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Date: 4th July 2008 |
Compiled by Mr. M. Sathya Kumar |
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Cyber Crimes – In Indian Legal Perspective Introduction: The glares of radiant brains have
overshadowed the artificial bodily shines. An un-ending pursuit for
excellence has stretched the dimensions of research to the limits in either
direction. The modern world has witnessed successful amalgamation of bright
minds and brighter machines making destinations unseen henceforth closer than
ever before. Research is not restricted to working on a
fixed path. Science being a sympathetic mother do not deny those who
attempted research in the reverse direction. The corollary was emergence of
an era of crimes better known as "Cyber Crimes". The
challenges before the inventors in the present century changed likewise to
finding means to restrict such crimes. It is worthwhile to note here that the first
cyber crime took place as early as in the year 1820. The crimes have however
gained momentum in India only in the recent past. As an upshot, the Indian
Parliament gave effect to a resolution of the General Assembly of the United
Nations for adoption of a Model Law on Electronic Commerce. The
consequence was the passing of Information Technology Act 2000. The Act aims
to regulate and legalize E-Commerce and take cognizance of offences arising
there from. Definition: The Cambridge dictionary defines Cyber
Crimes as Crimes committed with the use of computers or relating to
computers, especially through the Internet. Universally, Cyber Crime is
understood as "an unlawful act where in the computer is either
a tool or a target or both". Cyber Crimes are different from conventional
crimes as in cyber crimes; the crime is committed in an electronic medium and
here mens rea is not a requirement but is rather a general rule under
the penal provisions of the Information Technology Act. The element of mens
rea in Internet crimes is that the offender must have been aware at the
time of causing the computer to perform the function that the access thus
intended to be secured was unauthorized. Classification of Cyber Crimes: The Information Technology Act deals with
the following cyber crimes along with others: Tampering with
computer source documents: A person who knowingly or intentionally,
conceals (hides or keeps secret), destroys (demolishes or reduces), alters
(change in characteristics) or causes another to conceal, destroy, and alter
any computer source code used for a computer, computer program, computer
system or computer network, when the computer source code is required to be
kept or maintained by law is punishable. For instance, hiding the C.D.ROM in which
the source code files are stored, making a C File into a CPP File or removing
the read only attributes of a file. Hacking: Hacking is usually understood to be the
unauthorized access of a computer system and networks. Originally, the term
"hacker" describes any amateur computer programmer who discovered
ways to make software run more efficiently. Hackers usually "hack"
on a problem until they find a solution, and keep trying to make their
equipment work in new and more efficient ways. A hacker can be a Code Hacker,
Cracker or a Cyber Punk. Whoever with the intent to cause or knowing
that he 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
means is said to commit hacking. Publishing of
information, which is obscene in electronic form: A person who publishes or transmits or
causes to be published in the electronic form, any material which is
lascivious, or if its effect is such as to tend to deprave and corrupt
persons who are likely to read, see or hear the matter contained or embodied
in it, is liable to punishment. The important ingredients of such an offence
are publishing (make generally known or issue copies for sale to public), or
transmitting (transfer or be a medium for), or causing to be published (to
produced the effect of publishing), pornographic material in the electronic
form. Child Pornography: Child Pornography is a part of cyber
pornography but it is such a grave offence that it is individually also
recognized as a cyber crime. The Internet is being highly used by its abusers
to reach and abuse children sexually, worldwide. The Internet is very fast
becoming a household commodity in India. Its explosion has made the children
a viable victim to the cyber crime. As more homes have access to Internet,
more children would be using the Internet and more are the chances of falling
victim to the aggression of pedophiles. The pedophiles use their false
identity to trap children and even contact them in various chat rooms where
they befriend them and gain personal information from the innocent preys.
They even start contacting children on their e-mail addresses. These
pedophiles drag children to the net for the purpose of sexual assault or so
as to use them as a sex object. Accessing protected
system: Any unauthorized person who secures access
or attempts to secure access to a protected system is liable to be punished
with imprisonment and may also be liable to fine. Breach of
confidentiality and privacy : Any person who, secures access to any electronic record, book,
register, correspondence, information, document or other material without the
consent of the person concerned or discloses such electronic record, book,
register, correspondence, information, document or other material to any
other person shall be liable to be punished under the Information Technology
Act. The following is a table showing the
various offences under the Information Technology Act, 2000 together with
their respective punishments:
Cyber crimes other than those
mentioned under the IT Act CyberStalking Although there is no universally accepted
definition of cyberStalking, it is generally defined as the repeated acts of
harassment or threatening behavior of the cyber criminal towards the victim
by using Internet services. Stalking in General terms can be referred to as
the repeated acts of harassment targeting the victim such as following the
victim, making harassing phone calls, killing the victims pet, vandalizing
victims property, leaving written messages or objects. Stalking may be
followed by serious violent acts such as physical harms to the victim. It all
depends on the course of conduct of the stalker. Cybersquatting Cybersquatting is the obtaining of a domain
name in order to seek payment from the owner of the trademark, (including
business name, trade name, or brand name), and may include typosquatting
(where one letter is different). A trademark owner can prevail in a
cybersquatting action by showing that the defendant, in bad faith and with
intent to profit, registered a domain name consisting of the plaintiff's
distinctive trademark. Factors to determine whether bad faith exists are the
extent to which the domain name contains the registrant's legal name, prior
use of the domain name in connection with the sale of goods and services,
intent to divert customers from one site to another and use of false
registration information and the registrant's offer to sell the domain name
back to the trademark owner for more than out-of -pocket expenses. Data Diddling This kind of an attack involves altering the
raw data just before a computer processes it and then changing it back after
the processing is completed. The NDMC Electricity Billing Fraud Case that
took place in 1996 is a typical example. The computer network was used for
receipt and accounting of electricity bills by the NDMC, Delhi. Collection of
money, computerized accounting, record maintenance and remittance in the bank
were exclusively left to a private contractor who was a computer
professional. He misappropriated huge amount of funds by manipulating data
files to show less receipts and bank remittances. Cyber Defamation Any derogatory statement, which is designed
to injure a person's business or reputation, constitutes cyber defamation.
Defamation can be accomplished as libel or slander. Cyber defamation occurs
when defamation takes place with the help of computers and / or the Internet.
E.g. someone publishes defamatory matter about someone on a website or sends
e-mails containing defamatory information to all of that person’s friends. Trojan Attack A Trojan, the program is aptly called an
unauthorized program which functions from inside what seems to be an
authorized program, thereby concealing what it is actually doing. Forgery Counterfeit currency notes, postage and
revenue stamps, mark sheets etc can be forged using sophisticated computers,
printers and scanners. It is very difficult to control such attacks. For e.g.
across the country students buy forged mark sheets for heavy sums to deposit
in college. Financial crimes This would include cheating, credit card frauds,
money laundering etc. such crimes are punishable under both IPC and IT Act. A
leading Bank in India was cheated to the extent of 1.39 crores due to
misappropriation of funds by manipulation of computer records regarding debit
and credit accounts. Internet time theft This con notes the usage by an unauthorized
person of the Internet hours paid for by another person. This kind of cyber
crime was unheard until the victim reported it. This offence is usually
covered under IPC and the Indian Telegraph Act. Virus/worm attack Virus is a program that attaches itselves to
a computer or a file and then circulates 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-mail spoofing It is a kind of e-mail that appears to
originate from one source although it has actually been sent from another
source. Such kind of crime can be done for reasons like defaming a person or
for monetary gain etc. E.g. if A sends email to B’s friend containing ill about him by spoofing B’s email address, this could
result in ending of relations between B and his friends. Email bombing Email bombing means sending large amount of
mails to the victims as a result of which their account or mail server
crashes. The victims of email bombing can vary from individuals to companies
and even the email service provider. Salami attack This is basically related to finance and
therefore the main victims of this crime are the financial institutions. This
attack has a unique quality that the alteration is so insignificant that in a
single case it would go completely unnoticed. E.g. a bank employee inserts a
programme whereby a meager sum of Rs 3 is deducted from customers account.
Such a small amount will not be noticeable at all. Web Jacking This term has been taken from the word
hijacking. Once a website is web jacked the owner of the site looses all
control over it. The person gaining such kind of an access is called a hacker
who may even alter or destroy any information on the site. The Concept of Cyber Terrorism Cyber crime and cyber terrorism are both
crimes of the cyber world. The difference between the two however is with
regard to the motive and the intention of the perpetrator. While a cyber crime can be described simply
as an unlawful act wherein the computer is either a tool or a target or both,
cyber terrorism deserves a more detailed definition. One can define cyber
terrorism as a premeditated use of disruptive activities or the threat
thereof, in cyber space, with the intention to further social, ideological,
religious, political or similar objectives, or to intimidate any person in
furtherance of such objectives. Tools of Cyber Terrorism: Cyber terrorists use various tools and
methods to unleash their terrorism. Some of the major tools are as follows:
Motives behind any Attacks are:
Cyber Criminals Any person who commits an illegal act with a guilty intention or
commits a crime is called an offender or a criminal. In this context, any
person who commits a Cyber Crime is known as a Cyber Criminal. The Cyber
Criminals may be children and adolescents aged b/w 6-18 years, they may be
organized hackers, may be professional hackers or crackers, discontented
employees, cheaters or even psychic persons. Target of Cyber Crime Cyber Crime being a serious threat not only targets the person
and property but the organization at large Adjudicating
Authorities: The Information Technology Act provides for appointment of a
Controller of Certifying Authorities as also the Deputy and Assistant
Controllers. The main functions of the Controller are to license, certify,
monitor and oversee the activities of the certifying authorities. Also,
failure to comply with the direction of the Controller would lead to serious
consequences. The Information Technology Act also provides for the
establishment of appellate tribunals known as Cyber Regulations Appellate
Tribunal (CRAT). It provides that any person who is aggrieved by an order
made by the Controller or Adjudicating officer may file an appeal with the
CRAT. The CRAT is required to follow the principles of natural justice in
deciding matters and has the same powers as are vested in the civil court
under the Code of Civil Procedure, 1908. Any person who is aggrieved by the
decision or the order of the CRAT may file an appeal to the High Court on any
question of fact or law. The CRAT and the Adjudicating officer have the exclusive
jurisdiction to entertain any suit and no injunction can be granted by any
court or other authority against the action taken by them under the Act. Jurisdictional Procedure Jurisdiction is the power of the court to hear and determine a
case, in the absence of which the judgment is impotent and ineffective. The
basic problem with the Internet Jurisdiction is the presence of multiple
parties in different parts of the world. Therefore in Internet it is
difficult to establish with certainty as to the place where the defendant
resides or where the cause of action took place. The popular contention is
for the establishment of the ‘Law of Cyber Space’ thereby making Earth as the Jurisdictional venue for all Internet Crimes and
related matters. The Information Technology Act, 2000 extends to whole of India
and also envisages any offence or contravention there under committed outside
India by any person. Thus it confers extra-territorial jurisdiction on Indian
courts and empowers them to take cognizance of offences committed outside
India even by foreign nationals provided that such offence involves a
computer, computer system on computer network located in India. Further, any person irrespective of his territorial location and
nationality using a computer located in India to commit an offence or
contravention outside India is also liable under the Information Technology
Act. Cyber Crime Investigation Cell The Central Bureau of Investigation (C.B.I) in India set up a ‘Cyber Crime Investigation Cell’ and "Cyber Crime Research
&Development Unit" (CCRDU) to collect and collate information on
cyber crimes reported from different parts of the country. The function of this is to liaise with State Police and
other enforcement agencies and to collect information on cases of Cyber Crime
reported to them for investigation and also find out about the follow-up
action taken in each case. The Unit liaises with software experts
to identify areas that require attention of State Police for prevention &
detection of such crimes with a view to train them for the task.
It collects information on the latest cases reported in other countries
and the innovations employed by Police Forces in those countries to handle
such cases. Measures to Prevent Cyber Crime The Information Technology Act 2000 was passed when the country
was facing the problem of growing cyber crimes. Since the Internet is the
medium for huge information and a large base of communications around the
world, it is necessary to take certain precautions while operating it. Any person who operates the net should always abide by and
following principles:
Conclusions: Change is the essence of life. What seems impeccable and
indestructible today might not remain the same tomorrow. Internet, being a
global phenomenon is bound to attract many crimes. India has taken a key step
in curbing Cyber Crimes by the enactment of the Information Technology Act
and by giving exclusive powers to the police and other authorities to tackle
such crimes. Similar efforts have been made by various countries to fight
this menace by enacting national legislations but in the long run, they may
not prove to be as beneficial as desired. An effort is still wanted to
formulate an international law on the use of Internet to curb this imminent danger
of Cyber Crimes and to achieve a crime free Cyber Space. Prevention they say
is the best cure. Cyber laws aim to prevent cyber crimes through the use of
penal provisions. A great deal however needs to be done before Cyber laws can
stand a fair chance to influence the modern world in the much anticipated
manner. Article
by Rajkumar Dubey |
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