The issue of Blackberry Services in India
There has been a lot of uproar about the recent development of accessing and intercepting the data by the Indian Government pertaining to Blackberry Services. The issues involved in these can be classified as follows -:
1. Can the Government intercept the communication on the Blackberry Networks?
2. Does it pose any threat to the privacy of the individual or corporation?
3. Is Government in a legal right to have access to such communications or block the access to the services of Blackberry for Indian Consumers?
4. Is RIM liable under Indian Laws for any Breach of Indian Laws, being Canadian Corporation and having the data in Canada?
5. Is this the beginning or end?
I would like to deal with these issues in the following manner
A. Can Government intercept the Communication on the Blackberry Networks?
If the services are provided in the Indian Territory and the data is originating or passing through Indian Computer Resource, the Government has a legal right to intercept, block and monitor the traffic data under the provisions of Information Technology Amendment Act, 2008. The Government can do the above acts provided the government suspects any threat to the National Security or Friendly relations with the other states. It can also order to collect, retain and monitor the data if the said data is transmitted for the purposes of spreading computer contaminant or viruses .
The issue involved in the recent RIM controversy is the decryption of the data that can allow Indian Government to intercept the suspected communication. At the moment the data travels from user to the Blackberry servers in Canada in an encrypted format and is decrypted by the recipient of the data automatically through the use of server generated key which RIM alleges is not known to them or any of its employees.
The government can certainly intercept the communication if there is an element of suspicion.
I have also been hearing that there has been an advice to the various governments to hack the keys in case they so require for the purposes of National Security rather than asking RIM to comply with the Indian requirements. In my view, that is totally wrong and I can never believe in the term Ethical Hacking. To me, the act done unauthorizedly without the permission of the owner can never be termed as ethical. Therefore, the Indian Government for that purpose has taken the right approach to deal with the matter specially which has been the need of the hour in light of terrorist attacks of 26/11 in Mumbai.
B. Does it pose any threat to the privacy of the individual or corporation?
I agree the privacy is certainly compromised but I think National Security is of utmost importance. I do not think that government is trying to intercept each and every communication of every individual and corporation. It is only when there is a need to intercept in extreme circumstances arises or on the Intelligence inputs, the government needs to intercept and monitor the traffic.
Privacy is fundamental right and every individual has a vested right to enjoy the same but at the same time criminals should not take advantage of this and put the lives of people on stake. I think we should all agree to this proposition and try to change our mind sets accordingly.
Secondly, if one feels the data transmitted through the servers is highly sensitive then the same can be protected through various technological means available in the world today. In this manner the integrity of data is also maintained and the data of sensitive nature can also be protected.
C. Is Government in a legal right to have access to such communications or block the access to the services of Blackberry for Indian Consumers?
As mentioned earlier, it’s a legal right of the government to intercept, block and monitor or collect traffic data if the same is being transmitted using computer resource of the country.
Section 69, 69A and 69B of the Indian Information Technology Amendment Act, 2008 empowers the Central or State Governments to appoint agency to intercept, block and monitor or collect traffic data in this regard if such data poses threat to the National Security or friendly relations with other states.
The intermediaries are required to provide access to the data required by any agencies of the Central or State Government in compliance with the requirements. Failure to provide such access or information by the intermediaries can attract penal liabilities that may extend to seven years imprisonment and fine.
In addition, the government can also block the access to such services in case the intermediaries do not comply with the requirements of the government.
D. Is RIM liable under Indian Laws for any Breach of Indian Laws being Canadian Corporation and having the data in Canada?
RIM and for that purpose any service provider is liable under the local laws if they are providing services in India or if the data is being transmitted through Indian Computer, Computer Resource or Computer networks.
Section 75 of the Indian Information Technology Amendment Act, 2008 provides for the long arm statute to even cover the offenses committed outside India in contravention to the provisions of the Act.
Notwithstanding anything, the Indian government can certainly block the access of the services not complying with the Indian Laws.
In the case of Blackberry services in particular, the data is being originating from Indian Computer Resource and is subject to Indian laws. The intermediaries like RIM is under legal obligation to provide access to such communication as per prevailing laws.
E. Is this the beginning or end?
I think there can never be an end to the technological advancements nor to the government practices to regulate the Internet space. For last few months we have seen the steps taken by various countries including India to intercept the channels used by the criminals in the past to commit crime.
The reports also suggests that the Indian government is considering to ask Skype, Google and other VOIP service providers to provide similar access if they do want a blockage by the government. I think it’s high time that all of us should cooperate with the government agencies to ensure that nothing is done that is detrimental to the nation’s interest.
Nevertheless, we should also ensure the laws are not misused by either parties (Government, User or Intermediaries) to their own personal benefits.
Authored By – Gurpreet Singh
Right of Reproduction subject to the acknowledgment to the Author with link to his website. All other Copyrights reserved with the author.