E-Health Laws And Regulations In India Are Needed For Digital India Project

Healthcare is a priority aspect for governments across the world. However, despite the urgency for an effective healthcare system, timely and cost effective healthcare services are not readily available. This is more so in developing nations where healthcare services are very poor and are available to selective few only.

There are many facets of technology driven healthcare industry in India. These include online pharmacies, telemedicine, e-health, m-health, etc. India is yet to start working on these aspects on the fronts of technology and legal frameworks. We have no dedicated online pharmacy, telemedicine, e-health, m-health, data protection (pdf), privacy and other related techno legal framework in India as on date.

However, some positive steps have been taken by successive governments in India. For instance, the Electronic Health Record (EHR) Standards of India have been prescribed and establishment of a National E-Health Authority (NeHA) of India has also been proposed. Further, if we remove the shortcomings of Digital India project then the same can be used for e-health purposes as well. Digital India is presently suffering from lack of cyber security and absence of civil liberties protection in India. Another limitation of Digital India that it inherited from its predecessor National e-Governance Plan (NeGP) is absence of mandatory e-delivery of services in India. As on date there is no mandatory obligation to provide e-delivery of services in India and this is sufficient to avoid the same.

It has been reported that the health ministry of India has worked out a detailed e-health project under digital India initiative of the government. The project would include hospital information system, electronic health record facilitated with health information exchange, online delivery of services, citizen portal, online monitoring systems for services and others. The health ministry is also developing a digital platform - Integrated Health Information Platform (IHIP) - to enable creation of inter-operable health record which can be made available and accessible nationwide.

Perry4Law Organisation (P4LO) welcomes this initiative of health ministry. However, we also strongly recommend that a techno legal regulatory framework must be urgently formulated by Indian government to manage the complicated issues of Indian cyberspace and Digital India. We also recommend that telemedicine and online pharmacy laws must be complied with by the businesses and entrepreneurs of India that are ignored presently. Similarly, legal issues of cloud computing in India must also be kept in mind by e-health service providers of India. We hope these issues would be considered by Indian government while formulating an e-health related law in India.

Telemedicine Laws In India Are Essential For Businesses Operating In The Digital India Era

Indian government has adopted the ambitious project named Digital India that is a turning point for technology driven services in India. Although the Digital India project needs to eliminate various shortcomings yet issues pertaining to cyber security, civil liberties and techno legal framework require special attention of Indian government.

Although there are no dedicated laws in India regarding telemedicine and its usage yet there are different set of laws that are applicable for different aspects of telemedicine. These include cyber law, privacy law, data protection law, data security law, etc. However, telemedicine stakeholders in India are not complying with the techno legal issues applicable in India and they can be prosecuted for violating these laws and cyber law due diligence (pdf) requirements of Indian laws.

There is no second opinion about the fact that when technology is used for medical purposes, it gives rise to medico legal and techno legal issues. Countries around the world have realised this fact and they have made suitable laws to tackle these medico legal and techno legal issues. For instance, in United States, the Health Insurance Portability and Accountability Act of 1996 (HIPAA), Health Information Technology for Economic and Clinical Health Act (HITECH Act), etc are some of the laws that take care of medico legal and techno legal issues of e-health and telemedicine. On the other hand, we have no dedicated telemedicine laws in India.

E-health laws and regulations in India are still missing and legal enablement of e-health in India is needed on an urgent basis. As on date e-health in India is facing legal roadblocks. Till now we do not have any dedicated e-health laws and regulations in India. Perry4Law Organisation (P4LO) firmly believes that dedicated telemedicine laws of India must be urgently formulated.

This is more so when there are many people and institutions in India that are using Internet in an illegal manner for selling medical products and services. Illegal and unregulated online sales of prescribed medicines in India are rampant and Indian government has still not regulated or controlled these online sales of medicines in India, especially in the NCR region.

Similarly, there are some medical professional and para medical professional who are using Internet for providing their services without following the applicable laws of India. There are also many online pharmacies in India that are violating Indian laws, especially the e-commerce laws and regulations of India.

It is high time for Indian government to regulated Internet related medical issues in India before they become a big nuisance and health hazard for Indian citizens and residents.

Censorship And Surveillance Under Digital India

Adoption of digital India project by Indian government has always been portrayed as a social and welfare oriented initiative. Digital India is treading exactly on similar lines as Aadhaar has worked so far. As Aadhaar has increasingly been tied up by Indian government with digital India, there is no escape from the conclusion that the combination of Aadhaar and digital India is a digital panopticon.

Further, it is also obvious that surveillance and censorship under digital India and Aadhaar regimes are omnipresent. The blog title Internet, Mobile And Social Media Censorship In India By Twitter, Facebook, Google, Etc has been cataloging the censorship and surveillance activities of Indian government and technology companies like Google, Microsoft, Facebook, Twitter, etc for long. A dedicated page titled censorship and surveillance under digital India has also been opened to report about surveillance and censorship activities of Indian government. Censorship and surveillance under Aadhaar project has also been covered by us.

Anyone who is active on social media websites like Twitter, Facebook, etc is well aware that critical tweets and sharing are oftenly censored in India. Twitter is on the forefront of this exercise where Aadhaar and digital India related critical tweets are censored in real time.

As far as e-surveillance is concerned, Indian government is infamous for its blatant e-surveillance with no regard to the constitutional norms. Aadhaar is the final nail in the coffin of civil liberties that are openly violated by Indian government. Civil liberties protection in cyberspace is absent in India. There is no e-surveillance policy of India (pdf) that can govern the illegal and unconstitutional e-surveillance and phone tapping activities of Indian government and its agencies.

Worst part of this situation is that parliamentary oversight of intelligence agencies of India is still missing till date. To give overreaching and illegal e-surveillance and phone tapping powers in the hands of such intelligence agencies is a death knell of civil liberties. India “must reconcile” the civil liberties and national security requirements but the same is presently missing. Clearly India has become a police state with unaccountable Orwellian powers.

Proposed National Telecom Security Policy Of India 2014 Must Be Balanced And Constitutional

The Telecom Security Policy of India 2014 was originally discussed by the Congress led Government. However, the Congress Government faced a defeat in the elections and now it is for the Narendra Modi led BJP Government to come out with a Telecom Security Policy for India. The Telecom Security Policy declared by Congress was defective on numerous counts and now we have to see what BJP led Government would do in this regard.

If we consider the media reports, the Central Government has proposed a new Telecom Security Policy of India. It has made few changes to the Policy declared by Congress Government. The National Telecom Security Policy is unlikely to include measures on standards that would protect public health and safety. The Government authorities have deleted the portion that emphasised rules regarding “public health and safety” in the revised draft of the Telecom Security Policy. The issue of radiations from mobile towers in India is a controversial one and the proposed Policy seems to be ignoring that aspect.

The proposed Policy has made it sure that Law Enforcement Agencies of India would be allowed to request interceptions and e-surveillance activities. Of course, in order to exercise this power, there is a dire need to modernise the Police force of India. Similarly, a lawful and constitutional interception law in India is also needed to make such requests immune from legal attacks. With the proposal to allow satellite based mobile services in India, a “Techno Legal Framework” must be formulated by the Government as soon as possible. Such a Legal Framework must be “Constitutionally Sound” and not just a collection of “Legal Jargon” as was done during the Congress Government time.

Recently Vodafone declared that Indian Government has been using Secret Wires to indulge in e-surveillance. This approach of Indian Government is definitely violation of Fundamental Rights of Indian Citizens. Realising the gravity of the situation, the Department of Telecommunication (DOT) has been ordered to investigate the issue. However, the stand of Narendra Modi Government regarding e-surveillance projects like Central Monitoring System (CMS) Project of India and Internet Spy System Network and Traffic Analysis System (NETRA) of India is still not clear. This would create troubles for the Government as well as for the Telecom Security Policy in the near future.

For instance, the draft Telecom Security Policy prescribes that cellular operator will mandatorily have to allow Law Enforcing Agencies to intercept calls, messages, and any other communications and the access to monitor it in real time, while keeping the communications secured. However, there is no Constitutional Lawful Interception Law in India as on date and this requirement would be a violation of Fundamental Rights of Indian Citizens.

The revised draft Policy also states that telecom service providers should endure that user data is not revealed or duplicated or copied or shared with recipients other than those designated by the sender, and should ensure that user data is not being routed outside the infrastructure within India when the end points of communication are inside Indian territory. This requirement would strengthen the Privacy Rights in India of the Indian Citizens. Privacy Rights in India in the Information Era require a totally different strategy and this provision would strengthen the same. This provision is also required to comply with the provisions of the Public Records Act, 1993.

Telcos will also be required to ensure authentication of end user, authorised access to services and attribution of activities and payloads to end users. However, this is not an easy task especially when Authorship Attribution in Transborder Cyber Crimes cases is very difficult to maintain. India is not very good at use of Cyber Forensics Practices. There is an urgent need to develop Cyber Forensics Investigation Solutions in India that are missing as on date. Indian law Enforcement Agencies must also understand that an IP Address should not be the Sole Criteria for Arrest and Conviction in India. The Cyber Forensics Trends and Developments in India (PDF) do not support the type of responsibilities attributed to Law Enforcement Agencies by the propose Telecom Security Policy. Even Regulations and Guidelines for Effective Investigation of Cyber Crimes in India are missing.

The proposed policy also directs that the attribution in the form audit, forensic and tracking mechanisms should ensure tracking of inappropriate use, criminal activities and enforcement of IT and cyber security laws of the Government. Earlier, the Government had differences with Blackberry over the encrypted message and email services the firm provides to customers. Fearing that such encrypted services can be used to plan and execute terrorist strikes, India had also threatened to ban the providers of such services if they failed to accommodate the legitimate demands of Law Enforcement Agencies.

It has been claimed that Silent Circle can provide safe, secure and encrypted electronic and wireless communications to its clients and Law Enforcement agencies may find it difficult to crack its encryption. However, we cannot effectively tackle encryption related issues till we have Encryption Policy of India (PDF) in place that must be based upon a dedicated Encryption Law of India. We also need dedicated Cyber Security Laws in India to manage cyber security relate issues. The Cyber Security Trends in India (PDF) have proved that India has a Poor Cyber Security Infrastructure. Intelligence Agencies Reforms in India must also be undertaken as soon as possible.

The proposed Telecom Security Policy of India must address all these issues in order to be “Balanced and Constitutional”. However, from media reports it is not clear whether the proposed Policy covers all these issues or not.

Illegal International Racket Using Unauthorised Gateways To Divert The VOIP Calls Landing In India Busted

Telecom related issues faced many challenges in the past. However, the regulatory environment for telecom sector of India is fast changing now.  Telecom security policy of India is also in pipeline that may streamline many telecom related issues in India.  The Telecom Commission has also approved satellite based mobile services in India. Satellite phones may also be allowed to be used by adventure tourists where no telecommunication connectivity is available in India.

Few areas in the field of telecom sector are still problematic in nature. For instance, Voice over Internet Protocol (VOIP) has always been a problematic aspect in India. Intelligence agencies of India have been insisting that Internet Telephony and VOIP service providers must establish servers in India. Further, Intelligence Bureau (IB) of India is also expediting the testing of VOIP interception system in India.

Meanwhile, crackdowns on illegal VOIP activities continue in India. In one such latest crackdown, the cyber crime wing of Cyberabad police arrested six persons on the charge of running an illegal international racket by setting up unauthorised gateways to divert the VOIP calls landing in India. The accused were using illegal VOIP gateways and diverted the international calls originating from cheap network providers in Pakistan, Middle East, US and UK.

According to the Police, those who receive such calls will have to pay lesser charges as against what the actual provider charges and will also not come under the government scanner.

The international VOIP grey traffic is purchased as per the daily prevailing rates from international carriers. The modus operandi used by illegal grey operators includes arranging international traffic from various VoIP operators across the globe and terminating it on their own illegal VoIP gateways using broadband connections. This traffic is then distributed to the domestic destination numbers using GSM SIMs, CDMA RUIMs and Public Switched Telephone Network (PSTN) connections.

Telecom Trends In India 2014

Perry4Law Organisation (P4LO) is on the forefront of providing various techno legal trends of India since 2006. The latest to add to this list are Cyber Security Trends and Developments in India 2014 and Telecom Related Trends and Development in India 2014. The cyber security trends of India 2014 have also been covered here1 and here2.

In this work, Perry4Law’s Techno Legal Base (PTLB) is providing the summary of the telecom trends of India 2014. The telecom trend of India in the year 2014 witnessed a combination of progressive and regressive steps being taken by Indian Government.

On the progressive side the Telecom Commission of India has allowed satellite based mobile services in India in the year 2014. On the regressive side, the Indian Government has failed to protect civil liberties in cyberspace once again. In fact, telecom operator Vodafone revealed use of secret wires for government e-surveillance and eavesdropping worldwide, including in India.

Indian Department of Telecommunications (DoT) promised to investigate govt snooping allegations of Vodafone but it failed to do so till the end of December 2014. The dangerous central monitoring system (CMS) of India was also activated without any legal framework and Parliamentary oversight.

Similarly, the redundant and outdated telecom related laws remained on the statue book in the year2014. For instance, the telegraph and cyber law of India remained outdated, colonial and draconian in the year 2014. Similarly, encryption related dedicated laws in India are also missing till the end of December 2014.

Further, new lawmaking was also missing in the year 2014. For instance, there is no dedicated laws regarding cell phones and their dealings in India and the same continued till the end of December 2014 as well. In particular, the cell site data location laws in India and privacy issues are still not redressed by Indian Government so far.

India is also one of the countries where phone tapping is possible without any court order/warrant. This is a serious civil liberty violation that continued in the year 2014. A lawful and constitutional interception law in India is urgently needed. Privacy rights in India in the information era (PDF) have still not been recognised by Indian Government.

Overall, the telecom trends of India in the year 2014 were far from satisfactory. Rather they were on the negative side of development that must be taken care of by Indian Government in the year 2015.

Online Petition And Survey By CCICI Regarding Cyber Law Due Diligence In India

Interpretation and analysis of the judgment of Supreme Court of India in Shreya Singhal v. Union of India (24^th March 2015), Writ Petition (Criminal) No.167 Of 2012 (PDF) has already been started by various cyber law stakeholders of India. Most of them have based their observations upon Section 66A alone leaving aside other sections like Section 69A and Section 79 of the Information Technology Act, 2000.

However, it seems while doing justice to freedom of speech and expression in India, the Supreme Court has erred in reading down Section 79 and Rule 3 of Information Technology (Intermediaries Guidelines) Rules, 2011 (PDF) that pertains to Internet Intermediary liability and observance of cyber law due diligence (PDF) by them. In fact, it has been claimed that Supreme Court has killed cyber law due diligence in India to a great extent.

Cyber Crimes Investigation Centre of India (CCICI), the premier cyber crime investigation centre of Perry4Law Organisation (P4LO), has been covering these issues from the very beginning. Now CCICI has taken this interpretation and effort to another level by starting an online petition and survey titled “Do We Need a Stronger Cyber Law Due Diligence in India?”

Unfortunately, most of the interpretations and observations regarding the judgment of Supreme Court were directed towards Section 66A alone and the issue of cyber law due diligence was totally ignored. This has serious ramifications for all cyber victims whose locus standi has been taken away by the Supreme Court to approach the Intermediary.

It is of utmost importance that this issue must be discussed in great detail and then taken up before the Supreme Court through a review petition. Similarly, the collective inputs can also be shared with Indian government and Parliament so that they can come up with a more potent and effective cyber law due diligence requirement in India.

If you are a cyber victim or you know a person who has been a cyber victim, please share your views through this petition and survey. Your views would shape the cyber law of India and make it more meaningful. If you have ever suffered from harassment over e-mail, SMS, chatting, Social media, etc or you know a person who has been so harassed, then please share your views at the petition/survey page. Collectively let us make a responsible cyber society and culture in India.