UNDERSTANDING CYBER CRIMES Introduction The advent of internet and the revolution of cyber space in communication, commerce and information is hailed as a paradigm shift in use of technology and its percolation to the masses. Along with its positive aspect of growth and development, the flip side is that of the phenomenon called cyber crimes. The impact of cyber crimes and the legal response is still a matter of debate and defies consensus and unified approach. Nevertheless the potential damage and the actual damage it has done warrants a speedy response from the legal system. Unlike the crime in a physical scenario and its containment, cyber crimes are technological in its essence, anonymous in its operation and untraceable in its getaway. The legal debate surrounding cyber crimes is two fold. The first challenge is to define what constitutes cyber crimes as opposed to physical crimes and the second challenge is that of the application of traditional criminal law and criminal justice administration on the cyber crimes. In the first debate on what constitutes cyber crimes there is some consensus. Legal analysts have a consensus that cyber crimes are those crimes perpetuated using computers and computer networks through the medium of internet to perpetuate various cyber crimes. Such crimes are committed: @ On computers and other networks by the cyber criminals using authorized or unauthorized entry @ Such cyber crimes can be of various acts ranging from stalking to cyber terrorism. @ Like physical crimes there are individuals or groups of persons behind such acts of cyber crimes. It is on the second aspect of analysis, whether cyber crimes need a different interpretation of the criminal law concepts, there are divergent views. Whether there should be a separate cyber crime laws or whether traditional criminal law is enough? How to assess and compute the damages in cyber crimes using the traditional analysis of criminal law used in the concept of physical crime and related issues. Additionally the nature of cyber crimes by virtue of the internet is a crime which poses challenge to international conduct and hence the need for an international dimension of cyber crimes which is considered as the international warfare of Information technology. On the regulation of the cyber crimes again there is a wide debate on how far one can regulate and what type of regulations should be in place. There could be consensus on the regulation of cyber crimes such as hacking, fraud, obscenity and related crimes, where as the human right activists, votaries of privacy and other activists accuse violations of the authority on the name of security and cyber crime where their civil rights are curbed, activities monitored and privacy intruded. The module will analyze the issues of what constitutes cyber crimes, the various types of cyber crimes, and the legislation in India on cyber crimes, the issues of civil rights and its protection on tackling cyber crimes. Defining Crime To understand cyber crimes and its ramifications in terms of the damage, the challenge to prosecution, the loopholes of the existing criminal justice system, the powers of regulation and its boundaries, it is essential to have look at the concept of crime itself.
The concept of Crime is treated differently in different societies and also undergoes drastic change during different time periods in the history of a society. Dowry was considered as a social status at a particular period, which today is a crime. Untouchability was an accepted social norm of a particular period in society in tune with caste hierarchy and today it is a crime under the constitution. Thus very many acts are crime today, which are not once, and some acts like homosexuality or lesbianism, which is a crime today, could change tomorrow. In essence the concept of crime is static in some aspects such as stealing, fraud, causing injury, murder etc and changing in certain aspects of social norms and relationship. Similarly crime in a society is not a crime in another society. What could be considered as obscenity in India could be viewed differently in Sweden. What could be contempt of court publication in India could be viewed differently in United States. Another aspect is that the liability or punishment for a crime could vary in different societies based on the Law reflecting values attached in such societies to certain acts. Capital punishment has been done away in many European countries and not so in India or in some states in US. The quantum of punishment for theft or vandalism could be lenient in some legal systems and could be extreme in Saudi Arabia. In essence the definition of crime is varied in different in legal systems. The punishment could vary in different legal systems. In the current context, the countries following the western jurisprudence and common law systems have a well-evolved criminal law and criminal justice administration to tackle the physical world of crimes. Such systems look at crime from the four elements of a) Mens Rea- the mental state of the person accused of a criminal act b) Actus Reus- committing an act or failing to do so when it is warranted resulting in a criminal act c) the attendant circumstances or conditions which define a criminal act and d) the result of an act considered as prohibited by the Law. A Criminal Act in the physical world is dealt on the above fundamentals. To illustrate - is that there is an altercation between A and B resulting in an injury to B to which, he succumbs and dies. In this case A had hit B who is an alcoholic with a liver damage, which resulted in the death of him. If A is aware of the fact of the liver damage of B and still punched him, one can infer that there is a Mens Rea on the part of A and also acted in a manner, which resulted in the injury and an Act prohibited by Law. If A is not aware of liver injury of B then there is no Mens Rea on the part of A but still will be liable on the count of Actus rea and other aspects for prosecution. Thus the penal provisions will act upon the application of the above basic elements in any crime in the physical world. The basics of such is in the first place, any legal system should first define certain acts as criminal which is harmful to the society and there upon the actions that are considered as crime will be subject to the scrutiny of the above elements of intention, conduct, circumstance and prohibited act to evoke the required penal provisions. The fundamental principle is that a conviction is possible only if there is a concrete proof beyond reasonable doubt that the act of a person is prohibited by the criminal law and such an act is also committed with an intention of causing the same. CRIME IN CONTEXT OF INTERNET The cyber world is defined as a virtual world which is different from that of the physical world. The cyber world though a virtual world is a reality which interconnects people, organizations, Governments. It transacts information at the basic level but also conducts the business of governments and private enterprises in a manner where no other technology could dream of. The cyber space is also a space where various types of crimes are perpetuated and the magnitude of such crimes could be unimaginable due its speed, anonymity and destruction has been amply recorded. The moot point is whether the same principles of criminal law can be applied to the cyber world crimes as applied to the world of physical crimes. The answer is divided.
One school of thought advocate that it is possible to interpret the crimes perpetuated in the cyber world to that of the physical world and hence could apply the same principles to regulate them. To substantiate the following arguments are held forth: 1. Cyber Crimes are nothing but crimes of the physical world perpetuated in the world of computers and hence there is no difference in defining a crime in the cyber world and the physical world 2. As in the physical world the cyber world crimes are perpetuated by individuals or groups, where the medium is the only difference. 3. As the traditional principles of criminal law has tackled various technologies used in the past it is capable of analyzing and interpreting the new technology as well. 4. The cyber crimes in fact are lesser in scope than the physical crime like fraud, intrusion of privacy, data theft, damage to computers, cheating consumers etc where as physical injury or other crimes like rape, grievous hurt or bigamy cannot be perpetuated through the cyber crimes. 5. The technological advancement of the information technology itself is a deterrent and a tool in tracking and convicting the crimes. On the other hand there are advocates who say that cyber crimes cannot be tackled with the conventional principles of cyber crimes and thus need special laws to regulate them and they put forth the following arguments: 1. Cyber Crime is a crime which has a potential and uncontrollable damage which needs stricter regulations. A virus introduced can damage millions of computers before even finding the perpetuator. 2. The cyber crime is perpetuated by anonymous person who has to be skilled in opening the password and security systems and can vanish without a trace. 3. The cyber crimes are transnational in nature, which involves complex prosecution procedures to bring the culprits to the book. 4. The Cyber crime of obscenity and pornography has a potential moral depravity on generations which could push them into the physical world of crimes 5. The National Security and security in terms of safety like Airports, Railway systems are more vulnerable and could create chaos and economic loss by cyber crimes and hence special laws to apprehend, prosecute with stiffer penalties are needed in context of cyber crimes 6. The technology is a fast changing one and hence needs a different type of enforcement system to tackle the cyber crimes unlike the physical crimes. With the debate on the above lines continuing one thing is clear that cyber crimes has the potential to damage the economic aspects of a society and a nation due to technology where speed, ease of operation, defying boundaries are strengths and weaknesses at the same time. The legislations around the world are veering around to the view that cyber crimes warrant
stricter penalties due to its quantum of damage. There are also attempts to address the technology related issues by setting up of cyber tribunals. In Indian context, the IT Act of 2000 tries to address the question of cyber crimes by defining what is a damage in the context of the computers and the relevant penalties as follows: PENALTIES AND ADJUDICATION : S 43. Penalty for damage to computer, computer system, etc. If any person without permission of the owner or any other person who is in charge of a computer, computer system or computer network, - (a) accesses or secures access to such computer, computer system or computer network; (b) downloads, copies or extracts any data, computer data base or information from such computer, computer system or computer network including information or data held or stored in any removable storage medium; (c) introduces or causes to be introduced any computer contaminant or computer virus into any computer, computer system or computer network; (d) damages or causes to be damaged any computer, computer system or computer network, data, computer database or any other programmes residing in such computer, computer system or computer network; (e) disrupts or causes disruption of any computer, computer system or computer network; (f) denies or causes the denial of access to any person authorised to access any computer, computer system or computer network by any means; (g) provides any assistance to any person to facilitate access to a computer, computer system or computer network in contravention of the provisions of this Act, rules or regulations made hereunder; (h) charges the services availed of by a person to the account of another person by tampering with or manipulating any computer, computer system, or computer network, he shall be liable to pay damages by way of compensation not exceeding one crore rupees to the person so affected. Explanation.- For the purposes of this section,- (i) "computer contaminant" means any set of computer instructions that are designed- (a) to modify, destroy, record, transmit data or programme residing within a computer, computer system or computer network; or (b) by any means to usurp the normal operation of the computer, computer system, or computer network; (ii) "computer data base" means a representation of information, knowledge, facts, concepts or instructions in text, image, audio, video that are being prepared or have been prepared in a
formalised manner or have been produced by a computer, computer system or computer network and are intended for use in a computer, computer system or computer network; (iii) "computer virus" means any computer instruction, information, data or programme that destroys, damages, degrades or adversely affects the performance of a computer resource or attaches itself to another computer resource and operates when a programme, data or instruction is executed or some other event takes place in that computer resource; (iv) "damage" means to destroy, alter, delete, add, modify or rearrange any computer resource by any means. In this context the crimes which may not have found a definition under the Indian Penal Code has been amply clarified in the IT Act and there are other crimes which are committed hitherto in the physical world which if done through the medium of internet using computers will be brought as Cyber crimes and can be punished under the IPC. To this effect the term electronic record has been introduced in the IPC at relevant places : 1. After section 29, the following section shall be inserted, namely:- Electronic record. "29A. The words "electronic record" shall have the meaning assigned to them in clause (t) of sub- section (1) of section 2 of the Information Technology Act, 2000.". 2. In section 167, for the words "such public servant, charged with the preparation or translation of any document, frames or translates that document", the words "such public servant, charged with the preparation or translation of any document or electronic record, frames, prepares or translates that document or electronic record" shall be substituted. 3. In section 172, for the words "produce a document in a Court of Justice", the words "produce a document or an electronic record in a Court of Justice" shall be substituted. 4. In section 173, for the words "to produce a document in a Court of Justice", the words "to produce a document or electronic record in a Court of Justice" shall be substituted. 5. In section 175, for the word "document" at both the places where it occurs, the words "document or electronic record" shall be substituted. 6. In section 192, for the words "makes any false entry in any book or record, or makes any document containing a false statement", the words "makes any false entry in any book or record, or electronic record or makes any document or electronic record containing a false statement" shall be substituted. 7. In section 204, for the word "document" at both the places where it occurs, the words "document or electronic record" shall be substituted. 8. In section 463, for the words "Whoever makes any false documents or part of a document with intent to cause damage or injury", the words "Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury" shall be substituted. 9. In section 464,-
(a) for the portion beginning with the words "A person is said to make a false document" and ending with the words "by reason of deception practiced upon him, he does not know the contents of the document or the nature of the alteration", the following shall be substituted, namely:- "A person is said to make a false document or false electronic record- First-Who dishonestly or fraudulently- (a) makes, signs, seals or executes a document or part of a document; (b) makes or transmits any electronic record or part of any electronic record; (c) affixes any digital signature on any electronic record; (d) makes any mark denoting the execution of a document or the authenticity of the digital signature, with the intention of causing it to be believed that such document or part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly- Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alteration; or Thirdly- Who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practiced upon him, he does not know the contents of the document or electronic record or the nature of the alteration. " ; (b) after Explanation 2, the following Explanation shall be inserted at the end, namely:- 'Explanation 3.- For the purposes of this section, the expression "affixing digital signature" shall have the meaning assigned to it in clause (d) of subsection (1) of section 2 of the Information Technology Act, 2000.'. 10. In section 466,- (a) for the words "Whoever forges a document", the words "Whoever forges a document or an electronic record" shall be substituted; (b) the following Explanation shall be inserted at the end, namely:- 'Explanation.-
For the purposes of this section, "register" includes any list, data or record of any entries maintained in the electronic form as defined in clause (r) of sub-section (1) of section 2 of the Information Technology Act, 2000.'. 11. In section 468, for the words "document forged", the words "document or electronic record forged" shall be substituted. 12. In section 469, for the words "intending that the document forged", the words "intending that the document or electronic record forged" shall be substituted. 13. In section 470, for the word "document" in both the places where it occurs, the words "document or electronic record" shall be substituted. 14. In section 471, for the word "document" wherever it occurs, the words "document or electronic record" shall be substituted. 15. In section 474, for the portion beginning with the words "Whoever has in his possession any document" and ending with the words "if the document is one of the description mentioned in section 466 of this Code", the following shall be substituted, namely: - "Whoever has in his possession any document or electronic record, knowing the same to be forged and intending that the same shall fraudulently or dishonestly be used as a genuine, shall, if the document or electronic record is one of the description mentioned in section 466 of this Code.". 16. In section 476, for the words "any document", the words "any document or electronic record" shall be substituted. 17. In section 477A, for the words "book, paper, writing" at both the places where they occur, the words "book, electronic record, paper, writing" shall be substituted. Though there is a debate whether the document in IPC prior to the amendment will include electronic document the current amendment makes such analysis redundant and does not leave scope for any other interpretation. One need to understand the types of cyber crimes in vogue to apply the existing IT Act or the IPC to regulate the same.