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5 J. Int'l Com. L. & Tech. 22 (2010)
Cyber Crime Law in India: Has Law Kept Pace with Engineering Trends - An Empirical Study

handle is hein.journals/jcolate5 and id is 22 raw text is: Cyber Crime Law in India: Has Law Kept Pace with Emerging Trends? An Empirical Study * N. S. Nappinai nappinai gmail.com Abstract. India owes a lot to the exponential growth of the Information Technology service Industry over the last 15 years. Though India got its first codified Act in the Information Technology Act (IT Act), in the year 2000, the IT Industry and in fact all businesses with cross-border obligations have been left crying themselves hoarse for more! The Indian Legislature has now passed a mish- mash legislation in December 2008, which clearly demonstrates the appeasement policy adapted to meet the various and in some instances divergent interests of the Industry and the Government. The scope of this paper is to highlight some important provisions of the cyber criminal laws in India relating to data protection, privacy, encryption and other cyber crimes and the extent to which the said provisions arm the enforcement authorities to combat not just existing but emerging trends in Cyber Crime. 1. Introduction The general laws in India were drafted and enacted in the 19th century1. Whilst each of the general laws have undergone modifications and amendments, the broad and underlying provisions have withstood the test of time, including unimaginable advancements in technology, which speaks to the dynamism of the General laws. The general laws referred to in this Article are the Indian Penal Code, 1860 (IPC), which is the general penal law of India and the Indian Evidence Act, 1872 (Evidence Act), the general law pertaining to admissibility of evidence in civil and criminal trials. The manner in which trial of criminal cases are to be conducted is dealt with under the Criminal Procedure Code, 1973 (Cr. P. C). India got its first codified Act in the Information Technology Act, 2000 (IT Act), which fell far short of the Industry's requirements to meet global standards. The focus if the IT Act was however recognition of electronic records and facilitation of e -commerce. Barely ten sections were incorporated in the IT Act to deal with Cyber Crime2. At the time when the IT Act was passed several acts deemed to be illegal in most jurisdictions including virus attacks, data theft, illegal access to data / accessing and removal of data without the consent of the owner, etc., were listed as civil penalties under the IT Act3. The IT Industry continued to rely on self-regulation and contractual undertakings to appease its global clients, as it had done before the passing of the IT Act. The primary offences under the IT Act were: Tampering with source code4; Deleting, destroying or altering any data on any computer resource with mala fide intent to cause wrongful loss or to diminish its value5; Publishing or transmitting pornographic material through a computer resource; * Provisions pertaining to encryption technology, the right of the Government authorities to intercept and decrypt such data and to call upon any entity or individual to decrypt such data were also included in the IT Act. Certain acts affecting the integrity and sovereignty of the nation were classified as offences. The saving grace of the IT Act were the amendments carried out to the IPC and Evidence Act, which to some extent provided for prosecution of rampant offences like the Nigerian Scams6, Phishing and other Banking * This paper was originally published in Kierkegaard, S. (2009) Legal Discourse in Cyberlaw and Trade. IAITL. 1The Indian Penal Code, 1860 & the Indian Evidence Act, 1872; 2 The phrase Cyber Crime is not defined in any enactment in India. This to some extent leads to some confusion whilst enforcing the various provisions spread over the Special and general laws, as more fully set out in the Article; 3S.43 of the IT Act; 4 S.65 of the IT Act; 5 S.66 - misleadingly termed Hacking under the IT Act; 22

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