Recently a friend dealing in cryptocurrency, was trying to get me started on smart contracts and cryptocurrencies in India. His argument to me was to get on the ground floor of a niche field. Soon enough I landed on the hotly debated topic of cyber laws in India – cryptocurrency regulations.
The Reserve Bank of India (RBI) circular banning banks from extending banking solutions to cryptocurrency entities came into effect from July 5, 2018. The Supreme Court of India has denied an interim stay on the RBI circular. This has led to most cryptocurrency exchanges operating in India to launch crypto-to-crypto trading services.
In my research, I came across a TEDx Talk of the cyber law expert, Advocate Pavan Duggal. Here he talks about the future of cyberspace and cyber laws. He talks about the challenges of jurisdiction, data protection, privacy issues, etc. He emphasises on the need for an international convention or treaty on cyber laws in today’s times.
According to cyber law expert Adv. Puneet Bhasin, the role of cyber law is extensive. She states in an interview, “…A cyber lawyer is a techno-legal lawyer who is well-versed with technical aspects of computers, computer networks, communication devices and has complete legal knowledge including the special laws and rules applicable in techno-legal matters. Most evidence in criminal cases is obtained from cell phones or computers, and a cyber lawyer is the only one who can help in proper appreciation of such evidence or to find loopholes to make such evidence inadmissible.”
She emphasises that with the advent of technology, laws related to e-commerce, e-contracts and digital signatures, intellectual property rights, cyber security, etc. have all become relevant for a cyber lawyer.
So as a lawyer, I started thinking about this upcoming field looking for outstanding experts. What skills do cyber lawyers need? What challenges will they need to overcome? What are the areas of laws they need to be well-versed with?
After reading more about cyber laws and the opinions of the experts, I realise an outstanding cyber lawyer needs the following skills to find their niche:
# Knowledge of law
The cyber laws exist between few nations through convention or bilateral treaties or each country has their own set of laws governing the same. The Convention on Cybercrime, also known as the ‘Budapest Convention on Cybercrime’ or the Budapest Convention, is the first international treaty seeking to address Internet and computer crime by harmonizing national laws, improving investigative techniques, and increasing cooperation among nations. As of April 2018, 57 states have ratified the convention, while a further four states had signed the convention but not ratified it. India is not a party to the convention yet.
But India has its own laws and policies like the Information Technology Act, Indian Penal Code, Indian Evidence Act, National Cyber Security Policy, 2013, etc. to ensure a secure and resilient cyberspace for citizens, businesses and the government.
A cyber lawyer needs to have astute knowledge of the applicable laws in order to apply them as necessary. For instance in case of assisting the law agencies, a cyber lawyer has to keep in mind the jurisdiction, the handling of evidence, collection of data from the computer and mobile devices, etc. The entire case can be made admissible or inadmissible on these issues by any competent cyber lawyer. Therefore, a cyber lawyer must be well-adept in the relevant laws.
# Knowledge of technology
Any lawyer must understand the subject matter of the dispute to be effective at the job. A cyber lawyer needs to know technology well enough to be able to anticipate the potential risks and safeguard against them. They need to have working knowledge of the latest technology like block-chain, cryptocurrency, cyber security, etc. They also need to be familiar with the devices, their operating systems, coding, etc.
An outstanding cyber lawyer needs to understand the dealings and activities in the internet as well as say, the dark net for instance. The dark web is basically to avoid monitoring by state and non-state players. There are separate browser like the Tor browser which allows anonymity. The Tor software protects you by bouncing your communications around a distributed network of relays run by volunteers all around the world. It is used for both legitimate and criminal purposes.
This poses a unique challenge for a cyber expert who might need to prosecute an anonymous criminal. The question also arises if the details of such criminal is obtained by ethical hacking or other means, does it violate the privacy rights of the criminal? Where will the criminal be prosecuted jurisdiction wise? In case the crime is committed outside India, the laws of which country will prevail?
Therefore, a cyber lawyer must be aware of the technological as well as the legal challenges in such situation.
# Contract drafting
Cyber expert Pavan Duggal mentioned about cyberspace and said it has four essential aspects to it: Smart, Mobile, Analytics and Cloud. He mentioned that in India about 67% people are connected to the internet through their phones. It brings forth the regulatory challenges pertaining to mobile phones.
Then there is cloud computing. The makers of cloud computing claim that is secure. But what if there is a breach in stored data or if some data is made inaccessible? The cloud computing contracts are in fine print and as we know users generally don’t read the fine print carefully. So what happens in case there’s breach, is the intermediary liable? Read your cloud contract and you’ll know that usually intermediaries have mitigated any responsibility in the contract by some clause or the other. You can learn more about technology contract and cyber law courses to gain some clarity on the concept.
There are smart contracts which are a computer protocol intended to digitally facilitate, verify, or enforce the negotiation or performance of a contract. Smart contracts allow the performance of credible, trackable, irreversible transactions without third parties involvement.
So an outstanding cyber lawyer not only needs to know about regular contract drafting, they must be experts in the various technology contracts like: Software License and Assignment Agreements, IT Services Agreements, Cloud Services Agreement, Content Licensing Agreements, terms and conditions for platforms, e-commerce vendor agreements etc. They need to be able to understand the client’s requirements and be able to get them the best deal in negotiation.
# Critical Thinking
All lawyers need to develop critical thinking in their field of work. A cyber lawyer needs to think beyond as they are dealing with ever-evolving technologies. The laws can barely keep up with the changing technology and the challenges that come with them. By the time laws catch up with the technology, newer issues may have cropped up.
So an outstanding lawyer must keep themselves updated not only about the laws, but technology as well. They need to practice the art of questioning outside the norms of the present scenarios. For instance, in the era of internet of things when there are smart electronics like refrigerators, televisions, phones, computers, etc., there are newer challenges.
Cyber expert Pavan Duggal posed his the audience with this question: Who is liable if your smart refrigerator places an order to the grocery store and your account is being charged for it? Is it the manufacturer or the intermediary facilitating the technology or the buyer? Such intricate questions need to be pondered upon by the cyber law experts because they can only anticipate the potential risks and manage them.
By 2020, there will be around 20 billion devices connected to the internet. Imagine the possible cyber threats and vulnerabilities! It will be difficult for any one nation to contain the threats as the internet makes it possible for people to be active from anywhere in the globe. The laws are developing in mobile laws, drone technology, artificial intelligence and more. These are the things developing now and the laws are still unable to contain them completely. Imagine the technology of the future! Therefore there needs to be a set of global laws governing the cyberspace, where at least the common principles of the various cyber laws can be ratified.
There are lawyers doing cyber laws course, or gaining practical experience in order to become outstanding cyber lawyers. I urge you to keep updating your technology and legal knowledge while developing your critical thinking skills.