On February 8, newspapers across the country carried a report about two men arrested by the Delhi police's cyber cell on charges of hacking a Web site.

Buried in the inside pages, the report said Amit Parsari, a 23-year-old B Tech from the Open University, British Columbia, and Kapil Juneja, 24, a computer diploma holder, residents of Daryaganj, New Delhi, had been arrested for 'hacking' the Web site, www.go2nextjob.com.

The duo had been charged under section 66 of the Information Technology Act that deals with hacking, and under section 406 of the Indian Penal Code for criminal breach of trust.

Parsari and Juneja ran Softweb Solutions Inc, a Web solutions and hosting provider firm with a turnover of Rs 2 million per year for the last three years.

The duo, whose company hosts and provides the Web space for www.go2nextjob.com, had a dispute over payment with the site's owner, Manmohan Gupta.

They, thus, decided to block access to the site. They hung a board on the front page of the site that proclaimed, 'This site is closed due to non-payment of bills,' along with their address, email ID and telephone number.

In return, Gupta filed a case against them for 'hacking' into his site and charged that the two had illegally blocked access despite him paying the dues.

Take away the techno-babble and the dispute seems like the one that businesses have to routinely deal with, non-payment for services rendered.

While blockage of service due to dispute over payment for services sounds rational, Parsari and Juneja were instead slapped with a case that charged them for 'hacking' and condemned them to Tihar jail under a non-bailable charge.

The two men ended up spending six days at Tihar jail in Class 'C' cells as undertrials because their bail was initially denied by a Delhi court.

The case created a furore for two reasons: One, it was the first case to be registered in Delhi under the newly passed IT Act, 2000. And second, the case seemed to challenge the definition of 'hacking' as suggested by the IT Act and the Delhi Police.

It all started on May 30, 2000. Gupta approached Softweb Solutions Inc to host his Web site, www.go2nextjob.com, a site for job aspirants and employers.

SoftWeb had clients like IIT-Delhi, Vatsa Corporation, the Delhi government's directorate of training and technical education, HMT and the Business India group.

Gupta had heard about the company from friends at the Vatsa group, whose Web site www.vatsatv.com was maintained by Softweb. At his request, Softweb booked 50 MB of space for one year from the US Web space provider, rackspace.com.

All seemed well, till June 20, when Softweb sent the first invoice to Gupta charging Rs 9,000 for the services rendered. This is when the dispute started.

"Despite seven months of chasing (Gupta), he refused to pay up. When Parsari and Juneja decided to shut down the site for non-payment he decided to teach them a lesson and registered a case with the Delhi police," Pavan Duggal, lawyer for the accused, said.

Gupta, however, contests this. "I had issued cheque no 43891 on July 19 from Bank of Punjab for Rs 9,000, which was cleared on August 2," he said.

And on this seemingly insignificant detail hinges the case.

Duggal charges that the cheque was issued as payment for services rendered to another Web site, www.vatsacyberlogy.net, also managed by the duo. Gupta, however, declares that he has no connection with this site.

"Though Gupta issued a cheque it was for some other site, and that is still being hosted by Softweb. Gupta has not paid up for www.go2nextjob.com, as a result of which the duo blocked access to the site. The cheque he issued was under the legal entity of Vatsa Cyberlogy Insititute," Duggal explained.

Gupta concedes he is a franchisee of the Vatsa Cyberlogy Insititute, but denies that the cheque was not a payment for this site.

Finally, on February 7, Gupta filed a complaint with the Kalkaji police station, right after which in the evening, the police cyber cell raided the Softweb Solutions office in Daryaganj and took away printouts of the closure notice on the site as evidence.

But the step taken by the cyber cell in the case of go2nextjob.com has created confusion about the definition of 'hacking'.

Cyberlaw experts believe the accused were not trespassing when they blocked the site.

"Technically speaking, when a hosting service provider withdraws his service, he is not in any way damaging the content of the site. He is de-linking the existing default page of the relevant directory to the DNS and linking a new page. This de-linking and linking is a normal network administrator's function. This is not the same as a third party unauthorisedly entering into the Network and defacing an existing page or diverting the link to some other page, " Na Vijayshankar, a cyberlaw expert from Madras, said.

The case racked up a controversy in the Web hosting industry. Many Web hosting providers felt that because of the interpreted definition of 'hacking', they cannot do anything against a Web site's owner if s/he does not pay the rent of the server s/he uses to host the site.

Section 66 of the IT Act, under which the accused are charged, defines hacking as: Whoever with the intent to cause or knowing that he is likely to cause wrongful loss or damage to the public or any person destroys or deletes or alters any information residing in a computer resource or diminishes its value or utility or affects it injuriously by any means, commit hacking.

Many Web sites reside on rented servers owned by the service providers. These service providers, in turn, take a large space on rent in US and lease it out to their retail customers in India, which basically boils down to space re-selling. So, if dues are not paid or if there is any dispute over payment the service providers block access to the sites hosted on their servers.

But under the interpretation taken in this case, if a service provider blocks a Web site as its owner has not paid the rent for the server it uses, it would fulfill the criteria phrased in the Act as 'diminishes its value or utility'. This can result in a situation where a Web site owner would refuse to pay up and the service provider would not be able to take action.

Bhavin Turakhia, chief executive officer of diretci.com, a Web hosting and solutions provider in Bombay, says, "The action taken against the duo is unjustified. The only way for us now is to have watertight contracts with our clients."

"Many server space providers have started restoring Web sites which they had earlier blocked because of non-payment of hosting charges. Hosting service providers are complaining they have been receiving phone calls from defaulted users threatening them that either they restore the sites or they would complain against them for hacking the sites," Duggal said.

So, can a case where the dispute over payment of dues for Web space, be registered as an offence of 'hacking' under Section 66 of the IT Act, 2000?

"Clearly this is an issue which hardly comes within the accepted norms and mischief of hacking. Further, when a customer does not pay for Web space to the Web hosting company, the customer has no legal right to the Web space. In such a case, the Web space remains the property of the hosting company and the company can place any banner on the space, which is legally vesting with it," Duggal said.

Gupta, however, refuses to accept this line of defence. "They entered illegally into the Web site as I had not given them permission. So, I told the police it is a case of hacking. They had no right to put up a notice on mysite, saying they were closing it down," he retorted.

The first case to be registered in the capital under the IT Act has made it necessary to impart greater training to the police on the nuances of technology.

Meanwhile, for Parsari and Juneja, life will not be the same again. The duo have gone into hiding, refusing all requests to speak to the media after they were granted bail on February 9. They now wait for the police to file the challan and start trial. If convicted, they will face imprisonment up to three years or with a fine which may extend up to Rs 200,000, or both.

Design: Lynette Menezes

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