Cyber Law Notes PDF

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CYBER LAW (LL. 1213)(MODULE I)Due to immense increase in the use of Internet and dependency of individuals in every field, a number of new crimes related to Computer and other gadgets based on internet have evolved in the society. Such crimes where use of computers coupled with the use of Internet i...

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CYBER LAW (LL.M. 1213) (MODULE I) Due to immense increase in the use of Internet and dependency of individuals in every field, a number of new crimes related to Computer and other gadgets based on internet have evolved in the society. Such crimes where use of computers coupled with the use of Internet is involved are broadly termed as Cyber Crimes. Governing Laws There was no statute in India for governing Cyber Laws involving privacy issues, jurisdiction issues, intellectual property rights issues and a number of other legal questions. With the tendency of misusing of technology, there arisen a need of strict statutory laws to regulate the criminal activities in the cyber world and to protect the true sense of technology "INFORMATION TECHNOLOGY ACT, 2000" [ITA- 2000] was enacted by Parliament of India to protect the field of e-commerce, egovernance, e-banking as well as penalties and punishments in the field of cyber crimes. The above Act was further amended in the form of IT Amendment Act, 2008 [ITAA-2008]. The ITA-2000 defines 'Computer' means any electronic magnetic, optical or other high-speed data processing device or system which performs logical, arithmetic, and memory functions by manipulations of electronic, magnetic or optical impulses, and includes all input, output, processing, storage, computer software, or communication facilities which are connected or related to the computer in a computer system or computer network. The word 'computer' and 'computer system' have been so widely defined and interpreted to mean any electronic device with data processing capability, performing computer functions like logical, arithmetic and memory functions with input, storage and output capabilities and therefore any high-end programmable gadgets like even a washing machine or switches and routers used in a network can all be brought under the definition. Scope and applicability The scope and applicability of ITA-2000 was increased by its amendment in 2008. The word 'communication devices' inserted having an inclusive definition, taking into its coverage cell phones, personal digital assistance or such other devices used to transmit any text, video etc like what was later being marketed as iPad or other similar devices on Wi-fi and cellular models. Though ITA- 2000 defined 'digital signature', however said definition was incapable to cater needs of hour and therefore the term 'Electronic signature' was introduced and defined in the ITAA -2008 as a legally valid mode of executing signatures. This includes digital signatures as one of the modes of signatures and is far broader in ambit covering biometrics and other new forms of creating electronic signatures not confining the recognition to digital signature process alone. The new amendment has replaced Section 43 with Section 66. The Word "hacking" used in Section 66 of earlier Act has been removed and named as "data theft" in this section and has further been widened in the form of Sections 66A to 66F. The section covers the offences such as the sending of offensive messages through communication service, misleading the recipient of the origin of such messages, dishonestly receiving stolen computers or other communication device, stealing electronic signature or identity such as using another persons' password or electronic signature, cheating by personation through computer resource or a communication device, publicly publishing the information about any person's location without prior permission or consent, cyber terrorism, the acts of access to a commuter resource without authorization, such acts which can lead to any injury to any

person or result in damage or destruction of any property, while trying to contaminate the computer through any virus like Trojan etc. The offences covered under section 66 are cognizable and nonbailable. Whereas, the consequence of Section 43 of earlier Act were Civil in nature having its remedy in the form of damages and compensation only, but under Section 66 of the Amendment Act, if such act is done with criminal intention that is mens rea, then it will attract criminal liability having remedy in imprisonment or fine or both. Adjudication Adjudication powers and procedures have been dealt in Sections 46 and thereafter. As per the Act, the Central Government may appoint any officer not below the rank of a director to the Government of India or a state Government as the adjudicator. The I.T. Secretary in any state is normally the nominated Adjudicator for all civil offences arising out of data thefts and resultant losses in the particular state. Very few applications were received during first 10 years of existence of the ITA, that too in the major metros only. However, the trend of receiving complaint under ITA is rapidly growing. The first adjudication obtained under this provision was in Chennai, Tamil Nadu, in a case involving ICICI Bank in which the bank was told to compensate the applicant with the amount wrongfully debited in Internet Banking, along with cost and damages. There is an appellate procedure under this process and the composition of Cyber Appellate Tribunal at the national level, has also been described in the Act. Every adjudicating officer has the powers of a civil court and the Cyber Appellate Tribunal has the powers vested in a civil court under the Code of Civil Procedure. The major Acts, which got amended after enactment of ITA The Indian Penal Code, 1860 The Indian Penal Code was amended by inserting the word 'electronic' thereby treating the electronic records and documents on a par with physical records and documents. The Sections dealing with false entry in a record or false document etc (e.g. 192, 204, 463, 464, 464, 468 to 470, 471, 474, 476 etc) have since been amended as 'electronic record and electronic document' thereby bringing within the ambit of IPC. Now, electronic record and electronic documents has been treated just like physical records and documents during commission of acts of forgery or falsification of physical records in a crime. After the above amendment, the investigating agencies file the cases/ charge-sheet quoting the relevant sections from IPC under section 463,464, 468 and 469 read with the ITA/ITAA under Sections 43 and 66 in like offences to ensure the evidence and/or punishment can be covered and proved under either of these or under both legislation. The Indian Evidence Act 1872 Prior to enactment of ITA, all evidences in a court were in the physical form only. After existence of ITA, the electronic records and documents were recognized. The definition part of Indian Evidence Act was amended as "all documents including electronic records" were substituted. Other words e.g. 'digital signature', 'electronic form', 'secure electronic record' 'information' as used in the ITA, were also inserted to make them part of the evidentiary importance under the Act. The important amendment was seen by recognition of admissibility of electronic records as evidence as enshrined in Section 65B of the Act. The Bankers' Books Evidence (BBE) Act 1891: Before passing of ITA, a bank was supposed to produce the original ledger or other physical register or document during evidence before a Court. After enactment of ITA, the definitions part of the BBE

Act stood amended as: "'bankers ' books' include ledgers, day-books, cashbooks, account-books and all other books used in the ordinary business of a bank whether kept in the written form or as printouts of data stored in a floppy, disc, tape or any other form of electro-magnetic data storage device". When the books consist of printouts of data stored in a floppy, disc, tape etc, a printout of such entry ...certified in accordance with the provisions ....to the effect that it is a printout of such entry or a copy of such printout by the principal accountant or branch manager; and (b) a certificate by a person incharge of computer system containing a brief description of the computer system and the particulars of the safeguards adopted by the system to ensure that data is entered or any other operation performed only by authorized persons; the safeguards adopted to prevent and detect unauthorized change of data ...to retrieve data that is lost due to systemic failure or .... The above amendment in the provisions in Bankers Books Evidence Act recognized the printout from a computer system and other electronic document as a valid document during course of evidence, provided, such print-out or electronic document is accompanied by a certificate in terms as mentioned above. Issues not covered under ITA ITA and ITAA is though landmark first step and became mile-stone in the technological growth of the nation; however the existing law is not sufficed. Many issues in Cyber crime and many crimes are still left uncovered. Territorial Jurisdiction is a major issue which is not satisfactorily addressed in the ITA or ITAA. Jurisdiction has been mentioned in Sections 46, 48, 57 and 61 in the context of adjudication process and the appellate procedure connected with and again in Section 80 and as part of the police officers' powers to enter, search a public place for a cyber crime etc. Since cyber crimes are basically computer based crimes and therefore if the mail of someone is hacked in one place by accused sitting far in another state, determination of concerned P.S., who will take cognizance is difficult. It is seen that the investigators generally try to avoid accepting such complaints on the grounds of jurisdiction. Since the cyber crime is geography-agnostic, borderless, territory-free and generally spread over territories of several jurisdiction; it is needed to proper training is to be given to all concerned players in the field. Preservation of evidence is also big issue. It is obvious that while filing cases under IT Act, very often, chances to destroy the necessary easily as evidences may lie in some system like the intermediaries' computers or sometimes in the opponent's computer system too. However, most of the cyber crimes in the nation are still brought under the relevant sections of IPC read with the comparative sections of ITA or the ITAA which gives a comfort factor to the investigating agencies that even if the ITA part of the case is lost, the accused cannot escape from the IPC part. Computer & Web Technology The Web has experienced dramatic growth in recent years, and has transformed the Internet from a primarily passive environment used for email, newsgroups and mailing lists, to an interactive, user enabled universe filled with vast amounts of information. The effect of the Web on the Internet has become so overwhelming that, to many, the Web and the Internet are mistakenly considered to be coextensive. Tim Berners-Lee, the software expert who unwrapped the promise of the Internet by developing the World Wide Web, has long understood and argued that easy, intuitive, and free linking

lies at the heart of the Internet but these Internet links may create legal liability. Recognition, maintenance, protection and encouragement for art and artist is the quintessence of copyright philosophy. Though copyright found statutory expression only about three hundred years ago, its philosophy is age old. Under the most important international copyright convention, the Berne Convention, copyright protection covers all literary and artistic works. This term encompasses diverse forms of creativity, such as writings, including scientific and technical texts and computer programs; databases that are original due to the selection or arrangement of their contents; musical works; audiovisual works; works of fine art, including drawings and paintings; and photographs. There are various ways through which digital copyrighted content can be transmitted across the Internet disregarding the traditional principles of copyright law and one of such form is linking. Hypertext links between sites web pages provide the ability to connect related ideas and create communities, it often represented as bolded or underlined text, or as an image. By "clicking" a mouse or other pointing device on a link, the contents of another Web page referenced by the hypertext link are then displayed by the Web browser. The extensive use of these interconnections between Web pages is why the medium is termed a "web. There can be intra page links- linking different parts of the same documents; Intra system page connecting different documents on the same sever; or an Inter system link, it connects documents on different severs. Linking is of basically two types: Surface linking, where the home page of a site is linked; and Deep linking a link bypasses the home page and goes straight to an internal page within the linked site. While enabling users to surf fluidly from one Web site to another, this practice also raises copyright issues. A simple link from one Web site to the home page of another Web site does not normally raise concern, as the use of such links may be equated to the use of footnotes to refer to other sites. Often, no permission is required to make a link to a site, either because the Web site owner has given an implied license to link by posting his material on the Web, or by characterizing such linking as fair use. The problem arises only with regard to the practice of deep linking. Since Deep links defeat a Web site’s intended method of navigation. Further deep links may steal traffic from the linked site’s homepage thereby decreasing the revenue that could be generated from advertising that is dependent on the traffic onto the site. In the Ticketmaster Corp. v. Microsoft Corp [ii], the plaintiff, Ticketmaster Corporation sued Microsoft for practice of linking, without permission, deep within its site rather than to the home page, and claimed, among other things, that Microsoft effectively diverted advertising revenue that otherwise would have gone to the plaintiff. During the pendency of the court proceedings the parties entered into a settlement agreement whereby Microsoft agreed not to link to pages deep within the Ticketmaster site and agreed that the links will point visitors interested in purchasing tickets to the ticketing service’s home page. In a Scottish case, Shetland Times, Ltd. v. Dr. Jonathan Wills [iii], the plaintiff, the Shetland Times operated a Web site through which it made available many of the items in the printed version of its newspaper. T[1]he defendants also owned and operated a Web site on which they published a news reporting service. Defendants reproduced verbatim a number of headlines appearing in the Shetland Times. These headlines were hyperlinked to the plaintiff’s site. The judge agreed that the plaintiff had

presented at least a prima facie case of copyright infringement based upon the United Kingdom’s law governing cable television program providers. Thus what liability is there for the content on a linked site? A hyperlink used by a Web site does not directly cause copying of any substantive content by anyone, but instead merely provides a pointer to another site. By virtue of sections 14 and 51 of the Copyright Act, 1957, reproducing any copyrighted work, issuing copies of the work to the public or communicating the work to the public could amount to copyright violation. But in case of deep linking the linking site is not reproducing any work. The reproduction, if at all any, takes place at the end of the user who visits the linked page via the link. Can the linking site said to be issuing copies of the work or communicating it to the public? Technically, the linking site is only informing people about the presence of the work and giving the address of the site where the work is present. It is the user’s discretion to access the work by clicking the link. There are many who extol the virtues of free sharing of copyrighted material on the Internet. At the same time, however, creators and intellectual property rights holders need to feel sure that they can protect their property from piracy and control its use, before they will be willing to make it available online. Therefore, our challenge is to ensure that the laws of copyright adapt to the new technological environment in a way that feeds and encourages creative activity rather than in a way that inhibits or overwhelms it. The key is to balance, which has always to be interpreted and reinterpreted considering varying interests from time to time along with the advancement of technology. What is Computer?

Computer is an electronic device that is designed to work with Information. The term computer is derived from the Latin term ‘computare’, this means to calculate or programmable machine. Computer cannot do anything without a Program. It represents the decimal numbers through a string of binary digits. The Word 'Computer' usually refers to the Center Processor Unit plus Internal memory. Charles Babbage is called the "Grand Father" of the computer. The First mechanical computer designed by Charles Babbage was called Analytical Engine. It uses read-only memory in the form of punch cards. Computer is an advanced electronic device that takes raw data as input from the user and processes these data under the control of set of instructions (called program) and gives the result (output) and saves output for the future use. It can process both numerical and non-numerical (arithmetic and logical) calculations.

Digital Computer Definition The basic components of a modern digital computer are: Input Device, Output Device, Central Processor Unit (CPU), mass storage device and memory. A Typical modern computer uses LSI Chips.

Four Functions about computer are: accepts data

Input

processes data

Processing

produces output

Output

stores results

Storage

Input (Data): Input is the raw information entered into a computer from the input devices. It is the collection of letters, numbers, images etc. Process: Process is the operation of data as per given instruction. It is totally internal process of the computer system. Output: Output is the processed data given by computer after data processing. Output is also called as Result. We can save these results in the storage devices for the future use. Computer Classification: By Size and Power Computers differ based on their data processing abilities. They are classified according to purpose, data handling and functionality. According to functionality, computers are classified as: • Analog Computer: A computer that represents numbers by some continuously variable physical quantity, whose variations mimic the properties of some system being modeled. • Personal computer: A personal computer is a computer small and low cost. The term"personal computer" is used to describe desktop computers (desktops). • Workstation: A terminal or desktop computer in a network. In this context, workstation is just a generic term for a user's machine (client machine) in contrast to a "server" or "mainframe." • Minicomputer: A minicomputer isn't very mini. At least, not in the way most of us think of mini. You know how big your personal computer is and its related family. • Mainframe: It refers to the kind of large computer that runs an entire corporation. • Supercomputer: Itis the biggest, fastest, and most expensive computers on earth.

• Microcomputer: Your personal computer is a microcomputer.

Web Technology Web technology is the establishment and use of mechanisms that make it possible for different computers to communicate and share resources. Web technologies are infrastructural building blocks of any effective computer network: Local Area Network (LAN), Metroplitan Area Network (MAN) or a Wide Area Network (WAN), such as the Internet. Communication on a computer could never be as effective as they are without the plethora of web technologies in existence. Computers and other network devices need to communicate. A mechanism must make it possible for a computer to communicate with another computer on the same network or another network. The mechanism must ensure that a message moves from the sender to the recipient, enable the receiver to retrieve the message and send feedback, and acknowledge reception or failure of communication. Acco...