Fundamentals of Cyber Law

1. Jurisprudence of Cyber Law

Jurisprudence studies the concepts of law and the effect of social norms
and regulations on the development of law.
Jurisprudence refers to two different things.
1. The philosophy of law, or legal theory
2. Case Law
Legal theory does not study the characteristics of law in a particular
country (e.g. India or Canada) but studies law in general i.e. those
attributes common to all legal systems.
Legal theory studies questions such as:
1. What is law and legal system?
2. What is the relationship between law and power?
3. What is the relationship between law and justice or
morality?
4. Does every society have a legal system?
5. How should we understand concepts like legal
rights and legal obligations or duties?
6. What is the proper function of law?
7. What sort of acts should be subject to punishment,
and what sort of punishments should be
permitted?
8. What is justice?
9. What rights do we have?
10. Is there a duty to obey the law?
11. What value does the rule of law have?
Case law is the law that is established through the decisions of the
courts and other officials.
Case law assumes even greater significance when
the wordings of a particular law are ambiguous.
The interpretation of the Courts helps clarify the
real objectives and meaning of such laws.
This chapter first discusses the meaning of cyber law and the need for
the separate discipline of cyber law.
This chapter covers the following topics:
1. What Is Cyber Law?
2. Need for Cyber Law
3. Jurisprudence of Indian Cyber Law
4. Evolution of Key Terms and Concepts
5. Evolution of Cyber Crime
1.1 What is Cyber Law?
Cyber Law is the law governing cyber space. Cyber space is a very wide
term and includes computers, networks, software, data storage devices
(such as hard disks, USB disks etc), the Internet, websites, emails and
even electronic devices such as cell phones, ATM machines etc.
Law encompasses the rules of conduct:
1. that have been approved by the
government, and
2. which are in force over a certain
territory, and
3. which must be obeyed by all persons
on that territory.
Violation of these rules could lead to
government action such as imprisonment
or fine or an order to pay compensation.
Cyber law encompasses laws relating to:
1. Cyber Crimes
2. Electronic and Digital Signatures
3. Intellectual Property
4. Data Protection and Privacy
Cyber crimes are unlawful acts where the computer is used
either as a tool or a target or both. The enormous growth in
electronic commerce (e-commerce) and online share trading has
led to a phenomenal spurt in incidents of cyber crime.
These crimes are discussed in detail further in this chapter. A
comprehensive discussion on the Indian law relating to cyber
crimes and digital evidence is provided in the ASCL publication
titled “Cyber Crimes & Digital Evidence – Indian Perspective”.
Electronic signatures are used to authenticate electronic
records. Digital signatures are one type of electronic signature.
Digital signatures satisfy three major legal requirements – signer
authentication, message authentication and message integrity.
The technology and efficiency of digital signatures makes them
more trustworthy than hand written signatures. These issues are
discussed in detail in the ASCL publication titled “Ecommerce –
Legal Issues”.
Intellectual property is refers to creations of the human mind e.g.
a story, a song, a painting, a design etc. The facets of
intellectual property that relate to cyber space are covered by
cyber law.
These include:
• copyright law in relation to computer software, computer
source code, websites, cell phone content etc,
• software and source code licences
• trademark law with relation to domain names, meta tags,
mirroring, framing, linking etc
• semiconductor law which relates to the protection of
semiconductor integrated circuits design and layouts,
• patent law in relation to computer hardware and software.
These issues are discussed in detail in the ASCL publication
titled “IPR & Cyberspace - the Indian Perspective”.
Data protection and privacy laws aim to achieve a fair balance
between the privacy rights of the individual and the interests of
data controllers such as banks, hospitals, email service providers
etc. These laws seek to address the challenges to privacy caused
by collecting, storing and transmitting data using new
technologies.
1.2 Need for Cyber Law
There are various reasons why it is extremely difficult for conventional
law to cope with cyberspace. Some of these are discussed below.
1. Cyberspace is an intangible dimension that is impossible to
govern and regulate using conventional law.
2. Cyberspace has complete disrespect for jurisdictional
boundaries. A person in India could break into a bank’s
electronic vault hosted on a computer in USA and transfer
millions of Rupees to another bank in Switzerland, all within
minutes. All he would need is a laptop computer and a cell phone.
3. Cyberspace handles gigantic traffic volumes every second.
Billions of emails are crisscrossing the globe even as we read
this, millions of websites are being accessed every minute and
billions of dollars are electronically transferred around the world
by banks every day.
4. Cyberspace is absolutely open to participation by all. A tenyearold
in Bhutan can have a live chat session with an eightyearold
in Bali without any regard for the distance or the
anonymity between them.
5. Cyberspace offers enormous potential for anonymity to its
members. Readily available encryption software and
steganographic tools that seamlessly hide information within
image and sound files ensure the confidentiality of information
exchanged between cyber-citizens.
6. Cyberspace offers never-seen-before economic efficiency.
Billions of dollars worth of software can be traded over the
Internet without the need for any government licenses, shipping
and handling charges and without paying any customs duty.
7. Electronic information has become the main object of cyber
crime. It is characterized by extreme mobility, which exceeds by
far the mobility of persons, goods or other services. International
computer networks can transfer huge amounts of data around the
globe in a matter of seconds.
8. A software source code worth crores of rupees or a movie can be
pirated across the globe within hours of their release.
9. Theft of corporeal information (e.g. books, papers, CD ROMs,
floppy disks) is easily covered by traditional penal provisions.
However, the problem begins when electronic records are copied
quickly, inconspicuously and often via telecommunication
facilities. Here the “original” information, so to say, remains in the
“possession” of the “owner” and yet information gets stolen.