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CYBER LAWS

TAFFAZUL H RIZVI*
Advocate Supreme Court

Inventions, discoveries and technologies widen scientific horizons but also pose new challenges
for the legal world. Information Technology brought about by computers, the Internet, and
cyberspace has also posed new problems in legal jurisprudence. It has shown the inadequacy of
law while dealing with the,
• Information technology.
• Changes brought about by information technology in the ways we live, perceive
and do business.

The rapid development of information technology presents challenges to the legal systems
across the globe. A common feature of the electronic business transactions is the fact that they
are ‘direct’. Classical middlemen such as agents, distributors and franchisees, and the costs
associated with these intermediaries, are cut out of distribution chains. On the other hand, the
Internet also creates new opportunities for business intermediaries who now sell products not
only in their own markets but also all over the world. Of course, all these changes raise
interesting legal issues characterized to certain ‘special’ contractual relationships. In addition,
there are the general legal aspects connected with the use of new technology such as digital
signatures, encryption technologies and other aspects of electronic commerce.

Although telecommunication is essentially an information related service but the world is now
coming to regard this internet service as carrying much more than information or, more strictly
the information which it carries, is being expected to give effect to more than the transmission
of knowledge. Electronic trading, the formation of contracts for the provision of goods or
services, payment under such contracts, and the transfer and hypothecation of property are all
becoming possibilities under the process of electronic data interchange.

The Internet is an inherently technological environment. New technology inevitably creates


new situations, which the existing law cannot control. At times, the law can create a roadblock
to progress by its inability to adapt to new legal situations. In the Internet parlance “caching”
is often quoted to indicate how the extension of obtaining law to the information technology
raises fundamental questions? This is the precise reason why many stakeholders claim that any

*
The writer is a Lahore based Advocate Supreme Court, read at Government College Lahore, Punjab Law
College Lahore, Cornell University New York and Université de Paris – I (Panthéon – Sorbonne) Paris. He
belongs to a well know legal family and is a fourth generation lawyer.

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application of the existing laws must be analyzed in terms of the usability of the technology
and the progress of the Internet.

Globally, it is established that approximately forty countries have responded to the


development of information technology either by comprehensively enacting dedicated
legislations or legislative measures apparently on an ad-hoc basis. Broadly speaking, these
legislative attempts reflect the following features:

a. Extension of applicable legal principle to the context of information


technology;

b. Incorporating suitable amendments whereby some of the technological


processes are addressed;

c. Recognizing the need for technical knowledge on the part of those who
adjudicate legal liability in the context of information technology;

d. Rendering legal liability to e-transactions and digital records;

e. With a view to ensure legal authenticity, safety and protection to the


informant and information, appropriate technological tools and techniques
have been brought under legal standardization; and

f. Criminalizing either computer specific or Internet specific conduct which is


by and large construed as harmful in nature.

The phrase ‘information technology’ has many varying connotations in the same way as it has a
widespread presence and utility, from the most mundane of things that a common person does
to the most complex wizardry that only a techno savvy geek comprehends. Information
technology can be seen and experienced in processes improving services to common people and
consumers (online transactions, bookings, university admissions, telecommunications,
professional consultations, consumer products etc.), increasing the productivity and efficiency
of governments (computerization of government records, departments, e-cops), strengthening
the legal and law enforcement systems (Judicial Administration and Court Management) and in
promoting the priority economic sectors (banking, agriculture, industry, marketing and the like)
involving process of manufacturing and production chain. Possibly the greatest impact that
information technology has had is on blurring the time and geographical divide. The
penetration of the home computer or the personal computer phenomenon along with the
Internet has increased the impact of information technology beyond our imagination.
Computers are not only used extensively to perform the industrial and economic functions of
society but are also used to perform many functions upon which human life itself depends,
medical treatment and air traffic control are common examples. Computers are also used to

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store confidential data of political, social, economic or personal nature. They assist in the
improvement of economics and of living conditions of people in all countries. Communications,
organizational functioning, scientific and industrial progress have developed so rapidly with
computer technology that our form of living has changed irreversibly.

The broadening of the world of information technologies has, however, a negative side, it has
opened the door to anti-social and criminal behavior in ways that were never previously
possible. Computer systems offer some new and highly sophisticated opportunities for law-
breaking and create the potential to commit traditional types of crimes in non-traditional ways.
As today the society relies on computerized systems for almost everything in life, even a small
glitch in the operation of these systems can put human lives in danger. Society’s dependence
on computer systems, therefore, has a profound human dimension. The rapid transactional
expansion of regular telephone lines increases the vulnerability of these systems and the
opportunity for misuse or criminal activity. The consequences of computer crime may have
serious economic costs as well as serious costs in terms of human security.

Cyber content becomes an easy prey to those who are knowledgeable and use it either for
illegal purposes or as unlawful means. Particularly in this regard, invoking information
technology with a view to pursue and propagate anti-state activities and thereby making it an
effective tool for de-stabilization of the State and society is not uncommon.

Similarly in private relationships, information technology is put to gross and blatant misuse to
cater for individual greed which is something very clearly discernable – hacking and cracking
are the established and institutionalized means. In addition, the market in response to the
social demand uses cyber context for disseminating pornographic material. Easy accessibility of
this material to children is a matter of serious concern to society as a whole. That apart, many
documented studies indicate that the sizeable percentage of the material available on the
Internet is harmful in nature. In view of this vulnerability, some quarters contend that,
regulation of Internet and information technology is a warranted interventionist measure,
which is long overdue. However, skepticism about the same is not unheard of.

The important question to be considered is whether the diverse facets of information


technology are merely bound together by a common denominator or whether they give rise to
the emergence of a new legal area, which might be called information law or law of
information technology.

Any attempt at understanding information technology law will be incomplete and inadequate, if
one were to ignore the emerging trends and patterns of criminality. This facet deserves
attention from one and all concerned because it posses threat to the information security,

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which is considered to be the foundational premise of processes invoking information and
communication technologies.

This relatively new category of activities is called cyber-crime, hi-tech crime or e-crime and
include activities such as hacking, credit-card fraud, ID theft, pedophilia, software piracy,
harassment and stalking, unauthorized usage and sending viruses.

Advanced telecommunications technology will allow offenders to target and affect a greater
number of victims. There are also fears that the ongoing organization, sophistication and
globalization of crime may pose a greater threat to financial markets, economic stability, and
even the national security of target countries.

There is a growing fear that well-organized criminals will launder their ill-gotten gains through
e-commerce transactions, sending electronic cash to cyber-accounts located all over the world.
With vast wealth at their disposal, criminal minds will be able to buy almost any kind of
technological resource or expertise.

Computers have made it much easier to commit credit card fraud, create counterfeit cards,
take secret commissions, perform false accounting, and run scams such as fraudulent internet
auctions and the famous "Advance fee scams". Computers also assist in some cases of identity
fraud through the production of almost indistinguishable identity documents, which is
increasingly one of the largest concerns of law enforcement.

The term "e-crime" arose in the tradition of terms such as e-mail, e-commerce, e-zines, e-tailer
and e-government. These types of offences have been labeled variously and often
interchangeably as computer abuse, computer-related crime, cyber-crime, net crime, hi-tech
crime, computer-facilitated crime, digital crime and most recently as electronic crime (or e-
crime for short).

Today the noticeable areas of crime are:

(i) Child sex offences and child pornography - offenders contact potential victims via e-
mail or other messaging services and arrange to meet, whereupon sexual offences are
committed. Computers also aid in the production, distribution, encryption and storage
of digital images of child sex offences;

(ii) Hacking, cracking and unlawful intrusion - whether the offenders are external hackers
accessing a system, or disgruntled employees, these crimes involve unauthorized access
to computer systems and may involve manipulating, or destroying information, or

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stealing intellectual property. The latest cracking concerns are about unauthorized
access to wireless networks called "war-driving";

(iii) Freaking, theft of telecommunications services, instances of which have involved using
cereal box toy whistles to imitate telephone call signals, and more recently have
involved cloning mobile SIM cards;

(iv) Money laundering – computers assist greatly in laundering money due to the often
transient nature of digital records;

(v) Defamation and Invasions of privacy - the public nature of newsgroups, bulletin boards
and even e-mail presents the opportunity to publish defamatory statements.

(vi) Cyber hate - the publishing of "hate" websites by minority groups expressing racial
hatred.

Effectively, these terms refer to "crime that involves information systems as instruments or
targets of illegality. Grabosky and Smith prefer the term “digital crime” because information
systems operate by reducing data to streams of "1s" and "0s". This is certainly a more accurate
term; however e-crime is rapidly becoming common parlance.

The cost of electronic crime is difficult to quantify due to reluctance of corporations to admit
their losses; however it is increasingly clear that this is a growing and costly form of crime. The
latest anonymous surveys by FBI recorded instances of electronic thefts of up to US$ 500
million.

A cyber terrorist will disrupt the banks, the international financial transactions and the stock
exchanges. Immediate arrest of the terrorist is usually unlikely. The perpetrator is sitting in
another continent while a nation's economic system grinds to a halt.

Technology offers us a chance to beat crime - but it will take innovation, understanding and
education. It is today's research and development that will produce the crime-resistant
products of the future. We must take every possible opportunity to use science and technology
to reduce crime and improve the quality of our lives.

Despite the progress being made in many countries, most countries still rely on standard
terrestrial law to prosecute cyber-crimes. Although I was surprised to see numerous existing
cyber laws on websites, I believe that improved, practical and up-to-date laws should be
introduced to ensure stronger penalties for cyber-thieves and e-criminals. There is also a well-
established need for a model approach regarding the globalization of cyber laws.

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The United Nations Commission on International Trade Law (UNCITRAL) adopted, in June 1996,
the Model Law on Electronic Commerce intended to give states a legislative framework to
remove legal barriers to electronic commerce. The model law provides, among other things
that where the law required a signature, that requirement may be met electronically if the
electronic signature provided a link between the signer and the record (called the ‘data
message’ in the Model Law) and evidence of intent to be associated with the record, both to be
sufficiently reliable for the purposes of the record in the circumstances.

Since the adoption of the Model Law, the Commission has given the Working Group, a mandate
to explore the development of a legal regime applicable to digital signatures and certification
authorities. The scope of the work tentatively includes the legal basis supporting certification
processes including emerging digital authentication and certification technology; the
applicability of the certification process; the allocation of risk and liabilities of users, providers
and third parties in the context of the use of certification techniques, the specific issue of
certification through the use of registries and incorporation by reference.

The UNCITRAL Model is preferred for its universality and harmonious approach. Article 3 of the
Draft UNCITRAL Model says that in the interpretation of this law, regard is to be made to its
international origin and the need to promote uniformity in its application and observance of
good faith and questions concerning matters governed by this law which are not expressly
settled in it are to be settled in conformity with the general principles on which this law is
based.

However, on account of the nature of technology that is involved and also the failure on part of
the existing nation-state specific legal response in uncertain legal understanding, one such area
which posed a fundamental challenge is jurisdiction.

The scope and extent of the law is more important in view of the geographical separation of
the contracting parties. In this context, it is important to take into account the law in Malaysia
under the Computer Crimes Bill, 1997. To confront effectively the emerging problems, in
addition to the enactment of a suitable law, the existing cognate laws have to be attuned and
amended properly to cater to the requirements of the changed and changing scenario. In the
days of e-mail, can our laws be allowed to go un-amended? Must notices be proper only if they
are sent by ‘Registered Post Acknowledgement Due”.

The Courts throughout the world have been dealing with the aforesaid problems and coming up
with inconsistent answers. Sometimes these problems have arisen in separate tight
compartments mentioned above; sometimes in combination with each other. These problems
have arisen in all areas of law. The law (statutory or otherwise) providing answers to these

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problems or dealing with Information Technology are sometimes loosely referred to as
‘Computer Laws’ or ‘Information Technology Laws’ or simply ‘Cyber Laws”.

In Pakistan, the Electronic Transaction Ordinance, 2002 was published in the gazette on
September 11, 2002. In section 2 of the Ordinance, definitions were given. Section 3 is very
important which acknowledges the legal recognition of electronic forms. Sections 4, 5 and 6
deals with the use of electronic media; section 9 defines presumptions relating to the offence
of electric signatures while sections 13, 14, 15 and 16 pertain to electronic documents. Section
18 makes it obligatory for the Federal Government to establish a certification council. The
qualifications of the members, their function and the procedure to be adopted by them is given
in sections 19, 20 and 21. This council is exclusively responsible for granting accreditation to
certification service providers and their cryptology services and security procedures. Section 32
deals with the application to acts done outside Pakistan. Sections 34, 35, 36 and 37 deal with
the offences whilst section 38 lays down punishment of offences to the effect that they shall be
non-bailable, compoundable and cognizable. Section 39 declares that no Court inferior to the
Court of Sessions shall try an offence under the Ordinance.

The Government of Pakistan in the year 2004 started considering a draft bill under the title of
“Electronic Crimes Act, 2004”. Under this draft Act, in section 3, territorial scope of offences
has been defined. This definition covers almost all offences being committed through electric
media. Sections 4 to 9 deal with offences and forgery. Section 10 to 13 deals with the other,
section 18 specifies cyber terrorism and section 19 relates to offences waging cyber war. Under
section 20 enhanced punishments for offences involving sensitive electronic system. Under
section 21 attempts and aiding or abetting has been made a cognizable offence. Section 26
deals with payment of compensation especially investigating agency by the Federal
Government. Under section 31, the powers of investigating officer have been given. Tans-
border access has been provided under section 31 while 32 deals with international
cooperation.

The legislation in Pakistan needs further enlargement, which can be undertaken after
considering the needs of the society.

The traditional legal system is facing great difficulties in keeping pace with the rapid growth of
the internet and its impact throughout the world. Some laws legislated by the countries all over
the world have failed to adequately combat the effect of the Internet. They leave most of the
difficult legal issues to the future. In spite of the recent fluency of legislation worldwide, it is
unlikely that courts and legislatures will be able to provide a sufficient guidance in a timely
fashion to businessmen and lawyers and enable them to effectively combat or otherwise take
advantage of the Internet in a manner that avoids or minimizes unexpected consequences or
liability.
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Today I have only touched the tip of the ice berg of e-laws. Let us hope through legislation and
positive control, Internet would serve mankind in newfound methods and e-crime would only be
found in e-museums.

Thank you
17 July 2006

TAFFAZUL H RIZVI
Advocate Supreme Court
taffazul@rizviandrizvi.com

RIZVI & RIZVI


11 Justice Kayani Road
Lahore-54000
Telephones: 042 712 1791-92
Facsimile: 042 735 3829

_____________________________________

LIST OF REFERENCES

1. Juliet M. Oberding and Terje Norderhang, A Separate Jurisdiction for Cyber Space

2. Electronic Transactions Act, 2001(British Columbia, Canada)

3. Information Technology Act, 2000(India)

4. Data Protection Act, 1998 (United Kingdom)

5. Electronic Communications Act, 2000(United Kingdom).

6. Data Protection act, 1998 (United Kingdoms)

7. Electronic Communications Act, 2000

8. Telecommunications Act, 1984 (United Kingdom)

9. The Electronic Signatures Regulations, 2002 (United Kingdom)

10. Uniform Electronic Transactions Act, 1999 (United States of America)

11. Uniform Computer Information Transactions Act (United States of America)

12. Digital Authority Regulations, 1999

13. Electronic Commerce Act, 2000 (Philippines)

14. Digital Signature Act, 1997 (Malaysia)

15. Law concerning Electronic Signatures and Certification Services, 2000 (Japan)

16. Interpretative Guide-lines on Electronic Commerce, 2002 (Japan)

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17. Electronic Transactions Act, 1998 (Singapore)

18. Singapore Electronic Transactions (Certifying Authority) Regulations, 1999

19. EUROPEAN UNION DIRECTIVE 97/66/ec, December 1997 – Processing of Personal Data and The Protection of
Privacy in the Telecommunications Sector

20. In particular Electronic Commerce, Information Technology Act, 2000 (India)

21. International Review of Criminal Policy - United Nations Manual on the Prevention and Control of Computer
related crimes

22. Mckenzie, 2000.

23. Grabosky & Smith, 2003

24. D.Tedeschi, 2003