Data Theft in Cyber Space – Issues and Laws

Data Theft in Cyber Space – Issues and Laws
The rapid development of Information technology poses new challenges before the law. These challenges are not confined to any single traditional legal category but arise in, for example, Criminal Law, Intellectual Property Law, Contract and Tort. One such challenge is the growing menace of “Data Theft”. It is the term used when any information in the form of data is illegally copied or taken from a business or other individual without his knowledge or consent.

Data as a valuable asset
Data is a valuable asset in this modern era of Information Technology (IT). Data is an important raw-material for Call Centers and I.T. Companies. Data has also become an important tool and weapon for Corporates to capture larger market shares. Due to the importance of Data in this new era, its security has become a major issue with the I.T. industry. The piracy of data is a threat, faced by the I.T. players, who spend millions to compile or buy data from the market. Their profits depend upon the security of the Data.

Issues
The major issue regarding Data Theft is its International character, for example Systems may be accessed in USA, the data manipulated in China and the consequences felt in India. The result of this ability is that different sovereignties, jurisdictions, laws and rules will come into play which again is an issue in itself. Further, collection of evidence in such circumstances become another issue as investigation in three different countries, all of whom may not be in talking terms, is almost impossible and poor technical know-how of our cops adds to the woes. Also, the lack of coordination between different investigating agencies and a not-so-sure extradition process is another head ache. However the biggest of all these issues is the lack of specific laws in the country dealing with this crime, so even if the culprit is caught he can easily get away by picking and choosing any of the of various loopholes in our law.

Does India have sufficient Laws?
The problem of data theft which has emerged as one of the major cyber crimes worldwide has attracted little attention of law makers in India. Unlike U.K which has The Data Protection Act, 1984 there is no specific legislation in India to tackle this problem, though India boasts of its Information Technology Act, 2000 to address the ever growing menace of cyber crimes, including data theft. The truth is that our IT Act, 2000 is not well equipped to tackle such crimes. The various provisions of the IT Act, 2000 which deal with the problem to some extent are briefly discussed below.
Section 43:- This section provides protection against destruction and unauthorized access of the computer system by imposing heavy penalty up to one crore. The unauthorized downloading, extraction and copying of data are also covered under this section. Clause ‘C’ of this section imposes penalty for unauthorized introduction of computer viruses of contaminants. Clause ‘G’ provides penalties for assisting the unauthorized access.
Section 65:- This section provides for computer source code. If anyone knowingly or intentionally conceals, destroys, alters or causes another to do as such shall have to suffer imprisonment of up to 3 years or fine up to 2 lakh rupees. Thus protection has been provided against tampering of computer source documents.
Section 66:- Protection against hacking has been provided under this section. As per this section, hacking is defined as any act with an intention to cause wrongful loss or damage to any person or with the knowledge that wrongful loss or damage will be caused to any person and information residing in a computer resource must be either destroyed, deleted, altered or its value and utility get diminished. This section imposes the penalty of imprisonment of up to three years or fine up to two lakh rupees or both on the hacker.
Section 70:- This section provides protection to the data stored in the protected system. Protected systems are those computers, computer system or computer network to which the appropriate government, by issuing gazette information in the official gazette, declared it as a protected system. Any access or attempt to secure access of that system in contravention of the provision of this section will make the person accessed liable for punishment of imprisonment which may extend to ten years and shall also be liable to fine.
Section 72:- This section provides protection against breach of confidentiality and privacy of the data. As per this, any person upon whom powers have been conferred under IT Act and allied rules to secure access to any electronic record, book, register, correspondence, information document of other material discloses it to any other person, shall be punished with imprisonment which may extend to two years or with fine which may extend to one lakh rupees or both.

Can Data Theft be covered under IPC?
Section 378 of the Indian Penal Code, 1860 defines ‘Theft’ as follows:-
Theft – Whoever, intending to take dishonestly any movable property out of the possession of any person without that person’s consent, moves that property in order to such taking, is said to commit theft.
Section 22 of I.P.C., 1860 defines “movable property” as follows:-
“The words “movable property” are intended to include corporeal property of every description, except land and things attached to the earth or permanently fastened to anything which is attached to the earth.”
Since Section 378 I.P.C., only refers to “Movable Property” i.e. Corporeal Property, and Data by itself is intangible, it is not covered under the definition of "Theft”. However, if Data is stored in a medium (CD, Floppy etc.) and such medium is stolen, it would be covered under the definition of ‘Theft’, since the medium is a movable property. But, if Data is transmitted electronically, i.e., in intangible form, it would not specifically constitute theft under the IPC.
“Data”, in its intangible form, can at best be put at par with electricity. The question whether electricity could be stolen, arose before the Hon’ble Supreme Court in the case “Avtar Singh vs. State of Punjab” (AIR 1965 SC 666). Answering the question, the Supreme Court held that electricity is not a movable property, hence, is not covered under the definition of ‘Theft’ under Section 378 IPC. However, since Section 39 of the Electricity Act extended Section 378 IPC to apply to electricity, so it so became specifically covered within the meaning of “Theft”. It is therefore imperative that a provision like in the Electricity Act be inserted in the IT Act, 2000 to extend the application of section 378 IPC to data theft specifically.

What do we need and why do we need?
It is imperative in today’s world that an emerging IT super power like India has a comprehensive legislation to protect its booming IT and BPO Industries (worst affected industries) against such crimes. Though the IT Act may appear sufficient in this regard but it is not comprehensive enough to tackle the minute technological intricacies involved in such a crime which leaves loopholes in the law and the culprits get away easily. Since this problem is not confined to one nation and has international dimensions, India must look forward to be a signatory to any international convention or treaty in this regard. Also it high time that our national police organizations are trained to deal with such crimes.

JUDICIAL INDEPENDENCE

Throughout the world, the theme ‘judicial independence’ assumes large importance and is a matter of deep concern in many countries.Legal institutions play a key role in the distribution of power and rights and in the over all development of the country. They also underpin the forms and functions of other institutions that deliver public services and regulate market practices. But inequitable justice system may perpetuate inequality traps. Therefore, building a more equitable justice system is very important.In every country, there had been a struggle for judicial independence and a proper justice system. In the United Kingdom, from where we borrowed our system, had a long history of struggle between the Parliament and the Monarchy as both of them wanted to control the judiciary. In early period, there was no security of tenure and the pressure doctrine was applied. In the 17th century, the Parliament passed a Settlement Act which stipulated that the tenure of the judges would be subject to good behaviour and their removal after an address to both Houses of Parliament. The independence of the judiciary in America is enshrined in Article III of the American Constitution which says that “The Judges, of the Supreme and inferior courts shall hold their offices during good behaviour and shall, at stated times, receive for their services, a compensation which shall not be diminished during their continuance in office.”In India, in so many provincial States, there was independent and well-knitted judicial system. Though the judges were appointed by the Crown in many States, the judges were allowed to act independently free from any interference from the Crown. When the people of India adopted the Constitution, all these principles were expressly taken into consideration and the judicial independence is protected by various provisions of the Constitution.The independence of the judiciary is guaranteed by the Constitution of India which enacts that every Judge of the Supreme Court will hold office until he attains the age of 65 years and that every Judge of the High Court until the age of 62 years. The Parliament is authorized to prescribe the privileges, allowance, leave and pension of the Judges of the Supreme Court, subject to the safeguard that these cannot be varied during the course of tenure of the judges to their disadvantages. No Judge shall be removed from his office by the President except upon the presentation to him of an address by each House of Parliament for such removal on the ground of proved misbehaviour or incapacity. A Judge of the Supreme Court or the High Courts is appointed by the President of India in consultation with the Chief Justice of India and such of the Judges of the Supreme Court and the High Courts as he may deem necessary. The Constitution of India insulates the Supreme Court and the High Courts from political criticism, and thus ensures their independence from political pressures and influence, by laying down that neither in Parliament nor in a State Legislature the conduct of a Supreme Court or the High Court Judge in the discharge of his duties can be discussed. The independence of judiciary is further protected bytreating the superior courts are the ‘court of record’. The members of the subordinate judiciary are also protected by the provisions of the Judicial Protection Act.In S.P. Gupta vs. Union of India, 1981 Suppl. 87, this Court has held that :-“The concept of independence of the judiciary is a noble concept which inspires the constitutional scheme and constitutes the foundation on which rests the edifice of our democratic polity. If there is one principle which runs through the entire fabric of the Constitution, it is the principle of the rule of law under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law thereby making the rule of law meaningful and effective.”However, one must appreciate that the immunities provided to ensure judicial independence are intended for the benefit of the litigants in particular and the citizens in general. Misuse of these privileges by some, has also led to a call for common standards of conduct and better accountability from the judiciary. The size and complexities of the judiciary has increased so many times in a modern welfare State. Public information campaigns and enhances the independence and accountability of the courts, by increasing public confidence in and commitment to the system. The society has got a right to demand better governance from the judiciary. Many citizens now want judges to be accountable as they feel that there are no avenues for them to remedy the minor mis-behaviour and mal-treatment of witnesses or litigants at the hands of the judges. They sometimes feel that these minor mis-behaviour and mal-treatment are not corrected by superior courts and that the superior courts would protect their own men and it is useless to make complaints. Therefore, accountability and transparency are the very essence of democracy. Like every other institution dealing with the public, the judicial arm of the government also is accountable. But the accountability of the judiciary is different from the form of accountability that is expected from the executive or any other public institutions. Expectation of independence and impartiality is much higher from the judiciary than any other organ. Deciding the cases before them in expeditious and fair manner and giving reasonedorders is another aspect of such accountability. Judiciary should not feel that adhering to the standards of accountability is inimical to its independence. The strength of any judicial institution must depend on the standards of accountability that it sets. Higher the standard, the more respect it will draw from the citizens as well as the international community.The Bangalore Principles of Judicial Conduct were approved and finalized in November 2002 by the Judicial Group on Strengthening Judicial Integrity in collaboration with the Consultative Council of European Judges of the Council of Europe and the American Bar Association. These principles were presented to the United Nations Commission on Human Rights in April 2003 and they were unanimously supported by the member States. In a resolution the Commission noted these Principles and called upon member States, the relevant UN organs, intergovernmental organizations and non-govermental organizations to take them into consideration. In many commonwealth countries judicial accountability has assumed importance and the judiciary in many countries can no longer use judicial independence as a defence for providing accountability. It is also held that one method of ensuring judicial accountability is to ensure speedy and relatively transparent method of dealing with complaints against the judiciary.One must realize that while in countries like India where the judiciary is relied upon by the citizenry to solve many of their difficulties, it is the consistent standards of accountability that give the Indian judiciary this strength. The moment this judicial accountability wavers, political forces and vested interests would not hesitate to use it as a tool to reduce the credibility of the judiciary. Whereas, a strong judicial institution can often lead to a stable political atmosphere as well as better governance by the State.We must also recognize that maintaining the highest standards in terms of judicial work and justice delivery is also inherent to the idea of judicial accountability. This essentially requires that the judiciary at all levels is not only highly skilled but is also kept abreast with the latest development in the law and practice. Thus constant training and upgradation of skills must be part of any judicial officer’s schedule. Such training modules must necessarily include a study of the international legal scenario, including subjects, such as, international human rights, humanitarian, refugee law, intellectual property law and environment law. A judicial officer must also be in constant know of the social and economic reality of his country to ensure that his judgments are practical as well as acceptable to the public. It is only when a judicial officer if equipped with such knowledge that he can match the high standards of expectations that most countries have from the judiciary, as opposed to other arms of the State. As has been evident, a mis-match of expectations and delivery from all organs of the State is sometimes the recipe for large-scale human suffering.At the same time, we need to remind ourselves that perhaps the worst form of injustice in any civilized society is injustice perpetrated through the judicial process. The judiciary in every polity has been provided with several immunities under their respective Constitutions to ensure their smooth and impartial functioning. However, it is well understood that if the judiciary by their performance and conduct does not meet the expectations for which such Constitutional protection has been provided, the judiciary will be reduced to any other organ of the State which we have come to distrust in recent times.It is, therefore, of utmost importance that a Court or a Tribunal should be perceived as independent, as well as impartial in the performance of its duties, and the perception of the public in general is as important a test as that of experts.However, it is also acknowledged that judicial accountability if stretched too far can seriously harm judicial independence and thus it is essential that we strike the right balance between the two. Relying on the strong tradition of sharing of ideas and experiences amongst the judiciary across the commonwealth is perhaps one of the optimum methods of arriving at such a balance.But, at the same time, it is appropriate to quote Prof. H.P. Lee of Monash University :-“Scurrilous abuse of particular members of the judiciary or attacks which question the integrity of judicial institutions undermine public confidence in the courts and acceptance of their decisions. This is not to suggest that court should be immune from criticism. On the contrary, the judgment of the courts should be scrutinized and critically evaluated. But those who hold positions of power and influence in the country have a responsibility to ensure that the line between measured criticism of judgments and denigration of judges is not traversed. Constitutionalism in Australia is not enhanced by hostility directed against the judiciary which plays such a pivotal role in maintaining the rule of law”.

OM SAI RAAM

IN THE NAME OF SAI RAM

BUTTERFLY
A man found a cocoon of a butterfly. One day a small opening appeared. He sat and watched the butterfly for several hours as it struggled to force its body through that little hole. Then it seemed to stop making any progress. It appeared as if it had gotten as far as it could, and it could go no further.
So the man decided to help the butterfly. He took a pair of scissors and snipped off the remaining bit of the cocoon.
The butterfly then emerged easily. But it had a swollen body and small, shriveled wings.
The man continued to watch the butterfly because he expected that, at any moment, the wings would enlarge and expand to be able to support the body, which would contract in time.
Neither happened! In fact, the butterfly spent the rest of its life crawling around with a swollen body and shriveled wings. It never was able to fly.
What the man, in his kindness and haste, did not understand was that the restricting cocoon and the struggle required for the butterfly to get through the tiny opening were God's way of forcing fluid from the body of the butterfly into its wings so that it would be ready for flight once it achieved its freedom from the cocoon.
Sometimes struggles are exactly what we need in our lives. If God allowed us to go through our lives without any obstacles, it would cripple us.
We would not be as strong as what we could have been. We could never fly!
I asked for Strength.........And God gave me Difficulties to make me strong.
I asked for Wisdom.........And God gave me Problems to solve.
I asked for Prosperity.........And God gave me Brain and Brawn to work.
I asked for Courage.........And God gave me Danger to overcome.
I asked for Love.........And God gave me Troubled people to help.
I asked for Favors.........And God gave me Opportunities.
I received nothing I wanted ........I received everything I needed!
Trust in God. Always !

motivating story . Dont we All?

DON'T WE ALL ?

I was parked in front of the mall wiping off my car. I had just come from the car wash and was waiting for my wife to get out of work. Coming my way from across the parking lot was what society would consider a bum. From the looks of him, he had no car, no home, no clean clothes, and no money. There are times when you feel generous but there are other times that you just don't want to be bothered. This was one of those "don't want to be bothered times." "I hope he doesn't ask me for any money," I thought. He didn't. He came and sat on the curb in front of the bus stop but he didn't look like he could have enough money to even ride the bus. After a few minutes he spoke. "That's a very pretty car," he said. He was ragged but he had an air of dignity around him. His scraggly blond beard keep more than his face warm. I said, "thanks," and continued wiping off my car.
He sat there quietly as I worked. The expected plea for money never came. As the silence between us widened something inside said, "ask him if he needs any help." I was sure that he would say "yes" but I held true to the inner voice. "Do you need any help?" I asked. He answered in three simple but profound words that I shall never forget. We often look for wisdom in great men and women. We expect it from those of higher learning and accomplishments.
I expected nothing but an outstretched grimy hand. He spoke the three words that shook me. "Don't we all?" he said.
I was feeling high and mighty, successful and important, above a bum in the street, until those three words hit me like a twelve gauge shotgun. Don't we all? I needed help. Maybe not for bus fare or a place to sleep, but I needed help. I reached in my wallet and gave him not only enough for bus fare, but enough to get a warm meal and shelter for the day. Those three little words still ring true. No matter how much you have, no matter how much you have accomplished, you need help too. No matter how little you have, no matter how loaded you are with problems, even without money or a place to sleep, you can give help.
Even if it's just a compliment, you can give that. You never know when you may see someone that appears to have it all. They are waiting on you to give them what they don't have. A different perspective on life, a glimpse at something beautiful, a respite from daily chaos, that only you through a torn world can see. Maybe the man was just a homeless stranger wandering the streets. Maybe he was more than that.
Maybe he was sent by a power that is great and wise, to minister to a soul too comfortable in themselves.
Maybe God looked down, called an Angel, dressed him like a bum, then said, "go minister to that man cleaning the car, that man needs help."

Don't we all?