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“All Citizens are Equal before Law and are Entitled to Equal Protection of Law”-Article 27 of the Constitution of the People’s Republic of Bangladesh

Issue No: 256
September 30, 2006

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Mobile Phone

Fraudulent use of roaming service

Abu Hena Mostafa Kamal

The mobile phone sector has been one of the fastest growing industries over the past decade. In 1980s when mobile phones were first introduced, no one ever imagined that it would be an essential merchandise for ever growing consumer class. Handiness, rapidly falling charges, availability of new services (such as pre-paid), innovative and robust technologies -- all help this sector to grow phenomenally. Now in Bangladesh one of the leading phone company alone has 8.5 million subscribers. In 2005, it was estimated that 18 million subscribers used mobile phone in Bangladesh. The figures give an indication of the strength of the mobile sector. Shockingly, this ever growing telecom sector is loosing approximately 55 billion dollars worldwide in a year as a result of fraudulent use of mobiles. This article will provide a general outline of mobile telecom fraud involving roaming and it will also briefly explain the complex legal question with regard to its transboundary nature.

There are various kinds of subscription schemes and also fraud involving Mobile phone. Among them roaming fraud is severe in nature. Roaming fraud can not be committed in one single country as it involves two or more states' mobile network. As a result, roaming fraudsters are subject to various jurisdictions. In most cellular fraud cases, domestic law is enough to punish a fraudster but for roaming fraud, prevailing domestic laws do not provide appropriate remedies as it involves several territorial directives and complexities. Let us enlighten our esteemed readers with examples :

Mr.Aryaan is a subscriber of Delta Phone Company in Bangladesh .His mobile / SIM (roaming capable) was stolen in Delhi Airport and the fraudster used it to make several international calls in United Kingdom and United States before the number was temporarily disconnected. There is no doubt that the theft of mobile is committed in Delhi but where did the cellular fraud take place?

In this scenario, the fraudster made international calls from Indian territory but the billing took place in Bangladesh. We know that in criminal law, the misdemeanor must take place on national territory before the courts of that country can claim jurisdiction. But in this case multinational jurisdiction is vitally involved. This gives rise to few typical question:

(i) Is the fraud committed in the country where the initial cellular subscription is taken out?

(ii) Is it committed in the country roamed?

(iii) Is it committed in countries where the fraudulent calls are actually made?

These issues of roaming fraud generate interesting questions for academic lawyers. The trans-border components of roaming make these issues particularly challenging for the legal profession. Furthermore, these issues clearly demonstrate how localisation of crime and the question of jurisdiction are interlinked.

Legal theorists tried to resolve this problem (involving jurisdiction) by providing different theories. Many believe that a cellular fraudster is only exposed to justice in the state where the initial cellular subscription is taken out. Because, the false representation is committed when:

(a) The cellular fraudster made the call by using a cloned set or stolen SIM.
(b) When the subscriber is financially held liable for the call he never made (When the subscriber receives the bill from original mobile company).

(c) There is an uninterrupted chain of causation between these two events.

Sadly, this theory has two loopholes. Such as:
[1] In international roaming system, the roaming users do not use their original cellular network for making calls rather they use another mobile company's (secondary cellular network situated in another country) service who has a contractual agreement with the original mobile service provider. So, the roaming user's original operator (here Delta Mobile, Bangladesh) has to pay to the operator of the roaming network (secondary cellular network provider in India) for the roaming user's use, whether or not the user pays his bills. So, the fraudster is not only deceiving the mobile user but simultaneously he is committing a fraud against the original mobile company and secondary cellular network provider. Thus, again two individual jurisdictions come into conflict and it becomes quite difficult to determine in which country the fraudster should be prosecuted. Therefore, a universal transnational treaty is highly required to solve this jurisdictional brainteaser.

[2] The problem regarding 'Jurisdiction' is further exacerbated by the lack of a harmonised set of territorial regulations at international level. For instance, if an American citizen fraudulently usurps another mobile user's right, and if that user is an inhabitant of Bangladesh or India and if the fraud is committed outside of USA, it will be awfully difficult for these third world countries to impose penalty on the wrongdoer. Because, America has exceedingly rigid foreign policy discouraging any trial of its citizens outside their jurisdiction. There is another problem that may arise due to the lack of proper coordination of domestic laws .This kind of legal dilemma often paralyses cases and encourages the mischief-makers to commit more same type offences. As we know, domestic rules differ from State to State and differing national rules make deciding the relevant jurisdiction even more problematic.

For instance: Many nations of this world follow the civil law principle of UBIQUITY. It means a crime may be localised in any place where a substantial element of that crime took place. But the provision of the UK's Criminal Justice Act 1993 says that a crime will be localised in England and Wales where one of the ingredients of the offence occurs (in England or Wales) A lucid variance can be found between these two rules. If we follow the principle of UBIQUITY, then a 'substantial element' of cellular fraud is committed in Bangladesh during the time the billing of international calls was made for the original subscriber (according to the given scenario). And if we follow UK's regulations then 'the act of making a fraudulent call' constituted an 'ingredient' of a cellular fraud offence (fraud committed in India). So globally accepted transboundary regulations is necessary for synchronising different directives of different states to solve this kind of problem.

The author did his graduate and post graduate legal degrees from United Kingdom.


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