Computer Crime Research Center

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Cybercrime and cyberterrorism: Preventive defense for cyberspace violations

Date: March 10, 2006
Source: Computer Crime Research Center
By: Praveen Dalal

... used, or which may be used, as evidence of that matter. Explanation-1 provides that it is immaterial by what means or upon what substance the letters, figures or marks are formed, or whether the evidence is intended for, or may be used in, a Court of justice or not. Thus, information stored in the computers or web sites would be documents within the meaning of this section.

(iv) Section 29A of the Code read with Section 2(1)(t) of the Information Technology Act, 2000 provides that the expression electronic record means data, record, or data generated, image or sound stored, received or sent in an electronic form or microfilm or computer generated microfiche. This, section further supports the fact that information stored in the computer, etc is not only a document but also an electronic record, which if properly stored may be admissible in evidence in a Court of Law.

(v) Section 32 provides that in every part of this Code, except where a contrary intention appears from the context, words which refers to acts done extends also to illegal omissions. Thus, the use of malware for the sake of fun may not attract a stringent punishment as compared to a situation when the person using it did not remove the same despite the fact of its destructive results coming to his knowledge. In that case the punishment prescribed may be more stringent due to the illegal omission on his part.

(vi) Section 33 of the Code provides that the word “act” denotes as well a series of acts as a single act: the word “omission” denotes as well a series of omissions as a single omission. Thus, a virus launched on the Internet may continue to cause inconvenience and destruction in a series and the same will clearly attract the application of this section.

(vii) Section 40 provides that the term “offence’ denotes a thing made punishable by this Code. It must be noted that for provisions dealing with “General Exceptions, as contained in Chapter IV (including” private defence principles”) the term offence denotes a thing punishable under this code or under any special or local laws. A special law is a law applicable to a particular subject (Section 41) and a local law is a law applicable only to a particular part of India (Section 42). This section is very important and is of great practical significance. It acts as a bridge between various statutes and harmonises the provisions contained in different statutes to bring the desired results. For instance, if an act or omission is described as an offence under the provisions of Information Technology Act, 2000, the same will be deemed to be an offence within the meaning of this section.

(viii) Section 43 provides that the word “illegal” is applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action; and a person is said to be legally bound to do whatever it is illegal in him to omit. Thus, a very wide meaning has been given to the term” illegal”, which definitely covers the use of a malware.

(ix) Section 44 provides that the word “injury” denotes any harm whatever illegally caused to any person, in body, mind, reputation or property. This provision is very widely drafted and it will consider the use of malware as an injury.

(x) Section 96 of the Code declares that nothing is an offence, which is done in the exercise of the right of private defence. This section recognises the principle of self-help which is considered to be just, fair and reasonable in all the countries of the world.

(xi) Section 97 of the Code provides that every person has a right, subject to the restrictions contained in Section 99, to defend:
Secondly- The property, whether moveable or immoveable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass. This section recognises the right of a “third party” to protect the property of another, besides protecting his property. Thus, a public-spirited individual has a right to self-help by helping innocent victims of malware. For instance, a netizen who is an expert in protecting computers from viruses may make a programme, which has a potential to curb the virus put on the internet and may launch the same on it. In such a situation the person launching the malware cannot complain that such third party has no reason to feel aggrieved and has no right to retaliate. Such an action on the part of that public-spirited individual is morally, equitably and legally justified and will be protected by this section. This is a benign concept and it requires the most liberal, purposive and updating interpretation.

(xii) Section 99, among other things, provides that there is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. Further, it provides that the right to private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence, i.e. the principle of proportionality. It is suggested that this section applies to offences involving human beings as such and not the results created due to acts or omissions of the human beings. Thus, the requirement of taking recourse to public authorities arises only when the following two requirements are fulfilled:
(a) There must not be any apprehension of death or grievous hurt (because in that case the concerned person is left with no choice but the instant life saving action) by the act or omission in question, and
(b) Such act or omission must originate out of an active physical participation of human agency and it should not be limited to any act or omission unsupported by its physical presence.
Reading Section 103 along with Section 99 further strengthens this argument. Section 103 provides that the “right of private defence of property” extends, under the restrictions mentioned in Section 99, to the voluntary causing “death” or of any other harm to the wrongdoer, if the offence of robbery, house breaking by night, mischief by fire to certain properties, theft, mischief or house trespass, are committed or attempted to be committed under such circumstances as may reasonably cause apprehension that death or grievous hurt will be the consequence, if such right of private defence is not exercised. A close reading of these sections reveals that these sections are tracing the operation of private defence vis--vis human being’s active and physical involvement and not in the sense of malware. This position is made crystal clear if we read the definition of “death” under section 46, which provides that the word “death” denotes death of a human being, unless the contrary appears from the context. It would bring absurd results if we argue that the context in the present situation is talking about the “death of the computer” or the “operating system”. Similarly, it will be unreasonable, in fact unrealistic and imaginary, to argue that for protecting one’s computer from malware, every time recourse to public authorities has to be taken. In fact, the main reason for providing the provisions concerning private defense is that State cannot protect the life and property of the citizen at all times. Thus, as a measure of public policy and practical convenience, the concept of self-help has been given a moral, equitable and legal sanction. Even under the Code there is an inherent and patent conflict between Section 99 and Section 103. Section 103 is subject to section 99, whereas section 99 itself is subject to Section 99. It is talking about taking recourse of public authorities when the act “does not” reasonably cause the apprehension of death or of grievous hurt. It means that if there is an immediate threat of death or grievous hurt, then recourse to public authorities need not be taken. This is logical and satisfies the tests of common sense, because a person cannot approach the public authorities after his death, which may result due to immediate peril to the life. Similarly, no useful purpose will be served by approaching the public authorities if grievous hurt has already been afflicted. In fact if there is an apprehension of death or grievous hurt, the right to private defence can be exercised even against a public servant who is though acting in good faith under the colour of his office is not strictly justifiable by law. It must be appreciated that no malware can cause any physical injury or apprehension of the same, which may necessitate recourse to public authorities within the meaning of section 99. Thus, it can safely be concluded that recourse to self-help can be taken under section 103 of the Code without approaching public authorities since it does not involve the real and active physical presence of the human agency. This is also in conformity with the basic theme and object of the concept of self-help and the practical requirements of law and its regulation of society.
The application of Section 99 is not, however, completely excluded while exercising the right of private defense under Section 103. It must be noted that section 99 also recognises the principle of proportionality among other things. This means that the proposed harm given by the technological property holder must commensurate with the nature and gravity of the threat. Thus, the harm, if at all it is considered to be so, caused must be reasonable, proportionate and not unduly harsh. The moment it exceeds the limits, which may be deemed to be appropriate by a reasonable person, it will offend the benign objects of section 99, and may become illegal. Thus, to this extent, and in this sense only,...


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