Crime Branch Advisory
The Nigerian Scam
Offensive SMS can lead to 2 years
14 February 2007
With mobile phones virtually taking
over the role of a personal computer, the proposed amendments to
the Information Technology Act, 2006, have made it clear that transmission
of any text, audio or video that is offensive or has a menacing
character can land a cellphone user in jail for two years. The punishment
will also be attracted if the content is false and has been transmitted
for the purpose of causing annoyance, inconvenience, danger or insult.
And if the cellphone is used to cheat
someone through personation, the miscreant can be punished with
an imprisonment for five years.
The need to define communication
device under the proposed amendments became imperative as the current
law is quiet on what kind of devices can be included under this
category. The amended IT Act has clarified that a cellphone or a
personal digital assistance can be termed as a communication device
and action can be initiated accordingly. Accentuated by various
scandals that hit the country during the past two years, including
the arrest of the CEO of a well-known portal, the government has
also introduced new cyber crimes under the proposed law. The amended
Act, which was placed before the Lok Sabha during the recently concluded
winter session, has excluded the liability of a network service
provider with regard to a third party’s action. However, it
has made cyber stalking, cyber defamation and cyber nuisance an
offence. Anybody found indulging in all these offences can be imprisoned
for two years.
The proposed changes have also sought
amendments in the form of insertions in the Indian Penal Code, thereby
declaring identity theft an offence. If a person cheats by using
electronic signature, password or any other unique identification
feature of any other person, he shall be punished with imprisonment
for two years and also liable to fine.
Asking for an insertion in the Indian
Penal Code as Section 502A of the law, the proposed amendments have
said that whoever intentionally or knowingly captures, publishes
or transmits the image of a private area of any person without his
or her consent, shall be punished with two years of imprisonment
and fine of Rs 2 lakh. The private parts can be either naked or
undergarment clad public areas.
Making the law more technologically
neutral, the amended provisions have included authentication of
electronic record by any electronic technique. At the moment, electronic
records can be authenticated by just digital signatures, the public
key infrastructure technology (PKI).
With the new provisions, however,
biometric factors like thumb impression or retina of an eye shall
be included as techniques for authentication.
Even as the law makers have tried
to cover up for the lapses of the current IT Act, they seem to have
made it liberal by way of reducing the punishment from three years
to two years. With these changes, a cyber criminal will now be entitled
to bail as a matter of right, as and when he gets arrested.