COMBAT CYBER CRIMES AND RELATED PROBLEMS BY - DR. PRINCY RATHORE
COMBAT CYBER CRIMES AND
RELATED PROBLEMS
AUTHORED BY - DR. PRINCY RATHORE,
Assistant Professor,
Shri Bhawani Niketan Law
College, Jaipur, Rajasthan.
INTRODUCTION
Cybercrime is
any criminal activity that involves a computer, networked device or a network.
While most cybercrimes are carried out in order to generate profit for the
cybercriminals, some cybercrimes are carried out against computers or devices
directly to damage or disable them, while others use computers or networks to
spread malware, illegal information, images or other materials. Some
cybercrimes do both -- i.e., target computers to infect them with a computer
virus, which is then spread to other machines and, sometimes, entire networks.
A primary
effect of cybercrime is financial; cybercrime can include many different types
of profit-driven criminal activity, including ransomware attacks,
email and internet fraud, and identity fraud, as well as attempts to steal
financial account, credit card or other payment card information.
Cybercriminals may also target an individual's private information, as well as
corporate data for theft and resale. As many workers settle into remote
work routines due to the pandemic, cybercrimes are expected to grow in
frequency in 2021, making it especially important to protect backup
data.
PROBLEM
The
convergence of computer network and telecommunications facilitated by the
digital technologies has given birth to a common space called ‘cyberspace’.
This cyberspace has become a platform for a galaxy of human activities which
converge on the internet. The cyberspace has, in fact, become the most
happening place today. Internet is increasingly being used for communication,
commerce, advertising, banking, education, research and entertainment. There is
hardly any human activity that is not touched by the internet. The growing
importance of Information Technology can be visualized from the fact that in
India for the first time a Delhi based businessman has made a digital will of
the secret information saved in his e-mail account. Digital will is a foreign
concept which is gaining momentum in India also.[1]
Therefore,
Internet has something to offer to everybody and in the process it only
increases and never diminishes. The ‘cyber manthan’ has bestowed many gifts to
humanity but they come with unexpected pitfalls. It has become a place to do
all sort of activities which are prohibited by law. It is increasingly being
used for pornography, gambling, trafficking in human organs and prohibited
drugs, hacking, infringing copyright, terrorism, violating individual privacy,
money laundering, fraud, software piracy and corporate espionage, to name a
few.[2]
Despite
such a great influence of computers and internet on day-to-day lives, the fact
remains that only a fraction of people know what computer and internet is all
about? There is a paucity of systematic study which elaborately discusses the
basic concepts of cyber world like meaning, evolution, generations, types,
characteristics and major components of computers; forms of networks, history
of Internet in India, services and limitations of Internet etc.[3]
Most of
the books and thesis directly deals with the concept of cyber-crimes without
thinking that to understand computer and internet crimes, one needs to
understand first the computers and internet. This study is a sincere effort in
this direction. Well, the new medium which has suddenly confronted humanity
does not distinguish between good and evil, between national and international,
between just and unjust, but it only provides a platform for the activities
which take place in human society. Law as the regulator of human behaviour has
made an entry into the cyberspace and is trying to cope with its manifold
challenges.[4]
Though
various countries have their domestic cyber laws, but the problem is that most
of the books deal with cyber laws of individual nations. In this research work
an attempt has been made to do a comparative study of the cyber laws of
different countries. A legal framework for the cyber world was conceived in
India in the form of ECommerce Act, 1998. Afterwards, the basic law for the
cyberspace transactions in India has emerged in the form of the Information
Technology Act, 2000 which was amended in the year 2008. The IT Act amends some
of the provisions of our existing laws i.e. the Indian Penal Code, 1860; the
Indian Evidence Act, 1872; the Bankers Book Evidence Act, 1891 and the Reserve
Bank of India Act, 1934. Though since 2000 the IT Act is in place in India for
curbing cyber-crimes, but the problem is that still this statute is more on
papers than on execution because lawyers, police officers, prosecutors and
Judges feel handicapped in understanding its highly technical terminology.
Through
this thesis the researcher has tried to interpret its technical provisions into
simple language which can be understood even by laymen. Since cyber-crime is
not a matter of concern for India only but it is a global problem and therefore
the world at large has to come forward to curb this menace. As a saying in
criminology goes – “a crime will happen where and only when the opportunity
avails itself.” Until recently, we were aware of only traditional types of
crimes like murder, rape, theft, extortion, robbery, dacoity etc. But now with
the development and advancement of science and technology there came into
existence machines like computers and facilities like internet. The internet
has opened up a whole new virtual heaven for the people both good and bad,
clever and naive to enter and interact with lot of diverse cultures and
sub-cultures, geography and demographics being no bar. The very same virtues of
internet when gone in wrong hands or when exploited by people with dirty minds
and malicious intentions, make it a virtual hell. Stories of copyright theft,
hacking and cracking, virus attacks and plain hoaxes etc. have mounted up in
the last few years.[5]
There is
no single text available which provides a coherent and consistent exposition on
the various categories of cyber-crimes, their nature, scope, features and
essential ingredients. It is fascinating to study cyber offences like cyber
hacking, cyber fraud, cyber pornography, cyber terrorism, cyber stalking, cyber
ragging6 etc. and also the US, UK and Indian approaches towards these offences.
As a result of the rapid adoption of the internet globally, computer crimes are
multiplying like mushrooms.
The law
enforcement officials have been frustrated by the inability of the legislators
to keep cyber-crime legislation ahead of the fast moving technological curve.
At the same time, the legislators face the need to balance the competing
interests between individual rights such as privacy and free speech, and the
need to protect the integrity of the world’s public and private networks.
Moreover while investigating cyber-crimes, the investigating agencies and law
enforcement officials follow the same techniques for collecting, examining and
evaluating the evidence as they do in cases of traditional crimes.[6]
Most of
the books are silent on the issue of electronic evidence. In this study the
researcher has critically analysed the admissibility and evidentiary value of
electronic evidence in addition to the methods of its procurement and
examination. Further complicating cyber-crime enforcement is the area of legal
jurisdiction. Like pollution control legislation, one country cannot by itself
effectively enact laws that comprehensively address the problem of internet
crimes without cooperation from other nations. While the major international
organizations, like the OECD and the G-8, are seriously discussing cooperative
schemes, but many countries do not share the urgency to combat cyber-crimes for
many reasons, including different values concerning piracy or espionage or the need
to address more pressing social problems.
These
countries, inadvertently or not, present the cyber-criminal with a safe haven
to operate. Never before has it been so easy to commit a crime in one
jurisdiction while hiding behind the jurisdiction of another. Though the issue
of jurisdiction in cyberspace cannot be settled spontaneously, but still a
global effort in this direction is the need of hour.8 The present researcher
has made an attempt to exhaustively analyse these jurisdictional riddles and
has suggested the evolution of a uniform international law applicable to
transnational cyber-crimes. Apart from tangible rights, some intangible rights
called as ‘intellectual property rights’ such as trademarks, copyrights and
patents etc. are also infringed in the cyberspace.
There is
no dearth of specific books on IPRs, but books on IPRs vis-à-vis cyberspace are
not much in number.
SOLUTION AND ITS ANALYSIS
This
study has tried to undertake a collaborative approach on IPRs and cyber world.
The purpose of this study is to cover the complete scenario of internet crimes,
their magnitude and nature, and make an insight into the people who are
responsible for it. This research work will also take a comprehensive view of
the governmental efforts being done in India and abroad to stop such crimes and
will look closely on their success and failures. An effort will also be made to
vigorously analyse the various perspectives of IT Act, 2000; its ins and outs
including its shortcomings and the possible means and ways to overcome them.
It has
been generally accepted that procedural aspect of the criminal law is the main
hurdle in tackling the problem of cybercrime effectively but at the same time,
substantive part of the cybercrime also needs to be redefined to fight against
ongoing cyber criminality. Out of a variety of cybercrimes, the European
Convention has chosen ten specific cybercrimes and urged the member states to include
them in their information technology laws and provide a concrete mechanism to
fight against them. But it is rather unfortunate that many cybercrimes of a
particular country are not treated as crime under the criminal law of other
countries, which really pose a problem when cross-country cybercrimes are
involved. The solution to this problem lies in enacting a global cyber law
uniformly applicable to all the countries of the world.
The crux
of the matter is that universally accepted standard cybercrime preventive laws
should not vary from place to place. A nation wise survey of cyber law
indicates that only a few countries have updated their cyber law to counter the
cyberspace crime effectively, while many of them have not even initiated steps
to frame laws for policing against these crimes. This divergent approach of
world nations towards the desirability of cyber law poses a real problem in
handling the internet crime and at the same time provides ample scope for the
cyber criminals to escape detection and punishment. All the nations should
therefore, realize the need and urgency for generating awareness about the
dangerous nature of cyber-crimes which are perpetuating illegal online
activities in cyber space.
Cyber
criminality is perhaps the deadliest epidemic spread over the world in the new
millennium which has to be curbed by adopting a global preventive strategy. An
overall global view of the cyber law indicates that many countries do have
their national legislation for combating cyber criminality, but they radically
differ from each other as a result of which, a particular cyberspace activity
which is considered as a criminal offence in one country may not be necessarily
so in another country. This variation in law provides loopholes for the cyber
offenders to escape punishment. Therefore, there is dire need for international
cybercrime legislation which could be uniformly acceptable by all the countries
to tackle the problem of cybercrime. Not only that, there should also be an
international policing agency for countering cyber offences. The solution to
the problem therefore, lies in the concerted and united efforts of nations
around the world and their mutual cooperation in fighting against cyber
criminality.[7]
Broadly speaking, the law enforcement agencies all over the world are
confronted with four major problems while dealing with cybercrimes in a network
environment.
The
detection and prosecution of cyber criminals online is hindered by the
challenges, which may be technical, legal, operational and jurisdictional. As
regards technical challenges, cybercrimes such as hacking of a website,
stealing data stored in computers, espionage, exchange of pornographic
material, blackmailing etc. involve detection of source of communication which
is a complicated task. Therefore, the cyber criminals find it easy to
impersonate on the internet and hide their identity. The legal challenge
emerges from the fact that cyber criminality is no longer confined to the
developed countries alone but it has assumed global dimensions in recent
decades. The conventional legal techniques of investigation of cybercrimes are
inadequate particularly, in case of cross-country crimes. The problem becomes
more complex because of lack of any universally accepted definition of
cybercrime. Therefore, a cybercrime in a country may not necessarily be a crime
in another country.
There are
hardly 20 countries in the world which have enacted comprehensive cyber laws.
In the absence of an adequate cybercrime laws, the cyber criminals carry on
their illegal activities undeterred. Therefore, effective handling of
cybercrimes requires a legal framework which is equally applicable to all the
countries. The cyber laws should also be responsive to the fast developing
information technology.
The
operational challenges faced by the law enforcement agencies because of lack of
adequate cyber forensic technology for dealing with cyber-crimes constitute
another in-road which renders it difficult to collect and preserve sufficient
evidence against the person accused of cybercrime, thereby resulting in his
acquittal by the court. The traditional modes of procuring evidence are
unsuited in case of cybercrime investigation because most of the evidence
exists in electronic form. Therefore, there is dire need to develop suitable
computer forensic mechanism for effective handling of cyber-crime
investigation.[8]
In the
context of electronic evidence, it is significant to note that despite the fact
that digital signatures have facilitated e-commerce by reducing paper-work and
ensuring quick transactions, it has not been widely accepted in India because
of the technicalities involved in it and therefore, people in general still
believe that paper-based documents are more dependable and trustworthy than the
paperless electronic records. The reason being that former are tangible and
serve as best piece of evidence before a law court. However, with the expansion
of e-commerce and legal recognition of e-contracts in business transactions,
there is change in the mindset of the people and they are gradually adapting
themselves to the new e-environment and finally switching over to paperless
electronic transactions.
The
jurisdictional challenge impeding the efficient handling of cybercrime
investigation result out of widespread inter-connectivity of the computer
networks and the supporting infrastructure such as telecommunication
information dissemination on the website etc. In fact, jurisdiction is a broad
concept which refers to whether a court has power to adjudicate, i.e., whether
it has personal jurisdiction to try the case and territorial jurisdiction over
the location or place where the crime is committed or the parties concerned
reside. In case of cross-country cyber dispute or crime, the problem often
arises as to the law of which country would be applicable to the case in hand.
SUGGESTIONS
In view
of the expanding dimensions of computer-related crimes, there is need for
adopting appropriate regulatory legal measures and gearing up the law
enforcement mechanism to tackle the problem of cybercrime with stern hands.
Even a short delay in investigation may allow cyber criminals enough time to
delete or erase the important data to evade detection, which may cause huge
loss to the internet user or the victim.
That
apart, the peculiar nature of cybercrimes is such that the offender and the
victims do not come face to face, which facilitates the criminals to carry on
their criminal activities with sufficient sophistication without the fear of
being apprehended or prosecuted. It is for this reason that a multi-pronged
approach and concerted efforts of all the law enforcement functionaries is much
more needed for effective handling of cybercrime cases. A common cybercrime
regulatory law universally acceptable to all the countries would perhaps
provide a viable solution to prevent and control cyber criminality. The process
of crime prevention essentially requires cooperation and active support of
citizens, institutions, industries and the government alike. Therefore, a sound
strategy for prevention of cybercrimes necessitates mobilization of community
participation in combating this menace. This calls for participative role of
all those who perceive that the growing incidence of cybercrime is a potential
danger to the society as a whole.
The
suggestions are:
1.
Net Security by Tightened Up
2.
Use of encryption technology
3.
Intrusion management
4.
False E-mail Identity Registration be Treated as an
Offence
5.
Self-regulation by Computer and Net Users
6.
Liberalization of Law Relating to Search and
Seizure
7.
Use of Voice-recognizer, Filter Software and
Caller- ID for Protection against Unauthorized Access
8.
Development of Cyber Forensics and Biometric
Techniques
9.
Need to Establish a Computer Crime Research & Development
Centre
10. Need for a Universal
Legal Regulatory Mechanism
11. Global Code of
Digital Law for Resolving IPR Related Disputes
12. Need for
Universalization of Cyber Law
13. Interpol and
Emergency Response Computer Security Team
14. Combating the Menace
of Cyber Terrorism
15. Special Cyber Crime
Investigation Cell for Hi-tech Crimes
16. E-Judiciary and
Video- conferencing for Speedy Justice
[3]
Dr. S.C. Sharma, “Study of Techno – Legal Aspects of Cyber Crime and
Cyber Law Legislations”, Nyaya Deep, 2008, p. 86
[4]
Justice T. Ch. Surya Rao, “Cyber Laws – Challenges for the 21st
Century”, Andhra Law Times, 2004, p. 24
[7]
“Cooperation and capacity building are vital for Curbing Cyber Crime”,
The Pioneer, March 18, 2008, p. 7.