I must admit here my excitement about Quantum Computing and discussing the impact of a principle of Physics for Cyber Law development, since I left my formal college education as a student of Physics, when the Quantum Mechanics was at its infancy and it is a feeling like being “Back to the Past” .
Though I had my post graduation in Nuclear Physics and studied Particle Physics to some depth, specialized in subjects such as Nuclear Forces etc., the subject of Quantum Physics was still new and not understood properly at that time. I had even baffled everybody including myself in an interview at Physical Research Laboratory (PRL) in Ahmedabad when I solved a quantum physics question in real time put to me by the interviewers who were interviewing me for the post of a “Scientific Assistant” which most other interviewees had failed to do.
Though I refused the offering despite repeated requests to join and turned my back to the pure science, I never imagined that after 40 years I will return to study the impact of Quantum Mechanics to the present domain of my specialization which happens to be the Techno Legal aspects of Law.
But it appears that Cyber Law in India and elsewhere will be deeply impacted with emerging technologies of which Quantum Computing is one which will over turn many of the present concepts of law.
Hence study of “Cyber Laws in the Emerging Technology Scenario” will be the new focus which we should term the “Quantum Cyber Law Specialization” or “Futuristic Techno Legal Specialization”.
Today I have taken one topic for discussion which is the interpretation of Section 65B of Indian Evidence Act (IEA) and to examine if Naavi’s Interpretation of Sec 65B survive the Super positioning concept of Quantum Computing.
The legal and Judicial community has struggled to interpret the section even after 18 years of its existence and it would be a further challenge to interpret Sec 65B in the emerging quantum computing age. For a large part of these 18 years since Section 65B (IEA) came into existence, few recognized its existence and hence there was nt much of a debate on the topic. It is only in the recent past that the community has started discussing the issue many times with a wrong perspective.
During most part of this time, Naavi’s interpretation of Section 65B was not seriously challenged. In the recent days there are a few law professionals who would like to interpret things differently. They may draw support from some Judges who are dishing out judgements without fully understanding the impact of their wrong decisions on the society. This tendency comes from the inability of some to un learn what they have learnt for the last 3 or 4 decades of their legal career. They are therefore uncomfortable with what the Supreme Court stated unambiguously in the Basheer Judgement and want to interpret things in their own way.
Naavi has been saying, wait… it took 14 years for Supreme Court to realize the existence of Sec 65B and it may take a few more years for the entire community to come to the same understanding which Naavi has been advocating since 2000.
In this connection, I have tried to give a thought to what will happen to my interpretations of Section 65B when Quantum Computing comes into play.
Quantum Computing is not an easy concept to understand even by specialists in Physics. Hence for the lawyers and judges to understand Quantum Computing would be understandably challenging. It is possible that I also may have to refine some of my own interpretations presented here and I reserve my right to do so. I will however explore all the Cyber Law challenges presented by the Quantum Computing. For the time being, I am only looking at the concept of “Super Positioning” and its impact on Section 65B interpretation.
What is Super Positioning
Super Positioning is a concept in Quantum Computing. In the classical computing scenario, a Bit can have a value of either 0 or 1. The Quantum Bit or Qubit can however have a value of 0 and 1 at the same time. When you measure the value, it will show either 0 or 1 but when you are not measuring it can hold two values simultaneously.
This “Dual State capability” of a Qubit may be fascinating for the scientist who swears by the concepts such as Heisenberg’s principle of uncertainty, multiple quantum energy levels of the electron in a hydrogen atom, quantum energy state of the nucleus of a Phosphorous atom, the direction of spinning of a sub atomic particle, light being both a wave and a particle at the same time, there being a parallel universe, time being a new dimension, Worm-hole being a tunnel to future, etc.,.
But to a judge who is looking for “Evidence beyond reasonable doubt” and for the criminal justice system where a witness is expected to answer only in the binary- “Yes” or “No”, the uncertainty inherent in the Quantum Computing will be a huge challenge.
In fact, at present we can state without battling an eyelid that if I stand on the witness box and start talking of the “Super Positioning” and more specifically on the “Entanglement” aspects of Quantum Computing and how it requires a re-interpretation of Section 65B, I will be thrown out of the Court as some body who has lost his mind.
Since no body can throw me out of this blog, let me take the courage to proceed further and try to raise some issues which may be academic discussion points as of now but will be important for the Cyber Lawyers of the future.
But in the days to come, Cyber Law will be revised to accommodate the “Uncertainty Principle of an Electronic Document”. The time to recognize this concept has already come in respect of Section 65B.
Current Dilemma in Section 65B Yet to be resolved
From the years since ITA 2000 came into being and until the Supreme Court judgement in the P.K.Basheer case on 18th September 2014, there was little discussion on Section 65B of Indian Evidence Act (IEA) in the higher echelons of the Indian judiciary.
The decision of the Chennai AMM Court accepting the first Section 65B certificate issued by Naavi and convicting the accused in the historic Suhas Katti case (Refer here), was perhaps too insignificant in the eyes of the many senior advocates to take note of and hence was not noticed.
Since there were no debates in the august Supreme Court about Section 65B, “Eminent Advocates” who had gained their eminence through their expertise and years of work in “Non cyber law” domains such as Constitutional Law or Law of Evidence did not take time off to discuss the implications of Section 65B in right earnest. One opportunity that was presented in the case of Afsan Guru case in 2005 was lost because the case was a high profile case of terrorist attack against the Nation in which technical issues could not be given too much of importance. Hence when Mr Prashant Bhushan raised the technical issue of non availability of Section 65B certificate for some of the evidence, Court considered the other evidence before it and proceeded with the case.
This was interpreted as a rejection of “Mandatory requirement of Section 65B certificate” under Section 65B and became a precedent that prevailed until the Supreme Court over turned it in the P.K.Basheer case.
However, Naavi continued to hold his forte and did not accept the Afsan Guru judgement in respect of mandatory requirement of Section 65B certificate for electronic evidence admissibility as correct.
We have discussed several the issues arising out of P.K.Basheer judgement both in naavi.org and ceac.in and readers may refer to them for more clarity.
We have held that the P.K.Basheer judgement has provided judicial support to most of the views of Naavi regarding Section 65B. There was only one aspect of the judgement where we have pointed out that a clarity remained to be exercised. It was in the view expressed in the judgement as follows:
“The situation would have been different had the appellant adduced primary evidence, by making available in evidence, the CDs used for announcement and songs. Had those CDs used for objectionable songs or announcements been duly got seized through the police or Election Commission and had the same been used as primary evidence, the High Court could have played the same in court to see whether the allegations were true. That is not the situation in this case. The speeches, songs and announcements were recorded using other instruments and by feeding them into a computer, CDs were made therefrom which were produced in court, without due certification.”
Naavi has consistently held that “Electronic Record” is a third type of evidentiary object that is different from “Oral” and “Documentary” as provided in Section 17 of IEA and should be considered as a special category whose admissibility is under the provisions of Section 65B alone.
While interpreting Section 65B, some of the “Eminent Non Cyber Law Jurists” have still not reconciled to the unlearning of the concept of “Primary Evidence” and “Secondary Evidence” where “Primary Evidence” lies inside a CD or a hard disk and “Secondary evidence” is a copy that is produced since primary evidence cannot be produced in the court.
In the electronic document scenario, the original document is a “Binary Expression”. The binary expression which we call as an “Electronic Document” is a sequence of bits which is present either in the form of magnetic states of a unit of a magnetic surface or as the depressions on a CD surface which reflect light in a manner different from its neighboring unit. The stream of such bits when read by a reading device associated with a software running on a hardware interprets the sequence of binary expressions as a “Text”, “Audio” or “Video” which we, the humans call as “Electronic Documents” and debate if it is “Primary Evidence” or “Secondary Evidence”.
The “Original Electronic Document” is an expression that can only refer to the first creation of a given sequence of bits which constitute an electronic document being interpreted as evidence. For example when a digital camera captures a picture, it first creates a sequence of bits in the RAM space. This is however not a recognized electronic document where it is in a state not “meant to be accessible so as to be usable for a subsequent reference”. (Sec 4 of ITA 2008).
When this sequence of bits gets transferred to a “Stored Memory” in a device such as a “memory card” or a “hard disk” etc., that represents the first instance of the electronic document that came into existence. Before this, the magnetic/optical surface on which the document is recorded was in a “Zero State”. Every bit on the surface was designated “Zero”. When the electronic document is being etched on the surface some of these “Zero” s were converted into “Ones” and the “Unique sequence created” was subject to a “Protocol”. This sequence of bits stored subject to a “Protocol” is what we call as “Original Document”.
But this “Original Document” has no meaning without being read in devices which understand the protocol and renders the information in a human understandable form. For example, if the image has been captured in a .txt or .doc or .mp3 or .avi or .mp4 or formats, then the electronic document has a sequence of zeros and ones which conform to the respective protocols. It is not possible to separate the protocol information from the electronic document itself and hence the document remains in a given format along with the protocol information.
When a reading device is presented with the electric/electronic impulses generated by such a sequence of bits, if the device is capable of interpreting the protocol, it will convert it into a humanly experience document which we may call as Text, Audio or Video which a judge can view and take action. If the device is not capable of understanding the protocol, the document would be rendered in an un-intelligible form. If it is a text, it will appear as gibberish, if it is an audio we may here a meaningless echo sound, if it is a video we may see only lines on the screen. If a sequence of bits need to be experienced by a human being, we must use a device which understands the protocol and converts the bits in a specific manner into an humanly readable/hearable/viewable form on a computer screen or a speaker.
So, even if in the Basheer case the original CD had been produced or in the case of Suhas Katti, the hard disk with yahoo.inc had been produced or in other cases, the memory card of a video camera is produced as “Original Evidence”, the judge can view it only if he uses a device which is configured to the protocol to which the sequence of bits corresponds. If the judge takes a view of the document as he is seeing on a computer, he is responsible for the protocols that have been used in rendering the sequence of bits to a humanly understandable document.
In a comparable environment, if a “Forged” signature is being questioned before a Court, the judge can himself view the signature and form his own opinion on whether the signature is forged or not. But prudence requires that the Court will ask another expert to give it a certificate whether it is forged or not so that the Judge does not become the witness and will only try to interpret the evidence with reference to the law.
The same principle applies to electronic documents viewed by a Judge without insisting on a Section 65B certificate from another.
This aspect was recognized by the magistrate Thiru Arul Raj of the Chennai AMM court in the Trisha defamation case referred to by me in my article on “Arul Raj, the Unsung Hero” (Refer here) in which the principle was laid down that even when the so called “Original” electronic document is before the Court, it has to be Section 65B certified by a third party.
In this background we can now appreciate why the Section 65B certificate requires that it has to be produced in the manner in which it is required to be produced namely
“identifying the electronic Documents rendered in the computer output”,
“Indicating the process by which the computer output was produced”,
“Providing certain warranties on the production of the Computer output” and
then considering the “Computer Output” as “Admissible Evidence” without the need for producing the original.
In this process the Certifier is stating that when he followed a certain protocol which is indicated in the certificate, he was able to view the electronic document in the form in which it has been presented in the computer output and he is responsible for the faithful reproduction of what he himself saw or heard into the format in which he has rendered the computer output.
I wish all eminent jurists including the Judges of Supreme Court go through the above multiple number of times to appreciate why I have been stating that Section 65B certificate can be produced by any third party (subject to a level of credibility) who has viewed the document and not necessarily the administrator of the device (as wrongly indicated in the SLP order in the case of Shafhi Mohammad).
This also underscores my view that in the case of electronic document, we always deal with the “Secondary Document” which is a rendition of the original etching of the binary sequence and humans are incapable of viewing the “Original” which is a binary expression mixed up with the viewing protocol. We should stop comparing the “Computer Output” under Section 65B with a photocopy of a paper document and talk as if both are same.
Quantum Computing Era
Now, let us turn our attention to the main object of starting this post which was to look at Section 65B in the context of the emerging technologies such as “Quantum Computing”.
The legal professionals may find the earlier paragraphs hard enough to digest and may not have the stomach to start debating what would be Section 65B interpretation in the Quantum Computing era. May be this is too early to discuss the Cyber Law requirements for the emerging technologies since even scientists have tried to start understanding Quantum Computing only now.
But a “Futuristic Cyber Law Specialist” (whom we may also call “Quantum Cyber Law Specialist” or a “Futuristic Techno Legal Specialist”), needs to tread a path which no body else has tread and therefore we shall continue our exploration.
We must realize that Quantum Computers are expected to work along with Classical computers and hence the current concepts of data storage in bits with “0 or 1” state may not vanish with the advent of Qubits with “0 and 1”. But data may be processed in an “Artificial Intelligence Environment” using “Quantum Computing” and presented in a classical computing environment.
In view of the above, Quantum computing will be part of the process but the human interaction with the electronic document which will be certified as a computer output in a Section 65B certificate would be in a classical computer.
Additionally, “Quantum Computing” may sit in between two classical computing scenarios. For example, data may be captured by a classical computing system and become part of the “Big Data” which is processed by a Quantum Computing system and results rendered back in Classical computing environment.
Though the journey of the “Electronic Evidence” from birth as the “Original binary impressions on the first classical computing device passes through the “Worm-hole like” quantum computing environment, it comes back into the Classical computing environment when the Sec 65B certifier views it and converts it into a Computer output.
I therefore consider that Section 65B certification interpretation of Naavi will survive the Quantum Computing age. Lawyers may however raise certain forensic doubts regarding the reliability of an electronic document certified under the Section 65B and Forensic witnesses under Section 79A may need to answer them to the satisfaction of the Court.
However Section 65B certification being a matter of fact certification of what is viewed as a Computer output in the classical computer of the observer will not be vitiated by the complexities of the processes that go behind the scene.
Courts should understand that they are not entitled to confront the Section 65B certifier to a cross examination on the reliability of the back end processing systems as long as they are the standards the industry of computing adopts as technology.
I look forward to views from both my legal and technology friends regarding the above.