Legality Of New Cybersecurity Directive

New Cyber Security Rules

The Indian Computer Emergency Response committee recently issued new guidelines trying to combat cyber security incidents, with 6,07,220 incidents being reported in the first half of 2021. The directions prescribe mandatory data collection, retention and integration by data centers, virtual private network providers, cloud services providers and others. However, directions for the registration of data centers, virtual private server providers, and virtual private network providers and retention of metadata by them has raised privacy concerns, primarily that the purpose of such services would be defeated by the collection and storage of data by them. Additionally, the industry has voiced concerns over the reporting requirements, stating that it hampers the ease of doing business.

The new cyber security rules will require cloud service providers and VPN operators to maintain names of their customers and their IP addresses and suggested firms unwilling to comply to pull out of the world’s second largest internet market. The Indian Computer Emergency Response Team has stated that “virtual private server (VPS) providers, cloud service providers, VPN service providers, virtual asset service providers, virtual asset exchange providers, custodian wallet providers and government organizations have to store customer’s names, email addresses, IP addresses, know your customers records and financial transactions for a period of five years. The new rules will not be applicable to corporate and enterprise VPNs.

The Ministry of Electronics and Information Technology’s move to release a revised draft comes after its precursor, the Draft India Data Accessibility and Use Policy, which permitted the licensing and sale of public data by the Government to the private sector, faced strong criticism. The Data Governance Framework would enable the government to create a data repository of anonymised non-personal data which would bolster the Digital India initiative, and also support research and startup ecosystems in India. The Framework also has a provision for private entities to volunteer their datasets to be added to the data repository. The Framework also calls for the creation of an Indian Data Management Office to oversee the implementation and review of the NDGFP.

VPNs are only “virtually” private, however, because this data actually travels over shared public networks instead of fully dedicated private connections. The main benefit of a VPN is the potential for significant cost savings compared to traditional leased lines or dial up networking. These savings come with a certain amount of risk, however, particularly when using the public Internet as the delivery mechanism for VPN data. The performance of a VPN will be more unpredictable and generally slower than dedicated lines due to public Net traffic. Utilizing any public network for communications naturally raises new security concerns not present when using more controlled environments like point-to-point leased lines. VPNs may save money in several different ways. Companies that lease private lines typically pay a very high monthly fee, and a VPN can replace these lines with much less expensive, shorter connections to a local ISP.  VPNs can also support remote access connectivity for travelers. Instead of configuring remote access servers and paying for the long-distance charges to reach them, an organization can rely on an ISP to support local access on both ends of the VPN connection.

Implications

With the new rules, VPN companies will be forced to switch to storage servers, which will inflate their costs and eliminate their core function user privacy. Failure to follow the rules will attract penalties for VPN providers. If they all refuse to comply, VPN will soon become illegal in India. Due to the introduction this new rule, several VPN service provides across India are withdrawing their services and have stopped. Downloading and selling copyrighted information, hacking into computers or networks without the authorization and cyber stalking are serious criminal offences under the IT ACT 2000. The person committing such an act shall be punished as per the laws of the lands. CERT-In is empowered under section 70B (6) of the IT Act, 2000 to give directions to service providers, intermediaries, data centers, body corporate, and any other person for carrying out the following functions listed in section 70B (4):

  • Collection, analysis, and dissemination of information on cyber incidents
  • Forecast and alerts of cyber security incidents
  • Emergency measures for handling cyber security incidents
  • Coordination of cyber incidents response activities
  • Issue guidelines, advisories, vulnerability notes, and whitepapers relating to information security practices, procedures, prevention, response, and reporting of cyber incidents
  • Such other functions relating to cyber security as may be prescribed

No doubt Right to privacy is not an absolute right but it comes with reasonable restrictions. However with respect to this novel development it cannot be taken into the ambit of reasonable restriction of the fundamental right. Violation of the right to privacy and right to freedom of speech and expression, are some of the legal grounds which can be brought before the court.

Author: Vaishnavi Naik – a student of Ramaiah College of Law, Bangalore, in case of any queries please contact/write back to us via email chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

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