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CYBERLAW
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Q.1.
What is the introductory background for Cyberlaws ? Since
the beginning of civilization, man has always been motivated by
the need to make progress and better the existing technologies.
This has led to tremendous
development and progress which has been a launching pad for further
development. Of all the significant
advances made by mankind from the beginning till date,
probably the important of them is the development of Internet.
To put in a common man’s language, Internet is a global network
of computers, all of them speaking the same language. In 1969,
America's Department of Defense commissioned the construction
of a Super network called ARPANET. The Advanced Research Projects
Agency Network (ARPANET), basically intended as a military network
of 40 computers connected by a web of links & lines. This
network slowly grew and the Internet was born. By 1981, over 200
computers were connected from all around the world. Now the figure
runs into millions. The
real power of today's Internet is that it is available to anyone
with a computer and a telephone line. Internet places at an individual's
hands the immense and invaluable power of information and communication.
Internet
usage has significantly increased over the past few years. The
number of data packets which flowed through the Internet have
increased dramatically. According to International Data Corporation
("IDC"), approximately 163 million individuals or entities
will use the Internet by the end of this year as opposed to 16.1
million in 1995. If
left to its own measure, it is highly unlikely that such a trend
can reverse itself. Given this present state of the Internet,
the necessity of Cyberlaws becomes all the more important. Q.2.
Why is there
a need for Cyberlaw ? When
Internet was developed, the founding fathers of Internet hardly
had any inclination that Internet could transform itself into
an all pervading revolution which could be misused for criminal
activities and which required regulation. Today,
there are many disturbing things happening in cyberspace.
Due to the anonymous nature of the Internet, it is possible to
engage into a variety of criminal activities with impunity and
people with intelligence, have been grossly misusing this aspect
of the Internet to perpetuate criminal activities in cyberspace.
Hence the need for
Cyberlaws. Internet
is believed to be full of anarchy and a system of
law and regulation therein seems contradictory. However,
cyberspace is being governed by a system of law and regulation
called Cyberlaw. There is no one exhaustive definition of the
term “Cyberlaw”. Simply
speaking, Cyberlaw is a generic term which refers to all the legal
and regulatory aspects of Internet and the World Wide Web. Anything
concerned with or related to or emanating from any legal aspects
or issues concerning any activity of netizens and others, in Cyberspace
comes within the ambit of Cyberlaw.
The growth of Electronic Commerce has propelled the need
for vibrant and effective regulatory
mechanisms which would further strengthen the legal infrastructure,
so crucial to the success of Electronic Commerce. All these regulatory
mechanisms and legal infrastructures come within the domain of
Cyberlaw. Cyberlaw
is important because it touches almost all aspects of transactions
and activities on and concerning the Internet, the World Wide
Web and Cyberspace. Initially it may seem that Cyberlaws is a
very technical field and that it does not have any bearing to
most activities in Cyberspace. But the actual truth is that nothing
could be further than the truth. Whether we realize it or not,
every action and every reaction in Cyberspace has some legal and
Cyber legal perspectives. Yes,
Cyberlaw does concern me. As the nature of Internet is changing
and this new medium is being seen as the ultimate medium ever
evolved in human history, every activity of yours in Cyberspace
can and will have a Cyberlegal perspective.
From the time you register your Domain Name, to the time
you set up your web site, to the time you promote your website,
to the time you conduct electronic commerce transactions on the
said site, at every point of time, there are various Cyberlaw
issues involved. You may not be bothered about these issues today
because you may feel that they are very distant from you and that
they do not have an impact on your Cyber activities. But sooner
or later, you will have to tighten your belts and take note of
Cyberlaw for your own benefit. Today,
the awareness about Cyberlaw is beginning to grow.
Many technical experts in the beginning felt that legal
regulation of Internet is not necessary. But with the rapid growth
of technologies and Internet, it is crystal clear that no activity
on Internet can remain free from the influence of Cyberlaw. Publishing
a Web page is an excellent way for any commercial business or
entity to vastly increase its exposure to millions of persons,
organisations and governments world-wide. It is that feature of
the Internet which is causing much controversy in the legal community. Yes,
Cyberlaw is constantly being evolved. As new and new opportunities
and challenges are surfacing, Cyberlaw, being a
constantly evolving process, is suitably modifying itself
to fit the call of the time. As the Internet grows, numerous legal
issues arise. These issues vary from Domain Names, to Intellectual
Property Rights to Electronic Commerce to Privacy to Encryption
to Electronic Contracts to Cybercrime to Online Banking to Spamming
and so on. The list is very long. Q.8.
What is the stage of development of Cyberlaw today ? Cyberlaw
today, on a global scale,
is at an early stage of development. Just as different
civilizations and societies in history have taken time to develop
and refine their legal systems, in the case of Internet too, it
will take some time for Cyberlaws to be fully developed and refined.
Different countries in different parts of the world are adopting
their own strategies to this new field.
Q.9. What is an IP address ? The Internet is a network of computers.
Each computer on the said network
has its own distinct entity and presence. That is the reason why
every computer is given a distinct Electronic Address called
the Internet Protocol
address or in short IP address. This IP address is given by
numerical values like 202.54.15.75.
The IP address is just like any telephone number which
identifies a particular computer on the Internet. Since it is not possible to remember each
and every numerical value of an IP address, the system of
domain names evolved. Internet
domain names, in a common man's language, are used as an
easy-to-remember alias which point to a specific IP address.
The dominant purpose
of the domain name is simply to provide an easy method for remembering
another's electronic address. It's a unique name used to
identify, among other things, a specific Web site.
Thus a typical domain name would be http://www.indiainfoline.com. Any domain name consist of
two components, namely the top level domain name(TLD) and
a second level domain name. Thus in the said example, http://www.indiainfoline.com,
".com" would be the top level domain name while
"indiainfoline" would be second level domain name. As on date, there are two categories of top level domain names. In the first category comes the domain names .com, .net, .org, .edu. When the system of registering domain names began, the norms were that the .com name is to be given to commercial organizations, while others such as .org, .net, .gov and .edu are to be assigned to non-commercial organizations, network providers, government agencies and educational institutions respectively. However, as time has passed, due to the enhanced volumes of domain name registrations, the said norms have been abandoned and today anyone can, without any restriction of any kind whatsoever, can register any domain name. The domain names were initially registered
by Network Solutions only, who had the sole monopoly to register
the said TLDs. This monopoly of Network Solutions continued for
many years and only in 1999, the Internet Corporation Assigned
Names and Numbers (ICANN) allowed other accredited registrars
to register domain names. Today there are more than 100 registrars
with whom one can register a TLD. The unique feature of domain names is that
the said domain names are given on
"first come, first served" basis.
This feature of domain names gives rise to numerous
legal issues and disputes.
Thus the important thing in domain names registration is
speed. To take an example, the domain name www.microsoft.org was
available and was registered by Amit Mehrotra much before Microsoft
Corporation could think of it. This led to numerous ticklish legal
issues. Microsoft Corporation, despite having the trademark
Microsoft, could not get the domain name www.microsoft.org because
of the "first come, first served" criteria of domain
name registration. Q.15. How
are Domain Names different from Trade Marks ? To put it simply, Domain names are indeed
different from trademarks. While it is possible
that the same trademark may be registered
by different persons in different categories and
different lines of businesses, it may be possible to only
register one domain name corresponding to such trademark. This
aspect of domain names has led to numerous legal problems. The Internet history has shown that while
some corporate players have been willing
to and have indeed coughed up money to get back their legitmate
domain names, the recent trend is more towards taking the cybersquatters
by the horns and fighting them out by legal processes. Courts
throughout the world, including in India,
have been proactive and have been granting injunctions
to stop cybersquatters from operating their web sites. The latest breath of fresh air in the fight
against Cybersquatting has been the Uniform Domain Name
Dispute Resolution Policy which has been duly approved by
ICANN. Under the said Domain Names Dispute Resolution Policy,
a summary procedure is adopted to adjudicate the complaint of
any complainant relating to any domain name on payment of
processing fees. This policy has been in operation since the end of last
year. When Internet was developed, the founding
fathers of Internet hardly had any inclination that Internet
could also be misused for criminal activities.
Today, there are
many disturbing things happening in cyberspace. Cybercrime
refers to all the activities done with criminal
intent in cyberspace. These could be either
the criminal activities in the conventional
sense or could be activities, newly evolved with the growth
of the new medium. Because of the anonymous nature
of the Internet, it is possible
to engage into a variety of
criminal activities with impunity and people with intelligence,
have been grossly misusing this aspect of the Internet to perpetuate
criminal activities in cyberspace.
The field of Cybercrime is just emerging and new forms
of criminal activities in cyberspace are coming to the forefront
with the passing of each new day. There can be no one exhaustive definition
about Cybercrime.
However, any activities
which basically offend human sensibilities, can also be included
in its ambit. Child Pornography on the Internet constitutes one serious Cybercrime.
Similarly, online pedophiles, using internet to induce minor children
into sex, are as much Cybercriminals as any others. Cybercrimes can be basically
divided into 3 major categories being Cybercrimes against persons,
property and Government. Q.23. Tell us more information about Cybercrimes against persons ? Cybercrimes committed against persons include various crimes like transmission of child-pornography, harassment of any one with the use of a computer such as e-mail, and cyber-stalking. The trafficking, distribution,
posting, and dissemination of obscene material including pornography,
indecent exposure, and child pornography, constitutes one of the
most important Cybercrimes known today. The potential harm of
such a crime to humanity can hardly be overstated. This is one
Cybercrime which threatens to undermine the growth of the younger
generation as also leave irreparable scars and injury on the younger
generation, if not controlled. Cyber harassment
is a distinct Cybercrime. Various kinds of harassment can
and does occur in cyberspace, or through the use of cyberspace.
Harassment can be sexual, racial, religious, or other. Persons
perpetuating such harassment are also guilty of cybercrimes. Cyber
harassment as a crime also brings us to another related area of
violation of privacy of netizens. Violation of privacy of online
citizens is a Cybercrime of a grave nature. No one likes any other
person invading the precious and extremely touchy area of his
or her own privacy which the medium of Internet grants to the
netizen. The second category of Cybercrimes
is that of Cybercrimes against all forms of property. These crimes
include unauthorized computer trespassing through cyberspace,
computer vandalism, transmission of harmful programs, and unauthorized
possession of computerized information. Hacking and cracking are amongst the gravest Cybercrimes known till date. It is a dreadful feeling to know that a stranger has broken into your computer systems without your knowledge and consent and has tampered with precious confidential data and information. Coupled with this , the actuality is that no computer system in the world is hacking proof. It is unanimously agreed that any and every system in the world can be hacked. The recent denial of service attacks seen over the popular commercial sites like E-bay, Yahoo, Amazon and others are a new category of Cybercrimes which are slowly emerging as being extremely dangerous. Using one's own programming abilities as also various programmes with malicious intent to gain unauthorized access to a computer or network are very serious crimes. Similarly, the creation and dissemination of harmful computer programs or virii which do irreparable damage to computer systems is another kind of Cybercrime. Software piracy is also another distinct kind of Cybercrime which is perpetuated by many people online who distribute illegal and unauthorised pirated copies of software. Q.27. What is Cybercrime against Government ? The third category of Cybercrimes
relate to Cybercrimes against Government. Cyber Terrorism is one
distinct kind of crime in this category. The growth of Internet
has shown that the medium of Cyberspace is being used by individuals
and groups to threaten the international governments as also to
terrorise the citizens of a country. This crime manifests itself
into terrorism when an individual "cracks" into a government
or military maintained website. Since Cybercrime is a newly specialised field, growing in Cyberlaws, a lot of development has to take place in terms of putting into place the relevant legal mechanism for controlling and preventing Cybercrime. As of now, there is absolutely no comprehensive law on Cybercrime any where in the world. This is reason that the investigating agencies like FBI are finding the Cyberspace to be an extremely difficult terrain. These various Cybercrimes fall into that grey area of Internet law which is neither fully nor partially covered by the existing laws and that too in some countries. Q.29. Is there any recent case which demonstrates the importance of having Cyberlaw on Cybercrime within the national jurisdictions of countries ? The most recent case of the virus "I love you" demonstrates the need for having cyberlaws concerning Cybercrimes in different national jurisdictions. At the time of the web publication of this feature, Reuters has reported that "The Philippines has yet to arrest the suspected creator of the 'Love Bug' computer virus because it lacks laws that deal with computer crime, a senior police officer said". The fact of the matter is that there are no laws relating to Cybercrime in the Philippines. The National Bureau of Investigation is finding it difficult to legally arrest the suspect behind the 'Love Bug' computer virus. As such, the need for countries to legislate Cyberlaws relating to Cybercrime arises on an urgent priority basis. Q.30. What is the approach adopted by US Courts regarding Cybercrimes ? The courts in United States of America have already begun taking cognizance of various kinds of fraud and Cybercrimes being perpetuated in Cyberspace. For the victims of various Cybercrimes, there is no one healing remedy. They can either file for civil damages or wait for the culprits to be nabbed and then to be tried under provisions, existing or envisaged which are not comprehensive at all. However, a lot of work has to be done in this field. Just as human mind is ingenious enough to devise new ways for perpetuating crime, similarly, human ingenuity needs to be channelised into developing effective legal and regulatory mechanisms to control and prevent Cybercrimes. Q.31. Why do we need to fight Cybercrime ? We all must remember that Cyberspace is a common heritage of ours which we have inherited in our life times from the benefits of ever growing technologies. This Cyberspace is the lifeline of the entire universe and given its irreversible position today, it is the duty of every netizen to contribute toward making the said cyberspace free of any trouble or cybercrime. To rephrase the famous words of Rabindra Nath Tagore in today's context, "Where the Cyberspace is without fear or crime and the head is held high, where knowledge is free, where tireless striving stretches its arms towards perfection, ….. into that cyber heaven of freedom, O my father, let our humanity awake." For any Cyberlaw query, Pavan Duggal can be contacted at his email pduggal@vsnl.com , pavanduggal@hotmail.com. |
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