The State’s access to data and internet intermediary response – an assessment of India’s attempt to reallocate the legal framework to ensure national security

Abstract

ABSTRACT Safeguarding national security requires ensuring cyber security of a nation. While India has a wider law framework to ensure national security as against wrongs committed in real world, it is yet to match this framework to suit to the regulatory framework essential to address concerns raised due to the abuse of cyber technology. Though Indian laws including substantive legal provisions empowers the State to regulate acts affecting national as well as cyber security, its procedural rules suffers from being outdated and thereby irrelevant in addressing the concerns specific to cyber space. Ensuring national security requires access to data, both personal as well as non-personal data. While recent legal developments have been focusing on extending wider protection to privacy including data privacy, the State agencies strive to access data, which at times are crucial to the enforcement of laws in general and to ensure national security in specific. Jurisdictional issues further complicates the matter. As a result, the law enforcement agencies expect proactive coordination from internet intermediary in facilitating access to data, e-surveillance, decryption, internet traffic data monitoring, etc. Intermediaries on the other hand are also legally mandated to ensure data privacy, freedom of speech and other rights of internet users. This often has led to the conflicting concerns requiring new legal response. This paper will overview the existing laws as well as assess the changes Indian law is currently undergoing in these regard.