Madhu.S and Nichu Willington*
“YOUR MOBILE NUMBER HAS WON 750,000 POUNDS FOR ONGOING ICC WORLD CUP T20 AWARD. TO CLAIM YOUR PRIZE, (SEND YOUR NAME, ADDRESS AND MOBILE#) VIA Email :firstname.lastname@example.org”. This tempting SMS has been received by millions of mobile users in India. However, there are no estimates on the number of people who got induced by such sham messages and lost money. Unfortunately, those who get cheated by these tempting SMS do not have much relief and are forced to repent. Many of them even do not report such incidents because of the shame, which has allowed the perpetrators, become habitual about faking people. The people are always at the receiving end as the offenders or perpetrators often operate from outside and escape the clutches of the law. The only thing Government can think of is to give a Statutory Warning as in Cigarette packets “Please don’t attend or reply to frisky calls and SMS” being issued for each call and message !! The telecom service providers meanwhile can bring a zoo zoo and tell its customers “Caveat emptor” (Let the buyer beware!!)
Taking action against these perpetrators have has been the most difficult task, owing to the modus operandi used in creating such messages or calls. The enforcement agencies end up in no man’s land inspite of tracking systems with the help of IT Cells located in most of the states and district capitals. Given the fact that they operate anywhere from London to Dubai to Nigeria, the extra-territoriality of jurisdiction is difficult to apply. The existing penal provision in the Indian Penal Code as to Cheating, deception or fraud maybe used to book and charge them. But the mere fact that the message was traced to Nigeria makes it difficult to enforce the law of the country, being India in this case.
However, what needs to be prodded is the absence of clear regulatory norms to prevent such fake SMS/Calls. The Telecom system in India from Messaging to Download of Apps in India is governed under the age old Indian Telegraph Act enacted by the Britisher’s in 1885, the year in which Indian National Congress was formed, giving it a tinge of history. The fact that the entire IT and ITE’s systems is governed by the archaic law have posed a major challenge for tackling major Cyber crimes. Though the Information Technology Act was formed to give clarity and can be credited to define cyber crimes and offences. The increasing dimension and constantly evolving nature of offences has made it difficult for the law to catch up eventually affecting the victims. It is therefore pertinent to delve upon the need for a better mechanism to tackle the menace.
Role of TRAI
The Telecom Regulatory Authority of India (TRAI) is considered as the major body dealing with Telecom related issues with the Telecom Disputes Settlement Appellate Tribunal (TDSAT) acting as the dispute resolution wing. The Department of Telecom (DoT) under the Ministry of Communications and Information Technology has been at loggerheads with TRAI while defining the scope of intervention in telecom matters. This ambiguity is reflected in the manner in which issues such as fake SMS or Calls are handled. TRAI came out with Telecom Unsolicited Commercial Communications Regulations in 2007 after much hue and cry against telemarketers which have been bothering the increasing Telecom customer base. TRAI forced Service Providers to regulate the Telemarketing business by identifying and restricting it. This led to the formulation of a Do Not Call Registry (Dial or SMS 1909) which contains the data base of all customers who does not want Telemarketers to bother them. While it was a good step in the right direction, the sheer manner in which telemarketer’s operated posed an issue for the government in preventing or regulating it. Telemarketers who are not registered under the Registry escaped the clutches of the regulation which actually defeats the purpose behind the same. This also stands true for fake messages or ‘Lottery Messages’ , which does not come under the definition of unsolicited telemarketing though it comes under Commercial Communication as defined under the Regulation. As a result one still receives such SMS or Calls even if he takes the pain to register in the DND registry. The Consumers is left with the only option of lodging complaint against their service providers for unsolicited transactional messages or calls as governed under Telecom Consumers Protection and Redressal of Grievances Regulation. In case the grievance is not redressed even after exhausting the procedure, an individual complainant without prejudice to his right to approach an appropriate Court of Law may approach Public Grievance Cell of Department of Telecommunications (DoT). This applied only in case the offender can be traced or identified. There has been an instance in Kerala wherein the victim with the help of local police was able to coerce the offender to come to India under the disguise of advancing money for the purported ‘lottery’ he had won. He was arrested and later put to jail. Such instances are rare and need the active support of the victim who needs to work in tandem with the enforcement agencies. However, habitual offenders have been defining crude plans which helps him to escape before been caught.
The larger issue of tackling fake SMS/Calls lies in building a technical infrastructure to prevent such SMS/Calls in reaching the customer base in India. Tracking signals and latlogs has been employed in an efficient manner by different technical agencies. Since many of them operate through the internet and keep on changing their IP Address, it is not easy to identify the exact location or locate the perpetrator. While a complete foolproof system may not be possible, it can definitely decrease the extent of damage.
Mobile literacy and etiquettes go to a large extent of preventing and even acting against the real perpetrators. Since the mobile and internet gives scope of privacy, so does the secrecy involved in such faking. It is import for mobile users 1) Not to get induced by such SMS/Calls, especially those which involve sending money 2) Not to reply to such SMS/Calls 3) To know about the grievance redressal mechanisms such as Police, TRAI, and Grievance Centres of the Service Providers he/she is using and lastly BEWARE.
This further needs to be supported by legal machinery which can take action against the perpetrators. Since the general law is not adequate in preventing such offenders, it would be worthwhile to have a specific regulation to tackle the menace. Much needs to be done for assisting those who fall prey to such SMS, given the state of mobile literacy of customers in India. As long as the tendency exists, we can hear many instances of people getting excited at winning lotteries or winning a Trip to USA!!
* Madhu.S is the Team Lead of CPPR and Nichu Willington has worked as Intern at CPPR