Download Challenges of Cyber law and more Papers Law in PDF only on Docsity!
CHALLENGES IN CONDUCTING TRIAL FOR
CYBERCRIMES
INTRODUCTION
Over a past few decades, cybercriminals have come a long way. Since the wide spread of Internet community and easy accessibility of data services to people, the threat of cyber-attack is hiking per second. With everything become online, from basic education to digital banking, e-commerce. The life had become so easy if have a good data service at your home, youre just a click away from all facilities. At the same time, the user can be attacked by criminal over internet. In 2019, India and United States of America saw some of the highest rates of cybercrime.^1 Cybercrime is not defined in Information Technology Act, 2000 nor in IT Amendment Act nor in any other legislation or any rulebook. It cant be defined by any legislation because of its comprehensiveness. Cybercrime is any criminal activity committed with the help of computer, where a computer can be used as target or tool or both. Virtually, any crime from vandalism to theft, extortion to copyright infringement can be a cybercrime. Due to wide reach of internet, the investigation agencies face hardship in penalising the cyber-criminals. This has created a tremendous issue for cyber cell unit or investigating agencies to confront transnational crimes and the evidence trials. During the course of investigation, the agencies or team of experts face a lot of hurdles. Therefore, presenting the correct evidences before the court is must, which is not easy in cyber- crime. This article will review some difficulties for law enforcement to combat the cybercrime. Investigating generally begins from collecting initial information from variety of sources. Investigator have to comprehend the sources and develop the sources. Gathering information from sources and other resources isn`t easy unlike criminal cases. There are numerous hurdles in investigating a cyber-case. Those challenges are briefly discussed further in this article, what hurdles does an investigating panel faces and why the cyber criminals are not convicted in India. HURDLES OF LITIGATING CYBERCRIMES (^1) The Harris Poll, 2019 Cyber Safety Insights Report Global Results, NortonLife Lock, March 20, 2020
There are many challenges in taking a cyber-case to trial. First, attribution and detection is difficult of cyber criminals usually disguise their originating location by using various tools and methods of concealment, such as the use of virtual private networks, anonymizing network or, or other types of proxy servers.^2 Evidence is the major concern. Part of evidence in criminal is crime scene. There is no crime scene in cyber-crime. We cant mark the location of the hacker. The evidences, the data, the network, gadgets used, log files, evidence recorded in computer system is actually crime scene. When a case is filed under Information Technology Act, the case may be criminal or civil complaint but the evidences are stored in system like intermediaries computer or sometime the opponent`s computer. Only in few cases the police swing into actions vigoursly, seize the system and collect the evidences. Also if the opponent knows that the system going to be seized, he/she can immediately destroy the evidence (formatting, deleting the history or account, removing the cookies, reconfiguring the system files etc.) and hence no evidence no conviction of criminal. Digital evidence is fragile and volatile and improper handling of e-evidence can cause alteration in it. Second, because crimes are digital, they span country borders and a large majority of hackers operate internationally, which prevents law enforcement officers from prosecuting these hackers without extradition. The word extradition is a combination of two French words viz. ex - which means “out” and tradition - “deliverance.” It is the process of returning somebody accused of a crime by a different legal authority for trial or punishment.^3 If an individual is suspected of committing a cybercrime in one jurisdiction and flees to another state, all that is required of the country where the cybercriminal is domiciled is to promptly return the said criminal to the requesting country to face trial; however, this is not the case in practise due to the principle of state independence and sovereignty. There is no instrument in public international law that requires sovereign nations to automatically return the cybercriminals for trial. Countries where cybercriminals are located, Oftenly refuse to extradite cybercriminals for various reasons and this trend exposes to enormous barrier to enforce cyber laws globally. Budapest Convention on Cybercrime (^2) Melissa McDonough, The difficulties in litigating Cybercrime, Law enforcement cyber center (^3) 10 Microsoft Encarta Dictionary 2009
client trust and could result in customer turn-away, so owners and operators will rather stay quiet and try to rectify the system as soon as possible rather than report to authorities in charge of cybercrime. Another issue is lack of training of investigators, standard procedures while dealing with evidences. On the condition of anonymity, the official said that many government officials are unaware of their adjudicating powers under the Information Technology Act of 2008. “Few state IT secretaries are using the quasi-judicial powers granted to them by the IT act. The cases that are adjudicated are often sent to police stations. CONCLUSION The world of cybercrime is more complicated. This article states that there are various relevant laws relating to cybercrime but the challenges are the enforcement of cyber law. The problem of cybercrime for prosecutors, however needs to be placed in context. Seeking solutions to both prosecute hackers and hold businesses responsible for computer security activities will continue to be a challenge for law enforcement officials at the local and state levels as privacy violations and data breaches become more common. India has a low level of international cooperation, which creates a barrier when it comes to handing over offenders who commit computer crimes.
