Hacking - A legal Post mortem

By:

Nairit Adhikary

MS (Cyber Law and Information Security)-2010

Indian Institute of Information Technology - Allahabad

People who are well conversant with computers and computer systems or other electronic devices which are within a network are very much aware with the word 'hacking'. Hacking is a term which most people consider as a negative as was also explained in the Information Technology Act 2000. Though there are people who consider the term hacking strictly a negative term, but which can comprise of both the positive as well as negative according to the hacker's intention and authorisation. In the Information Technology Act, 2000 the term Hacking was used under section 66. According to the section any person who has the intention or knows that he is likely to cause wrongful loss or damage to the public or any person who has the intention or knows that he is likely to cause wrongful loss or damage to the public or any person, destroys, deletes or alters any information residing in a computer resource or diminishes its value or utility or affect it injuriously by whatever means, will be said to have committed hacking. Here it is quite evident that the intention factor is considered and which needs to be wrongful. The section also provides with the punishment which shall be imprisonment up to three years or fine up to two lakh rupees or with both.

This was hacking in IT ACT 2000 but when the Information Technology Amendment Act 2008 came in to force, the word hacking was no longer available in the Act .Now the questions arise are:

-> Is hacking not a crime anymore?

-> Will there be no punishment for hacking?

-> What are the steps to be followed for any act which was treated as crime under sec.66?

It must be noted that the legislators of IT (Amendment) Act 2008 also was of the opinion that hacking must not be exclusively treated as a crime because it can also be used for certain authentic purposes and it does not mean that there is always a malafide intention behind it . So the term hacking was removed from the Act by the Amendment.

Now a concern aroused about how to treat the crime which was no longer present in sec.66 of the Act. If we go through the Act properly we could find that amendments and developments of sec.43 (i) which has fulfilled all the requirements which were essential to treat the act as a crime and essentially the crime if committed will make the sufferer to get compensation which is unliquidated and will be according to the damages made, which will be under the discretion of the presiding officer. Moreover he shall be punished with imprisonment for a term which may extend to three years or with fine which may extend to five lakh rupees or with both. Hence the scope of the compensation has been broadened for all acts which were considered under sec.66 which had only a limited scope of penalty as fine up to rupees two lakh and / or imprisonment up to three years.

It can be concluded that any act which was considered hacking under sec.66 of the IT ACT 2000 will now be considered under sec.43 of the information technology (amendment) Act 2008 and has a dynamic sanction in terms of unliquidated compensation.