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Regulation of Cyberspace


The Mellow Lawyer
Regulation of Cyber Space

Table of Contents

  • Introduction

  • History of Cyberspace

  • Cyber Security & Cyber Laws

  • Absence of Geographical Boundaries & Anonymity

  • Challenges in Extending Traditional Laws to Cyberspace

  • Regulation of Cyber Space in India

  • Conclusion

INTRODUCTION


Two decades ago, the term cyberspace seemed right out of science fiction movie. In the second decade of the twenty-first century, cyberspace is probably the place where most of us spend a major part of our lives. It has become an inseparable element of our existence. The computer-generated world of internet is known as cyberspace and the laws prevailing this area are known as Cyber laws and all the users of this space come under the ambit of these laws as it carries a kind of worldwide jurisdiction. Cyber law can also be described as that branch of law that deals with legal issues related to use of inter-networked information technology. In short, cyber law is the law governing computers and the internet. The growth of Electronic Commerce has propelled the need for vibrant and effective regulatory mechanisms which would further strengthen the legal infrastructure, so crucial to the success of Electronic Commerce. All these governing mechanisms and legal structures come within the domain of Cyber law. In this assignment, we will look at what forms cyberspace and the reasons why laws are important to ensure cyber security.


HISTORY OF CYBERSPACE


In 1984, William Gibson published his science fiction book- Necromancer, which describes an online world of computers and elements of the society who use these computers. The word cyberspace first appeared in this book. In the book, hacker of databases stole data for a fee. The author portrayed cyberspace as a three dimensional virtual landscape. Also a network of computers created this space. According to him, cyberspace looked like a physical space but was actually a computer generated construction. Also, it represents abstract data.

The book caught the imagination of many writers and in 1986, major English language dictionaries introduced the word ‘cyberspace’. According to the new oxford dictionary of English, ‘cyberspace’ is the notional environment in which people communicate over computer networks. Since cyberspace is a virtual space, it has no boundaries, mass, or gravity. It simply represents the interconnected space between computers, systems, and other networks. It exists in the form of bits and bytes- zeroes and ones (0’s and 1’s). In fact, the entire cyberspace is a dynamic environment of 0’s and 1’s which changes every second. These are simply electronic impulses. Also it is an imaginary location where the words of two parties meet in conversation.


CYBER SECURITY AND CYBER LAWS


As technology evolved, the need to regulate human behavior evolved too. Cyber laws came into existence in order to ensure that people use technology and avoid its misuse. If an individual commits an act which violates the rights of a person in cyberspace, then it is treated as cyberspace violation and punishable under the provisions of the cyber laws. Since the cyberspace is completely different from physical world, traditional laws are not applicable here. In order to provide cyber security to users, the government introduced several cyber laws.

When the internet was designed and developed, the developers had no idea that it would have the potential of growing to such a great extent. Today, many people are using the internet for illegal and immoral activities which need regulation. In the cyberspace things money laundering, identity theft, terrorism, etc. have created a need for stringent laws to enhance cyber security.

Additionally, many technologically qualified criminals like hackers interfere with internet accounts through the Domain Name Server (DNS), IP address, phishing, etc. and gain unauthorized access to a user’s computer system and steal data. While there is no clear definition of cyber law, it is broadly the legal subject which emanated from the development of technology, innovation of computers, use of the internet, etc.


ABSENCE OF GEOGRAPHICAL BOUNDARIES AND ANONYMITY


The cyber space has no real connection with the real space. It cannot be divided on the basis of physical boundaries. Beyond the cables, telephone lines, satellites and computers that are known as 'backbones', the internet has no connection with the real world. Away from these backbones, the Internet creates a separate world, which is built of passwords and electronic data. The place of the residence of the defendant or the cause of action of the suit, which are the traditional basis for fixing jurisdiction, cannot be established with certainty in the Internet. Even a childish act can create a confusing issue of jurisdiction on the net.

In the Internet, the sender of an information cannot necessarily be presumed to be who he or she is. It is also not always possible for the sender to know the recipient's true identity. Graham Greenleaf explains the problem of anonymity in cyberspace with the help of a cartoon, which appeared in the New York Magazine.' In this cartoon, two dogs are sitting in front of a computer. One dog says to the other: "On the internet no one knows that you are a dog". This interesting cartoon shows the difficulties in bringing Internet activities within the clasp of present legal system. So it has been rightly pointed out that 'a user's digital identity has no connection with his physical world identity.

Absence of physical boundaries in cyber space may lead to a situation where the basis of morality and culture will be shaken in a society. The morals of a society could vary from the morals of another society. The Internet being a global communication media can encroach upon the morality of a society. An example is the publication of obscene materials on the Internet. The Indian law makes the sale of obscene materials punishable. With the advent of Internet, people can view and download obscene materials irrespective of their age. Even if the true address of the host website is known, an Indian court cannot punish the offenders who are in a foreign country. The publication of obscene materials may not be an offence in the country where the server of the host web site is situated. The criterion for punishment varies from countries to countries.


CHALLENGES IN EXTENDING TRADITIONAL LAWS TO CYBER SPACE


1. Multiple jurisdictions

2. Legal vacuum

3. Problem of policing

4. Expensive process

5. Obtaining digital evidence


REGULATION OF CYBER SPACE IN INDIA


In India, cyber laws are contained in the Information Technology Act, 2000 (“IT Act”) which came into force on October 17, 2000. The main purpose of the Act is to provide legal recognition to electronic commerce and to facilitate filing of electronic records with the Government.

India has an extremely detailed and well-defined legal system in place. Numerous laws have been enacted and implemented and the foremost amongst them is the Constitution of India. We have inter alia, amongst others, the Indian Penal Code, the Indian Evidence Act 1872, the Reserve Bank of India Act, 1934, the Companies Act, and so on. However, the arrival of internet signaled the beginning of the rise of new and complex legal issues. It may be pertinent to mention that all the existing laws in place in India were enacted way back keeping in mind the relevant political, social, economic, and cultural scenario of that relevant time. Nobody then could really visualize about the Internet. Despite the vivid insight of our master draftsmen the requirements of cyberspace could hardly ever be anticipated. As such, the coming of the Internet led to the emergence of numerous tricky legal issues and glitches which required the enactment of Cyber laws.

The existing laws of India, even with the most compassionate and liberal interpretation could not be interpreted in the light of the emergency cyberspace, to include all aspects relating to different activities in cyberspace. In fact, the practical experience and the wisdom of judgment found that it shall not be without major threats and pitfalls, if the existing laws were to be interpreted in the scenario of emerging cyberspace, without enacting new cyber laws. Hence, there is a need for enactment of relevant cyber laws.

None of the existing laws gave any legal validity or sanction to the activities in Cyberspace. For example, the Net is used by a large majority of users for email. Yet till today, email id not “legal” in our country. There is no law in the country, which gives legal validity, and sanction to email. Courts and judiciary in our country have been reluctant to grant judicial recognition to the legality of email in the absence of any specific law having been enacted by the Parliament. As such the need has arisen for Cyber law.

Internet requires an enabling and supportive legal substructure in tune with the times. This legal infrastructure can only be given by the enactment of the relevant Cyber laws as the traditional laws have failed to grant the same. E-commerce, the biggest future of Internet, can only be possible if necessary legal infrastructure compliments the same to enable its pulsating growth.

All these and other varied considerations created a conductive atmosphere for the need for enacting relevant cyber laws in India.


CONCLUSION


To sum up, though a crime free society is perfect and exists only in illusion, it should be constant attempt of rules to keep the criminalities lowest. Especially in a society that is dependent more and more on technology, crime based on electronic law-breaking are bound to increase and the law makers have to go the extra mile compared to the impostors, to keep them at bay. In the foregoing analysis it can be seen that the cyberspace is not an area, which the present territory based legal systems can easily accommodate. The standardization of law in cyberspace needs to be arrived at. 92 This would need a separate International Cyberspace Convention and enforcement machinery. The group of nations, by entering into a convention should set standards. The standard shall be made broadly so as to include cultures, customs and values of different population. Technology is always a double-edged sword and can be used for both the purposes – good or bad. Steganography, Trojan Horse, Scavenging (and even Dos or DDos) are all technologies and per se not crimes, but falling into the wrong hands with an illicit intent who are out to exploit them or misuse them, they come into the array of cyber-crime and become punishable offences. Hence, it should be the tenacious efforts of rulers and law makers to ensure that technology grows in a healthy manner and is used for legal and ethical business growth and not for committing crimes.

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