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SURANA & SURANA INTERNATIONAL ESSAY WRITING COMPETITION, 2014

Theme of the Essay: Emerging Trends of Cyber Laws.

Topic: Hacking- The gateway cybercrime skill, corroding our virtual world byte by byte.
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Abstract.
20 years since the internet was born have we sidelined the pitfalls that it has offered? Call it
ignorance or call it our failure, but we do need to realize that if we let the status quo remain
untouched we will eventually negotiate our position in the virtual world to cyber-criminals or
terrorist organisations. In another scenario the government may seize entire control over the
internet and regulate it to that extent. In such a case we bargain security over the internet
with privacy rights. Thus in an attempt to offer solutions to cybercrimes and the risks it poses
we carefully examine the most common cybercrime Hacking. It is like a gateway skill
required to enter the world of cybercrimes. Mostly, because it is the most common way of
committing cybercrimes from the range of cyber-torts to cyber-warfare. Therefore, we
analyse the extent and evolution of hacking and offer solutions to that regard, from a legal
perspective. At the same time in an attempt to do the above we also explore the nature of
cybercrimes and hacking, from a social perspective. After a careful examination of all the
problems that hacking poses we look for solutions (legislations and social changes) and their
viability.


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Sudeep Gogoi and Varun Raina, Students at Army Institute of Law, Mohali.
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SURANA & SURANA INTERNATIONAL ESSAY WRITING COMPETITION, 2014
INTRODUCTION.
On May 20, 2013 an NSA contractor by the name of Edward Joseph Snowden flees the U.S.
to reach Honk Kong and reveal what is said to be the most significant leak in U.S. history
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.
He has revealed classified information about global surveillance apparatus run by the
the United States' NSA.
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By October 2013, Snowden's disclosures unveiled that the U.S. had
spied on Brazil, France, Mexico, Britain, China, Germany, and Spain, as well as 35 world
leaders, most notably German Chancellor Angela Merkel. This was done through the
deployment of an elite hacking team known as Tailored Access Operations that hacks into
computers worldwide, infecting them with malware and does the dirty job when other
surveillance techniques fail.
The internet has been one of the major driving forces in achieving an unending globalisation
process. It has transformed our perceptions of work, business and leisure, to an extent that it
can be easily referred as a revolution The Informatics revolution. However, like any other
advancement it has been tempered by fear of criminals and threatened by terrorist
organization, for their own short-sighted advantages. Since, hacking is the widely used mode
of committing cybercrimes and is riddled with contested definitions we focus our solutions
and problems offered only with regard to hacking. The aforesaid example of state authorised
espionage throws the towel and reveals more than what is generally perceived about hacking.
Therefore in an attempt to seek answer to the question, whether hacking is a requirement for
protection? And whether it should be given legal recognition owing to its wide usage by state
sponsored authorities? We also delve into the grey areas offered by legal recognition of
White hat hackers. In order to carefully examine all the related aspects of hacking we begin
by understanding what cybercrimes are, their nature and how analogous they are with
terrestrial crimes. Later, we analyse jurisdictional problems posed due to the nature of
internet and finally we highlight the loopholes in the legislative solutions offered hitherto and
provide solutions with that regard.


2
Daniel Ellsberg, Pentagon papers leaker
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SURANA & SURANA INTERNATIONAL ESSAY WRITING COMPETITION, 2014
PUTTING THE PICTURE IN PERSPECTIVE: DEFINITION OF INTERNET, CYBERSPACE AND
CYBERCRIMES.
The internet in todays world has seeped into our culture and daily life. The fact that social
interactions now take place through Facebook, information is obtained through Google, e-
banking is replacing the conventional banking are all indicative of the fact that our
dependence over the internet is at an expanding stage. Therefore, it is safe to say that internet
usage is not just limited to accessing data or retrieving information, it is a social
phenomena.
The internet for all the purposes of this essay is the most important ingredient to commit
cybercrimes, for the simple reason that if there was no internet there would and could not be
cybercrimes. So, basically cybercrimes need a medium for commission of offences and that
medium is what we call cyberspace. Taking that proposition further it is felt that because of
such legitimate social usage of the internet we create more opportunities for criminals to
commit offences.
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Thus, cybercrime refers not so much to a single, distinctive kind of
criminal activity but more to a diverse range of illegal and illicit activities that share in
common the unique electronic environment (cyberspace) in which they take place.
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To answer the question of how cybercrimes are committed and the meaning of hacking, we
study the various alterations in the definition of hacking over a period of time.
HACKING, HACKERS AND ETHICAL HACKING:
Hacking has been properly defined in Section 66 of the Information Technology Act, 2000
as,
"Whoever with the intent to cause or knowing that he is likely to cause wrongful loss or
damage to the public or any person destroys or deletes or alters any information residing in a
computer resource or diminishes its value or utility or affects it injuriously by any means,
commits hacking."
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The word intent is quite significant here as it brings out the mens rea aspect of such an
activity and of course an act against society with a guilty mind is a crime, but what of one
without mens rea? Hackers in the dawn of the era of the Information Age, were known to be

3
Majid Yar, Cybercrimes and society, Sage Publications, 2
nd
. Ed., 2013, Page 9
4
Majid Yar, Cybercrimes and society, Sage Publications, 2
nd
. Ed., 2013, Page 5
5
Dr. Farooq Ahmad, Cyber Law in India, New Era Law Publications, 2011, pg. 236
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computer experts whose intrinsic curiosity persuaded them to break into computers to satiate
their quest for learning and knowing. They did not include of only intruders with malicious
designs but also of enthusiasts whose motives are innocent and sometimes even helpful in
many respects.
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Since there is a paradigm shift over the definitions of hacking over the years,
as can be seen from the two definitions provided, it is essential to throw light on the ethical
side of hacking so that one doesnt visualize just the negative aspects of hacking. Once a
computer resource has been hacked into or infected by a virus/worm, it needs to be repaired.
This repair of websites or computer programmes can only happen by hacking it back from the
user who gained unauthorised access in the first place. Thus, ethical hackers are that group of
hackers who technically do not gain unauthorised access, since the access to the computer
resource is consented by the owner. Further it is stated that ethical hackers are now employed
by companies and various other private organisations to find loopholes in computer
programmes that may be exploited by intruders.
The Information Technology Act, 2000 elucidates this distinction of ethical & unethical
hacking by recognising the role of intention. Thereby, being an effective derivative to
empower the hackers who play a constructive part in cyberspace.
CURRENT LEGAL SYSTEM AND CHALLENGES FACED BY IT:
In a country where cybercrimes is on the rise and number of cybercrimes reported has been
increasing significantly, there needs to be introspection in the legislative and executive
framework of the country. These counter-criminal cyber legislations do not appear to have
coherence along with other criminal legislations rendering them incapable of effective
conviction. A glaring example can be seen in the ratio of arrests made to that of hacking
crimes reported in 2011 which is 65:157.
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These poor statistics follow because of the frailty
of the current cyber laws and their incoherence with substantive and procedural laws. For
example, Sections 166A and 166B of the code of criminal procedure which enable
investigation of crime in a foreign country would be hopelessly out of tune with the scope of
computer crime and swiftness with which the evidence can be destroyed. Similarly the bar of
Section 188 of the code requiring prior permission of the central Government to inquire into
or try offences committed outside the country, appear to be out of tune with the global nature

6
Laura and Evenson & Michelle Quinn, Outlaws on the Cyberpraire, S.F. Chron, Apr. 2, 1995, at 1/Z1
7
New Delhi, Indias Information Technology act has not been effective in checking cybercrimes, 3 April 2013,
< http://www.dnaindia.com/scitech/report-indias-information-technology-act-has-not-been-effective-in-
checking-cyber-crime-expert-1818328>, accessed on 18/08/2014
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of computer activity.
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This brings out another important shortcoming in laws regulating
cyberspace and that is with regard to jurisdictional issues faced in prosecuting
cybercriminals. The current legal framework is not designed to tackle such crimes due to
their nature of being anti-spatial. That is to say that internet crime crosses jurisdictions where
similar legislations may not prevail sometimes.
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The primary reason for such a loophole to
remain uncovered is due to lack of international co-operation and lack of resources with
certain countries.
LOOKING FOR POSSIBLE SOLUTIONS.
The drawbacks of current cyber-legislations can be minimized many fold by increasing
priority levels of cyber-crimes in modern jurisprudence, which can only be accomplished by
introduction of global protocols, procedures and authorities which pervade the general
notions of jurisdiction.
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The initiation of such a metamorphic ideology can only happen with
the introduction of a new kind of jurisdiction, that of cyber-space. In order to achieve the
above proposition we require legal recognition of cyber-space jurisdiction by a majority of
countries. Moreover, it will not only solve the jurisdictional paradox but also provide a
mechanism to facilitate information exchange between member nations as well as aid in
technology transfer to countries incapable of tackling the issue of cyber-crimes.
However, this should not change the top priority of such an agency which is that of protection
of privacy and cyber-sovereignty. With a view to support the above we suggest the following
measures be adopted by the world community in a co-operative manner.
1. THE FABRICATION OF A SUBSTANTIVE AND PROCEDURAL CONVENTION.
Many countries find themselves unable to tackle cracking and cyber-crimes because
of lack of resources and ambiguous legislation, resulting in repeat-offending because
of lack of deterrence. Therefore, to cover such loopholes we propose that countries
assist each other in dealing with aspects related to cybercrimes. With mutual
international co-operation a Cyberspace Assistance & Regulatory Authority
(C.A.R.A.) should be established under the aegis of United Nations, much like the

8
Yogesh Barua, Criminal Activities in Cyber World, Dominant Publishers & Distributors, 2005 242
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A famous example would be that of Onel De Guzmans acquittal after making
10
Jurisdiction has been defined as a geographic area over which authority extends. However , our conventional
understanding of jurisdiction will completely change in the cyberspace. Cyberspace due to its open architecture
system and by its very nature of being public facing cannot be restricted to separate continents or countries.
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SURANA & SURANA INTERNATIONAL ESSAY WRITING COMPETITION, 2014
Budapest convention initiated by the European Union. The reason why U.N. should
initiate such an establishment is because of its universal character. It should have the
leading role in inter-governmental activities for the functioning and protection of
cyberspace so that it is not abused or exploited by criminals, terrorists and states for
aggressive purposes.
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The C.A.R.A shall derive its enforcement and functionary
powers through the convention. The primary objectives that it seeks to achieve are:
(a) Achieving a comprehensive consensus on Law of cyberspace.
(b) Advance the harmonisation of National cybercrime laws through Model
prescription
(c) Establish procedure for international co-operation and mutual assistance.
(d) Facilitate information exchange between member countries with a careful view to
not violate privacy rights.
(e) Assist those member countries which lack adequate resources with the help of
technology transfer agreements.
2. BRIDGING THE DIGITAL DIVIDE.
The international scientific community, and in particular the World Federation of
Scientists, should assist in developing countries and donor organisations to understand
better how Information and Communication Technology can further develop in an
environment that promotes information security and while striving for digital
equilibrium among countries.
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This serves as a major incentive for countries that lack
resources to be able to develop their information technology sector by becoming a
signatory to the aforementioned convention.
SOLVING THE PARADOX OF JURISDICTION.
Cybercrime defies National boundaries. Any effective strategy to prevent and combat the
new type of offences and the new modalities of committing traditional offences through
technologies of cyberspace must therefore lead to transnational responses in criminal law and
law enforcement. There must be no national loopholes.
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After the establishment of such a
body it will naturally face jurisdictional issues as faced by other regional organisations,
thereby hindering the justice deliverance, in case of extra-territorial offences like cyberwar

11
Atul Jain, Cyber Crime: Issues, threats and management, Isha Books, 2006
12
Atul Jain, Cyber Crime: Issues, threats and management, Isha Books, 298.
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Atul Jain, Cyber Crime: Issues, threats and management, Isha Books, 257.
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SURANA & SURANA INTERNATIONAL ESSAY WRITING COMPETITION, 2014
and trans-national hacking. The remedy lies in providing enforcement capabilities to such a
world body which strengthens the binding nature of the convention. There should be an ace
of spades up the sleeves of such an organization that renders the member nations compliance
and at the same time does not infringe their cyber-sovereignty and cyber-rights.
One interesting strategy to approach the issue of enforceability is on similar lines as the one
adopted by WTO while enacting TRIPS. Herein, the WTO communicated to its member
nations that non-compliance with TRIPS agreement will result into imposition of trade
sanctions on them. Now, keeping the youth years of internet in mind it is quite foreseeable
that there will be a further expansion and evolution in trade related aspects of the internet.
This can be seen from the fact that in the recent past there has been growing economic
relevance of something known as the Bit-coin
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which is like an electronic currency
recognized by a number of developed nations. Its expanding recognition by large economies
will create a concurrence of trading and the cyber-realm wherein trade will flourish at an
enhanced rate in the anti-spatial territory. This will result into providing the same rights that
WTO had in the nature of trade sanctions. This will consolidate the position of the
Cyberspace Assistance & Regulatory Authority by the time bitcoins become a world
recognised virtual currency. Thereby, making C.A.R.A. capable of enforcing its objectives.
CONCLUSION
The various problems posed by hacking and its related cybercrimes have been studied and
it is suggested that the concern over hackers and hacking can be seen as part of wider social
tensions and anxieties about technological change and its threat to familiar ways of life.
Therefore we attempted to look at the threat of cybercrime from a much more broader and
global perspective. Wherein the trans-national nature of cybrimes was accounted for. The
jurisdictional issue posed to be the biggest missing puzzle because of jurisdictional problems
faced by regional organizations that are a result of conventions. However, the initiation of
such a programme itself held the key to that problem by synchronising all national laws
concerning cybercrimes. Thus, paving way for a much more comprehensive, consensus based
and harmonized laws.


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Bitcoin is a digital currency in which transactions can be performed without the need for a central bank
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SURANA & SURANA INTERNATIONAL ESSAY WRITING COMPETITION, 2014
Cover Page
Name of the Author: Sudeep Gogoi.
Nationality: Indian.
Address: Double Wing, Boys Hostel, Army Institute of Law, Sector 68, Mohali.
E-mail Id: sudeepgogoi@gmail.com
Contact No.: 9988701730

Name of the Author: Varun Raina
Nationality: Indian.
Address: Double Wing, Boys Hostel, Army Institute of Law, Sector 68, Mohali.
E-mail Id: varunraina.ail@gmail.com
Contact No.: 9780839576