Sunday, October 25, 2009

Legal Dimensions of Cybertrespass

In common language the word 'trespass', means to go on another's property without consent. Though it is ordinarily a civil wrong, if trespass is done with criminal intention, it is treated as criminal trespass. Thus, as trespass actions are stranded in the idea of protecting an owner's control over his property and as even the websites should be considered as a species of property. As like in the case of trespass, when just cracking is there by the cracker, it is of a civil nature but once the intention to cause harm or rather damage the system is proved, the liability becomes that of a penal nature. Now it is not just criminal trespass, which can be done by cracking but cracking may also result in many other crimes which are mentioned in the Indian Penal Code, 1860. Like, if a cracker cracks a banking website and transfers money into his own account, this may constitute a crime under Sec.378 of the Penal Code, which in this case may also be termed as Cyber Theft. The IT Act tries to achieve this by providing civil and penal consequences for cracking and other wrongful activities. The development of new-age technology in the form of computers and other such instruments is the cause of rampant tort of cyber-trespass. The computer may be used as a tool in the following kinds of activity, e-mail spoofing, forgery, cyber defamation, cyber stalking. It is necessarily the breach of personal information of a person and his personal identity details, website databases etc. The computer may however be target for unlawful acts in the most of the cases for e.g. unauthorized access to computer/ computer system/ computer networks, theft of information contained in the electronic form, e-mail bombing, data didling, salami attacks, logic bombs, Trojan attacks, internet time thefts, web jacking, theft of computer system, physically damaging the computer system and other such confidential information. As the capacity of human mind is unfathomable. It is not possible to eliminate cyber trespass from the cyber space. But it is quite possible to check them As computer data often contain personal information a cracker can also infringe one's right to privacy guaranteed by Art.21 of the Constitution of India. The paper will try to analyse the issues that whether there is an exclusive right of any of the parties in respect of the data base of the list of clients and service providers, and opinion and advices in respect of which the parties had an obligation to maintain confidentiality which they have created or whether it was a joint right of all the parties' How much consistent is IT Act in India while defining Hacking and setting its dimensions while dealing with other matters related to cyber trespass: Spamming and Cracking and Indian law. Cyber-stalking and the liability under Indian Law . Remedies for cyber-trespass: Spamming is not only lucrative but is also unregulated to a greater extent. The laws for the prevention of spam in India are missing. Even the IT Act, 2000 fails to address this issue directly and we have to take recourse of "Purposive and Updating Interpretation" to punish the offenders. It can be concluded that the provisions of the cyber law are not made so stringent that it may retard the growth of the industry and prove to be counter-productive.
Details of the paper will be available soon at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1460599


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Dr.Tabrez Ahmad,
Associate Professor of Law,
KIIT University, Bhubaneswar, India,
Website: www.kls.ac.in, www.technolexindia.com
Profile: http://www.google.com/profiles/tabrezahmad7.
Blogs: http://www.blogger.com/profile/15337756250055596327
Research Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1189281

First Technology Court Inaugurated in India

Justice KG Balakrishnan, Chief Justice of India, who inaugurated the CRAT court room recently, said during the inauguration that the increase of computers pose question for legal system. Union Law Minister of India Dr. M Veerappa Moily has opined that he would like to see more Acts to deal with the increasing volume and variety of cybercrimes. In December 2009, Government amended IT Act 2000, which was mainly intended to give legal recognition to e-commerce, including electronic filing of documents. It is only chapter 11 of the said Act that covers a few offences relating to use and abuse of computer system which invites penalty of fine or imprisonment or both. While other developed states for e.g. USA has several Acts including the Computer Fraud and Abuse Act, Computer Misuse Act, Electronic Fund Transfer Act and Child Online Protection Act. We require well defined laws to deal with the fast emerging issues of cyber crimes in future.  Present Indian Penal Codes are quite helpful in tackling IT related offences, but that may not be enough,

Information Technology Act 2000 of India addresses some basic aspects such as legal recognition of electronic cards and digital signature for the purpose of entering in to contract. There are grey areas in forming contract in cyberspace. We are still trying to apply the Indian Contract Act 1872 in the contract entered through Internet. Of course there are some provisions in IT Act 2000, but those are not sufficient to deal with cyber contracts.

Justice Rajesh Tandon  the would be presiding officer of CRAT ( first cyber court room  ) in India very rightly expressed concern to organize  an international conference for the enforcement of cyber laws as most of the cyber crimes originate outside the country.

Probably the next world war would be fought in cyber space. Cyber terrorist and Mafias are emerging, whose activities are growing to threaten the sovereignty of India and the world over. Terrorists often take over us in the cyber space, which is a product of technical innovation. This we can only prevent by putting proper regulation everywhere.

An appellate tribunal at national level and cyber courts in various states will also be established soon.

--
Dr.Tabrez Ahmad,
Associate Professor of Law,
KIIT University, Bhubaneswar, India,
Website: www.kls.ac.in, www.technolexindia.com
Profile: http://www.google.com/profiles/tabrezahmad7.
Blogs: http://www.blogger.com/profile/15337756250055596327
Research Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=1189281

Nature and Scope of Cyberlaw

The biggest challenge before Cyber Law is its integration with the legacy system of laws applicable to the physical world. Since Cyber Space has no geographical boundaries, nor the Netizens have physical characteristics of Sex, Age etc, several conflicts surface when the rights of Netizens are viewed in the eyes of Citizens of a physical space. This is well reflected in the conflict between the Trade mark Laws and system of Domain Names.

The unique structure of the Internet has raised several legal concerns. While grounded in physical computers and other electronic devices, the Internet is independent of any geographic location. While real individuals connect to the Internet and interact with others, it is possible for them to withhold personal information and make their real identities anonymous. If there are laws that could govern the Internet, then it appears that such laws would be fundamentally different from laws that geographic nations use today. Since the Internet defies geographical boundaries, national laws will no longer apply. Instead, an entirely new set of laws will be created to address concerns like intellectual property and individual rights. In effect, the Internet will exist as its own sovereign nation. Cyber law encompasses a wide variety of legal issues which   includes intellectual property, privacy, freedom of expression, and jurisdiction. As the law of Cyber Space, as envisioned by William Gibson in his novel Neuromancer , Cyber Law addresses the issues of Virtual Property and Virtual Persons. It covers rights of Netizens who are the citizens of Cyber Space and regulation of the Cyber Space for a peaceful and harmonious existence of Netizens. There are several countries which have enacted special laws for regulating Cyber Space Transactions of Citizens within their Physical Jurisdiction and these are recognized as the Cyber Laws of the Physical Jurisdiction. Yet, as more physical locations go online, the greater the potential for physical manifestation of electronic misdeeds.  

Free Speech in Cyberspace
In comparison to traditional print-based media, the accessibility and relative anonymity of cyber space has torn down traditional barriers between an individual and his or her ability to publish. Any person with an internet connection has the potential to reach an audience of millions with little-to-no distribution costs. Yet this new form of highly-accessible authorship in cyber space raises questions and perhaps magnifies legal complexities relating to the freedom and regulation of speech in cyberspace.

In many countries, speech through cyberspace has proven to be another means of communication which has been regulated by the government. The Open Net Initiative, whose mission statement is "to investigate and challenge state filtration and surveillance practices" in order to "…generate a credible picture of these practices," has released numerous reports documenting the filtration of internet-speech in various countries. While China has thus far proven to be the most rigorous in its attempts to filter unwanted parts of the internet from its citizens , many other countries – including Singapore, Iran, Saudi Arabia, and Tunisia – have engaged in similar practices. In one of the most vivid examples of information-control, the Chinese government for a short time transparently forwarded requests to the Google search engine to its own, state-controlled search engines . These examples of filtration bring to light many underlying questions concerning the freedom of speech, namely, does the government have a legitimate role in limiting access to information? And if so, what forms of regulation are acceptable? The recent blocking of "blogspot" and other websites in India failed to reconcile the conflicting interests of speech and expression on the one hand and legitimate government concerns on the other hand.

In the UK the case of Keith-Smith v Williams confirmed that existing libel laws applied to internet discussions.

Recently, these complexities have taken many forms, three notable examples being the Jake Baker incident, in which the limits of obscene Internet postings were at issue, the controversial distribution of the DeCSS code, and Gutnick v Dow Jones, in which libel laws were considered in the context of online publishing. The last example was particularly significant because it epitomized the complexities inherent to applying one country's laws (nation-specific by definition) to the internet (international by nature). In 2003, Jonathan Zittrain considered this issue in his paper, "Be Careful What You Ask For: Reconciling a Global Internet and Local Law". Leaving aside the most obvious examples of internet filtering in nations like China or Saudi Arabia (that monitor content), there are four primary modes of regulation of the internet:

Architecture: West Coast Code: these mechanisms concern the parameters of how information can and cannot be transmitted across the internet. Everything from internet filtering software (which searches for keywords or specific URLs and blocks them before they can even appear on the computer requesting them), to encryption programs, to the very basic architecture of TCP/IP protocol, falls within this category of regulation. It is arguable that all other modes of regulation either rely on, or are significantly supported by, regulation via West Coast Code.  2. Law: Standard East Coast Code, and the most self-evident of the four modes of regulation. As the numerous statutes, evolving case law and precedents make clear; many actions on the internet are already subject to conventional legislation (both with regard to transactions conducted on the internet and images posted). Areas like gambling, child pornography, and fraud are regulated in very similar ways online as off-line. While one of the most controversial and unclear areas of evolving laws is the determination of what forum has subject matter jurisdiction over activity (economic and other) conducted on the internet, particularly as cross border transactions affect local jurisdictions, it is certainly clear that substantial portions of internet activity are subject to traditional regulation, and that conduct that is unlawful off-line is presumptively unlawful online, and subject to similar laws and regulations. Scandals with major corporations led to US legislation rethinking corporate governance regulations such as the Sarbanes-Oxley Act.

 Markets: Closely allied with regulation by virtue of social norms, markets also regulate certain patterns of conduct on the internet. While economic markets will have limited influence over non-commercial portions of the internet, the internet also creates a virtual marketplace for information, and such information affects everything from the comparative valuation of services to the traditional valuation of stocks. In addition, the increase in popularity of the internet as a means for transacting all forms of commercial activity, and as a forum for advertisement, has brought the laws of supply and demand in cyberspace.

 Norms: As in all other modes of social interaction, conduct is regulated by social norms and conventions in significant ways. While certain activities or kinds of conduct online may not be specifically prohibited by the code architecture of the internet, or expressly prohibited by applicable law, nevertheless these activities or conduct will be invisibly regulated by the inherent standards of the community, in this case the internet "users." And just as certain patterns of conduct will cause an individual to be ostracized from our real world society, so too certain actions will be censored or self-regulated by the norms of whatever community one chooses to associate with on the internet.

Issues of jurisdiction and sovereignty have quickly come to the fore in the era of the Internet. In general, a crux of "cyber law" lies in whether to treat the Internet as if it were physical space (and thus subject to a given jurisdiction's laws) or to act as if the Internet is a world unto itself (and therefore free of such restraints). Those who favor the latter view often feel that government should leave the Internet community to self-regulate. John Perry Barlow, for example, has addressed the governments of the world and stated, "Where there are real conflicts, where there are wrongs, we will identify them and address them by our means. We are forming our own Social Contract. This governance will arise according to the conditions of our world, not yours. Our world is different" (Barlow, A Declaration of the Independence of Cyberspace. A more balanced alternative is the Declaration of Cybersecession ("Human beings possess a mind, which they are absolutely free to inhabit with no legal constraints. Human civilization is developing its own (collective) mind. All we want is to be free to inhabit it with no legal constraints. Since you make sure we cannot harm you, you have no ethical right to intrude our lives. So stop intruding!").

Jurisdiction is an aspect of state sovereignty and it refers to judicial, legislative and administrative competence. Although jurisdiction is an aspect of sovereignty, it is not coextensive with it. The laws of a nation may have extra-territorial impact extending the jurisdiction beyond the sovereign and territorial limits of that nation. This is particularly so where the medium of Internet is used which recognizes no sovereignty and territorial limitations. The jurisdictional issues regarding internet are governed by "Private International Law" or "Conflict of Laws" as there is no uniform law of universal application. Thus, two countries may have different jurisdictional mandates. This is more so where the contents of a web site are legal in one country and illegal in another. The absence of geographical boundaries may give rise to a situation where the material legal in one country where it is posted will violate the laws of another country. This process is further made complicated due to the absence of a uniform and harmonized law governing the jurisdictional aspects of disputes arising by the use of Internet. An international cyber law treaty prescribing a harmonized standard may be its solution otherwise we have to rely upon "conflict of laws" to resolve cyber space disputes.

In practical terms, a user of the Internet is subject to the laws of the state or nation within which he or she goes online. Thus, in the U.S., Jake Baker faced criminal charges for his e-conduct (see Free Speech), and numerous users of peer-to-peer file-sharing software were subject to civil lawsuits for copyright infringement. This system runs into conflicts, however, when these suits are international in nature. Simply put, legal conduct in one nation may be decidedly illegal in another. In fact, even different standards concerning the burden of proof in a civil case can cause jurisdictional problems. For example, an American celebrity, claiming to be insulted by an online American magazine, faces a difficult task of winning a lawsuit against that magazine for libel. But if the celebrity has ties, economic or otherwise, to England, her or she can sue for libel in the British court system, where the standard of "libelous speech" is far lower.
The aim of this segment is to explore how far a person can use the retaliation tactics of aggressive defence  in India or elsewhere, whose computer has been targeted for a wrong, nuisance, virus attacks, etc. The opinion in this context is sharply divided across the globe and some advocate for its use while others considers it to be an illegal act. It would be interesting to analyse whether the traditional concept of "private defence" can be used in cyberspace?
Cyber law in India is incorporated in the Information Technology Act, 2000 (IT Act, 2000). The IT Act, 2000 chiefly covers: (a) E-commerce in India, (b) E-governance in India, (c) Cyber contraventions, (d) Cyber crimes, etc. The IT Act has made major amendments to the Indian Penal Code, 1860, Indian Evidence Act, Bankers Book evidence Act. The landmark amendment made by IT Act 2000, which was came into force on 17th October 2000, is Sec. 56 B of The Evidence Act which made electronic records as an admissible evidence in a court of Law. Due to this amendment transactions of in the electronic form got legal recognition and has given fast growth in e-commerce, m-commerce and e-governace. Still Indian law requires lot of changes to have more teeth for regulation of cyberspace accordingly amendments were proposed in December 2008, but still those amendments are not came into force.

Let us wait and watch and see that what way the horse of cyberspace strides to us and mandates for legal regulation.