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INTRODUCTION
When a man is denied the right to live the life he believes in, he
has no choice but to become an outlaw.
Nelson Mandela
What does crime mean?
Crime, in modern times this term doesnt have any universally
accepted definition, but one can define crime, also called an offence
as an act harmful not only to some individual, but also to the
community or the state also known as public wrong. Such acts are
forbidden and punishable by law. What is a criminal offence is
defined by criminal law of each country. While many countries have
a crime catalogue known as the criminal code however in some
common law countries no such comprehensive statute exists.
The state has the power to severely restrict ones liberty for
committing a crime. Modern societies therefore adopt and adhere a
criminal procedure during the investigation and trial of the offence
and only if found guilty, the offender may be sentenced to various
punishments, such as life imprisonment or in some jurisdictions like
in India even death.
To be classified as a crime, the act of doing something bad also
called as actus reus must be usually accompanied by the intention
to do something bad i.e. mens rea, with certain exceptions like strict
liability.
What is cyber crime?
Cyber crime is any criminal activity in which a computer or network
is the source, target or tool or place of crime. According to The
Cambridge English Dictionary cyber crimes are the crimes
committed with the use of computers or relating to computers,
especially through the internet. Crimes which involve use of
information or usage of electronic means in furtherance of crime are
covered under the ambit of cyber crime. Cyber space crimes may be
committed against persons, property, government and society at
large.
The common types of cyber crimes are:1. Hacking An unauthorized user who attempts to or gains
access to an information system is known as hacker. Hacking
is a cyber crime even if there is no visible damage to the
system, because it is an invasion in to the privacy of data.
There are 3 different classes of Hackers.
a)
White Hat Hackers They are those hackers who believe that
information sharing is good, and that it is their duty to share their
expertise by facilitating access to information. However there are
some white hat hackers who are just joy riding on computer
systems.
b)
Black Hat Hackers Black hat hackers cause damage after
intrusion. They may steal or modify data or insert viruses or worms
which damage the system. They are also known as crackers.
c)
Grey Hat Hackers These type of hackers are typically ethical
but occasionally they can violate the hacker ethics. They will hack
into networks, stand-alone computers and software. Network
hackers try to gain unauthorized access to private computer
networks just for challenge, curiosity, and distribution of
information.
Carding: It means false ATM cards i.e. Debit and Credit cards
used by criminals for their monetary benefits through
withdrawing money from the victims bank account malafidely. There is always unauthorized use of ATM cards in this
type of cyber crimes.
Cheating & Fraud: It means the person who is doing the act of
cyber crime i.e. stealing password and data storage has done
it with having guilty mind which leads to fraud and cheating.
the
had
the
For
i.e.
cyber
crimes
like
child
INDIAN PERSPECTIVE
Talking about Indian scenario of cyber space crimes and cyber space
laws, there was no statute in India for governing Cyber Laws
involving privacy issues, jurisdiction issues, intellectual property
rights issues and a number of other legal questions. With the
tendency of misusing of technology, there arisen a need of strict
statutory laws to regulate the criminal activities in the cyber world
and to protect the true sense of technology IT ACT, 2000 was
enacted by Parliament of India to protect the field of e-commerce, egovernance, e-banking as well as penalties and punishments in the
field of cyber crimes. The above Act was further amended in the
form of IT Amendment Act, 2008. Also certain sections of IPC and as
some cyber space crime are invading right to privacy, article 21 of
Indian constitution are some governing laws for cyber space crime
which imposes various liabilities in India.
CONSTITUTIONAL LIABILITY
Hacking into someones private property or stealing some ones
intellectual work is a complete violation of his right to privacy. The
Indian constitution does not specifically provide the right to
privacy as one of the fundamental rights guaranteed to the Indian
citizens but it is protected under IPC.
Right to privacy is an important natural need of every human being
as it creates boundaries around an individual where the other
persons entry is restricted. The right to privacy prohibits
interference or intrusion in others private life. The apex court of
India has clearly affirmed in its judicial pronouncements that right to
privacy is very much a part of the fundamental right guaranteed
under article 21 of the Indian constitution.
Thus right to privacy is coming under the expended ambit of article
21 of Indian constitution. So whenever there is some cyber crime
which is related to the persons private property or its personal stuff
then the accused can be charged of violation of article 21 of Indian
Criminal intimidation
(Sec.507 IPC)
by
an
anonymous
communication
Dishonestly
receiving
stolen
computer
communication device (sec. 66B IT Act)
resource
or
(sec. 77 IT Act)
Uniform law
Mr. Vinod Kumar holds the opinion that the need of the hour is a
worldwide uniform cyber law to combat cyber crime. Cyber crime is
a global phenomenon and therefore the initiative to fight it should
come from the same level. [13]
Lack of awareness
There is a need for a well equipped task force to deal with the new
trends of hi tech crime. The government has taken a leap in this
Cyber savvy judges are the need of the day. Judiciary plays a vital
role in shaping the enactment according to the order of the day. One
such stage, which needs appreciation, is the P.I.L., which the Kerala
High Court has accepted through an email.
As stated above one of the fatal drawbacks of the Act has been the
cases going unreported. One obvious reason is the non-cooperative
police force. The police are a powerful force today which can play
an instrumental role in preventing cybercrime. At the same time, it
can also end up wielding the rod and harassing innocents,
preventing them from going about their normal cyber business. For
complete realization of the provisions of this Act a cooperative
police force is required. [14]
Apart from these loopholes and problems the present form of police
system and many police officials are not familiar with the cyber
crimes and they need training to be familiar with the Modus
operandi of cyber crimes though the existing relevant act is
comprehensive legislation but from the practical point of view there
are some shortcomings in the errant form of the act. It is the need of
the hour that the efficiency of police system at all ranks should be
upgraded in terms of cyber crimes. The immoral, lethal minds of
criminals take advantages of inefficient police system.
Both bench and Bar should realize the extent of cyber crimes. They
should familiarize themselves with the intricacies of cyber law,
otherwise they would find it extremely difficult to deal with cyber
crime cases.
The Bank NSP case is the one where a management trainee of the
bank was engaged to be married. The couple exchanged many
emails using the company computers. After some time the two
broke up and the girl created fraudulent email ids such as Indian
bar associations and sent emails to the boys foreign clients. She
used the banks computer to do this. The boys company lost a large
number of clients and took the bank to court. The bank was held
liable for the emails sent using the banks system.
the aim to defame the company and its Managing Director. The
Delhi High Court restrained the defendant from sending derogatory,
defamatory, obscene, vulgar, humiliating and abusive emails either
to the plaintiffs or to its sister subsidiaries all over the world
including their Managing Directors and their Sales and Marketing
departments. Further, Honble Judge also restrained the defendant
from publishing, transmitting or causing to be published any
information in the actual world as also in cyberspace which is
derogatory or defamatory or abusive of the plaintiffs. This order of
Delhi High Court assumes tremendous significance as this is for the
first time that an Indian Court assumes jurisdiction in a matter
concerning cyber defamation and grants an injunction restraining
the defendant from defaming the plaintiffs by sending defamatory
emails.
Sony.Sambandh.Com Case
Bazee.com case
In this case, Tata Indicom employees manipulated the electronic 32bit number (ESN) programmed into cell phones theft were
exclusively franchised to Reliance Infocomm. Court held that
tampering with source code invokes Section 65 of the Information
Technology Act.
COMPARATIVE STUDY
As against the alone legislation ITA and ITAA in India, in many other
nations globally, there are many legislations governing e-commerce
and cyber crimes going into all the facets of cyber crimes. Data
Communication, storage, child pornography, electronic records and
data privacy have all been addressed in separate Acts and Rules
giving thrust in the particular area focused in the Act.
United States of America
USA have the Health Insurance Portability and Accountability Act
popularly known as HIPAA which inter alia, regulates all health and
insurance related records, their upkeep and maintenance and the
issues of privacy and confidentiality involved in such records.The
Sarbanes-Oxley Act (SOX) signed into law in 2002 mandated a
number of reforms to enhance corporate responsibility, enhance
financial disclosures, and combat corporate and accounting fraud.
with
other
international
portal
for
accessing
operational
CONCLUSION
Cyber crime is a new form of crime that has emerged due to
computerization of various activities in an organization in a
networked environment. With the rapid growth of information
technology cyber crimes are a growing threat.
Technology has a negative aspect as it facilitates commercial
activity. Ordinarily the law keeps pace with the changes in
technology but the pace of technological developments in the
recent past, especially in the field of information and technology is
impossible to keep pace with legal system. An important concern
relates to modernizing penal laws of many countries which predate
the advent of computers. On the one hand, the existing laws have to
be change to cope with the computer related fraud such as hacking,
malicious falsification or erasure of data, software theft, software
attacks etc. and on the other, new legislation is also necessary to
ensure data protection and piracy. The need for a law on data
protection is paramount if India is to sustain investor confidence,
especially among foreign entities that send large amounts of data to
India for back-office operations. Data protection is essential for
outsourcing arrangements that entrust an Indian company with a
foreign companys confidential data or trade secrets, and/or
customers confidential and personal data.
Also in the above chapters we have talked about the Indian police
system for cyber crimes which is subjected to the improvisation, and
a new and clear specific legislation which can fight easily against
the cyber crimes. Further the proposed initiatives and amendments
by government to the IT act, which are likely to be implemented,
soon will be implemented as soon as possible. The proposed
amendments widen the liability for breach of data protection and
negligence in handling sensitive personal information. Additionally,
the Government of India, with the help of the Department of
Information Technology, is currently working on a holistic law on
data protection based on the European Union directive. Further, the
government plans to create a Common Criterion Lab, backed by
the Information Security Technical Development Council, where
intensive research in cryptography and product security can be
undertaken. As Prevention is always better than cure, a smart
internet user should take certain precautions while operating the
internet and should follow certain preventive measures for cyber
crimes, these measures can be considered as suggestions also:
A person should never send his credit card number to any site
that is not secured, to guard against frauds.
at
[12] Ibid
[13] Kumar Vinod, Winning the Battle against cyber Crimes available
at http://www.cyberriskinsuranceforum.com/content/are-we-losingbattle-against-cyber-crime
[14] Dewang Mehta, Role of Police in Tackling Cyber Crimes
available at http://www.naavi.org/pati/pati_cybercrimes_dec03.htm
[15] Ibid