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Is Virtual Private Network legal in India?

April 15, 2022

Introduction

The modernization and advancement of technology that the world is witnessing today has become and essential and ubiquitous part of everyone’s life. From ordering groceries to making huge payments, everything is now available at a just a ‘click’.

Undoubtedly, the evolution of technology has contributed significantly in the economic and social growth as one has an array of opportunities and options to be able to achieve their tasks. This rampant growth of online services that are being provided by network service provider, intermediaries and businessman has also brought in certain daunting concerns while using such services and networks.

With data protection and privacy being the evergreen concern of India, a recent fear that is being talked about are the Virtual Private Networks (VPN) that is being offered and used.

Virtual Private Network (VPN) and its Advantages

A virtual private network, better known as a VPN gives the users online privacy and anonymity by creating a private network from a public internet connection. It makes the users browsing private, hides users Internet Protocol (IP) address thereby insuring the Internet Service Provider (ISP) does not track the user.[1] This simply means that VPN in a manner is a privacy tool that can be used while accessing public connections. However, just like every coin has two sides, unfortunately this one has it too. With VPN giving its users the safety and advantage to keep themselves secure while using public Wi-Fi hotspots by masking their Internet Protocol address (IP), encrypting the users internet traffic making users browsing more secure and private and allowing users to access more internet content, one can also see a rise in users bypassing restrictions such as government censorship, creating pirated work and accessing illegal content.

VPN Laws in India

Even though at present there is not a law that exists per se to regulate the VPN services provided by such service provider it is pertinent to note that with the existing framework and an increase in the crime rate there could be an adverse effect on users and network providers.

The Information Technology Act, 2000 which is a primary law in India dealing with electronic commerce and cybercrimes does however, explain and provide some relief and exemption for the VPN network service provider as provided under section 79[2] of the act by possessing the safe harbor principle[3] may it be when a user accesses illegal websites or infringes the copyright of the author of such works. In such a case user will be responsible.

Call it a fluke as you may, the Copyright Act, 1957 incidentally does provides of provision for protection of technological measures[4] thereby protecting the VPN service providers provided reasonable measures are undertaken thereby holding the users liable.

Current Stand of Government on VPN

Recently the Parliamentary Standing Committee on Home Affairs in its report titled ‘Atrocities and Crimes Against Women and Children[5]’ has urged the government to block VPNs in India.

The reason stated by the committee for such extreme measure was based on the technological changes such as bypassing cybersecurity walls thereby allowing criminals to remain anonymous online. Even though the committee has also given suggestions for regulating the usage of VPN by collaborating with international agencies the committee has also requested the Home Affairs to strengthen the tracking and surveillance mechanisms to put a check on the use of VPN.

Conclusion

Evidently, VPNs have facilitated the usage of the public within the digital environment. Nonetheless, due to its nature of being commonly used to bypass site-blockers and allowing users the liberty of anonymity, VPNs have unknowingly aided the growth in suspicious internet activities.[6] However, at present the use of VPN or providing VPN services is not illegal in India as of now, but various parties related to VPN should keep in mind the upcoming enforcement issues and its role in such circumvention.

[1] https://us.norton.com/internetsecurity-privacy-what-is-a-vpn.html

[2] The Information Technology Act, 2000- section 79- Network service providers not to be liable in certain cases

[3] My Space Inc. vs. Super Cassettes Industries Ltd., FAO (OS) 540/2011, AM APPL.2017 4/2011. 13919 & 17996/2015

[4] The Information Technology Act, 2000, Section 65A.

[5] https://rajyasabha.nic.in/rsnew/Committee_site/Committee_File/ReportFile/15/143/230_2021_3_14.pdf

[6] https://www.umlawreview.com/lex-in-breve/copyright-issues-on-virtual-private-network

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