What Are Cyber Crimes?

Cyber crime is a generic term that refers to all criminal activities, done using the medium of computers, internet, cyber space and World Wide Web.[1]                                                                                                               

 

In essence Cyber Law is an attempt to apply, laws designed for the physical world to human activities on the internet, in simple words it is a term which refers to all the legal and regulatory aspects of the Internet and the World Wide Web.[2]

 

We are in an era of Information Technology; the advent of IT revolution has seen the rise of an IT society with an IT culture.  

 

In less than half a century the development of IT has been tremendous. with its encompass being from Raja to Praja & Sovereign to Subject, There is hardly any area which has been left untouched by IT, From cradle to cremation IT has an important role and as  a substitute to human activities, it is deeply rooting and impacts our normal day to day activities.

 

In addition to countries like the US, Singapore, France, Malaysia and Japan. India is the twelfth nation to have cyber legislation

 

The internet in India is growing rapidly. It has given rise to new opportunities in every field we can think of – be it entertainment, business, sports or education. However there are always two sides to a coin, Cybercrime (illegal activity committed on the internet) is one of its major disadvantages. The internet, along with its many advantages, has also exposed us to security risks that come with connecting to a large network , Computers today are being misused for illegal activities like e-mail espionage, credit card fraud, spams, software piracy, in true sense of the term it does invade our privacy and offend our senses. Criminal activities in the cyberspace are on the rise[3]the modern thief can steal more with a computer than with a gun. Tomorrow’s terrorist may be able to do more damage with a keyboard than with a bomb.[4]To further aggravate the problem, criminals realizing the effectiveness of computers and the internet to successfully perpetrate conventional crimes, are increasingly resorting to using them as tools for committing such crimes.

 

Even though rise of literacy in India could bring down conventional crimes but the vulnerability of computers and the Internet could make crimes over the medium more rampant.[5]

Cyber crime has made a significant impact on the criminal justice system prevalent throughout the world. Criminals, realizing the effectiveness of computers and the Internet to successfully perpetrate conventional crimes, are resorting to using them as tools for committing such crimes; its effects are felt more as nations constantly endeavor to provide quicker and more efficient services to its citizens through the use of cyber space. Instances around the world are coming to light where computers and other electronic tools have been used as tools to facilitate commission of conventional crimes.

The widespread growth of cyber crime has affected nations from all across the globe. Incidents of cyber crime have caused extensive loss to a nation’s economy. Loss of business profits and disruption of government and other services acts as a death blow and hampers the growth of any economy.

The incidents of cyber crime can range from obscene, threatening and defamatory emails to computer aided sabotage, source code thefts and even attempted cyber murders thus cyber crime is a phenomenon whose effects are felt at a global level.

Cyber criminals tend to be technically sound and hardly leave any trails for law enforcement personnel to find out or trace their physical location. This necessitates the use of spoofing tools to trap and subsequently induce the suspect to give clues about his actual physical location and thus help law enforcement personnel to ultimately apprehend the suspect. Computer crime being a multi-billion dollar problem, law enforcement must seek ways to prevent its drawbacks from overshadowing the great promise that the internet brings to the computer age. Cybercrime is a menace that has to be tackled effectively not only by the officials but also by the users co-operating with law. The founding fathers of internet wanted it to be a boon for the whole world and it is upon us to keep this tool of modernization as a boon and not make it a bane for the society.[6]

We can categorize cyber crimes in two ways:

 

Crimes with computer as a target: Cyber crimes using a computer to attack other computers. eg: hacking,virus,worm attack ,DOS attack etc .

Crimes utilizing computer as a weapon :-for using a computer to commit real world crimes. e.g. Cyber Terrorism, IPR violations, Credit card frauds, EFT frauds, Pornography etc[7]

 

The subject of cyber crime may be broadly classified under the following three groups.

1. Offences against Individuals

Offences against the person & property of an individual.

Examples of offences against person:

(i) Cyber Stalking
(ii) Dissemination of obscene material.
(iii)Defamation.
(iv)Unauthorized control/access over computer system.
(v) Indecent exposure
(VI) Email spoofing
(vii) Cheating & Fraud

Examples of Offences against Individual Property

(i)Computer Vandalism
(ii) Transmitting virus.
(iii)Net trespass
(iv) Unauthorized control/access over computer system.
(v)Intellectual Property crimes
(VI) Internet time thefts

2. Offences against Organizations

a. Government
b. Firm, Company, Group of Individuals.

Examples of offences against Organization.

(i)Unauthorized control/access over computer system.

(ii)Possession of unauthorised information.

 

 

(iii)Cyber terrorism against the government organization.

(iv)Distribution of pirated software

3. Offences against Society at large:

Following are the crimes committed against the society as a whole:
(i) Pornography (basically child pornography).
(ii)Polluting the mind of youth through indecent exposure.
(iii)Trafficking
(iv) Financial crimes
(v) Sale of illegal articles
(vi) Online gambling
(vii) Forgery.

Are Cyber crimes different from conventional Crimes

 

Cyber crime investigation is different in many ways from the conventional crimes and presents serious enforcement challenges. There is no physical contact between the victim and the perpetrator of the crime, quite often; they are situated in different countries, thousands of miles apart. This practically rules out availability of eyewitness account. Availability of presentable documentary evidence rapidly diminishes over time, this as such calls for a quick incidence response.[8]

Why do we need to fight Cyber Crimes

We all must remember that cyberspace is a common heritage of ours which we have inherited in our life times from the benefits of ever growing technologies.

 This cyberspace is the lifeline of the entire universe and given its irreversible position today, it is the duty of every netizen to contribute toward making the said cyberspace free of any trouble or cybercrime.[9]

 

Why Are Computers Prone To Cyber Crime

Computers, despite being such high technology devices, are extremely vulnerable. In fact it may be easier to steal national secrets from military computers than to steal “laddoos” from a “mithai” shop.

 Lakhs of pages of written matter may be stored in CDROM, walking out of a godown with one lakh pages would be exceedingly difficult, but walking out of a secure location with a CD ROM containing a lakh of pages would be much simpler.[10]

HLA Hart in his work “The Concept of Law” has said ‘human beings are vulnerable so rule of law is required to protect them’. Applying this to the cyberspace we may say that computers are vulnerable so rule of law is required to protect and safeguard them against cyber crime.

The reasons for the vulnerability of computers are:

(1)  Its Capacity to store data in comparatively small spaces.

Computers have the unique characteristic of storing data in small space. This facilitates   removal of information through both physical as well as virtual medium there by making data theft much easier. 

(2) Capability of being easily accessible.

The problem encountered in guarding a computer system from unauthorised access is that there exist a very high possibility of breach not only due to human error but also due to the complex technology. Thus by secretly Implanting logic bomb, key loggers can steal access codes.

In addition advanced voice recorders; retina imagers play a substantial role in fooling biometric systems and bypassing firewalls so as to get past, many a security systems.

(3) Complexity of Computer systems enables detection &exploitation of several Loop Holes

The computers work on operating systems and these operating systems in turn are composed of millions of codes. Human mind is fallible and it is not possible that there might not be a lapse at any stage. The cyber criminals take advantage of these lacunas and penetrate into the computer system.

(4) Greater Chances of Negligence in Protecting Computer Systems

Negligence is very closely connected with human conduct. It is therefore very probable that while protecting the computer system there might be some negligence, which may in fact provide a cyber criminal with an opportunity to gain access and control over the computer system.

(5) Higher Chances of losing critical Evidence

Loss of evidence is a very common & obvious problem as all the data are routinely destroyed & further collection of data outside the territorial extent also paralyses this system of crime investigation.

Pre-requisites for Effectiveness of Cyber Laws:

 

The cyber law, in any country of the world, cannot be effective unless the concerned legal system has the following three pre requisites:

(1) A sound Cyber Law regime,
(2) A sound Enforcement Machinery, and

(3) A sound Judicial System

(1) Sound Cyber Law regime: The Cyber law in India can be found in the form of IT Act, 2000.[11] The IT Act, as originally enacted, was suffering from various loopholes and lacunas.

 

It is important to realize that we need “qualitative law” and not “quantitative laws”. In other words, one single Act can fulfill the need of the hour provided we give it a “dedicated and futuristic treatment”.

 

Perhaps the nature of cyber space is such that we have to take additional precautions. Since the internet is boundary less, any person sitting in an alien territory can do havoc with computer system of India.

 

In addition the Information Technology is much more advanced in other countries. If India does not shed its traditional core that it will be vulnerable to numerous cyber threats in future. The need of the hour is not only to consider the “contemporary standards” of the countries having developed Information Technology standards but also to “anticipate” future threats well in advance.

 

However the big question is, whether is India following this approach? Unfortunately, the answer is in negative. Firstly, the IT Act was deficient in certain aspects, though that was bound to happen. However, instead of bringing the suitable amendments, the proposed IT Act, 2000 amendments have further “diluted” the criminal provisions of the Act. The “national interest” was ignored for the sake of “commercial expediencies”. The proposed amendments have rendered the IT Act a “toothless tiger which in fact is a “remedy worst than malady”.

(2) A Sound Enforcement Machinery: A law might have been properly enacted and may be theoretically effective too, but it is useless unless enforced in its true letter and spirit. The law enforcement machinery in India is not well equipped to deal with cyber law offences and contraventions. They must be trained appropriately and should be provided with suitable technological support. A sound judicial system is the backbone for preserving the law and order in a society. Thus, a sound cyber law training of the Judges and Lawyers is the need of the hour. In short, the dream for an “Ideal Cyber Law in India” requires a “considerable” amount of time, money and resources. In the present state of things, it may take five more years to appreciate its application.

(3) A Sound Judicial System:-

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.

Mr T.K.Vishwanathan, member secretary, Law Commission, has highlighted the requirements for introducing e-courts in India. In his article published in The Hindu he has stated “if there is one area of Governance where IT can make a huge difference to Indian public is in the Judicial System”.[12]

 

Cyber Laws in India:

 

Introduction to IT Act 2000

 

Connectivity via the Internet has greatly abridged geographical distances and made communication even more rapid. While activities in this limitless new universe are increasing incessantly, the need for laws to be formulated to govern all spheres of this new revolution was felt .

The IT Act 2000 has been conceptualized on UNCITRAL[13] Model Law.

India became the 12th nation in the world to adopt a cyber law regime; it covers areas like e-governance, e-commerce, cyber contraventions and cyber offences.[14]

The Cyber laws of India are contained in the Information Technology Act 2000.

The Act aims at providing legal recognition for transactions carried out by means of electronic data interchange and other means of electronic communications commonly referred to as “electronic commerce” which involves the use of alternative to paper based methods of communication and storage of information and aims at facilitating electronic filing of documents with the government agencies.

 

So as to attract provisions of this Act, an offence or contravention should involve a computer, computer system, or computer network located in India. The IT Act, 2000 provides an extra-territorial applicability to its provisions by virtue of section 1(2) read with section 75.

The Information & Technology Act of 2000, defines five cyber-crimes –

(A) damage to computer source code(b) hacking,(c) publishing electronic information which is lascivious or prurient(d), breach of confidentiality and publishing false digital signatures.

India’s Information Technology Act 2000 has tried to assimilate legal principles available in several such laws (relating to Information Technology) enacted earlier in several other countries.[15]

Provisions of Information Technology Act Applicable to Cyber crimes in India:

STATUTORY PROVISONS (Of Information Technology Act 2000)

 The Indian parliament considered it necessary to give effect to the resolution by which the General Assembly adopted Model Law on Electronic Commerce adopted by the United Nations Commission on Trade Law. As a consequence of which the Information Technology Act 2000 was passed and enforced on 17th May 2000.the preamble of this Act states its objective to legalise e-commerce and further amend the Indian Penal Code 1860, the Indian Evidence Act 1872, the Banker’s Book Evidence Act1891 and   the Reserve Bank of India Act 1934.

 The basic purpose to incorporate the changes in these Acts is to make them compatible with the Act of 2000. So that they may regulate and control the affairs of the cyber world in an effective manner.            

 The Information Technology Act deals with the various cyber crimes in chapters IX & XI. The important sections are Ss. 43,65,66,67. Section 43 in particular deals with the unauthorised access, unauthorised downloading, virus attacks or where any contaminant, causes damage, disruption, denial of access, interference with the service availed by a person. Then this section provides for a fine up to Rs1 Crore as remedy.

 Section 65 deals with ‘tampering with computer source documents’ and provides for imprisonment up to 3 years or fine, which may extend up to 2 years or both. Section 66 deals with ‘hacking with computer system’ and provides for imprisonment up to 3 years or fine, which may extend up to 2 years or both. Further section 67 deals with publication of obscene material and provides for imprisonment up to a term of 10 years and also with fine up to Rs. 2 lakhs.

Some Key highlights of the Act are listed below:

Chapter-II of the ITAct specifically stipulates that any subscriber may authenticate an electronic record by affixing his digital signature. It further states that any person can verify an electronic record by use of a public key of the subscriber.

Chapter-III of the IT Act details about Electronic Governance and provides inter alia amongst others that where any law provides that information or any other matter shall be in writing or in the typewritten or printed form, then, notwithstanding anything contained in such law, such requirement shall be deemed to have been satisfied if such information or matter is rendered or made available in electronic form; and is kept accessible
to be used as subsequent reference.

 

Chapter-III of IT Act also details the legal recognition of Digital Signatures.

Chapter-IV of the Information Technology Act: gives a scheme for regulation of Certifying Authorities. The Act envisages a Controller of Certifying Authorities who shall perform the function of exercising supervision over the activities of the Certifying Authorities as also laying down standards and conditions governing the Certifying Authorities as also specifying the various forms and content of Digital Signature Certificates. The Act recognizes the need for recognizing foreign Certifying Authorities and it further details the various provisions for the issue of license to issue Digital Signature Certificates.

Chapter-VII of the Act details about the scheme of things relating to Digital Signature Certificates and duties of subscribers are also enshrined in the Information Technology Act.

Chapter-IX of the said Act talks about penalties and adjudication for various offences. The penalties for damage to computer, computer systems etc. has been fixed as damages by way of compensation not exceeding Rs. 1,00,00,000 to affected persons.

Chapter-X of the Act talks of the establishment of the Cyber Regulations Appellate Tribunal, which shall be an appellate body where appeals against the orders passed by the Adjudicating Officers, shall be preferred.

Chapter-XI of the Act talks about various offences which shall be investigated only by a Police Officer not below the rank of the Deputy Superintendent of Police. These offences include tampering with computer source documents, publishing of information, which is obscene in electronic form, and hacking.

The Information Technology Act of 2000 also provides for the constitution of the Cyber Regulations Advisory Committee, which shall advice the government as regards any rules, or matters connected with the Information technology.

The act proposes to amend the Indian Penal Code, 1860, the Indian Evidence Act, 1872, The Bankers’ Books Evidence Act, 1891, The Reserve Bank of India Act, 1934 to make them in tune with the provisions of the IT Act.

Information Technology Act of 2000 is versatile enough to accommodate those aspects of cyber law which should have been covered by IT Act-2000 but are covered by other statutes. Thus since any IPC offence committed with the use of “Electronic Documents” can be considered as a crime with in the definition of a “Written Documents”. “Cheating”, “Conspiracy”, “Breach of Trust” etc , thus  in  addition to  Information Technology Act-2000.,provisions of Indian Penal Code are also applicable to Cyber offences

Under ITA-2000 the offence is recognized both under Section 66 and Section 43. Accordingly, the persons involved are liable for imprisonment and fine as well as a liability to pay damage to the victims to the maximum extent of Rs 1 crore per victim for which the “Adjudication Process” can be invoked.

Some of the persons who have assisted others in the commission of the crime even though they may not be directly involved as beneficiaries would be held liable under Section 43 of ITA-2000

 

 

What’s wrong with our cyber laws (A Critical Analysis)

Even though quite some time has passed since parliament passed the IT Act, yet India’s first cyber law is still hard to implement, Cyber crime cells in India are understaffed. Most police personnel are not familiar with computers, so tremendous effort is required for training and orienting them on various aspects of detection, investigation and prosecution of cyber crimes.

 

“Only a very few of our judges and prosecutors have adequate IT knowledge.

There exists no provision for the police to take expert help in conducting investigations.

to make matters worst cyber crimes in India are covered under civil procedures, which take a longer time to deliver justice. Law must be amended to enable it to be covered under a criminal procedure that would make the act deliver results faster.

To make matters worse abuse of chat rooms, cyber stalking, misappropriation and misuse of credit card numbers are just a few of the many other loopholes which are still not addressed by IT Act[16]. When the act was announced way back in 2000, market watchers across the world called it revolutionary. However in true sense of the term the act has remained static while the rest of the world has changed.[17]

Loopholes in Information Technology Act of 2000

The IT Law 2000[18], though appears to be self sufficient, it takes mixed stand when it comes to many practical situations. It looses its certainty at many places like:

Lacks Proper Intellectual Property Protection for Electronic Information and Data:
The law misses out completely the issue of Intellectual Property Rights, and makes no provisions whatsoever for copyrighting, trade marking or patenting of electronic information and data. The law even doesn’t talk of the rights and liabilities of domain name holders.

The Information Technology Act Is Silent over regulation  of Electronic Payments, and avoids applicability of  IT Act to Negotiable Instruments:
The Information Technology Act stays silent over the regulation of electronic payments gateway and rather segregates the negotiable instruments from the applicability of the IT Act , This may have major effect on the growth of e-commerce[19] in India . This has led to tendencies of banking and financial sectors being irresolute in their stands.

Wide Discretionary powers accorded to DSP, have higher potential to facilitate unjust harassment of Corporate

The act empowers the Deputy Superintendent of Police to look up into the investigations and filling of charge sheet when any case related to cyber law is called. Such approach is likely to be misused in context of Corporate India where in companies with public offices would come within the ambit of “public place”, This would in fact diminish the chances of escaping potential harassment at the hands of the DSP.

Information Technology Act fails to address Practical Difficulties in simultaneous World wide enforcement of Cyber Laws:

Internet and cyber criminal dependent on the net, have spread to every corner of the world,This in fact hampers the simultaneous global application and enforcement of Information Technology to crimes committed all over the world.

Information Technology Act is Silent on the remedies available to persons, whose personal actions are filmed and distributed in public:

The IT Act is silent on filming anyone’s personal actions in public and then distributing it electronically.

 

Excessive liability on Internet Service Providers is Impractical and unjustified

Information Technology Act imposes excessive liability on ISPs (Internet Service Providers) and holds them responsible for third party data and information. There have been instances, where ISP who have been diligent or ones who were not even aware of the contraventions being committed, were made to face the brunt of our information Technology laws.

The much hyped case of the arrest of the CEO of Bazee.com, in online distribution of DPS MMS clips, was a consequence of this particular ambiguity of the law. It is impractical to expect an ISP to monitor what information their subscribers are sending out, all 24 hours a day.

Note:

Consequences of not addressing the loop Holes in Information Technology Act:

Cyber laws of the country cannot yet be regarded as sufficient and secure enough to provide a strong platform to the country’s e-commerce industry for which they were meant? India has lagged behind in keeping pace with the world in this regard, and consequences thereof are not far enough from sight; this is evident from the fact that most of the big customers of India’s outsourcing sector have started to re-think of carrying out their business in India. Bazee.com CEO Bajaj’s case has given the strongest blow in this respect and has contributed in breaking India’s leadership in international outsourcing market.

If India doesn’t want to loose its position and wishes to stay as the world’s leader in International outsourcing market, it needs to take quick & intelligent steps to cover the glaring loopholes pertinent in the Information Technology act, in case of its inability to do so, the day is not far when the scenario of India ruling the world’s outsourcing market, shall be reduced to a myth.

 

 

                     Snapshot to Information Technology Act 2000

 

Case laws indicating the weaknesses in the Implementation of Cyber laws Instances exposing the loop Holes of Indian Cyber Laws)

Cases on Cyber law:

 

In the matter of Himalaya Drug Company V/s. Summit [21]

The brief facts of the case were that the plaintiffs were engaged in the manufacture and sale of Ayurvedic medicinal preparations and had developed a Website under the domain name www.thehimalayadrugco.com. The plaintiffs developed a Section titled “HIMALYAS HERBS” which consists of Data Base of over 209 Herbs and which essentially is a detailed monograph on each of the said herbs. The plaintiffs have spent considerable time, labor, skill and money in preparing the Data Base of Ayurvedic Herbs that is mentioned herein above. The plaintiffs also claimed before the Hon’ble High Court of Delhi that it took more than a year to prepare the said Data Base to the company.

It came to the notice of the plaintiff that the defendants were operating a Website http://ayurveda.vertualaba.net which reproduced the plaintiff’s entire Herbal Data Base. It was also revealed that the defendant had not only copied the preliminary information of each Herb, but also the detailed monograph. The copying was also done to an extent that even the grammatical or syntactical errors that appear on the plaintiff’s Website have been copied on to the defendant’s Website.

The Delhi High Court not only restrained the defendant by an order of permanent injunction from reproducing, communicating to the public, adopting, using or infringing in any other manner the plaintiff’s Copyright in the Herbal Data Base as well as each Herbal Write-up /Description that comprises the Herbal Data Base, but also awarded punitive damages to the extent of Rs. 8 lacs.

The basic facts of this case were that the plaintiffs were running a law firm where

The plaintiffs claimed to have spent a substantial amount of money in training skills, computer network, specialized and customized Software, law library, office infrastructure etc. The plaintiffs claim that one of the defendants came to the office of the plaintiff after the dispute arose between the parties after the office hours and had downloaded 7.2 GB of Data Base of plaintiff’s crucial Data, Write-up through plaintiff’s local area network and also alleged that the defendants have stolen the hard copies comprising of over 10 proprietary drafts of the plaintiff. The plaintiffs prayed for protection of their exclusive Data under the Indian Copyright Act, 1957.

The Delhi High Court while keeping in view the arguments advanced by both the parties reached at the conclusion that the plaintiff had a prima facie case in respect of the Data Base rights in the Data taken away by the defendants. It observed that the defendants were free to carry on their profession, utilize the skills and information they had mentally retained, but restrained them from using the copied material of the plaintiff in which the plaintiff alone has a right. The defendants were also restrained to utilize the agreements, due diligence reports, list of clients and all such materials which came to their knowledge or have been developed during their relationship with the plaintiff.

The above case raises the issue of well drafted contracts before entering into any kind of relationship with the parties. It envisaged the need of the proper clauses to be drafted as to the dealing of Data, Computer Data Base while in relationship or at the termination of such agreements. Para 6.28 of P.Narayanan on Copyright and Industrial Design – (Third Edition) says that “Whenever an employee of a Solicitor firm drafts a document, the employer is the first owner of the Copyright document”, which means that to protect the Data, computer Data Bases of an organization, one needs to have good drafted contracts with an employee so that no dispute arises after the termination of service of an employee.

Recently the Court of Metropolitan Magistrate Delhi found guilty a 24-year-old engineer working in a call centre, of fraudulently gaining the details of Campa’s credit card and bought a television and a cordless phone from Sony website. Metropolitan magistrate Gulshan Kumar convicted Azim for cheating under IPC, but did not send him to jail. Instead, Azim was asked to furnish a personal bond of Rs 20,000, and was released on a year’s probation.[23]

In A Decided Case:

 

Lakshmana Kailash K, a computer engineer, was wrongly arrested from his home in Bangalore in August 2007 for having defamed Shivaji on Orkut.com; he was tracked with the help of information shared by ISP, Bharti Airtel. He was taken to Pune and put behind

Bars, where he spent 50 days, 3 weeks after real culprits were nabbed.

Techie has recently hit back with a legal notice on telecom giant Bharti Airtel, principal secretary (Home) Maharashtra government and assistant commissioner of police (financial & cyber crime unit), Pune police demanding Rs 20 crore in damages for illegal detention.

 

In Another Decided Case:

The Bar Girl ‘Tarannum’ who has been alleged of her involvement in Cricket match-fixing and betting, was arrested last week along with two bookies, who all were booked under different sections including Section 66 of Information Technology Act on charges of destroying evidence as being unable to locate the Laptop, which was supposed to contain incriminating evidence.[24].

The recent incidents, wherein HSBC Call-Center employee in Bangalore had passed on Bank details of 20 U.K. based Customers to accomplices who siphoned off almost Rs. 2 Crores.
The second incident was of Ankit Srivastava, who was an alleged Hacker, who through his expertise exploited loop-holes in the well-known communication service provider Airtel Web Site and got the details of Key PMO officials and Senior Police Officers. He demanded Rs. 1 Crore from Airtel for not compromising the crucial data which he has hacked from Airtel official Website[25]

In the third incident S.S. Paul, Assistant Analyst of National Security Counsel, Secretariat passed on sensitive information to an American Woman, whom he met at Indo US Cyber Secretariat Meet, last year.
.
MMS porn case[26] in which the CEO of bazee.com (an Ebay Company) was arrested for allegedly selling the MMS clips involving school children on its website is the most apt example in this reference. Other cases where the law becomes hazy in its stand includes the case where the newspaper Mid-Daily published the pictures of the Indian actor kissing her boyfriend at the Bombay nightspot and the arrest of Krishan Kumar for illegally using the internet account of Col. (Retd.) J.S. Bajwa.

Case 1:

When a woman at an MNC started receiving obscene calls, CBI found her colleague had posted her personal details on Mumbaidating.com. Case status: probe on)[27]

 Case 2: CBI arrested a man from UP, Mohammed Feroz, who placed ads offering jobs in Germany. He talked to applicants via e-mail and asked them to deposit money in his bank account in Delhi.[28]

Status: Charge sheet not filed.

Positive Aspects of Information Technology Act:

The IT Act 2000 attempts to change outdated laws and provides ways to deal with cyber crimes:

The Act offers the much-needed legal framework so that information is not denied legal effect, solely on the ground that it is in the form of electronic records.

(1) It seeks to empower government departments to accept filing, creating and retention of official documents in the digital format.

(2) The Act legalizes the e-mail and gives it the status of being valid form of carrying out communication in India. This implies that e-mails can be duly produced and approved in a court of law, thus can be a regarded as substantial document to carry out legal proceedings.

(3) The act also recognizes the legal Admissibility of digital signatures and digital records. They have been accorded the status of being legal and valid means that can form strong basis for launching litigation in a court of law. It invites the corporate companies in the business of being Certifying Authorities for issuing secure Digital Signatures Certificates.

(4) The Act by allowing the Government to issue notification on the web has heralded the  era of e-governance.

(5) It eases the task of companies of the filing any form, application or document by laying down the guidelines to be submitted at any appropriate office, authority, body or agency owned or controlled by the government. This has in-fact been quite effective in saving the costs, time and manpower for the corporate.

(6) the act also provides statutory remedy to the corporate in case the crime against the accused for breaking into their computer systems or network and damaging and copying the data is proven. The remedy provided by the Act is in the form of monetary damages, not exceeding Rs. 1 crore ($200,000).

(7) Also the law sets up the Territorial Jurisdiction of the Adjudicating Officers for cyber crimes and the Cyber Regulations Appellate Tribunal.

(8) The law has also laid guidelines for providing Internet Services on a license on a non-exclusive basis

ANALYSIS OF THE STATUTORY PROVISONS:

The Information Technology Act 2000 was undoubtedly a welcome step at a time when there was no legislation on this specialised field. The Act has however during its application has proved to be inadequate to a certain extent. The various loopholes in the Act are

 

The various loopholes in the Act are:

(1) Hurry in the enactment of the legislation did not serve as had been desired        

Experts are of the opinion that one of the reasons for the inadequacy of the legislation has been the hurry in which it was passed by the parliament and it is also a fact that sufficient time was not given for public debate.

(2) “Cyber laws, in their very preamble and aim, state that they are targeted at aiding e-commerce and not regulating cybercrime”

 

Mr. Pavan Duggal holds the opinion that the main intention of the legislators has been to provide for a law to regulate the e-commerce and with that aim the I.T.Act 2000 was passed, which also is one of the reasons for its inadequacy to deal with cases of cyber crime.

 

 

 

 

 

(3) Cyber torts:

 

The growth in the cases of Cyber stalking cyber harassment, cyber nuisance, and cyber defamation has shown that the I.T.Act 2000 has been ineffective in dealing with those offences. However at this juncture it must be mentioned that the I.T.Act 2000 read with the Indian Penal Code is capable of dealing with such offences.

 

(4) Vague Definitions:

 

 Section 67 is also vague to certain extent. It is difficult to define the term lascivious information or obscene pornographic informa­tion.

 (5) Uniform law:

 A worldwide uniform cyber law to combat cyber crime is the need of the hour Cyber crime is a global phenomenon, thus the initiative to fight it should also come from the same level.

(6)Lack of Awareness of Cyber Laws:

One important reason that the Act of 2000 is not achieving complete success is the due to the lack of awareness among citizens.

As a consequence of such lack of awareness, most of the cases go unreported. If the people are vigilant about their rights the law definitely does and would protects their rights.

(7) Jurisdiction issues:

Jurisdiction is also one of the debatable issues in the cases of cyber crime due to the very universal nature of cyber space. With the ever-growing arms of cyber space the territorial concept seems to vanish. New methods of dispute resolution should give way to the conventional methods. The Information Technology Act of 2000 is silent on these issues.

(8) Extra territorial application:

Though S.75 provides for extra-territorial operations of this law, but they could be meaningful only when backed with provisions recognizing orders and warrants for Information issued by competent authorities outside their jurisdiction and measure for cooperation for exchange of material and evidence of computer crimes between law enforcement agencies.

(9) Formation of an association of experts to deal with cyber crimes:

The government has taken a leap in this direction by constituting cyber crime cells in all metropolitan cities. There are man cases in which the C.B.I has achieved success. The present position of cases of cyber crime[29]

(10) Cyber Savvy Bench:

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.

Mr T.K.Vishwanathan, member secretary, Law Commission, has highlighted the requirements for introducing e-courts in India. In his article published in The Hindu he has stated “if there is one area of Governance where IT can make a huge difference to Indian public is in the Judicial System”[30]

 

(11) Tendency of People to hesitate in reporting cyber crimes:

 

One of the fatal drawbacks of the Act has been the cases going unreported. One obvious reason for the same is the non-cooperation on the part of 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 innocent s, preventing them from going about their normal cyber business. For complete realisation of the provisions of this Act a cooperative police force is required.

 

Thus to Conclude Prevention is better than cure:

Though more teeth can be added to the Information Technology act, & Amendments and regulations can be instrumental in achieving the control desired to be imposed by such laws yet the best remedy is and shall always lie in taking certain precaution while operating the net. To Quote, Sailesh kumar Zarkar, technical advisor and network security consultant with Mumbai Police Cyber crime Cell, the 5P mantra for online security consists of: Precaution, Prevention, Protection, Preservation and Perseverance.