India Must Ensure Techno Legal Measures To Regulate Indian Cyberspace

PRAVEEN-DALAL-MANAGING-PARTNER-OF-PERRY4LAW-CEO-PTLBTechnology Companies like Google, Yahoo, Microsoft, etc and Social Media Websites like Facebook, Twitter, LinkedIn, etc are providing mechanisms and services through which Civil Liberties in Cyberspace are exercised. The traditional media is so heavily regulated and monitored by our respective Governments that they have limited role in strengthening the Speech and Expression and Right to Know Rights of Netizens. These Technology Companies and Social Media Websites not only provide a “Voice” to the mass population but they also help in keeping a “Check” upon our respective Governments and their Agencies.

However, there is a “Flip Side” to these benefits as well. The services provided by these Technology Companies and Social Media Websites are frequently “Misused” by third parties and these Companies and Websites are not “Compliance Friendly” when it comes to Laws and Regulations of various Jurisdictions. These Companies and Websites frequently abuse the “Conflict of Laws Gaps” to deny information that can help in arresting and prosecution of the Cyber Criminals.

All of these Companies and Websites follow the Laws of their respective Jurisdiction and in almost all cases this means the Laws of United States. What is frustrating for Indian Government and its Agencies is that even if there is a “Clear Violation” of Indian Laws, these Companies and Websites do not provide the “Data and Information” requested by Indian Government and its Agencies. Even Legal Requests by Attorney are not entertained in proper manner and they are required to follow U.S. Laws and Regulations or are asked to undergo a procedure that is neither approved nor recognised by Indian Legal System.

These Companies and Websites can take this “Liberty” because Indian Government has not taken “Techno Legal Steps” against them. As a result Companies like Google, Facebook, etc are openly Violating Indian Laws and “Blatantly Refusing” to entertain and respect Indian Legal Requests for Information.

Even the much hyped Mutual Legal Assistance Treaty (MLAT) has its own “Limitations” to make the offending People/Companies liable as per Indian Laws. For instance, recently U.S. blocked India’s MLAT attempt to make Google, Facebook, etc to comply with Indian Laws. So what would Indian Government do if these Companies and Websites do not comply with Indian Laws and if they cannot be “Compelled” to comply with Indian Laws through MLAT and other mechanisms as well?

Regulating Internet or Cyberspace is a big challenge for all the Nations. India has also started feeling the pressure of the same as Foreign Companies and Websites have started affecting the Law and Order, Peace and Tranquility, National and Cyber Security, etc of India.

India urgently needs to act on both the fronts of Technology and Legal Framework to make these Companies and Websites comply with Indian Laws. On the Technology side, Indian Government must force these Companies and Websites to “Establish Servers in India”. Further, in extreme cases, Indian Government can also “Block” the Services provided by these Companies and Websites at the “National Gateway Level” or “Selectively and Case to Case Basis” through the Indian Computer Emergency Response Team (Cert-In). Judicial Intervention can also be sought to Block the Services provided by these Companies and Websites.

On the Legal Side, Indian Government can make “Necessary Amendments” in the Licenses, Rules and Regulations applicable to these Companies and Websites if they wish to do any sort of “Commercial Activities” in India. Any Company or Website having an Indian Subsidiary Company, Place of Establishment or Business in India, assessable to Indian Income or other Taxes, deriving any Income or Profits from Indian Operations (whether Directly or Indirectly), Income Accruing or Arising in India from their Operations anywhere in the World, etc must be “Compulsorily Amenable” to Indian Laws.

Similarly, Mergers and Acquisitions, Transfer Pricing and Arm Length Dealings, Private Equity and Foreign Direct Investments, Sale and Purchase of Indian Companies Shares and Stakes, etc by these Foreign Companies and Websites must also be “Strictly Regulated” so that they cannot Manipulate and Evade Compliance with Indian Laws.

We request the attention of Indian Government towards these ”Crucial Issues” that must be taken care of on a “Priority Basis”. We are also willing to frame necessary “Techno Legal Framework” so that Foreign Companies and Websites do not evade the Compliance with Indian Laws anymore through the grey area of Conflict of Laws in Cyberspace.

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  1. Pingback: E-Surveillance, Civil Liberties Protection In Cyberspace And Conflict Of Laws | Conflict Of Laws In Cyberspace, Internet And Computer Era

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