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“The modern thief can steal more with a computer than with a gun. Tomorrow’s terrorists may be able to do more damage with a keyboard than with a bomb.” – National Research Council, USA “Computers at Risk” 1991
“Cyber” is a prefix used to describe a person, thing, or idea as part of the computer and information age. Taken from “kybernetes”, Greek word for “steersman” or “governor,” it was first used in cybernetics, a word coined by Norbert Wiener and his colleagues. The virtual world of internet is known as cyberspace and the laws governing this area are known as Cyber laws and all the netizens of this space come under the ambit of these laws as it carries a kind of universal jurisdiction.
What is Cyber Law?
Cyber Law is the law governing cyberspace. Cyberspace is a very wide term and includes computers, networks, software, data storage devices (such as hard disks, USB disks etc.), the Internet, websites, emails and even electronic devices such as cell phones, ATM machines etc. Cyber Law encompasses laws relating to Cyber Crimes, Electronic and Digital Signatures, Intellectual Property, and Data Protection and Privacy.
Need for Cyber Law
In today’s techno-savvy environment, the world is becoming more and more digitally sophisticated and so are the crimes. Internet was initially developed as a research and information sharing tool and was in an unregulated manner. As time passed, it became more transactional with e-business, e-commerce, e-governance and e-procurement etc.
All legal issues related to internet crime are dealt with through cyber laws. As the number of internet users is on the rise, the need for cyber laws and their application has also gathered great momentum.
Technology per se is never a disputed issue, but for whom and at what cost has been the issue in the ambit of governance. The cyber revolution holds the promise of quickly reaching the masses as opposed to the earlier technologies, which had a trickledown effect. Such a promise and potential can only be realized with an appropriate legal regime based on a given socio-economic matrix.
Significance of Cyber Laws
In the 49th year of Indian independence, Internet was commercially introduced in India. The beginnings of Internet were small and the growth of subscribers painfully slow.However, as internet has grown, the need has been felt to enact the relevant Cyber laws, which are necessary to regulate Internet in India. This need for Cyber laws was propelled by numerous factors.
Firstly, India has an extremely detailed and well-defined legal system in place. Numerous laws have been enacted and implemented and the supreme among them is The Constitution of India. However, the arrival of Internet signalled the beginning of the rise of new and complex legal issues. It may be pertinent to mention that all the existing laws in place in India were enacted keeping in mind the relevant political, social, economic, and cultural scenario of that time. Nobody then could really visualize the emergence of the Internet.
Despite the brilliant intelligence of our master draftsmen, the requirements of cyberspace could hardly be anticipated. The advancement led to the arrival of numerous complex legal issues and problems, which demanded the enactment of Cyber Laws.
Secondly, the existing laws of India could not be interpreted in the light of the emerging cyberspace, to include all aspects relating to different activities in cyberspace.
Thirdly, none of the existing laws gave any legal strength or consent to the activities in Cyberspace. For example, the Net is used by a large majority of users for email purposes, yet, e-mail was not “legal” in our country. There was no law in the country, which permitted legal sanctity to e-mail and the electronic format. The judiciary in our country had been reluctant to grant judicial recognition to the legality of e-mail in the absence of any specific law having been enacted by Parliament on the subject. Thus, the need arose for enacting Cyber Law in our country.
Lastly, Internet requires a supporting and helpful legal infrastructure in time with the times. This legal infrastructure can only be given by the enactment of the relevant Cyber Laws as the traditional laws have failed to provide it. E-commerce, the biggest future of Internet, can only be possible if necessary legal infrastructure complements the same to enable its vibrant growth.
Cyber-ethics is the study of moral, legal, and social issues involving cyber-technology. It examines the impact that cyber-technology has for our social, legal, and moral systems.It also evaluates the social policies and laws that have been framed in response to issues generated by the development and use of cyber-technology. Hence, there is a reciprocal relationship here.
Cyber-ethics is a more accurate label than computer-ethics, which might suggest the study of ethical issues limited to computing machines, or to computing professionals.It is more accurate than Internet ethics, which is limited only to ethical issues affecting computer networks.
In the late 19th century, the invention of cameras spurred similar ethical debates as the internet does today. During a Harvard Law Review seminar in 1890, Warren and Brandeis defined privacy from an ethical and moral point of view to be “central to dignity and individuality and personhood.
Privacy is also indispensable to a sense of autonomy — to ‘a feeling that there is an area of an individual’s life that is totally under his or her control, an area that is free from outside intrusion.’ The deprivation of privacy can even endanger a person’s health.”
Over 100 years later, the internet and proliferation of private data through governments and e-commerce is a phenomenon which requires a new round of ethical debate involving a person’s privacy?
Privacy can be decomposed to the limitation of others’ access to an individual with “three elements of secrecy, anonymity, and solitude.” Anonymity refers to the individual’s right to protection from undesired attention. Solitude refers to the lack of physical proximity of an individual to others. Secrecy refers to the protection of personalized information from being freely distributed.
Individuals surrender private information when conducting transactions and registering for services. Ethical business practice protects the privacy of their customers by securing information which may contribute to the loss of secrecy, anonymity, and solitude. Credit card information, social security numbers, phone numbers, mothers’ maiden names, addresses and phone numbers freely collected and shared over the internet may lead to a loss of privacy.
Ethical debate has long included the concept of property. This concept has created many clashes in the world of cyber-ethics. One philosophy of the internet is centered on the freedom of information. The controversy over ownership occurs when the property of information is infringed upon or uncertain.
Intellectual Property Rights
The ever-increasing speed of the internet and the emergence of compression technology, such as mp3 opened the doors to Peer-to-Peer file sharing, a technology that allowed users to anonymously transfer files to each other, previously seen on programs such as Napster or now seen through communications protocol such as BitTorrent. Much of this, however, was copyrighted music and illegal to transfer to other users. Whether it is ethical to transfer copyrighted media is another question.
Proponents of unrestricted file sharing point out how file sharing has given people broader and faster access to media, has increased exposure to new artists, and has reduced the costs of transferring media (including less environmental damage).
Supporters of restrictions on file sharing argue that we must protect the income of our artists and other people who work to create our media. This argument is partially answered by pointing to the small proportion of money artists receive from the legitimate sale of media.
We also see a similar debate over intellectual property rights in respect to software ownership. The two opposing views are for closed source software distributed under restrictive licenses or for free and open source software. The argument can be made that restrictions are required because companies would not invest weeks and months in development if there is no incentive for revenue generated from sales and licensing fees.
A counter-argument to this is that standing on shoulders of giants is far cheaper when the giants don’t hold IP rights. Some proponents for open source believe that all programs should be available to anyone who wants to study them.
Accessibility, Censorship and Filtering
Accessibility, censorship and filtering bring up many ethical issues that have several branches in cyber-ethics. Many questions have arisen which continue to challenge our understanding of privacy, security and our participation in society. Throughout the centuries mechanisms have been constructed in the name of protection and security.
Today the applications are in the form of software that filters domains and content so that they may not be easily accessed or obtained without elaborate circumvention or on a personal and business level through free or content-control software. Internet censorship and filtering are used to control or suppress the publishing or accessing of information.
The legal issues are similar to offline censorship and filtering. The same arguments that apply to offline censorship and filtering apply to online censorship and filtering; whether people are better off with free access to information or should be protected from what is considered by a governing body as harmful, indecent or illicit. The fear of access by minors drives much of the concern and many online advocate groups have sprung up to raise awareness and of controlling the accessibility of minors to the internet.
Censorship and filtering occurs on small to large scales, whether it be a company restricting their employees’ access to cyberspace by blocking certain websites which are deemed as relevant only to personal usage and therefore damaging to productivity or on a larger scale where a government creates large firewalls which censor and filter access to certain information available online frequently from outside their country to their citizens and anyone within their borders.
One of the most famous examples of a country controlling access is the Golden Shield Project, also referred to as the Great Firewall of China, a censorship and surveillance project set up and operated by the People’s Republic of China.
Another instance is the 2000 case of the League Against Racism and Antisemitism (LICRA), French Union of Jewish Students, vs. Yahoo! Inc. (USA) and Yahoo! France, where the French Court declared that “access by French Internet users to the auction website containing Nazi objects constituted a contravention of French law and an offence to the ‘collective memory’ of the country and that the simple act of displaying such objects (e.g. exhibition of uniforms, insignia or emblems resembling those worn or displayed by the Nazis) in France constitutes a violation of the Article R645-1 of the Penal Code and is therefore considered as a threat to internal public order.” Since the French judicial ruling many websites must abide by the rules of the countries in which they are accessible.
Freedom of Information
Freedom of information, that is the freedom of speech as well as the freedom to seek, obtain and impart information brings up the question of who or what, has the jurisdiction in cyberspace. The right of freedom of information is commonly subject to limitations dependent upon the country, society and culture concerned.
Generally there are three standpoints on the issue as it relates to the internet. First is the argument that the internet is a form of media, put out and accessed by citizens of governments and therefore should be regulated by each individual government within the borders of their respective jurisdictions.
Second, is that, “Governments of the Industrial World… have no sovereignty [over the internet] … We have no elected government, nor are we likely to have one, … You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear.”
A third party believes that the internet supersedes all tangible borders such as the borders of countries, authority should be given to an international body since what is legal in one country may be against the law in the other.
An issue specific to the ethical issues of the freedom of information is what is known as the digital divide. This refers to the unequal socio-economic divide between those who have access to digital and information technology such as cyberspace and those who have limited or no access at all. This gap of access between countries or regions of the world is called the global digital divide.
Sexuality and Pornography
Sexuality in terms of sexual orientation, infidelity, sex with or between minors, public display and pornography have always stirred ethical controversy. These issues are reflected online to varying degrees. In terms of its resonance, the historical development of the online pornography industry and user-generated content have been the studied by media academics. One of the largest cyber-ethical debates is over the regulation, distribution and accessibility of pornography online.
Hard-core pornographic material is generally controlled by governments with laws regarding how old one has to be to obtain it and what forms are acceptable or not. The availability of pornography online calls into question jurisdiction as well as brings up the problem of regulation in particular over child pornography, which is illegal in most countries, as well as pornography involving violence or animals, which is restricted within most countries.
Gambling is often a topic in ethical debate as some view it as inherently wrong and support prohibition while others support no legal interference at all. “Between these extremes lies a multitude of opinions on what types of gambling the government should permit and where it should be allowed to take place. Discussion of gambling forces public policy makers to deal with issues as diverse as addiction, tribal rights, taxation, senior living, professional and college sports, organized crime, neurobiology, suicide, divorce, and religion.”
Due to its controversy gambling is either banned or heavily controlled on local or national levels. The accessibility of the internet and its ability to cross geographic-borders has led to illegal online gambling, and often offshore operations. Over the years online gambling, both legal and illegal, has grown exponentially which has led to difficulties in regulation. This enormous growth has even called into question by some the ethical place of gambling.
– Keshav Basotia
Content Editor @ Legal Bites
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