Security vs Privacy & Human Rights

  

Here is some thing I was writing in connection with dichotomy of security  vs privacy  in one of the  yahoo groups:


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We have moved on from looking at the issue from "security" angle to "privacy" angle.

"Privacy" is defined as one of the fundamental Human Rights of being variously called  "right to be left alone"!

It is also described as  the right of individual to be protected against intrusion into his personal life or affairs, or those of his family, by direct physical means or publication of information."
To understand "privacy", one needs to understand:

• The legal systems, sources of Privacy Laws and key legal terms.
• Key components of privacy and security laws.
• Basic theories of  information privacy & security laws.
• Theories of liability for privacy non-compliance.

 We generally tend to be not really sensitized to privacy at all. To be identified to Police or instruments of the State like Army every time we walk on the streets of the city/town or village is definitely an invasion on the privacy of the individual, be they be citizen or foreigner on legal visit or even illegal immigrant.  These are parts of Human  Rights as declared universal Human Rights declaration.

Consider the case of confiscation of  documents from the computers of Major General VK Singh and Brig Dasgupta  by Delhi Police. It was clearly a violation of privacy of highest nature. Yet, we take it very lightly. 

The legal protection of Privacy Rights has a far reaching history. In 1765, British Lord Camden struck down a warrant to enter and seize the papers from a home, and in so doing wrote, "we can safely say there is no law in this country to justify the defendants (the King) in what they have done; if there was, it would destroy all the comforts of of society, for papers are often the dearest property any man can have."

Did Englishmen actually ever have a unique right to act as they please within the walls of their own home? Well, yes and no. Yes, in the sense that it has been a legal precept in England, since at least the 17th century, that no one may enter a home, which would typically then have been in male ownership, unless by invitation. This was established as common law by the lawyer and politician Sir Edward Coke (pronounced Cook), in The Institutes of the Laws of England, 1628:

"For a man's house is his castle, et domus sua cuique est tutissimum refugium [and each man's home is his safest refuge]."

What was meant by 'castle' was defined in 1763 by the British Prime Minister with an admirable selection of names to choose from - William Pitt, the first Earl of Chatham, also known as Pitt the Elder:

"The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail - its roof may shake - the wind may blow through it - the storm may enter - the rain may enter - but the King of England cannot enter; all his forces dare not crossed the threshold of the ruined tenement."

Here is a good article on  Security vs Privacy by a guru on the subject.

Schneier on Security vs Privacy

A blog covering security and security technology.

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January 29, 2008

Security vs. Privacy

If there's a debate that sums up post-9/11 politics, it's security versus privacy. Which is more important? How much privacy are you willing to give up for security? Can we even afford privacy in this age of insecurity? Security versus privacy: It's the battle of the century, or at least its first decade.
In a Jan. 21 New Yorker article, Director of National Intelligence Michael McConnell discusses a proposed plan to monitor all -- that's right, all -- internet communications for security purposes, an idea so extreme that the word "Orwellian" feels too mild.
The article (now online here) contains this passage:

In order for cyberspace to be policed, internet activity will have to be closely monitored. Ed Giorgio, who is working with McConnell on the plan, said that would mean giving the government the authority to examine the content of any e-mail, file transfer or Web search. "Google has records that could help in a cyber-investigation," he said. Giorgio warned me, "We have a saying in this business: 'Privacy and security are a zero-sum game.'"

I'm sure they have that saying in their business. And it's precisely why, when people in their business are in charge of government, it becomes a police state. If privacy and security really were a zero-sum game, we would have seen mass immigration into the former East Germany and modern-day China. While it's true that police states like those have less street crime, no one argues that their citizens are fundamentally more secure.
We've been told we have to trade off security and privacy so often -- in debates on security versus privacy, writing contests, polls, reasoned essays and political rhetoric -- that most of us don't even question the fundamental dichotomy.
But it's a false one.
Security and privacy are not opposite ends of a seesaw; you don't have to accept less of one to get more of the other. Think of a door lock, a burglar alarm and a tall fence. Think of guns, anti-counterfeiting measures on currency and that dumb liquid ban at airports. Security affects privacy only when it's based on identity, and there are limitations to that sort of approach.
Since 9/11, approximately three things have potentially improved airline security: reinforcing the cockpit doors, passengers realizing they have to fight back and -- possibly -- sky marshals. Everything else -- all the security measures that affect privacy -- is just security theater and a waste of effort.
By the same token, many of the anti-privacy "security" measures we're seeing -- national ID cards, warrantless eavesdropping, massive data mining and so on -- do little to improve, and in some cases harm, security. And government claims of their success are either wrong, or against fake threats.
The debate isn't security versus privacy. It's liberty versus control.
You can see it in comments by government officials: "Privacy no longer can mean anonymity," says Donald Kerr, principal deputy director of national intelligence. "Instead, it should mean that government and businesses properly safeguard people's private communications and financial information." Did you catch that? You're expected to give up control of your privacy to others, who -- presumably -- get to decide how much of it you deserve. That's what loss of liberty looks like.
It should be no surprise that people choose security over privacy: 51 to 29 percent in a recent poll. Even if you don't subscribe to Maslow's hierarchy of needs, it's obvious that security is more important. Security is vital to survival, not just of people but of every living thing. Privacy is unique to humans, but it's a social need. It's vital to personal dignity, to family life, to society -- to what makes us uniquely human -- but not to survival.
If you set up the false dichotomy, of course people will choose security over privacy -- especially if you scare them first. But it's still a false dichotomy. There is no security without privacy. And liberty requires both security and privacy. The famous quote attributed to Benjamin Franklin reads: "Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety." It's also true that those who would give up privacy for security are likely to end up with neither.
This essay originally appeared on Wired.com.

Posted on January 29, 2008 at 5:21 AM • 93 Comments

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According to Privacy International,

"Privacy is a fundamental human right. It underpins human dignity and other values such as freedom of association and freedom of speech. It has become one of the most important human rights of the modern age.
Privacy is recognized around the world in diverse regions and cultures. It is protected in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and in many other international and regional human rights treaties. Nearly every country in the world includes a right of privacy in its constitution. At a minimum, these provisions include rights of inviolability of the home and secrecy of communications. Most recently written constitutions include specific rights to access and control one's personal information. In many of the countries where privacy is not explicitly recognized in the constitution, the courts have found that right in other provisions. In many countries, international agreements that recognize privacy rights such as the International Covenant on Civil and Political Rights or the European Convention on Human Rights have been adopted into law."

The organization also points out that "The recognition of privacy is deeply rooted in history. There is recognition of privacy in the Qur'an and in the sayings of Mohammed. The Bible has numerous references to privacy. Jewish law has long recognized the concept of being free from being watched. There were also protections in classical Greece and ancient China.
Although privacy is seen as a fundamental and universal right, it's not easily to define. For one thing, it does depend to some degree on culture and context. New communication technology as well as new surveillance technology has shown also that privacy — and the threats to it — also change over time. Generally speaking, "privacy protection is frequently seen as a way of drawing the line at how far society can intrude into a person's affairs" (Privacy International, ____). United States Supreme Court Justice Louis Brandeis explained privacy simply as the individual's "right to be left alone."

 Also see:

The Right to Be Left Alone

Privacy and Human Rights 2003: Overview

 

Burden of Proof: Relevant Questions in the case of OSA 1923

  

Burden of Proof
The relevant question to ask the Prosecution if the prosecution fails to establish evidence of committal of the offense under Official Secrets Act 1923  (Click link to go to Google document before you read further)

Troubling Facts

1. Brig UDasgupta was never indicted for compromising codes, agents, or war plans.
2. Brig UDasgupta was never charged with treason. [Legally, treason is a charge that is only applicable when one spies for an enemy state in time of war.]
3. Brig UDasgupta was never accused of acting with  intent to harm India.
4. Foremost  is the fact that RAW  and prosecution were unable to provide the court with concrete examples of Brig UDasgupta  having actually harmed our national security.
5. The intelligence agency's damage asessment of  Brig Dasgupta's actions were neither made at all nor was not made available to the courts or to the public.
6. Consisting at best of a series of highly improbable worst-case scenarios, RAW's damage assessment could at best be characterised as  a thinly veiled attempt to portray USA as a reckless and unreliable ally. If not, why the cooperation of the USA was not sought to establish the case against the accused?
7. What is not so clear, however, is why so many people allowed the unwarranted trashing of Brig Dasgupta's character to be used as an indirect means of undermining the perception of USA as one of our country's dependable allies.
8. During the punishment phase of an espionage trial, a judge is supposed to weigh three critical factors: motives, harm and benefit. This is why morally corrupt individuals caught spying for hostile states are usually given extremely harsh sentences, even if the actual damage they caused wasn't that substantial.
9. In Brig Dasgupta's case, although the country he  alleggedly spied for was legally defined as a major ally, RAW and the prosecution went out of the way to  successfully manouvre the courts  into believing  an extremely biased asessment of Brig Dasgupta's actions.
10. Whatever the RAW's motives in characterizing Brig UDasgupta as a bête noire, they are arrogantly undeclared, patently anachronistic and irresponsibly vindictive.
11. Sadly, judging by the continued refusal to address these issues, it would seem that fear has indeed triumphed over due process and common decency. 
12. Brig UDasgupta was purported to be accused of  only one crime:of having a USB in his possession of a private rental agreement the passing of which along with "possible concealed secret information" to an ally USA. 
13. RAW or Prosecution was not able to establish what that secret information was.
14. The maximum punishment : ..he shall be punishable with imprisonment for a term which may extend to fourteen years and in other cases (other than  for offenses not connected with Army, Navy, Air Force etc.) to three years. (See OAS 1923 Para 3 (1) C)
15. The offence allegged has nothing to do with  any work of defense, arsenal, naval, military or air force establishment or station, mine, minefield, factory, dockyard, camp , ship or aircraft or otherwise in relation to the naval, military or air force affairs of Government . Hence the punishment is ONLY 3 years!
16. Being jailed for 5 years with out a charge to defend against is itself a gross  crime against human rights and has  resulted in substantial failure of justice.
17. The fair, moral and principled thing for the President, the Nation, the government,  the prosecution and the courts  to do is release Brig U Dasgupta immediately.
18. Just as the law should not be bent to release Brig Dasgupta, neither should it be bent to keep him behind bars!

HABEAS CORPUS THE MOST EXTRAORDINARY WRIT

  
HABEAS CORPUS
THE MOST EXTRAORDINARY WRIT

Habeas Corpus is an ancient common law prerogative writ - a legal procedure to which you have an undeniable right. It is an extraordinary remedy at law. Upon proper application, or even on naked knowledge alone, a court is empowered, and is duty bound, to issue the Extraordinary Writ of Habeas Corpus commanding one who is restraining liberty to forthwith produce before the court the person who is in custody and to show cause why the liberty of that person is being restrained. Absent a sufficient showing for a proper restraint of liberty, the court is duty bound to order the restraint eliminated and the person discharged. Habeas Corpus is fundamental to American and all other English common law derivative systems of jurisprudence. It is the ultimate lawful and peaceable remedy for adjudicating the providence of liberty�s restraint. Since the history of Habeas Corpus is predominately English we must visit that history to gain understanding of American use of Habeas Corpus.

ENGLISH HISTORY OF HABEAS CORPUS: The history of Habeas Corpus is ancient. It appears to be predominately of Anglo-Saxon common law origin. Clearly, it precedes Magna Carta in 1215. Although the precise origin of Habeas Corpus is uncertain in light of it�s antiquity, its principle effect was achieved in the middle ages by various writs, the sum collection of which gave a similar effect as the modern writ. Although practice surrounding the writ has evolved over time, Habeas Corpus has since the earliest times been employed to compel the appearance of a person who is in custody to be brought before a court. And while Habeas Corpus originally was the prerogative writ of the King and his courts, the passage of hundreds of years time has permitted it to evolve into a prerogative writ initiated by the person restrained, or someone acting in his interest rather than by the King or his courts. Magna Carta obliquely makes reference to Habeas Corpus through express reference to �the law of the land�. From Magna Carta the exact quote is: �...no free man shall be taken or imprisoned or disseised or exiled or in any way destroyed except by the lawful judgment of their peers or by the law of the land.� The practice and right of Habeas Corpus was settled practice and law at the time of Magna Carta and was thus a fundamental part of the unwritten common �law of the land� as was expressly recognized by Magna Carta.

CIVIL LAW VS. COMMON LAW: However, Habeas Corpus was generally unknown to the various civil law systems of Europe which are generally devolved from Roman and/or Justinian law. European civil law systems tend to favor collective authority from the top down while the Anglo-Saxon common law tends to favor the individual. Thus, it is altogether understandable that the ultimate right to determine the propriety of restraint upon the liberty of an individual is an almost unique feature derived from the ancient Anglo-Saxon common law of England. Indeed, the Magna Carta itself is arguably a reaction to the incursion of European civil law into the English common law legal system via William in 1066. The running tension and contest between the civil law of the �Norman intruders� intrusively confronting the ancient Anglo-Saxon common law continued throughout the period 1066 to the 1640�s when, following the English Civil War, and the beheading of King Charles I in 1649, the people�s parliament clearly established the respective position of King and citizen. In this crucible of contest, the confrontation of top down authoritarian civil law principles clashed and continuously competed with, but then yielded to, the ancient �good old� common law of the land. In the final analysis, the strength and resilience, and I might add common sense, of the evolved, time tested, common law prevailed. The interest of the people as reflected in their common law won a several centuries old contest with the civil law brought to England by the Norman conquest. Habeas Corpus is merely one feature, albeit it an important one, of the common law. As a feature of common law, the right of Habeas Corpus reflects the age old contest between the individual and the state. Habeas Corpus empowers the individual in holding accountable the exercise of the state�s awesome power to restrain liberty.

The frequent use of the great writ reflected the tension between common and civil law practice during the period 1485 thru 1509, generally the reign of Henry VII. At that time Habeas Corpus was employed to secure the liberty of those imprisoned by the Chancellor, the King�s Privy Counsel, the Courts of Admiralty, The Court of High Commission and its prerogative courts including its inquisitorial processes featured by the hated �star chamber court� at Westminster, so called because of the stars on its ceiling. Conversely, the common law preference of accusatorial processes had long been a fixture of Anglo-Saxon history. The modern writ of Habeas Corpus dates from this history. During this period, the sheer frequency of which Habeas Corpus was employed together with its procedure and results, established the Writ of Habeas Corpus as a powerful tool to check the power of the state and to preserve the rights of individuals against the arbitrary power of the King and his Counsel together with the King�s courts. It was the King�s prerogative courts which were given to inquisitorial practices while the parallel system of common law courts employed purely common law accusatorial practices. Thus the arbitrary character of civil law power devolved in England since William�s Norman intrusion was largely checked through employment of the Writ of Habeas Corpus by the first part of the sixteenth century. And Habeas Corpus saw frequent use and growth in prominence throughout the reign of Charles I which, in turn, found its bloody end on the chopping block in 1649.

THE HABEAS CORPUS ACT: The English common law practice and procedure respecting Habeas Corpus was codified by Parliament in 1679 by enactment of the Habeas Corpus Act. This historic act of the English Parliament empowered English courts to issue Writs of Habeas Corpus even during periods when the court was not in session and provided significant penalties to the judge, personally, who disobeyed the statute. And while great hypocrisy surrounded the practice of the Habeas Corpus Act in the late 17th century, Habeas Corpus was nevertheless establishing itself as the primary means by which individual liberty was empowered at the expense of the arbitrary exercise of power by the state. During the 19th century the Writ of Habeas Corpus was further expanded to include those held by a purely private process other than that of the state.

AMERICAN DEVELOPMENT OF HABEAS CORPUS: As with other features of English common law and practice, by the time of the American Revolutionary War, the Writ of Habeas Corpus was clearly established in all of the British colonies in New England and was generally regarded as part of the fundamental protections guaranteed by law to each citizen. The American Constitution at Article I, Section 9 states that: �The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Case of Rebellion or Invasion the public Safety may require it.� It is important to note that the framers of the Constitution for the United States of America choose to include in the body of the Constitution the Writ of Habeas Corpus while other important individual rights, arguably as an afterthought, were included in the first ten amendments which were popularly called the Bill of Rights. The �afterthought�, that is to say the Bill of Rights, was not included even as amendments until James Madison single handedly, but persistently and successfully, argued before congress for its adoption and passage on 15 December 1791, some two years after the constitution was ratified. This fact sheds light on the importance of the Writ of Habeas Corpus as viewed by the framers of the American Constitution at the time it was established.

CIVIL WAR & HABEAS CORPUS: The most famous American Habeas Corpus action prior to the civil war was the case of Ex parte Dred Scott. Dred Scott was a slave owned by a physician. Upon the death of his master, it was promised that Dred Scott would be set free. However, at that time Dred Scott was still being detained as a slave. Dred Scott petitioned the Federal Court for a Writ of Habeas Corpus. Habeas Corpus was granted by the Federal District Court and subsequently upheld by the Federal Court of Appeals. However, the Habeas Corpus was overturned by the United States Supreme Court on the grounds that Dred Scott, as a slave, was not a �person� as contemplated by the United States Constitution and therefore did not have the right to petition the Federal Courts for a Writ of Habeas Corpus. As to Dred Scott, the extraordinary writ, the great writ as Sir William Blackstone put it, was effectively suspended. This notable case remains as one of the most controversial Habeas Corpus actions in American history.

As is generally known, the Writ of Habeas Corpus was suspended by President Lincoln during the civil war. Chief Justice Roger Tanney, in the case of Ex parte Merryman (See: Ex parte Merryman, 17 Fed. Cas. No.9, 487, p.144 (1861)) strongly excepted suspension of Habeas Corpus by a sitting president and concluded that only the congress had the power of suspension under Article I Section 9 of the constitution. The ruling of the Supreme Court was apparently ignored by the President and the military during the civil war. Congress later authorized the already presidential suspension of the writ in 1863. After 1863, and acting on congressional authorization, the military was permitted to temporarily hold people who were to be turned over to and adjudicated by the civil courts. After the assassination of President Lincoln, and in the case of Ex parte Milligan (See: Ex parte Milligan, 71 U.S. (4 Wall.) 2, 18 L.Ed. 281 (1866)) the United States Supreme Court granted the writ and once again established that only Congress had the power to suspend the Writ of Habeas Corpus and that the military had no jurisdiction over the trial of civilians in the post civil war South.

THE MODERN WRIT OF HABEAS CORPUS: Today the Writ of Habeas Corpus is used in many different ways. It applies to post conviction relief in criminal matters even where the judgment of judge and jury is final. It applies to those who are in police custody but who are not charged with a crime. It applies to those who are awaiting trial but who have not been able to make an excessive bail. It applies to death row prisoners who challenge their death sentence. It applies to prisoners who remain in custody after the expiration of their lawful sentence. Additionally, Habeas Corpus applies to both adults and children who are restrained of their liberty in some meaningful manner but who are not in the actual custody of police or other public authority. For example, Writs of Habeas Corpus have been issued in civil cases on application of a parent where a child�s custody is being sought against the wishes of the other parent who allegedly �restrains� the child. It applies equally to those who have been held because of their mental condition. And the writ applies equally for any other fact or circumstance, civil or criminal, in which the liberty of someone is restrained in any meaningful manner. Habeas Corpus extends even to those who are already released from actual custody on bail and who are contesting the manner and/or authority of the restrictions which bail places on their liberty or the charge for which they have been required to make bail. And although, research by this writer has failed to reveal any cases to date, home schooling contest are subject to the writ of Habeas Corpus. Parents whose authority to home school their own children and who are challenged by the state or other authority may properly file a Writ of Habeas Corpus to adjudicate the dispute as in any other child custody case. And, the writ may properly be signed and filed by an attorney - or - by �any other person� (See: Texas Code of Criminal Procedure, Article 11.12 and 11.13.) who has knowledge of the improvident restraint of liberty. In fact, there is legal precedent recognizing the duty of any citizen to proceed by Writ of Habeas Corpus to notice a court and to invoke the duty of the court as to Habeas Corpus when any illegal restraint of any other citizen is observed.

CAVEAT & SUMMARY: On a more ominous note, the Writ of Habeas Corpus is not without its detractors today. Movement is underway throughout the United States and each of the states to curtail the employment and exercise of Habeas Corpus. This questionable, if not highly suspicious, exercise can be divided generally into two camps. Congressional restrictions on the writ; and judicial restrictions on the writ. For example, the United States Congress enacted the anti terrorism act in April of 1996 which effectively stripped the Supreme Court of its power to review lower federal court rulings in Habeas Corpus cases. However, the Supreme Court retained its power to review petitions for Habeas Corpus which are directly submitted to the court. Additionally, and more disturbingly, there is evidence that the Writ of Habeas Corpus has in some jurisdictions been selectively suspended in certain types of cases.

For example, frequently State courts selectively ignore, as a practical matter, the effect of the writ in cases where citizens are charged with the �unauthorized practice of law�. In most of these jurisdictions, it is disturbing to note that it is an agency of the state Supreme Court itself which makes the complaint and then prosecutes the charge. In these cases the supreme court is making the charge, prosecuting the charge only to later sit in final adjudication of the charge before their own court. The consolidation of power as reflected in this practice against the liberty of individual citizens smacks of star chamber practice and should be condemned by state legislators as was the star chamber itself condemned by the English Parliament in 1641. Additionally, many of these cases result in imprisonment of the defendant in a purely civil case only to thereafter be effectively denied review by the Writ of Habeas Corpus. Tragically, in these cases the ordinary review by appeal is also denied leaving the defendant with no adequate remedy under law. The Writ of Habeas Corpus in such cases is simply �overruled� without comment or findings or supporting law. It is precisely this practice which was sought to be avoided by those constitutional provisions pertaining to the separation of powers as well as the constitutional provisions that the Writ of Habeas Corpus is never to be suspended. While all states have constitutional provisions pertaining to the separation of powers only a few states have provisions prohibiting the suspension of Habeas Corpus. Nevertheless, the Extraordinary Writ of Habeas Corpus remains as the final and most fundamental process by which one may test the propriety of a restraint on individual liberty.

Joseph Dale Robertson

What we can all do?

  
A small body of determined spirits fired by an unquenchable faith in their mission can alter the course of history!!! Mohandas Gandhi

1. Study import of the archaic Black Law of OSA and the effect on the RTI and highlight in public media.
2. Write to your Parliamentarian about the misuse of OSA for silencing those who are in the know how of what is wrong within government departments.
3. Write to human Rights commission and organizations around the world of abuses in the name of official Secrets
4. Bring media attention to the Black Law of OSA through letters to the Editor in English and all regional newspapers.

5 years of injustice and Human Rights Violation

Now it is more than 5 years since our friend, Brig Ujjal Dasgupta is rotting in the Tihar Cental jail meant for hard core criminals.

We avoid talking about it because of a misplaced feeling that it is unpleasant and that his name will get further spoiled (as if people already do not know the incident, the case or the aftermath)

Another pernicious tendency is to distance oneself from the accused because it is his battle. This tendency comes from the received wisdom during the service tenure where all people cut off any contact with the one who has come under the cloud for ones own career risk avoidance reasons. (You know exactly what I am talking about!)

https://docs.google.com/fileview?id=0B5gmTyGHnWOjMmEyNDViNDctZjRlYi00NThmLWE0NGUtNGMzZGU1NGVlOWI1&hl=en

https://docs.google.com/fileview?id=0B5gmTyGHnWOjZWU2NzBjZWEtNzE1Mi00NzcxLWI3YWQtODRhZWY4NGM1MTNj&hl=en&invite=CKfN5bMB

The whole thing is total bogus will be seen from the analysis of the above.
Here are some of the questions I raised after some research and analysis of  the above:

1. Has UD obtained a soft copy (electronic) of the JPEG document  from the forensic lab
   
2. Has he got the binary of the MCTE stegnography software anywhere?
3. Has he got the soft copy of the carrier file ( the rental agreement file)?
4. Have the Forensic lab carried out a number of trials with images and steg coding and their analysis to establish the level of accuracy of the tool especially when they believe the encoding was dome by the software in the thumb drive?
5. Have they established  average probability and threshold of detecting stenography in the case of Known-Stego Attack :When you conduct this type of attack, you have knowledge of the algorithm that is used to create the stenographic content, and the original file, and the file that has the hidden information are available to you. If the average probability  in such experiments are high, then you know 38% probability reported is too low.
6. 38% probability of presence of stenography is same as 62% probability of absence of stenography. Instead of 38%, even if it is very high probability  of presence, in such tools there is a very high false positives. Is UD aware of this?
7. Is UD aware that these Forensic lab people are NOT "experts" in stenography but they just run the tool and collect the results. Ability to drive a car does not mean a person is expert in automobile engineering. Is UD and his lawyer aware that the so called "expert" can be pinned down by appropriate questioning ?
8. Isn't UD aware that even if the presence of stenographic encoding is proved "beyond reasonable doubt" it does not prove the crime. The burden of proof of crime is still left with the prosecution because
   
1. Possession of stenographic software by itself is not a crime. There are many available in public domain.
2. Possession of the JPEG file of the rental agreement is NOT a crime.
3. Possession of a encoded file on which the software is run is NOT a crime because any one including a school student can run the software. ( UD's statement that he does not even know how to run the software wont contain any weight at all.)
4. The fact that UD knows how to conceal messages in stegnography is also NOT a crime.
9. Was active steganalysis in addition to passive steganalysis done and was any credible message derived out of the purported sample? (Passive steganalysis: Detect the presence or absence of a secret message in an observed message. Active steganalysis: Extract a (possibly approximate) version of the secret message from a stego message.  This task is much easier in this instant case because the only unknown is the secret message encoded and the rest are presumably known.)
10. What is the actual charge sheet  which the prosecution will have to prove "beyond reasonable doubt".?

Here is some material for reading:
 http://www.fbi.gov/hq/lab/fsc/backissu/july2004/research/2004_03_research01.htm


I am getting in touch with some researchers working in this area. It is not difficult to prove some of the facts about the large  false positives  in case of stegnoanalysis.


Ask UD to cheer up because it is tough for prosecution to prove any crime "beyond reasonable doubt".(I know it is easier said than to believe considering his state of mind in the current situation.)  There may be delays due to court red tapes but essentially prosecution has a very weak case. Technology can not obfuscate the basic difficulty.


In the meanwhile I am continuing with my study and analysis.



If page 5 of  https://docs.google.com/fileview?id=0B5gmTyGHnWOjZWU2NzBjZWEtNzE1Mi00NzcxLWI3YWQtODRhZWY4NGM1MTNj&hl=en&invite=CKfN5bMB is the country's  secret that he purported to have concealed in his thumb drive, and for which he is  incarcerated in Thihar jail for 5 long years along with the hard core criminals of the country, GOD save our government and  the justice system  of our glorious nation!

We need to raise the conscience of our course mates, veterans and the country against the human rights violation being committed against our friend. He is one of the finest officers amongst us needs no emphasis and yet no ones conscience is pricked by the injustice meted out to him by the very nation that he served gloriously for 40 years.
Nath

Repeal Colonial Era Official Secrets Act 1923

Here is the Act in original with comments:

Note: The Act was amended by UK in 1989 to include:

In order for a crime to be committed, the following conditions must apply:

1. the disclosure must not be by means permitted in section 7
2. the person making the disclosure must know, or should know, that their disclosure is unauthorised
3. the disclosure must cause harm to the UK or its interests, or it could reasonably be believed that harm could occur, and
4. the person making the disclosure must know, or should know, that such harm could occur

The sections pertaining to crown servants, intelligence officers, and government contractors apply only to information obtained by that person in the course of their official duties; these sections do not apply if the information was obtained by other means (although section 5 would apply).

The phrase official secrets act may also be used to refer to statutes of a similar nature in other countries such as India's Official Secrets Act 1923. Canada has similar legislation titled the Security of Information Act (which was created in the wake of September 11th 2001 to replace the vaguely worded Official Secrets Act [1].
The United States also has a law similar to the Official Secrets Act, but said law (the Espionage Act of 1917) is of extraordinarily dubious Constitutional standing (see United States v. The Progressive, Inc. , Brandenburg v. Ohio, The New York Times Co v. United States, etc.).
In the Republic of Ireland the Official Secrets Act, 1963, repealed previous British legislation of 1911 and 1920. The Official Secrets Act, as amended, applies to all civil servants and potentially anyone within the state. A suit may only be instigated at the approval of the Attorney General of Ireland, additionally proceedings may occur in camera but the verdict and any sentence must occur in public.
Malaysia has an Official Secrets Act (also referred to as the OSA) prohibiting the collection, possession or distribution of information marked as an official secret — an action which can be made by any public officer. The certification of a document as an official secret is not subject to judicial review, and a violation of the act is punishable with between one and seven years' imprisonment. The act has been controversial for its use to silence dissent and stifling anti-corruption activities.^[1]
New Zealand had a 1951 Official Secrets Act. It was replaced by the Official Information Act in 1983.
Australia has Part VII of the Crimes Act 1914 (Commonwealth), entitled Official Secrets and Unlawful Soundings .
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THE OFFICIAL SECRETS ACT, 1923
Year : 1923

Act : An Act to consolidate and amend the law relating to official secrets.

Whereas it is expedient that the law relating to official secrets should be consolidated and amended;

It is hereby enacted as follows: —

1. Short title, extent and application. — (1) This Act may be called the Official Secrets Act, 1923.

(2) It extends to the whole of India and applies also to servants of the Government and to citizens of India outside India.

2. Definitions. — In this Act, unless there is anything repugnant in the subject or context, —

(1) any reference to a place belonging to Government includes a place occupied by any department of the Government, whether the place is or is not actually vested in Government;

(2) expressions referring to communicating or receiving include any communicating or receiving, whether in whole or in part, and whether the sketch, plan, model, article, note, document, or information itself or the substance, effect or description thereof only be communicated or received; expressions referring to obtaining or retaining any sketch, plan, model, article, note or document, include the copying or causing to be copied of the whole or any part of any sketch, plan, model, article, note, or document; and expressions referring to the communication of any sketch, plan, model, article, note or document include the transfer or transmission of the sketch, plan, model article, note or document;

(3) "document" includes part of a document;

(4) "model" includes design, pattern and specimen;

(5) "munitions of war" includes the whole or any part of any ship, submarine, aircraft, tank or similar engine, arms and ammunition, torpedo, or mine intended or adapted for use in war, and any other article, material or device, whether actual or proposed, intended for such use;

(6) "office under Government" includes any office or employment in or under any department of the Government.

(7) "photograph" includes an undeveloped film or plate;

(8) "prohibited place" means —

(a) any work of defence, arsenal, naval, military or air force establishment or station, mine, minefield, camp, ship or aircraft belonging to, or occupied by or on behalf of, Government, any military telegraph or telephone so belonging or occupied, any wireless or signal station or office so belonging or occupied and any factory, dockyard or other place so belonging or occupied and used for the purpose of building, repairing, making or storing any munitions of war, or any sketches, plans, models or documents relating thereto, or for the purpose of getting any metals, oil or minerals of use in time of war;

(b) any place not belonging to Government where any munitions or war or any sketches, models, plans or documents relating thereto, are being made, repaired, gotten or stored under contract with, or with any person on behalf of, Government, or otherwise on behalf of Government;

(c) any place belonging to or used for the purpose of Government which is for the time being declared by the Central Government, by notification in the Official Gazette, to be a prohibited place for the purposes of this Act on the ground that information with respect thereto, or damage thereto, would be useful to an enemy, and to which a copy of the notification in respect thereof has been affixed in English and in the vernacular of the locality;

(d) any railway, road, way or channel, or other means of communication by land or water (including any works or structures being part thereof or connected therewith) or any place used for gas, water or electricity works or other works for purposes of a public character, or any place where any munitions of war or any sketches, models, plans, or documents relating thereto, are being made, repaired, or stored otherwise than on behalf of Government, which is for the time being declared by the Central Government, by notification in the Official Gazette, to be a prohibited place for the purposes of this Act on the ground that information with respect thereto, or the destruction or obstruction thereof, or interference therewith, would be useful to an enemy, and to which a copy of the notification in respect thereof has been affixed in English and in the vernacular of the locality;

(9) "sketch" includes any photograph or other mode of representing any place or thing; and

(10) "Superintendent of Police" includes any police officer of a like or superior rank, and any person upon whom the powers of a Superintendent of Police are for the purposes of this Act conferred by the Central Government.

3. Penalties for spying. — (1) If any person for any purpose prejudicial to the safety or interests of the State — (a) approaches, inspects, passes over or is in the vicinity of, or enters, any prohibited place; or

(b) makes any sketch, plan, model, or note which is calculated to be or might be or is intended to be, directly or indictly, useful to an enemy; or

(c) obtains, collects, records or publishes or communicates to any other person any secret official code or pass word, or any sketch, plan, model, article or note or other document or information which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy or which relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign States;

he shall be punishable with imprisonment for a term which may extend, where the offence is committed in relation to any work of defence, arsenal, naval, military or air force establishment or station, mine, minefield, factory, dockyard, camp, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Government or in relation to any secret official code, to fourteen years and in other cases to three years.

(2) On a prosecution for an offence punishable under this section, it shall not be necessary to show that the accused person was guilty of any particular act tending to show a purpose prejudicial to the safety or interests of the State, and, notwithstanding that no such act is proved against him, he may be convicted if, from the circumstances of the case or his conduct or his known character as proved, it appears that his purpose was a purpose prejudical to the safety or interests of the State, and if any sketch, plan, model, article, note, document, or information relating to or used in any prohibited place, or relating to collected, recorded, published or communicated by any person other than a person acting under lawful authority, and from the circumstances of the case or his conduct or his known character as proved it appears that his purpose was a purpose prejudical to the safety or interests of the State, such sketch, plan, model, article, note, document, information, code or pass word shall be presumed to have been made, obtained, collected, recorded, published or communicated for a purpose prejudicial to the safety or interests of the State.

Comments

Offending material — Possession of — Material prejudicial to national interest — Delay in apprehending accused — Complicity not rendered doubtful. Abdulla Gafur Sumra v. State of Gujrat. 1994 Cri.L.J. 966 (Guj)

4. Communications with foreign agents to be evidence of commission of certain offences. — (1) In any proceedings against a person for an offence under Section 3, the fact that he has been in communication with, or attempted to communicate with a foreign agent, whether within or without India shall be relevant for the purpose of proving that he has, for a purpose prejudicial to the safety or interests of the State, obtained or attempted to obtain information which is calculated to be or might be, or is intended to be, directly, useful to any enemy.

(2) For the purpose of this section, but without prejudice to the generality of the foregoing provision, —

(a) a person may be presumed to have been in communication with a foreign agent if — (i) he has, either within or without India visited the address of a foreign agent or consorted or associated with a foreign agent, or

(Comment: This is equivalent of saying that a rape is presumed to have been committed if a male was found to have a male sexual organ and it is specifically not necessary to prove that a rape has been committed. )

(ii) either within or without India the name or address of, or any other information regarding, a foreign agent has been found in his possession, or has been obtained by him from any other person;

(b) the expression "foreign agent" includes any person who is or has been or in respect of whom it appears that there are reasonable grounds for suspecting him of being or having been employed by a foreign power, either directly or indirectly, for the purpose of committing an act, either within or without India prejudicial to the safety or interests of the State, or who has or is reasonably suspected or having, either within or without India committed, or attempted to commit, such an act in the interests of a foreign power;

(c) any address, whether within or without India in respect of which it appears that there are reasonable grounds for suspecting it of being an address used for the receipt of communications intended for a foreign agent, or any address at which a foreign agent resides, or to which he resort for the purposes of giving or receiving communications, or at which he carries on any business, may be presumed to be the address of a foreign agent, and communications addressed to such an address to be communications with a foreign agent.

5. Wrongful communication, etc., of information. — (1) If any person having in his possession or control any secret official code or pass word or any sketch, plan, model, article, note, document or information which relates to or is used in a prohibited place or relates to anything in such a place, or which is likely to assist, directly or indirectly, an enemy or which relates to a matter the disclosure of which is likely to affect the sovereignty and integrity of India, the security of the State or friendly relations with foreign States or which has been made or obtained in contravention of this Act, or which has been entrusted in confidence to him by any person holding office under Government, or which he has obtained or to which he has had access owing to his position as a person who holds or has held office under Government, or as a person who holds or has held a contract made on behalf of the Government, or as a person who is or has been employed under a person who holds or has held such an office or contract —

(a) wilfully communicates the code or pass word, sketch, plan, model, article, note, document or information to any person other than a person to whom he is authorised to communicate it or a Court of Justice or a person to whom it is, in the interests of the State, his duty to communicate it; or

(b) uses the information in his possession for the benefit of any foreign power or in any other manner prejudicial to be safety of the State; or

(c) retains the sketch, plan, model, article, note or document in his possession or control when he has no right to retain it, or when it is contrary to his duty to retain it, or wilfully fails to comply with all directions issued by lawful authority with regard to the return or disposal thereof; or

(d) fails to take reasonable care of, or so conducts himself as to endanger the safety of, the sketch, plan, model, article, note, document, secret official code or pass word or information;

he shall be guilty of an offence under this section.

(2) If any person voluntarily receives any secret official code or password or any sketch, plan, model, article, note document or information knowing or having reasonable ground to believe, at the time when he receives it, that the code, password, sketch, plan, model, article, note, document or information is communicated in contravention of this Act, he shall be guilty of an offence under this section.

(3) If any person having in his possession or control any sketch, plan, model, article, note, document or information, which relates to munitions of war, communicates it, directly or indirectly, to any foreign power or in any other manner prejudicial to the safety or interests of the State, he shall be guilty of an offence under this section.

(4) A person guilty of an offence under this section shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both.

6. Unauthorised use of uniforms; falsification of reports, forgery, personation, and false documents. — (1) If any person for the purpose of gaining admission or of assisting any other person to gain admission to a prohibited place or for any other purpose prejudicial to the safey of the State —

(a) uses or wears, without lawful authority, any naval, military, air force, police or other official uniform, or any uniform so nearly resembling the same as to be calculated to deceive, or falsely represents himself to be a person who is or has been entitled to use or wear any such uniform; or

(b) orally, or in writing in any declaration or application, or in any documents signed by him or on his behalf, knowingly makes or connives at the making of any false statement or any omission; or

(c) forges, alters, or tampers with any passport or any naval, military, air force, police, or official pass, permit, certificate, licence, or other document of a similar character (hereinafter in this section referred to as an official document) or knowlingly uses or has in his possession any such forged, altered, or irregular official document; or

(d) personates, or falsely represents himself to be, a person holding, or in the employment of a person holding, office under Government, or to be or not to be a person to whom an official document or secret official code or pass word has been duly issued or communicated, or with intent to obtain an official document, secret official code or pass word, whether for himself or any other person, knowingly makes any false statement; or

(e) uses, or has in his possession or under his control, without the authority of the department of the Government or the authority concerned, any die, seal or stamp of or belonging to, or used, made or provided by, any department of the Government, or by any diplomatic, naval, military, or air force authority appointed by or acting under the authority of Government, or any die, seal or stamp so nearly resembling any such die, seal or stamp as to be calculated to deceive, or counterfeits any such die, seal or stamp, or knowingly uses, or has in his possession or under his control, any such counterfeited die, seal or stamp.

he shall be guilty of an offence under this section.

(2) If any person for any purpose prejudicial to the safety of the State —

(a) retains any official document, whether or not completed or issued for use, when he has no right to retain it, or when it is contrary to his duty to retain it, or wilfully fails to comply with any directions issued by any department of the Government or any person authorised by such department with regard to the return or disposal thereof; or

(b) allows any other person to have possession of any official document issued for his use alone, or communicates any secret official code or pass word so issued, or, without lawful authority or excuse, has in his possession any official document or secret official code of pass word issued for the use of some person other than himself, or, on obtaining possession of any official document by finding or otherwise, wilfully fails to restore it to the person or authority by whom or for whose use it was issued, or to a police officer; or

(c) without lawful authority or excuse, manufactures or sells, or has in his possession for sale, any such die, seal or stamp as aforesaid,

he shall be guilty of an offence under this section.

(3) A person guilty of an offence under his section shall be punishable with imprisonment for a term which may extend to three years or with fine, or with both.

(4) The provisions of sub-section (2) of Section 3 shall apply, for the purpose of proving a purpose prejudicial to the safety of the State, to any prosecution for an offence under this section relating to the naval, military or air force affairs of Government, or to any secret official code in like manner as they apply, for the purpose of proving a purpose prejudicial to the safety or interests of the State, to prosecutions for offences punishable under that Section.

7. Interfering with officers of the police or members of the Armed Forces of Union. — (1) No person in the vicinity of any prohibited place shall obstruct, knowingly mislead or otherwise interfere with or impede, any police officer, or any member of the Armed Forces of the Union enganged on guard, sentry, patrol, or other similar duty in relation to the prohibited place.

(2) If any person acts in contravention of the provisions of this Section, he shall be punishable with imprisonment which may extend to three years, or with fine, or with both.

8. Duty of giving information as to commission of offences. — (1) It shall be the duty of every person to give on demand to a Superintendent of Police, or other police officer not below the rank of Inspector, empowered by an Inspector-General or Commissioner of Police in this behalf, or to any member of the Armed Forces of the Union engaged on guard, sentry, patrol or other similar duty, any information in his power relating to an offence or suspected offence under Section 3 or under Section 3 read with Section 9 and if so required, and upon tender of his reasonable expenses, to attend at such reasonable time and place as may be specified for the purpose of furnishing such information.

(2) If any person fails to give any such information or to attend as aforesaid, he shall be punishable with imprisonment which may extend to three years or with fine, or with both.

9. Attempts, incitements, etc. — Any person who attempts to commit or abets the commission of any offence under his Act shall be punishable with the same punishment, and be liable to be proceeded against in the same manner as if he had committed such offence.

10. Penalty for harbouring spies. — (1) If any person knowingly harbours any person whom he know or has reasonable grounds for supposing to be a person who is about to commit or who has committed an offence under Section 3 or under Section 3 read with Section 9 or knowingly permits to meet or assembly in any premises in his occupation or under his control any such person, he shall be guilty of an offence under this section.

(2) It shall be the duty of every person having harboured any such person as aforesaid, or permitted to meet or assembly in any permises in his occupation or under his control any such persons as aforesaid, to give on demand to Superintendent of Police or other police officer not below the rank of Inspector empowered by an Inspector-General or Commissioner of Police in this behalf, any information in his power relating to any such person or persons, and if any person fails to give any such information, he shall be guilty of an offence under this section.

(3) A person guilty of an offence under this section shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both.

11. Search-warrants. — (1) If a Presidency Magistrate, Magistrate of the first class or Sub-Divisonal Magistrate is satisfied by information on oath that there is reasonable ground for suspecting that an offence under this Act has been or is about to be committed, he may grant a search-warrant authorising any police officer named therein, not being below the rank of an officer in charge of a police station, to enter at any time any premises or place named in the warrant, if necessary, by force, and to search the premises or place and every person found therein, and to seize any sketch, plan, model, article, note or document, or anything of a like nature, or anything which is evidence of an offence under this Act having been or being about to be committed which he may find on the premises or place or any such person, and with regard to or in connection with which he has reasonable ground for suspecting that an offence under this Act has been or is about to be committed.

(2) Where it appears to a police officer, not being below the rank of Superintendent, that the case is one of great emergency, and that in the interests of the State immediate action is necessary, he may by a written order under his hand give to any police officer the like authority as may be given by the warrant of a Magistrate under this section.

(3) Where action has been taken by a police officer under sub-section (2) he shall, as soon as may be, report such action, in a presidency town to the Chief Presidency Magistrate, and out side such town in the District or Sub-Divisional Magistrate.

12. Provisions of Section 337 of Act 5 of 1898 to apply to offences under Sections 3, 5 and 7. — The provisions of Section 337 of the Code of Criminal Procedure, 1898 [1] shall apply in relation to an offence punishable under Section 3 or under Section 5 or under Section 7 or under any of the said sections 3, 5 and 7 read with Section 9, as they apply in relation to an offence punishable with imprisonment for a term which may extend to seven years.

13. Restriction on trial of offences. — (1) No Court (other than that of a Magistrate of the first class specially empowered in this behalf by the appropriate Government which is inferior to that of a District or Presidency Magistrate shall try any offence under this Act.

(2) If any person under trial before a Magistrate for an offence under this Act at any time before a charge is framed claims to be tried by the Court of Session, the Magistrate shall, if he does not discharge the accused, commit the case for trial by that Court, notwithstanding that it is not a case exclusively triable by that Court.

(3) No Court shall take cognizance of any offence under this Act unless upon complaint made by order of, or under authority from, the appropriate Government or some officer empowered by the appropriate Government in this behalf.

(4) For the purposes of the trial of a person for an offence under this Act, the officer may be deemed to have been committed either at the place in which the same actually was committed or at any place in India in which the offender may be found.

(5) In this section, the appropriate Government means —

(a) in relation to any offences under Section 5 not connected with a prohibited place or with a foreign power, the State Government; and

(b) in relation to any other offence, the Central Government.

STATE AMENDMENTS

Gujarat

Same as in Maharasthra

[Bom. Act 23 of 1951]

Maharasthra

(1) In its application to the State of Bombay, in sub-section (1), after tthe word "Government" insert the words "or that of a Presidency Magistrate" and delete the words "which is inferior to that of a District or Presidency Magistrate".

[Bom. Act 23 of 1951].

Punjab, Haryana, Chandigarh:

(1) For the words `a Magistrate$ substitute the words `Judicial Magistrate$.

(2) For the words `which is inferior to that of a District or Presidency Magistrate$, substitute the words `or that of the Chief Judicial Magistrate$.

[Punjab Act 25 of 1964, Central Act 31 of 1966, and Haryana A.L.O. 1968].

14. Exclusion of public from proceedings. — In addition and without prejudice to any powers which a Court may possess to order the exclusion of the public from any proceedings if, in the course of proceedings before a Court against any person for an offence under this Act or the proceedings on appeal, or in the course of the trial of a person under this Act, application is made by the prosecution, on the ground that the publication of any evidence to be given or of any statement to be made in the course of the proceedings would be prejudicial to the safety of the State, that all or any portion of the public shall be excluded during any part of the hearing, the Court may make an order to that effect, but the passing of sentence shall in any case take place in public.

15. Offences by companies. — (1) If the person committing an offence under this Act is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to such punishment provided in this Act if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any negligence on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation. — For the purposes of this section, —

(a) "company" means a body corporate and includes a firm or other association of individuals; and

(b) "director", in relations to a firm, means a partner in the firm.

16. Repeals. [Rep. by the Repealing Act, 1927 (12 of 1927), Section 2 and Sch.]

The Process is the Punishment

Not All Fun and Games
Speaking up takes courage. Depending on where you live, it can have real consequences. Human Rights Watch is committed to protecting the right of every individual to express his/her opinions. Over the years, Human Rights Watch has actively campaigned for the rights of bloggers and cyber-dissidents around the world.

If one of the finest officers of the Indian Army is jailed in the Central jail of the country meant for hard core criminals for more than one and half years with out bringing even a single charge, it is a clear case of human rights violation.. If the officer and his family has suffered humiliation for years years and then freed for want of any grounds for charge or evidence, it is a case of human rights violation.

The process can not be the punishment. The process is justice in action. That itself can not be used to punish the officer!

Chandra Nath