Is IT Act 2000 Draconian?

This has reference to the message posted on an Indian yahoo group by an innocent participant sharing a "adults only" picture of Bush and Osama.

I am going to illustrate how "Draconian" the "IT Act 2000" is through this posting. Obviously, the group member did not realise that he was committing an offence under the law of the land.

The questions are
1. Is it lascivious ?
2. Does it appeal to the prurient interest ?
3. Are its effects such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it?

If the answer is "yes" to any one or more of this, "whoever publishes or transmits or causes to be published in the electronic form" has committed an offence under section S 67 of IT Act 2000. Punishment for first offence: 5 years SI/RI and/or Rs 1 lakh. Subsequent Offence: 10 years SI/RI and/or Rs 2 Lakh.

Some important points:
0. Any one can complain.
1. Even if there is no complaint, if the DySP believes an offence has been committed under the IT Act, he can initiate proceedings.
2. Any DySP or higher can inquire into the matter.
3. He can confiscate the computer/laptop.
4. He can arrest the person with out an arrest warrant from a magistrate.
5. Even if the offence is not actually committed, the DySP or any other officer of the Central Government or a State Government authorised by the Central Government in this behalf enter any public place ( that means a person in any public place with his laptop) and search and arrest without warrant any person found therein who is reasonably suspected of being about to commit any offence under this act( i.e. he has a material or photo in electronic form that fits the description of "yes" to questions 1,2 or 3 above in his lap top, he may be considered to be "about to commit" the offence of transmitting the above by email or other means. He need not record his reason in writing, he just has to suspect the probable commission of the offence in his mind ! The expression "public place" includes any public conveyance, any hotel, any shop or any other place intended for use by, or accessible to the public. (S70 IT Act 2000)
Even if the obscene picture is in encrypted form in your computer/laptop, under S 68 of IT Act 2000, the "Controller" can, if he records that it affects public order or for preventing incitement to the commission of any cognizable offence, for reasons to be recorded in writing, by order, direct any agency of the Government to intercept any information transmitted through any computer resource. The subscriber or any person incharge of the computer resource shall, when called upon by any agency which has been directed under sub-section (1) , extend all facilities and technical assistance to decrypt the information. The subscriber or any person who fails to assist the agency referred toabove shall be punished with an imprisonment for a term which may extend to seven years. (S 69 IT Act 2000)

Now, what if the offence of sending the jpg image was committed by an NRI living abroad? Vide S 75(2) of the Act, the Act shall apply to an offence or contravention committed outside India by any person if the act or conduct constituting the offence or contravention involves a computer, computer system or computer network located in India. An email received meets this criterion.

What if the Act of sending the image was committed by a foreign national? Vide S 75(1) of the Act, the provisions of this Act shall apply also to any offence or contravention committed outside India by any person irrespective of his nationality.

The fact that a warning "adults only" was inserted prominently in the subject line by the orignator again does not mitigate the offence. The law does not exempt consenting adults exchanging lascivious pictures.

The fact that an ISP like VSNL has delivered the mail with the jpg picture makes the Chairman & MD of the ISP liable to be arrested and proceeded against unless he can prove that he has taken due diligence to filter out such content. If CEO of bazee.com can be arrested for advertising the information of availability of a CD with lascivious content (mind you, not the content itself!) then every ISP that fails to filter out the contents of such pictures should be liable for arrest and criminal action. If ground realities are taken into account, and if every customer were to report such emails, no ISP Chairman/MD will ever find any time to do his work, but will be busy getting arrested and getting bailed out every day of the year!

Mr Ratan Tata, are you listening ?

One saving grace is that the Police may not be aware of its nuisance value as yet! Organisations have its own learning curve.