Brainwave
THE INFORMATION TECHNOLOGY ACT, A DYNAMIC LEGISLATION TRAPPED IN AN ARCHAIC LEGAL SYSTEM:
THE INSTANCE OF HACKING- A CYBER CRIME
by Saurabh Awasthi
Computer Crime as defined by the
I.T. Act, 2000 has become a new menace to society with hacking
being one of the most popularized forms of computer crime. It is
not that the legislature is not capable to equipping to Indian
Laws to meet the needs of society but the constant need of the
legislature to refer to archaic principles of criminal law
engraved in the Indian Penal Code to justify computer crimes as
being criminal in nature has lead to a serious devaluation of
computer crimes by the legislature as being capable to raging
serious chaos and disarray in all aspects of societal life
especially business activities.
Cyberspace is not an entity that
has already evolved and therefore ready to be analyzed
threadbare. It is still developing and unfolding. But it is
already transforming the world we live in. The convergence of
communication and information technology has touched upon almost
all the aspects of human life. Computers are not only used to
perform the industrial and economic functions of the society but
are also used to perform many functions upon which human life
depends. It has opened up a wave of criminal behavior in ways
that would never have previously been possible as computer
system offer new and highly sophisticated opportunities for law
breaking, and they create the potential to commit traditional
type of crimes in non traditional ways. Cyber revolution and its
reach in the human lives offer many opportunities for criminal
behavior.
The age of information technology
has opened up a Pandora’s Box as far as criminal activities are
concerned. We face a distinct disadvantage in the formulation of
laws relating to cyber crime because of the inherent lack of
belief shown by the judiciary in the area of privacy. It is
ironical that not only has the Supreme Court failed to recognize
the right to privacy but has given a impression that privacy is
hardly a right and any remedy for the breach of privacy is to
be left at the mercy of the honorable courts. Needless to say
there has been a legislative failure to actualize on this
principle. The intensity and complexity of life have rendered
necessary some retreat from the world. The development of media
in modern times has a special relevance to the evolution to the
law of privacy. Computer technology and telecommunications have
dramatically increased the amount of information that can be
stored, retrived, accessed and collected most accessible to the
potential hacker.
Challenges that hacking poses to
the Criminal Justice System
The wide variety of information that can be transferred, the
open, unregulated nature of the internet, and the irrelevance of
geography implies that Internet also provides fertile grounds
for criminal enterprise. Since the platform for Internet is a
computer, crimes occurring on the internet are referred to as
“computer crimes”. Defining “computer crime” is relatively
difficult because of the wide array of criminal activities that
may be perpetrated by means of a computer. A computer may be the
subject of a crime by being stolen or damaged; it can be the
site of a crime such as a fraud or copyright infringement; or it
can be the instrument of a crime such as when it is used to
access other machines or store information illegally. Since the
internet’s strength and purpose is facilitation of
communication, traditional crimes such as conspiracy,
solicitation, securities fraud even espionage can be committed
via the internet.
According to the proposed
convention for the Cyber Crime by the Council of Europe, hacking
has been given the term ‘illegal access’ and refers to access to
the whole or any part of the computer system without such right
being assigned or delegated. Such access should be committed
intentionally and might be committed by infringing security
measures, with the intent of obtaining computer data or other
dishonest activity, or in relation to a computer system that is
connected to another system. The scope of illegal access is
somewhat broader tan mere hacking. It would also include
‘cracking’ and any other access made without authorization, by
whatever name it may be called. The requirements are that it
must be accessed without right and that it must be intentional
access.
Section 66 of the I.T.Act deals
with “Hacking”, however the scope and meaning is much beyond
than mere ‘illegal access’ as contemplated under the proposed
cyber Crime Convention. It states that whoever with the intent
to cause or knowing that he is likely to cause wrongful loss or
damage to the public or person destroys or deletes or alters any
information residing in a computer recourse or diminishes its
value or utility or affects it injuriously by any means commits
a hack. Therefore the pre requirement for ‘hacking’ under
section 66 is not unauthorized access to a computer, whether
intentional or not, but whether there has been firstly a
destruction or deletion or alteration of any information
residing in a computer recourse, secondly whether such activity
has led to the diminution of value of the material contained
inside or has effected the information injuriously and lastly
whether such activity was done to accuse wrongful loss or damage
to public or person. Thus the emphasis for committing hacking
under the act is based on the effect on the information residing
in the computer and any subsequent wrongful loss due to access
rather than mere access to the computer itself. If someone only
accesses a computer system without authorization, he cannot be
charged under Section66 of the Act.
Hacking acts as gateway to other
criminal acts. The laws in force should act as a deterrent to
such a behavior. It is a bit too presumptuous to assume that one
law would take care of all and sundry criminal acts but we
should have a law in force which should stand on its own footing
and sends a clear message of intolerance towards activities to
potential hackers/crackers.
Lack
of Adaptability
The Information Technology Act is not
just about triggering e-governance. To get the bureaucrats to
move will require more and more computers. At present the
penetration in India is just about four as compared to three
hundred and sixty two per thousand in the United States. IT will
need a serious change of attitude. Opinions from various
segments of society confirm that our law enforcement agency is
not ready to tackle the issues of cyber crime and digital
discovery. The police in India are not well equipped to deal
with the contingencies and kinetics of prevention and detection
of cyber crimes. In the first cyber case in the State of Uttar
Pradesh, the investigation officer of the rank of Deputy
Superintendent of Police confessed that he had never used the
Internet and now, for the purpose of proper investigation of
cyber crimes he has gone to the net. This is not an uncommon
situation .Victims in cyber stalking have been advised by the
police to “turn off their computers” or change their phone
numbers, rather than trailing the guilty. The problem is
ignorance, merely because it is a cyber crime, las enforcement
agencies do not give it the importance that it deserves. It is
not their fault either; they merely mirror the attitude of the
judiciary.
The problem, of course, does not
lie in the fact that so many diverse kinds of crimes can be
committed using the internet but the fact that the existing
criminal law is still equipped to deal with this up gradation in
the methods and media of committing crimes. The present Indian
Law of crime has no definition of computer crime which would be
understandable considering computers were not even invented at
that point of time. Criminal Act involving the use of computers
should be looked at independently. The current wave of judicial
thinking in play is a sort of ‘pigeon hole’ formulate where
actions like hacking, unauthorized access are constantly equated
to established criminal wrongs like mischief and criminal
trespass as means of justification to convince courts that the
end justifies the means or vice versa.
Cyber wrongs if one can call them
as such are to be judged in their own light. Moreover, the
people involved should have a certain mental framework to change
their way of thinking and should approach the new cyber crimes
penetratingly and silently. If we are to learn anything from the
way; it is that we should learn from their mistakes. Our privacy
is at stake, the time has come for us to gear up to reality,
cyber crimes have arrived and are here to stay.
MBA (IT),
IIIT Allahabad