Open Access Research Article
“A MIRAGE OF ESTABLISHING UNIVERSAL CYBER JURISDICTION” By: Laxmi Sagar PR & Tarun KM
Published Paper
Article Details
“A
MIRAGE OF ESTABLISHING UNIVERSAL CYBER
JURISDICTION”
Authored By: Laxmi Sagar PR
Law Student,
School
of Law, CHRIST(Deemed to be University)
Email ID: laxmi.sagar@law.christuniversity.in
Co-
Author: Tarun KM
ABSTRACT
Cyberterrorism and other terrible
cyber-crimes represent the greatest danger to national and international security
since the invention of mass destruction weapons. Taking into account all the
concerns and hypotheses discussed, the employment of universal jurisdiction to
combat cybercrime appears to be an effective and feasible strategy. Granted,
the principle cannot be applied to all forms of cybercrime, but crimes such as
the distribution of child pornography, extortion, the leaking and hacking of
confidential State documents, cyber terrorism, etc., can be combated through
the application of the Universality principle, as there is international
consensus on the appropriate sanction for these offences. Due to the nature of
the internet, it would be incredibly difficult to pursue such offenses.
Brenner, one of the most renowned cybercrime experts, states in her 2014 book
"Cyber Threats and Decline of the Nation State"[1]
that cybercriminals utilize jurisdiction of law as a barrier to get away with
their crimes.
In this paper, the research method
used in this study is of a doctrinal nature and is based on the critical
evaluation and assessment of numerous legal statutes, as well as a detailed
discussion of the decisions of various national courts. Through this study, the
researcher attempts to identify the jurisdictional concerns raised by the
transnational nature of cybercrime and to propose recommendations.The States,
Business sector, and international organizations have made considerable efforts
to enhance international collaboration, but much more must be done. However,
when taking action, it must be noted that, due to the inherent fragility of the
Internet's architecture, these additional measures will not totally prevent
cyberterrorism. Consequently, international cooperation and international norms
must be strengthened as part of a tiered strategy to Cyberterrorism.
Keywords: Cyber Terrorism, Universal
jurisdiction, Universality Principle, International Norms.
1.
INTRODUCTION
In today's scenario, the majority of human
activities rely increasingly on technology, particularly Information
Technology. Humans are superior to all other forms of life on earth because
they possess the ability to think, evaluate, and act accordingly. Humans have
the ability to adapt to any situation, and the concept of 'survival of the
fittest' has motivated people to pursue their goals both legally and illegally.
In the twenty-first century, power is measured in terms of one's information
and expertise. It is believed that information technology has had the greatest
impact on the evolution of those who possess knowledge and are in a position of
power. Access to knowledge is no longer hindered by obstacles such as distance
and cost as a result of the information revolution's fundamental alteration of
society.
Anyone in the world with access to a
computer and the internet can land in cyberspace and communicate with people
even in the farthest reaches of the planet; he or she can collect information
from anywhere or disseminate information; he or she can search for
companionship or entertainment around the world or offer a variety of goods and
services. Due to the inherent characteristics of the technology, nations are
unable to effectively govern Internet transactions that originate or terminate
within their borders. While nations may endeavor to enforce their different
laws within the physical, geographical, and political boundaries outlined on a
map, a borderless cyber world governed by ever-evolving technology presents
numerous obstacles. Even while it was once believed that one could determine
the actual location of the computer from which the transaction originated and
the computer to which it was sent, technology can circumvent or
"mask" this information. Consequently, the application and efficacy
of our existing laws must be continually evaluated so that we can face the
hazards of the present with confidence as questions of jurisdiction and
sovereignty become increasingly pertinent.
Therefore, the author advocates
applying the Universality Principle to address the challenges that occur while
defining Jurisdiction. In the case of cyber-crimes, jurisdiction refers to
judicial, legislative, and administrative competence. Although jurisdiction is
a component of sovereignty, it is not coextensive with sovereignty. Even though
a country possesses unbroken internal and external sovereignty, that does not
mean it has unrestricted authority over all matters. Current international law
restricts the ability of states to exercise jurisdiction. This makes
international cooperation a precondition for addressing the Jurisdiction issue.
However, international cooperation must be supported by the law; hence, the
principle of universal jurisdiction in relation to specific cybercrimes and
cyber terrorist activities can be an efficient means of ensuring cooperation
for the same.
2.
Legal Implications of
Cyberspace
Cyber space may alternatively be
referred to as a parallel universe developed and sustained by the world's
computers and communication networks. Through its countless, unblinking eyes,
distant places and faces, whether real or unreal, present or long-gone, can be
conjured from the massive data banks that form the culture's accumulated
treasure. Although there is an obvious place for industry-imposed regulation as
well as self-regulation, this strategy leaves unrepresented the overwhelming
majority of individuals who interact with Internet Service Providers and the
growing number of businesses selling goods and services online. However, this
does not imply that cyberspace is now unregulated. In fact, one of the
difficulties involved in evaluating the issue is the excess of regulation. Laws
pertaining to broadcasting, the media, data protection, evidence, contract,
tort, defamation, intellectual property, etc., as well as civil and criminal
law requirements, all play a role. In fact, depending on the nature of their
actions, the vast majority of cyberspace's residents may conceivably fall under
the jurisdiction of almost the whole global legal system.
Theory and practice diverge
significantly, and the difficulty of devising effective enforcement mechanisms
is significantly greater than that of discovering relevant legal provisions. In
its 1988 "Green Paper on Copyright and the Challenges of Technology,"
the commission said that "these new technologies have resulted in the de
facto eradication of national borders and increasingly render the territorial
application of national copyright law outdated." Such arguments apply
equally to other areas of the law, and it is necessary to take into account the
awkward relationship between terrestrial limits and the jurisdictional claims
of the courts of a particular country and the operation of global communication
networks such as the internet.[2]
Numerous Internet users believed that
"the Internet cannot be regulated." There is a truism that "bit
by bit," meaning that no bit can be treated differently from any other
bit, and hence attempts to control are doomed to fail. Both claims are the work
of techno-determinists. But both are incorrect, even from a technological
standpoint: a bit is a bit with a particular probability, which may be altered.
A bit is a bit with a particular priority, which can be altered. The second
fallacy is the notion that the Internet is purely electrical, which is in fact
difficult to manage. However, communications involve not just signals but also
people and institutions. Senders, recipients, and intermediaries are alive,
breathing individuals who reside in real space, or legally formed institutions
with physical domiciles and hardware. The law has the ability to instruct them.
It may be possible to circumvent this law, but the same holds true for tax
restrictions. This does not prove that a law is inefficient or undesirable,
only because it cannot completely prohibit a particular action.
Similarly, content-based regulation
is near impossible. Content
rules depend on values which are different in different societies. Major
examples are sexual and political expressions. If an international agreement is
a compromise, neither country will be happy[3]. For
this and many other reasons, if international arrangements are unstable, the
primary regulatory action will have to be taken by a country, not by
international arrangements.
What tools will a country then use? The answer is: the ones that affect these
factors that are less mobile than electronic bits-people and physical assets.
This means that the country will regulate static and physical elements ‘rather
than mobile or intangible ones, such as content, information, and transactions.
If one cannot grab the bits, grab the user or their non-mobile assets.
3.
The Difficulties in
Combating Cybercrime, with an Emphasis on Jurisdictional Issues
It has been said that there are three
factors necessary for the commission of crime: a supply of motivated offenders,
the availability of suitable opportunities and the absence of capable
guardians.[4] On all
three counts the digital environment provides fertile rounds for offending. The
growing popularity of digital networks however, comes out at a cost. As the
business and societies in general increasingly rely on computers and internet
based networking, cybercrime and digital incidents have increased around the
world.[5] These
attacks generally classified as any crime that downloading pornographic images
from internet, virus attacks, E-mail stalking and creating websites that
promotes racial hatred.[6]
Technology has both facilitated and
impeded the investigation of crime, particularly crimes involving computing of
crime and communication technologies or what is described as cybercrime. On the
one hand, computers have enabled vast amounts of data to be searched and
analyzed quickly and permitted documents and files to be scanned and
transmitted across the globe in seconds. On the other hand, the sheer quantity
of information creates considerable
problems for investigators who sometimes have to examine gigabytes of data and
break encryption codes before the material they are interested in can be discovered.[7] Adding
fuel to the fire, the trans-border nature of cybercrime has created
jurisdictional problems for law enforcement agencies and adjudicators.
The worldwide cybercrime landscape
has altered considerably over the past few years, with cybercriminals deploying
more sophisticated technologies and having a higher understanding of cyber
security. Until recently, attacks were predominantly the work of computer
whizzes demonstrating their skills. These attacks, which were infrequently
malicious, have gradually transformed into cybercrime syndicates to steal money
through unlawful cyber channels.
“With continually expanding
information infrastructure, with numerous instances of international hacking,
and with growing possibility of increased global espionage, it is important
that the countries have jurisdiction over international computer crime cases”[8] The
worldwide nature of digital crime renders national solutions insufficient.
Oftentimes, the criminals' names and the location and scope of the incursion
are first unknown. It is possible to access or destroy computer systems from
anywhere in the globe, resulting in significant jurisdictional difficulties.
Cybercrime is difficult to combat
because of the fact that criminal law is still a matter of national
jurisdiction. The issue of sovereignty arises: to what extent can a nation
assert jurisdiction over foreign evidence, foreign nationals, and foreign land,
and which nation has the legal grounds to prosecute suspects and convict the
perpetrator? And if more than one country has jurisdiction, which will have
precedence and to what extent can claim extraterritorial procedural
jurisdiction, i.e. the authority to probe on the territory of other countries.
Cyber jurisdiction is not at all
simple. Several nations lack explicit legislation in this area. They depend
solely on conventional jurisdictional provisions to determine whether or not
they have jurisdiction. However, these jurisdictional provisions assert
territorial jurisdiction. But when exactly can cybercrime or cyber
investigation be recognised to occur on a territory when it fundamentally
consists of material bits and bytes that traverse the world's internet cables?
This prompted states to establish their own strategies. Some nations explored
rather unorthodox ways of prosecution and enforcement to circumvent
jurisdictional obstacles when confronted with international cybercrime.
In the infamous case of Russian
hackers Alexey Ivonov and Vasiliy Gorskov, who were accused of extorting money
from many U.S. corporations, the FBI employed a novel approach. In November of
2000, the federal agents, posing as businessmen to conceal their true
identities, convinced the two Russian hackers to come to Seattle by offering
them a job interview with a network security company. The agents then requested
that Ivonov and Gorskov demonstrate their abilities on PCs easily infected with
malware, after which they compromised the passwords Ivonov and Gorskov used to
access their own computers. Later, the agent accessed the computers of Russian
hackers, copied their contents to preserve evidence, and filed criminal charges
based on this evidence.[9]
Several African governments have not
yet criminalized cybercrime, while those states that have criminalized
cybercrime lack the means to track down suspects. When major cross-border
crimes occur, it is feasible that numerous governments will be interested in
prosecuting, but it is also possible that no particular country will assert
jurisdiction due to the potential of a claim of primacy jurisdiction by another
country that has suffered greater damage.[10]
Some countries that do have
cybercrime jurisdiction rules have such a broad statute that they may
conceivably assert jurisdiction over cybercrimes committed anywhere. Such
provisions are not grounded in reality; countries must be able to differentiate
between asserting and exercising jurisdiction. The problem stated above
illustrates the complications of cybercrime jurisdiction. Existing conventional
ideas are insufficient to combat cybercrime, and if they are applied, their
international relations are likely to suffer.
4.
ISSUES IN CYBER
EXTRACTION
Extradition is frequently proposed as
a solution to the majority of jurisdictional issues in international law. In
this section, the researcher will attempt to demonstrate if extradition is
capable of resolving all such issues or whether this is not the case. According
to Starke, "extradition" refers to the process by which, pursuant to
a treaty or on the basis of reciprocity, one state surrenders to another state
at its request a person accused of committing a crime against the laws of the
requesting state, with the requesting state having jurisdiction to try the
alleged offender.”[11]
“Extradition, according to Oppenheim, is the delivery of an accused or
convicted individual to the state on whose territory he is said to have
committed or been convicted of a crime, by the state on whose territory the
alleged criminal being is currently located.”[12]
The extradition denotes the
process whereby under treaty or upon a basis of reciprocity, one state
surrenders to another state at its request a person accused or convicted of
criminal offense committed against the laws of the requesting state, such
requesting state being competent to try the alleged offender.[13]
5.
Legal Framework in
India
The Indian Penal Code of 1860, which regulates
criminal offenses, establishes the core jurisdictional concept that Indian
courts have the authority to hear cases involving crimes committed in India.
Section 3 of the Act[14] states,
"Any person liable under any Indian law to be tried for an offense
committed beyond India must be dealt with in accordance with the provisions of
this Code for any act performed beyond India in the same manner as if such act
had been committed within India." Section 3 allows for the
extraterritorial application of the code if certain conditions are fulfilled. A
major element of the rule is the phrase "any person responsible under any
Indian law." This clause only applies where an Indian law specifies that
an act done outside India may be prosecuted in India under that law. Thus, for
Section 3 of the Indian Penal Code to apply, a person must be culpable under
the Act. Similarly, Section 4 of the Act pertains to the expansion of the
Criminal Code to extraterritorial offenses
.Procedure-wise, the jurisdictional
grounds for crimes are outlined in the Code of Criminal Procedure, 1973.
However, the application of the CPC to crimes committed outside of India is
quite limited. Thus, it is clear from Section 4 that the provisions of the
Criminal Procedure Code apply whenever an offense under the Indian Penal Code
or any other legislation is being examined, probed, tried, or otherwise dealt
with. The jurisdiction under Sec. 4 is comprehensive to the extent that no
valid machinery is set up under any Act for the trial of any particular case,
the jurisdiction of the ordinary criminal court cannot be held to have been
excluded.[15] Section
188 relates only to procedure and does not constitute a substantive offense.[16] It is the
counterpart of Section 4 of the Indian Penal Code in terms of procedure.[17]
6.
ISSUES IN IMPLEMENTING
UNIVERSAL PRINCIPALITY
One
of the primary obstacles in combating cybercrime is defining it. No
internationally recognized legal definition exists, though there are functional
definitions that focus on general offense categories.[18]
Cybercrime is, therefore, most accurately defined as crimes that are perpetrated
over the Internet and that generally fall into two categories: first, those
that target computers and information stored on computers, and second, those
that use a computer to facilitate another crime.[19]
When a cybercriminal targets a computer (or, increasingly, a house that is
vandalized. someone's mobile device), the computer may be attacked in ways
similar to those of many other traditional crimes, similar to a person who is
assaulted while strolling along the street or whose house is vandalized.
Alternatively, the computer may be a victim to Internet-era crimes. There are
numerous offenses that come under the second category, albeit the common
computer user may not be aware of their distinctions. The majority of these
offenses involve the use of malicious software.[20]
Viruses, probably the most well-known
forms of harmful software (also referred to as "malware"), are
programmes that change other computer programmes and can travel from one
computer to another whenever a file is transmitted between them, whether via
the Internet or a traditional disc. While most viruses require human
intervention to go from one host computer to another, others are capable of
self-replication and transfer. These autonomous programmes are known as
"worms."[21]One of the
most distinctive characteristics of cybercrime is that it occurs in a
nonphysical domain without territorial boundaries. Cybercriminals are able to
target computers or networks anywhere in the world and may employ third-party
computers or networks situated in areas entirely distinct from their own or
their victim's country. Any nation attempting to prosecute a cybercriminal will
be forced to reckon with the fact that even a local hacker may have exploited
Internet connections in other nations to commit a local cybercrime, even if
unintentionally.[22] In
addition, the cybercriminal may reside in a country with contradictory or
nonexistent cybercrime laws."[23]
At the beginning of the twenty-first
century, a notable instance of this type of enforcement difficulty occurred
when hackers used stolen credit card information to extort money from multiple
American banks. The Federal Bureau of Investigation ("FBI")
identified two Russian citizens residing in Russia as the suspected hackers.
However, the United States and Russia did not have a mutual legal assistance
treaty (MLAT) that would have permitted extradition of the suspects to the
United States.
Currently, terrorism appears to be
the crime (or class of crimes) with the most popular argument for universal
jurisdiction and the best analogy to piracy. However, even terrorism has a low
probability of facing truly global prosecution.[24]
Jurisdiction over cybercrime is the unresolved set of constraints resulting
from the absence of a consistent set of cybercrime definitions, as stated
previously. Proponents of universal jurisdiction note that even piracy lacks
international definitions. Theorists on both sides of the universal
jurisdiction debate note the troubling fact that if the same acts that
generally satisfy the elements of piracy are committed under the auspices of a
sovereign state, they are considered privateering, an act that is neither
subject to universal jurisdiction nor universally condemned.[25]
A cybercriminal may attack a global
network using a virus that can self-replicate and adapt to different computer
systems and programmes, making it impossible to precisely determine the nature
and duration of the damage. In the event of such an assault, there may be
millions of victims only within the prosecuting nation's borders, not to
mention the number of victims who could be affected on a continuous basis
throughout the world.[26] A case of
this magnitude and complexity may overwhelm a nation's judicial resources, and
there are few procedural tools that could effectively restrict the extent and
complexity of such legal activities. Providing nations with universal
jurisdiction is unrealistic as a singular method for combating cybercrime,
despite the fact that it acknowledges a number of crucial realities.[27]
7.
Conclusion and
Suggestions
In
light of the aforementioned concerns and hypotheses, the employment of universal
jurisdiction to combat cybercrimes appears to be an effective and plausible
strategy. Granted, the principle cannot be applied to all types of
cyber-crimes, but crimes such as the distribution of child pornography,
extortion, the leaking and hacking of confidential State documents, cyber
terrorism, etc., can be combated through the application of the universality
principle, as there is international consensus on the appropriate sanction for
these offences. Due to the nature of the internet, it would be incredibly
difficult to pursue such offenses. The perpetrator could be located anywhere in
the world and utilize a server or computer in a different region. In such a
case, locating the culprit and gathering the necessary proof becomes incredibly
difficult.
Cyberterrorism
and other terrible cyber-crimes may pose the biggest threat to national and
international security since the invention of mass destruction weapons. As
states and their economies grow more intertwined, mostly as a result of the
Internet and the international financial system of global trade, the
ramifications of a cyberattack will intensify. Likewise, if cybercriminals gain
expertise upsetting national governments and shutting down vital
infrastructure, their attacks will certainly become more effective. States, the
business sector, and international organizations have made considerable efforts
to improve international collaboration, but much more must be done. However,
when taking action, it must be noted that, due to the inherent fragility of the
Internet's architecture, these additional measures will not totally prevent
cyberterrorism. In addition to deterrence, Cyberterrorism and other serious
cyber-crimes must be confronted with a multi-pronged strategy that emphasizes
international collaboration and international standards.
Due
to the characteristics of cyberspace, international law's principle of
universal jurisdiction is the most practical method for addressing such
offenses. This is not to suggest that territorial jurisdiction (or nationality,
passive personality, or protective jurisdiction) could not be utilized to
prosecute these crimes, but adequate evidence and state willingness to exercise
other forms of jurisdiction would be required. Universal jurisdiction is
possibly the most practical means of prosecution and, consequently, deterrence.
Cyberterrorism and other terrible cyber-crimes can be significantly deterred by
a multi-layered strategy to mitigate and deterrence. Until states are willing
to exercise universal jurisdiction over cybercriminal activities as part of
this layered strategy, it is only a matter of time until they can unleash a
cyber apocalypse.
[1] Brenner, SW. (2014) Cyberthreats
and the decline of the nation-state. Milton Park, Abingdon, Oxon:
Routledge.
[2] Dr. Amita Verma ,”Cybercrimes and Law”, central law
publication, first edition,2009, page-31
[3] Eli Noam, Columbia University; “Regulating Cyber
Space”, November 1997: retrieved June 29, 2016
[4] L.Cohen and M.Felson, ‘Social Change and Crime Rate
Trends : A Routine Activity Approach’ (1979) 44, American Sociological Review
588,589.
[5] It is a time for countries talking about arms control
on internet, Economist, July 1, 2010 4
[6] The world wide crime web. BBC news
[7] Dr. Russel G. Smithy,Investigating Cyber Crime:
Barriers and Solution, Pacific Rim Fraud Conference,2003
[8] Cybercrime and Intellectual Property section of the
National Informational Infrastructure Protection Act of 1996: Legislative
analysis (U.S. Department of Justice)
[9] Brenner .W. Susan,Bert-Jaap Koops “ Approaches to
cybercrime jurisdiction” Journal of High Technology Law 2004, p, (21-22)
[10] Susan. W. Brenner and Bert Japp Koops “cybercrime and
jurisdiction”
[11] J.G. Starke, Introduction to International Law, Tenth
Edition (1989) p. 352
[12] L.Oppenheim, International law, Vol.I, Eighth
Edition, p.696
[13] Starke.J.G. ‘Public International Law
[15] Bhim Sen vs. State of UP, AIR 1955 SC 435.
[16] Narayan MudlagiriMahale vs. Emperor, AIR 1935 Bom
437.
[17] Ibid.
[18] Nicholas
W. Cade. An Adaptive Approach for an Evolving Crime: The Case for an
International Cyber Court and Penal Code, 37 Brook. J. Int’l L. 1143 (2012).
[19] Charlotte Decker, Cyber Crime 2.0: An Argument to
Update the United States Criminal Code to Reflect the Changing Nature of Cyber
Crime, 81 S. CAL. L. REV. 959 (2008).
[20] Dad
Weissbrodt, Cyber-Conflict, Cyber-Crime, and Cyber-Espionage, 22 Minn. J. Int’l
L. 347 (2013).
[21] Dominic
Carucci, David Overhuls&Nicholas Soares, Computer Crimes, 48 AM, CRIM. L.
REV.375, 378 (2011).
[22] Stephan
Wilske; Teresa Schiller, International Jurisdiction in Cyberspace: Which States
May Regulate the Internet, 50 Fed. Comm. LJ. 117, 178 (1997).
[23] Nicholas
W. Cade, Supra Note 1 at 1148.
[24] Nicholas W. Cade, An Adaptive Approach for an
Evolving Crime: The Case for an International Cyber Court and Penal Code, 37
Brook J. Int’l L 1160 (2012).
[25] 382 Nicholas W. Cade, An Adaptive Approach for an
Evolving Crime: The Case for an International Cyber Court and Penal Code, 37
Brook J, Int'l L 1139 (2012) at 1160
[26] James
D. Fry, Comment, Terrorism as a Crime
against Humanity and Genocide: The Backdoor to Universal Jurisdiction, 7
UCLA J. INT’L L. & FOREIGN AFF. 169, 175 (2002).
[27] Anthony J. Colangelo, Constitutional Limits on Extraterritorial Jurisdiction: Terrorism and
the Intersection of National and International Law, 48 HARV. INT’L L.J.
121, 132 (2007).
Article Information
“A MIRAGE OF ESTABLISHING UNIVERSAL CYBER JURISDICTION” By: Laxmi Sagar PR & Tarun KM
Authors: Laxmi Sagar PR, Tarun KM
- Journal IJLRA
- ISSN 2582-6433
- Published 2023/03/29
- Volume 2
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
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