

One of the many reactions to the assault on Logan was that by being beautiful, and a female war correspondent, she was practically throwing away an invitation to be raped.  Not that this is a new assertion. We’ve all heard of women who are “asking for it”, by dressing down- and not just from men, but from other women too. And to that, we reply by justifying with statistics, the number of women who get raped in burqas, when all covered up. But that is hardly the point. The question to ask is, why should a woman be raped depending on how she looks or dresses, when a good-looking man clearly won’t even if he goes half-nude? Further, how can there be even an “invitation” for rape considering that rape is something which is at root, non-consensual? Blank Noise, an anti-street harassment movement, succinctly answers this with its slogan, “I never ask for it,” simply because it would be a logical contradiction.

The rationale of sexual assault

Unlike popular belief, the rationale of sexual assault is not lust, but domination. Most honor killings are compounded with rape by a family member- the point of rape thus being to show the victim her place, so to say. In other words, telling the victims through an act, that they are not human enough to crave for the same freedoms. And hence a sexual assault, because gender is what it is targeted, after all. The point is to shame enough to make the victim believe inside that what she wants can never be realized, so stop attempting. All kinds of sexual assault, including those against men or transgenders, basically thrive on the insecurity of men about their “manhood”.

Tackling sexual violence

The only effective way to tackle sexual violence is by defeating its very purpose- humiliation. It’s time that those targeted realize that since they cannot ask for it, it’s not their fault when their bodily privacy is invaded. Though, of course it’s much harder to not feel humiliated when the society is constantly telling one to. That’s how so many instances of sexual violence go unreported. The assaulted need to be strong, and social perceptions need a change.

How law reinforces the rape culture

It’s not just society, but our very laws too, which reinforce this culture of victimization under sexual violence. Take a look at the crime of rape- what exactly are its constituents? Not just invasion of privacy, but also the “mental trauma” caused to the rape victim. So even the law ends up saying to the raped person, “Feel humiliated that you’ve been raped, that’s what we are punishing for.” Whereas law should be scaling down the punishment, by recognizing no humiliation for the victim (and hence not punishing for it), most advocates call for harsher punishments. However, it is forgotten that as long as humiliation is recognized as an essential part of sexual assault, the crime will still thrive, because it would manage to achieve what it intends.

(For open discussions between men and women regarding this culture of sexual violence do consider participating at the Blank Noise blog at http://blanknoise.org.) 

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Anonymity versus Privacy: Some thoughts upon the distinction

The usage of the Internet is rid with debates, one of the major ones being the compromise of privacy of an individual. This debate at the core concerns with balancing interests of free speech/access to information and privacy. The question is not so much about what should remain in the public domain and what should come in the private domain as about how much compromise should be allowed with the private domain to provide access to information? In other words, which is the more important right- privacy, or access to information?

So on one hand, you have companies like Google trying to coagulate all your searches, email and other information you’ve dropped by them into one database in a quest for the perfect search engine; and on the other you have rights advocacy groups like Privacy International hankering on privacy issues. But the question goes far deeper than implying a mere stand-off between two interest groups…it also brings up conflicts within us as individual Internet users. There are two aspects to this...

First, as an Internet user, I do desire better Internet services (say search services). On the other hand, I also don’t want any Internet entity to be storing my data for long periods as I fear it can fall into wrong hands and be abused (say credit card information, search keywords like “how to make a bomb”, the sites I browse etc.).

Second, as an Internet user, while I do want the Internet to be a safe place, and law enforcement to work effectively to catch criminals who commit misdeeds over the Internet (say putting up illegal pornography, or Internet pedophiles) thanks to the anonymity which the Internet can ensure; I also want to be able to criticize what I deem to be an evil organisation without letting my identity be known (eg. a whistleblower) , or create an anonymous movement against a totalitarian regime (a recent case in point, Tunisia).

Now the questions which arise now are many. But in this post, I’d like to tackle one specific aspect: How can the desire/need of an Internet user to maintain his safety (which is many times associated with how well protected his privacy is) be maintained while protecting his anonymity on the Internet at the same time?

By just laying a claim that this exercise is indeed possible, I’m actually asserting that there is a distinction between privacy and anonymity, and the question to be decided is which is to be prioritized when.

I think the difference between privacy and anonymity can be best understood by the constructs of private and public domains. Thus, privacy is afforded to all those activities which are conducted in what is deemed as private sphere. Anonymity, on the other hand, is needed for activities which are per se deemed to belong to the public sphere. So I’d demand privacy when I’m having sex, but I’d demand anonymity when I’m making a speech criticizing government policy. So what I seek anonymity for is only my identity, not the content; in fact, I vociferously want the content of my speech in the case to spread and catch the public imagination. But I don’t want my preferred sexual position to be available to the public- here it’s the content itself which I do not want to spread.

So what should law be policing? Privacy or anonymity? It’s a tough question still. Because, traditionally law is not supposed to extend to the private sphere.  (but when you have domestic violence et al, the issue is moved to the public sphere- refer Hilary Charlesworth). So maybe it’s anonymity which requires protection in the public sphere. But then consider a child pornographer. He desires anonymity (not letting his identity be known), and certainly not privacy (as he still publishes pictures of his private actions). What comes to rescue there? (Though, interestingly it is to be noted that while adults having sex is a private activity, sex with minors relegates to the public sphere as law enters to regulate it.)

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