CYBER PRUDENCE

Mr. K. I. Pavan Kumar

INTRODUCTION:

A disciple asked his Sage "what is cause and effect" Sage reacted aggressively and slapped on disciple’s face. The wounded disciple kept quite. After some time, seeing the wound of his disciple, Sage asked the disciple to "show the slap". Then disciple pointed at his wound, sage said that, the wound is the result of his slap and that is not the slap itself. Disciple then understood slap is the cause and wound is the effect.

Before any sagacious man slaps on us better we understand the relationship between ‘cyberspace’ and ‘information technology’. The fundamental question to be clarified is whether technological advancement has created cyberspace or discovered cyberspace? As most of the technologists believe that cyberspace is space comprising of computers, telecommunications, software and data in a more abstract form and as they do not attribute any significant character to the ‘space’ perhaps, they believe that cyberspace is created by the technology.

On the other hand Sociologists believe that cyberspace already exists it is not created by technology perhaps the technological innovations might have facilitated us in capturing or utilizing the cyberspace (though not entirety). It cannot be said that at the early days of technological innovations there was ‘a less cyberspace’ and now these is a ‘larger cyberspace’ because of the technological advancement. If this is true one may be interested in evaluating the increase of cyberspace in proportionate to the technology advancement and come up with a mathematical formula, which is absurd.

As is pointed out no technological advancement made so far in human history could create a separate platform for the operation of law then how come this Information technology influencing law? Is information technology so powerful that it redefines the legal systems itself? The answer is ‘NO’ Information technology is not powerful in redefining the legal systems, but law is sensitive. It cannot leave any segment of society susceptible to malicious intruders; it cannot leave any factor influencing the human behavior uncontrolled. Cyberspace no doubt has vital influential power over individuals because; cyberspace is nothing but an extension of the idea of virtual reality. It should be viewed as an extension of human experience having at the core of it the matrix or the Net.

We get annoyed if we receive unsolicited mail offering money without work, we get disturbed when we see pornographic pictures downloading unexpectedly. We get irritated when our mailbox is full of unnecessary material. This indicates that the existence of the space in its generic cense (geographic) though in question it does exists in our emotional fields.

"The Net… joins all of the computers and telephones on Earth. It is formed by radio, telephone and cellular links with microwave transmitters beaming information into orbit and beyond. In the 20th century, the Net was only accessible via a computer terminal, using a device called a modem to send and receive information. But in 2013, the Net can be entered directly using your own brain, neural plugs and complex interface programs that turn computer data into perceptual events".

Therefore, it is clear that ‘cyberspace’ is an extension of ‘human experiences’, which is with in the gamut of Law.

Many names have been developed to describe this growing area: the Net, the World Wide Web, the Cloud, the Matrix, the Metaverse, the Datasphere, the Electronic Frontier, and the Information Superhighway.  With the increasing development of this virtual area cyberspace is becoming a way of life.  Although cyberspace also referred as the Internet both should not be intermixed. One is instrument to access the other. The path and destination should not be equated.

Dewitt, defines cyberspace by using William Gibson’s view, which describes cyberspace as an imaginary realm where computer information resides. Gibson’s definition of cyberspace sets into the reader’s mind as a science-fiction fantasy. Latter Dewitt describes cyber space as "today’s increasingly interconnected computer system" he maintains that cyberspace is pure genius because what was once an imagined thing of a writer has become a reality.

There is also a view that as law believes in boundaries, any place which does not posses boundaries would not fall with the gamut of legal jurisprudence, As Karnow has said "it is in this digital soup, this is hyper relational environment, that we see the death of the barrier… what we do have is, the network and the death of dichotomy. This is fatal for the legal system, which depends, for its very life, on the existence of barriers – after all, that’s what the law does: it utters the line between this and that, and punishes the transgressor."… by E. A. Karnowbut the more pertinent thing in legal studies is it should deal with persons than the place.

Law and Jurisprudence:

As we are talking about Cyber jurisprudence it is pertinent to note the inter-relation ship between law and jurisprudence. To explain the term law, if I use my classroom example that would be easier to understand.

Law is like a black dot on a white cardboard (picture –2.1)

The black dot can be interpreted in an innumerable number of ways.          

one may call it a ‘circle’, the other may call it a ‘stigma’ on

wpe1.jpg (1600 bytes)  picture–2.1

Similarly the term ‘law’ may be interpreted in many ways like, one may feel law as command of sovereign (Austin’s School of law), other may feel that as, it emerged from the customs, it should be flexible for the common usage The other perception is law is rightness (Ethics) of will, and this can never be enforced by external legislation. But must be the free choice of the individual. The others say that law is the science of the totality of the rules for which an external legislation is possible’ (Nomology). By reading this paragraph one should not jump to hasty conclusions like, law is vague and unscientific etc but instead, one should keep in mind that law is a ‘perceptual science’. To put it in other way a notion, which has majority approval, would emerge as a ‘principle’ and set of such principles would thus form Jurisprudence. Therefore, jurisprudence is nothing but set of majority accepted principles of a given society. This analogy is proved in the case how jus civil and the jus gentium were merged into the broad stream of Roman law, destined to fertilize all the legal systems of the world

Is Internet a vanishing point of law!

Law cannot function in vacuum it seeks a definite place and people voluntarily abiding to it. If law requires some place to be operated and few individuals consciously abiding to it, then what is the need for recognizing group of individuals as society? And what is the need for making separate rules for their governance? Above all, what makes a group of individuals as society? Is it mere physical existence or is their any other thing that substantiates the matter? The need for resolving these questions has come when we are using the term "cyber society" and thinking about its nature.

The technological inventions made so far have created and developed "products" whereas information technology has facilitated "processes" like process of buying, communicating, sharing ideas so an and so forth. This technology enables people to meet, talk and live in cyberspace in the ways not possible in the real space. The cyberspace is more intimate, accurate and unceremonious. The internet as a medium of communication has grown exponentially with the high participation of individuals facilitating each other with mailing, shopping, sharing online news etc. The ability of online users to interact in sophisticated ways form "virtual communities".

The term ‘cyber society’ or ‘cyber community’ is used very insecurely by lawyers and research scholars to refer internet users. But to refer a group of individuals as society or community apart from many other commonalities, the interest (proprietary and personal) of the subjects over the field of operation should also be similar though not identical. Perhaps the reason for the tossing of the coin "cyber society" "cyber community" by the social thinkers is its accessibility to every individual. And this very accessibility paved the way for sharing of ideas, moods and for building of common interests and consensus. Now law has to be built on the premise of this consensus itself.

Law has to identify the common principles on which the cyber society is working, what norms are governing them? And what customary practices are followed in cyber space? Etc and out of such commonalities like customary practices, cultures, usages and the basic norms, law has to formulated. In the words of Savigny " Law grows with the growth and strengthens with the strength of the people and its standard of excellence will generally be found at any given period to be in complete harmony with the prevailing ideas of the best class of citizens". If this ‘prudence’, is not shown by the subjects of law (netizens/citizens) then such society will be put to nullity. This nurturing of society, whether virtual or physical, is the job of jurisprudence. Therefore every society has to know the philosophy of law governing it and abide to that. As far as physical society is concerned the jurists like Sir John Austin, Salmond, Sir Frederick Pollock etc have evolved many schools of thoughts and gave possible propositions to the jurisprudence, but for cyber society, jurisprudence is not yet formulated and is still in the realms of legal academia. But contrary to this the ‘cyber society’ is more of a reality today than it was ever before. On the one hand the Internet has a stake in the economies of the world while on the other it has gripped popular imagination by providing easy communication, entertainment, leisure and relaxation. The Internet is continually changing the dynamics of the world. The law needs to be alive to this change in society. Roscoe Pound once said, "Legal order must be flexible as well as stable. Law must be overhauled continuously and refitted continually to the change in social life which it is to govern". With that goal in mind, the Indian Parliament went about legislating the first cyber law and christened it the Information and Technology Act, 2000.

The Need of Law in Cyber Society

The purpose of law is in the conflict itself. Where there is no dispute or confrontation of interests there the need for law is nil. And "Conflicts arise when there is some thing to share" more so when the shared object is scarce. This is as much true of the family or neighborhood as the "Cyber Space". When conflicts arise in Cyber Space, we need "Cyber Laws" to restore order to the society. When we are discussing the emerging field of "Cyber Laws" we need therefore try to understand how and why conflicts arise in the "Cyber World". If the conflicts in cyberspace are not making any substantial difference with the conflicts of physical space then the already existing laws, which are governing the physical space, are highly sufficient to regulate cyber space as well, we need not to go for codification of a separate legislation and for evolving new principles, but the disputes in physical space and the disputes in virtual space are entirely different in nature. Not to go in detail the matters of Jurisdiction, Proprietorship, liabilities of intermittent parties like ISPs (Internet Service Providers), the doctrine of choice of law, principles of defamation, are all put to scrutiny. To put it more understandably the reason for a separate law is "Law" being a "Code of Conduct declared as the most suitable for a given society", law need to make itself suitable as society changes.

This analogy can be extended to the "Cyber Society" as well. The reason for realizing the need for cyber laws even before cyberspace takes its shape, perhaps, is because of claiming non-cyber rights as cyber rights. As long as the trademark owners were away from the Internet world, there were no domain name disputes. This chaotic period of time would churn fundamental principles of cyber law and lead to the evolution of cyber jurisprudence. We should see that there should not be conflict or overlapping between rights of cyber society and non-cyber society. For instance, the doctrine of adverse position has no role to play in cyber space. Because of this divergent issues involved unless we come up with sound principles of jurisprudence applicable in cyber space even law cannot control the cyber space entirety.

Cyber Etiquettes are not antiquities:

The role of ethics or etiquettes in cyber realm are very high more particularly when cyber space is unorganized, checks and balances over the cyber activities are not at standardized and where cyber crime investigating institutions are not established. The alternative to curb the immorality is, ‘regulating oneself’.

Unlike in physical space, the regulation of individual behavior in cyberspace is nearer to impossible unless, the governed is ethically sound. Ellickson identifies five "controllers" that can provide substantive rules governing an individuals behavior (see picture- 4.2)

Controller

Substantive Rules

Sanctions

The actor him/herself

Personal ethics

Self-sanction

Second party controllers. i.e. the person acted upon.

Contractual provisions

Various self-help mechanisms

Non-hierarchically organized social forces

Social norms

Social sanctions

Hierarchically organized non-governmental organizations

Organization rules

Organization sanctions

Governments

Law

State enforcement, coercive sanctions.

(Picture- 4.2)

Though all the controllers are equally important at their respective level of control, personal control is more suited to the present context. What we call "cyberspace" can be characterized as a multitude of individual.

As Oliver Williamson rightly points out about "legal centralism"(a theory focus on alternative sets of substantive laws-with an eye towards determining which set is optimal in terms of some pre-defined criterion such as aggregate welfare) this is more appropriate model especially when some law making body is in a position to choose the optimal set of laws or when people are in search of an appropriate body to regulate there conduct. At present ‘ethical centralism’ is needed.

It is agreed that we cannot construct watertight compartments for ethics. At the same time we do not want to be skeptical about the role of ethics in regulating cyber society. Because every theory evolved in regulation of ‘real society’ has its roots in ethics, even the mostly accepted and contemporarily suited theory of Austin’s positive law applies against those who has an etiquette of respecting the sovereign and accepting code of conduct prescribed by him as ‘command’ and succumbs his head before executors in case of breach of the command.

Ronald Dworkin, scholar, philosopher and educator of present day do believe in the right to moral independence. He empathically maintains that people have a right to access those things that they think will make them happy. Others have no right to stop them from gaining these things just because these other people do not approve of how they want to live their lives. More interestingly, he opines that, the prescribed ideology behind making law is not just reporting common consensus or to function like a tool to achieve society’s policy goals but rather Dworkin proposes law to be ethical. Therefore, the ethical issues are still relevant even we are proceeding towards more technical and technological life.

Approach of law:

A fundamental theme running through most cyberpunk literature is that (in the near future Earth) commodities are unimportant. Since anything can be manufactured, very cheaply, manufactured goods (and the commodities that are needed to create them) are no longer central to economic life. The only real commodity is information. With information so fundamental to the business world, the mechanics of business are vastly different from those we know at present. In our current product and service based business world, we are used to dealing with items that can be stamped, traced, taxed, counted and measured. When the primary commodity is information, these attributes no longer apply and the structure of the business world is different. Many people have already recognized this,

It is an admitted fact that one or the other devise, whether ethical (self) or institutional, is needed to regulate any activity carried on in cyber space, but interestingly, one important point is missing from our analysis that is what to regulate? Is it flow of information or is it the place where information is flowing? Or is it the subjects (individuals) who are accessing the information to be regulated? If it is the place, where information is flowing, to be regulated then invariably law has to attribute some significant legal status to the cyber space and accordingly it has to deliberate upon the character, nature, jurisdiction and functions of the cyber space.

If the subject matter of law are the individuals, as they be in physical space using physical devises itself, already existing laws are suffice to clampdown misuse of IT and to curb technological mal practices. We need not to search terminologies to name the crime committed as well no need of establishing new institutions like cyber police station, cyber cops etc. But the difficulty in this approach is, at times it becomes impossible to trace out individual behind a crime committed and it is impracticable to expect that every cyber offence originate from physical space.

If it is the ‘information’, which is subjected to the regulation by the law then the horizons of the IT law should be so expended that it deal with production, distribution, dissemination, processing of information as a whole as most of the Communication Acts does in the resent past, like German Information and Communication Services Act (1998) and British White Paper, Proposing the creation of a Cross-media regulatory authority, published in the year 2000 and similarly The Indian Communications Convergence Bill 2000 which does not attribute much difference between the e-mail viewed in television and laptop. This approach of law wither away the concept of cyber crime, cyber theft so on and so forth and perhaps may swab lot of confusion about Information space and help us in understanding the nature of cyber activities. But difficulty in equating laws of information technology with communication regulations primarily is the communications regulations deal information more or less as a ‘product’ where as the information technology is a process. Overlooking of this significant difference may pose serious problems.

Theories on Information Law approach:

From the above, two schools of thoughts emerge one approach is propounded by Professor Cohen-Jehoram, he explains the manner how law regulates information with three concentric circles ( See picture-6.3).

                                        Copy Rights Law                                                        Media Law

wpe1A.jpg (4324 bytes)

                                        Information Law

(Picture-6.3)

He believes that individual at the out set establishes copyrights over a subject matter and then media law governs the dissemination of the same thirdly information law deals with the production, processing and distribution of information as a whole not just publicly disseminating information. In spite of the criticisms like this model failed in mapping the legal treatment of information, it has not established a clear reason behind positioning copyright law at the center or it does not explained the relation between media and information law etc, this theory has established the genesis of information law approach.

Professor Dommering propounds the second school of thought; he opines that the study of information law is the study of the communication as a whole. To put his theory diagrammatically (see Picture –6.4)

wpe1D.jpg (12830 bytes)

    (Picture-6.4)

    The Professor Dommering theory attracts the attention of legal scholars because his theory splits information technology in to communication processes whereby facilitating regulation of each segment of information communication. The beauty of this theory is, every law like copyrights, media and communication so on and so forth have their own respect fields of operation and no single law has occupied center position. Professor Dommering’s theory broadens the scope of Information technology laws. And clear demarcation of communication regulations can also be seen. If Indian technology law adopts this approach perhaps the Indian Communications Convergence Bill should be passed. Because this bill unifies all communication systems, and brings all of them under one regulatory body.

Property – cyber space:

‘Proprietary ship’ an age-old concept of mankind, has always been brought to discussion, whenever threat to its existence has come. All the time man tried his best to protect his proprietary ship over the things he has access.

This terms is used in dissimilar ways by many schools of thoughts,

  1. In its widest sense, includes all the legal rights of a person of whatever description.
  2. It includes proprietary rights of a person and not his personal rights
  3. In other sense, the term property includes only those rights, which are both proprietary and real.
  4. It includes only corporal rights or rights of ownership in material things.
  5. It includes greatest rights of enjoyment (Austin)

Though, many jurists tried define property, but nevertheless each definition has its own contextual significance. When it is said that property includes all legal rights, they certainly mean it and that perhaps suits to the then prevailing legal and social conditions. But when the circumstances have changed they went in search more appropriate definition. As is rightly pointed out by Erle J.: " The notion that nothing is property which cannot be earmarked and recovered in detenu or trover, may be true in an early stage of society when property is in its simplest form and the remedies for the violation of it are also simple, but it is not true in a more civilized state when the relations of life and the interests arising therefrom are complicated"

It seems in the wake of Information Technology the proprietary rights of interent users are going to be a complex problem. Questions pertaining to tangibility, intangibility, movability and immovability of cyber property and can web page be sold, leased, transferred, bequeathed, is total alienation is possible or not? So on and so forth are going to occupy center points of ‘cyber prosperity jurisprudence’

But by using cyberspace as a metaphor we can resolve most of the problems of cyber proprietary ship. The metaphor universally accepted with regard to property is ‘property is bundle of rights’ and the central tenet of property jurisprudence is that, property is the legal right to exclude others. To put it more clearly, property rights in the internet are negative rights, they lay what is not jurisdiction rather what is jurisdiction. In other words as long as a computer does not violates the rights of others such computer is said to have been within its jurisdiction. This refers that wherever a computer interacts with other computer transgressing its property lines there and then such computer is said to have violated the legal rights of the others. Therefore it is the violation of legal rights of other that will mark boundaries for proper use.

The primary question that needs to be answered is whether website constitutes property or not? Though we do not have any legal pronouncement as on today directly dealing with the nature of the websites, we can consider a website as property because, we refer websites as ‘sites’ like any other physical place, and we use the terms like ‘web traveling’, ‘visiting’ etc which in turn establish most of the features of physical properties.

Interestingly the trespass against chattels has also found place in cyber space. In the case of ebay vs Bidder’s edge court emphasized on chattel trespass. In the case of State v. McGraw court held that misappropriation of computer resources could constitute trespass against chattel. In another casethe suit is one for defamation claim under the common law, as well as one for unauthorized accessing of e-mails from the personal e-mail account of the plaintiff. Which is challenged as unauthorized intrusion in the personal domain of the plaintiff. The court held that an email account would constitute a requisite place. The court held that as per The Electronic Communications Storage Act, Section 2701 "it is violation for anyone who intentionally accesses without authorization a facility through which an electronic communication service is provided and thereby obtains, alters or prevents authorized access to a wire or electronic communication while it is in electronic storage in such a system". Court observed that the electronic mail stored on Microsoft’s server is with in the definition of electronic storage.

With this case it is clear that electronic mail stored on Microsoft’s server constitutes property, and invasion of it would constitute violation of rights.

It is clear from the above facts that, well (pre) defined principles of property are applied in cyberspace. But, interestingly the cyber property rights and traditional property rights should not be viewed on same parlance. It seems that the judiciary intends to fit this abstract space in to strict jackets of traditional property principles. To quote one basic reason, cyber space is not a physical space and clear demarcation of public domain and private domain is impracticable which requires lot of judicial maturity.

Cyber invasion:

We understood sociological perspective of cyber space invasion, but the legal consequences of such invasion are some thing different. Some body invaded cyber space to disseminate knowledge, to inform, to facilitate, to govern, to serve etc and the others have invaded cyberspace to unshackle the foundations of most (presumably) secured nations, to hack information stored in a remote computer, to destroy, copy documents kept in a computer, to defraud and to bring financial crisis in the country etc., enlisting the reasons for invasion and kinds of invasions would defeat the ends of our discussion. According to statistics provided, in the year 2002, 625 million were accessing web sites on the internet; the current estimates may cross 700 million by the end of 2003. So any useful services provided on internet would facilitate nearly 700 million people perhaps no human could physically reach these many people in his lifetime as is rightly pointed out by James Madison " Knowledge will forever govern ignorance, and a people who mean to be their own governors, must arm themselves with the power that knowledge gives. A popular government without popular information or the means of acquiring it, is but a prologue to a farce or a tragedy or perhaps both". But if we look the amount of crime growth, the complaints filed in 2002 are 1,351,897 (3,704 per day) and Complaints filed in the year 2001 are 701,939 (1,923 per day) it clearly indicates that using computer is plugging to liability itself.

Malicious invasion:

Broadly speaking there are two kinds of malicious invasions one is technical and other is non-technical invasions- the examples for technical invasion are destruction of digital information through use of viruses, trojan horses, cyber punks, phakers etc which requires technical know-how. Secondly non-technical invasion, for example some hackers enjoy cracking systems. They do not intend to commit any further crime. This is debatable whether such invasion constitutes crime or not, in its strict sense this kind of invasion may be considered as trespass.

According to the recent statistical estimates the malicious invasions over cyber space are:

This kind of enormous increase of cyber crimes are reported in the countries like U.S where as in India though crimes are not reported, they are being committed and the consequent results are going un noticed. Before situation goes out of our hands better we get ready with all possible remedies.

Cyber Scandalous:

Business Opportunities scam:

This scam talks about easy earnings and claims that this business requires no selling, buying, meeting people on fields. They come with an idea of making money through internet business. Most of the internet users are familiar with this kind of mails but surprisingly if any one indulges in this kind of business perhaps he can never recover.

Bulk email scam:

Bulk e-mail scandal offers thousands of e-mail address on payment of some money or they offer services to send mail to thousands of addresses charging some amount for the same, most of the business people would do this with an intention to reach out individuals but they forget that selling or buying ones e-mail address without taking his consent is crime.

Chain Letters Scam:

In this scam, the recipient of e-mail will be asked to replace his name against a name appearing in the list of names by paying very meager amount of rupees and advises to forward it to some body though bulk of e mails. To a common man perhaps this may not be a difficult to pay meager amounts but ultimately after passing of some time one would find that thousands of rupees are accumulated out of such mail and thousands lf e mail addresses are attached to the mail and any good business man could make money out of this resource.

Work at home scam:

You receive a mail that promises constant income flow without putting much effort. It asks us is to follow the instructions sent through mail from time to time. Initially it works well, we feel comfortable in working with that. But after some time it asks us to deposit some amount to continue with them further, we be automatically inclined to deposit amounts as soon as they receive deposits they stop functioning. And you don’t receive any reply or e-mail from them further.

Health and diet scam:

Pills that let you lose weight, the exercises that let you appear smart, slim, health and it offers herbal formula that liquefy our fat cells, in reality these gimmicks do not work and no email can change our fat or fate. We may even receive case record of cured customers to authenticate the information if we do not exercise our discretion intelligently we may do away with loses.

Effort less income:

Hurry………….. lots of money waiting for you, we will send 5 lakhs if you send 5/-…………. don’t miss it ……………..this is world’s best easy money making policy recognized and approved by government………….. If these systems worked, would not every body be using them? We need to possess cyber sense than cyber law.

Free Goods:

Some e-mail messages offer valuable goods like computers, other electronic items for a very scanty amount, provided we join in a club and we are also asked to pay some amount to join the club. Subsequently they ask us to introduce few more friends to the club so that we could get the item free of cost. This kind of business has become very common in the cyber world. They will certainly collapse leaving the poor customer with bare hands.

Investment Opportunities:

Scammer promises outrageously high rates of returns to our investment, with no risk. Generally initial investors receive some applauding electronic letters and keeps them under impression that scammer is spending their amounts in a proper way. But after accumulation of some amount all of sudden scammer shuts down all his services and we receive no response.

Cable Discrambler kits:

We will be offered through email or though a popping advertisement to buy a kit to assemble a cable discrambler with which you can watch cable television without paying fee for cable operator. But ultimately after all your efforts the devise that we have built probably won’t work.

Vacation pricing promotions:

Some times we receive electronic certificates congratulating us for winning fabulous prices, of free trip to Switzerland…etc. all these are vacation pricing promotion scams, we should not get exited with this kind of mails instead we should be more alert.

Automatic Debit Scams:

Automatic debiting of our checking account can be a legitimate payment method; but fraudulent people are abusing the system. We either get a postcard or a telephone call or e-mail saying you won a free prize or can qualify for a major credit card: if we respond to the offer, the telemarketer or webmarketer often asks you right away," Do you have a checking account?" if you say " yes", the telemarketer/webmarketer then goes on to explain the offer. The telemarketer/webmarketer may ask us to type number printed at the bottom of our credit card. Once a telemarketer or webmarketer has your financial information obviously we are inviting troubles.

Credit repair scam:

Credit repair scams offer to wipe out accurate negative information from your credit file so you can qualify for a credit card, auto loan, home mortgage, or a job. If we follow their advice by lying on a loan or credit application, misrepresenting our Staff Number from Banks, PAN number from the Revenue Service under false pretenses, we will be committing fraud.

Education and degree scams

Some time we receive mails inviting us to go for higher education. Scam schools often use names that resemble those of legitimate colleges and universities. These schools does not identifying information, a physical address, or contact information other than a toll –free telephone number, they describe the traditional education with negative phrases, most surprisingly the period of completing the degree offered would be 25 days. This clearly indicates that we need cyber culture and sense to work in cyber space.

There are many number of scams that are identified in the internet they are

The list of scams enlisted above is not exhaustive rather it is illustrative. It is argued that cyber crimes are distinct from physical crimes. But there is a common thing, which is flowing under all crimes no matter whether they are committed in the cyber space or physical space i.e. every time criminal is more intelligent than the victim added to that, innovative Technology also brought to the use by criminals than by the governments. Above all the legal implications involved to the contracts entered through e mail is enhanced in the case of Shattulk v. Klotzbachit was held that e mail creates contracts binding on the parties who use it. Both buyer and seller should be careful while corresponding with each other through e mail.

What can be done to curtail these scams?

For a positive upshot of ‘cyber jurisprudence’ in its space, it demands for ‘Real knowledge’ about virtual space at the individual level, ‘Consensual knowledge’ at the level of institution and ‘Doctrinal knowledge’ at the judicature level so that crystallization of cyberspace would be possible.

Real knowledge – virtual space:

The term real knowledge signifies realistic knowledge which is more practicable in cyber space because, thin line demarcates fact from fiction and more so in cyberspace. William Gibson, author of "Neuromancer," published by Phantasia Press early in 1986.

Gibson writes about fast increasing use of Cyberspace as, "a consensual hallucination experienced daily by billions of legitimate operators, in every nation, by children being taught mathematical concepts…A graphic representation of data abstracted from the banks of every computer in the human system. Unthinkable complexity. Lines of light ranged in the non-space of the mind, clusters and constellations of data. Like city lights, receding…

This indicates that almost all activities that we do in physical space can be done in cyberspace with all its decency, intimacy and accuracy. There are as many experiences of cyberspace as there are perceptions of real place. Cyber space has become intensely social. Two, considerably, recent litigations over two federal statutes regulating sexually explicit content on the Internet has resulted in solid judicial characterizations of cyberspace which are, Reno, Attorney General of the United States, et al. v. American Civil Liberties Union et al, and the other case is American Civil Liberties Union, et at v. JANET RENO, While addressing the importance of the cyber space and internet, it was said that "the internet is a giant network that interconnects innumerable smaller groups of linked computer networks: a network of networks… the nature of the internet is such that it is very difficult, if not impossible, to determine its size at a given moment.…the content on the internet is as diverse as human thought, ….".

In the case of EBAY, INC., vs BIDDER’S Edge, INC the realistic approach to the cyber offence is shown. In this case Plaintiff eBay, the court heard Inc.’s motion for preliminary injunction on April 14, 2000. e Bay is an internet-based, person-to-person trading site. E bay facilitates both buyers and sellers to bid online. The users of the ebay site must register and agree to the ebay user agreement. The agreement prohibits the use of " any robot, spider, other automatic device or manual process to monitor or copy web pages or the content contained therein without their prior expressed written permission".

Ebay currently has over 7 million registered users. Over 400,000 new items are added to the site every day. Every minute, 600 bids are placed on almost 3 million items. Users currently perform, on average, 10 million searches per day.

A software robot is a computer programwhich operates across the internet to perform searching, copying and retrieving functions on the web sites of others. (Programs that recursively query other computers over the internet in order to obtain a significant amount of information are referred to in the pleadings of various names, including software robots, robots, spiders and web crawlers). A software robot is capable of executing thousands of instructions per minute, far in excess of what a human can accomplish. Robots consume the processing and storage resources of a system, making that portion of the system’s capacity unavailable to the system owner or other users. Consumption of sufficient place in any system would overload and makes processing of the overall system slow. Ebay site employs "robot exclusion headers". To enable computers to communicate with each other over the Internet, each is assigned a unique Internet Protocol (IP) address. E bay identifies robotic activity on its site by monitoring the number of incoming requests from each particular IP address.

BE is a company with 22 employees that was founded in 1997, it is more like an information center which does not host auctions. When a user enters a search for a particular item at BE, BE searches its database and generates a list of every item in the database responsive to the search, organized by auction site closing date and opening date etc. in early 1998, ebay gave BE permission to include information regarding ebay-hosted auctions for Beanie Babies and Furbies in the BE database. Ebay wanted BE to conduct a search of the ebay system only when the BE system was queried by a BE user. But the relations were not gone well. Subsequently the method that BE systems adopted troubled ebay therefrom ebay asked BE to stop posting their material in their web site which BE has not turned up. It is argued by ebay that more than 100,000 robots a day to check the prices of ebay which substantially brought down the speed of ebay systems.

If we look at the whole issue more technicalities are involved in resolving it but interestingly court did not felt it complex instead it has applied simple principle of "cattle trespass" and maintained that "where the conduct complained of does not amount to a substantial interference with possession or the right thereto, but consists of intermeddling with or use of or damages to the personal property, the owner has a cause of action for trespass or case, and may recover only the actual damages suffered by reason of the impairment of the property or the loss of its use".

It is also maintained that " unauthorized robot intruders into a "brick and motar" store would be committing a trespass to real property…….. similarly fundamental to the concept of ownership of personal property is the right to exclude others…… the right to exclude others as one of the most essential sticks in the bundle of rights that are commonly characterized as property…" with the above observations court compared the robots with chattels and unauthorized intrusion of robots in to the fields of others would amount to trespass. And remedy is available in common law itself.

This kind of approach may give difficulties in the course of time but till we understand and get clear picture of cyber space probably, the use of common law principles is justified.

Consensual knowledge - Jurisdictional Paradigms:

The questions relating to jurisdiction in cyber space are complex because the question how law should view the ‘cyber space’, should the cyber space be taken as a place, a means of communication or a technological state of mind, is itself debatable, in either case the reach of the space cannot be measured in terms of length and breadth.

To put the questions of cyber jurisdiction more simply, let us assume that Mr. X who resides in India, has purchased an online book offered by Mr. Y residing in USA. How this transaction should be viewed shall we consider the issue as if Mr. X went to USA or shall we treat it as if Mr. Y has come to India? What is the case if Mr. X downloads the entire book through net? Would this make any difference with the previous issue etc appears to be mere technical issues of jurisdiction but these questions have some substantial jurisprudential significance, the quest to resolve would lead to the crystallization of cyber space.

Traditionally the questions of jurisdiction are resolved under the assumption that the mountains and trees will not change their place, but in cyber space there are neither mountains nor trees. Every thing in cyber space is variable and nothing is constant.

In a traditional contract, the jurisdiction is arrived at 1. The place of defendant resides 2. Where the cause of action arose? etc. these parameters would not work in cyberspace ( see above illustration). As a counter to this notion many jurists and cyber law experts argue that, similar yardsticks of existing principles of jurisdiction of physical space can resolve complications of jurisdiction of cyber space also. They contend, jurisdictional matters in cyberspace are unnecessarily exaggerated and what ever contract or transaction so entered through internet is taking place in one or the other physical location, with physical seller and physical buyer and only difference between ordinary transaction and this is the medium of communication which can not vitiate the established principles. In the wake of this controversy, unless legislators as makers of law, courts as executors of law have a common consensus and understanding about upcoming of jurisdictional matters, it would not be possible to have a common rationale about cyber jurisprudence and it would remain a dream to have sophisticated legislations.

Cyber space Doctrinaire!

Doctrines form part of jurisprudential study of any subject. There is a dire need for the growth of doctrines in cyber law. Doctrines originate from the judicial pronouncements. Legislation cannot create doctrine it can hardly recognize them. in development of doctrines judicial pronouncements would do a lot. Doctrines are like formulae in pure sciences, like (a + b)2 = a2+2ab+b2. Similarly in case of Chemistry

H2+O H2O. For bringing out this mathematical and chemical formulae Scientists might have made innumerable number of attempts on different combinations but once they are evolved, the requirement for repeating all those combinations is not needed. For instance, to know end result of the product of the sum of two variables, we simply substitute the variables in the formula and resolve the problem which eventually reduces the labour and consumption of time. Similarly, to apply a legal doctrine to a given instance would be like substitution of facts into doctrine. For example: let us examine the following different instances:

  1. Mr. ‘A’, while driving his car at 90 km.p.h knocked down ‘B’ a pedestrian, ‘B’ filed a case in Delhi High Court for compensation – court gave its judgment in favor of ‘B’ asking ‘A’ to pay 50,000 Rs/- as compensation.
  2. Mr. ‘X’, while driving his scooter at 60 km.p.h. knocked down ‘Y’ a pedestrian, ‘Y’ went against ‘X’ to the Calcutta High Court seeking compensation, court in this case resolved in favor of ‘Y’ and asked ‘X’ to pay compensation of worth Rs. 15,000/.
  3. Mr. ‘S’, while towing his moped at 5 km.p.h. knocked down ‘L’, ‘L’ went against ‘S’ to the High Court of Punjab seeking compensation, court ruled in favor of ‘L’ and awarded him compensation of worth 1,00,000 Rs/.

If we analyze the given situations, all the cases are decided by different courts in different times by different judges, against different parties, different circumstances and different amounts of compensations, but still a common philosophy can be expounded, that is " the quantum compensation in motor vehicle accidents should be evaluated from point of the medical expenses and financial loss sustained, irrespective of gigantic structure of the vehicle which caused injuries, negligence of the driver and the speed of the vehicle at the time of meeting with accident". In all these cases the arguments about the hugeness of the vehicle, speed of the vehicle might have come but still the criterion adopted is financial loss and physical damage.

If court happens to meet with similar situation, certainly court would not be inclined to hear arguments on the points of hugeness and all but instead it just asks the effected party to produce medical evidence and proof of financial loss he sustained and decides accordingly. We have ‘n’ number of doctrines applied by ordinary courts, but their application in cyberspace is debatable. For instance Lex loci delicti, the doctrine of choice of law is taking its shapes in different issues in the wake of information technology more particularly in case of internet defamation. In Regie National des Usines Renault SA v Zhang [2002] Hight by a 6-1 majority (Callinan J. dissenting) maintained that, double actionability choice of law test, which has its genesis in Phillips v Eyreno longer has any place in Australian law. In farewelling that test, Kirby J observed that it was ‘a rule inappropriate to a time of global and regional dealings, technological advances that increase international conflictual situations and attitudinal changes that rejects or at least reduce, xenophobic (intolerant) opinions about the worth and applicability of the law of other jurisdictions’. Though the adoption of inflexible lex loci delicti test simplified Australian defamation law, it will not have such a significant effect on defamation actions, where defamatory material is placed to the world audience in a web portal. as court has to consider the defamation laws of each place in which the defamatory statements have been placed, seen or read which is not practicable because defamatory laws are not uniform in all countries. This again leads to the unification of internet defamation law for which a common jurisprudential thought is needed.

In the Regan Gerard Gilmour v. Director of Public Prosecutions, it was held while referring to Section 76C of the Crimes Act 1914, that a person commits an offence under this section, if he lacks the authority to insert the particular information into a computer, notwithstanding that he has general authority to insert other information into such computer. It further held that an entry made without lawful excuse and known to be false is said to have done that act without authority and is subject to punishment.

If we observe the above case the element of intention or motive with which a person accessed the other’s computer has taken vital role in deciding the guilt of such individual. If motive is good and exceeding the authority to access the computer would not amount to crime but accessing computer with an intention to defraud others may amount to crime.

But this analogy is reversed while convicting a person who is accused of sending threatening e-mails, in spite of his plea that they were sent idly without any intention to commit crime.

In the case of Norway v. Tvedt, the accused was the founder of a far right group in Norway. He was convicted for posting racist material that mixed neo-Nazism, racial hatred and religion, on a web site. The Asker and Baerum District Court in its observation maintained that, "Tvedt made efforts to draw children and young people into anti-semantic and racist beliefs". This judgment has become historic because it is the first time someone in Norway has been sentenced to prison and Tvedt was convicted for the contents of his home page, even though it was posted on a server that was based in the United States and out of Norway’s Jurisdiction.

Computer is no more a mere window to the world of knowledge but it is also like plugging to liability. In the case of Davis v. Gracey the 10th Circuit held that computer equipment was more than merely a ‘container’ for the files; it was an instrumentality of the crime". Therefore through this case the legal status of a physical devise called computer has changed.

In the case of United States v. Thomas, Graphic Interchange Format (GIF) file was not considered "intangible" for the purpose of federal obscenity laws. If we analyze the above two cases, in one case computer is described as an instrument of crime and in the other the tangibility and intangibility of computer files were put to discussion which indicates that law is trying to influence every segment of cyberspace. Though these cases are not sufficient in number to analyze the cyber jurisprudence, yet I have tried to contribute some of my views to the evolving cyber thought.

This kind of judicial expositions may bring about a permanent solution to the cyber matters in the future course of time. I am not thrusting burden on judicature to develop cyber jurisprudence exclusively but rather distributing equitably the risk on legislation and on netizens.

Conclusion:

This conclusion may be to this article but certainly not to the evolving cyber jurisprudence. I hope as is stated in the abstract, the ideas coined would open new avenues for the crystallization of cyber space. It is not possible to cover all the issues relating to this topic within the constrained paragraphs, with limited phraseologies and with the availability of limited case law, I have ventured this because it invites debate and attracts the attention of jurists. Hope my efforts will yield fruits.

 

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