CYBER CRIME AND LAW

Author: YASHASWI VATSA

COLLEGE: LLOYD LAW COLLEGE, GREATER NOIDA


Abstract

Cyber crime is any illegal act committed using a computer network. Criminal activities that take place in cyberspace or so called the internet world. As we all know that this era where most of the things are done usually over the internet, from online dealing to the online transactions. Since the web is considered as worldwide stage, anyone can access the resources of the internet from anywhere. Cyber crime can be categorized in two ways: A) the computer as a Target (using a computer to attack other computer) e.g. hacking, dos attack etc. B) The computer as a weapon (using a computer to commit real world crime) e.g. cyber terrorism, fraud, child pornography etc. There are various types of crimes happening nowadays which involves a computer which is generally termed as cyber crime and that includes; Hacking, Child pornography, Cyber terrorism, Piracy, Computer vandalism, Credit card Fraud, and etc. The laws governing these crimes are basically known as cyber laws. All the people of cyberspace come under the ambit of these laws. Cyber law can also be described as that branch of law which deals legal issues related to the use of inter-networked information technology. The growth of electronic commerce has undoubtedly helped in smoothening man work load but has also created a new space to commit online crimes. The abuse of computer has also given birth of new age crimes that are taken care of by cyber laws. It covers a broad area, encompassing many subtopics as well as freedom of expressions, access to and utilization of the internet and online security or online privacy.


INTRODUCTION

Millions of people around the world use computers and the internet every day. We all use it in school, work even at home, computers have made us life easier, it has brought so many benefits to the society but it has also brought some problems and cybercrimes is one of them. Cyber crime in general terms means, “Any illegal act which involves a computer or an act committed using a computer network”[1]. Criminal activities that take place in cyberspace or so called the internet world. As we all know that this era where most of the things are done usually over the internet, from online dealing to the online transactions. Since the web is considered as worldwide stage, anyone can access the resources of the internet from anywhere. Cyber crime can be categorized in two ways: A) the computer as a Target (using a computer to attack other computer) e.g. hacking, dos attack etc. B) The computer as a weapon (using a computer to commit real world crime) e.g. cyber terrorism, fraud, child pornography etc[2]. Cybercrimes can be defined as "Offences that are committed against individuals or groups of individuals with a criminal motive to intentionally harm the reputation of the victim or cause physical or mental harm, or loss, to the victim directly or indirectly, using modern telecommunication networks such as Internet (networks including chat rooms, emails, notice boards and groups) and mobile phones (Bluetooth/SMS/MMS)"[3]. There are various types of crimes happening nowadays which involves a computer which is generally termed as cyber crime and that includes; Hacking, Child pornography, Cyber terrorism, Piracy, Computer vandalism, Credit card Fraud, and etc. In present scenario almost every crime do involve computer network. Every crime nowadays do involve computer either directly or indirectly. Even in non-cyber crime cases, important evidence is found in computers/cell phones e.g. in cases of divorce, murder, kidnapping, tax evasion, organized crime, terrorist operation, counterfeit currency etc. We can even admit that with evolve in computer technology, with the evolve of mobile phone, committing crimes has become much easier than earlier. The first recorded cyber crime took place in 1820. The first spam email took place in 1976 when it was sent out over the ARPANT. The first virus was installed on an apple computer in 1982 when a high school student, Rich skrenta, developed the EIK cloner. The laws governing these crimes are

basically known as cyber laws. All the people of cyberspace come under the ambit of these laws. Cyber law can also be described as that branch of law which deals legal issues related to the use of inter-networked information technology. The growth of electronic commerce has undoubtedly helped in smoothening man work load but has also created a new space to commit online crimes. The abuse of computer has also given birth of new age crimes that are taken care of by cyber laws. It covers a broad area, encompassing many subtopics as well as freedom of expressions, access to and utilization of the internet and online security or online privacy. Internet has dramatically change the way we think, the way we govern, the way we do commerce and the way we perceive ourselves. Information technology is encompassing all walks of life all over the world. Cyberspace creates moral, civil and criminal wrongs. It has now given a new way to express criminal tendencies, which is why cyber law is now necessary and very needful to the present world.“ The modern thief can steal more with a computer than with a gun. Tomorrow’s terrorist maybe able to do more damage with a keyboard than with a bomb”[4]. cyber law encompasses laws relating to, a) cyber crimes b) electronic and digital signatures c) intellectual property d) data protection and privacy.


IT ACT, 2000.

In India cybercrimes are regulated and governed under IT Act, 2000. The act came into force on 17th October 2000. The preamble to the act states that it aims at providing legal recognition for transaction carried out by means of electronic data interchange and other means of electronic communications, commonly referred to as” electronic commerce”, which involve the use of alternatives to paper based methods of communication and storage of information and aims at facilitating electronic filing of documents with the government agencies. The IT Act 2000 was developed:

· To promote the IT industry

· Regulate e-commerce

· Facilitate e-governance

· Prevent cyber crime

The IT Act 2000 comprises of 90 sections spread over 13 chapters. Some important sections of IT Act 2000 are as follows:

· Section 65- Tampering with computer source documents; Whoever knowingly or intentionally conceals, destroy, or alter any computer source code used for a computer, computer programme, computer system or computer network, when the computer source code is required to be kept or maintained by law for the time being in force, shall be punishable with imprisonment up to three years, or with fine which may extend up to two lakh rupees, or with both.

· Section 66- Hacking with computer systems, data alteration; (1) whoever with the intent of cause or knowing that it 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, commits hacking. (2) whoever commits hacking shall be punished with imprisonment up to three years, or with fine which may extend up to 2 lakh rupees, or with both.

· Section 67- Publishing obscene information; Whoever publishes or transmits or causes to be published in the electronic form, any material which is lascivious or appeal to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to one lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to ten years and also with fine which may extend to two lakh rupees.

· Section 70- Unauthorized access to protected system; (1) The appropriate Government may, by notification in the Official Gazette, declare that any computer, computer system or computer network to be a protected system. (2) The appropriate Government may, by order in writing, authorize the persons who are authorized to access protected systems notified under sub-section. (3) Any person who secures access or attempts to secure access to a protected system in contravention of the provision of this section shall be punished with imprisonment of either description for a term which may extend to ten years and also be liable to fine.

· Section 72- Breach of confidentiality and privacy; Save as otherwise provided in this Act or any other law for the time being in force, if any person who, in pursuance of any of the powers conferred under this Act, rules or regulations made there under, has secured access to any electronic record, book, register, correspondence, information, document or other material without the consent of the person concerned discloses such electronic record, book, register, correspondence, information, document or other material to any other person shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both.

· Section 73- Publishing false digital signature certificates; (1) No person shall publish a Digital Signature Certificate or otherwise make it available to any other person with the knowledge that- (a) the Certifying Authority listed in the certificate has not issued it; or (b) the subscriber listed in the certificate has not accepted it; or (c) the certificate has been revoked or suspended, unless such publication is for the purposes of verifying a digital signature created prior to such suspension or revocation.

(2) Any person who contravenes the provisions of sub-section (1) shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to one lakh rupees, or with both[5].

Crimes under Indian penal code and special laws:

· Section 503 & 499 IPC- Sending threatening and defamatory messages by email[6]

· Section 463 IPC- Forgery of electronic records

· NDPS Act- Online sale of drugs

· Arms Act- Online sale of arms

As technology developed further and new methods of committing crime using computer network and internet, the need was felt to amend the IT Act 2000, to insert new types of cyber offences, plug in other loopholes that posed hurdles in the effective enforcement of IT Act 2000. Which arouse the circumstances of amending the IT Act 2000 and then information technology (amendment) act 2008 came, which was further made effective from 27th October 2009. This act consists of 124 sections and 14 chapters. The amendment brought some ratification in the previous act as the term ‘digital signature’ has been replaced with ‘electronic signature’ to make the act more technology neutral. Some new sections have been added in the act e.g. section 10A. Section 67A and 67C have also been inserted. Section 69 of IT Act 2000 has also been amended which gives power to the state. Section 69A and 69B grant power to state to direct blocking for public access of any information through any computer resource[7]. Section 66A to 66F, prescribe punishment for obscene electronic message transmissions and cyber terrorism[8].


ANALYSIS

When the internet was developed, nobody had any idea that the internet would rework itself into a pervading revolution which is now misused for criminal activities and which required regulations. Cyber law is very crucial as it touches almost all the aspects of online transactions and dealing via internet. It may appear that a cyber law is a totally technical area and that it does not touches maximum activities in cyberspace. But the actual fact is that not anything can be in addition than the reality. Everything happening in our online world has a few criminal and cyber legal views. Nothing which is happening in cyber space is untouched from cyber laws. Cyber law is one of the recent areas of criminal system. That is because the internet technology has developed rapidly in these past few years. Cyber law offers legal protection to those whose rights are getting violated by these criminals. There are few important cases which provides real picture of cyber crime and laws against cyber crime.

Sharat Babu Digumarti Vs. State, Govt. Of Nct Of Delhi: In this case it was held that when in a cyber crime matter, an accused is acquitted in section 67 &67A of the IT Act, the provision of section 292 of IPC cannot be used to institute new proceedings[9].

Kalindi Charan Lenka Vs State Of Orissa: This is a case of stalking and defamation of a girl. The girls picture was morphed by a boy whom she rejected from marrying. The boy used these pictures to create profiles in her name and pasted these pictures around her hostel and college. The boy then was convicted under IT Act and Indian penal code[10].

Raju Thapa Vs State Of Uttarakhand: In this case a teacher was accused of enticing a girl into sexual favors on the pretext that she would fail her exams if she wouldn’t give in. She was raped several times by the teacher and a video was recorded of the act as well. Later on this video was circulated through a mobile repair shop in the area. He was initially convicted for rape and publishing and transmitting obscene content but later preferred an appeal in the Uttarakhand High Court. Due to delay in filing FIR and no clear identification of the person in the video, the court went on to say that the accused did in fact deserve the benefit of doubt and was acquitted. It was said that it is not possible to force a girl, rape her and record the whole thing at the same time. Appeal in SC is pending[11].

The above mentioned cases clearly indicate the lot of challenges of Electronic Evidence: There is a debate about what is the primary or secondary electronic evidence. Let us assume a chat which is happening between two persons with no records on any server. Whose version will be primary if the original phone is produced in court? Even in cases secondary evidence exists, there is a practice today that advocates give the Section 65B[12] certificate as affidavit in their own name. It is clearly violate the provisions of Sections 65B[13]. There is no regime on Section 65B mandatory certification.

Largely, the problem with cybercrime against individuals in India is underreporting. Most of the provisions are bailable if only IT Act is used. This often leads to mandatory granting of bail to an accused. The provisions of IT Act need to be revised to think about non-bailability and awareness about convergence laws and IT Act needs to be spread to frame charge sheets.

Then there occurs conflict between IT Act and other laws like IPC, CRPC, Evidence act and etc. some of the criminals of cyber crime gets bail or acquitted under IPC or CRPC after being convicted under IT Act.

There is still very much need to get the laws right and in accordance with other laws present there e.g. IPC, CRPC, Evidence act. As the use of internet technology is rapidly improving, we see new type of cyber crime is developing everyday so we can’t in fact blame the legislation for not having the accurate laws. Earlier there was only computer used as weapon to commit cyber crimes but nowadays there are many other gadgets which are used as computer to commit cyber crimes like mobile phones, tablets and etc. There are various cases where there has been a debate about mobile phones or tablets or any other electronic equipments to considered as computer or not. It has been a very debatable issue in the past but many judgments of court has cleared this thing that any electronic equipment used as computer to commit cyber crime will be considered as computer.


CONCLUSION

The problem of cyber crime is faced by every country in present time but there are only a number of countries who have enacted a separate law regarding cyber crime. Cyber crime is something which is hard to control even if there are separate laws for it. With technological development cyber crimes are very common thing to see at present time. Even the cyber criminals are getting supported by technology itself. Firstly they commit crimes using technology and then create a safe passage for themselves using technology too. There is still a need of international recognition to cybercrime as there are still many countries which do not have cyber crime as their municipal law. Due to lack of laws on cyber crime in some countries it gives birth to the problems regarding jurisdictions. Criminals commit crime in one country and take asylum in another country which does not have cyber crime as their municipal law. However there are numbers of conventions which deals with menace of cyber crime and help the developed as well as developing country in controlling the cyber crime with international perspective. However this problem can easily be sorted out if all the countries come together and treat cyber crime as any other crime and enact strict laws regarding crimes happening in cyber space.


[1] Moore, R. (2005) Cyber crime [2] Warren, G. (2002) Computer forensics [3] Halder, D, Jaishankar, K. Cyber crime and law [4] National research council, USA “ computer at risk” (1991). [5] IT Act 2000 [6] INDIAN PENAL CODE 1860 [7] IT (AMENDED) ACT 2008 [8] IT (AMENDED) ACT 2008 [9] Sharat babu case [10] Kalindi charan case [11] Raju thapa case [12] IT Act 2000 [13] IT Act 2000


REFERENCES

www.Blog.ipleders.com

www.Slideshare.net

www.Cybercrime.planetindia.net

www.michalsons.com

www.cyberlawsindia.net

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