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Cyber Jurisprudence, a Developing Concept
The Latin words jus and prudentia being mutated as jurisprudence in English has been defined as “knowledge of law or knowledge of just and unjust. Etymologically, no doubt this definition conforms to the word but it brings within its compass every branch of law.In Bragg vs. linden court hold that ‘although the facts of the case are virtual but the dispute is real’.
It is clear however that the virtual acquisitions had the requisites of a “Property” since they had a value, could be owned, transferred or otherwise dealt with. If the value of the property was entirely in the virtual currency such as “lindens’, then the dispute would have been entirely in the virtual space and fit for a “Virtual Court” to decide. But in the instance case, the convertibility of lindens to dollars creates a distinct link to the physical world and hence the dispute spills over to the physical space.
Analogous troubles will arise in the future in several other transactions on the virtual space and we should keep ourselves mentally prepared for accepting new concepts of virtual property and laws relating to virtual property. The initial attempt is of course to extend the known physical society concepts to the virtual space while in due course we need to develop separate Cyber Jurisprudence to deal with such disputes.
If the Bragg’s case is to be decided in Pakistan according to physical laws, the nature of the property being “Land”, the transfer should be subject to “Transfer of Property Act” and “Registration Act”. Transfer of Property Act does not however recognize “virtual land” as an immovable property and therefore the transaction would not be valid under its provisions. If however, the piece of “Virtual Land” is considered a “unit of property” created out of the contractual agreement between the player and the gaming company as well as one player with another player, while it enables application of the concepts of “Contract Laws”, it conflicts with the basic requirement of “Meeting of the Minds” in contracts. The reason is that in this case, the parties dealt with the “unit of property” as an “Immovable Property” and not as any thing else. If the buyer and the seller thought and acted as if thy were buying and selling a piece of land, it would be in appropriate to adjudicate on the dispute ignoring this basic thought behind the transaction and considering it as some thing else.
Legal issues relating to the electronic and internet in this contemporary world as being necessitated of new kind of jurisprudence, which may be cyber jurisprudence. Cyber jurisprudence gives an analysis of the law where, is no land and even there is no border, where all things may be different from the physical world, they may be virtual from origin and nature. We may find virtual world with virtual rules and policies, along with the virtual subject matter, virtual contract, virtual disputes, virtual property (including tangible or intangible), virtual possession and virtual court. Cyber jurisprudence deals with the composite idea of cyber jurisdiction and cyber court’s venue in the cyberspace. It emphasis to recognize cyber uniform rules and policies at international level, it also discusses with the netizens and netiquates.
The modern jurists have to had getting heads together to endow with the rationale pedestal of jurisprudence to this ruling, now we can ascertain utmost exact definition of cyber jurisprudence as “this describes the principles of legal issues, which exclusively regulates the cyberspace and internet”.
Cyber Crimes
1. Synopsis Of The Article.Information Technology solutions have paved a way to a new world of internet, business networking and e-banking, budding as a solution to reduce costs, change the sophisticated economic affairs to more easier, speedy, efficient, and time saving method of transactions. Internet has emerged as a blessing for the present pace of life but at the same time also resulted in various threats to the consumers and other institutions for which it’s proved to be most beneficial. Various criminals like hackers, crackers have been able to pave their way to interfere with the internet accounts through various techniques like hacking the Domain Name Server (DNS), Internet Provider’s (IP) address, spoofing, phishing, internet phishing etc. and have been successful in gaining “unauthorised access” to the user’s computer system and stolen useful data to gain huge profits from customer’s accounts.
Intentional use of information technology by cyber terrorists for producing destructive and harmful effects to tangible and intangible property of others is called “cyber crime”. Cyber crime is clearly an international problem with no national boundaries. Hacking attacks can be launched from any corner of the world without any fear of being traced or prosecuted easily. Cyber terrorist can collapse the economic structure of a country from a place where that country might not have any arrangements like “extradition treaty” to deal with that criminal. The only safeguard would be better technology to combat such technology already evolved and known to the Hackers. But that still has threat of being taken over by the intellect computer criminals.
This paper contributes an understanding of the effects of negative use of Information technology, and how far the present law in India is successful in dealing with the issue, and what way is the legal structure lagging to curb the crime. Possible changes needed in the system and the ways to combat cyber terrorism having safe and trustworthy transactions.
Though there are many techniques evolved to curb the criminal activities by cyber terrorists but still the problem persists in legal structure and has failed to produce a deterring effect on the criminals. If the suggestions are undertaken in light of conclusion there can be a better co-ordination among various national and international agencies to make the system more efficient, and Information Technology Act 2000 more secured and trustworthy. It can still be held good for the objects it had existed to provide the benefits to the society. This paper is contributive of the fact that the till the crime rate is not curbed technology cannot produce adequate benefits for which it’s been created.
2. What Is Cyber Crime?
Cyber terrorists usually use the computer as a tool, target, or both for their unlawful act either to gain information which can result in heavy loss/damage to the owner of that intangible sensitive information. Internet is one of the means by which the offenders can gain such price sensitive information of companies, firms, individuals, banks, intellectual property crimes (such as stealing new product plans, its description, market programme plans, list of customers etc.), selling illegal articles, pornography etc. this is done through many methods such as phishing, spoofing, pharming, internet phising, wire transfer etc. and use it to their own advantage without the consent of the individual.
Many banks, financial institutions, investment houses, brokering firms etc. are being victimised and threatened by the cyber terrorists to pay extortion money to keep their sensitive information intact to avoid huge damages. And it’s been reported that many institutions in US, Britain and Europe have secretly paid them to prevent huge meltdown or collapse of confidence among their consumers.
2.2. Emergence Of Information Technology Act, 2000.
In India, the Information Technology Act 2000 was enacted after the United Nation General Assembly Resolution A/RES/51/162, dated the 30th January, 1997 by adopting the Model Law on Electronic Commerce adopted by the United Nations Commission on International Trade Law. This was the first step towards the Law relating to e-commerce at international level to regulate an alternative form of commerce and to give legal status in the area of e-commerce. It was enacted taking into consideration UNICITRAL model of Law on e- commerce 1996.
Data Theft in Cyber Space
The rapid development of Information technology poses new challenges before the law. These challenges are not confined to any single traditional legal category but arise in, for example, Criminal Law, Intellectual Property Law, Contract and Tort. One such challenge is the growing menace of “Data Theft”. It is the term used when any information in the form of data is illegally copied or taken from a business or other individual without his knowledge or consent.Data as a valuable asset
Data is a valuable asset in this modern era of Information Technology (IT). Data is an important raw-material for Call Centers and I.T. Companies. Data has also become an important tool and weapon for Corporates to capture larger market shares. Due to the importance of Data in this new era, its security has become a major issue with the I.T. industry. The piracy of data is a threat, faced by the I.T. players, who spend millions to compile or buy data from the market. Their profits depend upon the security of their Data.
Issues
The major issue regarding Data Theft is its International character, for example Systems may be accessed in USA, the data manipulated in China and the consequences felt in India. The result of this ability is that different sovereignties, jurisdictions, laws and rules will come into play which again is an issue in itself. Further, collection of evidence in such circumstances become another issue as investigation in three different countries, all of whom may not be in talking terms, is almost impossible and poor technical know-how of our cops adds to the woes. Also, the lack of coordination between different investigating agencies and a not-so-sure extradition process is another head ache. However the biggest of all these issues is the lack of specific laws in the country dealing with this crime, so even if the culprit is caught he can easily get away by picking and choosing any of the of various loopholes in our law.
Does India have sufficient Laws?
The problem of data theft which has emerged as one of the major cyber crimes worldwide has attracted little attention of law makers in India. Unlike U.K which has The Data Protection Act, 1984 there is no specific legislation in India to tackle this problem, though India boasts of its Information Technology Act, 2000 to address the ever growing menace of cyber crimes, including data theft. The truth is that our IT Act, 2000 is not well equipped to tackle such crimes. The various provisions of the IT Act, 2000 which deal with the problem to some extent are briefly discussed below.
Section 43:- This section provides protection against destruction and unauthorized access of the computer system by imposing heavy penalty up to one crore. The unauthorized downloading, extraction and copying of data are also covered under this section. Clause ‘C’ of this section imposes penalty for unauthorized introduction of computer viruses of contaminants. Clause ‘G’ provides penalties for assisting the unauthorized access.
Section 65:- This section provides for computer source code. If anyone knowingly or intentionally conceals, destroys, alters or causes another to do as such shall have to suffer imprisonment of up to 3 years or fine up to 2 lakh rupees. Thus protection has been provided against tampering of computer source documents.
Section 66:- Protection against hacking has been provided under this section. As per this section, hacking is defined as any act with an intention to cause wrongful loss or damage to any person or with the knowledge that wrongful loss or damage will be caused to any person and information residing in a computer resource must be either destroyed, deleted, altered or its value and utility get diminished. This section imposes the penalty of imprisonment of up to three years or fine up to two lakh rupees or both on the hacker.
Section 70:- This section provides protection to the data stored in the protected system. Protected systems are those computers, computer system or computer network to which the appropriate government, by issuing gazette information in the official gazette, declared it as a protected system. Any access or attempt to secure access of that system in contravention of the provision of this section will make the person accessed liable for punishment of imprisonment which may extend to ten years and shall also be liable to fine.
Section 72:- This section provides protection against breach of confidentiality and privacy of the data. As per this, any person upon whom powers have been conferred under IT Act and allied rules to secure access to any electronic record, book, register, correspondence, information document of other material discloses it to any other person, shall be punished with imprisonment which may extend to two years or with fine which may extend to one lakh rupees or both.
Can Data Theft be covered under IPC?
Section 378 of the Indian Penal Code, 1860 defines ‘Theft’ as follows:-
Theft – Whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft.
Section 22 of I.P.C., 1860 defines “movable property” as follows:-
“The words “movable property” are intended to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth.”
Since Section 378 I.P.C., only refers to “Movable Property” i.e. Corporeal Property, and Data by itself is intangible, it is not covered under the definition of "Theft”. However, if Data is stored in a medium (CD, Floppy etc.) and such medium is stolen, it would be covered under the definition of ‘Theft’, since the medium is a movable property. But, if Data is transmitted electronically, i.e., in intangible form, it would not specifically constitute theft under the IPC.
“Data”, in its intangible form, can at best be put at par with electricity. The question whether electricity could be stolen, arose before the Hon’ble Supreme Court in the case “Avtar Singh vs. State of Punjab” (AIR 1965 SC 666). Answering the question, the Supreme Court held that electricity is not a movable property, hence, is not covered under the definition of ‘Theft’ under Section 378 IPC. However, since Section 39 of the Electricity Act extended Section 378 IPC to apply to electricity, so it so became specifically covered within the meaning of “Theft”. It is therefore imperative that a provision like in the Electricity Act be inserted in the IT Act, 2000 to extend the application of section 378 IPC to data theft specifically.
What do we need and why do we need?
It is imperative in today’s world that an emerging IT super power like India has a comprehensive legislation to protect its booming IT and BPO Industries (worst affected industries) against such crimes. Though the IT Act may appear sufficient in this regard but it is not comprehensive enough to tackle the minute technological intricacies involved in such a crime which leaves loopholes in the law and the culprits get away easily. Since this problem is not confined to one nation and has international dimensions, India must look forward to be a signatory to any international convention or treaty in this regard. Also it high time that our national police organizations are trained to deal with such crimes.
Cyber Crimes Part 2
DISTINCTION BETWEEN CONVENTIONAL AND CYBER CRIME-There is apparently no distinction between cyber and conventional crime as both the crimes results into some sort of loss to one of the parties. However on a deep introspection we may say that there exists a fine line of demarcation between the conventional and cyber crime, which is appreciable. The demarcation lies in the involvement of the medium in cases of cyber crime.
MODE AND MANNER OF COMMITING CYBER CRIME:
1.HACKING:
This kind of offence is normally referred as hacking in the generic sense. However the framers of the information technology Act 2000 have no where used this term so to avoid any confusion we would not interchangeably use the word hacking for ‘unauthorized access’ as the latter has wide connotation.
2.THEFT OF INFORMATION CONTAINED IN ELECTRONIC FORM:
This includes information stored in computer hard disks, removable storage media etc. Theft may be either by appropriating the data physically or by tampering them through the virtual medium.
3.EMAIL BOMBARDING:
This kind of activity refers to sending large numbers of mail to the victim, which may be an individual or a company or even mail servers there by ultimately resulting into crashing of the entire system.
4.DATA DIDDLING:
This kind of an attack involves altering raw data just before a computer processes it and then changing it back after the processing is completed.
5.SALAMI ATTACKS:
This kind of crime is normally prevalent in the financial institutions or for the purpose of committing financial crimes. An important feature of this type of offence is that the alteration is so small that it would normally go unnoticed.
6.DENIAL OF SERVICE ATTACK:
The computer of the victim is flooded with more requests than it can handle which cause it to crash. Distributed Denial of Service (DDoS) attack is also a type of denial of service attack, in which the offenders are wide in number and widespread.
7.VIRUS OR WORM ATTACKS:
Viruses are programs that attach themselves to a computer or a file and then circulate themselves to other files and to other computers on a network. They usually affect the data on a computer, either by altering or deleting it. Worms, unlike viruses do not need the host to attach themselves to. They merely make functional copies of themselves and do this repeatedly till they eat up all the available space on a computer's memory. E.g. love bug virus, which affected at least 5 % of the computers of the globe. The losses were accounted to be $ 10 million. The world's most famous worm was the Internet worm let loose on the Internet by Robert Morris sometime in 1988. Almost brought development of Internet to a complete halt.
8.LOGIC BOMBS:
These are event dependent programs. This implies that these programs are created to do something only when a certain event (known as a trigger event) occurs. E.g. even some viruses may be termed logic bombs because they lie dormant all through the year and become active only on a particular date (like the Chernobyl virus).
9.TROJAN ATTACKS:
This term has its origin in the word ‘Trojan horse’. In software field this means an unauthorized programme, which passively gains control over another’s system by representing itself as an authorised programme. The most common form of installing a Trojan is through e-mail. E.g. a Trojan was installed in the computer of a lady film director in the U.S. while chatting. The cyber criminal through the web cam installed in the computer obtained her nude photographs. He further harassed this lady.
10.INTERNET TIME THEFT:
Normally in these kinds of thefts the Internet surfing hours of the victim are used up by another person. This is done by gaining access to the login ID and the password. E.g. Colonel Bajwa’s case- the Internet hours were used up by any other person. This was perhaps one of the first reported cases related to cyber crime in India. However this case made the police infamous as to their lack of understanding of the nature of cyber crime.
11.WEB JACKING:
This term is derived from the term hi jacking. In these kinds of offences the hacker gains access and control over the web site of another. He may even mutilate or change the information on the site. This may be done for fulfilling political objectives or for money. E.g. recently the site of MIT (Ministry of Information Technology) was hacked by the Pakistani hackers and some obscene matter was placed therein. Further the site of Bombay crime branch was also web jacked. Another case of web jacking is that of the ‘gold fish’ case. In this case the site was hacked and the information pertaining to gold fish was changed. Further a ransom of US $ 1 million was demanded as ransom. Thus web jacking is a process where by control over the site of another is made backed by some consideration for it.
Cyber Crimes Part 1
INTRODUCTION:With the day to day evolution of human mind , the modes of committing crime are also drastically changing . Criminals are getting smarter day by day and are applying there minds in this context to commit crime and escape without getting caught. With the advent of computers no one thought that it will become a mode or source of committing crime . Charles Babbage who is well known as the father of computer would not have dreamt that the machine he is giving the world may become a source of crime and would ever influence the society in a negative way.
Whenever we talk about cyber crime we can make out that its something related to a wrong done were a computer system is involved .
The term ‘cyber crime’ is a wrongly applied name. This term has nowhere been defined in any statute /Act passed or enacted by the Indian Parliament. The concept of cyber crime is not radically different from the concept of conventional crime. Both include conduct whether act or omission, which cause breach of rules of law and counterbalanced by the sanction of the state. Though cyber crimes is a new breed of crimes which came into being just after the advent of the computers and the scenario has become more worse with the influence of internet in our day to day life.
CONVENTIONAL CRIME-
Crime is a social and economic phenomenon and is as old as the human society. Crime is a legal concept and has the sanction of the law. Crime is defined as “a legal wrong that can be followed by criminal proceedings which may result into punishment.”. A crime may be said to be any conduct accompanied by act or omission prohibited by law and consequential breach of which is visited by penal consequences.
CYBER CRIME:
Cyber crime is the latest and perhaps the most complicated problem in the cyber world. “Cyber crime may be said to be those species, of which, genus is the conventional crime, and where either the computer is an object or subject of the conduct constituting crime. In general cyber crime may be defined as “ unlawful acts wherein the computer is either a tool or target or both”.
The computer may be used as a tool in the following kinds of activity- financial crimes, sale of illegal articles, pornography, online gambling, intellectual property crime, e-mail spoofing, forgery, cyber defamation, cyber stalking. The computer may however be a target for unlawful acts in the following cases- unauthorized access to computer/ computer system/ computer networks, theft of information contained in the ,electronic form,
e-mail bombing, salami attacks, logic bombs, Trojan attacks, internet time thefts, web jacking, theft of computer system, physically damaging the computer system.
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