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JURIDICTIONAL ISSUES IN CYBER CRIME NAME OF THE PARTICIPANT:Shika Rani EMAIL-ID : shikhakhandelia1992@gmail.

com, CONTACT: 8986931701 NAME OF COLLEGE: Chanakya National Law University, Patna

ABSTRACT Cybercrime is a primary example of cross-border crime, and so, it raises the issue of jurisdiction. This is a tricky issue. Acts on the Internet that are legal in the state where they are initiated may be illegal in other states, even though the act is not particularly targeted at that state. Jurisdiction conflicts abound, both negative (no state claims jurisdiction) and positive (several states claim jurisdiction at the same time). Above all, it is unclear just what constitutes jurisdiction: is it the place of the act, the country of residence of the perpetrator, the location of the effect, or the nationality of the owner of the computer that is under attack? Or all of these at once? It turns out that countries think quite differently on this issue. The cybercrime statutes of numerous countries show varying and diverging jurisdiction clauses. In this article, these varying approaches are outlined, by indicating when states claim jurisdiction and which factors influence that claim. The survey of jurisdiction provisions includes several US states and federal US law, Belgium, Germany, the Netherlands, Malaysia, Singapore, and the Australian state of Tasmania, as well as the Council of Europe's Cybercrime Convention. This - eclectic - collection of states is chosen for having interesting jurisdiction clauses with respect to cybercrime.
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Keywords: Cybercrime, Jurisdiction, Internet.

1.INTRODUCTION In recent years, use of the Internet has grown at an explosive rate. However, there currently exists no single entity to control the enormous amount of information that is transmitted through it. In 1969, the early roots of the Internet were created as an experimental project of the Advanced Research Project Agency.2 In its beginnings, the Internet was essentially a network of linked computers owned by the military, defence contractors, and university laboratories conducting defence-related research. This network was specifically designed to be a decentralized and completely self-maintaining system, which was capable of Jurisdiction is the worst casualty of the technological spree. Though jurisdiction, especially the territorial aspect of it, has remained a complex issue in transnational and organised crimes. Those questions are much more common in computer and internet crimes.1 By their very nature, the majority of internet crimes whether cyber stalking, unauthorised access, spamming or any type are done remotely, very often from a different state or country. While some statutes

F. Lawrence Street, Mark P. Grant, Law of the Internet(Lexis Nexis, 2004) 7.04, 7-18

such as the CFAA as shown in united statesv. ivanov2 explicitly state they are to be applied extraterritorially, many contain no such provisions and leave the jurisdictional question for courts to decide.3

2.TRADITIONAL PRINCIPLES OF JURISDICTION Cybercrimes have extraterritorial aspect4. Jurisdiction in relation to state is understood as the terrestrial area within which the sovereign power of the administrator can be exercised. Jurisdiction in relation to a court is the area and the subject regarding which a court has power to take cognizance and to try a case. Thus, judicial jurisdiction can be defined in the following words; The scope of the courts power to examine and determine the acts, interpret and apply laws, make orders declare judgements. Geographic area, the type of parties aho appear, the types of relief that can be sought, and the point to be decided may limit jurisdiction.5 The concept of judicial jurisdiction of court emanates from the sovereignty theory and territorial theory. Under this classic formulation, each state is supreme and has unquestionable authority within its geographical limits. Outside a states border, was another nation or state with the completion authority over its own territory, foreclosing the exercise of jurisdiction by any other state? it was considered as a direct attack on a states sovereignty if a judicial process of a foreign state is exercised omits territory. Thus, the territorial paradigm enables a court to readily assert personal jurisdiction over a defendant. In the pre internet period, personal jurisdiction was understood in terms of territoriality.6 The physical presence theory is one of the of the core theories on which a court may claim to exercise jurisdiction over a defendant. So powerful is the rule that a wrong jurisdiction nullifies the most equitable verdict. Interaction among different societies be it on commercial level, contractual level, a social level, is as old as the humans himself. Criminal link between different communities or countries, though on individual level is also a part of it. This interaction gives rise to several legal complexities when it comes to dispute resolution, settlements of rights or punishing a criminal, as legal provisions of various societies are varied to each other.
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175 F Supp 2d367(D Conn 2001) F. Lawrence Street, Mark P. Grant, Law of the Internet(Lexis Nexis, 2004) 7.04, 7-18 4 rd Chris Reed (Ed.), Computer Law(3 Edn. Oxford University Press, 2003) 319 5 Nygh PE& ButtP (Eds.), Butterworths Australian Legal Dictionary 6 Ibid

Internet jurisdiction; Lex loci delicti rule When own is online, one is almost everywhere. While jurisdiction in erstwhile interpretationspelled limitation of some sort, be it subject matter related to territorial, in the internet age it means earth wide.

3.Areas of conflict While the internet absolutely negates tangibility and terrestrial forms; applicability of laws of the physical world are to bound to face unprecedented legal hardships. the main Ares of conflict are discussed in the subsequent sections.7 Inter sovereign conflict Extension of laws of one state to another has been an unimaginable concept unless it is backed by some treaty between the two states. For the internet environment , this is first requirement as the borderless world knows no such established norms. The conflict thus arises. This conflict has occurred in several cases like yahoo Inc. v.La Ligue RacismeetLAntimitisie8 Over inclusiveness Most of the traditional theories of jurisdiction are over- inclusive in relation to the internet because they allow for the almost unlimited exercise of judicial jurisdiction.9 The traditional view rest on the concept that every sovereign state ha sun questionable authority within its geographical limits but when a website is created, the server is physically located within the boundaries of the state concerned. while such state, as according to traditional notion, ha legitimate control over its subject and over the physical infrastructure of the internet (server,etc), the particular web page being visible in any part of the globe, all the 300 states of the planet may have; applying the same traditional notions, equal authority and interest. Recognising the equal rights of all the states, there is witnessed a conundrum of jurisdictional powers; the over inclusiveness. Under inclusiveness

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Ibid 2001 US Dist LEXIS 18378(ND Cal 7-11-2001). 9 See, Adria Allen, internet jurisdiction today(2001)22 j Int1 L & Bus 69.

Another dimension of the traditional theories is that it advocates the limits of a states authority within its territorial boundaries. It shuns the idea of crossing these boundaries. In the internet surroundings, if a dispute arises(which is happening daily) where the plaintiff and the defendant are from two different jurisdiction then the concerned states are forbidden to cross the limits. thus, the under inclusiveness is revealed because the states that want to regulate internet activities cannot effectively enforce their laws against purveyors of harmful material through the internet who are located outside their territorial borders.10 A survey below will show how the most important ones have responded to the problem in their own special way. 3.1UK STAND The cauldron of the internet-related legal issues is boiling hot with little in hand to stop overflow. Enforceability and jurisdiction remains the topmost issues even in traditional legal forts like the UK

In UK, the criminal liability is based on either possession or distribution of the obscene Material. The situation is explained thus, suppose a non UK Person makes obscene material available via website though viewed in UK, is hosted outside it. In such a case if the we bite is posted in such a country where the material is not unlawful then the person has not committed any offence of processing the obscene material in UK. but the question is whether such person can be held liable for distributing the material in UK? The answer depends on the manner of availability of the incriminating materials11 .

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Ibid

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If the website is freely available, then it is concluded that distribution takes place only whether the website is hosted and not in UK but if the material is made available on request by the viewers by entering the sites uniform resource locator(URL) into the bro wser software of the user and it is not 11 easy to identify the jurisdiction from which the request comes, then too the host is not liable because the situation is analogous to entering the jurisdiction physically and maintain the material outside the UK If the website is paid one or if it requires registration then this will be enough to give the website controller requisite knowledge that the incriminating material will be transmitted in UK in which case he is liable as a distributor.

3.2US STAND Some writers are of the opinion that the birth of the internet had signalled a near evisceration of traditional choice of law analysis12 . Traditionally speaking the us constitution requires minimum contacts between a potential defendant and the forum state. The two constitutional tests regarding the certain jurisdiction over a foreign defendant were laid down in international sue corp. V. Washington 60, which requires (a)Where the defendant had sufficient minimum contact with the forum state for due process to justify assertion of jurisdiction, and (B) whether the assertion of jurisdiction offends traditional notion of foreplay and substantial justice, thus in the past geographical and terrestrial consideration where the deciding factors in ascertaining jurisdiction. In internet transaction the minimum contact test is made by establishing the internet related actions whish are but certain electronic transmission to decide whether there are sufficient minimum contracts before a particular court to assert jurisdiction. Thus in US, the court has taken electronic transmission into or other electronic commissions with the forum jurisdiction as the basis of jurisdiction. But some courts have that using an electronic network does not subject the user to jurisdiction everywhere.13 The crucial issue of applicability of personal jurisdiction to internet activities is being debated in legal circles in US, where the judiciary opined that where availability of a website is not enough to establish minimum contact so as to exercise jurisdiction over it.

To do so would have a devastating effect on those who use the internet 14.the judicial activities in all these cases. Lead to the formulation of two general lines of analysis in determining jurisdiction on the basis of internet activity.

These two guidelines are:1. A sliding scale approach, seeks to classify the nature and the quality; of the commercial activity, if any that the defendant conducts over the internet. The 2 nd analysis seeks to determine to what the defendants international conduct outside the forum state.

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Cyberspace has no territorially based boundaries, as the cost and speed of message transmission on the Net is almost entirely independent of physical location. 13 Resolution Trust Corpn v. First America Bank, 796 F Supp 1333. 14 1997 US Dist LEXIS 2065,(SDNY).

Apart from sliding scale theory, the termination of jurisdiction also takes place with aid of effects test also known as calder effects test, propounded by the US supreme court in Calder v. Jones. in which it was held that jurisdiction can be premised on the international conduct of defendant outside the forum state that is calculated to cause injury. to the pontiffs with in the forum state. Out of two approaches the sliding scale theory in mainly helpful in dissolving the disputes which are mainly in the area of commercial activities, copyright or trademark infringements, or intellectual property cases the effects test is mainly useful in criminal matters.

3.3INDIA

India too, like many of the western countries has a deep rooted legal infrastructure and at the same time it has increasing convergence. The result is that India too is sharing the legal cacophony which is the outcome of the technological boom. The difficulties of being the part of the ancient societies over shadow by the blues of the information society are hard to quantify at the moment. The basic principle of jurisdiction are recognised by the world over are well received in India in the civil procedure code, 1908 criminal procedure code, 1973. In India , the major procedural criminal law, namely, the Crpc, is a time-tested law and envisages the basic rules of jurisdiction which are contained in CPC from section 17715 Contains the basic rule of criminal jurisdiction. These wordings when being repeated today show how drastically the world has undergone a change and so have the practical consideration. If the wordings are seen in the context of internet , the legislature will now have to consider the size of cyber space; the distance of courts from the place of crime ; now running into thousands of miles; and the vicinity of crimes spending globally. Thus the rule under the section is neither exclusive nor peremptory16 as it is subject to the other provisions of the CrPC. Section 178 was enacted to prevent an accused from getting off completely because there might be some uncertainty and doubt as to what particular court has local jurisdiction to enquire into or try the case. Section 181 of CrPC which deals with
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Ordinary place of Enquiry and trial-Every offence shall ordinarily be inquired and tried by a court within whose local jurisdiction it was committed . 16 Prof.KN Pillai and R.V. Kelkar,R.V.Kelkars Criminal Procedure 141

specific offences as being advocated by adding Clause 8 in the section which specifically spell out the place of enquiry and trial in matter of offences which are committed from within India including all the present area where CrPC is in applicable.

4. PRIVATE INTERNATIONAL LAW AND INTERNET JURISDICTION The present human society has been international in character and with the advent of science, it ha become closer and closer for getting the different hues of culture, philosophies, legal criteria, and judicial preferences.17 The result is the intermingling of laws and philosophies of beliefs and convention giving birth to a confuse cyber society. Private international laws have a long tradition in legal system.18 Private international law or conflict of laws in the body of law that seeks to revolve certain issues that result from the presence of a foreign component in legal relationships.19 Whenever there is some dispute regarding multiplicity of laws in certain areas some private dispute, the conflict is resolved by the resorting establish rules of private international laws. The following issues arise in the context of private international law20. 1. Jurisdiction to adjudicate a dispute at a particular location that is the forum or situs. 2. Applicable law to the dispute, and 3. Enforcement of judgements in courts in foreign jurisdiction.

CONCLUSION In the present scenario where the cyber crimes are increasing to an alarming extent, the present need of the hour is to have broad based convention dealing with criminal substantive law matters, criminal procedural questions as well as with international criminal law procedures

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The interaction amongst the various corners of the globe though slow, has always played an important role in the political, social, commercial and legal considerations. The information society today is more international and more global then ever as the technological revolution has reduced the distances of days and hours into nano seconds. 18 Anonymity and ubiquity, Chap 10 Dispute Resolutionin Cyberspace: Determining jurisdictional and applicable law in S.K. Verma 19 ibid 20 ibid

and agreements. Moreover, it is important to note that India at present does not have a proper extradition law to deal with crimes that have been committed over the Internet. To address this issue, India should become a signatory to the Convention of cyber crimes treaty and should ratify it. This move would go a great deal in resolving the jurisdictional controversies that may arise in cyber crime cases. Furthermore, we have suggested the setting up of special courts, Cyber Infringements Courts to replace the Adjudication Officer under the IT Act. These courts would be dealing exclusively with cyber law and other related matters like trademark etc, to ensure efficient delivery of justice.

BIBLIOGRAPHY BOOKS: Dr. Talat Fatima, Cyber crimes, Eastern Book Company, Lucknow !st edition 2011. WEBSITES: www.Legal service india.com www.Justia.com