Author : Shree Latha Sampath, Student at SOEL, Chennai
“ONE SINGLE VULNERABILITY IS ALL AN ATTACKER NEEDS”
We are now living in a busy and scheduled life. We tend to buy everything online today. We don’t prefer to buy directly because of our bizarre life. People now-a-days even avoid direct meeting because of the origin of many applications such a whatsapp, facebook, twiiter and so on.
Many conferences happen through video calls inspite of direct meeting which avoid the travel expenses and also save time for us. In the pandemic time of COVID-19, many educational institutions and governmental institutions depend on internet today. Many new applications has been developed for food delivery, network marketing, online shopping portal, mock test, fitness, cooking, yoga, networking banking and more. These are new to us, because we depend on technology more than connecting the people directly. People started developing doing online business and they use youtube, instagram, facebook and so on as a tool to develop their business which also serve as a platform for their business. Letters are now replaced by mails which also helps us in time saving. Our Honorable Prime Minister Narendra Modi has been an inspiration to many politicians because he was the reason for the development of aadhar card through which our identity can be found easily.
From the above statements, we can know the value of technology well. Though it has recognized as a good source for many things, it too have a dark side. In present times, we give all our details opening to the corporate. People don’t check the guidelines and criteria mentioned before installing an applications. People are careless in feeding each and every information about them in social media platforms. They easily give their information at point in the network system. People are not aware of the value of their information. Now, I’m going to deal with cyber jurisprudence in detail below.
The term ‘jurisprudence’ means ‘knowledge of law’. Cyber Jurisprudence means the study of laws related to cybercrimes and principles of legal issues that regulates exclusively to cyberspace and internet. Cyber jurisprudence is the analysis of a law to a place which has no jurisdiction and has no borders. The reason for its origin is cybercrimes that takes place which has virtual nature and origin.
STATEMENT OF PROBLEM
i) Does an increase in cybercrime lead to the development of Cyber Jurisprudence?
ii) Should it regulate the flow of information/subjects of law/place where information is flowing?
iii)Is it possible for the positive upshot of Cyber Jurisprudence in its space
OBJECTIVES OF THE STUDY
- To find out the reason for the emergence of Cyber Jurisprudence .
- To probe what to be regulated?
- To determine how is positive upshot of Cyber Jurisprudence in its space
HYPOTHESIS OF THE STUDY
- The reason for exposure of Cyber Jurisprudence can be known by exploring the Cyber crimes.
- The part to be regulated can be caught through discovering the nature of crime and look into the acts present.
- For a positive upshot of Cyber Jurisprudence in its space, demands for real knowledge about virtual at the individual level, consensual knowledge at the level of institutions and doctrinal knowledge at the judicature level.
This research paper is based on the secondary source of data and perfect analysis of data on cybercrime took place. These data are collected from books, publications, journals, blogs, articles, etc., as reference. This also includes the analysis of interpretation of data and documentaries.
As the studies based on secondary data (i.e) the information which already exists, there is no specific place that can be mentioned. The data about Cyber Jurisprudence is collected across various sources from the world to know the varying aspects of it.
Let us know some terms related to cyber jurisprudence so that this concept can be understood clearly.
CYBERSPACE refers to a place where lot of computers are interconnected technically and digitally in a widespread manner. It is usually associated with diverse internet culture. Here, cyber ethics is concerned mainly with social interactions than technical implementations.
CYBER SOCIETY OR CYBER COMMUNITY refers to a world where communications takes place in an electronically based medium. It was a mesh which was created by world wide network of computers.
CYBER CRIMINALS refers to persons who commit offence in the cyberspace who are guilty of illegal acts governed by cyber laws. They maybe hackers, unemployed or even teenagers who think doing such acts are pride over them.
CYBER LAWS refers to group of laws that are made to regulate people in the cyberspace so that offence over there can be controlled and prevented.
CYBER SECURITY refers to the process of preventing or defending from an illegal acts that happen in the cyberspace.
EVOLUTION AND NEED OF CYBER JURISPRUDENCE:
Speedy growth of technology is the cause of cybercrimes. Because we didn’t regulate it properly at all the levels of its growth. We promoted its pros but what about its other side of cons. We have rules and regulations for the wrongs happenings in the real world but we failed to care the magical world (i.e.) cyberspace. We are now in a generation where we can see, talk and can do anything from any part to other part of world. We are in an era where mobiles, laptops and so have become part of our life without them our survival and growth is a question mark. However, it have its dark side too. As there is an increase in technology, there is an increase in crimes too. Internet plays a dominant role in cyberspace. Because this serves as a platform. As technology has grown in an immense manner, we experience new problems now-a-days which we never faced before. The problems in cyber world is entirely different from that of real world. Social media’s are one of the key access to cyber world. Many crimes happen by using social media’s as tool. Hence, we are need of news laws to govern these type of crimes. Many crimes like invasion of privacy, theft of copyright, patents are some of the offences. Even crimes occur at debit and credit fraud, terrorism, harassment through internet or SMS or MMS or through any other forms. Trolling, spamming, phishing, etc.. These types of crimes has no jurisdictions because the people who are outside one country can even access to any platform in any other country where he physically don’t reside actually. Here, occurs a complex situation in which jurisdiction does he belongs to and by which law he should be punished. If crimes happen like this, then the sovereignty of every country is a question mark. In order to prevent all these crimes and problems, we need a common cyber law all over the world.
We are in a situation whether we need cyber law or not to deal with the conflicts in the cyberspace within or between the nations. I stress that we need cyber laws because the conflicts arising in real and virtual world is entirely different. We can’t manage the present situation with the prevailing laws. As the type and origin of crimes changes, then the law should also change accordingly. The new problems arising are limits of jurisdiction, Internet Service Provider (ISP) which act as intermittent parties, doctrines, principles and so on.are some of the criteria which are under scrutiny. The above mentioned are some of the points and statements which paved way for the cyber jurisprudence
ETHICS IN CYBER:
Do you have any idea about cyber in relation to ethics? Let us see what is the relationship between them. Firstly, in the view of “Legal Centralism” which was propounded by Oliver Williamson. This theory basically focuses on alternative sets of substantive laws. His view is mainly upon the welfare so that one would serve as main and another as optional. If we have option like this, we can easily choose in critical times. If people are in search of appropriate law to govern and regulate themselves or if an appropriate law should be chosen by a law making body, them this model would serve excellent. To conclude his theory, presently we are in need of ethical centralism.
Secondly, Austin’s positive theory, objective of this is mainly based on “Command”. His view was that the government should laid down some commands by sovereignty and people should follow them. Here, the breach of command would lead to punishment. Likewise, there are many views are there based on ethics. Many scholar proposed their view ethically. Though we are moving technologically and technically, ethics are still lining up with them.
REASON FOR EMERGENCE OF CYBER JURISPRUDENCE:
Cyber Jurisprudence emerged because of the increase in cybercrimes. Let us first understand the term ‘Cyber crimes’. It refers to crimes that are committed in the computer or using computer as a tool. In case of this, there are two categories to be identified. Firstly, using computer as a tool (e.g. cyber terrorism, pornography) and secondly, keeping computer as a target(e.g. virus attack, hacking).
There are three types of cybercrimes based on whom they are concerned namely;
Against individual: This includes sharing of child pornography, cyber staking, harassing someone through internet. There are some types of cybercrimes i] cyber pornography ii] email spoofing iii] cyber defamation iv] cyber staking.
Against property: This includes cybercrimes against any of the property. Using someone’s computer unauthorized, feeding unauthorized information with bad intention and so on. There are some types of these i] logic bombs ii] financial crimes iii] forgery iv] salami attacks v] data diddling vi] copyright infringement vii] sales of illegal articles.
Against government: This includes terrorism type of crimes through cyberspace. This involves unauthorized entry into the military website or illegal entry into government documents.
Increase in cybercrime stressed the development of cyber jurisprudence. As the technology grows, the problems and crimes also grows along with it. Hence it is necessary to be maintained and regulated by laws. As there is a massive development in the technology, it is important to protect it. Though we have laws it cannot prevent well, cyber law can pave a better way to reduce all the crimes taking place in cyber space. We should distinguish between the information technology and telecommunications. Because there is integration of multimedia in the cyberspace. We have various technologies that made computer as a bigger platform for communications. Now-a-days, the interactions in social media are prominent comparing the real world in the form of chats, video calls, porn, etc. At present days, politicians, business persons and many are prevailing towards social media for their development. As there are many interactions in this cyberspace, crimes towards it are also in high rate. Therefore, all these helped and motivated the importance of cyber jurisprudence.
TO PROBE WHAT IS TO BE REGULATED:
When we look into the concept of Cyber Jurisprudence, it is as a result of the crimes and problems happen at cyber space. Here, arises a question what is to be regulated so that the cybercrimes can be prevented. There are three areas when we review the cyber space. Whether it is a information or place where it is flowing or individuals (i.e) the subject matter of law? Let us see briefly about these, so that we can determine which is to be regulated.
- Firstly, let’s take information into consideration. Then, information technology law should be expanded because it deal with production, distribution, dissemination, processing of information as whole as most of the Communication acts does in the recent past, like German information and communication act (1998) and British white paper, proposing the creation of a cross-media regulatory authority, published in the year 2000. Similarly, the Indian Communications convergence bill (2000) which does not attribute much difference between the e-mail viewed in TV and Laptop. Information is more or less a product in the aspect of communication regulations whereas it is a process in the aspect of information technology. So, it is difficult to equate them.
- Secondly, if the flow of information is to be regulated, then the legal status of cyber space has to be viewed. Its character, nature, jurisdiction and functions of cyber space should be regarded.
- Finally, if the individuals, then already existing laws which inquire the physical space is suffice. But, here comes the challenges that all cyber offence doesn’t originate from physical space and it is difficult to trace out the individuals behind cybercrimes.
THEORIES ON INFORMATION LAW APPROACH:
Two thoughts of school emerged when we kept Information as a body to be regulated.
Initially, Professor Cohen-Jehoram proposed his theory with three concentric circles his thought of belief was copyrights established by individuals are the subject matter, the dissemination of it is governed by Media law and its production, processing , distribution are done by Information law.
This theory had criticism like mapping the legal treatment of information, it failed to denote the reason behind why he placed media at center, didn’t establish relationship between Information law and Media law.
Later, Professor Dommering proposed his theory in which he believed in the concept that as a whole the study of Information is the study of Communication. Many scholars were attracted by his theory as he clearly demarcates the communication regulations, importance of Information technology laws are considered. He didn’t place anything at center, everything had their respective operations.
TO DETERMINE HOW A POSITIVE UPSHOT OF CYBER JURISPRUDENCE:
Real Knowledge in Virtual Space:
We know that Cyberspace has become more social. Because of this nature, it practicably possible to investigate Cyberspace in realistic approach as in our real life. Everything is possible now in cyberspace with accuracy and intimacy whichever we do in our real space. We can understand this concept through the following case laws.
In a U.S court they stated that the internet was a giant network which interconnects innumerable smaller groups of linked computer networks: a network of networks…..the nature of the internet was that it was very difficult, if not impossible, to determine its size at given moment. The content on the internet was as diverse as human thoughts.
In another case, they simply implied the concept of Cattle trespass. In this, they can only recover damages for the act committed. From these, we can get an idea how we can approach the cyberspace with realistic knowledge.
Consensual Knowledge at Jurisdictional Paradigms:
The queries relating to the jurisdiction in cyber space or complex because the question how law should view the cyber space is unidentified. Should cyber space be taken as a place, a means of communication or a technology state of mind, is itself debatable, in either case the reach of the space, cannot be measured in terms of length and breath.
To understand the concept let us see an example so that the difficulty in cyber jurisdiction can be caught easily.
Example assume Mr.A has purchased a book from Mr.B who resides at Canada. Here, araises some situation whether Mr.A has gone to Canada or Mr.B came to UK or what if it happened through downloading in online, does it make any difference in jurisdiction?
In the view of normal contract the jurisdiction is arrived in to ways.
- Where the defendant lives
- Where the cause of action occurred
But in the above case we cannot use this normal jurisdiction in cyber space. These circumstances urges the emergence of Cyber Jurisprudence. There are three aspects which should be taken into consideration before implementing cyber laws.
- The extent to which internet serves the individual requirements
- The differentiation of public and private in cyber space.
- How internet meshes with other technologies
Doctrine of choice of law:
We know Doctrines usually originates from the judicial pronouncements. Doctrines play an important roll in the application of legal concepts clearly. It serves as a formula, so that we can find the solution to a problem instantly. It has a huge significance in jurisprudential study.
Les loci delicti, the Doctrine of choice of law structures itself in different issues regarding Information Technology more particularly in case of defamation. This doctrine can be clearly understood by the following cases.
In an Australian case it was held by 6.1 majority that, double actionability choice of law test had its origin from another Australian case. In which, Kirley J expressed his opinion that technological changes leads to many new International conflicts, the law found in one jurisdiction may be vary from other jurisdictions of the world. It can reduce or reject laws which are inappropriate in some jurisdictions. Some changes were brought in Australian laws in respect to defamation but it didn’t recognize defamatory statements in web portal. These means that they don’t consider the cyberspace for crimes. Wherever we don’t something wrong, it should be punished. As there is no specific law regarding this conflict, it lead to emergence of cyber jurisprudence insisting laws should be made commonly all over the world in the view of crimes taking part in cyberspace.
Let me consider another case in which according to 76C of the crimes act, 1914. The section says that no person can insert some information into the computer without some authority. If he do so, he should obtain some permission from authority. When such an act id done without permission it amounts to offence. It leads to punishment even when we comes to know that the lawful authority gained was false. They further held that if someone did it with good intention then it doesn’t categorized under offence.
We will see a case so that we can get clarity about the jurisdiction. In this case, a person was convicted for posting racist material in a website. This is a historic case in Norway because 1st time a person was prisoned was his material posted in a website. He posted it in a US website which doesn’t come under the jurisdiction of Norway.
There is another case which is about the changes in the status of that material from physical to cyber space. The 10th circuit held in this case that computer acts as an instrument crime because it just acts as a container to store the files. Here, Computer is an instrument which not its original status in physical world.
We also consider the tangible and intangible status of files in cyberspace. Likewise, a case held that in a Federal, Graphic Interchange Format (GIF) file is not considered as intangible. Her, they are trying to fix status of every segment in cyberspace. These all insisting the need and emergence of cyber jurisprudence.
Our daily life is based on electronic media. Cyber jurisprudence is a challenging concept because it should look into cyberspace which is virtual in nature. Internet has benefit as well as problems, it is in the hands of the government to protect the people wherever the problem maybe. Misuse of technology leads to many issues. There are many developments in computer which lead to the origin of cybercrimes. Though we have amendments to the existing laws, it is not sufficient to control the developing problems. Hence it would be efficient if we make common cyber law among all the nations which would help in interaction, coordination and cooperation of them.
In this chapter, we learned about Cyber Jurisprudence. According to many business men and scholars, the new information technology had replaced the traditional needs. At present, each and everyone’s information serves as a wealth which can be took by anyone. Hence, I stress that new laws should be made to protect and everything happen in the cyberspace. Though it is a virtual one, it is more delicate than the real world in case of crimes. The areas of cyberspace should be discovered and laws in respect to them are needed. We need special laws because the existing laws should not be in conflict while dealing in cyberspace whose nature and origin is different from that of real world.
From the above details, we can get clarity about the origin and need of Cyber Jurisprudence in present situation. Increase in cybercrimes is one of the major reason which has its impact of its development. We should look after the area where the information is flowing because the individuals and information are difficult to discover and regulate. It demands realistic knowledge in virtual world, consensual knowledge at individual level and as jurisdiction cannot be predicted it needs common law all over the world.
Thus, I conclude that Cyber Jurisprudence plays a dominant role in interpreting the principles related to cybercrimes. As Cyber Law is a growing field, I insist a common law for all nations in the world. So that any complexity can be reduced easily.