In this guest post, Praveen Dalal, managing partner of Perry4Law and CEO of PTLB, is sharing his opinion about the desirability of using IP address alone as a criteria for arrest and conviction of an accused.
The Indian Approach to Cyber Forensics has not been very encouraging. Despite many claims and promises, Cyber Forensics in India has still not evolved properly. There are very few Law Enforcement Personnel who are aware of Cyber Law and even fewer are those who know about Cyber Forensics.
The Cyber Forensics Capabilities of India are still evolving. Stakeholders like Police, Lawyers, Judges, etc are still not comfortable with Cyber Forensics. In the absence of even basic level Cyber Forensics adoption in India, Cyber Forensics Best Practices have also not evolved in India.
This absence of “Best Practices” and “Cyber Forensics Methodology” in India has resulted in “Improper Use” of Cyber Forensics for Legal, Judicial and Law Enforcement purposes. Even Internet Protocol (IP) Address Tracking in India has become a mammoth task for Law Enforcement in India.
Tracking of an IP Addresses is the “First Step” in the Cyber Forensics Investigations. However, IP Tracking must be done with great caution and with good application of mind. A casual IP tracking exercise may not only provide wrong results but can also implicate an innocent person.
Take the example of Lakshmana Kailash K who was kept in the Indian Jail for 50 days because the Internet Service Provider (ISP) made an “Apparent but very Common Mistake” while providing details of the person who used the IP Address that resulted in the Commission of the Offense. This is the “Casual Approach” that I have discussed earlier and that should be avoided in all cases. Since there were no “Best Practices” adopted by either the ISP or the Police, this result in the imprisonment of an innocent Citizen of India.
Lakshmana was released after spending 50 days in jail, three weeks after the Police claimed to have nabbed the “Real Culprits”. There is no doubt that this is a clear example of violation of his Fundamental Rights in general and Human Rights in Cyberspace in particular.
Criticising the Police Investigation Methodology and the ISP’s “Misleading Information” that led to his imprisonment, the State Human Rights Commission ordered the ISP to pay Rs 2 lakh to Lakshmana as Damages. However, this Damage is “Too Less and Too Late” and this amount cannot offset the ordeal that Lakshmana faced. Now the Information Technology Act, 2000 (IT Act 2000) carries Provisions that can allow the “Victim” to claim “Damages and Compensation” to the tunes of Crores of Indian Rupees.
In this background, I am of the Opinion that an IP Address should NOT be the “Sole Criteria” for Arrest and Conviction of an accused. An IP address is the “Starting Point” and is at most a “Corroboratory Evidence” but it can never be the “Primary Evidence” on the basis of which a Person can be Arrested and Convicted.
It is the “Forensically Sound Image” of the Hard Disk (Preferably Bit by Bit Image), IP Address Details, Browser and Internet Logs, ISPs Logs pertaining to particular Cyber Activity, MAC Address of the Computer, etc that are “Collectively Relevant and Conclusive” while establishing the “Guilt” of an accused. Further, the guilt of an accused must be “Proved Beyond Reasonable Doubt” and Arresting and Convicting an accused on the basis of IP Address alone is not even close to “Proving” the guilt, forget about Beyond Reasonable Doubt.
It would be a “Dangerous Trend” to follow to Arrest or Detain suspects on the basis of mere “IP Addresses” or “E-Mail Addresses” as they are very easy to be “Spoofed and Forged”. Even MAC Addresses can be spoofed in certain circumstances and for many purposes, particularly for Identity Theft cases in wireless connections.
It is important to apply “Common Sense” and first ascertain the “Identity of Real Culprit”. Of course, it requires tremendous Cyber Forensics Expertise to correctly trace the offender. The case of wrongfully arresting Lakshmana and imprisoning him for a considerable time is a glaring example of faulty and novice Cyber Forensics application in India. The inability of the Government of India to meet these conspicuous deficiencies of the Legal Enablement of ICT Systems in India is stifling the growth Cyber Law and Cyber Forensics in India.
Interestingly, the popular concepts of Indian Criminal Justice System like Establishment of Guilt “Beyond Reasonable Doubt”, “Right to Fair Trial”, Right to Legal Representation, Protection of Privacy Rights etc are simply treated as non-existent in cases of Cyber Crimes and Terrorism related cases.
The requirements of Search and Seizure Warrants for Computers and allied Hardware, Individuals and Places must be as per the Constitutional and Statutory requirements. The lack of Cyber Forensics Expertise in India is resulting in violation of these Constitutional and Statutory provisions. It is high time for Indian Government to give these aspects a “Serious Consideration”.
Source: Cyber Forensics In India