Cyber
Law & Territory
Claiming
new dynamism in jurisprudence
Osiur
Rahman, Mahabubur Rahman & Nour Mohammad
In the last decade
the Internet has achieved considerable expansion. Today it is estimated
that there are over 9.4 million computers and as many as 40 million people
world-wide linked to the Internet. It is very much predictable that by
the end of this century there could be over 200 million Internet users.
Necessarily cyber law has become a promising field. Cyber law encompasses
cyber crime, electronic commerce, and freedom of expression, intellectual
property rights and privacy rights. Cyber crime involves activities like
credit card fraud, unauthorised access to computer systems, child pornography,
software piracy and cyberstalking. It is notable that The architecture
of cyberspace and access paths to the Cyber space have to be focused,
to identify cyber crime and cyber criminals, and to resolve Jurisdictional
confusion.
Genesis
& the architectural factors of cyber territory
The Internet mechanism can be considered as the global connection of interconnected
computer networks straddling state and national borders. The perception
of interconnecting computers originally commenced in 1969 as part of a
military program called "ARPANET."
Conversion
of users into the cyber criminals
The age of the users of internet ranges from nine to ninety years or more
covering the people like students, terrorists, corporate personality whether
employee or employer, members of organised crime etc.
So variety of people
get involved in cybercrime motivated by revenge, a desire for notoriety,
the technical challenge, monetary gain, or the promotion of ideology or
mere pleasure. The most rampant source of computer criminals is in house.
Over ninety percent of economic computer crimes are perpetrated by a company's
own employees.
Territorial monopoly versus cyber space
The law is conceived and spoken of as territorial .the enforcement of
law is undoubtedly territorial in the same way as the state is territorial;
that is to say the state power is in time of peace exercised only within
the territory of the state on its public ships and aircraft and on vessels
and aircraft registered under its law.
But the law applicable
to the cyber space is quite different form territorial -based law because
of the peculiarity of cyber world bearing virtual character of visual
nature. It should be considered that the events or activities ensued in
cyber world causing legal consequences are not less than those in the
real world are.
Accordingly a distinct
set of laws and legal principles has become inevitable to be adopted with
same mission holding sprit of punishment or remedy. The financial damage
sustained by the individual or by corporate body or by governmental organs
is claiming billions of dollars, which sometimes surpass traditional territorial-based
damage.
Jurisdictional
confusion
The developing law concerning jurisdiction must address whether a particular
event in Cyberspace is controlled by the laws of the state or country
where the Website is located, by the laws of the state or country where
the Internet service provider is located, by the laws of the state or
country where the user is located, or perhaps by all of these laws.
A number of commentators
have voiced the notion that cyberspace should be treated as a separate
jurisdiction. In practice, this view has not been supported by the Courts
or addressed by lawmakers in many states.
When adjudicating
cases involving foreign nationals, the courts must harmonise several factors.
On a case-by-case basis, the courts must consider the procedural and substantive
policies of other countries whose interests are affected by the court's
assertion of jurisdiction. When extending jurisdiction into the international
field great care and reserve must be exercised. Because of the principle
of sovereign equality there is a higher jurisdictional barrier when litigating
against a foreign national.
Definition
of cybercrime
The traditional philosophy of law relating to legal concept, legal principle
and legal definition flows from the territorial point of view. But now
jurisprudence is facing a very significant and different type of problem
pushing frequently for achieving recognition as substantive legal issues
corresponding substantive right, requiring procedural support by any particular
state or multi -lateral process or by universal system in legislative
contribution. The definition of a crime on the Internet is still being
developed. Cybercrimes have been defined as activities to include the
destruction or theft of computer data and programs to be computer crime.
Recently, the definition has expanded to include activities such as forgery,
illegal gambling, and cyberstalking, tampering, interfering, damaging
or unauthorised access to computer data and computer systems.
The
categories of cybercrime
Computer crime involves concept of traditional crimes such as fraud, theft
or forgery. It includes the more recent crime of cyberstalking. Vivid
examples of cybercrime can be found in The "United Nations Manual
on the Prevention and Control of Computer-Related Crime." The manual
includes fraud, forgery, computer sabotage, unauthorised access to Services
or Systems, and copying of computer programs.
<>Fraud<>
Organised crime has used cyberspace to target credit card information,
personal and financial information for cyber fraud. The sale of this information
to counterfeiters of credit cards has proven to be extremely profitable.
No longer do bank or credit cards need to be stolen. Counterfeiters using
specialised computer hardware and software programs can encode falsified
information on credit and bankcard magnetic strips. The sale of personal
and financial information to create false travel documents has also become
big business. Fraudulent activity has extended to the Internet in the
form of fake franchise offerings.
Forgery
Computer forgery is the alteration of computerised documents. Since the
advent of high-resolution computerised colour laser copiers a new generation
of fraudulent counterfeiting has emerged. These copiers can modify existing
documents the quality of which is indistinguishable from the original
without referring to an expert for analysis. The perpetrators can even
create false documents without the necessity of referring to an original
document.
Computer
sabotage
The use of the Internet to obstruct the normal functioning of a computer
system through the introduction of worms, viruses, or logic bombs can
be referred to as computer sabotage. Computer sabotage can be used to
gain economic advantage over a competitor, to promote the illegal activities
of terrorists, or to steal data or programs for extortion purposes.
Unauthorised
access to computer services or systems
Unauthorised access to a computer system can be motivated by a computer
hacker's curiosity or perhaps by a desire to sabotage the computer system.
Hackers frequently impersonate the system administrator using default
maintenance passwords, which the real system administrator failed to change,
to break into the system. The modern hacker can bypass existing system
password protection by creating a Trojan horse program to capture the
passwords of legitimate users of the system.
Unauthorised
copying of computer programs
The unauthorised copying and distribution of computer programs can cause
considerable economic loss to the legitimate owners. Several jurisdictions
have dictated that this activity should be subject to criminal sanctions
declined to hold the defendant liable under the wire fraud statute because
his infringement activities of distributing computer software did not
result in a profit. The court went on to rule that criminal and civil
penalties should attach to defendants involved in wilful, multiple infringements
of copyrighted software, even if the infringer lacked commercial motive.
The court left it to the legislature to define the crime and to establish
the penalty.
Cyberstalking
Cyberstalking refers to the activity of users sending harassing or threatening
E-mail to other users. Women are especially being targeted by cyberstalkers.
For example, a South Carolina woman has been stalked for several years
via E-mail by an unknown person who has threatened her life, threatened
to rape her daughter, and posted her home address on E-mail making it
openly available to anyone with access to the Internet
Concluding
remark
There are many issues to be resolved in Cyber law. Cyber crime and jurisdiction
are the two most complicated part of cyber-jurisprudence. Policy makers
and lawyers dealing with cybercrime are often confined to referring to
the scarce existing statutes and cases. In cyber-jurisdiction, the Courts
must address the question of which lawmaker has jurisdiction over actions
taking place on the Internet. Due to the exquisiteness of cyber jurisdiction
cases there is a limited amount of law for the legal practitioner to reference.
The Internet can be seen as multi-jurisdictional because of the easy accessibility
into a Web site from anywhere in the world. Determining jurisdiction for
courts is more problematic due to the user's perspective state and national
borders. Therefore a global revolution under universal framework is very
necessary for secured and congenial cyber territory
The
authors are an Assistant professor; University of Chittagong, a Lecturer,
Premier University Chittagong & advocate and human right activist.
