Term Paper on Cyber Jurisprudence
Subject: Computer | Topics:

Chapter-1

Introduction

Cyber Jurisprudence

The emergence of cyber jurisprudence around the world has promoted the growth of newer dimensions in Law.  Students and professionals willing to understand this unique and nascent field of study have opened doors to opportunities worldwide.

 Similar problems will arise in the future In several other transactions on the virtual space and we should keep ourselves mentally prepared for accepting new concepts of virtual property and laws relating to virtual property. The initial attempt is of course to extend the known physical society concepts to the virtual space while in due course we need to develop separate Cyber Jurisprudence to deal with such disputes. For example, if the Bragg’s case is to be decided in India according to physical laws, the nature of the property being “Land”, the transfer should be subject to “Transfer of Property Act” and “Registration Act”. Transfer of Property Act does not however recognize “virtual land” as an immovable property and therefore the transaction would not be valid under its provisions

 In fact some characteristics of this virtual property give it an “Intellectual Property Character” since the way the property is used is a “Creation in the minds of an imaginative player. It would therefore be neither appropriate to treat the dispute as a ‘Transfer of Property Dispute” or a “Contractual Property Dispute”. The IPR laws such as copyright could be closest to the property but still does not meet the “Meeting of Minds” test.

It is observed that in recent judicial reviews, whenever implementation of existing laws of the real space to Cyber Space has encountered a conflict, the laws of the real space has prevailed. This tendency in due course is likely to develop into a principle of “Primacy of Meta Space” and become the bedrock of Jurisprudence.[1] However, when two laws of the real space itself come to conflict in the Cyber Space, the principle of “Primacy of the Meta Space” fails. This is reflected mainly in IPR disputes and Jurisdiction disputes. Instead of fighting legal battles that can only end in victories for the one who has more financial resources, it is necessary to accept that “Real World Laws Cannot be Extended for Every Conflict in Cyber Space”

Now is the time, not when a Crisis occurs, when we should examine cyber jurisprudence in a cyber society. Left to their own devices, lawyers have a way of siphoning the joy out of anything. Stories like Bragg’s probably have most attorneys drafting retainers for the personal injury claims of the 21st century rather than trying to shape a sustainable legal framework for cyber society. A.s we have discovered in the real world, the Internet has rarely offered easy opportunities to co-opt existing law. Yet, we are presented with an unprecedented opportunity to re-imagine the role of law, to redefine its relation with people, to create a legal system heretofore undreamed of. The architects of Second Life, Wikipedia, and others are anything but traditional.[2]

Chapter :02

“Learn to Unlearn”, the first principle  of “Cyber Jurisprudence”.

An interesting legal development in USA involving a law suit in physical space over a dispute of a virtual property has attracted attention of Cyber Law specialists. A case has been filed by a Pennsylvania resident Marc Bragg against San Francisco-based Internet game company Linden Lab and its president and CEO for alleged conversion, fraud, unjust enrichment and breach of contract and for allegedly violating several California laws.

The origin of the conflict is through an online game “Second Life” run by Linden Lab. In this game the players can buy, sell, lease land and other assets through a currency created in the game called “Lindens”. Lindens can also be bought in exchange of physical currency such as US Dollars.

In the Game, there was an piece of land owned by Linden Lab which was vacant (in the context of the game). This piece was put up for auction by Mr Bragg in the game’s auction space which earned him lindens worth US $ 2000/-.

Linden Lab now says that the piece of land had not yet been released by the company for auction and hence Mr Bragg had no “ownership title” (i.e. virtual ownership) on the  land. It says that Mr Bragg’s auction is illegal and therefore has seized his land (virtual) and the balance in his account worth US $ 2000/-.

This case will throw up interesting discussions on the nature of virtual property and transactions in which virtual acquisitions are in dispute.[3]

It is clear however that the virtual acquisitions had the requisites of a “Property” since they had a value, could be owned, transferred or otherwise dealt with. If the value of the property was entirely in the virtual currency such as “lindens’, then the dispute would have been entirely in the virtual space and fit for a “Virtual Court” to decide. But in the instance case, the convertibility of lindens to dollars creates a distinct link to the physical world and hence the dispute spills over to the physical space.

Similar problems will arise in the future in several other transactions on the virtual space and we should keep ourselves mentally prepared for accepting new concepts of virtual property and laws relating to virtual property. The initial attempt is of course to extend the known physical society concepts to the virtual space while in due course we need to develop separate Cyber Jurisprudence to deal with such disputes.

For example, if the Bragg’s case is to be decided in India according to physical laws, the nature of the property being “Land”, the transfer should be subject to “Transfer of Property Act” and “Registration Act”. Transfer of Property Act does not however recognize “virtual land” as an immovable property and therefore the transaction would not be valid under its provisions. If however, the piece of “VirtualLand” is considered a “unit of property” created out of the contractual agreement between the player and the gaming company as well as one player with another player, while it enables application of the concepts of  “Contract Laws”, it conflicts with the basic requirement of “Meeting of the Minds” in contracts. The reason is that in this case, the parties dealt with the “unit of property” as an “Immovable Property” and not as any thing else. If the buyer and the seller thought and acted as if thy were buying and selling a piece of land, it would be in appropriate to adjudicate on the dispute ignoring this basic thought behind the transaction and considering it as some thing else. They had the psychological satisfaction of using it as land, perhaps constructed buildings over it, rented it out and experienced all the pleasures and pains of ownership of an immovable property. In fact some characteristics of this virtual property give it an “Intellectual Property Character” since the way the property is used is a “Creation in the minds of an imaginative player”.[4]

It would therefore be neither appropriate to treat the dispute as a “Transfer of Property Dispute” or a “Contractual Property Dispute”. The IPR laws such as copyright could be closest to the property but still does not meet the “Meeting of Minds” test.

It is for this reason that Naavi.org has been advocating that Cyber Laws have to be drafted “By the Netizens” and “For the Netizens” for it to have some meaning. We need a fresh thinking on most of the disputes and we should “Learn to Unlearn” our physical society concepts. This is the first principle in the development of “Cyber Jurisprudence”.

Where its nature concerns intangible, incorporeal or ethereal whatever they call it, it exists substantially, prevailed and become indispensable part of life of man of this digital age, we may call it virtual environment. Website addresses, or email addresses, unlike the property in physical world are intangible and incorporeal in nature.

The immense dependence of digital technology by man and unpredictable advancement in cyberspace still is not in frame of proper legal mechanism. The Indian apex court in a case Seelan v. Presiding officer observed as “software is intangible and is difficult to classify in legal terms”. Another verdict of in the case of Bragg v. Lindin court holdsthat “although the facts of the case are virtual but the dispute is real”. In fact the court considered the facts and subject matter in above of the case, the jurists in the world hoisted various comments on this verdict of in different ways but mostly are agreed that the court has considered and measured the virtual property.

In the legal sense “virtual property” is a system, code or organism which performs function as the corporeal object in the real world. By and large, the legal definition of virtual property is no more ambiguous and in flux, making it easy to even find a starting point for a discussion of the topic, as much as a working definition.

According to commentators advocating independent property rights in virtual property, an e-mail account is a form of virtual property. By extension, another type of unique user account is also virtual property. A domain name, too, is virtual property. The example of an item existing in the context of a virtual world, such as an online game, is also virtual property.[5]

Given the gulf between traditional property and virtual property, however, the question that one must ask, may, Does the popularization of virtual reality-based pastimes and the corresponding growth in the virtual property trade call for the development of new property law doctrines to protect virtual property? The answer is yes, all these form of virtual properties required to be measured as legal recognition and a uniform international cyber rules and laws may work to get common legal approach.

For virtual property, no doubt the implications of this growth are wide- ranging. At the most fundamental level, unlimited variability in virtual environment characteristics means that while virtual property in all environments may be protect-able. Moreover, each virtual environment may not potentially require its own particularized set of “laws,” tailored to fit the environment’s unique characteristics, just uniform set of laws may be a code to be bespoken.

Legal issues relating to the electronic communication and internet in this contemporary world as being necessitated of new kind of jurisprudence, which may be cyber jurisprudence with a virtual approach. Cyber jurisprudence gives an analysis of the law where, is no land and even there is no border, where all things may be different from the physical world, they may be virtual from origin and nature. We may find virtual world with virtual rules and policies, along with the virtual subject matter, virtual contract, virtual disputes, virtual property, virtual possession and virtual court. Cyber jurisprudence deals with the composite idea of cyber jurisdiction and cyber court’s venue in the cyberspace. It emphasis to recognize cyber uniform rules and policies at international level.[6]

Chapter :03

Cyber jurisprudence, a developing concept

The Latin words jus and prudentia being mutated as jurisprudence in English has been defined as “knowledge of law or knowledge of just and unjust. Etymologically, no doubt this definition conforms to the word but it brings within its compass every branch of law.

 In Bragg vs. linden court hold that ‘although the facts of the case are virtual but the dispute is real’.

 It is clear however that the virtual acquisitions had the requisites of a “Property” since they had a value, could be owned, transferred or otherwise dealt with. If the value of the property was entirely in the virtual currency such as “lindens’, then the dispute would have been entirely in the virtual space and fit for a “Virtual Court” to decide. But in the instance case, the convertibility of lindens to dollars creates a distinct link to the physical world and hence the dispute spills over to the physical space.

Analogous troubles will arise in the future in several other transactions on the virtual space and we should keep ourselves mentally prepared for accepting new concepts of virtual property and laws relating to virtual property. The initial attempt is of course to extend the known physical society concepts to the virtual space while in due course we need to develop separate Cyber Jurisprudence to deal with such disputes.

If the Bragg’s case is to be decided in Pakistan according to physical laws, the nature of the property being “Land”, the transfer should be subject to “Transfer of Property Act” and “Registration Act”. Transfer of Property Act does not however recognize “virtual land” as an immovable property and therefore the transaction would not be valid under its provisions.[7] If however, the piece of “Virtual Land” is considered a “unit of property” created out of the contractual agreement between the player and the gaming company as well as one player with another player, while it enables application of the concepts of  “Contract Laws”, it conflicts with the basic requirement of “Meeting of the Minds” in contracts. The reason is that in this case, the parties dealt with the “unit of property” as an “Immovable Property” and not as any thing else. If the buyer and the seller thought and acted as if thy were buying and selling a piece of land, it would be in appropriate to adjudicate on the dispute ignoring this basic thought behind the transaction and considering it as some thing else.

Legal issues relating to the electronic and internet in this contemporary world as being necessitated of new kind of jurisprudence, which may be cyber jurisprudence. Cyber jurisprudence gives an analysis of the law where, is no land and even there is no border, where all things may be different from the physical world, they may be virtual from origin and nature. We may find virtual world with virtual rules and policies, along with the virtual subject matter, virtual contract, virtual disputes, virtual property (including tangible or intangible), virtual possession and virtual court. Cyber jurisprudence deals with the composite idea of cyber jurisdiction and cyber court’s venue in the cyberspace. It emphasis to recognize cyber uniform rules and policies at international level, it also discusses with the netizens and netiquates.

The modern jurists have to had getting heads together to endow with the rationale pedestal of jurisprudence to this ruling, now we can ascertain utmost exact definition of cyber jurisprudence as “this describes the principles of legal issues, which exclusively regulates the cyberspace and internet”.[8]

Chapter:4

Cyber Crimes and General Principles

As the new millennium dawned, the computer has gained popularity in every aspect of our lives. This includes the use of computers by persons involved in the commission of crimes. Today, computers play a major role in almost every crime that is committed. Every crime that is committed is not necessarily a computer crime, but it does mean that law enforcement must become much more computer literate just to be able to keep up with the criminal element. According to Donn Parker , “For the first time in human history, computers and automated processes make it possible to possess, not just commit, a crime. Today, criminals can pass a complete crime in software from one to another, each improving or adapting it to his or her own needs.”

The first recorded cyber crime took place in the year 1820. The era of modern computers, however, began with the analytical engine of Charles Babbage. Cyber crime is an evil having its origin in the growing dependence on computers in modern life. In a day and age when everything from microwave ovens and refrigerators to nuclear power plants is being run on computers, cyber crime has assumed rather threatening implications.

The majority of what are termed “cyber-crimes” is really violations of longstanding criminal law, perpetrated through the use of computers or information networks. The problems of crime using computers will rarely require the creation of new substantive criminal law; rather, they suggest need for better and more effective means of international cooperation to enforce existing laws.

On the other hand, there are new and serious problems posed by attacks against computers and information systems, such as malicious hacking, dissemination of viruses, and denial-of-service attacks. Such attacks should be effectively prohibited, wherever they may originate.[9] At the same time, it is to be remembered that often the most effective way to counter such attacks is to quickly deploy technical countermeasures; therefore, to the extent that well-meaning but overbroad criminal regulations diminish the technical edge of legitimate information security research and engineering, they could have the unintended consequence of actually undermining information security.

What is a Computer Crime?

a. Criminals Can Operate Anonymously Over the Computer Networks.

b. Hackers Invade Privacy.

c. Hackers Destroy “Property” in the Form of Computer Files or Records.

d. Hackers Injure Other Computer Users by Destroying Information Systems.

e. Computer Pirates Steal Intellectual Property.

Definition of Cyber Crime

Defining cyber crimes, as “acts that are punishable by the Information Technology Act” would be unsuitable as the Indian Penal Code also covers many cyber crimes, such as email spoofing and cyber defamation, sending threatening emails etc. A simple yet sturdy definition of cyber crime would be “unlawful acts wherein the computer is either a tool or a target or both”.

Classification of Cyber Crimes:

The Information Technology Act deals with the following cyber crimes along with others:

o Tampering with computer source documents

o Hacking

o Publishing of information, which is obscene in electronic form

o Child Pornography

o Accessing protected system

o Breach of confidentiality and privacy[10]

Cyber crimes other than those mentioned under the IT Act

o Cyber Stalking

o Cyber squatting

o Data Diddling

o Cyber Defamation

o Trojan Attack

o Forgery

o Financial crimes

o Internet time theft

o Virus/worm attack

o E-mail spoofing

o Email bombing

o Salami attack

o Web Jacking

The Concept of Cyber Terrorism

Cyber crime and cyber terrorism are both crimes of the cyber world. The difference between the two however is with regard to the motive and the intention of the perpetrator.

While a cyber crime can be described simply as an unlawful act wherein the computer is either a tool or a target or both, cyber terrorism deserves a more detailed definition. One can define cyber terrorism as a premeditated use of disruptive activities or the threat thereof, in cyber space, with the intention to further social, ideological, religious, political or similar objectives, or to intimidate any person in furtherance of such objectives.[11]

Cyber Criminals

Any person who commits an illegal act with a guilty intention or commits a crime is called an offender or a criminal. In this context, any person who commits a Cyber Crime is known as a Cyber Criminal. The Cyber Criminals may be children and adolescents aged b/w 6-18 years, they may be organized hackers, may be professional hackers or crackers, discontented employees, cheaters or even psychic persons.

a. Kids & Teenagers (age group 9-16 etc.)

This is really difficult to believe but it is true. Most amateur hackers and cyber criminals are teenagers. To them, who have just begun to understand what appears to be a lot about computers, it is a matter of pride to have hacked into a computer system or a website. There is also that little issue of appearing really smart among friends. These young rebels may also commit cyber crimes without really knowing that they are doing anything wrong.

According to the BBC , Teen hackers have gone from simply trying to make a name for them selves to actually working their way into a life of crime from the computer angle. According to Kevin Hogan , One of the biggest changes of 2004 was the waning influence of the boy hackers keen to make a name by writing a fast-spreading virus. Although teenage virus writers will still play around with malicious code, 2004 saw a significant rise in criminal use of malicious programs. The financial incentives were driving criminal use of technology.

Another reason for the increase in number of teenage offenders in cyber crimes are that many of the offenders who are mainly young college students are unaware of its seriousness. Recently the Chennai city police have arrested an engineering college student from Tamil Nadu for sending unsolicited message to a chartered accountant. The boy is now released on bail. So counseling session for college students has to be launched to educate them on the gravity and consequences emanating from such crimes.

In September, 2005, A Massachusetts teenager pleaded guilty in federal court in Boston for a string of hacking crimes reported to include the February compromise of online information broker Lexis Nexis and socialite Paris Hilton’s T-Mobile cellular phone account. The US Court noted that the number of teenage hackers is on the rise and only the lowest 1 percent of hackers is caught.[12]

In the above instance, the judge imposed a sentence of 11 months’ detention in a juvenile facility. If he had been an adult, he would have faced charges of three counts of making bomb threats against a person or property, three counts of causing damage to a protected computer system, two counts of wire fraud, one count of aggravated identity theft and one count of obtaining information from a protected computer in furtherance of a criminal act. This is clearly a deviation from the traditional principles of criminal law.

b. Organized hacktivists

Hacktivists are hackers with a particular (mostly political) motive. In other cases this reason can be social activism, religious activism, etc. The attacks on approximately 200 prominent Indian websites by a group of hackers known as Pakistani Cyber Warriors are a good example of political hacktivists at work.

c. Disgruntled employees

One can hardly believe how spiteful displeased employees can become. Till now they had the option of going on strike against their bosses. Now, with the increase independence on computers and the automation of processes, it is easier for disgruntled employees to do more harm to their employers by committing computer related crimes, which can bring entire systems down.

d. Professional hackers (Corporate espionage)

Extensive computerization has resulted in business organizations storing all their information in electronic form. Rival organizations employ hackers to steal industrial secrets and other information that could be beneficial to them. The temptation to use professional hackers for industrial espionage also stems from the fact that physical presence required to gain access to important documents is rendered needless if hacking can retrieve those.[13]

Criminal Law – General Principles

According to criminal law, certain persons are excluded from criminal liability for their actions, if at the relevant time; they had not reached an age of criminal responsibility. After reaching the initial age, there may be levels of responsibility dictated by age and the type of offense allegedly committed.

Governments enact laws to label certain types of activity as wrongful or illegal. Behavior of a more antisocial nature can be stigmatized in a more positive way to show society’s disapproval through the use of the word criminal. In this context, laws tend to use the phrase, “age of criminal responsibility” in two different ways:

1. As a definition of the process for dealing with alleged offenders, the range of ages specifies the exemption of a child from the adult system of prosecution and punishment. Most states develop special juvenile justice systems in parallel to the adult criminal justice system. Children are diverted into this system when they have committed what would have been an offense in an adult.

2. As the physical capacity of a child to commit a crime. Hence, children are deemed incapable of committing some sexual or other acts requiring abilities of a more mature quality.

The age of majority is the threshold of adulthood as it is conceptualized in law. It is the chronological moment when children legally assume majority control over their persons and their actions and decisions, thereby terminating the legal control and legal responsibilities of their parents over and for them.

But in the cyber world it is not possible to follow these traditional principles of criminal law to fix liability. Statistics reveal that in the cyber world, most of the offenders are those who are under the age of majority. Therefore, some other mechanism has to be evolved to deal with cyber criminals.[14]

Today’s Hackers – Tomorrows Security Analysts

Frank William Abagnale, Jr. is a former check con artist, forger and imposter who, for five years in the 1960s, passed bad checks worth more than $2.5 million in 26 countries. During this time, he used eight aliases — even more to cash bad checks. Currently he runs Abagnale and Associates, a financial fraud consultancy company. His life story provided the inspiration for the feature film Catch Me if You Can.

An Indian teenage hacking expert who has helped global think-tanks and police officials combat computer attackers and digital swindlers is spurning job offers to pursue a degree at the prestigious StanfordUniversity. Ankit Fadia, 18 has crisscrossed India, giving lectures to police departments, software companies, educational institutions and government agencies on how to fight “cyber criminals” and deal with computer viruses.

Fadia, developed his computer skills after spending long hours on the Internet, breaking into Web sites as an “ethical hacker” and then informing companies about their sites’ vulnerability. Also, he wants to start his own computer security firm.

Also, Not all hackers are bad. There are certain hackers whose job is to intrude into a software system by evading or disabling security measures and checks how vulnerable the system is to the bad hackers. Ethical computer hacking has come of age in order to stop or pre-empt intruders from messing around with a computer programme. “Financial transactions are the mainstay of banking operations. Banks and other such institutions need to be extra careful of the bad hackers. Ethical hackers do what a hacker does but only to identify the loopholes in software programmes.[15]

Cyber Ethics

Ethics and morality in different circumstances connotes varied and complex meanings. Each and everything which is opposed to public policy, against public welfare and which may disturb public tranquility may be termed to be immoral and unethical.
In the past terms such as imperialism, colonialism, apartheid, which were burning issues have given way to cyber crime, hacking, ‘cyber-ethics’ etc. Today in the present era there is a need to evolve a ‘cyber-jurisprudence’ based on which ‘cyber-ethics’ can be evaluated and criticized. Further there is a dire need for evolving a code of Ethics on the Cyber-Space and discipline.

Conclusion
The Information Technology Act 2000 was passed when the country was facing the problem of growing cyber crimes. Since the Internet is the medium for huge information and a large base of communications around the world, it is necessary to take certain precautions while operating it. Therefore, in order to prevent cyber crime it is important to educate everyone and practice safe computing.

Following Frank William Abagnale & Robert Morris, many other hackers are intending to make use of their skills for better purposes. This trend continues even now where companies as their security analysts hire the brilliant hackers. Also, there is a dire need for evolving a code of Ethics on the Cyber-Space and discipline. In the cyberspace, following traditional principles of criminal law to fix liability is not possible. Since most of the cyber criminals are those who are under the age of majority, some other legal framework has to be evolved to deal with them. Since cyber world has no boundaries, it is a Herculean task to frame laws to cover each and every aspect. But, however a balance has to be maintained and laws be evolved so as to keep a check on cyber crimes.[16]

Chapter:5

Cyber Law & Territory

Claiming new dynamism in jurisprudence

In the last decade the Internet has achieved considerable expansion. Today it is estimated that there are over 9.4 million computers and as many as 40 million people world-wide linked to the Internet. It is very much predictable that by the end of this century there could be over 200 million Internet users. Necessarily cyber law has become a promising field. Cyber law encompasses cyber crime, electronic commerce, and freedom of expression, intellectual property rights and privacy rights. Cyber crime involves activities like credit card fraud, unauthorised access to computer systems, child pornography, software piracy and cyberstalking. It is notable that The architecture of cyberspace and access paths to the Cyber space have to be focused, to identify cyber crime and cyber criminals, and to resolve Jurisdictional confusion.

Genesis & the architectural factors of cyber territory

The Internet mechanism can be considered as the global connection of interconnected computer networks straddling state and national borders. The perception of interconnecting computers originally commenced in 1969 as part of a military program called “ARPANET.”

Conversion of users into the cyber criminals

The age of the users of internet ranges from nine to ninety years or more covering the people like students, terrorists, corporate personality whether employee or employer, members of organised crime etc.[17]

So variety of people get involved in cybercrime motivated by revenge, a desire for notoriety, the technical challenge, monetary gain, or the promotion of ideology or mere pleasure. The most rampant source of computer criminals is in house. Over ninety percent of economic computer crimes are perpetrated by a company’s own employees.

Territorial monopoly versus cyber space

The law is conceived and spoken of as territorial .the enforcement of law is undoubtedly territorial in the same way as the state is territorial; that is to say the state power is in time of peace exercised only within the territory of the state on its public ships and aircraft and on vessels and aircraft registered under its law.

But the law applicable to the cyber space is quite different form territorial -based law because of the peculiarity of cyber world bearing virtual character of visual nature. It should be considered that the events or activities ensued in cyber world causing legal consequences are not less than those in the real world are.

Accordingly a distinct set of laws and legal principles has become inevitable to be adopted with same mission holding sprit of punishment or remedy. The financial damage sustained by the individual or by corporate body or by governmental organs is claiming billions of dollars, which sometimes surpass traditional territorial-based damage.

Jurisdictional confusion

The developing law concerning jurisdiction must address whether a particular event in Cyberspace is controlled by the laws of the state or country where the Website is located, by the laws of the state or country where the Internet service provider is located, by the laws of the state or country where the user is located, or perhaps by all of these laws.

A number of commentators have voiced the notion that cyberspace should be treated as a separate jurisdiction. In practice, this view has not been supported by the Courts or addressed by lawmakers in many states.[18]

When adjudicating cases involving foreign nationals, the courts must harmonise several factors. On a case-by-case basis, the courts must consider the procedural and substantive policies of other countries whose interests are affected by the court’s assertion of jurisdiction. When extending jurisdiction into the international field great care and reserve must be exercised. Because of the principle of sovereign equality there is a higher jurisdictional barrier when litigating against a foreign national.

Definition of cybercrime

The traditional philosophy of law relating to legal concept, legal principle and legal definition flows from the territorial point of view. But now jurisprudence is facing a very significant and different type of problem pushing frequently for achieving recognition as substantive legal issues corresponding substantive right, requiring procedural support by any particular state or multi -lateral process or by universal system in legislative contribution. The definition of a crime on the Internet is still being developed. Cybercrimes have been defined as activities to include the destruction or theft of computer data and programs to be computer crime. Recently, the definition has expanded to include activities such as forgery, illegal gambling, and cyberstalking, tampering, interfering, damaging or unauthorised access to computer data and computer systems.

The categories of cybercrime

Computer crime involves concept of traditional crimes such as fraud, theft or forgery. It includes the more recent crime of cyberstalking. Vivid examples of cybercrime can be found in The “United Nations Manual on the Prevention and Control of Computer-Related Crime.” The manual includes fraud, forgery, computer sabotage, unauthorised access to Services or Systems, and copying of computer programs.[19]

Fraud:
Organised crime has used cyberspace to target credit card information, personal and financial information for cyber fraud. The sale of this information to counterfeiters of credit cards has proven to be extremely profitable. No longer do bank or credit cards need to be stolen. Counterfeiters using specialised computer hardware and software programs can encode falsified information on credit and bankcard magnetic strips. The sale of personal and financial information to create false travel documents has also become big business. Fraudulent activity has extended to the Internet in the form of fake franchise offerings.

Forgery:
Computer forgery is the alteration of computerised documents. Since the advent of high-resolution computerised colour laser copiers a new generation of fraudulent counterfeiting has emerged. These copiers can modify existing documents the quality of which is indistinguishable from the original without referring to an expert for analysis. The perpetrators can even create false documents without the necessity of referring to an original document.

Computer sabotage:

The use of the Internet to obstruct the normal functioning of a computer system through the introduction of worms, viruses, or logic bombs can be referred to as computer sabotage. Computer sabotage can be used to gain economic advantage over a competitor, to promote the illegal activities of terrorists, or to steal data or programs for extortion purposes.

Unauthorised access to computer services or systems:

Unauthorised access to a computer system can be motivated by a computer hacker’s curiosity or perhaps by a desire to sabotage the computer system. Hackers frequently impersonate the system administrator using default maintenance passwords, which the real system administrator failed to change, to break into the system. The modern hacker can bypass existing system password protection by creating a Trojan horse program to capture the passwords of legitimate users of the system.[20]

Unauthorised copying of computer programs:

The unauthorised copying and distribution of computer programs can cause considerable economic loss to the legitimate owners. Several jurisdictions have dictated that this activity should be subject to criminal sanctions declined to hold the defendant liable under the wire fraud statute because his infringement activities of distributing computer software did not result in a profit. The court went on to rule that criminal and civil penalties should attach to defendants involved in wilful, multiple infringements of copyrighted software, even if the infringer lacked commercial motive. The court left it to the legislature to define the crime and to establish the penalty.

Cyberstalking:
Cyberstalking refers to the activity of users sending harassing or threatening E-mail to other users. Women are especially being targeted by cyberstalkers. For example, a South Carolina woman has been stalked for several years via E-mail by an unknown person who has threatened her life, threatened to rape her daughter, and posted her home address on E-mail making it openly available to anyone with access to the Internet.[21]

Concluding remark:

There are many issues to be resolved in Cyber law. Cyber crime and jurisdiction are the two most complicated part of cyber-jurisprudence. Policy makers and lawyers dealing with cybercrime are often confined to referring to the scarce existing statutes and cases. In cyber-jurisdiction, the Courts must address the question of which lawmaker has jurisdiction over actions taking place on the Internet. Due to the exquisiteness of cyber jurisdiction cases there is a limited amount of law for the legal practitioner to reference. The Internet can be seen as multi-jurisdictional because of the easy accessibility into a Web site from anywhere in the world. Determining jurisdiction for courts is more problematic due to the user’s perspective state and national borders. Therefore a global revolution under universal framework is very necessary for secured and congenial cyber territory

Cyber terrorism, a real menace

It fear is measureless, its impact is great, its target is human race, it exist somewhere around us, but invisible. It may occur anytime anywhere in the world. It has not been experienced even imagined by man of today, in past. It may reshape in any form. Its alarming aspect is to be developed as an ideology. Its intensity of destruction may severe more than devastation, man of our age ever be thought. No man or country obviously favor or supports it but surprisingly it is being faced by every man and every country. It is unfortunately new phenomenon, it is terrorism in the real world or it may be cyber terrorism in cyberspace.

To define the cyber terrorism many analysts and internet intellectuals draw the almost same parameters, Mark Pollitte of Federal Bureau of Investigation defines the cyber terrorism as follow;

Cyber Terrorism is, “the premeditated, politically motivated attack against information, computer systems, computer programs, and data which results in violence against noncombatant targets by sub-national groups or clandestine agents”.

Computer technology and internet is going to be indispensable part of to-day society and advanced country are becoming more and more dependant and reliant of computer and internet technology. The critics who criticized the John Arquilla who depicted a scenario of mayhem of destruction by cyber terrorism, now are reconsidering their ideas and criticism after the unfortunate terrorist event of 9/11 in USA.[22]

Cyber terrorism can affect a specific community of people as well as entire nation, the example of Australian man in 2001 would be amplify when he used the internet and stolen control software to release one million liters of raw sewage in the public park, but his intention was not to terrorise the people but just to get back it job in the concerned company. A more baleful Cyber Terrorism intrigue that was stymied would have occurred sometime in 1996 in London (2003). Members of the Irish Republican Army were planning to blow up and destroy six key electric substations in London. Had the IRA succeeded in their goal, they would have disrupted power to major portions of London for months. To figure out which substations to bomb, they used libraries and open sources of information to select key nodes that would impact the grid the most. This example would have been a terror attack and would have stuck fear into the people of London. This would also be an example of a physical attack on computer systems.

According to The Guardian, “Nato is treating the threat of cyber warfare as seriously as the risk of a missile strike”. If a Governmental Organization like NATO thinks that cyber warfare is that dangerous, then why don’t more people think of it that way. The reason for this could be that the general population of the world does not feel the impact of these cyber terrorist attacks.

Cyber terrorism has been accruing with last twenty years and as time progressed and more and more nations become even more computerized, there will be more and more attacks through internet.

The measures are available to counter the cyber terrorism as US Department Defense charged with the USSD with duty if combating the cyber terrorism. The sensitive data can be safe and secure by the ‘air tight’ mechanism which has adopted by the FBI successfully. Up to date Antivirus system, firewall and root-kit can play important role to protect the internet and computer system. Intrusion detection system can also help if someone’s network has been attacked. A network also requires VPN’s if they were people accessing network remotely. In the last but not least exemplary punishments and fine should introduce through the laws against the cyber terrorists as the Pakistan has introduce the Prevention of Electronic Crime Ordinance 2007 where Section 17 exemplary punishments has been provided for the cyber terrorists.[23]

he contemporary world is declared to be a global village, collective efforts of the global nations against this menace to next to this human civilization, can provide potential preventive measures against the cyber criminal and cyber terrorists. The existence of cyber terrorism can not be denied it’s real but it would be blissful for mankind not to record a single exact cyber terrorist event in its history.

 Chapter:6

Ethics and Morality

In legal phraseology and prospectus are very wide terms and very much intermingled. These cannot be confined by words. Ethics and morality in different circumstances connotes varied and complex meanings. Each and everything which is opposed to public policy, against public welfare and which may disturb public tranquility may be termed to be immoral and unethical.

In the past terms such as imperlism, colonialism, apartheid, which were burning issues have given way to cyber crime, hacking, ‘cyber-ethics’ etc. Today in the present era we need to evolve a ‘cyber-jurisprudence’ based on which we can evaluate and criticize ‘cyber-ethics’.

With regard to the www.tehelka.com issue every person might be in two frames of minds. The opinion of every person may be quite diversified as well as dubious. The issue of ‘cyber-ethics’ with this present case is full of ambiguity. This publication has given birth to a number of issues but one- Whether the floating of this news in cyber-space is ethical or not.

The thelka.com has evoked the right to freedom of belief thought and expression which are basic principals envisaged in our constitution. The freedom of press is also a guaranteed right provided by our constitution. Further the constitution also guarantees right to information and as such the citizens have the fundamental right to know what is happening around them. But on the other hand our constitution guarantees the right to privacy, though not being an expressed fundamental right the courts in India have taken a lead and have recognized it as a fundamental right. Every man has some penumbral zones of privacy, which cannot be infringed upon even by the State. It can be further contended that the right to life has also been infringed upon as right to life envisages right to life with human dignity. As this publication has damaged the political person of the leaders.[24]

The tehelka group cannot even rebut this argument charged by them are from political scenario. Further as the thelka group’s act has damaged the political image of many leaders this in turn may even prove to be a political death for those leaders

One may very easily say that the thelka.com has acted in a very prudent and responsible way by disclosing the whole drama on the e-space. As a matter of principal there is no doubt that a conflicts between a ‘personal-interest’ and ‘national-interest’ undoubtedly the national-interest should prevail. Thus the tehelka people were very appropriate in doing so. But on the other hand it can be comprehended that the thelka.com has tried to create a state of political uncertainty and unstableness there by threatening ‘national-interest’. Even the evidence produced by the www.tehelka.com is not conclusive and there might be every possibility that it might be fabricated. I am of the opinion that this act done by the thelka group is the height of irresponsibility which is not expected of a responsible citizen. Further there is a dire need for evolving a code of Ethics on the Cyber-Space and discipline Introduction. [25]

 Chapter:7

cyberlaw association:

Internet is a new medium, yet it is one medium that has changed human perceptions, behaviour and visions. Internet has demolished national boundaries and has made the world as one big family. Some say Internet means unbridled freedom and is an anarchy. But it is also amply clear that there can be law within the Internet .

Humanity has been so much dedicated to the growth of the technological and infrastructural aspects of Internet that the legal mechanisms relating to Internet and cyberspace has taken a back seat.

As with each passing day, new horizons of cyberspace are being discovered and explored, there is all the more need for legal mechanisms governing cyberspace. But the Cyberlaw as on date is in a stage of its infancy. It is being constantly evolved.

Cyberlaw Association aims to contribute to the ever evolving cyber legal jurisprudence and emerging legal issues pertaining to Cyberspace, Internet and the World Wide Web.

Cyberlaw Association is a not for profit association that was found more that a decade ago to encourage the growth of Cyberlaw in different jurisdictions. It was also initially devised to be meeting point of all related similar thinking individuals and legal entities who had an interest in the evolution, growth and development of Cyber Law, and Cyber Law legal jurisprudence.

Cyber Law Association is the common meeting point of legal professionals, scholars, jurists and other stakeholders who all are committed to the growth of cyberlaw and cyberlegal jurisprudence. Ever since the formation of the Cyber Law Association, lot of developments have taken place pertaining to cyberlaw. These developments have initiated more debate, discussion and interaction.[26]

Cyberlaw Association is a platform that allows relevant interested members to discuss and debate the ambit and manifestation of emerging legal trends in cyberspace.

Virtual law associations:

The 20th Century has seen the emergence of the virtual space. The World Wide Web has made possible a new virtual environment. Throughout the centuries, different civilizations and different countries have had their own thoughts on virtual environments. However with the coming of the Internet, virtual world has became a reality. The coming of the World Wide Web has further ensured that virtual world has became an increasingly important element of our online existence.

The coming of the Internet, the World Wide Web and the virtual world has ensured that there are various legal challenges that face the virtual world. These challenges have questioned the traditional legal concepts of jurisprudence. This questioning has been valid since traditional legal concepts of jurisprudence were developed, evolved and honed, keeping in mind the requirements of the actual world. However, the emergence and strong growth of the virtual world has ensured that a new field of law dedicated to virtuality has come into existence. The discipline of virtual law has evolved.

Virtual law

Virtual law relates to all legal aspects and issues concerning virtual worlds, virtuality and virtual environments. Virtual law as a discipline has received a boost, given the emergence of concepts like ‘cloud computing’ and “virtual worlds”. The emergence of virtual worlds likes second life and other similar online games have caught the imaginations of netizens community. Today virtual world is constantly being expanded and developed.[27]

Virtual law addresses all legal issues and scenarios concerning virtuality and the virtual worlds as well as virtual computing.

The emergence of virtual law ,as a distinct discipline of study within the broader umbrella of Cyber Law has been significant. Virtual Law Association aims to work in the direction of promoting the growth of virtual legal jurisprudence across nations. Virtual law Association, dedicated to legal issues around virtuality, is a virtual association and its aims to do its activities in the virtual environment. This website is focused on the activities of Virtual Law Association.[28]

Conclusion

For the past several years, many countries have been concentrating on the awareness on questions about the governance of cyberspace. The question of who controls the Internet is directly related to the question who wants to control the Internet. From the moment that the Internet was opened up to commercial activity many different groups wanted to dominate, such as users, communication companies, ISPs, and governments-Of them all, the most objected was the government intervention, yet it is governments that have managed to exert the most control.2lCvberspace dominates some distinctive attributes, which generate a series of challenges for our existing laws. These attributes are: its lack of respect for jurisdictional boundaries, the sheer volume of traffic that it can handle virtually instantaneously, its openness to participation, the potential for anonymity of members of the virtual community, its apparent economic efficiency.

The need for cyber laws was propelled by numerous factors. The arrival of Internet legal issues. Despite the brilliant acumen of our master draftsmen, the requirements of cyberspace could hardly ever be anticipated. As such, the coming of the Internet led to the emergence of numerous ticklish legal issues and problems which necessitated the enactment of cyber laws. The existing laws of Bangladesh, even with the most generous and moderate interpretation, could not be interpreted in the light of the promising cyberspace to consist of all aspects relating to different activities in cyberspace. There are no existing laws that assigned any legal validity or sanction to the activities in cyberspace, as such, before passing Cyber Law, email was not “legal” in our country and courts and judiciary in our country had been reluctant to grant judicial recognition to the legality of email in the absence of any specific law having been enacted by the Parliament.  Numerous laws have been passed and implemented and the foremost amongst them is the Constitution of Bangladesh, the Penal Code-1860, The Evidence Act-1872, the Banker’s Book Evidence Act-1891 and the Companies Act-1994 and so on which are inadequate to regulate the cyberspace.

The Government of Bangladesh responded by coming up with the first cyber law of Bangladesh-The Information and Communication Technology Act (ICT)-2006. The Cabinet of Ministers of Bangladesh has approved the Information and Communication Technology bill (ICT)-2006 on 14 February 2005 and it has been enacted on 8 October, 2006.

Bibliography

  1. Ahmed, Dr. Zulfiquar ; Cyber Law in Bangladesh, Published by- Sheikh Mohammad Ali Hasan, National Law Book Company, Nilkhet, Dhaka-1205.
  2. http://www.bloggernews.net/11215
  3. http://www.articlesbase.com/cyber-law-articles/cyber-jurisprudence-a-developing-concept-561596.html#ixzz17WicKnTl
  4. www.gahtan.com/cyberlaw – Cyber Law Encyclopedia
  5. http://www.articlesbase.com/cyber-law-articles/cyber-terrorism-a-real-menace-514849.html
  6. http://cyberethics.cbi.msstate.edu/biblio/update/2001/
  7. http://vlawassociation.com/

[1] Ahmed, Dr. Zulfiquar ; Cyber Law in Bangladesh, Published by- Sheikh Mohammad Ali Hasan, National Law Book Company, Nilkhet, Dhaka-1205. P. 36-37

[2] [2] Ibid. P. 38-39

[3] http://www.bloggernews.net/11215

[4]http://www.bloggernews.net/11215

[5]http://www.bloggernews.net/11215

[6]http://www.bloggernews.net/11215

[7]http://www.articlesbase.com/cyber-law-articles/cyber-jurisprudence-a-developing-concept-561596.html#ixzz17WicKnTl

[8] http://www.articlesbase.com/cyber-law-articles/cyber-jurisprudence-a-developing-concept-561596.html#ixzz17WicKnTl

[9]www.gahtan.com/cyberlaw – Cyber Law Encyclopedia

[10] www.gahtan.com/cyberlaw – Cyber Law Encyclopedia

[11] www.gahtan.com/cyberlaw – Cyber Law Encyclopedia

[12] www.gahtan.com/cyberlaw – Cyber Law Encyclopedia

[13] www.gahtan.com/cyberlaw – Cyber Law Encyclopedia

[14] www.gahtan.com/cyberlaw – Cyber Law Encyclopedia

[15] www.gahtan.com/cyberlaw – Cyber Law Encyclopedia

[16] www.gahtan.com/cyberlaw – Cyber Law Encyclopedia

[17] “http://www.articlesbase.com/cyber-law-articles/cyber-terrorism-a-real-menace-514849.html”

[18] “http://www.articlesbase.com/cyber-law-articles/cyber-terrorism-a-real-menace-514849.html”

[19]“http://www.articlesbase.com/cyber-law-articles/cyber-terrorism-a-real-menace-514849.html”

[20] “http://www.articlesbase.com/cyber-law-articles/cyber-terrorism-a-real-menace-514849.html”

[21] “http://www.articlesbase.com/cyber-law-articles/cyber-terrorism-a-real-menace-514849.html”

[22] “http://www.articlesbase.com/cyber-law-articles/cyber-terrorism-a-real-menace-514849.html”

[23] “http://www.articlesbase.com/cyber-law-articles/cyber-terrorism-a-real-menace-514849.html”

[24] http://cyberethics.cbi.msstate.edu/biblio/update/2001/

[25] http://cyberethics.cbi.msstate.edu/biblio/update/2001/

[26] http://vlawassociation.com/

[27] http://vlawassociation.com/

[28]http://vlawassociation.com/

Cyber Jurisprudence

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