Cyber Crimes

1.1 Introduction

An Internet of network of computers can operate without the constraints of space, borders etc. They are a medium of storage, analysis and communication of information - they virtually create a world of their own - the cyber space. But the establishment of cyber space as a communication tool to the establishment of many a legal challenges. The principles of criminal law, and its applicability need to be assessed in the light of changing technology in relation to cyber space.

From the 1940's to 1980's there was fear of physical attacks from warring nations that people feared .The technological advancements in the form of new weapons,nuclear bombs kept people on the vigil. The late 80's was a period which saw the destruction of computers in scores of sensitive areas: MIT, several army basis and many other locations due to a computer virus that rampaged across America. So it's a fact that we live in a society where existing legal frameworks are constantly challenger by technological advancement.

One can find that the rapid development of internet , global information and e-commerce has increased the amount of information that is exchanged among users over global telecomunication networks. This has resulted an increase in the number of crimes committed in the cyber space. Hence there arises a need to evolve a common criminal policy aimed at the protection of society against cyber crimes.

When we think of combating cyber crimes through a criminal policy a few questions are to be addressed.

(i)Are the present principles in criminal law adequate for combating cyber crimes?

(ii)If not, what needs to be changes are to be brought about in the existing law for combating cyber crimes?

1.2 Cyber Crimes

The terms “cyber crime,” "computer crime", "Information Technology crime," and "high-tech crime" are often used inter-changeably to refer to two major categories of offenses: in the first, the computer is the target of the offense; attacks on network confidentiality, integrity and/or availability - i.e. unauthorized access to and illicit tampering with systems, programs or data - all fall into this categoryThis cannot be however taken as a conclusive definition of what constitutes a crime in cyber space . In the past, destruction or theft of computer data and programs constituted cyber crimes. More recently the definition has expanded to include activities such as forgery, illegal gambling, cyber stalking etc. Cyber crimes have virtually no boundaries and may affect every country in the world. They may be defined as “any crime with the help of computer and telecommunication technology”, with the purpose of influencing the functioning of computer or the computer systems. Cyber can be said to differ r from most terrestrial crimes in a number of ways . They are easy to learn how to commit; they require few resources relative to the potential damage caused; they can be committed in a jurisdiction without being physically present in it; and they are often not clearly illegal.

1.3Commission of Cyber Crimes

The commission of crime can be classified into 3 broad categories on the bash of impact in the society.

1.Against individuals

2.Organisations

3.Society at large

1.3.1 Against individuals

(A)Harassment via-emails

The main advantage of Electronic technology is that it allows cheaper communication between franchisers, franchisees and customers. The routing and dissemination of information with the help of e-mail system helps system users of a shared network pr mainframe, third party service providers, the Internet or intranet to communicate effectively.But the advancement in this technology has it disadvantages too. With this method of communication one can steal someone's e-mail identity and then send, or review, e-mail in their stead by routing it to locations where you can intercept it. Spam which is unsolicited e-mail is also another annoyance to e-mail users.

(B)Cyber Stalking:

Cyber stalking is characterized by a person feeling followed and pursued; their privacy is invaded, their every move watched. It is a very intense form of harassment, and can disrupt the life of the victim and leave them feeling very afraid.It refers to the activity of users sending or threatening E-mail to other users. Women are especially being by cyber stalkers. It has been estimated that approximately 200000 people stalk someone each year. California was the first state to pass a stalking law. Seven American states have passed statutes that include stalking by computers. There are a number of ways by which a computer may be used for stalking.For example, a stalker may post a controversial or enticing message on the board under the name, phone number, or e-mail address of the victim, resulting in subsequent responses being sent to the victim. Each message - whether from the actual cyberstalker or others - will have the intended effect on the victim, but the cyberstalker's effort is minimal and the lack of direct contact between the cyberstalker and the victim can make it difficult for law enforcement to identify, locate, and arrest the offender.

( C)Dissemination of Obscene material.

Obscenity has been the subject of many Supreme Court cases. Supreme Court Justice Stewart once lightly opened that he could probably never accurately define hardware ***** but he knew it when he saw it. In the case of Hamling V.United States, the Court used the Miller test to apply to online sexually explicit material. Based on those cases the Supreme Court fashioned a three tests to define obscenity.

1.Would the “average person, applying contemporary community standards' find that the work, taken as a whole appeals to `prurient interest'?

2.Does the work describe or depict, in a `patently offensive' way, sexual conduct that is specifically defined by applicable state law?

3.Does the work taken as a whole `lack serious literary, artistic, political or scientific value?'

(D)Hacking and cracking

It is one of the most common crimes committed across the world. A Hacker can be defined as a person who breaks in or trespasses a computer system. They are of different types ranging from code hackers to crackers to cyber punks to freaks. A saboteur could erase R&D data or paralyze a network, and an industrial spy might steal trade secrets through hacking. A precise definition of the term hacking provided in the Information Technology Act 2000. .

1.3.2Organisations

The unauthorized control over computer system and the use of Internet hinder the normal functioning of a computer system though induction worms, viruses, logic bombs etc.

(A)Unauthorized control over computer system

(i)Trojan horses

Unauthorized access to a computer system can be motivated by a computer hacker's curiosity or perhaps by a desire to sabotage the system. The modern hacker can bypass existing system password by creating a Trojan horse program.

(ii)Worms

Worms is sub-species of computer virus that bores down systems. A worm can dry to get deeply into a systems brain. Eg. Of a worm program - a bank computer program that in instructed to continually transfer money to an illicit account.

(iii)Logic Bombs

The use of Internet to hinder the normal functioning of a computer system is also done through the induction of logic bombs. A time bomb is a program that in certain to modify or destroy at a specified date and time in future.

(iv)Virus

Introduction of viruses to gain economic advantage over competitor to promote the illegal services of terrorists or to steal data for exhort ion purposes.

(B) Forgery

Computer forgery is the alteration of computerized documents. Since the advent of high - resolution computerized co lour laser copies; a new generation of fraudulent counter feiting has emerged. These copies can modify existing documents, the quality of which is indistinguishable from the original without an expert for analysis. The perpetrators can even create false documents without the necessity of referring to an original documents.

( C) Fraud.

Internet fraud can be called a kind of white-collar crime. The Internet provides companies and individuals with the opportunity of marketing their products of the net. It provides for the people with fraudulent intention to make their message look real and credible. One of the most common types of cyber fraud is online auction fraud. The Internet is also used to fraudulently manipulate stock prices or facilitate illegal insider trading Computers are also used by thieves to steal credit card details and siphon funds from banks.

(i)Online investment Newsletter

Many newsletters on the Internet provide the investors with free advice recommending where they should invest. Sometimes their recommendations are bogus and cause loss.

(ii) Bulletin Boards

This is a forum for sharing investor information and often fraud is perpetrated in the zone causing loss of millions who bank on them.

(iii) E-mail Scams

Since junk mail is easy to create, fraudsters find it easy to spread schemes or spread false information about companies.

(iv)Credit Card fraud.

With the electronic commence becoming a major force in national economics, it offers rich picking for criminals prepared to undertake fraudulent activities.

(v)Making available Digital Signature for fraudulent purposes.

In the digital world, there is no direct face-to-face interaction for electronic transaction; hence issues concerning identity authenticity and integrity arise. One solution was gaining the support of digital signature. A number of jurisdiction around the world have either enacted or are in the process of enacting legislations that has the purpose of promoting electronic commerce, or at the very least, legitimizing technology that is generally identified as electronic signature technology including specifically digital signature technology.

1.3.3Against Society

Pornography

Pornography is defined as any explicit writing, picture or other material intended to arouse sexual desire. Child ***** involves the use of a minor engaging in sexually explicit conduct. Many types of pedophilic activity like viewing images, discussing activities, arranging tourism, enticing a child to a meeting - are carried out over the Internet

1.4 Cyber Crimes and General principles of Criminal law

The growing dangers from crimes committed against computers or against information on computers are beginning to claim attention in all countries. With the digitalization, convergence and continuing globalization of computer networks there are increasing chances of computers being used for committing crimes. Hence one has to find out if the present principles of criminal law is adequate enough in combating crimes, If not what is to be done.

The analysis of how far there need be a change in the criminal law and the existing legislation can be done through a critical analysis of a few questions.

(1) Does there exist an entirely different branch of crimes known as cyber crimes or is cyber space a medium for the commission of traditional crimes?

(2) If there exists then they should differ from traditional crimes in some aspects? Does it bring relevant changes in the elements of crime?

(2.1)If it does not bring much change in the elements of crime, the crimes can be combated by merely bringing new legislations and creating new crimes by using traditional principles of criminal law.

(2.2)If there exists a considerable difference in the commission of the same crime in the real world and the virtual world then new principles of law need to be evolved.

(2.2.1)For suggesting a change in the in the principles of criminal law one has to look in to the following clauses.

(a)The difference between the real world and the virtual world, where the commission of the crimes occur.

(b)To what extend the crimes, which occur in, the real world can materialize in the virtual world and what are the newer forms of crime, which can emerge in the virtual world.

1.5 The existence of Cyber Crimes

Cyber space is a shared conceptual reality, a “VIRTUAL WORLD” not a shared physical world. Crimes as traditionally conceived are committed in the so-called “real world”, in our shared physical reality. Consequently our extant of crimes is concerned with the imposing of liability and sanctions for the conduct that occur in the physical world. But it is seen that as time passes man evolves newer and newer methods to commit crimes. The telephones, radio was ones the ways used. Similarly cyber spaces emerged as yet another medium for the commission of various offences.

Much has been written about the crimes committed by means of a computer,and the necessity to evolve laws to combat it.All this is based on an implicit assumption that there exista a totally different branch known as cyber crimes .On the contrary if we ignore this assumption we can arrive a a different conclusion. As world experiences newer technological advances man will evolve newer and newer methods to commit the crime .In this process there might be effective transfer of existing forms of real world crimes in to cyber space or there might emerge alternative methods which help in the commission of traditional crimes .If we accept this perspective then cyber space need to be considered as only a medium to commit the existing crimes.

There are two conflicting views with regard to effective legislations to curb these crimes. As cyber crimes offer a much broader venue for misconduct than telephones and other 20th century technologies, there might emerge a need to recognize a new branch of crimes called cyber crimes to address cyber situated misconduct. There are also many pragmatic reasons attributed to this. One can argue that cyber situated misconduct warrants special treatment because cyber criminals can inflict more harm than real world counter parts. Another argument for according special treatment to cyber criminals is the difficulty in law enforcement. The existence of special cyber crime legislations can emphasis the seriousness with which the society regards the use of cyber space as a criminal tool. On the other hand if we consider cyber space just as an alternative method to commit the traditional crimes the general principles of criminal law as it exists today is enough.

For evaluating which is a better method to curb these crimes one has to look into the essential differences and similarities of cyber crimes and the traditional crimes. Any Crime consists of three elements -the actus reus or the act done, mens rea or the intention and the harm caused. All crimes share these constituent elements .If there exist any differences, they must lie in how some or all of the elements manifest themselves in the commission of the crime. Another indisputably constant element of both the types of crimes is the existence of an individual perpetrator. Neither a crime nor a cyber crime can be realized except through the agency of one or more individuals. Since this is constant in both kinds of crimes, there appears no reason to establish different culpability or mens rea. But with regard to other elements like the act involved and the harm caused we can hypothesize a difference in the same crime, conducted in the real and the virtual world. It is the existence of these differences in the respective venues within which cyber crimes are committed that leads us to the question whether the current principles of criminal law that we employ are adequate .An analysis of some of the cyber crimes each of which appear analogous to crime in the real world, with regard to the constituent elements is necessary to answer the question.

1.6 An analysis of some Cyber Crimes which has its analogus crime in the real world.

Just as the character of information is altered by the use of computers, the legal paradigm also must change with the new technology. As with all changes in technology and society, the law - and in particular, the federal law - has struggled to keep up with advances in the way people do business.One must keep in mind that any legislation must legitimize the use of computer and computer networks and on the other hand must be able to address the unlawful activities. This balance has to be maintained, especially during the application of criminal law. The law has to keep pace with the advancing technologies and for any method of attack (whether through computers or the internet) to be criminal the law must define it to be so.

One of the unique features of computers is the fact that they provide the user with a degree of anonymity, which makes the task of detecting computer crimes and the offenders more difficult. For eg if a student of a university is found to be responsible for the propagation of a virus, even if a copy of the virus is found in his computer account in the university it will amount only to a circumstantial evidence and not a conclusive one.

The lack of a coherent ethical structure in cyberspace causes them to attempt offences that are totally unethical. More over there is no common standard or consensus as to what types of information can and should be considered property on the network, and what constitutes theft or interference with this property. If we analyze each of the offences committed in the cyber space we can understand the problem in providing effective legislations.

1.6.1THEFT

ACTUS REUS

Whether the offence has occurred in the real world or the virtual world, the unlawful taking or exercising control over the property of another by the accused, is the act involved in the crime of theft. Theft in cyber space can be generally divided in to three categories.(1)Theft of property.(2)Theft of information .(3)Theft of services .The theft of property ,whether it occurs in the real world or the virtual world is a zero sum offence.The same can be said for the theft of services. Here the victim is deprived of the remuneration he should have got for the stolen services .In the case of theft of information and soft ware the perpetrator copies the victims property and leaves the original version of the information with the victim. Here the victim might have not compiled it for the remuneration but still experiences a loss.

MENS REA

Whenever the offence of theft is committed an intention to commit that particular offense is attributed to it. In real world the purpose of depriving the lawful owner of the property is the mens rea involved in an offence of theft .In virtual world ,one can see that the word property encompasses theft of information and services too. But the intention of the perpetrator ,the crime in the real world or the virtual world is the same.

HARM

In either of the cases the victim id deprived of his or her property ,services or information.

However, in many cases the mere "use" of computer time does not always deprive the owner of the use of his computer. Can the usage of an unused portion of a computer by an intruder, which does not interfere with the normal functioning, constitute a "theft" of services? In Lund v. Commonwealth, the court refused to find an offense in the simple unauthorized use of a computer.Further in the case of State v. McGraw, the court likewise found that since the defendant did not deprive the owner (or another acquiring rights legitimately from the owner) of the ability to fully use the computer system, the behavior does not constitute theft of services company's computer

1.6.2FORGERY

ACTUS REUS

When an offence of fraud is committed, the offender knowingly alters, executes, authenticates, issues or transfers a forged writing. The only difference that one sees when the same act is done in the virtual world is that, the medium used to commit the offence is a computer.

MENS REA

The mens rea or intention of the perpetrator in the commission of the offence is the same. The perpetrator's purpose is to defraud someone or facilitate a fraud being perpetrated by someone else.

HARM

When the offence is committed the writing is altered as a result of the action. One can come to the conclusion that when forgery is committed the elements of crime is common whether it is committed in the real world or the virtual world.

1.6.3FRAUD

ACTUS REUS

The perpetrator communicating false statement to the victim constitutes the act involved.

MENS REA

The perpetrator communicates what she knows are false statements with the purpose of defrauding the victim.

HARM

The victim is defrauded out of the property or something, which is of value.

If the state can prove that the offence has been committed beyond all reasonable doubt with respect to all these elements of crime and the defendant rises no viable defense he can be committed of fraud even if it is committed through cyber space. In the vast majority of fraud cases involving computers, the object of the fraud is not the computerized information itself. Indeed, the information or the computer is merely a means to obtain other property - chiefly money. The defendant has used the computer - or the information contained therein - to steal money or other property either directly or indirectly from the victim. In such cases, courts have had no difficulty applying the general principles as it exists.

1.6.4PORNOGRAPHY AND OBSCENITY

ACTUS REUS

The possession, creation, importation, display, publishing or distribution of obscene material by the offender constitutes *****.

MENS REA

The purposeful creation, importation, publishing or distribution of pornographic materials constitutes the intention or mens rea.

HARM

Pornographic information is created or disseminated.

However the question of a “common standard “arises in the case of cases involving ***** through the Internet. In United States v. Thomas, two individuals permitted others to access their computer bulletin board system, which contained allegedly pornographic materials. After unsuccessfully prosecuting the operators of the bulletin board system in Berkeley, California (the location of the defendants and their bulletin board system) Secret Service agents downloaded allegedly obscene files to a computer in Tennessee, and thereafter successfully prosecuted the defendants in the remote jurisdiction. While this case involved child ***** - for which no "community standards" need be referenced, under the Supreme Court's holding in Miller v. California for materials to be considered "obscene" they must violate contemporary community standards. In the Thomas case, the government was able to select the "community" in which the materials were transmitted, and therefore to determine both the jurisdiction and venue. Computer and cyber space in this regard need to be considered only as a medium through which the offence is committed. Hence, there need be only a revision of the existing statutes.

1.6.5STALKING

ACTUS REUS

In the real world, if the offender follows the victim or be in the victim's presence for more than one occasion for no lawful reason and thereby communicate a `credible threat' to the victim or his family, which constitutes the actus reus. In the case of cyber stalkers, they do not threaten the victims directly. They are more likely to use tactics such as posting the victim's name and address on the net with false claims. Hence a court may not be able to find such threats from persons located hundreds of miles away, a credible one.Moreover the cyber crime stalker uses information (message or data) posted on net to harass and terrorize the victim. Hence there arises no need to follow the victim. Cyber stalkers, hence, may never engage in conduct of that credible threat.

MENS REA

The intentional and purposeful causing of death or bodily injury or emotional distress to the victim by putting him in fear of causing death or bodily injury constitutes mens rea. In the case of cyber law it maybe merely to terrorize the victim by communicating specific threats to harm them or someone close to them. In other cases it may be a mere game of control.

HARM

The harm caused in both the cases is the fear and apprehension that the victim experiences.

Cyber stalking is relatively a new offence which is quite deviant in its constituent elements from simple stalking. The cyber world can be used as a medium to inflict psychic damage on a victim. Many jurisdictions do not have stalking laws let alone, cyber stalking. Hence, the crime requires new laws to combat it.

1.6.6 CRIMINAL TRESPASS AND BUGLARY

The analogies that one can find to these offences are hacking and cracking respectively.

Actus reus

The offense of criminal trespass is completed when the offender enters into or remains in any building where she/he does not have any lawful access. Hacking is analogous to criminal trespass in the virtual world ,the only difference lies is that there is an unlawful access to the physical location in trespass and a virtual location in hacking. Hence the actus reus involved in hacking is the unlawful entry of the perpetrators into a computer or a computer system. Cracking is an analogue to the crime of burglary. In both the offences the offender gains access to a physical location and virtual location respectively for the purpose of committing the offence.

MENS REA

As far as the mens rea in the commission of criminal trespass is concerned, there is no requirement for the person to have intended to commit an offence once the intrusion is complete. Strictly speaking a hacker does not intend to commit an offence or cause damage once in inside a computer system, though inadvertently she may do so. But in order that the state can convict someone of the offence the perpetrator's knowledge that she is not legally entitled to enter the computer is necessary. But in many cases this requirement will have to be done away with to punish the offender. On the other hand a cracker, is a hacker who breaks into a computer or computer system with the purpose of committing the offence-, which includes damaging of the system or offences such as theft or fraud. Hence the perpetrators intervention to commit crime is of paramount importance.