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December 26, 2004

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Cyber Law & Territory

Claiming new dynamism in jurisprudence

Osiur Rahman, Mahabubur Rahman & Nour Mohammad

In the last decade the Internet has achieved considerable expansion. Today it is estimated that there are over 9.4 million computers and as many as 40 million people world-wide linked to the Internet. It is very much predictable that by the end of this century there could be over 200 million Internet users. Necessarily cyber law has become a promising field. Cyber law encompasses cyber crime, electronic commerce, and freedom of expression, intellectual property rights and privacy rights. Cyber crime involves activities like credit card fraud, unauthorised access to computer systems, child pornography, software piracy and cyberstalking. It is notable that The architecture of cyberspace and access paths to the Cyber space have to be focused, to identify cyber crime and cyber criminals, and to resolve Jurisdictional confusion.

Genesis & the architectural factors of cyber territory
The Internet mechanism can be considered as the global connection of interconnected computer networks straddling state and national borders. The perception of interconnecting computers originally commenced in 1969 as part of a military program called "ARPANET."

Conversion of users into the cyber criminals
The age of the users of internet ranges from nine to ninety years or more covering the people like students, terrorists, corporate personality whether employee or employer, members of organised crime etc.

So variety of people get involved in cybercrime motivated by revenge, a desire for notoriety, the technical challenge, monetary gain, or the promotion of ideology or mere pleasure. The most rampant source of computer criminals is in house. Over ninety percent of economic computer crimes are perpetrated by a company's own employees.

Territorial monopoly versus cyber space
The law is conceived and spoken of as territorial .the enforcement of law is undoubtedly territorial in the same way as the state is territorial; that is to say the state power is in time of peace exercised only within the territory of the state on its public ships and aircraft and on vessels and aircraft registered under its law.

But the law applicable to the cyber space is quite different form territorial -based law because of the peculiarity of cyber world bearing virtual character of visual nature. It should be considered that the events or activities ensued in cyber world causing legal consequences are not less than those in the real world are.

Accordingly a distinct set of laws and legal principles has become inevitable to be adopted with same mission holding sprit of punishment or remedy. The financial damage sustained by the individual or by corporate body or by governmental organs is claiming billions of dollars, which sometimes surpass traditional territorial-based damage.

Jurisdictional confusion
The developing law concerning jurisdiction must address whether a particular event in Cyberspace is controlled by the laws of the state or country where the Website is located, by the laws of the state or country where the Internet service provider is located, by the laws of the state or country where the user is located, or perhaps by all of these laws.

A number of commentators have voiced the notion that cyberspace should be treated as a separate jurisdiction. In practice, this view has not been supported by the Courts or addressed by lawmakers in many states.

When adjudicating cases involving foreign nationals, the courts must harmonise several factors. On a case-by-case basis, the courts must consider the procedural and substantive policies of other countries whose interests are affected by the court's assertion of jurisdiction. When extending jurisdiction into the international field great care and reserve must be exercised. Because of the principle of sovereign equality there is a higher jurisdictional barrier when litigating against a foreign national.

Definition of cybercrime
The traditional philosophy of law relating to legal concept, legal principle and legal definition flows from the territorial point of view. But now jurisprudence is facing a very significant and different type of problem pushing frequently for achieving recognition as substantive legal issues corresponding substantive right, requiring procedural support by any particular state or multi -lateral process or by universal system in legislative contribution. The definition of a crime on the Internet is still being developed. Cybercrimes have been defined as activities to include the destruction or theft of computer data and programs to be computer crime. Recently, the definition has expanded to include activities such as forgery, illegal gambling, and cyberstalking, tampering, interfering, damaging or unauthorised access to computer data and computer systems.

The categories of cybercrime
Computer crime involves concept of traditional crimes such as fraud, theft or forgery. It includes the more recent crime of cyberstalking. Vivid examples of cybercrime can be found in The "United Nations Manual on the Prevention and Control of Computer-Related Crime." The manual includes fraud, forgery, computer sabotage, unauthorised access to Services or Systems, and copying of computer programs.

Organised crime has used cyberspace to target credit card information, personal and financial information for cyber fraud. The sale of this information to counterfeiters of credit cards has proven to be extremely profitable. No longer do bank or credit cards need to be stolen. Counterfeiters using specialised computer hardware and software programs can encode falsified information on credit and bankcard magnetic strips. The sale of personal and financial information to create false travel documents has also become big business. Fraudulent activity has extended to the Internet in the form of fake franchise offerings.

Computer forgery is the alteration of computerised documents. Since the advent of high-resolution computerised colour laser copiers a new generation of fraudulent counterfeiting has emerged. These copiers can modify existing documents the quality of which is indistinguishable from the original without referring to an expert for analysis. The perpetrators can even create false documents without the necessity of referring to an original document.

Computer sabotage
The use of the Internet to obstruct the normal functioning of a computer system through the introduction of worms, viruses, or logic bombs can be referred to as computer sabotage. Computer sabotage can be used to gain economic advantage over a competitor, to promote the illegal activities of terrorists, or to steal data or programs for extortion purposes.

Unauthorised access to computer services or systems
Unauthorised access to a computer system can be motivated by a computer hacker's curiosity or perhaps by a desire to sabotage the computer system. Hackers frequently impersonate the system administrator using default maintenance passwords, which the real system administrator failed to change, to break into the system. The modern hacker can bypass existing system password protection by creating a Trojan horse program to capture the passwords of legitimate users of the system.

Unauthorised copying of computer programs
The unauthorised copying and distribution of computer programs can cause considerable economic loss to the legitimate owners. Several jurisdictions have dictated that this activity should be subject to criminal sanctions declined to hold the defendant liable under the wire fraud statute because his infringement activities of distributing computer software did not result in a profit. The court went on to rule that criminal and civil penalties should attach to defendants involved in wilful, multiple infringements of copyrighted software, even if the infringer lacked commercial motive. The court left it to the legislature to define the crime and to establish the penalty.

Cyberstalking refers to the activity of users sending harassing or threatening E-mail to other users. Women are especially being targeted by cyberstalkers. For example, a South Carolina woman has been stalked for several years via E-mail by an unknown person who has threatened her life, threatened to rape her daughter, and posted her home address on E-mail making it openly available to anyone with access to the Internet

Concluding remark
There are many issues to be resolved in Cyber law. Cyber crime and jurisdiction are the two most complicated part of cyber-jurisprudence. Policy makers and lawyers dealing with cybercrime are often confined to referring to the scarce existing statutes and cases. In cyber-jurisdiction, the Courts must address the question of which lawmaker has jurisdiction over actions taking place on the Internet. Due to the exquisiteness of cyber jurisdiction cases there is a limited amount of law for the legal practitioner to reference. The Internet can be seen as multi-jurisdictional because of the easy accessibility into a Web site from anywhere in the world. Determining jurisdiction for courts is more problematic due to the user's perspective state and national borders. Therefore a global revolution under universal framework is very necessary for secured and congenial cyber territory

The authors are an Assistant professor; University of Chittagong, a Lecturer, Premier University Chittagong & advocate and human right activist.

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