| By:- Abhimanyu Chopra, IV Year , Amity Law School | | | | on the Internet, breaking into Web sites as an "ethical |
| | | | hacker" and then informing companies about their sites' |
| “Know your enemy and know yourself and you will | | | | vulnerability. |
| always be victorious...” | | | | Jurisdiction V/s Hacking |
| | | | |
| | | | In the Indian stature, with regard to jurisdiction over |
| Introduction | | | | hacking, laws are almost non-existent. Firstly because |
| | | | there has been very few cases regarding hacking, in |
| | | | India and then Secondly, it is an emerging field and that |
| The internet is ever growing and we are truly pebbles | | | | too where the place of action for the dispute is very |
| in a vast ocean of information. They say what you | | | | difficult to decide, which is also an interesting feature of |
| don’t know can’t hurt you but when it comes to | | | | the IT Act, As per Sec.1 (2) the act clearly states and |
| the Internet believe quite the opposite. On the Internet | | | | laid down, the act will applicable to offences and |
| there are millions and millions of computer users logging | | | | contraventions committed by any person not just in |
| on and off on a daily basis. Information is transferred | | | | India but also outside India and by virtue of Sec.75 |
| from one point to another in a heartbeat. Amongst | | | | which lays down that the Indian Courts will have |
| those millions we are one. With the dawning of modern | | | | jurisdiction over acts committed outside India as well |
| era, the use of computers and its knowledge has now | | | | as over foreigners committing such acts, if the act |
| become a necessity rather than a privilege. The | | | | amounts to an offence or contravention involving a |
| technological advancements have completely taken | | | | computer, computer system or computer network |
| over the world in a very short span. Today, computers | | | | located in India. So, the determining factor is the |
| play a major role in almost every crime that is | | | | location of computer, computer system or computer |
| committed. Every crime that is committed is not | | | | network that is involved in an act or transaction. |
| necessarily a computer crime, but it does mean that | | | | In India under Civil Procedure Code, the court would |
| law enforcement must become much more computer | | | | assume jurisdiction over a defendant, if even a part of |
| literate just to be able to keep up with the criminal | | | | the cause of action for the dispute arose within its |
| element. Hacking is one of such crimes that have | | | | jurisdiction. Now these may appear to be distinct and |
| affected the world at large. | | | | disparate points of view but when you get down to |
| What is Hacking? | | | | examining the essential ingredients that must be fulfilled |
| | | | in order to satisfy the requirements of these principles, |
| The word ‘hacking’ has been much used and | | | | there are several similarities between them which may |
| abused in the information technology lexicon. In its | | | | allow the Indian Courts to assume jurisdiction. |
| original technological sense, the word ‘hacker’ | | | | Is Hacking an Offence under the Indian Law? |
| was coined at MIT in the late 1960s and hackers were | | | | After the Recent Amendments in the IT Act of 2000, |
| computer wizards and geniuses who claimed the | | | | the scope has been widened. Under the Indian Law by |
| hacker title. “To hack” was to figure out | | | | virtue of Sections 43 and Sections 66 of the act, |
| something that a normal programmer could not think | | | | which talks about Penalties and Compensation for |
| and understand. As per the New Hacker’s | | | | damage to computer, computer system, etc and |
| Dictionary, Hacker means, “A person who enjoys | | | | Computer related offences respectively. So, it can be |
| exploring the details of programmable systems and | | | | easily identifiable that yes hacking is an offence in India |
| how to stretch their capabilities; one who programs | | | | under the terms of IT Act, and Section 66 clearly lays |
| enthusiastically, even obsessively.”However the | | | | down, “If any person, dishonestly or fraudulently, |
| meaning of this term has changed in recent times. | | | | does any act referred to in Section 43, he shall be |
| Today, hacking is associated with individuals who | | | | punishable with imprisonment for a term which may |
| maliciously invade computer systems without | | | | extend to three years or with fine which may extend |
| authorization. | | | | to five lakh rupees or with both.” |
| Hackers and Crackers | | | | Case Laws on Hacking |
| | | | |
| I feel it is necessary to clarify the term Hacker. Since | | | | There are very few cases on Hacking around the |
| the definition of a hacker has been influenced and | | | | world, let alone a selected few in India. There exists |
| tainted over the years. There have been various | | | | the case of DPP v. Bignell[1], here two police officers |
| computer related activities attributed to the term | | | | were charged for using the police national computer to |
| “hacker”, but are greatly misunderstood. | | | | gain access to details of motor cars for private |
| ‘Hackers’ are very intelligent people who use | | | | purposes and they were charged with unauthorized |
| their skill in a constructive and positive manner. They | | | | access to computer material. Their appeal was |
| help the government to protect national documents of | | | | allowed by the Crown Court and later confirmed by |
| strategic importance, help organizations to protect | | | | the QB Divisional Court. It was observed that the police |
| documents and company secrets, and even | | | | officers were entitled to access such computer |
| sometimes help justice to meet its end by extracting | | | | information as part of their normal duties thereby |
| out electronic evidence. Rather, these are people who | | | | decided that no offence had occurred. Another case |
| help to keep computer criminals on the run. | | | | is of Nirav Navinbhai Shah and 4 Ors. v. State of |
| There are various types of “hackers”, each with | | | | Gujarat and Anr[2], here it was alleged that hacking |
| their own agenda. A hacker by definition believes in | | | | was done with a computer system and that the |
| access to free information. They are usually very | | | | accused has stolen important data, the court held that |
| intelligent people who could care very little about what | | | | the complainant does not contain any essential |
| you as an individual have on your system. Their thrill | | | | ingredient for maintaining criminal proceedings for the |
| comes from system infiltration for information reasons. | | | | alleged offence which resulted in the quashing of the |
| Hackers unlike “crackers and anarchist” know | | | | FIR has the defense submitted that the alleged |
| being able to break system security doesn’t make | | | | material that has been said to be stolen exists on |
| one a hacker any more than adding 2+2 makes one a | | | | other sites and the courts believed that the offence |
| mathematician. Unfortunately, due to the bad media, | | | | alleged is not strictly affecting or infringing any individual |
| journalists and writers have been fooled into using the | | | | or citizen, so the continuation of the same is not in |
| word ‘Hacker’ for any sort of computer related | | | | interest of justice and the dispute is resolved by |
| illegal activities. Real hackers target mainly government | | | | amicable settlement. |
| institution. They believe important information can be | | | | |
| found within government institutions. The higher the | | | | |
| security the better the challenge. These individuals | | | | |
| come in a variety of age classes. They range from | | | | References |
| High School students to University Graduates. While | | | | |
| Crackers are generally some people who break into | | | | 1. Bare Act – The Information Technology Act, 2000 |
| someone else's computer system, often on a network, | | | | as amended by The Information Technology |
| bypasses passwords or licenses in computer | | | | (Amendment) Act, 2008 |
| programs or in other ways intentionally breaches | | | | 2. - Cyber Law Encyclopedia |
| computer security. Crackers do this for profit, | | | | 3. Cyber Law and Information Technology by Talwant |
| maliciously, for some altruistic purpose or cause, or | | | | Singh Addl. Distt. & Sessions Judge, Delhi |
| because there’s a challenge present here. | | | | 4. Hacking Secrets and Information Guide by S& |
| So, the former identifies itself with ‘Ethical | | | | C Productions |
| Hacking’ and the latter with Unethical Hacking. I | | | | 5. Practical Approach to Cyber Laws, by K. Mani |
| believe to clear out any discrepancies its best to lay | | | | Edition : 2009 |
| down an example; Ankit Fadia for one is the best | | | | 6. Information Technology: Law And Practice book, by |
| example, he has crisscrossed India, giving lectures to | | | | Vakul Sharma |
| police departments, software companies, educational | | | | [1] [1998] 1 Cr App R8 |
| institutions and government agencies on how to fight | | | | [2] Criminal Misc. Application No. 10291 of 2006 Decided |
| "cyber criminals" and deal with computer viruses. Fadia, | | | | On: 28.09. |
| developed his computer skills after spending long hours | | | | |