An Analysis Of Cybercrime Investigation And Surveillance
- IJLLR Journal
- Jun 14, 2022
- 18 min read
Vaishnavi Gupta, Symbiosis Law School, Hyderabad & Anirudh Thakur, ICFAI Law School, Dehradun
RESEARCH OBJECTIVE
1. To critically analyze cyber-crime and its different forms
2. To study the investigation on cyber crime
3. To throw light on different legislations and practices to curb against the cyber crime
4. To study legality of surveillance through different legislations
5. To analyze the different departments that are working under Indian government for surveillance
1. What is cyber-crime and its classification.
2. Discuss the investigation on cyber-crime in relation to the legislations and judicial responses?
3. Discuss the legality of the surveillance on cyber-crime and work of government.
RESEARCH METHODOLOGY
There are two methods for conducting research work, doctrinal method and non doctrinal method of study. The methodology of this research work can be described as ‘doctrinal’. Doctrinal method of study is done by analysing the materials which are available in the library; it is described as ‘research into the law and legal concepts’. Whereas non doctrinal research requires field work for the research work. Doctrinal method of study is found to be suitable for this research work since it involves theoretical analysis of various issues. Thus, this project researches the law by analysing the legal decisions and legal instruments, such as statutes and judicial decision making in order to identify legal and ethical practice and principles and to draw a conclusion.
1. A study on Cyber -Crime and Cyber Law’s of India by Animesh Sharmah, Roshmi Sharmah, Amlan Jyoti Baruah[1]
In this paper, the authors have critically analysed Cyber -crime and cyber laws. They have discussed various aspects of the crime and safety measures to combat the crime. The authors have discussed various cases related to the crime and various provisions relating to it. The authors have also talked about the evolution of cyber-crime, how it has evolved and what is the impact of these crime on society.
2. Cyber crime investigation issues and challenges by Dattatray Bhagwan Dhainje[2]
In this paper the author has provided the importance and scope of the investigation of the cyber-crime. The author has discussed the stages of the investigation of the crime and has dealt with the various cyber-crimes. The paper deals with the various provisions related to the crime and investigation of the crime. The cyber threats are focusing on individuals businesses and also governments. The tools and instruments poses threat to the security and plays a major role in easing the organized crimes and terrorism. The paper discusses many solutions to the challenges faced by the individuals.
3. Challenges to enforcement of cyber crimes laws and policy by Ajayi, E.F.G[3]
This paper deals with challenges that are faced by the country due to the cyber-crime and to enforce such laws and policy to curb the rapid growth of the crime. there are laws and regulations already present for the crime but still they are not enough to fight the crimes, so there is a need to enforce more strict laws for the cyber-crime. as this not going to end but increase day by day. This paper has talked about many challenges which are there faced by the individuals that makes cyber-crime uncontrollable.
4. Cyber crime and judicial Response in India by Dr. Abhijeet Deb[4]
In this paper, the author have discussed about the information technology and what all covered under the act. He has talked about the technology which is getting advanced day by day and widening its horizon, creating a threat in the mind of the users and challenging the legal system of the countries. It has been discussed that how rapidly the crimes are increasing, and to deal the crimes it is necessary to impose new rules and regulations to combat the crime. The author have explained crimes and its extent by various judgements delivered by the court.
5. Need for an overhaul in investigation and prosecution of cyber crimes in India by Barun Kumar Sahu[5]
In this paper the author has given an overview on the computer forensics and cyber-crime. the author has discussed the importance of computer forensics, investigation and prosecution of the cyber-crimes. He says that technology is not only used by the normal people but also by the criminals and terrorists with the purpose to commit crimes. Therefore, there is dire need of skilled officers and scientific tools to combat the crime with ease. Also if the need will not be fulfilled by the country the country will face more huge problems and will be in a serious stumbling block.
6. State of Cyber Security and surveillance in India- A review of the legal landscape[6]
In this paper, the legal aspects of the cyber security and surveillance has been discussed. The right to privacy which is a fundamental right has also been discussed in the paper. It has given an overview on the surveillance on cyber crime by discussing the legal provisions and discussing the work done by the government to curb cyber-crime. the evidentiary value of the digital evidence and how to produce it before the court, all thse aspects have been discussed in the paper.
Internet is becoming more and more accessible to the majority of people in India. With the participation of Jio in the networking sector, Internet became much cheaper to the general public which led to the increase in the total number of internet users in India from 300 million in 2015 to 700 million in 2020. The government of India and its citizen both have gone digital whether it’s the government portals to pay electricity bill online, paying tax online, or making payments or making use of the banking services, etc. by the general citizen for his day-to-day activities. Moreover, with the pandemic hanging over our heads like a sword the concepts of online learning and working from home have been encouraged. All this has led to more and more data over the internet which can be misused by certain groups of people to commit Cyber-Crime. The NCRB has reported the increase in cases of cyber-crime from 11,592 in 2015 to 44,546 in 2021. Also, as per the report of 2019 of USA’s Internet Crime Complaint Centre (IC3) of the Federal Bureau of Investigation India stands 3rd from the top 20 nations for cyber-crime victims. The government of India back in the early 2000’s realized the need of implementing new cyber laws and enforced the IT Act, 2000 which was later amended in 2008 before this the cases of cyber-crime were dealt with archaic laws such as the Indian Penal Code, 1860. Even after the implementation of the Information Technology Act most of the cases of cyber crime are dealt with Indian Penal code. Even though a number of companies are a victim of cyber-crime but they tend not to come out in the public because it will hamper their reputation and they might lose their users/customers. Esteemed Companies like Adobe, LinkedIn, eBay, Yahoo, etc. have also been a victim of cyber-attacks. This clarifies that if such big companies can be hacked/cracked into then the normal human being stands no chance against these cyber criminals.
Now the question poses, what is Cyber-Crime? Even though neither the Indian Penal code, 1860 or the Information Technology Act, 2000 give a proper definition of cyber-crime but a number of provisions of both these acts deal with various different types of Cyber-Crimes. The general definition of Cyber-Crime states that Cyber-crime is a crime which is committed with the use of a computer and internet. A person need not to have physical contact with the computer or any such device. We Indians throughout our day-to-day activities commit so many cyber-crimes such as downloading movies/songs from the internet and sharing it with our friends. You may not believe but such a petty act also is a cyber-crime. Recently the owner of a renowned torrent website Artem Vaulin was arrested and sent to prison. Apart from this a cyber-crime that we all might have heard about is WannaCry, a ransomware which denied the user access to his computer which also affected certain banks in India in 2017. Cyber-crimes can be as petty as downloading movies through torrent to stealing people’s data or Crores of rupees from a person’s account. Sometimes the cyber-crime includes just an attempt to hamper with a person’s computer or other electronic device for these purposes the hackers put out certain virus in the target’s device in order to hamper with its data.
The Indian investigation agencies are entitled to investigate the cyber-crimes under section 78 of the Information Technology act, which gives the Inspector the power to investigate such offences and under section 80(1) of the same act the power of the police officers is provided. The Indian Investigation agencies should also learn from other countries about computer forensic examinations which is adopted by certain countries.
1) Cyber-Stalking: It is similar to stalking a person in real life. A person’s internet movement is followed and threatening messages are delivered to the victim either in the chat rooms that the victim usually uses or he is sent a huge number of mails.
2) Cyber-squatting: Cyber-squatting is basically done to domain names. A person acquires a domain name which is a trademark of a certain business. This is done so in order to resale the domain name to the business owner at a higher price at a later date.
3) Data Diddling: Data diddling involves a clerk or a certain sort of computer virus which changes the raw data just before it is processes by the computer and then changing it back to its original form. This is done in order to commence fraudulent transactions.
4) Cyber-Defamation: Cyber-Defamation can also be known as Cyber-Bullying. Just like every person has a right to safeguard his reputation in the physical word the same has been extended to the cyber world. Cyber-Defamation includes any act, word, gesture, etc. which is targeted to damage a person’s reputation in the physical word as well as the cyber world.
5) Trojan-Attack: A Trojan is a Virus and is usually found in certain programs. The virus hides it’s tracks and is seen by the system as a legit file and also conceals what the main motive it has.
6) Financial-Crimes: Financial crimes is a crime involving a transaction for money. There are various business transactions that take place on the internet between a consumer and a business owner. But certain corrupt business owners use such transactions to commit fraud and commit white collar crimes. Online auctions, Investment frauds, card payment frauds, etc. are examples of financial Crimes.
7) Internet-Time Theft: In this type of threat a person acquires the username and password given to a person by his ISP, the thief steals this information in order to access internet fraudulently.
8) Virus/Worm Attack: A virus or a worm tends to replicates itself and spread itself across the files on a computer. It usually is found in contaminated file which then contaminates all the files one by one present in the computer. The virus can also infect other computers attached to the same network. Unlike, a trojan a worm doesn’t need a program to do its work. They will keep replicating themselves and alter files on the system and sometimes they also delete the system files on a computer rendering the computer completely useless.
9) E-mail Spoofing: Email spoofing is done in order to gain access to a specific information such as credentials of a person to specific bank account or business account this is done by misrepresenting the origin of the mail. So that it looks like the email has been sent by the trusted origin.
10) Email Bombing: In email bombing a huge number of emails are sent to a targets email account in order to crash the mailing server.
11) Salami attack: A salami attack is a financial crime and is done to computer networking system usually of banks. In this attack the debt a person back account in increased by a small amount such as few cents, it is done over and over with files of several different bank accounts. The main thing about this attack is that the change in the amount is so low that it is very hard to detect.
12) Web-Jacking: Web-jacking is done with an agenda either to leak certain political information or in order to have a monetary gain. In this cyber-crime a person website/domain is hijacked and the information over it is altered or deleted or changed.
13) Cyber-Terrorism: Cyber-terrorism is a threat to all of internet users. It involves use of tools like worms, viruses, phishing, other malicious programs and scripts in order to disrupt computer networks, denial of service to a number of people, leak or steal information, infiltrate government websites in order to steal its citizens information, infiltrating government defense websites to gather sensitive information, infiltrating power plants network, etc.
Cyber-crime investigation needs certain skills and some scientific instruments through which it can be conducted and without these skills it is not possible. There are some provisions which are of CrPC, Evidence Act have been amended due to the IT Act, 2000 also, some new regulations were enforced by ILS to combat the need of the investigation of cyber-crime. The importance for investigation is to make the country understand the legality of cybersecurity and to balance the legal framework. As day by day on both national and international level the growth of cyber threat is increasing and this will assist the country in implementing a better legal base.
The power has been granted to the police officer to investigate the accused regarding the cyber-crime, it has been provided under Section 78[7] of IT Act, 2000. The provisions under CrPc and IPC were also amended to meet the need of investigation of cyber-crime as the IT Act is not enough to combat the crime. And due to this, the crime under IT Act, that is, cyber-crime will be dealt just as another crime and be registered and investigated by the police officer.
Under Section 80 of IT Act, it is given that a police officer and other officers can enter any public place, search and arrest without a warrant any person who is a reasonable suspect of the crime or who is about to commit the crime under the IT Act.
There are many loopholes in the internal system due to the gap between the stages of the investigation, reporting, arresting the suspect and then prosecuting the accused in the case. The laws regarding cyber-crime have been already enacted by our country, still they are not done in a manner it should be done. The methods for conducting the investigation has been provided in the manual regarding cyber-crimes. Therefore, to conduct in a manner without any ambiguity a SOP is required.
The jurisdiction has been a major problem for the police officer in the cyber-crime cases. As a sense of confusion is set in the mind of the officers that in whose jurisdiction will the specific case falls. But Section 75 of IT Act, 2000 deals with extra territorial ioperations of the law. But they could only be applied when the orders and warrants for the information that is issued by the authorities outside the jurisdiction.
The “importance of Standard Operating Procedures is to develop the investigation process correct from preserving the crime scene and identifying the materials to be collected, until then the chargesheet is filed and after that the evidence is produced before the court.
Evidence must be gathered in a manner accepted by a court. It becomes easier when standard procedures are formulated and followed. It also facilitates the exchange of evidence in cases with inter-ministerial and international implications, especially when investigators from all departments and countries collect evidence in the same way.
Care should be taken to avoid anything that could corrupt the data or cause other damage, even if it happens accidentally. The use of standard methods and procedures minimizes the risk of damage. In some cases, it is inevitable that some data will be changed or overwritten during the verification process. Therefore, a thorough knowledge of the technology used for testing and its documentation is required so that the cause or effect can be explained later in court.
Some of the main reasons for collecting inappropriate evidence are poorly written policies, the lack of an established incident response plan, and incident response training. This could lead to a break in the chain of custody.”[8]
As mentioned above, the characteristics of crime scene investigations have evolved over the past decades in such a way that there is a need to think about skills and traits as well. “We argue that those involved in forensic investigations should have a holistic view and knowledge of their field from four perspectives: technical (what is possible); professional (what is allowed); practical (which is appropriate); ethical (which is correct and legal). Technical expertise consists of understanding digital information and communication technologies. Crime scene investigation (physically or on a computer) should be conducted in a professional manner.”
In Shreya Singhal v. Union of India,[9] the validity of Section 66A of the IT Act, 2000 was challenged before the SC by the petitioner on the ground that it is violating her freedom of speech and expression. In observance, the court said that the section 66A is criticizing the statements that are troublesome for individuals but they are not defaming anybody’s reputation. Hence, the court held that it is not violative of Article 14 of the Indian Constitution.
In this case, because it has silenced several criticisms of the inability of the police in general to investigate cybercrime and, more importantly, to produce satisfactory evidence to prove the case in court. Therefore, this case is considered central in the history of cybercrime management in India. The case concerned the publication of obscene, defamatory and annoying information about a divorced woman on the Yahoo news group. E-mails were also sent to the victim to obtain information from the accused through a fake e-mail account that he opened on behalf of the victim. Sending the message caused annoying phone calls to the lady, believing she was asking for publicity. The court also found that the company's careful investigation revealed the origin of the obscene message and brought the real culprit to justice.[10]
In a case, an employee was arrested for manipulating ESN. The question in the court of law arose that whether the phone is covered within the ambit of the computer as given under Section 2 (1) (i) of the IT Act. The court in Syed Asifuddin and Ors. V. State of Andhra Pradesh and Anr.[11]said that the definition of computer as given under Section 2 (1) (i) of the Act, covers the ambit of the phone and will be defined under the given Section of the IT Act.
In this case, the court observed that Mr. Avnish was not involved in broadcasting of the cyber pornography. Instead, someone else was involved in the matter and used the platform of bazee.com to broadcast the pornographic material. As on investigation, the material could not be found on the web pages of the accused. The court however, grated him bail and said that he was a mere service provider and is not involved in such activities.[12]
Surveillance in India was an accepted practice until recently when the Supreme court of India gave its verdict on right to privacy with respect to police surveillance in the two landmark cases. Which made the surveillance by police authorities a controversial topic as in one of the landmark case the Apex court struck down the surveillance carried on by the police authorities stating that they were done without having proper clearance whereas in another case The Apex court declared it perfectly fit for the police authorities to carry on surveillance. In the present era most of the surveillance is done by phone tapping or intercepting telecommunication messages. In India at present only two legislations deal with surveillance which are The Information technology act, 2000 and the Telegraph Act, 1885. The telegraph act is an archaic law which gave rise to legal jurisprudence on surveillance.
The relevant provision of the Indian Telegraph act which deals with surveillance is section 5 of the act, it empowers both the Centre and State governments to intercept messages in certain circumstances: 1) In case any Public emergency arises or when there is public safety involved and 2) If it is necessary to conduct under the following circumstances:
i. To safeguard the sovereignty and integrity of India;
ii. The security of a state is in danger;
iii. Friendly relation with other foreign states is at risk
iv. To maintain public order
v. For preventing any sort of provocation to commit an offense.
The Supreme Court of India has given the meaning of the terms ‘Public emergency’ and ‘Public Safety’ as follows:
According to The Supreme Court of India, ‘Public Emergency’ is a sudden condition or such an affair which affects a huge number of people and requires Immediate action Whereas the expression ‘Public Safety’ means when the people at large are at risk or danger. As per the court if none of these conditions are present the investigation authorities are not entitled to phone tapping even though the agency feels like they need to do so. What it basically means is that even though Central Government it is mandatory to safeguard the sovereignty and integrity or security of India or to prevent any sort of provocation, the government cannot resort to phone tapping or intercepting messages until and unless a public emergency has occurred or it needs to be done in interest of public safety. Any one of the situations will enable the government to conduct surveillance without violating any laws.
The IT act, regulates the surveillance and collection of all the digital communication information in India. The section 69 of the act states that the Central and the State government has the power to issue directions to monitor, intercept, decrypt any information which is transferred from or to a computer. The act was later amended in the year 2008 gave this provision. The act also provides certain grounds on which the police officials can intercept the information. The grounds are as follows:
i. When the sovereignty and Integrity of India is at risk;
ii. When the defense services are involved and at risk;
iii. When the security of state is in danger;
iv. When friendly relation with foreign states is in danger
v. When public order may be disrupted
vi. In order to prevent any sort of provocation to cause a cognizable offense;
vii. For investigating any offense
As it can be seen the grounds for conducting surveillance are almost the same between both the acts, the only difference being that in The Information Technology Act, 2000 provocation of cognizable offense is there and in Telegraph Act only an offense is mentioned. The Information technology Act, 2000 does not overrule the Telegraph Act in case of public emergency or when the public safety is concerned. Moreover, the section 69 of the Information Technology Act, 2000 also states that if a person fails to help/assist an agency in conduction surveillance and collecting data, the person shall be sentenced to imprisonment under 7 years and will also be liable for a fine.
In recent time a number of new departments and agencies were established by the Indian Government for conducting surveillance in cyberspace, the various department and agencies are as follows:
National Intelligence Grid
The main of the National Intelligence grid is to act as a medium to transfer information saved on various servers and networks of different ministries and departments of the government so that all the departments and intelligence agencies can access information of various different department anytime making it a hassle-free process.
Crime and Criminal Tracking Network System (CCTNS)
The motive to build this system was to create a database of all the criminals and crimes so that each police station can access all the information about a particular criminal. The System collects, stores, analyzes. transfers data between police stations and state headquarters.
Central Monitoring System
This system monitors every byte of communication which includes a text, call, other online activities such as social media conversation, etc. This system was made by The Telecom Enforcement Resource Monitoring and Center for Development of Telematics (CDoT). the system is managed and monitored by The Intelligence Bureau of India. Facebook and Twitter are also monitored by this system.
Unique Identification Authority of India (UID Scheme)
We all are holding AADHAR cards which are having all of our basic information including our fingerprints. The UID scheme aims to give a special identity to every citizen of the country. The number which is given on our AADHAR card is our unique Identification number.
Indian Computer Emergency Response Team (CERT-IN)
Came into force on January of 2004, The Indian Computer Emergency Response Team is an agency of the Indian government responsible in case any incident related to computer security occurs. The agency has been formed under the Information Technology act amendment of 2008. This agency does not work as a surveillance agency but as a retaliatory agency in case any cyber security attack happens anywhere in the entire Nation.
National Counter-Terrorism Center (NCTC)
After the 26/11 attacks on Mumbai, there was a need of new intelligence agency in India as the attacks of 26/11 were the biggest failure of intelligence agencies of India. The National Counter Terrorism Center was proposed to be made which will be empowered by the Unlawful Activities Prevention Act, 1967. The NCTC will be treated as part of Intelligence Bureau headed by a director.
It is concluded that cybercrime is not necessarily a new crime. This claim is further substantiated when it is stated that “for the first time, criminals can cross international boundaries without using passports or official documents.” Cybercrime is inherently transnational. “As efforts are made to harmonize the various legal frameworks at the international level, the need for operational coordination and cooperation across socio-cultural boundaries should not be overlooked. Traditional crime is very different from cybercrime as a phenomenon. While a seasoned forensic investigator recognizes best practices for dealing with a traditional crime scene, few know how to set boundaries and choose what is relevant in such an abstract and intangible cyber environment. It is not only a technical problem, but a large socio-cultural and collaborative problem which becomes even more complex due to its transnational nature. To further intensify the challenges a cybercrime investigator faces, advancements in the use of digital technologies to support business and personal activities have created potentially vulnerable operating environments.” Criminals have many ways to use digital tools to do their jobs. The Internet is used to distribute child pornography. Sophisticated fraud is committed by identity theft.You could say that cybercrime is now the “everyday” crime of the new era. It is no longer the specialist groups that should be able to act against cybercrime, but your local investigator in cooperation with local investigators, possibly in another country.In the present era most of the surveillance is done by phone tapping or intercepting telecommunication messages.
Considering this emerging trend of cyber-crime, it is the high time for the country to to look into the matter and reform and establish investigating body to effective prosecution of these cyber-crime. There is a complete requirement of trained police officers for implementing the mehtodolgy of criminal investigation on the crime scene.
[1] Animesh Sharmah, Roshmi Sharmah & Amlan Jyoti Bharuah, A study on Cyber -Crime and Cyber Law’s of India. [2] Dattatray Bhagwan Dhainje, Cyber-crime investigations issues and challenges, 5 International Journal of Law 129–134, http://www.lawjournals.org/archives/2019/vol5/issue6/5-6-52. [3] Ajayi - 2016 - Challenges to enforcement of cyber-crimes laws and.pdf, , https://academicjournals.org/journal/JIIS/article-full-text-pdf/930ADF960210 (last visited May 8, 2021). [4] Abhijeet Deb, Cyber Crime and Judicial Response in India, 3 Indian Journal of Law and Justice (2012), heinonline.org. [5] Barun Kumar Sahu, Need for an Overhaul in Investigation and Prosecution of Cyber Crimes in India 4. [6] state-of-cyber-security-and-surveillance-in-india.pdf, , https://cis-india.org/internet-governance/blog/state-of-cyber-security-and-surveillance-in-india.pdf (last visited May 8, 2021). [7]“notwithstanding anything contained in the Code of Criminal Procedure, 1973, a police officer not below the rank of Inspector shall investigate any offence under this Act” [8] Niryat Bhawan & Rao Tula Ram Marg, Cyber Crime Investigation Manual 137. [9] (2013) 12 SCC 73 [10] State of Tamil Nadu v Suhas Katti (CC no 4680 of 2004) [11] 2006 (1) ALD (CRI) 96 [12] Avinash Bajaj v State of Delhi, 116 (2005) DLT 427
