The Hindu : Crime & punishment in cyberspace

Online edition of India's National Newspaper
Wednesday, Feb 12, 2003

Opinion

Opinion - Leader Page Articles

Crime & punishment in cyberspace

By T.K. Viswanathan

We must treat cyberspace as a public space to which all people have rights of access and participation and reasonable expectations of privacy and security.

AS WE leap into the digital age, policymakers, judges, law-enforcement agencies and lawyers are confronted with the pressing need to reorient their traditional thinking about crime and punishment in the light of the challenges posed by the convergence of new communication technologies and computer networks which has given birth to cyberspace. And, the number of people advocating the inclusion of cyber crimes as part of criminal law is increasing. While criminal conduct should not go unpunished whether committed online or offline, before undertaking this exercise of creating new criminal liability, the basic issues involved should not be lost sight of. In societies wedded to the rule of law, liberty is a birthright. Constitutional safeguards only reinforce this natural right. Hence, restraints on individual liberty have to be justified in the larger public good. Every law is an infraction of liberty since every legislation prescribes a criminal sanction for its contravention which invariably assumes the form of imprisonment leading to the curtailment of liberty of the offender. So, creation of newer forms of criminal liability calls for close public scrutiny and debate.

Cyberspace is a product of technological innovation and new technologies always overawe us. They also create novel situations which existing law cannot address. Cyberspace is projected as a "new universe", a parallel world created and sustained by the world's computers and communications lines. That may be true, but cyberspace cannot be a space beyond law, a kind of legal hinterland where the reach of the national legal systems cannot extend and where greed malice and treachery can reign supreme. The Final Report of the International Symposium on Freedom of Expression in the Information Society organised by the French National Commission for UNESCO in November 2002 reinforces this view. The Report observes that: "The internet has never been a space beyond the law: national laws apply to it. The offences committed on the internet reflect behaviours that are specific to social life, and which have already found carriers in the traditional media."

According to the legal doctrine of functional equivalence, whatever law is applicable to conduct and activities in the physical world should also be applicable to conduct and activities in cyberspace. Difficulties arise when we try to apply the doctrine to cyberspace because for every online conduct there may not be an offline equivalent. The second difficulty relates to the more fundamental doctrine of criminal law, which provides that every accused person is presumed to be innocent unless proved guilty. Presumption of innocence requires that the burden of proof is on the prosecution; it has to establish the guilt of the accused. Cyberspace permits anonymity. Any person may acquire any number of digital identities without revealing his real identity. Anonymous remailers freely available on the internet facilitate sending mails and messages without revealing the sender's identity or address. This renders identification of offenders difficult in cyberspace. The third difficulty is posed by the nature of the digital medium. In a traditional crime scenario, the offender has to visit the scene of the crime or has to be in the vicinity to perpetrate the crime. So it is easier to link the offender with the scene of the crime. But in cyberspace, since the offender need not be in the vicinity, such linkages are absent and it is difficult to establish links without expertise.

For a successful prosecution of an offence involving a computer, the perpetrator's identity should be established beyond doubt. This requires the policy makers to choose between the alternatives of structuring the internet in such a way that every computer should have a Processor Serial Number (PSN) unique to it and which will be automatically be embedded in every activity logged on to such machine or to have a biometric linkage which will connect the user with the activity he undertakes in the computer. In fact, when Intel Corporation came up with such a PSN in the Pentium III Willamette chip in 2000, there was so much opposition from the privacy groups that the proposal had to be dropped.

In addition to the problem of identification of the offender, the evidence presented in trial can also raise issues. Computer data changes moment by moment and is invisible to the eye. It can be viewed indirectly only after applying the proper procedure and the process of collecting data may change the data. Problems posed by cryptography, steganography and recovery of deleted files are the challenges which law-enforcers will have to tackle. The right against self-incrimination guaranteed by the Constitution will be to the advantage of the accused. This requires a working knowledge of evidence recovery methods. It is here that computer forensics can be of great help.

Without being overawed by the technology we should objectively analyse how the law should respond to these challenges. In the craze to emulate the western countries where computer penetration is high and where law-enforcement agencies are well trained in computer forensics, we should not be oblivious to the existing reality that our police are not at present trained to deal with cyber crime. Building up this capacity is essential before we address the issue of creating new laws for cyberspace. Guidelines have to be prescribed for searches and seizure of information. Since the digital medium affords speed and ease of communication, electronic surveillance laws are required to capture data on a real time basis. This also calls for protection of individual privacy. We should not walk into the trap of which Justice Brandeis warned us way back in 1928 in his dissenting judgement in Olmstead v U.S. wherein he observed: "the greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding".

Law is only one of the institutions which regulates human behaviour. There are other institutions as well. The family, religion, educational institutions and other groups within society have a vital role to play in shaping ethical values in cyberspace. As emphasised by the UNESCO Report, the need is to focus on the content of education in cyberspace and, specifically, about teaching people to be citizens, not just consumers, in this new arena. It also stressed the need to resist the temptation to demonise the internet and on the need to look at the internet as a tool for democracy, and not merely from the angle of its real or potential failings.

The digital revolution is one of the greatest milestones in the progress of mankind. We must harness its potential for the benefit of all. Transformation of our society into an information society has to be accompanied simultaneously with moral, economic and political transformations. For this, we must treat cyberspace as a public space, or `new commons', to which all people have rights of access and participation and reasonable expectations of privacy and security. Along with these rights come civic responsibilities of participation and mutual respect for fellow cyber-citizens.

(The writer is Member-Secretary, Law Commission of India. The views expressed are his own.)

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