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CHAPTER II
CYBER CRIME AND ITS CLASSIFICATION
1. Introduction Cyber crime is not an old sort of crime to the world. It is defined as any criminal activity which takes place on or over the medium of computers or internet or other technology recognised by the Information Technology Act. Cyber crime is the most prevalent crime playing a devastating role in Modern India. Not only the criminals are causing enormous losses to the society and the government but are also able to conceal their identity to a great extent. There are number of illegal activities which are committed over the internet by technically skilled criminals. Taking a wider interpretation it can be said that, Cyber crime includes any illegal activity where computer or internet is either a tool or target or both. The term cyber crime may be judicially interpreted in some judgments passed by courts in India, however it is not defined in any act or statute passed by the Indian Legislature. Cyber crime is an uncontrollable evil having its base in the misuse of growing dependence on computers in modern life. Usage of computer and other allied technology in daily life is growing rapidly and has become an urge which facilitates user convenience. It is a medium which is infinite and immeasurable. Whatsoever the good internet does to us, it has its dark sides too.^1 Some of the newly emerged cybercrimes are cyber-stalking, cyber-terrorism, e-mail spoofing, e-mail bombing, cyber pornography, cyber- defamation etc. Some conventional crimes may also come under the category of cybercrimes if they are committed through the medium of computer or Internet. 2. History and Evolution of Cybercrime During the period of 1950 ’s, it would be an astonished feeling for everyone who uses palmtops and microchips today, to know that the first 1
successful computer was built and the size of the computer was so big that it takes the space of entire room and they were too expensive to operate. The functioning of these computer were not understandable to large number of people and only select people with expertise had direct access to such computers, and has the knowledge to operate them. For obvious reasons, the computer technology was extremely expensive and beyond the purchasing capacity of almost the entire population until IBM’s came into being wherein it introduced its stand-alone “personal computer” in 1981 and exposing many to the rewards of quick data access and manipulation that, up to that time, had been realized by few. The Personal computers become cheaper and become household item at the start of 21st^ century in India. The Internet was first started by the US department of defence, after World War II with the idea to have a network which could work in the event of disaster or war and securely transmit information. The First Network was known as ARPANET, with the development of Transmission Control Protocol/Internet Protocol, World Wide Web and Hypertext the internet become rage all over the world. With the growth of Internet the quality and variety of information grew. However at that point nobody anticipated the opportunities’ the internet is going to provide the technology savvy criminals. In India the internet services started by the state-owned Videsh Sanchar Nigam Limited in year 1995 and in 1998 the government has ended the monopoly of VSNL and market is opened to private operators. At that point, the internet users in India are 0.1% of total population, and now India has become the 2 nd^ largest country in terms of internet users after china with 33.22% people using internet.^2 The process of criminalization of human behaviour judged to be harmful the public is typically one that builds slowly in common law jurisdictions. Momentum gained through problem identification and pressures (^2) https://en.wikipedia.org/wiki/List_of_countries_by_number_of_Internet_users (Accessed on 3rd February, 2016)
is committed, as well as in cases in which the victim’s computer, or computer system, is the target, or objective, of the act. And, as stated above, the presence of new computer technology aids cyber criminals in situations in which the computer’s role is incidental to the crime; situations in which the computer is used to house and protect information that is evidence tying the offender to criminal acts. A commonality among these types of crimes is that the offender, to a great degree, depends upon the lack of technological skills of law enforcement to successfully commit the offenses and escape undetected. Based upon what empirical evidence has been available on self-assessed skills of investigators in this area, computer criminals would have good reason to feel some confidence in their chances to evade detection of their crimes.^5 As we advance towards the 21st^ century, it van be observed that the technological innovations have laid the way for the entire population using computer technology today, to experience new and wonderful conveniences in their daily life ranging from how to educated, shop, entertain, to availing the understanding of the business strategies and work flow. Our day to-day lives have been forever changed thanks to rapid advances made in the field of computer technology. These changes allow us to communicate over great distances in an instant and permit us, almost effortlessly, to gather and organize large amounts of information, tasks that could, otherwise, prove unwieldy and expensive. The technological treasures that have improved the quality of our lives, however, can reasonably be viewed as a doubled-edged sword. While computer technology has opened doors to enhanced conveniences for many, this same technology has also opened new doors for criminals.
3. Definition of Cyber Crime (^5) Stambaugh, H., et. al, Electronic Crime Needs Assessment for State and Local Law Enforcement, National Institute of Justice Report, Washington, Dc: U.S. Department of Justice, March 2001.Available at : https://www.ncjrs.gov/pdffiles1/nij/grants/198421.pdf (Accessed at 04th February, 2016)
The Indian Legislature doesn’t provide the exact definition of Cyber crime in any statute, even the Information Technology Act, 2000; which deals with cyber crime doesn’t defined the term of cyber crime. However in general the term cybercrime means any illegal activity which is carried over or with the help of internet or computers. Dr. Debarati Halder and Dr. K. Jaishankar define cybercrimes as: “ Offences that are committed against individuals or groups of individuals with a criminal motive to intentionally harm the reputation of the victim or cause physical or mental harm, or loss, to the victim directly or indirectly, using modern telecommunication networks such as Internet (Chat rooms, emails, notice boards and groups) and mobile phones (SMS/MMS)”^6 We do not have any precise definition of cyber crime; however following is the general definitions of term cyber crime: The oxford Dictionary defined the term cyber crime as “Criminal activities carried out by means of computers or the Internet.”^7 “Cyber crime may be said to be those species, of which, genus is the conventional crime, and where either the computer is an object or subject of the conduct constituting crime”^8 “Cyber crime means any criminal or other offence that is facilitated by or involves the use of electronic communications or information systems, including any device or the Internet or any one or more of them”^9 Professor S.T. Viswanathan has given three definitions in his book The Indian Cyber Laws with Cyber Glossary is as follows - 1 Any illegal action in which a computer is the tool or object of the crime i.e. any crime, the means or purpose of which is to influence the function of a computer, (^6) http://www.ripublication.com/irph/ijict_spl/ijictv4n3spl_06.pdf (Accessed on 4th January,
(^7) http://www.oxforddictionaries.com/definition/english/cybercrime (Accessed on 4th January,
(^8) http://www.naavi.org/pati/pati_cybercrimes_dec03.htm (Accessed on 4th January, 2016) (^9) http://cybercrime.org.za/definition (Accessed on 4th January, 2016)
situation. The state machinery is not equipped with enough sources and knowledge to handle the modern crime. Computers have transformed the modern society beyond expectations in last three to four decades. It has made life not only convenient but has also immensely helped different sections of the world come closer socially, economically and culturally. The Computer technology has made it possible to have access to all corners of the world while sitting in a room. Modern technology has put an end to the barriers of time and space. However, unlikely with the remarkable merits of having computers today, due to this the jurisdictional issue has been created in legal system. Jurisdiction is one aspect which is very difficult to determine in transnational transaction over the internet. There was unmanageable ambiguity when courts were subjected to questions pertaining to jurisdiction law and were unable to decide the proper forum to entertain cases involving cyber crime as the cyberspace or virtual world is borderless if we compare it with physical world and that is why it is very difficult to control cybercrime. Through the local machinery we are not able to tackle the problem related with cyber crime because our machinery is not compatible to deal with transnational crimes. The law applicable to the territory is not advanced enough to regulate the cyber crime as their nature is far different from the existing crime. Thus, the global dimension of cyber crime is made it difficult to handle and dealt with. The evolution of internet technology has given us so many advantages to deal with future problems and grow with rapid rate but also it has provided the scope for criminals to commit their crime with least chance of detection. The cyberspace has proved a boon to the deviant behaviour in the society. The concept of cyber crime has gained speed and we are facing great threat of its impact on world society. The human society is become vulnerable to cyber crime due to more and more dependence on technology.
Cyber crime becomes a global phenomenon and hence the nationwide generalization of crime cannot workable in present scenario. Our understanding and regulation of cyber crime cannot be national but has to be international. We have to enact new laws and prepare preventive and defensive mechanism globally, only then we can able to protect our society from this evil called ‘Cyber Crime’. Therefore, the threat of cyber terrorism throws serious challenge to world and its agencies. The terrorist organizations using technology to spread hatred among people and using it to recruit militants and train them using teaching tools. They are also launching websites which show them how to use weapons make bombs etc. 4.1 Doctrine of Mens Rea & Actus Reus in Cyber Crime As far as Traditional Crime is concerned Mens Rea and Actus Reus are the two most important elements to crime. Actus Reus means “ Such result of human conduct as the law seeks to prevent”^11. There must be commission or omission to constitute a crime. As far as mens rea is concerned, it means “ A guilty state of mind”^12_._ The mental element forms the other important ingredient of crime. The act remains the same while the state of mind makes the act ‘reus’ and hence an offence. Almost all the crime requires proof of mental element of some sort.^13 As far cyber crime goes it is very difficult to determine the mens rea in cybercrimes. In Cyber crimes, one should see what the state of mind of hacker was and that the hacker knew that the access was unauthorised. Thus, a “Particular Computer” needs not to be intended by the hacker, it is enough if the unauthorised access was to “any computer”. Awareness on the part of the hacker becomes easier to prove where he is an outsider and has no authority to (^11) J.W.C. Turner, Kenney’s Outlines of criminal law (19th (^) Edition University Press, Cambridge
- also at Talat Fatima, Cyber Crime (1st^ Edition, Eastern Book Company, Lucknow 2011 ) p. 64- 68 (^12) R.C. Nigam, “Law of Crimes in India”, Principals of criminal Law , Vol 1, (Asia Publishing House, 1965) 6. (^13) Talat Fatima, Cyber Crime (1st (^) Edition, Eastern Book Company, Lucknow 2011 ) p. 64- 68
4. Collection of Evidence - It is very difficult to collect evidence of cyber crime and prove them in court of law due to the nature of cyber crime. The criminal in cyber crime invoke jurisdiction of several countries while committing the cyber crime and at the same time he is sitting some place safe where he is not traceable. 5. Magnitude of crime unimaginable- The cyber crime has the potential of causing injury and loss of life to an extent which cannot be imagined. The offences like cyber terrorism, cyber pornography etc has wide reach and it can destroy the websites, steal data of the companies in no time.
- Classification of Cyber Crime The researcher in this chapter examines the acts wherein computer or technology is tool for an unlawful act. The kind of activities usually involves a modification of conventional crime by using informational technology. Here is the list of prevalent cyber crimes, some of them widely spread and some are not prevalent on larger scale. The cyber crimes are discussed below- 6.1 Cyber Pornography The word ‘Pornography’ derived from Greek words ‘ Porne ’ and ‘ Graphein ’ means writing about prostitutes, or referred to any work of art or literature dealing with sex and sexual themes. Defining the term pornography is very difficult and it does not have any specific definition in the eyes of law as every country has their own customs and tradition. The act of pornography in some countries is legal but in some it is illegal and punishable. Cyber pornography is in simple words defined as the act of using cyberspace to create, display, distribute, import, or publish pornography or obscene materials. With the advent of cyberspace, traditional pornographic content has now been largely replaced by online/digital pornographic content.^15 Pornography has no legal or consistent definition. The definition of (^15) http://blog.ipleaders.in/cyber-pornography-law-in-india-the-grey-law-decoded/ (Accessed on 5th^ February, 2016)
pornography depends how the society, norms and their values are reacting to the pornographic content. The reason why we do not have a clear definition as far as pornography is concerned is that we do not have uniform standard culture and ethics in the world nor do we have uniform laws which defines the pornography. The concept of obscenity and pornography varies from country to country and time to time. The terms obscenity and pornography are different but related to each other. The same material which was banned in some countries may be allowed in some. The Indian law doesn’t define the term pornography and not deal with this term. In the modern world sex sells and sells extremely well, and the fact is that present pornography industry is larger than any other company or combination of companies in the world. The advent of internet in the world has started the new chapter in the porn industry. The porn industry find perfect place in internet to spread pornographic material all over the world. According to the internet filter review report of 2010, there are 4.2 million websites offering porn content to the world. 68 million daily search engine requests are made and 72 million worldwide user visit adult sites per month. 42.7 percent of total users who use internet watch pornographic material over the internet.^16 In the initial years or we can say before internet available to the public, DVD’s and Videotapes are the popular medium of distributing pornography. But after that internet is available to general public and it becomes the most popular medium to make pornography available to user in the comfort of their homes. An individual who due to the peer pressure or shame doesn’t have access to the pornographic material, nowadays easily watch picture or video on the internet. The rise of pornography websites offering photos, video clips and streaming media including live web cam access allowed greater access of (^16) http://internet-filter-review.toptenreviews.com/internet-pornography-statistics.html (Accessed on 6th February, 2016)
- That the average person, applying contemporary “community standards”, would find that the work, taken as a whole, appeals to the prurient interest.
- That the work depicts or describes, in an offensive way, sexual conduct or excretory functions, as specifically defined by applicable state law or applicable law.
- Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Before the miller’s (supra) case, in Roth v. United States^21 The Supreme Court of United States in landmark case held that “ obscene material was not protected by the First Amendment and could be regulated by the States rather than by a singular, Federal standard and also a new judicial standard for defining obscenity that invoked the average person’s application of contemporary community standards to judge whether or not the dominant theme of the material taken as a whole appeals to prurient interest .” The Supreme further held that “ to decide obscenity derived we need to consider the following five-part structure: (1) The perspective of evaluation was that of an ordinary, reasonable person. (2) Community standards of acceptability were to be used to measure obscenity. (3) Obscenity law will only apply to the works whose theme is in question. (4) A work, in order to be evaluated for obscenity, had to be taken in its entirety. (5) An obscene work was one that aimed to excited individuals’ prurient interest.” (^21) 354 US 476 (1957)
However, in India miller test was not adopted by the Supreme Court, instead it has adopted the Hicklin’s Test in leading case of Ranjeet D. Udeshi v. State of Maharashtra^22 ; the Supreme Court has decided many issues pertaining to the obscenity. The apex court doesn’t consider obscenity a vague concept but a word which is well-understood even if persons differ in their attitude to what is obscene and what is not. The apex court has stated that “In judging a work, stress should not be laid upon a word here and a word there, or a passage here and a passage there. Though the work as a whole must be considered, the obscene matter must be considered by itself and separately to find out whether it is so gross and its obscenity so decided that it is likely to deprave and corrupt those whose minds are open to influences of this sort. In this connection the interests of contemporary society and particularly the influence of the impugned book on it must not be overlooked. Where, obscenity and art are mixed, art must so preponderate as to throw the obscenity into a shadow or the obscenity so trivial and insignificant that it can have no effect and may be overlooked. It is necessary that a balance should be maintained between “freedom of speech and expression” and “public decency or morality”; but when the latter is substantially transgressed the former must give way.” The court however, sounded a note of caution that treating with sex and nudity in art and literature cannot be regarded as evidence of obscenity without something more. In the words of court “It is not necessary that the angels and saints of Michelangelo should be made to wear breeches before they can be viewed. If the rigid test of treating with sex as the minimum ingredient were accepted hardly any writer of fiction today would escape the fate Lawrence had in his days. Half the book-shops would close and the other half would deal in nothing but moral and religious books.” (^22) AIR 1965 SC 881
are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to two three years and with fine which may extend to five lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.”^26 The Section 67 of IT Act 2000 is comparable to Section 292 of Indian Penal Code, 1860. In Ranjit D. Udeshi v. State of Maharashtra^27 held that unlike other provision which have words like “knowingly” or “negligently” and thus make mens rea a condition precedent to establish the guilt. Section 292 does not make knowledge of obscenity an ingredient of the offence. The prosecution does not prove something which the law does not burden it with. The difficulty of obtaining legal evidence of the offender’s knowledge of the obscenity of the book, etc. has made the liability strict. The absence of such knowledge may be taken in mitigation but does not take the case out of the provision. If we apply the Ranjit D. Udeshi case judgment ( supra ) to Section 67 of IT Act, 2000, it can be concluded that mere publication and transmission of obscene material is an offence notwithstanding the mental state of offender. However, this cannot be a blanket rule applicable to all and sundry.^28 6.1.2 Child Pornography a menance in modern world The children especially adolescents are in modern world want to explore everything on information highway. The children in today’s generation have access to internet and computer’s at home, the internet and computer are part of their studies. The access to computer and internet makes them vulnerable to the potential danger of internet. The children are sometime (^26) Information Technology Act, 2000, S. 67 (^27) AIR 1965 SC 881 (^28) Prof. R.K.Chaubey, “An Introduction to Cyber Crime and Cyber law”, Kamal Law House, 2012, p. 440
curious about sexuality and sexual explicit material. The parents don’t have too much control over the children and the children are busy exploring the internet and other medium to fulfill their wishes through the on-line access. Sex–offenders exploit these conditions and fulfil the need of children. The child at this tender age doesn’t understand and recognise the potential danger of these contacts. The internet is highly used by the abusers to abuse children sexually worldwide. The children in India become viable victim to the cyber crime, as internet becomes the household item in India. The children are becoming victims to the aggression of pedophiles. In the physical world parents know the dangers, so they warn their children about the danger and tell me how to avoid or face the problems by facing simple guidelines. But as far as cyber crime or crime related to internet is concerned the parents themselves doesn’t know about the problems or danger posed by various service offered over the internet. The pedophiles take advantage of these things and lure children and win their confidence and then exploit them because parents or teachers doesn’t tell them about what is wrong or right over the internet. The Information Technology Act, 2000 doesn’t contain any specific provision related to child pornography but later a new section 67B^29 has been inserted in Information Technology Amendment Act 2008^30. This section provides that: “ Whoever,- (a) publishes or transmits or causes to be published or transmitted material in any electronic form which depicts children engaged in sexually explicit act or conduct or (b) creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner or (c) cultivates, entices or induces children to online relationship with one or more children for and on sexually explicit act or in a manner that may offend a reasonable adult on the computer (^29) Information Technology Act, 2000, S. 67B (^30) Information Technology Amendment Act 2008, Act 10of 2009
he was arrested from his residence and charged with section 292 of IPC and 67B of IT Act 2000.^32 6.1.3 Obscenity and Freedom of Speech and Expression Freedom of speech and expression is recognized as fundamental right subject to reasonable restriction to maintain law and order, public health morality, decency etc. in Indian Constitution. However freedom of speech and expression is restricted by section 292 and 499 of Indian Penal Code 1860. It means that one can’t while exercising their basic right of freedom of speech and expression defame anyone and prohibits expression through obscene material or publication and distribution of obscene material. The Fundamental right of freedom and speech is not absolute and reasonable restriction are imposed by article 19(2) of Indian constitution which says that reasonable restrictions on the exercise of the right conferred under article 19(1) in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.^33 In Maqbool Fida Husain v Raj Kumar Pandey^34 the fact of the case is that famous painter MF Husain painted an art work of a nude lady in grief without giving it any title. The untitled painting was sold to a private collector in 2004. In 2006 it was included as part of an online charity auction for victims of the Kashmir earthquake under the name ‘Bharat Mata.’ Husain had no role or involvement in this auction. There were large-scale protests against the painting, which appeared in an advertisement for the auction. There were multiple complaints filed under section 292, 29 4 , 29 8 of the Indian Penal (^32) http://www.thehindu.com/todays-paper/army-officer-held-for-child- pornography/article763433.ece (Accessed on 6th February, 2016) (^33) The Constitution of India, Art 19(1) and (2) (^34) Maqbool Fida Husain v Raj Kumar Pandey, Delhi High Court Crl. Revision Petition No. 114/
Code, 1860. The question was that whether portrayal of the nude lady in the painting as “Bharat Mata” should be considered as obscene under section 292 of IPC. The Court held that “…the aesthetic touch to the painting dwarfs the so-called obscenity in the form of nudity and renders it so picayune and insignificant that the nudity in the painting can easily be overlooked.” The nude woman was not shown in any peculiar kind of posture, nor was her surroundings painted so as to arouse sexual feelings or lust. The placement of the Ashoka Chakra was also not on any particular part of the body of the woman that could be deemed to show disrespect to the national emblem. The Court pointed out that “...the literature of India, both religious and secular, is full of sexual allusions, sexual symbolisms and passages of such frank eroticism the likes of which are not to be found elsewhere in world literature.” It went on to state that “While an artist should have creative freedom, he is not free to do anything he wants. The line which needs to be drawn is between art as an expression of beauty and art as an expression of an ill mind intoxicated with a vulgar manifestation of counter-culture where the latter needs to be kept away from a civilian society.” The Court also said, “There should be freedom for the thought we hate. Freedom of speech has no meaning if there is no freedom after speech. The reality of democracy is to be measured by the extent of freedom and accommodation it extends.”^35 In K. A. Abbas v_. Union of India_ ,^36 the Chief Justice of Supreme Court M. Hidayatullah held regarding film censorship that “ our freedom of speech and expression is not absolute rather limited by reasonable restrictions under Art. 19 (2) in the interest of general public to maintain public decency and morality. Therefore, film censorship has full jurisdiction in the field of cinematograph film to prevent and control obscenity and pornography.” (^35) http://indiatogether.org/uploads/document/document_upload/2141/blawobscenity.pdf (Accessed on 7th February, 2016) (^36) (1970) 2 SCC 780
