New Crimes : Old Laws

“The ability of the World Wide Web to penetrate every home and community across the globe has both positive and negative implications — while it can be an invaluable source of information and means of communication, it can also override community values and standards, subjecting them to whatever more may not be found online . . . . . The Internet is a challenge to the sovereignty of civilized communities, States and nations to decide what is appropriate and decent behaviour.”  143 CONG. REC. E 1633 (daily ed. Sept 3, 1997)  (statement of Rep. Goodlatte)  Clearly cyberspace is a giant neighborhood made up of networked computer users around the world, then it seems natural that many elements of a traditional society can be found taking shape as bits and bytes. The Internet has proved to be one of the greatest inventions of the twentieth century. The twenty-first century is now faced with the challenge of combatting the crimes, which are being facilitated by the Internet.  Since the Internet’s strength and purpose is facilitation of communications, traditional crimes such as conspiracy, solicitation, securities fraud, and even espionage can be committed via the Internet1 The Internet has now become an integral part of the life of millions of people,2 however it is also being transformed into a haven for criminals3-4.  In fact, as the internet grows, develops, and opens up to more people, we could be seeing many types of other crimes. The inability to trace the identity of the users of the Internet is one of the characteristics of the Internet which makes it susceptible to crimes. Also the wide variety of information that can be transferred, the open, unregulated nature of the Internet, and the irrelevance of geography means that the Internet provides fertile ground for criminal enterprises5.  Another aspect that needs to be looked into is the liability of the Internet Service Providers. It is proposed that ISPs should take a “responsible approach” to the provision of services and implement “reasonable, practicable and proportionate measures” to prevent the use of the Internet for illegal purposes. They should also ensure that appropriate mechanisms are in place to deal with illgality, although responsibility for enforcement should remain with the police.  In this Article, an effort has been made to study some of the most common crimes perpetuated over the Internet and to analyse whether the provisions of the Indian Penal Code are sufficient to deal with these crimes.6  Harassment and Stalking on the Net
 E-mail stalking has been defined as “the practice of harassing individuals via electronic mail or other computer based communication to the point where they feel as threatened as if they were being watched, followed or spoken to in person.”. Cyberstalking is a relatively new form of electronic crime. Its victims are mostly invisible and its violence is primarily verbal. Harassment can take place in many forms like a woman may incur sexual harassment. A person may have to face harassment just because of his color, caste, creed or any other basis for differentiation.7  How does this harassment happen? Let’s take an example. A man and a woman meet over the net and maintain a relationship. Now when the relationship ends the guy starts stalking the woman. Immediately upon terminating the relationship she begins receiving E-mail, almost hourly, from the man. She then starting receiving E-mails from men she did not know, soliciting her for sex. Apparently, he posted her phone number on the Internet, inviting men to call” for a good time.” Finally, he posted her address and encouraged local men to stop by and see her. What the woman experienced is a newly emerging form of harassment.  Everyone who receives E-mail or uses the Internet is susceptible to electronic harassment. Harassers generally impersonate someone by sending E-mail using their address. It allows offenders to continue to harass their victims while law enforcement officers end up wasting their time investigating innocent users. To catch one of these perpetrators, the victim needs to provide sufficient evidence.  Cyberstalking can take many ways. Unsolicited e-mail, including hate, obscence, or threatening mail, is probably one of the most common forms of harassment. Live chat harassment abuses the victim directly through electronic sabotage (e.g. flooding your Internet chat channel to disrupt your conversation). With Usenet (news groups), the cyberatalkers can create postings about you or start evil rumors, which spread through this bulletin board. More complex forms of harassment include mailbombs, sending the victim virii or electronic junk mail (spamming). But remember these highlighted forms of Cyberstalking, can easily escalate into real life stalking incidents such as threateing phone calls, vandalism of your property, threatening mail and even physical attacks.  Electronic harassment in the workplace is a new category of threatening behavior. The offenders misuse corporate resources to harass co-workers, invade their privacy and even track their whereabouts. The company becomes liable, not only due to the harasser’s status of employee, but because they actually make their company a party to the harassment by using company resources to harass co-workers. The onus is on the company to take effective and appropriate action to terminate the harassment.  In India, the leading case law on harassment at the workplace is that of Vishaka v. State of Rajasthan, AIR 1999 SC 3011. In India, before the Vishaka case, there was no law referring to harassment especially at the workplace. The Judges of the Supreme Court laid down certain guidelines to deal with sexual harassment but there have been no particular guidelines. In a very recent case, Apparel Export Promotion Council v. A. K. Chopra, AIR 1999 SC 625, the Court laid down that sexual harassment at the workplace includes any action or gesture which outrages the modesty of a female employee. For corporate harassment, a corporate technology policy should state restrictions on computer use for personal business, excessive Web surfing and even gambling. It should make the employee aware that they can bind the company to a contract, incur tort liability and possibly even criminal liability.  The best way to stop electronic harassment is to make laws prohibiting it. However, until the government takes action to protect users, users must take action to protect themselves.8 For such crimes, it is possible to prevent them by making small efforts like awarness and education to all Internet users. In India, people have faced problems of stalking and harassment but no such problem has been publicized. No provision for harassment per-se exists in the Indian Penal Code. As for stalking, Sections 503-507 will apply.  Let us study S. 503 of the Indian Penal Code to determine its applicability to cyberstalking. This section has the following essentials : Â

• Threatening the person with an injury.
• to his person, reputation or property
• to the person or reputation of any one in whom that person is interested.
• the threat must be with the intent
• to cause alarm
• to cause the person to do any act which he is not legally bound to do.
• To omit to do any act which the person is legally entitled to do.

Clearly, the section refers to the effect which the threat is intended to have upon the mind of the person threatened. In any act of stalking, there is a clear “injury” to the person being stalking in terms of mental distress. Therefore, this section provides for stalking and also harassment. However, there has been little case law in this regard.  In Ramesh Chandra Arora v. State, AIR 1960 SC 154 : 1960 Cri LJ 177 the accused took indecent photographs of a girl and threatened her father, in letters written to him with publication of the photographs until “hush money” was paid to him. The Supreme Court held he was guilty of criminal intimidation. Extending this situation to photographs sent over e-mails, the threat would be the same in my opinion. The main problem that arises then is the proof that the accused sent such photographs.  Further S. 504 provides a remedy for use of abusive and insulting language. This is another form in which cyber stalking takes place where abusive words etc. are sent through e-mail. Of course, the definition of ‘abusive’ language depends on the interpretation of the Court as to what would break ‘public peace’. With the origination of ‘virtual communities’, the definition of ‘public peace’ would also undergo a change. Internet crimes and law regarding it is relatively new in India and there has been only one case so far. As according to S. 507, whoever commits the offence of criminal intimidation by an anonymous communication (as is done by most stalkers) has a greater punishment.  S. 354 relating to an assault or criminal force to woman with the intent to outrage her modesty also shelters ‘harassment’9 However, since in cyberspace, there can be said to be no assault or use of criminal force, in the traditional meanings of the word this section would not be applicable. So, what is this harassment and how does it take place.  The position in the U.S.A. seems to be more forward-looking. The recent emergence of electronic harassment prompted four states — Michigan, Alaska, Oklahoma and Wyoming — to pass legislation making E-Mail or Internet Communications subject to the criminal laws that prohibit harassing or stalking. However, If someone outside the states with electronic harassment laws is being electronically harassed, the police usually cannot help them because it is not a crime. Essentially they are on their own.10 Many citizens groups like Women Halting Online Abuse (WHOA) and even a branch of the Guardian Angels called Cyberangels have formed to help people who complain about harassment.  Mischief
 The computer viruses and worms11 may just be the modern plague that afflicts the upcoming millenium. People are sending viruses across as mail attachments or downloads from sites that destroy the computers. Would this constitute ‘Mischief’ under S. 425 of the Indian Penal Code? The requirements to constitute mischief are : Â

• Whoever, with intent to cause or knowing that he is likely to cause
• Wrongful loss or damage to the public or to any person
• Causes destruction to property or destroys or diminishes its value or utility

Would the software on the computer constitute “property”? There is no definition of property in the Indian Penal Code. However, movable property under S. 22 is defined as corporeal property of any kind except and things fastened to the earth. This could encompass a computer, information etc.  Thus, all the essentials on S. 425 are fulfilled but the punishment under S. 426 is not appopriate for a crime like sending a virus which destroys a person’s entire database which could be worth millions. Neither would S. 427 be sufficient in this case.  In the U.S., the most likely avenue of prosecution is the Federal Computer Abuse Act of 1994 amending the earlier 1986 Computer Fraud and Abuse Act. The new Act outlaws the “transimission of a program, information, code, or command” that “cause(s) damage to a computer, computer system, network, information, data or program.” (18 U.S.C. Sec. 1030(a)(5)(A)]. The new law is an improvement because it is directed against the act of transmitting the virus. Prosecutors are no longer strained to argue that the viral release constitutes an unauthorised entry, instead the deliberate transmission of a viral release is a crime unto itself. This Act deals differently with those who foolheratedly launch viral attacks and those who do so intending to wreak havoc. To do this, the Act defines two levels of prosecution for those who create viruses. For those who intentionally cause damage by transmitting a virus, the punishment can amount to ten years in federal prison, plus a fine. For those who transmit a virus with only “reckless disregard” to the damage it will cause, the maximum punishment stops at a fine and a year in prison.  E-Mail Bombings
 Sending numerous or large e-mail messages to one person is considered “e-mail bombing.” Software can be written that will instruct a computer to do almost anything, and terrorism has hit the Internet in the form of mail bombings. By instructing a computer to repeatedly send electronic mail (email) to a specified person’s email address, the cyber criminal can overwhelm the recipient’s personal account and potentially shut down entire systems. This would result in destruction of information. In Nagendranath Mondal v. State of West Bengal12 where vandalism took place, to the extent of disrupting the working by burning the records of the university and creating a scare, the Supreme Court of India held that it amounted to mischief likely to disturb public peace and order. Thus, even e-mail bombing would amount to mischief under Section 425 of the IPC.  Pornography
 Section 292 and S. 292A encompass the law relating to pornography. R. D. Udeshi v. State of Maharashtra, AIR 1965 SC 881 : 1965 (2) Cri LJ 8 is an important case which defines ‘obscenity’ in the Indian context. Obscenity is defined as things that deprave or corrupt those whose minds are open to such immoral influences. It also stated that intention was not needed. The tests for ‘obscenity’ were further laid down in C. K. Kakaldhar v. State of Maharashtra, AIR 1970 SC 1390 : 1970 Cri LJ 1273.  Obscenity on the net is different, however. Consider : a seller of adult magazines normally makes a conscious decision to send his product into the jurisdiction in which he’s prosecuted, thus establishing criminal intent for the purpose of an obscenity-distribution prosecution. In contrast, a BBS operator may be wholly unware of the distribution — it may occur overnight, for example—due to the automatic operation of his software.  Often pornography takes the form of child pornography. There are ways to acquire images of children in varying stages of dress and performing a variety of sexual acts. There is an urgent need to ban the dissemination of indecent materials to minors. The law requires online publishers — make an effort to ensure kids donot receive pornography over the Internet. But some Internet users and free speech advocates say the provision goes too far, pointing out that software is already available for parents who want to block material they find offensive.13 Would this be violative of Article 19(1)(a) of the Constitution of India?  In India, there is no special provision relating to child pornography like the Protection of Children Act, 1978 in England.  Digital signatures and Forgery
 Electronic messages are ripidly replacing their paper counterparts in today’s commerce. These message are migrating beyond private, limited-function communication channels with their closed group of users to open networks, such as the Internet, with their unlimited users. Open networks, by difinition, lack rigorous access and usage controls. They are “intractably insecure.” Consequently, electronic messages are particularly susceptible to alteration or tampering and forgery. Digital signatures are a technological fix to these problems.  A digital signature is not a signature in the pen-and-ink sense at all. Nor is it a handwritten signature scanned into a computer and attached to an electronic message. A digital signature is the result of a two-step process that is performed on the message by encryption software the sender has loaded onto her computer. The new bill on Information Technology seeks to propose amendments to the Indian Penal Code. This bill amends S. 463 so as to include electronic records along with documents. Thus, in my opinion S. 463 is sufficient to include forgery of digital signature. The essentials of forgery are : Â

• The making of a false document or part of it.
• Such making should be with intent.
• to cause damage or injury to public or an individual,
• to support any claim or title,
• to cause any person to part with property,
• to cause any person to enter into express or implied contract,
• to commit fraud or that fraud may be committed.14Â

 When forgery takes place across borders, it is upto the court to decide the jurisdiction. In Ajay Agarwal v. Union of India, AIR 1993 SC 1637 : 1993 Cri LJ 2516, the appellant, an NRI was carrying a business in Dubai. The forgery took place partly in India and partly in Dubai but the court held that cognizance of such could be taken in India.  Cyber Gambling
 For more than a century, Americans have believed that the social ills fostered by gambling outweigh its recreational value and thus it has been excessively regulated. The same position follows in India also. These restrictions however have not diminished gambling’s popularity. Moreover, significant technological developments, most notably the Internet, threaten to circumvent the current regulatory approach in ways that were unimaginable just a few years ago. Unlike brick and mortar casions, the action is a “virtual casions” on the Internet, gambling is non-stop and accessible to anyone with Internet access.15  This section does not further deleve into the characteristics of cyberspace gambling. It deals with policy issues relating to gambling. S. 294A of the Indian Penal Code refers to lottery. Lottery stands on the same footing as gambling because both of the games are games of chance. The section does not touch authorised lotterries but intends to save people from the effects of those not authorized by prohibiting : Â

• the keeping of offices or places for drawing them, and
• the publication of any advertisement relating to them. Gambling on the Internet is not authorized by the Government of India and would, therefore, come under the purview of S. 294A.

Internet Fraud
 Online fraud, today, poses a major threat to the continued popularity of e-commerce.16 For our purposes, the term “Internet fraud” may be broadly defined as any fraud committed through or with the aid of computer programming of Internet-related communications such as Web sites, e-mail, and chat rooms.17 According to some sources in the United States18, the average fraud over the Internet costs $90,000 per victim and no more than 10% of the crimes involving computers get reported to authorities; Further, less than 2% result in conviction. Other sources estimate that online fraud has cost online users over $350 million this year alone.  Types of Frauds The major types of fraud which have been identified on the Internet are : Â

• Banking FraudsÂ

One of the major sources of banking fraud is through hacking into the bank’s databases to institute illegal transfer from one account to the other. The 1999 Computer Society of India survey of 521 organizations, including financial institutions found system penetration by outsiders increasing for the third year in a row, with 30% of respondents reporting intrusions.19  Andhra Pradesh is yet to recover from the cyber fraud of Kola Krishna Mohan Rao, the man who hoodwinked the media, banks and government alike with claims of winning the Eurolottery prize of Rs. 84 crore20. In response to this the Andhra Pradesh government has announced that they are formulating a cyber law to combat cyber crime. One of the key issues is going to be defining in which jurisdiction acts of fraud undertaken using the Internet or similar technology have actually occurred.  Fake banks have also been using the Internet to dupe unwary consumers. These phony Web sites solicit deposits, often using the lure of free Visa cards or tax shelters and offshore investments that promise lavish returns.21  In May, the Securities and Exchange Commission brought several enforcement actions against individuals who were promoting “prime bank” notes and debentures on the Internet.22 Â

• Web Site ScamsÂ

One example of web-site scams is the use of “frame-spoofing.” In “frame-spoofing,” one Web site could insert its own frame into another Web site without any indication that the frame belongs to the first Web site. Consumers who visited the second Web site, and saw a frame directing them to submit their credit card data on an online form in that frame, would likely assume that the second Web site was responsible for the direction and comply with that demand23. This information is used by the fraudster for illegal purposes. Â

• Oneline AuctionsÂ

Oneline auctions alone touted over $461 million in merchandise sales in 1998. These amounts are expected to reach $3.2 billion by the year 2002 reports Juniper Communications, an Internet market research firm24. While many online auctions offer a wide range of legitimate goods and services, Internet Fraud Watch receives more complaints about online auctions than any other category of Internet fraud.25Â Â

• Securities and other Investment SchemesÂ

Promotion of “exotic” scams26. In hundreds of cases, messages have been posted promoting a wide variety of highly suspect, unregistered investment deals (e.g., wireless cable television “build-out” schemes, ostrich framing, and viatical settlements), as well as flat-out rip-offs (e.g. pyramid schemes, including a number of twists on “chain e-mail letters,” and Ponzi scams). These so called “exotic” securities may pose a greater threat to consumers than other cyber-schemes, since out-and-out scams often appeal to individuals who do not feel sophisticated enough to speculate in stocks. Â

• Advertising fraud.

The Federal Trade Commissin, (a US governmental organisation) distinguishes two forms of advertising, fraud over the Internet: “classified advertising” and “disguised advertising”27 The FTC publication Potholes on the Information Highway describes “classified advertising” as your everyday advertising—promoting false claims about products and too-good to be true business and investment opportunities through the Web or bulletin boards. “Disguised advertising,” on the other hand, is described to be an insidious form of fraud where comments about the quality of products or services posted on bulletin boards and in chat forums are designed to be sales pitches rather than objective sharing of information, thus undermining the very heart of the Internet and luring unsuspecting consumers, who think these comments are real, to a substandard product.  “Fraudulently” is defined by Section 25 of the Indian Penal Code. The Indian Courts have defined fraud as an act of deliberate deception with design of securing something by taking unfair advantage of another. It is a deception in order to gain from another’s loss. It is cheating intended to get an advantage28. Although the Internet is a logical or virtual concept, it is manifested in the form of communication lines connecting computers. Fraudulent schemes conducted on the Internet may be prosecuted under traditional fraud provisions29. The conditions which need to be satisfied to make the act an offence under Section 415 of the IPC are : Â

• Deception of any person.

(a) Fraudulently or dishohestly inducing that person to deliver any property to any person; or to consent that any person will retain that property; or intentionally inducing that person to do or omit to do anything which he would not do or omit if he were not so decieved, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property. E-mail scams, online auctions and securities scams satisfy all the above conditions and thus the perpetrators of such frauds can be punished under Section 417 for simple cheating and under Section 420 of the IPC. Banking frauds in which customers are impersonated can be prosecuted under Section 416 of the IPC, which is cheating by personation. This crime can be punished under Section 419 of the IPC and the accused can be sentenced for a term of three years or fine or both. Again when the frauds are committed through the use of counterfeit notes and fraudulent financial instruments and documents, the accused can be prosecuted under Section 489A and Section 489B for counterfieting and using the counterfiet notes. They can also be prosecuted under Section 463 for forgery and sentenced under Section 465 of the IPC. However, we need a specific legislation criminalising online fraud. Â Identity TheftÂ
 Another kind of crime which has grown to endemic proportions on the Internet is Identity Theft. It is gaining a lot of importance and law enforcement agencies are finding it a growing problem and difficult to regulate. There are numerous variations on this crime. Essentially, it occurs when someone uses bits and pieces of information about an individual to represent him or herself as that person for fraudulent purposes. Examples are obtaining credit cards and loans in someone else’s name and then not paying the bills, opening utility accounts, renting an apartment, getting a cellular phone, purchasing a car or a home, and so, on. Another type of idenity theft is when the perpetrator commits crime in the victim’s name and gives that person a criminal record30.  The way most thieves get their information is by having access to a computer terminal that is connected to one of the credit reporting bureaus, looking for names similar to the thief’s, or just looking for someone with good credit. The Internet is becoming a more pupular resource for identity thieves. There are web sites that sell people’s personal information. An example would be www.infoseekers.com.  In America victims are not liable for the bills accumulated up by the imposters, thanks to federal law. But in India we still do not have any effective legislation to deal with this problem and it has the potential to cause untold misery to many. The victims will have to undergo the anxiety and hassle of spending months, even years, regaining their financial health and restoring their good credit history. And this only if the Court believes them and discharges them of all liability. A recent study conducted in America by the U.S. Government Accounting Officer31, showed that there were at least 400,000 victims a year and rising.  This crime is at epidemic proportions primarily because of the careless practices of the credit granting and the credit reporting industries. Another reason why this crime is of epidemic proportions is that it is very easy for the criminals to obtain the information needed. Further identity theft is rampant as it does not yet get the attention of law enforcement that more violent crimes receive.  Last year the U.S. Congress passed and the President signed the Identity Theft and Assumption Deterrence Act32. It makes identity theft a federal felony — when someone knowingly uses the identifcation of another person with the intention to commit any unlawful activity under federal and state law. This new law allows for restitution for victims. Similar measures should be implemented by the Indian government too.  Our present code is insufficient to deal with this crime. The provisions under the Indian Penal Code, which can be used to prosecute this crime is Section 416 which makes cheating by prosonation, a crime. However, the punishment for such a crime as provided under Section 419 is for a period of three years. This is totally inadequate for the gravity of such crimes. Further, law enforcement doesn’t investigate many such crimes. There is just too much of this type of crime occurring for them to handle. Further they do not have any mechanism to combat such crimes. In India, a victim would be lucky if he could get the police to even register his complaint. Many victims find they need the police report to prove their innocence to the credit card companies and the check guarantee services.  Though this crime needs to be criminalized by passing new laws, it will not solve the problems until the practices of the credit industry change dramatically. A stiff penalty should be assessed whenever a credit grantor extends credit to an imposter after the victim has placed a fraud alert on the credit file.33  Software Piracy
 Under Indian Law software piracy is not strictly a criminal offence, but rather a quasi-criminal offence. Though the Indian Penal Code does not contain any provisions relating to software piracy, the computer programs are sought to be protected by the Indian Copyright Act, 1956.  A computer system may be divided into two parts consisting of hardware and software. The term software is used to describe all of the different types of computer programs. Software Piracy occurs when software gets copied without permission from the copyright holder. Thus software piracy constitutes the producing and supplying of computer programs which infringe copyright in an original work.34  The nature of the digital medium permits the instantaneous reproduction of perfect copies of copyrighted or protected materials, and permits these exact copies to be instantly transmitted to thousands or milions of individuals at the same time. The anonymity provided by the Internet permits offenders to commit these violations with impunity. Moreover, the contents of information contained on the Internet makes the possibility of copyright infringement not only more alluring, but potentially more profitable. Not only are text files available over the Net, but also photographs, video, music and other audio. Indeed, virtually every medium which can be transmitted is being transmitted.  In the United States, the courts have rejected the applications of the general fraud or theft statutes to the prosecution of electronic copyright violations, leaving for the time being the criminal copyright law the exclusive remedy for punishing such violations. Again, intellectual property rights are extremely difficult to protect and enforce on the internet.  The only way to avoid piracy by law in most countries is by the means of copyrighting the software. According to S. 14 of the Copyright Act, in the case of a computer program, copyright includes the right to reproduce the work in any material form including the storing of it in any medium by electronic means, to issue copies of the work to the pubic, to make any adaptations of the work, to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer program. According to S. 51 of the Copyright Act, a person infringes the copyright when he does an act, the exclusive right to do which is conferred by the Act upon the copyright holder. According to S. 63 for infringement of a copyright, a person shall be liable for imprisonment for a term of not less than 6 months but extending to 3 years and also with fine of upto Rs. 50,000. The requirement of mens rea is insisted upon in the case of offences under the Copyright Act. The use of the words ‘knowingly’ makes it clear that the offender must have a guilty mind to commit the offence under the Act. It is also evident that a mere knowledge violating copyright is sufficient to constitute the offence under the Act.35  The ease of infringement and the difficulty of detection and enforcement will necessitate the copyright owners or the owners of the software to look toward technology as a solution. To combat piracy, what is needed is a criminal remedy in addition to the one provided by the Indian Copyright Act.  Data Theft : Industrial Espionage
 All organizations, no matter what their size, have their secrets. This confidential information and trade secrets are also of prime value to the competitors of the company who will try to get this information and use it to their advantage. Data has value even if it is not secret because of the cost of collecting it and keying it into the database. Also insofar as this material contains information about individuals, the company may have a statutory obligation to keep it secure under data protection legislation.  The computer has not only made it easier to collect, generate and process information, it has also made it much easier and much more worthwhile to steal. The data thief who purloins someone else’s database gets several things simultaneously : he acquires the raw data that might have taken years to accumulate, he doesn’t have to pay anyone to input it into a machine and he gets a database management package which allows him to explore the data in ways which the original owner had not contemplated.  Generally speaking, the industrial spies fall into one of the following categories: Â

1. employees motivated by the possibility of employment with a rival to their present employer, or by resentment or spite, or for cash or other favours.
2. sub-contractors and other temporary workers.
3. amateur agents.
4. journalists.
5. researchers and analysts.
6. professional agents.

Additionally, in many countries the traditional laws of theft also require that the thing that is taken constitutes property. However, legislators and the judiciary in many of these countries are reluctant to ascribe a property status to information, even confidential information. Traditional property law, with its emphasis on exclusivity to one owner, does not adequately account for the dynamics of information in an information society. Rather than relying on traditional theft provisions, special laws may need to be enacted.  As a result of problems in applying the general property law to cover trade secrets, in many countries the misappropriation of someone else’s secret information is covered by special provisions on trade secrets law. These provisions protect trade secrets by prohibiting only certain condemnable acts of obtaining information, either by provisions of the Penal Code or by penal or civil provisions of statutes against unfair competition. These laws generally attempt to balance the competing interests.  To conclude, as the criminals move from the paper based to the electronic arena, the challenges posed to law enforcement and civil agencies will be huge. These traditional provisions may not be sufficient to cope with the new crimes. The traditional sources of forensic and other evidence will become rarer, and a range of new types of evidence will need to be acceptabe to the courts.  The responses needed to investigate the fraud, secure a conviction and to allow the recovery of losses are likely to become increasingly international, as electronic communications allow fraudsters across the world to co-operate in criminal activities.  Important initiatives, to reduce the advantages enjoyed by the international fraduster, that should be encouraged or introduced include36. Â

• strengthening national laws so that they can cope with these new crimes;
• training enforcement agencies in the new skills required for prevention of cyber-crimes;
• harmonising national laws with the emphasis on coherent anti-fraud measures;
• increasing the speed and effectiveness of international co-operation;

• breaking down barriers to communication _____________________________________________________________________________________________________________________________
  

1. The Internet is a global matrix of interconnected computer networks using the Internet Protocol (IP) to communicate with each other. For simplicity, the term “Internet” is used throughout this paper to encompass all such data networks and hundreds of applications such as the World Wide Web and e-mail that run on those networks, even though some criminal activities may take place on proprietary or other networks that are not technically part of the Internet. No single force embodies our electronic transformation more than the evolving medium known as the Internet.
2. According to statistics provided in 1997 there were 12 million total users (34,000 new users per day), in 1998 the number went up to 85 million total users (200,000 new users per day), in 1999 it has touched 370 million users (811,000 new users every day). It is projected that by the turn of the millenium the number of net users would have crossed 900 million at the rate of 1,726,000 new users per day.

See, http://www.intergov.org/public—administration/information/latest—web—stats.html, visited on 25-03-2000.

1. Â Web Crime Statistics : Total complaints filed 1993 was 640 (1.7 per day), it went up from a total of 971 (2.6 per day) in 1994 to 1,494 in 1995 to 4,322 in 1996 to 12,775 in 1997 to 47,000 in 1998 to almost 100,000 in 1999. It is projected to cross more than 280,000 in the year 2000 at almost phenomenal rate of almost 775 complaints per day. Most common reports/complaints are of :
2. Ibid

• Child pornography 35
• Fraud (scams) 33%
• e-mail abuse 12%
• Missing Children 9%
• 10 (remaining 11%)

Stalking

Copyright Violations

Harassment/Threats

Children (Abused)

Hacking/Viruses

See, http://www.intergov.org/public—administration/information/latest—web—stats.html, visited on 25-03-2000.

1. Crime on the Internet : A Challenge, Bhakta Patnaik and Deeptakirti Verma, Nandan Kamat, ed., Law Relating to Computers, Internet and E-Commerce, Universal Law Publishing House, Delhi, 2000 at 229.
2. The Indian Penal Code was adopted in 1860, The Indian Evidence Act in 1872 and The Code of Criminal Procedure in 1973. Compare this to the fact that the origins of the Internet go back only to the Cold War. After the Soviet Union established its own nuclear program in 1957, the US Department of Defence started building a decentralised communication network, which could function even after a nuclear attack. If part of the network were to be destroyed by such an attack, communication would still be possible by re-routing information through the remaining elements of the network. In 1969, the Advanced Research Projects Agency Network (ARPANET) was established between four U.S. Universities with support from the Department of Defence. It became the predecessor of today’s Internet. At the very basic level the Internet can be described as an Inter-networking of networks connected through the Transmission Control Protocol/Internet Protocol (TCP/IP). See, Larse Davies and Chris Reed, The Trouble with BITS — First Step in Internet Law, 1996 Journal of Business Laws 416. However, it is only in the last decade of the 20th century when the internet has gained such widespread use.

See, http://www.intergov.org/public—administration/information/latest—web—stats.html, visited on 25-03-2000.

1. The Hitchcock case leads to this law in Maryland.

After this case, a new law on stalking came about on October 1, 1998 in the State of Maryland which read that it would be illegal to—

“use electronic mail for a communication made with intent to harass one or more persons or by sending lewd, lascivious, or obscene material; providing for a specified exception; providing for a penalty of not more than $500 or imprisonment for not more than 1 year or both for violations of the Act; and defining electronic mail.”

Corporations that have been sued in 1997 for racial discrimination include Morgan Stanley, Citibank and P.R. Donnelly and Sons. African American’s alleging E-mail discrimination brought each of these suits. Instances of racist mails have taken place even at universities like Pennsylvania State University.

1. Electronic Harrassment, Anne Bevilacqua, http://wings.buffalo.edu/Complaw/CompLawPapers/bevilacq.htm, visited on 26-03-2000.
2. Certain important cases may be mentioned. 1. Pramodh Singh v. State of J&K, AIR 1995 SC 1964 : (1995 Cri LJ 3620), Rupan Deol Bajaj v. K.P.S. Gill, AIR 1996 SC 309 : (1996 Cri LJ 381), which clearly stated that intention is not needed in this section. State of Punjab v. Major Singh, AIR 1967 SC 63 : (1967 Cri LJ 1), which basically said that the reaction of the woman is irrelevant and the meaning of the term “woman’s modesty” is her sex.
3. Electronic Harassment, Anne Bevila-cqua, http://wings.buffalo.edu/Complaw/CompLawPapers/bevilacq.htm, visited on 26-03-2000.
4. A virus is a cracker program that searches out other programs and ‘infects’ them by embedding a copy of itself in them, so that they become Trojan horses. When these programs are executed, the embedded virus is executed too, thus propagating the ‘infection’. This normally happens invisibly to the user. Many nasty viruses, written by particularly perversely minded crackers, do irreversible damage, like nuking the entire user’s files. A worm is a program that propagates itself over a network, reproducing itself as it goes.
5. AIR 1972 SC 665 : (1972 Cri LJ 482). See also Keshub Mahindra v. State of M.P., (1996) 6 SCC 129.
6. See, http://www.pbs.org/newshour/bb/cyberspace/cybersmut—2-15.html, visited on 4-4-2000.
7. In Indian Bank v. Satyam Fibres, AIR 1996 SC 2592 : (1996 AIR SCW 3228), it was held that the element of fraud is essential for forgery.
8. Keller, Bruce P., “The Game’s the Same : Why Gambling in Cyberspace Violates Federal Laws”, 108 Yale L. J., 1569 (1998).
9. Michael Adler, Cyberspace, General Searches and Digital Contraband, 105 (4) Yale Law Jour. 1093 (1996).
10. Financial Times 24 Apr 97.
11. See, http://advocacy-net.com/scammks.htm, visited on 1-4-2000.
12. See, http://www.csi.com, visited on 29-3-2000.
13. Padma Damodaran, Cyber Crime spreads to Indian shores, Times of India, 16 December, 1999 at pg. 10.
14. Doug Gerlach, Online Bank Fraud, http://www.iyillagemoneylife.com/money/articles/0.4029.22111—355.00.html, visited on 29-3-2000.
15. Paul Sweeney, Cyber Crime’s Looming Threat, http://www.bai.org/bankingstrategies/1999-jul-aug/Articles/Cyber-Crime/Cyber-Crime.html, visited on 1-3-2000.
16. See, http://www.state.nh.us/oag/cs.html, visited on 2-4-2000.
17. See, http://www. juniper communications. com, visited on 2-4-2000.
18. Nothing but Internet, 110 harv. Law Rev. 1143, (1997).
19. Blumenthal Warns Consumers About Sophisticated Scams, http://www.cslnet.ctstateu.edu/attygenl/tips.htm, visited on 27-3-2000.
20. Cyberspace Fraud and Abuse, http://www.nasaa.org/investoredu/investoralerts/cyberspa.html, visited on 29-3-2000.
21. R. K. Dalmia v. Delhi Administration, AIR 1962 SC 1821 : (1962 (2) Cri LJ 805. Also see, S. Dhawan v. Shaw Bros., AIR 1992 SC 1555, S.P.C. Naidu v. Jagannath, AIR 1994 SC 853.
22. Two Law reform Papers on Fraud, (1970) Crim Law Rev. 70.
23. See www:identityheft.org, visited on 1-4-2000.
24. “Identity Fraud”, 1998, p. 40, Report No. GGD-98-100BR, www.gao.gov, visited on 1-4-2000.
25. 18 USC 1028.
26. Travis J. Perry, Five Steps to Prevent Stolen Identity Credit Fraud, (1999). C.F. : www.futurecrime.com, visited on 2-4-2000.
27. Ian J. LLoyd and Moira Simpson, Law on The Electronic Frontier, 62, (Edinburgh : Edinburgh University Press, 1994).
28. Ibid at 236.
29. See, http://web.state.ut.us/web/commerce/coupro/dontget.htm, visisted on 13-4-2000.

Author Name: Gauri Manglik and Vandana Pal