CRIMES IN CYBERSPACE: RIGHT TO PRIVACY AND OTHER ISSUES By Mohak Rana NMIMS, School of Law, Mumbai Editor’s Note: The present era is marked by two things: heavy reliance on technology and virtual space. But behind the interfusion of these two there exists a world of potent threat and risks. These threats and risks are very much latent in nature and mostly the one committing it or the one upon whom it is committed are extremely difficult to be identified. For instance in crimes like cyber phishing, where a user shares his credentials to a disguised trustworthy site but subsequently becomes a victim of fraud. The pace with which such crimes are evolving is very striving yet a country like India lacks far behind when it comes to laws and rules regulating cyber world. Much to our surprise there is no definition of cyber crimes in India. Although we have come up with IT Act, 2000 and the subsequent amendment to it in 2008 yet we are not able to cover the complete ambit of cyber crimes. Like a very crucial issue of right to privacy. It has almost no relevance when the cyber crimes in India are investigated. This only shows the imbalance between age old procedure adopted in India and the advancement which Indian society has made. However liability can also be found under criminal and tort law which has maintained their coordination with the procedural part. 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 doesn’t 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 one's 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?
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CRIMES IN CYBERSPACE: RIGHT TO PRIVACY AND OTHER ISSUES
By Mohak Rana NMIMS, School of Law, Mumbai
Editor’s Note: The present era is marked by two things: heavy reliance on technology and virtual space.
But behind the interfusion of these two there exists a world of potent threat and risks. These threats and
risks are very much latent in nature and mostly the one committing it or the one upon whom it is
committed are extremely difficult to be identified. For instance in crimes like cyber phishing, where a user
shares his credentials to a disguised trustworthy site but subsequently becomes a victim of fraud. The
pace with which such crimes are evolving is very striving yet a country like India lacks far behind when it
comes to laws and rules regulating cyber world. Much to our surprise there is no definition of cyber
crimes in India. Although we have come up with IT Act, 2000 and the subsequent amendment to it in
2008 yet we are not able to cover the complete ambit of cyber crimes. Like a very crucial issue of right to
privacy. It has almost no relevance when the cyber crimes in India are investigated. This only shows the
imbalance between age old procedure adopted in India and the advancement which Indian society has
made. However liability can also be found under criminal and tort law which has maintained their
coordination with the procedural part.
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 doesn’t 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 one's 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.
2. Cyber Stalking – Cyber stalking involves use of internet to harass someone. The behavior includes
false accusations, threats etc. Normally, majority of cyber stalkers are men and the majority of victims are
women.
3. Spamming - Spamming is sending of unsolicited bulk and commercial messages over the internet.
Although irritating to most email users, it is not illegal unless it causes damage such as overloading
network and disrupting service to subscribers or creates negative impact on consumer attitudes towards
Internet Service Provider.
4. Cyber Pornography – With the increasing approach of internet to the people, there is also a
increase in the victimization of Women and children for sexual exploitation through internet. Pedophiles
(a person 16 years of age or older who is primarily or exclusively sexually attracted to children who have
not begun puberty) use the internet to send photos of illegal child pornography to targeted children so as
to attract children to such funs and later they are sexually exploited for gains.
5. Cyber Phishing - It is a criminally fraudulent process in which cyber criminal acquires sensitive
information such as username, passwords and credit card details by disguising as a trustworthy entity in
an electronic communication.
6. Software Piracy - It is an illegal reproduction and distribution of software for business or personal
use. This is considered to be a type of infringement of copy right and a violation of a license agreement.
Since the unauthorized user is not a party to the license agreement it is difficult to find out remedies.
There are numerous cases of software piracy. Infact according to one report New Delhi’s Nehru market is
the Asia’s largest market where one can easily find pirated software.
7. Corporate Espionage - It means theft of trade secrets through illegal means such as wire taps or
illegal intrusions.
8. Money Laundering – Money laundering basically means the moving of illegally acquired cash
through financial and other systems so that it appears to be legally acquired. This is possible prior to
computer and internet technology and now times electronic transfers have made it easier and more
successful.
9. Embezzlement - Internet facilities are misused to commit this crime. It is the unlawful
misappropriation of money, property or any other thing of value that has been entrusted to the offender’s
care, custody or control.
10. Password Sniffers - These are programs that monitor and record the name and password of
network users as they log in, jeopardizing security at a site. Whoever installs the sniffer can impersonate
an authorized user and log in to access on restricted documents.
11. Spoofing – Spoofing is the act of disguising one computer to electronically “look” like another
compute, in order to gain access to a system that would be normally is restricted.
12. Credit Card Fraud - In U.S.A. half a billion dollars have been lost annually by consumers who have
credit cards and calling card numbers. These are stolen from on-line databases. In present world this
cyber crime is emerged as a major threat as numerous cases had been filed in almost every major
developed and developing country.
13. Web Jacking - The term refers to forceful taking of control of a web site by cracking the password.
14. Cyber terrorism - The use of computer resources to intimidate or coerce government, the civilian
population or any segment thereof in furtherance of political or social objectives is called cyber terrorism.
Individuals and groups quite often try to exploit anonymous character of the internet to threaten
governments and terrorize the citizens of the country. [1]
EVOLUTION & PRESENT DEVELOPMENT
“Cyber bullies can hide behind a mask of anonymity online, and do not need direct physical access to
their victims to do unimaginable harm.” -Anna Maria Chavez
Crime is both a social as well as a economic phenomenon. Its history is as old as human society. Many
books right from the pre-historic days, and mythological stories have spoken about crimes committed by
individuals be it against another individual like ordinary theft and burglary or against the nation like
spying, treason etc. Kautilya’s Arthashastra which is written around 350 BC, considered to be an authentic
administrative treatise in India, discusses the various crimes, security initiatives to be taken by the rulers,
possible crimes in a state etc. and also advocates punishment for the list of some stipulated offences.
Different kinds of punishments have been prescribed for listed offences and the concept of restoration of
loss to the victims has also been discussed in it.
Crime in any form adversely affects all the members of the society. In developing economies, cyber crime
has increased at rapid strides, due to the rapid diffusion of the Internet and the digitization of economic
activities. Thanks to the huge penetration of technology in almost all walks of society right from corporate
governance and state administration, up to the lowest level of petty shop keepers computerizing their
billing system, we find computers and other electronic devices pervading the human life. The penetration
is so deep that man cannot spend a day without computers or a mobile. Snatching some one’s mobile will
tantamount to dumping one in solitary confinement!
Internet is the fastest technique on earth that one can find these days and for everything it is the best
solution that people consider looking into. It has all the benefits and advantages like communication,
advertisement, online movie and songs downloads, emailing, instant messaging and searching out the
concerns and issues there are plenty of things that internet has got wrong as well. There are different
kinds of internet scams and frauds that are happening and one needs to be very careful. This is something
that has been bothering individuals and organizations ever since internet was introduced and many a
time, simple things could make you a victim even when you are unaware of it.
It is rightly said that technological development in every area is likely to cause drastic effects in every walk
of life. The scientific and technological advancement, especially in the field of communication and
information have created havoc thus, opening new vistas for the human beings including the criminals.
Today’s crime reports reveal that many cyber crimes are committed by assistance of internet and cell
phones. On the other hand, legislatures have been compelled to frame exclusive enactments to deal with
crimes committed with the help of concerned device. If one is to believe newspaper reports, many
scandals such as C.D. rackets were busted by the police. It is other side of revolution in the field of
information and technology. Under the Information Technology Act, 2000, there is a apparatus defined as
“computer” which means “Any electronic magnetic, optical or other high speed data processing device or
system which performs logical arithmetical and memory functions by manipulations of electronic
magnetic or optical impulses and all input, output, processing storage, computer software, or
communication facilities which are connected and related to the computer in a computer system or
computer network”. [2]
Development of Cyber Crime:-
Cyber Crime is neither defined in the IT Act 2000 nor in the I.T. Amendment Act 2008 nor in any other
legislation in India. To define cyber crime, we can say, it is just a combination of crime and computer. To
put it in simple terms ‘any offence or crime in which a computer is used is a cyber crime’. Interestingly
even a petty offence like stealing or pick-pocket can be brought within the broader purview of cyber crime
if the basic data or aid to such an offence is a computer or information stored in a computer used (or
misused) by the fraudster. It could be hackers vandalizing one’s site, viewing confidential information or
stealing trade secrets or intellectual property with the use of internet. It can also include ‘denial of
services’ and viruses attacks preventing regular traffic from reaching your site.
Cyber crimes also includes criminal activities done with the use of computers which further perpetuates
crimes i.e. financial crimes, sale of illegal articles, pornography, online gambling, intellectual property