ARTICLES

Cyber Crime and I T Act, 2000

Technological revolutions can make our daily life easier. However at the same time when the technology is misused by some evil group of people for their bad motives it can create numerous problems . The cyber revolution or the revolution in the computer technology has created problems all over the world. Evil minded persons are taking benefit out of this technological progress by committing crimes. These crimes are popularly known as Cyber Crimes. No where the term Cyber Crime has been defined under the Indian legislation. Even the IT Act, 2000, which has been enacted to provide legal recognition to "electronic commerce" is also silent on its definition. However in general sense we can assume that a Crime committed through the use of computer or computer technology may be considered to be a Cyber Crime.

CATEGORIZATION OF CYBER CRIMES

Cyber crime is a new mode of committing crimes through the illegal use of computer or computer technology. Now a days this mode of committing crimes is a very serious problem for the whole world. Starting from theft of personal information to the security information maintained by the defence system of a country are the scopes for cyber crime. These crimes are committed by the offender with a ulterior motive to get illegal benefits out of the computer and computer technology either directly or indirectly. Considering the modes of committing the crimes, these can be classified into following categories:

  1. Tampering with computer source documents.

  2. Damage to computer, computer system, etc.

  3. Hacking with computer system.

  4. Publishing of information which is obscene in electronic form.

  5. Cyber-stalking

  6. Illegal Cracking

  7. Software Piracy

  8. Passing off.

LEGAL MECHANISM TO CONTROL AND PREVENT THE CYBER CRIME

In India there is no strict legal mechanism for controlling and preventing all types of cyber crimes. There may be several causes for it, but the most important reason is lack of proper knowledge of the following facts:

The I T Act, 2000 which got the assent of parliament on 9th June of 2000 does not contain any procedure to control all these crimes. From the above categories of crimes the first four has been dealt by the said Act in several penal provisions, but the Act is silent on the rest of the crimes.

PENAL PROVISIONS FOR CYBER CRIMES

Damage to computer, computer system, etc.:- This is a very common crime found a lot now a days. Under this head the offences may be committed in the following manners.:

As per the provisions of I T Act, 2000 the person committing these offences are liable to pay damages by way of compensation not exceeding one crore rupees to the person so affected.

Tampering with computer source document: A computer program is programmed with a specific programming language using some codes called source code. Those codes are the instructions by which the specific purpose of the program is satisfied. Even the computer systems and the computer network is programmed with some specific codes for their operation. As per the provisions of Section 65 of IT Act, 2000 if somebody knowingly or intentionally conceal, destroy or alter any of these codes, the person committing these offences is punishable with imprisonment up to three years, or with fine which may extend up to Rs. 2,00,000 or with both.

Hacking with computer system: Hacking is the most serious Cyber Crime now a days. Hacking means causing wrongful loss or damages to the public by destroying, altering or deleting any information stored in a computer resources. Hacking is also a crime by which the value or utility of any information is diminished or affected injuriously by any means.

Now a days the Internet facility is the main medium for the hackers to commit these offences. Hackers, sitting any where in the world can manipulate any information through internet. For this purpose they use some special type of programs or computer Viruses.

Under Section 66 of the I T Act, 2000 hacking is punishable with imprisonment up to three years, or with fine which may extend upto two lakh rupees, or with both. It is pertinent to mention that if a hacker hacks some information with the help of any virus program he is punishable under both this section as well under section 43 of the IT Act. This means a Maximum penalty of Rs.1,02,00,000 or imprisonment or both can be imposed on the offender.

Publishing of Information which is obscene in electronic form: Under the Indian Penal Code, publishing of obscene materials and books are considered to be offences. Likewise under I T Act,2000 if anybody publishes or transmits any material in electronic form which is lascivious/immoral/lustful or appeals to the prurient/nasty interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, is considered to be an offence. Also the provisions of section 67 of I T Act,2000 provides penalty on first conviction with imprisonment for a term which may extend to five years and with fine which may extend to one lakh rupees and in the event of a second or subsequent conviction with imprisonment for a term which may extend to ten years and also with fine which may extend to two lakh rupees.

Cyber Stalking: It is a type of crime where the criminal uses the personal information of the victim and uses it for illegal purposes. For example making registration on a web-site using other’s name, address and contact number, making online payments through the credit card information of any other person, online chatting, messaging and communicating through e-mail with others using any other’s name and information defaming the reputation of that person to whom it is communicated or that person whose identification is used illegally.

It is a matter worth to note that I T Act, 2000 doesn't provide any provision or penalty for this type of offence. But fortunately Hon’ble Delhi High Court in the first Cyber Defamation case of SMC Pneumatics (India) Pvt. Ltd. v. Jogesh Kwatra passed an ex-parte and interim injunction against the defendant where he was alleged to send derogatory, defamatory, obscene, vulgar, filthy and abusive emails to the plaintiff company, its managers and its subsidiaries. Vide that order the defendant was also restrained from publishing, transmitting or causing to be published any information in the actual world as also in cyberspace which is derogatory or defamatory or abusive of the plaintiffs.

Illegal Cracking: In technical sense "Cracking" means breaking the gate way which is restricted to the permitted users only. It may be in the form of assessing a web site which is restricted for the registered users only or it may be converting a demo type software into a full version by making some changes in the source code. A big portion of computer users in India use cracked version of softwares because they are available at a comparatively low price.

Though I T Act, 2000 is silent on this type of offence but this type of offence can be covered under the heads of "hacking with computer system" and "tampering with computer source documents" for which the penalty and punishment is prescribed under Section 65 and 66 of the Act. Also to note that illegal cracking falling in both the types of offences, the penalty can be the total of the fine and punishment under both the sections.

Software Piracy: Ordinarily softwares are sold to the users with a certificate for its use. But some persons with illegal intention to gain out of its sale, purchase a single copy of the software and make its unlimited number of copies and sell those at a lower price than the original. Due to this software piracy the software developers suffer a huge loss in the market. Ordinarily this is protected under the Copy Right Act but if the software is not registered with copy right registrar then the protection can’t be claimed for its piracy. Though I T Act, 2000 does not provide penal provision, still this is considered to be an offence under Copy Right Act for the registered softwares.

Passing off: Indian law provides authorisation to 4 types of Intellectual Properties. Those are: (1) Trade Mark, (2) Copy Right, (3) Patent and (4) Designs and Geographical indications. In this age of Internet some business have raised to a great extent by their unique web site. A business organisation or an Individual can have some cyber space registered in his name to be assessed world wide. That space is addressed by a particular IP Address. This address is considered to be a unique address represented by a particular name called domain name. It may be www.something.com or www.something.net or with a special name representing the organisation or individual with an extension of .com, .net, .org, .co.in, .edu or any other permitted extension. Like a trade mark this is considered to be unique in the Registrar of Domain names.

In some cases some person to gain out of the goodwill of these well reputed domain names try to have a similar or identical domain name. By having an identical or similar domain name the offender tries to create an impression in the mind of the general user that the two similar domain names are connected or associated to each other, which is not true. For example somebody can have a web site named www.indiatime.com to get the users impression that this is a web site linked to www.indiatimes.com. By this way the domain name of India times is passed off.

There is no special provision under the I T Act, to protect any infringement or passing off of any such domain names registered with the registering authorities world wide. But the Mumbai High Court has created a history in the case of Rediff Communication Limited.Vs Cyberbooth and another. In the said case the defendant was using a similar domain name to www.rediff.com with the domain name www.radiff.com. The Hon'ble Mumbai High Court passed the order in favour of the Plaintiff with direction to the defendant, not to use the alleged domain name because the public are likely to associate the defendants' domain name with the plaintiffs and/or as part of the plaintiff's group.

OFFENCES COMMITTED OUTSIDE INDIA

An offence committed by any person irrespective of his nationality outside India which involves a computer, computer system or computer network located in India is punishable under the I T Act,2000. [Section 75]

From this a reference can be drawn that if somebody sitting in USA hacks our web site in India or spreads virus in a computer system in India, that person will be liable to be prosecuted under the I T Act, 2000.

LIABILITY OF NETWORK SERVICE PROVIDER

Network Service provider is the person who is an intermediary dealing in transmission of information from one party to another. It may be a web space provider or a web-site owner. A network service provider is considered to be liable for the information provided by the third party through the service provider unless he is able to prove that he had exercised all due diligence to prevent the commission of such offence or contravention.

I T Act, 2000 is little bit strict in the matter of liability of the Service Provider. When in other laws an accused is considered to be an accused not a criminal until the offence is proved, whereas under the I T Act, 2000 the accused is supposed to be a criminal until the non committing of offence is proved.

SOME RECENT CASES OF CYBER CRIME IN U.S.

U.S. v. An Unnamed Juvenile (W.D. Wash.) (February 11, 2005)

A 14 year old juvenile was sentenced to three years of probation with a number of restrictions including mental health counseling, and computer monitoring. The Judge also ordered that the juvenile perform three hundred hours of community service that involves work with the homeless or other less fortunate members of the community. The juvenile had released of a computer worm (referred to as the RPCSDBOT worm) in August 2003 that attacked the vulnerability in computer software..

U.S. v. Salcedo et. al. (W.D. N.C.) (December 15, 2004)

SALCEDO was sentenced to 108 months imprisonment for the offence that he and his co-defendant conspired and schemed to gain unauthorized access to the nationwide computer system used by Lowe's and, after gaining access, to download and steal credit card account numbers from that computer system.

U.S. v. Borghard (S.D. N.Y.) June 16, 2004

PETER BORGHARD, a former network administrator of a Manhattan-based internet service provider called Netline Services, Inc., was sentenced in Manhattan federal court by United States District Judge GEORGE B. DANIELS to 5 months in prison and 5 months of home confinement, and ordered to pay $118,030 in restitution, stemming from BORGHARD's electronic attack on Netline's computer system in January 2003.

U.S. v. Dinh (D. Mass.) May 5, 2004

A Pennsylvania man was sentenced to 1 year and 1 month in prison, to be followed by 3 years of supervised release and a $3,000 fine following his earlier conviction for the unauthorized access to a protected computer and other crimes in connection to his unlawfully accessing a computer belonging to an individual ("the Investor") residing in Westborough, Massachusetts, and using information gained through that intrusion to make unlawful trades with funds in the Investor’s on-line brokerage account

CONCLUSION

Indian Cyber law is not a weak law if considered from the angles of penal provisions. But the Act needs some more polishing to widen its scope to other cyber offences emerging now a days. Major part of the Act is dealing on the provision of Digital Signature, it should give priority to other aspects of Information Technology also. Though this Act has effected in amending some other Acts still some more Acts like Trade Marks Act, 1999 need to be amended to protect the Domain Names from passing off.

For your comments please write to:arunpatri@gmail.com

Mr. Aruna Kumar Patri

 

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