Wednesday, July 13, 2011

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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Monday, July 04, 2011

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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