Information Technology has brought unprecedented boost to business transactions and communications. But this boon has brought in some irritants as well. Lex Witness bureau investigates the technological, legal and evidentiary facets of complex digital world in this cover story
The greatest gift to mankind from the scientific community has been the invention of information technology and the associated technologies in the last decade of the 20th Century. This technology is of such monumental importance that it has been rightly termed as infotech revolution. It has put entire human civilization on a fast forward mode by making information, communication, entertainment, social networking, etc. available to us at click of a mouse. But like all boons internet/information technology also has a flip side to it which includes all sorts of internet based ills like frauds, pornography and hacking etc. For example consider this, few days ago I received this e-mail, which is from an unknown email Idwhich asks me to provide some personal information so that may give me a prize of Rs. 20 crore. Even If I continue to work till the 100th year of my life I will not be able to make that kind of money. So the question naturally arises who is this great benefactor who wish to solve all my financial problems. This e-mail is part of thousands of emails which fradusters like these keep on sending to the innocent and uninitiated people.
On Forensics of Electronic evidence
“Any audio recording from mobile phones, DVD, video, CCTV, computers, solid-state devices, tape recorders, memory cards etc can be altered and tampered however Electric Network Frequency analysis, digital forensic imaging, forensic phonetics, voice biometric tools and techniques can be used in conjunction to determine integrity of the audio tampering or alteration and voice matching. Traditionally use of soundspectrographs has helped analysers to plot voice patterns, frequencies and amplitudes to identify people of interest.
Some of the things that are commonly evaluated in an audio clip to determine its authenticity are background noises, voice frequency changes, noises emanating from recording equipment and stop, start and pause signatures. Any discontinuity in these areas may signal to the analyser that the recording is inauthentic or has been compromised.
Sometimes, these discontinuities can be masked behind background sounds and lot of hard work is required to uncover them. Detection of discontinuities can be difficult, but not impossible for the trained and dedicated forensic audio analyser. A recording can be altered that is sometimes undetectable. A skilled manipulator with access to sophisticated softwares can make simple alterations/modifications such as a “yes to no” successfully which may be difficult to detect. Detection of discontinuities can be difficult, but not impossible for the trained forensic audio analysers.
An expert also examines waveform graphs that show detailed information about the clicks and other noises on the recording. Such graphs can distinguish between environmental sounds, such as could be caused by bumping the microphone, as opposed to the clicks made by exercising various switch functions on the recorder
If it is possible to gain access to the recorder on which the recording was (alleged to have been) made, it is generally possible to duplicate the clicks made by exercising the functions of the recorder and show whether they were or were not made as claimed. Forensic audio analysts also rely on audio signatures that come from specific controlled sources.
One of the most popular techniques used during analysis is to compare one unknown sound against a known one to identify it. This can be done in cases involving voices, where one speaker has been identified but the other has not. Voice/Audio Forensic experts can identify speakers and match voice using sophisticated Voice Biometric Systems.
We already provide these solutions to Law Enforcement Agencies and Forensic Labs in India and also provide investigation & analysis services to any citizen of India.”
So it is, in the words of Vakul Sharma author of a book titled: Information Technology- Law and Practice, that “With the spread of technology very soon each and every case or related matter would have an information technology component and one may need sound knowledge of information technology laws. It no longer pays to be technology insensitive and for that matter- technology law insensitive.” And this technology insensitivity and ignorance as to its legal implications become even more important if we look at the frauds commited through this technology like Advance Fee Fraud, Lottery Scams, Phishing, Auction Scams, Employment Scams, etc. So to be able to reap the tremendous benefits of this it is important to be aware of the legal implications associated with the technology.
The importance of this aspect of internet technology dawns upon us when we examine the quote, again from the same book, that “Wherever, whenever onetouches a computer, computer system or computer network or any other computer resource, one shall be within the ambit of the Information Technology Act, 2000.”
Before we move into the nitty gritty of law on this aspect it is important to understand the electronic environment of the information technology. As defined by Wikipedia, “Information Technology (IT) is the branch of engineering that deals with the use of computers and telecommunications to store, retrieve and transmit information. The acquisition,processing, storage and dissemination of vocal, pictorial, textual and numerical information by a microelectronics-based combination of computing and telecommunications are its main fields. Some of the modern and emerging fields of Information technology are next generation web technologies, bioinformatics, cloud computing, global information systems, large scale knowledge bases, etc.”
The Act is enacted to provide legal recognition for transactions carried out by means of electronic date interchange and other means of electronic communication, commonly referred to as “electronic commerce”. The Act also amends Indian Penal Code, the India Evidence Act, 1872, the Banker’s Books Evidence Act, 1891 and the Reserve Bank of India Act, 1934 to deal with the myriad situations.
The Act has put an elaborate Adjudication Mechanism and Appellate Mechanism specifically to deal with such unscrupulous elements. Section 46 of the IT Act 2000 provides for an adjudicating authority to look into “whether any person has committed a contravention of any of the provisions of the Act or of any rule, regulation, direction or order made thereunder”. The Central Government appoints an officer to be an adjudicating officer for holding an inquiry in the manner prescribed by the Central Government. The procedure to be followed by the adjudication and imposition of penalties under the Act is based on the principles of natural justice i.e. a reasonable opportunity for making representation in the matter. Every adjudicating officer is vested with the powers of a civil court which are conferred on the Cyber Appellate Tribunal under subsection (2) of section (2) of section 58, and all proceedings before it shall be deemed to be judicial proceedings within the meaning of section 193 and 228 of the Indian Penal Code (45 of 1860); (b) it is deemed to be a civil court for the purpose of section 345and 346 of the Code of Criminal Procedure, 1973 (2 of 1974). The proforma for making complaint to the adjudicating officer is provided under Information Technology (Qualification and Experience of Adjudicating Officers and Manner of Holding Enquiry) Rules, 2003.
Section 58 of the Act provides for the Appellate Mechanism the procedure and powers of the Cyber Appellate Tribunal wherein it is not bound by Code of Civil Procedure, 1908, but is guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules, the Cyber Appellate Tribunal shall have powers to regulate its own procedure. Like the adjudicating officer every proceeding before the Tribunal Cyber Appellate Tribunal shall be deemed to be a judicial proceeding within the meaning of section 193 and 228, and for the purposes of section 196 of the Indian Penal Code (45 of 1860) and the Cyber Appellate Tribunal shall be deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973.
On Strengthening the Information Technology regime in the Country
“On criminal law side the knowledge of the Inquiry officers in the cases of cyber crimes is deficient and they need to be properly educated in this aspect. On civil law side the aspect of authenticity of printouts of e-mails, as you cannot distinguish between a photocopy and a printout. In this context it is also a critical question which needs to be addressed as the verification of IP addresses in all e-commerce transactions is not possible in this regard especially in B2B transactions the parties may not have their own servers so the possibility of manipulation may remain.
The IT Act provides critical definitions which are relevant in the context of internet: (1) Information: includes data, text, images, sound, voice, codes, computer programmes, software and databases or micro film or computer generated micro fiche; (2) Electronic Form: with reference to information, means, any information generated, sent, received or stored in media, magnetic, optical, computer memory, micro film, computer generated micro fiche or similar device; (3) Electronic record: means date, record or date generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche; (4) Intermediary: with respect to any particular electronic message, means any person who on behalf of another person receives, stores or transmits that message or provides any service with respect to that message.
Since the objective of the act is to regulate all information technology enabled transactions especially computer/internet based transactions. And in that amendment to the Evidence Act was to be of utmost importance. Hence the Act has brought in various changes to the Act and the first and foremost amongst is in the definition of evidence and to address the issue of the admissibility of both electronic records and paper-based documents. The definition of ‘evidence’: has also been amended to include electronic records. The definition of ‘documentary evidence’ has been amended to include all documents, including electronic records produced for inspection by the court. The term ‘electronic records’ has been given the same meaning as that assigned to it under the IT Act, which provides for “data, record or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer-generated microfiche”.
When we speak about a “document” in the digital/electronic sense it may means‘anything in which information of any description is recorded,’ Photography, Video Tapes, audio tapes Facsimile Transmissions Computer Database recorded in back ups or files have been held to be ‘documents’ and, Computer print out is a document, An electronic diary has also been held a document. It does not matter that it may have to be processed like – translation, decoding or by electronic retrieval.
In a case related to a computer data base, and the need for a document to be seen to be admitted in evidence an English judge emphasised that it is not necessary to be seen visually. The learned Judge observed: “….the mere interposition of necessity of an instrument for deciphering the information cannot make any difference in principle. A litigant who keeps all his documents in microdot form could not avoid discovery because in order to read the information extremely powerful microscopes or other sophisticated instruments would be required. Nor again, if he kept them by means of microfilm which could not be read without the aid of a projector.” The learned Judge observed: “I respectfully adopt that statement of principle. It must, I think, apply a fortiori to the tape or disc on which material fed into a simple word processor is stored. In most businesses,that takes the place of the carbon copy of outgoing letters which used to be retained in files.” Here, we must accept the comment of Steve Uglow in ‘Evidence, Text and Materials’ 1997 page 149 that if the definition of ‘document’ broadens, so do the difficulties of demonstrating authenticity. While computer generated information should be treated similar to other records, its weight depends on its reliability and parties might need to provide information as to the security of their computer system.
In one of its reports the Law commission of India opines that Electronic records are ‘secondary evidence’. Where the original of a document cannot be produced, secondary evidence of its contents will be admissible. Since, whenever a document is produced in court as evidence, its genuineness has to be established before its contents can be referred to, the authenticity of the electronic record has to be established, except when the conditions of sec. 65B are satisfied. In that case, the electronic record becomes automatically admissible as evidence of its contents in the same manner as a certified copy of a public document. Such certified copy is also secondary evidence but is received as if it is primary evidence, because of sections 77 and 79.
Section 65B envisages admissibility of electronic records without further proof or production of the original if an electronic record is deemed document. Any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document that “information” is admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any factstated therein of which direct evidence would be admissible.
Technical difficulties in admissibility of the video evidence
With the rise of handheld video devices, amateurs who found themselves unintentionally at the scene of a crime can capture what happened on phones, digital cameras or laptop computers. But in order to be admissible in a court of law, video evidence has to undergo a strict handling procedure. The name of whoever handles the evidence is cataloged, and the video is stored in a climate-controlled place—this is to ensure that it is not altered in any way. If the handling procedure is not followed, the video tape can be considered inadmissible evidence, even if it is relevant to the case. For example The images taken by a security camera or mobile phone are often grainy and this makes it difficult for firm conclusions to be drawn from the evidence on the video tape So in response to this problem, video evidence is sent to a crime lab, where licensed technicians use software to filter out the "noise" and get a clear images.
The era of Information technology has brought new methods and modes of commission of crime. Each time a crime is committed whether in physical form or in cyber space, the success of prosecution largely depends on the quality of evidence presented at the trial. The Indian Evidence Act, 1872 and Information Technology Act, 2000 grants legal recognition to electronic records and evidence submitted in form of electronic records.
A certificate of statement for identifying the E record is mandatory under Section 65 B (4) of the Evidence Act because as it clears the main intention of the person who is recording that evidence. Sometime also it has been observed that many people for their own interest record the video ,etc and later on they also tend to blackmail the person. Also person telling the proper procedure of recording the evidence helps the court also to decide the manner in some of the cases it has been seen that person has deliberately mixed some liquid in food or drink and recorded the footage as by describing the procedure to the court it is always help full to decide the matter on merits.”
Sub section 2 of Section 65B provides for four “Conditions” to be met in relation to the information and computer in question: (a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer; (b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities; (c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
Section 65B envisages a Certificate by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; it shall be sufficient for a matter to be. And in this regard a statement in evidence based on the best of the knowledge and belief of the person making the statement is sufficient enough. The certificate must (a) identify the electronic record containing the statement and describing the manner in which it was produced; (b) give: such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer.
The need and necessity of Certificate came for the consideration of the Hon’ble Apex Court, in State (NCT of Delhi) vs. Navjot Sandhu (2005) 11 SCC 600, the contention of the learned counsel was that in theabsence of a certificate issued under subSection (2) of Section 65B of the Evidence Act with the particulars enumerated in clauses (a) to (e), the information contained in the electronic record cannot be adduced in evidence and in any case in the absence of examination of a competent witness acquainted with the functioning of the computers during the relevant time and the manner in which the printouts were taken, even secondary evidence under Section 63 is not admissible. This contention was not accepted by the Hon’ble Court and it was held that in the absence of a certificate the evidence may be considered as a secondary evidence.
In R.K Anand v. Registrar,Delhi High Court the article in The Indian Police Journal, July- September 2004 issue under the caption “Detection Technique of Video Tape Alteration on the Basis of Sound Track Analysis” wherein the issue of admissibility in evidence Electronically Stored Information has been adumbrated that “one of its basic premises is that the mere fact that the information was created and stored within a computer system would not make that information reliable and authentic. The acceptance of recorded evidence in the court of law depends solely on the establishment of its integrity. In other words, the recorded evidence should be free from intentional alteration. Generally, examination of recorded evidence for establishing the integrity/authenticity is performed to find out whether it is a one-time recording or an edited version or copy of the original. “In video recordings the alteration may be with the intention to change either on the audio track or on the video track. In both the ways there is always disturbance on both the track. Alterations in a video track are usually made by adding or removing some frames, by rearranging few frames, by distorting certain frames and lastly byintroducing artificially generated frames.”
The question came up for hearing in Dharambir v. CBI, 148 (2008) DLT 289, wherein the Hon’ble court held that “While there can be no doubt that a hard disc is an electronic device used for storing information, once a blank hard disc is written upon it is subject to a change and to that extent it becomes an electronic record. Even if the hard disc is restored to its original position of a blank hard disc by erasing what was recorded on it, it would still retain information which indicates that some text or file in any form was recorded on it at one time and subsequently removed. By use of software programmes it is possible to find out the precise time when such changes occurred in the hard disc. To that extent even a blank hard disc which has once been used in any manner, for any purpose will contain some information and will therefore be an electronic record.
The question came before Bombay High Court in Vodafone Essar Ltd vs Raju Sud, and the Hon’ble Court held that Itemised computer generated bills are presumed to be valid and reliable. The itemized computer generated hard copy is nothing but a human/readable averment of electronic document or data. The validity of computer record has to be decided from various angels and processing at every stage. The human interference or manual feeding or input of data just cannot be overlooked. The computer is nothing but a creation of human intellectual. The computer programme that generates the record/document without further manual or human interference like mathematical calculations, like processing itemized bill. Unless specifically challenged and disputed, the documents so generated just cannot be overlooked, and need to be treated as correct and genuine and unless proved contrary by bringing material on record.
Hubbing and the role of the Intermediaries (hosting website), Hubber which means a person or entity that is registered as a writer who writes articles on any topic on the website, where it provides webspace and technology to publish the content written by a hubber. The Hon’ble Delhi High Court in the case of Nirmaljit Singh Narulavs Indijobs At Hubpages.Com & Ors in its order dated 30 March, 2012. It was held that the website was an “intermediary‟ within the definition of Section 2(1) (w) and Section 79 of the Information Technology Act, 2000. Under Section 79 (3)(b) of the IT Act,2000, defendant No.2 is under an obligation to remove unlawful content (grossly harmful, defamatory, libellous, disparaging or otherwise unlawful) if it receives actual notice from the affected party of any illegal content being circulated/published through its service. He is bound to comply with Information Technology (Intermediaries Rules 2011. The Rule 3(3) of the said rules read with Rule 3(2) requires an intermediary to observe due diligence and not knowingly host or publish any information that is grossly harmful, defamatory, libellous, disparaging or otherwise unlawful.
In the end to sum it all up the wonders of Information Technology especially in the form of unending variety of information, the ease of use due to its portability and its ability in enabling the user to use it on the move has brought unprecedented boost to business transactions, communications and availability of sheer size of information are its greatest advantages. But this boon has brought in some irritants as well which have been enlisted in the beginning of this story. So the need is to be vigilant and cautious while relishing the fruits of this technology by keeping the various legal issues related to it in mind.
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