The Definitions, Part One: the Machine

Computer: clause (i)

"'Computer' means any electronic, magnetic, optical or other high-speed data processing device or system which performs logical, arithmetic, and memory functions by manipulations of electronic, magnetic or optical impulses, and includes all input, output, processing, storage, computer software or communication facilities which are connected or related to the computer in a computer system or computer network."

Three features, and each does work.

Technology neutral. "Electronic, magnetic, optical or other". A technology that does not yet exist is inside the definition if it processes data at high speed by manipulating impulses.

Functional. The test is performing logical, arithmetic and memory functions. A device is a computer because of what it does, not what it is called.

Inclusive. The keyboard, the monitor, the printer, the disk, the software and the communication facilities connected or related to it are all part of the computer. That matters for search and seizure under section 80 and for confiscation under section 76: seizing a computer means seizing its peripherals.

Computer system: clause (l)

"'Computer system' means a device or collection of devices, including input and output support devices and excluding calculators which are not programmable and capable of being used in conjunction with external files, which contain computer programmes, electronic instructions, input data and output data, that performs logic, arithmetic, data storage and retrieval, communication control and other functions."

The difference from clause (i) is that a computer system may be a collection of devices working as a unit, and that it must contain programmes, instructions and data.

The exclusion is the only express exclusion in the machine definitions. A calculator which is neither programmable nor capable of being used with external files is not a computer system. A programmable one is not excluded, and neither is a scientific calculator that reads a memory card.

Clause (l) also adds two functions to the list: data storage and retrieval, and communication control.

Computer network: clause (j)

"'Computer network' means the inter-connection of one or more computers or computer systems or communication device through (i) the use of satellite, microwave, terrestrial line, wire, wireless or other communication media; and (ii) terminals or a complex consisting of two or more interconnected computers or communication device whether or not the inter-connection is continuously maintained."

This clause was substituted by the 2008 amendment, and two changes matter. The original required two or more computers; the substituted clause says "one or more computers or computer systems or communication device", which brings a phone connected to a server inside it. And the closing words, "whether or not the inter-connection is continuously maintained", put beyond argument that an intermittent connection is a network.

The list of media is illustrative and closed with "or other communication media", so a technology not listed is inside.

Computer resource: clause (k)

"'Computer resource' means computer, computer system, computer network, data, computer data base or software."

Six words, and three of them are not machines. This is the widest term in the Act and the one to watch. It includes data, a computer database and software.

Which sections use it? Section 43 in some of its clauses, section 66C, 66D, 66E and 66F, sections 69, 69A and 69B, section 70, section 72A, section 79, and the definitions of cyber cafe and cyber security. In short, every provision written or rewritten in 2008 uses computer resource, and the older ones use the narrower terms.

That is the single most useful observation in this chapter, and it explains why the State powers reach a file and a website while section 43's older clauses are written around machines.

Communication device: clause (ha)

"'Communication device' means cell phones, personal digital assistance or combination of both or any other device used to communicate, send or transmit any text, video, audio or image."

Inserted in 2008, and its function is to put a phone inside the Act without argument. A phone is a computer under clause (i) anyway, but in 2008 that was not obvious to everybody, and several offences are framed in terms of "a computer resource or a communication device" precisely to close the point. Section 66C and section 66D are both drafted that way.

Data, information, electronic form and electronic record

"'Data' means a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a formalised manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer printouts magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer." Clause (o).

The words in brackets carry the surprise. A computer printout is data. So a person who takes a printed report has taken data, and the offence or contravention does not fail because nothing electronic was touched at the moment of taking.

"'Information' includes data, message, text, images, sound, voice, codes, computer programmes, software and data bases or micro film or computer generated micro fiche." Clause (v), as amended in 2008 to add "data, message, text".

So information is the wider word and data sits inside it, which is the opposite of the ordinary usage in which data is raw and information is data with meaning. Chapter 20 explains the ordinary usage; the statute reverses it, and an answer must use the statute's.

"'Electronic form', with reference to information, means any information generated, sent, received or stored in media, magnetic, optical, computer memory, micro film, computer generated micro fiche or similar device." Clause (r).

"'Electronic record' means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche." Clause (t).

Electronic record is the unit the whole Act operates on. Sections 3, 4, 7, 11, 12, 13, 14, 65 and 67 are all about electronic records, and the term corresponds to the Model Law's "data message", which chapter 60 works.

Function, and secure system

"'Function', in relation to a computer, includes logic, control, arithmetical process, deletion, storage and retrieval and communication or telecommunication from or within a computer." Clause (u). Note that deletion is expressly a function, which matters for section 43(d) and for section 65.

"'Secure system' means computer hardware, software, and procedure that (a) are reasonably secure from unauthorised access and misuse; (b) provide a reasonable level of reliability and correct operation; (c) are reasonably suited to performing the intended functions; and (d) adhere to generally accepted security procedures." Clause (ze). Chapter 220 works secure records and signatures.

"'Security procedure' means the security procedure prescribed under section 16 by the Central Government." Clause (zf).

Cyber cafe and cyber security

"'Cyber cafe' means any facility from where access to the internet is offered by any person in the ordinary course of business to the members of the public." Clause (na), inserted 2008. Chapter 1430 works the Cyber Cafe Rules 2011.

"'Cyber security' means protecting information, equipment, devices, computer, computer resource, communication device and information stored therein from unauthorised access, use, disclosure, disruption, modification or destruction." Clause (nb), inserted 2008.

Clause (nb) is the statutory definition of the phrase MU prints as topic 3.3, and it is worth noticing that it is a definition by reference to six harms: unauthorised access, use, disclosure, disruption, modification and destruction. Chapter 750 builds on it.

The four terms side by side, with what turns on each

A worked example

Nikhil, who works for a Pune analytics firm, copies a client database to a personal drive on his last day and emails a summary to a competitor.

Was there access? Yes, under clause (a): he communicated with and instructed the memory function resources of his employer's computer system. It does not matter that he was authorised to be at the keyboard; authorisation to use is not authorisation to copy, and section 43 turns on whether the act was without permission of the owner.

What did he take? The database is data under clause (o) and a computer data base, so it is also a computer resource under clause (k). The summary email is an electronic record under clause (t).

Which sections reach it? Section 43(b) covers downloading, copying or extracting data from a computer, computer system or computer network. Section 66 makes the same act an offence if done dishonestly or fraudulently. Section 72A may reach him if he was a person providing services under a contract who disclosed personal information in breach of it, because that section is drafted around a computer resource. Chapters 1100, 1180 and 1250 own those three.

Change one fact. Suppose he printed the database and carried out the paper. There is now no access under clause (a), because he did not gain entry into, instruct or communicate with anything after the printing. But the printout is still data under clause (o), so his employer's remedies under the general law and any offence of criminal breach of trust remain, and the point is that the Act's reach turned on the definition and not on the wrongfulness of what he did.

What this does NOT mean

It does not mean the four machine terms are interchangeable. Reading "computer resource" into a section that says "computer" widens the section beyond what Parliament wrote, and reading "computer" into a section that says "computer resource" narrows it.

It does not mean the section 2 definitions govern other statutes. They apply "in this Act, unless the context otherwise requires". Where the Bharatiya Sakshya Adhiniyam or the Copyright Act uses similar words it has its own definitions, and chapter 480 shows how differently the Copyright Act defines a computer programme.

It does not mean information means what it means in ordinary speech. In the Act, information includes data, which is the reverse of the usual relationship.

It does not mean everything in section 2 is here. The definitions about people and transactions, originator, addressee, intermediary, subscriber, Certifying Authority, key pair and the rest, are in chapter 160.

Quick revision

• Access, 2(1)(a): gaining entry into, instructing or communicating with the logical, arithmetical or memory function resources. Instruction alone is access.
• Computer, 2(1)(i): technology neutral, functional, and inclusive of peripherals, storage, software and communication facilities.
• Computer system, 2(1)(l): a device or collection of devices; excludes a calculator that is not programmable and cannot use external files.
• Computer network, 2(1)(j): substituted in 2008; one or more computers, systems or communication devices; whether or not the interconnection is continuously maintained.
• Computer resource, 2(1)(k): the widest. Computer, computer system, computer network, data, computer data base or software. Every provision written in 2008 uses it.
• Data, 2(1)(o): includes a computer printout. Information, 2(1)(v): includes data, so information is the wider word.
• Electronic record, 2(1)(t): the unit the Act operates on; the Model Law's data message.
• Communication device, 2(1)(ha), cyber cafe, 2(1)(na), cyber security, 2(1)(nb), electronic signature, 2(1)(ta) and Electronic Signature Certificate, 2(1)(tb): all inserted in 2008.

Test yourself

1. Distinguish computer, computer system and computer network. A computer, section 2(1)(i), is a high-speed data processing device performing logical, arithmetic and memory functions, including its input, output, storage, software and communication facilities. A computer system, section 2(1)(l), is a device or collection of devices including input and output support devices, containing programmes, instructions and data, that performs logic, arithmetic, storage and retrieval and communication control, expressly excluding a calculator that is not programmable and cannot use external files. A computer network, section 2(1)(j), is the interconnection of one or more computers, computer systems or communication devices by any medium, whether or not the interconnection is continuously maintained.

2. Why does it matter that section 69 uses "computer resource" and section 43 in part uses "computer, computer system or computer network"? Because computer resource, section 2(1)(k), additionally includes data, a computer database and software, while the other three are machines. A power framed around a computer resource therefore reaches a file, a database or a program directly, whereas a provision framed around the machines reaches data only through the specific acts the provision lists.

3. A person floods a website with automated requests until it stops responding. Has he accessed it? Yes. Section 2(1)(a) makes instructing or communicating with the logical, arithmetical or memory function resources of a computer, computer system or computer network access, so entry is not required. That is why a denial of service attack is within section 43(f), which covers denying or causing the denial of access to any person authorised to access.

4. Is a printout data? Yes. Section 2(1)(o) provides that data may be in any form, "including computer printouts, magnetic or optical storage media, punched cards, punched tapes", so a printed representation of processed information is data within the Act.

5. Which definitions were inserted or substituted by the 2008 amendment, and why does it matter? Inserted: communication device, clause (ha); cyber cafe, (na); cyber security, (nb); electronic signature, (ta); Electronic Signature Certificate, (tb); and Indian Computer Emergency Response Team, (ua). Substituted: computer network, clause (j), and intermediary, clause (w). It matters because a book or a judgment predating 27 October 2009 works from a materially different section 2, and because every provision the amendment inserted is drafted using the vocabulary it inserted with them.