Law
Information and Communication Technology
Jurisprudence & Scope of Cyber Law
DESCRIPTION OF MODULE
Items Description of Module
Subject Name Law
Paper Name Information and Communication Technology Module Name/Title Jurisprudence and Scope of Cyber Law
Module Id I
Objectives To understand the evolution of computers.
To analyze the scope and meaning of cyber laws.
Prerequisites Basic knowledge of Cyber Law Key words Computer, cyber law, Information Technology
Role Name Affiliation
Principal
Investigator Prof. (Dr.) Ranbir
Singh Vice Chancellor,
National Law University, Delhi Co-Principal
Investigator Prof. (Dr.) G.S.
Bajpai Registrar, National
Law University Delhi
Paper Coordinator Dr. Aparajita Bhatt Assistant Professor, National Law University Delhi Content
Writer/Author
Dr. Saloni
Khanderia Yadav
Dr. Aparajita Bhatt
National Law University Delhi
Assistant Professor, National Law University Delhi Content Reviewer Mr. Pavan Duggal Advocate, Supreme
Court of India
1. Introduction:
Individuals have come to be extremely dependant on electronic media for a variety of reasons, therefore making the computer one of the most significant aspects of most individuals’ lives today. In turn, individuals tend to depend on computers in the most diverse ways which can range from calculation of bills to withdrawal of money through an ATM.
While these appear to be traditional reasons of using computer systems, individuals today primarily depend of computers to communicate with one another. Hence, which the traditional means of communication appeared to be telephonic conversations and letters written to people across the globe; this has be replaced by and large with e-mails and/or online chatting. Besides, there appear to be various benefits of a computer system over traditional means of interaction. The advent of computers have hence made possible sending large sums of money from one country to another in minutes with the simple use of a personal computer (PC) or a smart phone inthe comfort of one’s home. This has also facilitated the sending of letters or important data within seconds across the globe with thehelp of a simple e-mail.Again, while the traditional method of storage of data was that with the use of hundreds of sheets of paper stored in office files, the same is considered obsolete with people preferring the use of storage of data in computers, and maybe with the help of cloud computing; which makes such storage safe from destruction. Apropos, a computer has not merely disregarded traditional boundaries but is also more economically efficient.
Against this backdrop, this chapter would discuss the jurisprudence and scope of cyber law.
In order to attain a deep understanding of both the jurisprudence and scope of the subject matter at hand, one must understand what a computer is, in the first place; reason being that without the existence of a computer, there can be no cyber space, and hence no cyber law!
Accordingly, this chapter would not only delve into the jurisprudence and scope of cyber law, but also endeavor to understand what a computer is in the first place, how it evolved, it’s functioning and also the definition of a computer as defined by law. However, prior to understanding all these facets, one must certainlyunderstand what the term “jurisprudence”
means.
The term “jurisprudence” is seeking to understand the philosophy of law. Hence, jurisprudence seeks to analyze the underlying principles of law and also how the law functions in a given legal system. For this purpose, jurisprudence analyzes the role and impact or influence of the society in which the law is supposed to govern, on the law. For this, various theories and “schools” of jurisprudence have existed since time immemorial, in order
to elucidate the jurisprudence of law. Nevertheless in general, all the schools of jurisprudence endeavor to scrutinize the role of law in a given legal system.
Therefore, the aim of this chapter would be to understand the jurisprudence or in other words, the role of cyberlaw in today’s era; thereby drawing particular attention to the development and role of cyber law in the Indian legal system. Hence, the legal issues that embark upon a legal system due to the evolution and increasing use of computers, would be delved into.
1.1. Meaning and Scope of Cyber Law:
While there appear to be several reasons why individuals tend to prefer the use of a computer over traditional means of communication and storage, the use of computers have even become prone to misuse. Besides, even the general use of a computer in order to send mails, transfer money, etc. poses serious questions in times of a dispute. This in turn necessitates a law to govern the use of computers and the internet.
The term “cyber” owes its origins to the term “cybernetics”, which is in turn derived from the Greek word “kubernetes” or governor.Nobert Wiener, an American Mathematician coined the term “cybernetics” in the 1940’s to describe the theory of communication. Subsequently, the term “cybernetics” came to be popularly known as “cyber”.
Cyber law is therefore the law that governs cyber space. Hence it means the law that governs not only the internet but also electronic data which may be stored in a standalone computer system. The reason for including data stored in a standalone computer is because is one had to include merely communication process occurring via the internet, the term would be extremely narrow in scope. This would in turn leave out computer systems from the scope of cyber law, thereby creating confusion as to the law application in order to regulate electronic data store in a standalone computer.
The significance of cyber laws has been increasing over time given the fact that the invention of computers and the ever-increasing dependence by people of almost every age; has in turn necessitated a law to answer the tribulations created by the use (or the mis-use). In other words, the use of computers and the era of the internet have given rise to a borderless society.
Thus, while in the traditional society, legal wrongs were committed with a person being physically present at the scene of the crime; the same is certainly not the case in today’s modern age of computers. This has consequently given rise to a number of eventualities.
Hence, the modern era of computers has made possible situations where a person may be in London, and may nevertheless hack or gain access to confidential details on another person’s computer, as a result of cloud computing. Additionally, a person may also be able to unlawfully transfer money from one person’s bank account to himself, with the mere use of internet banking. This means that computers and the internet are not merely being used for the benefit of people, but are more often than not used to the detriment of most people. For this
reason, it becomes important that the society takes into account the consequences of living in a technologically driven era, and thus have efficient answers to the tribulations it poses.
For most, the urgency of having a legal regime to regulate activities taking place in cyberspace arises from the fact that the revolution of the internet has completely disregarded traditional jurisdiction. Hence, while countries poses jurisdiction over acts (administrative, judicial or legislative) that occur within their national boundaries, there may be times while jurisdictional is also assumed over acts taking place across the border. A prominent example of the same would be the case of international crimes. However, the age of the internet has given rise to various complexities which have in turn disregarded traditional notions of sovereignty and jurisdiction.
Against this backdrop, the use of the internet has had a tremendous impact on the society.
While it has also been proved to be more economically efficient, in cases like use of e-mail over traditional post which is not only cheaper, but also quicker; the use has also had a negative impact on the society in certain ways. Hence, a person’s private computer can easily be misused now for illegal interception. Alternatively, it has also exposed children of young age to pornography; thereby making the use of computer and the internets do more harm than good. For this, it becomes imperative and of utmost urgency that a legal regime be in place to be at pace with the technological advancements. The author seeks to depict a graphic representation of the tribulations that could arise with the use of the Internet, as shown below:
It hence becomes important to understand and analyze the meaning of a computer and internet system in order to get a thorough understanding of the scope of cyber laws.
a. Evolution of computers:
While the origins of a computer may be traced back to the 1800’s, with Charles Babbage, a mathematics Professor inventing a machine to perform calculations with the machine powered by steam; and came to be commonly referred to as the “Difference Machine”. As the
“Difference Machine” sowed the seeds for the evolution of various other computers, this evolution was marked primarily by five generations of the modern computer system.
i. The First Generation of computers:
The first Generation of computers lasted from 1945 – 1956; and was marked by its slow speed and was made to order. In addition it included the use of vacuum tubes. The computers made during this generation were primarily invented for the use of the U.S. Navy during the Second World War, for the preparation of ballistic charts. Hence, computers during this generation mainly assisted in decoding messages and making missiles.In addition, the computers made during this generation could only perform the tasks for which the computer was made. Also, due to the use of vacuum tubes, the computers were as large as a room.
Did You Know?
In 1944, IBM succeeded in created the http://www.csstc.org/manuals_e-
first ever all purpose calculator in order to create ballistic charts for the U.S.
Navy; and was as long as a football field?
readiness/supplement/S_Chapter1.htm
The Electronic Numerical Integrator and Computer or the ENIAC consisted of 18,000 vacuum tubes and consumed 160 kilowatts of electricity?
Nagpal, D. Textbook on Management Information Systems. New Delhi, 2011.
i. Second Generation of Computers:
The Second Generation Computers lasted from 1956 – 1963. The Second Generation of computers was largely an improvement over the computers that existed during the first generation. Hence, large vacuum tubes that resulted in the breathtaking size of the computer were replaced by transistors. This in turn led to a faster speed of the computer. As a result, these computers could be used in offices and universities due to the use of printers, memory, operating system and storage discs in these computers.
ii. Third Generation of Computers:
This generation was for computers assembled between 1964 –1971. The computers in this generation were a further improvement over the existing computers of the preceding generations. Thereby, the transistors that were used to make the computers in the Second Generation, was replaced with small semi-conductor chips. In addition, the computers were also made more efficient with the use of operating systems which allowed the computer to run various applications or programs at the same time.
iii. Fourth Generation of Computers:
The computers during the Fourth Generation were characterized with the use of large scale integrators, very large scale integrator and ultra large scale integrators; thereby making it possible to integrate several components into a single chip. The computers in this generation were those assembled from 1971 – the present era. This in turn facilitated the reduction in the size of computers. Another distinct feature of computers in this generation was the fact that they could be linked together in order to share memory space. Computers in this generation also widely made use of the internet.
Did You Know?
Descriptio n
Source
With the advent of the fourth generation of
computers, the number of
computers
in use
increased
from 2
million in 1981 to 5.5 million in the next year.
http://world-
information.org/wio/infostructure/100437611663/100438659451/?opmode=he lp
ii. Fifth Generation of Computers
The present era of computers constitutes the fifth generation of computers. The computers in this generation are marked with the use of the most advanced technology. For example, the use of computers is now in the palm of one’s hand with the advent of smart phones.
Computers today also make use of voice recognition and voice typing, along with the ability to translate to a whole new language.
In brief, the journey of the evolution of computers began with the aim of primarily assisting the U.S. Navy to develop ballistic missiles; to the era of smart phones in today’s world. With this, it becomes imperative to understand the various facets of a computer for a deep understanding of cyber laws.
b. The functioning of a modern computer:
Computers have become a significant feature in the lives of millions of people; and have hence come to exist in almost every appliance that a common man uses. Ranging from one’s refrigerator and television, even a car and modern day wrist-watches1have in-built computers in them. Thus acknowledging that almost every one of us is so dependent on a computer in some way or another, it becomes important to understand how these significant aspects of our lives function. For this purpose, the functioning of a computer would be delved into; albeit in brief, for the reason that for the purposes of this course one needs to have merely general information about the operation of a computer: to fully understand what a computer is.
In general, a computer is made up of a hardware and software. The former is made up of the components and parts that are assembled to form the final computer. On the other hand, the latter consists of the programs that provide the instructions for the computer to function and perform the given tasks.2 In addition, the effective functioning of the computer depends on various input and output devices: which transfer data to and from the main computer. These input and output devises communicate with the computer with the help of interrupt request lines (IRQ) that send signals to the micro-processor. These communications take place with the assistance of device driver programs.
Secondly, programs of the computer are guided with the help of the computer’s Central Processing Unit (CPU) which effectuates the input and output functions of a computer. In addition, the computer’s logical and arithmetic functions are performed with the help of the computer’s Arithmetic Logic Unit (ALU). Another vital function of a computer is to perform essential memory tasks; which are expressed in bytes (being the smallest unit), kilobyte (KB), megabyte (MB) and gigabyte (GB). There apart, the memory function of a computer may either be read-write memory or merely a read-only memory.Consequently, the memory functions of a computer are divided into Random-Access Memory and Read Only Memory.
The Random-Access Memory function of a computer is a basic form of memory; and can either be static RAM or Dynamic RAM. In case of static RAM, the computer is able to store the information saved even when the computer is switched off. For instance, the Cache memory on one’s computer is a form of static RAM. On the other hand, Dynamic RAM loses the information once the computer is switched off. For instance, memory stored in one’s pen-drive is an example of Dynamic RAM and needs to be refreshed frequently.
1For instance, many modern day wrist-watches can be doubled as a mobile phone.
2Wear, L, James Pinkert& William Lane. Computers: An Introduction to Hardware and Software Design. McGraw-Hill Higher Education, 1991.
The Read-Only Memory of a computer has the ability to, like the name suggests merely read the memory on the computer. In other words, such memory cannot be changed or modified by the user. A common example ROM is a CD-ROM, in which the information is permanent and can merely be viewed by the user. In addition, because of this feature of the ROM (being only read only), the memory is non-volatile; and remains even if the computer has been turned-off.
There apart, a computer is made up of various other components such as a hard disk:
whose function is to store information; the CPU to perform arithmetic, logical and memory functions; the Motherboard that connects all the parts to one another by transferring power throughout and the Computer Software with the computer’s operating system being the backbone of all the other software.
To this end, which these are the basic elements of the modern-day computer in the general parlance, it is vital to understand the meaning and scope of a computer in the legal context as well.
c. What is a computer?
As elaborated in the previous paragraphs, the meaning and scope of cyber law is the law that governs not merely cyber space (i.e. the internet), but also data stored over stand alone computers. For this it becomes essential to gain a thorough understanding of not merely computers but also internet access over the computer. However, in order to understand the working of the former, one must first understand the meaning and scope of a computer in the legal context, in the first place.
Accordingly, the Information Technology Act, 2000 has defined a computer by virtue of Section 2 (1) (i) as an
“electronic magnetic, optical or other high-speed data processing device or system which performs logical, arithmetic, and memory functions by manipulations of electronic, magnetic or optical impulses, and includes all input, output, processing, storage, computer software, or communication facilities which are connected or related to the computer in a computer system or computer network”
Consequently, a computer would thereby mean, a device which:
1) Is electronic, and hence capable of performing a technological function which is electrical, magnetic, digital or wireless. In addition, a computer is also capable of being an optical storage media. That is to say, any storage within the computer which
is capable of reading with the aid of laser beams is a form of optical storage.
Accordingly, CD’s and DVD’s are a form of optical storage media.3
2) Is a high speed data processing device or system. The term “data” has in turn been defined by the IT Act, 2000 by virtue of Section 2 (1) (o) to mean
“a representation of information, knowledge, facts, concepts or instructions which are being prepared or have been prepared in a formalised manner, and is intended to be processed, is being processed or has been processed in a computer system or computer network, and may be in any form (including computer printouts, magnetic or optical storage media, punched cards, punched tapes) or stored internally in the memory of the computer”
Apropos, whenever any information is prepared in an organized manner and has been processed, or is processed, or is capable of been processed for future purposes; either in a CD or pen-drive, or on any of the internal drives of the computer, the same is referred to as “data”.
For instance, in case ‘A’ gathers information on hacking, a form of cyber crime; and consequently stored all the collected information on his/her pen-drive, the same is included within the meaning of “data”.
Similarly, if a person has knowledge of something, or gathers facts about a certain situation; and processes the same in an organized manner; the same is known as data.
For example, ‘A’ is an animal lover, and consequently has knowledge of how to treat sick dogs. He/she organizes the knowledge on the subject-matter and saves the same on the internal memory of the computer. The same is referred to as data. In a related vein, if ‘A’ gathers some facts about treating his/her sick animal and stores the same in an organized manner, the same is referred to as data.
Lastly, data also includes instructions which are or have been prepared and stored in a formalized manner. Hence, suppose a software is created or intended to be created and developed, and the person developed the instructions and saves the same in a formal and organized manner on either a pen-drive/CD/internal memory, or prints out the instructions; the same is also included within the definition of data.
3Hilber, M. & Lopez, Pricilla. “The World’s Technological Capacity to Store, Communicate, and Compute Information.” Science 332, no 6025 (2011): 60-65.
In toto, any knowledge, information, facts, concepts or instructions which is prepared or will be prepared and stored in a formal/organized manner in any form such as a computer print out, internal memory, optical storage media or with the use of punched cards4is known as “data” within the scope and meaning of Section 2 (1) (o).
3) A computer is capable of performing logical, arithmetic and memory functions by manipulations of electronic, magnetic or optical impulses. Hence, for example, while using the “Word Processor” for typing a certain document, the processor would automatically mark out a spelling error, if any. Such a capability is known as a logical function. In a related vein, while typing a document, in the event one mis-types/uses the wrong use of words, the processor automatically suggests changes in the form of
“verb confusion: Consider Revision.” This is another logical function.
Arithmetic function would be the use of a calculator of the computer. At the same time, stand-alone calculator is also a form of a computer because it is capable of manipulating electronic functions.
A memory function of a computer would be explained as the ability for a computer to store the data.
Against this backdrop, while a computer is capable of performing logical, arithmetic and memory functions, the term “function” has been defined by virtue of Section 2 (1) (u) of the IT Act, 2000 to include:
“logic, control arithmetical process, deletion, storage and retrieval and communication or telecommunication from or within a computer.”
Hence, whenever an electronic, magnetic, optic or high-processing device/system is able to save or retrieve information or perform a task such as log on to the internet or calculate, the same is said to be a computer.
4Is an obsolete form of data processing medium, which was widely used in the 19thand 20th centuries for input and storage by means of thick sheets of paper which were punched and subsequently used for data processing.
Cortada, James W. Before The Computer: IBM, NCR, Burroughs, & Remington Rand & The Industry They Created. 1865 – 1965.Princeton, 1993.
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4) As per the provisions of the IT Act, 2000, a computer includes functions of
“input, output, storage, computer software or communication facilities which are connected or related to the computer in a computersystem or computer network.”
Against this backdrop, we shall consider these functions independently.
a) By input function, we mean that a computer is able to transfer data into the system. Hence, according to the definition of “data” elucidated in the previous paragraphs, whenever any information, knowledge, concepts, etc. has been prepared in a formalized manner; and has been processed, or will be processed;
and the same (data) can subsequently be fed in or transferred to the computer, the same is known as an input function. In other words, this transfer into the computer may be either performed by means of a pen-drive, hard drive, CD/DVD or by simply typing with the help of a keyboard. In addition, given the current era of modern technology, in the case of a smart phone, the same input facility is performed by means of touch screen or a by means of voice typing.
b) By output function, we mean that the data is capable of being transferred from the computer to another device. In short, an output function is the exact opposite of the input function. Hence, when one seeks to print a certain document, or transfer data into a pen drive, the same is referred to as an output function.
5oaadonline.oxfordlearnersdictionaries.com
c) Thirdly, a storage function as the name suggests is the ability for a computer to be able to store the data for future use.
d) Fourthly, a computer includes the computer software in the computer system.
Computer software is simply a program that assists the computer to perform certain functions. For instance, in case of a “Word processor,” one is able to type documents and also edit the same. Hence, this software is a program that assists a person using the computer to make a document.
e) Fifthly, a computer includes the function of communication. Hence, when a computer facilitates communication or transfer of data, the same is known as communication facility. For instance, the use of e-mail or chat via internet is a communication facility. In the modern day, use of cloud computing to save data on one computer and retrieve the same data on another computer is also a form of communication facility.
f) Lastly, the above mentioned facilities are
“connectedor related to the computer in a computer system or computer network.”
Accordingly, the term “computer system” has been defined by virtue of Section 2(1) (l) of the IT Act, 2000 to mean,
“a device or collection of devices, including input and output support devices and excluding calculators which are not programmable and capable of being used in conjunction with external files, which contain computer programs, electronic instructions, input data and output data, that performs logic, arithmetic, data storage and retrieval, communication control and other functions.”
Therefore, as per the provisions of the IT Act, 2000, a computer means and includes not merely a standalone computer, but also external files which are capable of being used along with the standalone computer. In other words, suppose one is using a pen drive to transfer data either to or from the computer, the same (pen drive) is part of a computer system. In a related vein, when one desires to enter some text in a computer and hence uses the keyboard and mouse for effectively doing so, the key board and mouse are part of the computer system. Another example would be the use of a data cable totransfer data to or from one’s smart phone.
6
The term “computer network” has been defined in the IT Act, 2000 by virtue of Section 2 (1) (j) to mean:
“the interconnection of one or more computers through—
(i) the use of satellite7, microwave8, terrestrial line9or other communication media10; and
(ii) terminals or a complex consisting of two or more interconnected computers whether or not the interconnection is continuously maintained.”
Thus, by virtue of the definition of the term “computer network”,the satellite dish for internet connection in one’s home or office would constitute a computer network. In a related vein, the wires that connect the “set top box” to one’s television also constitute a computer network. Again, the scanner, printer, key board, mouse and modem also constitute a computer network; and hence are considered as computers.
Given below is an example of the operation of satellite internet connections:11
6computerstudies4thyearatcrisol.blogspot.com
7In a satellite internet connection, the incoming and outgoing data is received and sent, respectively from a satellite; more precisely from the satellite’s dish antenna and transceiver.
Prominent examples for satellite internet connection in India include “Airtel.”
8The term microwave refers to the transfer of energy with the help of electromagnetic waves.
9Terrestrial line includes the use of cable wires and telephone lines to facilitate internet connection.
10The term “communication media” according to general parlance means and includes media which is used to facilitate the transfer of data from one computer to another. Thus, satellite transmission, microwave and terrestrial lines are also forms of communication media.
11computer.howstuffworks.com
d. The evolution of the Internet:
Since we have understood that cyber law pertains to the regulation of activities taking place over cyber space, it becomes imperative to understand the evolution and functioning of the internet. This is primarily due to the fact that the regulation of cyber space no longer involves the mere regulation of a stand-alone computer, with the usage of internet becoming an important facet of a human being’s life in almost every way.
The evolution of the internet therefore dawned in the 1960’s during the nuclear attack. The prime motive of an internet connection was to secure an effective communication network even at the time missile attacks, when all other modes of communication would be lost.
Besides, the internet would also assist in sharing data, without which information would be required to be copied into some other medium such as a floppy. While these were the historical reasons why the internet connection came to be used, the modern era has witnessed far more reasons to use the internet. In fact, the internet has made communication so easy, that even individuals across the globe are able to communicate almost free of cost. However, one must appreciate the working of the internet to fully understand and analyze the law governing the internet.
12
12en.wikipedia.org
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i. The World Wide Web:
The World Wide Web is considered as the backbone of the internet; and is in turn dependant on the Hypertext Transfer Protocol (HTTP) which assists the user to browse the web page.
Hence, while it is difficult to each and every web address in order to be able to browse the same, the HTTP assists in re-locating the user to the web page. For this, all the user must do is type the sort of document the user seeks to view. The HTTP will then re-direct the user to the web page on the web-site (WWW).
For example, suppose a person is desirous to view the European Convention on Cyber Crime, for which it is obviously difficult for all the interested parties to remember the exact web-site.
In this regard, the HTTP assists the user to find the exact web page, for which all the user must do, is type the phrase “European Convention on Cybercrime” in the search engine.
13www.casaleggio.it/pubblicazioni/Focus_internet_of_things_...The Evolution of Internet of Things [Report]
ii. Internet Protocols:
As we are aware, the use of internet facilitates the transfer of data from one website to another. For example, if one wants to purchase certain goods, let’s say an electronic appliance, and wants to visit the online page; the internet protocol assists the browser to do so by transferring the data from one computer to another. For such activities, the internet is regulated by a large number of protocols.
1. The TCP/IP:
The Transfer Control Protocol/Internet Protocol is part of the Protocol Suite; and assists in transmission of data on the internet. Hence, the TCP/IP aids and assists in surfing the internet, sending and receiving e-mails, and transferring data, to name a few.
2. The SMTP:
The Standard Mail Transfer Protocol is a protocol to send and receive mails over the internet. In other words, whenever the user of the internet seeks to send a mail to a certain other person, s/he must type the email address. Upon clicking “send” the STMP facilitates the transmission of mails.
iii. The Internet Protocol Address:
Every computer that uses the internet has an individual internet protocol address which is made up of four octets; with each octet numbered between 0–255.
For instance, 173.194.70.99 is the IP address of Google. Hence, if once enters
“http:// 173.194.70.99 in the tool bar, s/he will be re-located towww.google.com.
1.5.2.3. Domain Name System:
Simply put, a Domain name System (DNS) is part of the Internet Protocol; in which individual domains names are assigned to each website over the internet. The prime logic behind the DNS is because it is evidently difficult to remember the IP address for each and every website one seeks to use. Hence, remembering a domain name is obviously easier. For example, in relation to the previous example in case of an IP address, if one wishes to visit www.google.com, one may simply type the same. There would be no need to remember the
IP address for google.com and type http://173.194.70.99 every time one wanted to visit google.com. To that end, on typing www.google.com, one’s internet would automatically connect to the IP address for Google: being 173.194.70.99.
1.6 Conclusion:
Against this backdrop, the laws regulating cyberspace would regulate not merely stand-alone computers, but also the internet. Hence, for example, in event there has been a cyber crime committed via the internet, by let’ssay the unauthorized access to email by one person; then the same would be within the domain of cyber laws. Also, for instance, in case of domain name, if a person unlawfully violates the trademark of a registered DNS, then such person’s act would be a violation of cyber law. In such a scenario, even though a person committing the wrongful act is not making use of the aggrieved person’s computer; and is merely committing the wrongful acts via the internet, the wrong-doer is still liable under the provisions of cyber law.
