The Doctrine of Cyber Law, its Effectiveness and Reliability - Research Paper Example

?[You’re [You’re The doctrine of Cyber law— its effectiveness and reliability. In the present age computers and internet have become more sophisticated, giving the opportunity to the criminals to commit serious crimes with it and this formed the basis of enactment of several laws relating to the computers and internet. Thus, the question arises: Is cyber law really effective in stopping crime? Can we depend on the Cyber laws? Can it give us the protection that we require? To answer all this questions, we have to undergo a thorough analysis of the definition and meaning of terms like cyber law and cyber crime, the enactments that make up cyber law, the different types of cyber crime, the outcomes of the cyber laws etc., and finally conclude the effectiveness and reliability of cyber laws. 1. Cyberspace, cybercrime and cyber law: Before going any further, we have to know what “Cybercrime” and “Cyber law” really is and understand the concept of “Cyber crime” and “Cyber law.” “‘Cybercrime’ … consists of engaging in conduct that is outlawed because it threatens order” (Brenner 10). Thus, cybercrime is something which has similarity to the term crime, as all crimes are illegal and all crimes threaten order. The term ‘cyberspace’ was first coined by William Gibson in 1982 which actually describes a “mentally constructed virtual environment within which computer activity takes place.” “Cybercrime” means the crimes that are committed within that space and it refers to the risks online (Wall 10). Thus, the term “cybercrime” indicates crimes that can be committed in a networked computer. It includes crimes like hacking, pornography, crimes related with online financial transactions, credit card frauds, email hijacking, cyber sabotage, virus attacks, etc. The definition of cyber law as given in the business dictionary states that cyber law is a “rapidly evolving area of civil and criminal law” which is applicable “to the use of computers, and activities performed and transactions conducted over internet and other networks.” (“Cyber law”). It includes laws related with electronic copyright, web image trademarks, software piracy, domain name disputes, electronic stocking, online business information, etc. (“Definition of cyber law”). 2. Different types of cyber crimes: 2.1 Offences against confidentiality, Integrity and Availability of Computer and System:1 It includes crimes that are against any one of the three principles of confidentiality, integrity and availability. The different crimes that can be included in this category can be offences of illegal access like “hacking” and “cracking.” “Hacking” means unlawful access to a computer. It includes offences like breaking the password of protected websites (Gercke 20-21). The second form of crime in this category includes “Data Espionage” which means accessing sensitive information without the permission of the host. The two approaches which are used to obtain information can be accessing a computer, and extracting information, and using manipulation to make users disclose their access codes, which is also known as “phishing” (Gercke 23-25). The other crimes coming within this category are illegal interception, data interference and system interference. 2.2 Content-related offences:2 The aforementioned category includes offences of publishing content which is illegal or obnoxious. It includes erotic or pornographic material excluding child pornography. Many countries criminalize access of pornographic content by minors. Secondly, child pornography is considered as a criminal act and is also punishable (Gercke 32). The other types of offences included in this category are racism, hate speech, glorification of offence, religious offences, illegal gambling and online games, libel and false information, spam and related threats, other types of illegal content like unlawful sale of products, etc. (Gercke 34-40) 2.3 Copyright and Trademark-related Offences:3 Copyright violation is easier now due to digitalization. Files are easier to copy without any deterioration of the quality due to improved technology. File sharing systems are more sophisticated, thus many copyright violations take place using those systems. Many times copies of cinemas come “in file sharing systems before they are officially released in the cinemas” (Gercke 43). The other forms of offences in this category are trademark related offences, which includes offences related with misuse of trademarks of reputed companies for pecuniary benefit. 2.4 Computer-related Offences:4 This category includes offences like computer-related fraud, computer related forgery, misuse of devices, etc. Computer fraud can be various types like Online auction fraud and Advance fee fraud. Computer forgery means creating fake digital documents or manipulating digital documents (Gercke 45-47). 2.5 Combination Offences:5 This category includes three types offences, which are Cyber terrorism, Cyber laundering and Phishing. Terrorists can take advantage of critical networks like transportation and cause huge damage to the public in general as well as the government. This is known as cyber terrorism. Offenders can take advantage of the internet to transfer money without giving taxes and at a cheap rate (Gercke 51). Phishing includes acts by which offenders take private information from their by using spyware or other tactics (Gerske 59). 3. Cyber laws of US: United States has different laws to stop cyber crime, and protect the individual and public interests. The primary laws that are there can be summed up as follows: 3.1 Computer Fraud and Abuse Act: The 1986 Computer Fraud and Abuse Act (CFAA) protected the “confidentiality, integrity, and availability of computers and networks” (Ghosh and Turrini 266). The CFAA had provisions for penalizing theft of property by computer, intentional alteration & damaging data belonging to others (Ghosh 266). The CFAA has various provisions penalizing cybercrimes Under 18 USC § 1030(a)(1), 1030(a)(2), 1030(a)(3), 1030(a)(4), etc. (Ghosh 266) 3.2 The Can- Spam Act of 2003: The Can-Spam Act penalizes the act of sending huge amount of unsolicited commercial email (Spam). It also penalizes the act of hiding ones identity from the recipient of the email and law enforcement agencies. It also penalizes sending sexually explicit material under 18 U.S.C. § 7704(d) (Ghosh and Turrini 277). 3.3 Criminal Copyright and No Electronic Theft (NET) Act of 1997: According to 17 USC § 506 and 18 § 2319, it is a crime to willfully violate a copyright for commercial advantage or private financial gain or reproduces it during a period of 180 days. The NET makes the person who does not personally profit from the transaction criminally liable large scale cases (Ghosh and Turrini 278). 3.4 Economic Espionage Act of 1996: The aforesaid Act criminalizes theft and misappropriation of trade secrets (Ghosh 280). 18 USC 1831(a) penalizes the persons who engage in foreign economic espionage in order to benefit a foreign entity. Under 18 USC 1832, it is a crime to steal trade secret for economic advantage (Ghosh and Turrini 281). 3.5 Identity Theft and Assumption Deterrence Act of 1998: It makes it illegal for some person to use the identity of another person, with the intent of violating any federal laws or to commit felony under the state laws. 3.6 Interstate Stalking Act of 1996: The provisions of the aforesaid Act has importance as far as cyber stalking is concerned, in cases where the perpetrator initially harasses the victim from far and travels to the victims state to continue perpetration (Ghosh and Turrini 284-285). 3.7 Wiretap Act: The purpose of the Wiretap Act is to protect the privacy of communications. 18 USC § 2511(a) prohibits intercepting communication, whereas 2511(c) prohibits disclosure of intercepted information (Ghosh and Turrini 285). In the aforementioned context some of the important cyber laws have been stated, however there are other laws which also regulate cyber crime. 5. Challenges in fighting cyber crime: 5.1 Challenge in Drafting National and Criminal Laws:6 The primary challenge of national criminal legal systems is “the delay between recognition of potential abuses of new technology and necessary amendments to the national criminal law” (Gercke 79). 5.2 New Offences:7 Enactment of new laws is an indispensable criterion for fighting cyber crime. For instance, in the past regular fraud could be tried in the court with the help of enacted laws; however computer related fraud could not be taken up in courts. Apart from amendment of the existing laws, lawmakers have to adjust to new offences, to ensure that they are criminalized (Gercke 80). 5.3 Increasing Use of ICTs and the Need for New Investigative Instruments:8 The ICTs are used in various ways by the offenders and this makes it important for the law enforcement agencies to possess adequate instruments for the investigation of criminal acts (Gercke 80). 5.4 Developing Procedure for Digital Evidence:9 Digital documentation is increasing daily as because, it is cheap and this makes it important for the law enforcement agencies to adopt specific procedures. Care is also needed in handling digital evidence which is a fragile form of evidence and can be deleted easily (Gercke 81). The ways in which the digital data is collected is very important. As digital data increases the challenges are more (Gercke 82). Huge number of Cyber laws is an effective deterrent of cyber crime and results in large no of prosecutions. It is also reliable as victims have the option of resorting to legal action in case they are victimized. But, in spite of the fact, that we have numerous laws for fighting cyber crime, the existing challenges and the ones which will develop in future against fighting cyber crime are immense. This is the reason why new investigation procedures, amendment of existing laws, implementation of new technology, etc. have become very important. Works Cited Brenner, Susan W. Cybercrime: Criminal Threats from Cyberspace. California: Greenwood, 2010. Print. Wall, David. The Transformation of Crime in the Information Age. Cambridge: Polity Press, 2007. Print. “Cyber Law.” Businessdictionary.com. n.d. Web. 25 Mar. 2011. “Definition of Cyber Law.” cyberlawusa.com. 7 Feb. 2010. Web. 25 Mar 2011. Gercke, Marco. “Understanding Cybercrime: A Guide for Developing Countries.” International Telecommunication Union, 2009. Web. 25 Mar. 2011. Sumit Ghosh and Elliot Turrini, Ed. Cyber Crimes: A Multidiciplinary Analysis. New York: Springer, 2010. Print. Read More