Cyber Evidence Archival Center

When the media cried out “Courts can rely on electronic records without certificate: SC”., based on the order of a two member bench of the Supreme Court, Naavi.org clearly stated that the order was incorrect and required to be corrected. ( Refer here)

This order was issued on January 30, 2018 and in a way negated an order of a larger bench in the case of PV Anvar Vs P.K Basheer.

Naavi.org has advanced its reasons why this order was both incorrect and also dangerous since it sought to remove an important safeguard provided in law for preventing false electronic evidence to be produced in litigation.

It is now good to know that the matter has been referred to a higher bench in the Civil Appeal nos 2407 of 2018 and 3696 of 2018 for clarification.

We presume that the decision in the P V Anvar case will be reiterated by the larger bench.

Refer:

SC order of 26th July 2019

The tragedy of Shafi Mohammad

Naavi

Supreme  court in the  of State of Karnataka  vs O.P.Hiremath ruled that non production  of Sec 65B certificate at the time of filing of charge sheet can be corrected later.

Naavi

Naavi joins the lighting of the lamp in inaugurating the workshop 

A Unique one day workshop was conducted in Chennai on 16th March 2019 on “Section 65B of Indian Evidence Act”.

The Workshop was inaugurated by Honourable Justice Sri M. Jaichandren, in the presence of Honourable Justice, Dr S. Vimala, Senior Advocates, Mr Masilamani and A Thiagarajan. Mr Na Vijayashankar (Naavi) as Founder Chairman of Foundation of Data Protection Professionals in India (FDPPI), and a pioneer in Section 65B, conducted the knowledge session. Mr S.Balu President of Cyber Society of India (CySi) and formerly head of the Cyber Crime division of Chennai organized the event.

The Print Version of the book with latest updation, titled “Section 65B of Indian Evidence Act Clarified” by Naavi was released during the event.

The workshop was unique because it was completely focussed on Section 65B which has been in operation since 17th October 2000 but whose importance had not been fully realized until the Supreme Court judgement in 2014 in P V Anvar Vs P.K. Basheer, declaring that it is mandatory for admissibility of electronic document as evidence.

Since then the difficulties in understanding the provisions of Section 65B has also come up for discussion in some fora even to suggest that it may need an amendment.

Naavi clarified the doubts regarding the section and also highlighted why Section 65B was a master stroke in ITA 2000.

An illustrative caricature drawn by Mrs Saranya Devi under the guidance of S.Balu which explained the concept and attracted attention during the workshop is reproduced below.

The caricature explains how unlike a human witness who reproduces an evidence from his brain memory is not asked for any certification (other than the deposition itself) while  a CCTV footage when produced as an evidence requires to be certified under Section 65B under the same logic that the “Computer Witness like a human witness needs to depose but can do so only with the assistance of a human who is the Section 65B certifier.”

A gallery of eminent speakers made the event memorable.

A more detailed report on the event would be provided later.

During the event the Chennai Chapter of FDPPI (www.fdppi.in) was also inaugurated and Naavi explained why Section 65B is also relevant to the Data Protection Industry.

The event was a great success.

More information on the event will follow.

Naavi

Naavi has updated the E Book on Section 65B, titled “Section 65B of Indian Evidence Act Clarified” with an additional chapter on ‘Section 65B for Data Protection Professionals”.

A print copy of the above book is scheduled to be released in Chennai on March 16, along with the launching of the Chennai Chapter of FDPPI and a day long workshop on Section 65B organized jointly by Cyber Society of India (CySi) and FDPPI.

Naavi was the founder secretary CySi and a continuing life member, as also the Founder Chairman of FDPPI. Mr S.Balu the current president of CySi is also a member of FDPPI.

The E Book is currently priced at Rs 150/-. The Printed version of which limited copies would be available is priced at Rs 200/-. (Will be available at the conference at a concessional price of Rs 100/-).

Naavi

At present date, Quantum Computing stands towards traditional computing like a horse did towards the Wright Brothers’ plane. The horse was much faster, but the plane could move in a tridimensional space. And we all know how the horse and the plane evolved since then, now don’t we?

Geordie Rose founder of D-Wave, 2015

To address this topic and then to place it within a context of potential leverage towards themes such as Artificial Intelligence, Secure Corporate Communications, Competitive Edge towards the marketplace as well as others … it is mandatory to start by clearly defining WHAT computing is and WHERE does Quantum Computing stand out.

So, Computing as we know it

A computer is a device that manipulates data by performing logical operations, hence computing is that precise “manipulation” action which allows data to combine and translate into added value information.

The software is the set of instructions that convey what needs to be done with the data, while the hardware is the set of electronic and mechanical components over which the data operations take place according to the provided instructions.

While the core of our universe is the “subatomic world”, meaning the Quantum particles that make all the atoms’ basic components (Protons, Neutrons, and Electrons) the core of computing (as we, humans, have developed it) consists of two logical statuses, On and Off (1/ 0) and its “base element” is called the “bit”.

So, it is a binary system where the basic components (the bits) can univocally present a status of either “1” or “0”.

Mathematically, the human being has grouped this component in clusters of 8, called “bytes” and the logic behind those bytes is that from the bit to the far right towards the bit to the far left (of the 8), each would represent a base 2 exponential figure, meaning:

• the bit further to the right is 2 elevated to 0, therefore representing number 1
• the following to the left is 2 elevated to 1, therefore representing number 2
• the one farthest to the right will be the 2 elevated to 7, therefore representing 64

Now, the core of our “modern” computers started by splitting the Byte into two segments of 4 bits each, from left to right the first 4 would represent a number under the form of a base 2 power, while the other 4 bits would provide the information about which type of data was to the right: a number, a letter an instruction, other. This was called the ASCII table.

The evolution of computing led this initial context to grow both in terms of numbers of bits applied to deal with the information, as well as the speed at which those operations would take place.

From 8 bits in the mid-1990s we moved to 16, 32, 64 and so on while the speed raised from some megahertz to 1 gigahertz, then 2, 4 and it keeps evolving.

In 1965, Gordon Moore the co-founder of Fairchild Semiconductor and Intel, predicted (based on observation), that the number of transistors in a dense integrated circuit would double every two years for the following decade, therefore so would the computing capacity. In fact, the rate has been observed now for several decades, and that constitutes Moore’s Law.

Quantum Computing

Quantum computers are similar to “traditional” ones in the sense that they also use a binary system to characterize data, the difference lies in the fact that Quantum computers use one particular characteristic of subatomic particles (in specific the electrons), called the “Spin” to account for the status “0” or “1”.

The Spin is a rotational/vibration characteristic of subatomic particles that is “manageable” since it responds to magnetic fields, therefore, and in very, very simple wording, while in “traditional computers, humans control the bit status by applying or not power to a given bit; in Quantum Computers, we can affect the Status “Spin-up” which corresponds to “1” or “Spin Down” which corresponds to “0” by applying either variation to a magnetic field or a microwave focused pulse.

And what a difference this makes!

Once we move beyond the atomic world and start manipulating electrons one by one, very strange things take place.

Note: electrons are the particle of choice by two orders of reason, they are the “easiest” to extract from an atom and they behave and become photons once extracted, therefore, being able to transport information over distance as light wave particles.

Subatomic particles behave both as matter and waves, bearing the extraordinary characteristic of being able to represent both Spin-up and Spin Down status at the same given point in time.

Not to spend a couple of thousands of words describing in detail how this is possible and all the multidimensional implications that it represents (parallel universes and so on …), I will just advise you to take a look at Professor Richard Feynman lectures about Quantum Physics.

Now due to this specific characteristic of Quantum Computers (the Quantum particles), this is the point where any similarity between “traditional” computers and Quantum Computers ends.

Making the picture crystal clear, in a “traditional” computer to test all possible combinations within one set of just 4 bits so the one that applies to a given circumstance may be found, the machine goes about each of the following combinations one at a time.

Taking 16 different operations.

Now, since the Quantum computer’s bits (called Qubits) bear the capacity to represent both statuses at the same time, this process would merely require one single operation on a 4 Qubit Quantum computer!

If instead of “half a byte” (4 bits, like represented above), we speak of the latest generation software that deals with 128 bits, guess what? Analyzing all possible combinations amongst those 128 bits would require exactly one single operation on a 128 Qubit Quantum Computer!

I think that, by now, you are starting to get a picture of the involved potential, still let me give you a “hand” here; a 512 Qubit Quantum Computer would be able to analyze more data in one single operation than all the atoms that exist in the Universe.

And Quantum computing has a “Moore’s law” of its own, instead of the momentum being of doubling the processing capacity each two years, each new generation has proven to be 500 thousand times more powerful than the preceding one.

Going back to the analogy between the horse and the Wright Brothers’ plane, it’s like if they had given birth to the Lockheed SR 71 A Black Bird plane, which can fly at a speed of almost 2,200 miles per hour… now imagine what will happen a couple of generations into the future…

Constraints

Here are some constraints towards the establishment of real to the letter Quantum Computers:

• The environment

As previously mentioned, the phenomena that allow Quantum computing to be such a powerful tool resides in the ability of subatomic particles to simultaneously represent several states; in Physics, this is called “superposition”.

Now, opposite let’s say to Quartz, which is used in modern day clocks because its molecules present a constant vibratory rate that allows high precision at a wide range of environmental conditions from pressure to temperature, humidity, luminosity and so on …, superposition only happens if no external factors are “exciting” the subatomic particles, meaning the subatomic particles only behave like that before having been exposed to any external factor.

It would be enough to have a Quantum Computer Chip hit by sun light to render it inefficient.

Therefore, a Quantum Computer is basically composed of one chip the size of a finger nail and a support cooling and isolation shell the size of an SUV that ensures the required “sterile” and isolated operational environment, and it costs around $ 25 million.

• Algorithms

Writing algorithms for Quantum Computers requires the ability of thinking and taking into account the laws of Quantum Mechanics, therefore not the task for a common developer.

Peter Shor, from MIT, has developed one Quantum Algorithm (the “Factoring algorithm”) that led the Intel community to the verge of a nervous breakdown by rendering most encryption keys ineffective. Basically, while the most powerful standard computer would take hundreds of years of continuous processing to get there, if tomorrow any of us would have the chance of bringing home a Quantum Computer with the Factoring Algorithm embedded in a software piece, we could break any RSA encryption in a matter of seconds, making all the bank accounts or electronic transactions that we could “look at” absolutely transparent.

Lov Kumar Grover Ph.D. at Stanford and currently working at the Bell Laboratories developed a Database Query Quantum Algorithm that bears the uniqueness of being able to get the right information over a vast unstructured database over a few seconds. Like finding a needle in a colossal haystack within a few seconds.

• Particle manipulation

The existing current Quantum Computers are technically only partial quantum, since they are able to use strings of electrons and not yet each electron individually. However, a Laboratory experiment in Australia’s South Wales University has recently been able to do so, therefore, maybe the next generation of Quantum Computers will.

Potential

All of this is something that is being developed “as we speak”.

In 2011 the development stage of Quantum Computers allowed the tremendous accomplishment of calculating in one single operation the expression 3*5=15. Yes, just that …

Now back then (in 2011), Dr. Michio Kaku, who is one of the brightest minds of our era, stated in an interview that it was not clear by when would we have the first operational and useful Quantum Computers.

Four years after, in 2015, D-Wave (a Canadian company that produces Quantum Computers), after having developed a Quantum Computer for Lockheed Martin (the company that amongst many other military assets produced the F-22 Raptor fighter jet), produced another one which resources are being shared by Google, NASA and USRA to perform calculations that normal computers (no matter how powerful they are), are not capable of accomplishing within a reasonable time frame (meaning less than 100 years working non-stop).

This last machine is being used (since 2015) for the purpose of:

• Artificial Intelligence investigation and development
• Development of new drugs
• Autonomous machine navigation
• Climate change modeling and predictions
• Traffic control optimization
• Linguistics

Building a Quantum Computer doesn’t mean a faster computer, yet a computer that is fundamentally different than a standard computer.

Doctor Dario Gil, Head of IBM Research

We are flabbergasted by the number of things standard computers are capable of solving and how fast they do it, yet there are several things they are either not capable of solving or it would take them so much time that it would bring us no benefit.

Can’t think of any?

Well, here are some:

M=p*q – If someone gives you a given number M which is the product of two unknown very large prime numbers (p and q) and asks you to find them, although there are only two prime numbers that meet the requirement this is extremely hard to accomplish and would require several sequential divisions by prime numbers until you get there. It is in fact so difficult that it is used as the basis for RSA encryption, remember from above?

By the way, the D-Wave machines are not yet at the maturity point which allows dealing with such extremely complex problems.

Highly advanced alloy leagues – molecules for when electron orbits overlap and while dealing with well-known simple elements, like Hydrogen and Oxygen it is very easy to determine the outcome of such combination H2O or water, if we use highly complex elements while attempting to create new materials, that requires tremendous computing power and trial and errors, because those molecular bonds depend on Quantum Mechanics.

The simplest example can mean 2 to the power of 80 combinations in need of being calculated to reach the solution that leads to a stable molecule, which would take years on a standard computer but just minutes in the current state of Quantum Computing capacity.

The most recent D-Wave computer was successfully used in 2016 by a joint team composed of participants from Google, Harvard University, Lawrence Berkeley National Laboratories, Tufts University, UCS Santa Barbara and University College of London to simulate a Hydrogen molecule. This opens the door for the accurate simulation of complex molecules which may result in exponentially faster achievements with much fewer expenditure achievements in the fields of medicine and new materials.

Logistics optimization – Logistic systems are some of the most complex days to day contexts that humans face which have a tremendous financial impact on the global economy. Let’s consider the example of DHL, this international corporation’s Core Business is based on getting a given physical asset from geography A to geography B within a time frame that its clients are expecting when hiring them. To accomplish that, the company has several “back to back” running services contracts with logistic operators, besides having its own fleet of planes, boats, and cars. Nevertheless, having the entire system optimized even under perfect conditions, where no strikes or natural disasters happen is hard enough because a one-minute delay at reaching a given traffic light may impact the 1-day delay in delivering the asset across the Globe. Quantum computing will allow, through data input from live monitoring sensors across the Globe, to constantly optimize routes and available cargo space, in a way that could easily represent a 600% profit increase over current operational standards or a significant price reduction towards clients, while assuring accurate and optimized delivery timings.

Predicting the future – ever watched “The Minority Report” with Tom Cruise? In the movie, although through a different process, computation was able to show what had over 90% probability to happen concerning potential crimes. Dealing with a complex scenario, the likes of an international crisis, it is “merely” a matter of computing power which can deal with an exponentially larger range of influencing co-factors that may affect the result. A standard computer would take years to reach the most probable outcome of such crisis, long after the crisis had been “naturally” solved, yet a Quantum Computer can show the top 5 most probable outcomes within a matter of minutes, therefore becoming a priceless decision support tool.

Artificial Intelligence – to begin with, let’s define Intelligence as the ability to acquire new knowledge and change one’s opinion based on such new information. Now The contribution of Quantum Computing to the potential of AI once again pertains speed and this time around “speed of thought”. How powerful would it be a “mind” that could analyze a complex scenario (like the above-mentioned logistics nightmare of a DHL alike company) and promptly decide which course of action to take and where to improve things in terms of processes by assessing that some established workflow is no longer suitable?

The problem would then be, having AIs making decisions and replacing them with new ones at a rate that humans had no time to understand the underlying motives, hence no saying in the approval/ disapproval of such strategic actions.

Safer communications – Quantum Cryptography, what is it?

We have seen that a Quantum Computer has the power to crack our state of the art current encryption pillars, but if it has the power to crack it, it has the power to create something better.

The problem of what we now can reach as methods of encrypting messages is that all of them depend on pre established keys, either unique or combinations of public and private keys and those keys are difficult to crack but only because of the methodology within reach of standard computers.

Now, Quantum Encryption cleverly exploits the initial problem of dealing with particles that behave like a wave until there is an attempt to observe them when they immediately behave like a particle.

Photons, if paired or entangled using the appropriate language, will each maintain their relative spin regardless of space or time, so four pairs of photons that transport each a status “01” conveyed by their spin, creating, therefore, a qubyte that is represented by “01010101” or any other combination for that matter, will maintain this “information” unaltered for as long as they are not “excited” and any attempt to read the code will immediately destroy it.

This bears the power of effectively creating unbreakable, full proof secure messaging.

P.S: This is a guest post published at the request of  Karl Crisostomo of tenfold.com and has reference to our earlier article titled “Section 65B interpretation in the Quantum Computing Scenario”

Naavi

We draw attention of the public on our earlier article on the interim view expressed by a bench of the Supreme Court on January 30, 2018, which was headlined by most news publications as “Courts can rely on electronic records without certificate: SC”

We had commented in the context “Recipe for corruption in Judiciary- Supreme Court judgement in Shafhi Mohammad V State of Himachal Pradesh“.

This was a two bench order on an SLP but it had stated in the order that

“An apprehension was expressed on the question of applicability of conditions under Section 65B(4) of the Evidence Act to the effect that

if a statement was given in evidence, a certificate was required in terms of the said provision from a person occupying a responsible position in relation to operation of the relevant device or the management of relevant activities.

It was submitted that if the electronic evidence was relevant and produced by a person who was not in custody of the device from which the electronic document was generated, requirement of such certificate couldnot be mandatory.

It was submitted that Section 65B of the Evidence Act was a procedural provision to prove relevant admissible evidence and was intended to supplement the law on the point by declaring that any information in an electronicrecord, covered by the said provision, was to be deemed to be a document and admissible in any proceedings without further proof of the original.

This provision could not be read in derogation of the existing law on admissibility of electronic evidence.”

The Court quoted one judgement of 1985 and an American judgement of 1972, (delivered long before Section 65B was conceived for electronic evidence) which stated “…it will be wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved. “

A case was made out  through two other cases to state

 “Scientific and electronic evidence can be a great help to an investigating agency.”

 “new techniques and devices are order of the day”

“threshold admissibility of an electronic evidence cannot be ruled out on any technicality if the same was relevant.”

Then the judges referred to the Anvar PV Vs P.K. Basheer case as well as the Navjot Sandhu (alias Afsan Guru) case which it over ruled.

The two member bench referred to the Tomasho Bruno (2015) and Ramsingh (1985 judgement) and went on to conclude

“it can be safely held that electronic evidence is admissible and provisions under Sections 65A and 65B of the Evidence Act are by way of a clarification and are procedural provisions.”

Proceeding further, the two member bench over ruled the judgement of the three member bench in Basheer Judgement which took into account the recent developments in technology and had examined the question of Section 65B in great length and made the following statements.

“Sections 65A and 65B of the Evidence Act, 1872 cannot be held to be a complete code on the subject.”

” The applicability of procedural requirement under Section 65B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by  person who is in a position to produce such certificate being in control of the said device and not of the opposite party.”

“In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said Sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such document is kept out of consideration by the court in absence of certificate under Section 65B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65B(h) is not always mandatory.”

Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies.

Now the bench has released its final judgement in the case and a final order has been issued on 3rd April 2018.

We therefore re-visit the judgement on what is stated in the final order, read in conjunction with what was stated in the earlier order of January 30, 2018.

We would like to state that we have no disagreement to the use of Videography by Police through body cameras which was central to the discussions in this case. We are not in disagreement even with the use of  Surveillance, Profiling, use of Artificial intelligence in Policing etc which are opposed to the policy of “Privacy Protection” which are dear to the Supreme Court judges.

But we are in disagreement with the views of the bench as to the conclusions that they have drawn and also to the fact that they have gone against the tradition of not trying to over rule a verdict of the higher court.

We do agree that the Court should exercise discretion when “Justice so justifies” to bend some rules temporarily. This was done in the Sonu @ Amar judgement  for the right cause and we support it. However the judgement in the Shafhi Mohammad Case is boarne out of a wrong interpretation and hence needs to be opposed.

Our opinion on the reasons of why this judgement is bad for the society and is wrong in law is presented below. This is not to show any disrespect on the Court but to engage in an academic debate on a point where we feel that technology related interpretation has gone wrong in this instance and needs to be corrected if necessary.

However, we feel that this being a two member decision relevant to a specific reference cannot create an over riding law against the three member judgement though the Judges seem to think that it should be.

More discussion will follow…

Naavi

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”.

Naavi

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.

Naavi

The SLP order of the Supreme Court in the case of Shafhi Mohammad Vs State of Himachal Pradesh dated 30th January 2018 (SPECIAL LEAVE PETITION (CRL.) No.2302 of 2017) in which a two member bench of the Court passed an order which was clearly meant to over rule an earlier three member Judgement of the Basheer Case as regards the applicability of Section 65B of Indian Evidence Act is now having its adverse impact on the system of judiciary in India.

The SLP order was delivered by  the two judges namely Justice Adarsh Kumar Goel (Seniority order 11) and Uday Umesh Lalit (Seniority order 15).

This order was conspicuously rebellious  over ruling the earlier judgement passed by three judges namely  Justices RM. Lodha (Then CJI now retired) Kurian Joseph(Seniority order 5) and Normally when a Judge has a different opinion from an earlier judgement Rohinton Fali Nariman (Seniority order 12).

Normally, when a Judge has a difference of opinion with the earlier order of a superior court, the option available to him is to make a reference back to a comparatively bigger bench and seek a review. This is an established convention. It was diligently followed in the Aadhaar case when the question of “Whether Privacy is a Fundamental Right in our constitution or not” came up with a smaller bench which felt that an earlier 5 member bench had a view which could be reviewed. Accordingly the matter was considered by a 9 member bench which gave its clarification after which the earlier bench resumed its hearing.

This process was not followed by the A.K. Goel-U.U.Lalit  bench which preferred to pass its clarification order in derogation of the order of the earlier three member bench. Though there was the next hearing on 13th February 2018, the bench simply continued with other matters and left its earlier order on Section 65B  remain on paper though its validity is questionable.

We consider that the order was erroneous, is amenable to be misused and would open doors of corruption in Judiciary.

Itis also infructuous being an order of a smaller bench.

But by not reviewing the order in the next available opportunity the two member bench has shown disregard to the conventions and cyber jurisprudence.

It is necessary for the CJI to take note of this development and if he allows such breaking of conventions go unquestioned, it will be spreading like cancer in the Supreme Court and through out the judicial system.

Some time back we had the Justice Karnan episode where he challenged the Supreme Court and was later convicted for Contempt of Court.

But the current CJI did not take similar contempt action against the four judges who held a press conference. Now if CJI continues to remain quiet without acting against the breaking of convention by the AK Goel-UU Lalit bench,  every judge will ignore every other judgement of a bigger bench and turn  Jurisprudence upside down.

If a lower bench of Supreme Court can over rule a higher bench, a lower court can also over rule a higher Court. We will see chaos and anarchy spreading through the system if proper measures are not initiated by CJI now.

Such a situation will give a free hand for corruption to decide which order of a superior court will be followed as a precedence and which will be ignored under the special precedent set by the AK Goel-UU Lalit bench.

The Order of this bench to turn Jurisprudence upside down is completely illogical and indicates that this could be part of a rebellion developing inside the Supreme Court.

CJI needs to take note and take corrective action. Silence will not be a solution and it may be too late to correct the situation if more such decisions contemptuous of the higher benches can be allowed to be taken.

In the meantime, if any situation arises in Courts where there is an attempt to accept electronic evidence with Section 65B certification on the basis of the SLP order, it has to be challenged first with a request for review, if necessary supported with an expert counter opinion, failing which with an appeal to a higher court specifically on this issue.

It is regrettable that Supreme Court judges are creating anarchy in the system by not being consistent with their commitment to delivery of justice and the poison seeded by the four rebellious judges seems to be having its effect in destroying the revered system. I hope the fear is misplaced and things will turn out well with the bench in its next hearing on 7th march 2018, issuing a clarification that they are not over ruling the earlier judgement.

If the Amicus Curie is unable to find a solution to a practically permissible and legally acceptable solution to the problem on hand (Evidence to be presented by the Police from the crime scene videography), it is necessary for the Court to hold a larger consultation with other experts before passing further orders.

Naavi