Startups, Be aware of cyber space: New turf for policing

By Bhavik Sarkhedi

Posted on March 13, 2017

With the expansion of technology to new frontiers of science, the role of cyberspace has increased multi-fold. It has brought new threats and opportunity to the fore and has led to a large number of individuals and associations to utilize cyberspace to compromise, steal or destroy critical data. To progress n this globalized world, it is extremely necessary to deal with such threats and find ways to confront and overcome them. The CEO of TechDefence, Cyber Security Expert, Sunny Vaghela, shares his insights on this.

With increasing number of persons putting their lives online, safety has become paramount. This is because wreaking havoc is easier than doing physical damage. How safe is our networks and infrastructure, we do not know. What if tomorrow the entire stock exchange is hacked? Citizens want to be confident that their private lives are safe and resilient. This means that to avoid our economic well-being and infrastructure to be directly affected, there must be safeguards placed in cyberspace.

There are certain crimes that find existence only in the digital world, such as those that affect the integrity of computers and services available online. However, as has been proven by various studies, cyberspace is also being used to commit crimes such as fraud and identity theft. Cyberspace has also generated new opportunities for sexual exploiters and child rights offenders.

The present article discusses the methods of policing the cyberspace and specifies difficulties in the jurisdiction and the capacity of municipal legal systems to accommodate the borderlessness of cyberspace and crimes committed therein. There exists a need to balance security of citizens within cyberspace and regulate the policing of state agencies online.

As per the Cyber Security Strategy of 2011 published by UK, approximately 2 billion people had an online presence and more than 5 billion devices having internet connectivity were present. Efforts to protect cyberspace started as early as 1990 when the first piece of criminal legislation was made in United Kingdom to address the misuse of computers. Since then, there has been a widespread expansion in the range of criminal activities online, most of which falls outside the ambit of the legislation today. Even in India, we have almost ancient laws acting as a defense to cyber-crime, fighting a lost battle. Much akin to the change in the shape of technology, the challenge of fighting cybercrime has also taken a new dimension. The presence of redundant territorial laws to the regularly changing arena of cyberspace coupled with the borderlessness has proved to be too much to current legal systems.

There have been five theories given by researchers to determine the jurisdiction of a cyber-crime. These are-

1. Territoriality theory- This theory suggests that jurisdiction is widely determined by territory in which the offense was committed, whether in whole or in part. Being the oldest form of the jurisdictional model to cyber crimes, it is based on the presumption that the State possesses sovereignty over the territory.

2. Nationality theory- It is also referred to as the active personality theory. This theory is primarily based on the nationality of the offender and says that the jurisdiction will be determined on the basis of the nationality of the offender. This theory has particularly gained ground after the decision of landmark case of United States of America v Jay Cohen, wherein the President of World Sports Exchange were charged with targeting customers in the US to place bets via a toll-free call over the internet. Since the President was a US citizen, American jurisdiction was applied.

3. Passive nationality theory- As a contrast to the nationality theory, passive nationality theory is concerned with the nationality of the victim rather than that of the offender. Thus, if a citizen of India hacks into the servers based in the USA, he would be convicted as per the laws of US and not laws of India.

4. Protective theory-  Protective theory, also called as ‘Injured Forum Theory’ or ‘Security Principle’, considers the national/international interest injured, conveying jurisdiction to the State whose interest lies in jeopardy as a result of an offensive action. This theory is used to counter crimes such as counterfeiting of securities and even money.

5. Universality theory- The theory is based on the international character of the offense allowing all states to claim jurisdiction who have been directly and indirectly affected. Universality theory has the highest potential for applicability to cyberspace. However, it requires the crime to be particularly offensive to international community and the State assuming jurisdiction to have the defendant in custody. Such an approach seems best to counter slave trafficking and piracy on the internet. However, it is difficult to define the parameters of Universality theory, since it is yet unexplored when it comes to its applicability in cyberspace offending.

Startups, Be aware of cyber space: New turf for policing