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COVER LETTER

SURANA AND SURANA NATIONAL ESSAY WRITING COMPETITION
ON CRIMINAL LAW

TITLE :- JURISDICTIONAL ISSUES IN CYBER CRIMES

NAME OF THE PARTICIPANTS
ADDRESS

- 1. ABHINAV MATHUR. 2.DIVYAKANT SINGH RATHORE
- B - 402, Forum Appartment, Nr. Vishwakarma Mandir,
Chandlodia, Ahmedabad, Gujarat, 382481

E-MAIL

- a.mathur80@yahoo.co.in, divyakant.s.rathore@gmail.com

CONTACT NO.

- 09662107116, 07878572167

NAME OF COLLEGE

- Institute of Law, Nirma University

ADDRESS OF COLLEGE

- Institute of Law, Nirma University, Sarkhej Gandhinagar
highway, Post Chandlodia, Via : Gota, Ahmedabad, Gujarat
382481.

SURANA AND SURANA NATIONAL ESSAY WRITING COMPETITION

a

ABSTRACT In this article. Cyber crimes cannot be confined to a finite boundary as internet itself is a global phenomenon. This attribute raises serious questions regarding jurisdiction. It is a pre trial stage. Jurisdictional issue is a primary bone of contention before the main dispute regarding the crime begins. 2000 which present clear position of India. role of nations as a part of International community has been prescribed. conventions SURANA AND SURANA NATIONAL ESSAY WRITING COMPETITION b . KEYWORDS Jurisdictional. In the end. We have provided pertinent inputs of Information Technology Act. authors endeavour to discuss various International jurisdictional theories and natural principles which enable nations to enforce their claims of jurisdiction regarding Cyber crime. As International conventions not only encompasses jurisdictional issue but also discuss the cyber crime as a problem in comprehensive manner. Cyber crime. International treaties and conventions are discussed at length which also tried to discover amicable solution to various aspects related to Cyber crime. Some possible ways for curbing the menace of jurisdictional issue are being illustrated in the article.

With the advent of good virtues. J. JURISDICTION Cyber crime is not a local crime rather it connects various nations or even continent. & TECH.. thus scattering crime scenes through two or more countries. fraud. Cyber crime can be classified into two major categories of offenses: in the first. Why the Police Don’t Care About Computer Crime. and forgery . available at <http:// jolt. 465. It can be convincingly said that internet has become a necessity in the today’s Globalised era. unauthorized access to and illicit tampering with systems. 10 HARV. The internet is not a single entity.that are committed with the assistance of or by means of computers. Territorial boundaries are of no use in cyber related issues. attacks on network confidentiality.edu/articles/10hjolt465. 1 Goodman D Marc. individual or company owns it.L. Online crime happens without boundaries. it simultaneously bring evils with it. no government.html. integrity and/or availability -. the other category consists of traditional offenses--such as theft.harvard.CYBER CRIME : A PROLOGUE In the last few years the use of Internet has grown by leaps and bounds. This attribute of trans-nationality has created a serious cause of concern regarding jurisdiction. 468-469 (1997).law.e. The laws related to cyber crime is haywire in nature which gives opportunity to cyber criminals to exploit the virtual world which exposes danger to nationals of a state.i.1 This article uses the broad definition of “cybercrime.” referring to offenses falling into either category. as attacks can come from outside the borders of one State. programs or data . sometimes in more than one continent. It brings new technology and efficient mode of working in any country.> SURANA AND SURANA NATIONAL ESSAY WRITING COMPETITION c . As the rate of users of Internet is increasing the rate of crime is also increasing.all fall into this category. computer networks and related information and communications technology. the computer is the target of the offense.

There exist 3 kinds of power  Power to prescribe – This power gives legislature to frame cohesive and adequate regulatory measures regarding cyber laws and its jurisdiction. 3 Goodman. Vol. New Delhi : New Era law Publications (2007) . that is costly to stop at another jurisdiction's border and that produces effects within that jurisdiction deemed illegal there. 5 John Stanton. 2. 6 Farooq Ahmad.4 It may be the case that above acts may not be illegal where it is generated by a user. send spam. 45. 4 Jack Goldsmith. irrespective of fact State is party to the proceedings. etc.org/stable/25691116. facilitate gambling.2 Cyberspace transactions occur simultaneously in all jurisdictions assumption of jurisdiction by multiple states will lead to jurisdictional mayhem. No. London : Sage Publishers (2006). (2000). available at http://www. offer a fraudulent security.  Power to adjudicate – This power enable courts to hear disputes and conduct the trial of a case.According to the Legal Information Institute at Cornell University Law School jurisdiction refers as power of a Court to adjudicate cases and issue order or the territory in which a court or government may properly execute its power.jstor.6 In other words. 7 Id. American Behavioral Scientist. Terrorists Will Exploit and Widen the Gap between Governing Structures and the Public’. p. Vol. 1022. Cyber Law in India. Cyber crime and society. Jurisdiction is synonymous with ‘Power’. supra note 1. 475-491 (1998). ‘Terror in Cyberspace. 5.3 The territorial effects rationale for regulating these harms is the same as the rationale for regulating similar harms in the non-Internet cases. State has authority to subject person or things to the process of its courts. Indiana Journal of Global Legal Studies.5 State had legislative jurisdiction to regulate activities within territory as well as conduct of its nationals abroad.7 2 Majid Yar. People in one jurisdiction do something such as upload pornography. SURANA AND SURANA NATIONAL ESSAY WRITING COMPETITION d . ‘The Internet and the Abiding Significance of Territorial Sovereignty’. pp.

Fordham International Law Journal. 12 Id. Vol. It is contrary to the above theory. Hastings International and Comparative Law Review. 3-10.  Nationality Theory – Jurisdiction is decided by the nationality of the offender irrespective of fact the place of commission of crime. the jurisdiction of victim’s 8 Id. (2002). 10 Draft Convention on Jurisdiction with Respect to Crime. Jurisdiction with Respect to Crime. Volume 12. ‘Extraterritorial Jurisdiction Under the Third Restatement of Foreign Relations Law of the United States’. arts. SURANA AND SURANA NATIONAL ESSAY WRITING COMPETITION e . Traditionally.territorial jurisdiction.11 It cannot be held as a ground for jurisdiction as its claim is more dependent on the party which is at receiving end of the crime or the place where misdemeanor is conducted. it was the main basis of claiming jurisdiction but as the definition of cyber crime changes. 9 Article 245(2) of Constitution of India establish that state can enact a law that is beyond the territory and it cannot be termed as invalid on the basis of extra. reproduced in Harvard Law School. and the Rule of Law’. note 37. this ground automatically weakens. Issue 1. p.12  Passive Personality Theory – According to this theory the jurisdiction is decided on the basis of nationality of victim. 11 Kathleen Hixson.(1988). 25. Power to enforce – This gives power to Government to take punitive action against any act done in contravention of laws and orders. Territoriality. ‘Sovereignty.10 If a crime is committed in the territory of a particular nation then it has right to have jurisdiction over it.  Territoriality Theory – This theory derive its power from the sovereignty of a state.8 In order to lay claim for adjudication by the Court regarding a crime there must be a compliance of Doctrine of territorial nexus9.13 Natural principles of justice aims at giving due return to the victim. 13 Fitzpatrick Joan. There are primary four kinds of jurisdictional theories which are applied frequently by the courts of one nation and hence taking the rights of another court’s jurisdiction. 313. Therefore.

(h).place becomes strong14. and ‚ the crime must be especially offensive to the international community.19 Moreover.16 There can be other ancillary reasons for claiming jurisdiction which depends from case to case. an ongoing and real relationship) with the forum. and the extent to which countries generally regard it as appropriate for regulation).17 The extent to which the defendant or the injured party has a “genuine link” (i. 20 Id.. (h). § 403(2)(c). 19 Id. whether other countries regulate it. SURANA AND SURANA NATIONAL ESSAY WRITING COMPETITION f .  Universality Theory – In this theory the nature of offence is given significance. Certain offences are recognized by the world community such as piracy. supra note 10. § 403(2)(e) and § 403(2)(g). Jurisdiction depends on the extent to which the criminal activity takes place or has a substantial effect within the territory. the extent to which justified expectations will be protected or harmed by the regulation and to which another country has an interest in regulating the activity and the likelihood of a conflict with those regulations. As sovereignty principle also beckons that nation cannot encroach another nation’s territory. 16 Id. its importance to the forum.18 The character of the activity plays pivotal role in determining jurisdiction (that is. slave trade etc. Who Controls the Internet ? New Delhi : Oxford University Press (2006).15 In this any competent body that has competency to apply principles of International law has jurisdiction to hear the issue of cyber crime by this theory no national law prevail if the cause of the problem is global in nature or it reflects the concern of global community. 18 Hixson.e. Two requirements are necessary for assuming jurisdiction: the State assuming jurisdiction must have the defendant in custody. 15 Jack Goldsmith and Tim Wu.S. 17 Restatement (Third) of Foreign Relation Law of the U. § 403(2) (g). § 403(2)(d).20 The importance 14 Id.

23 (1999) 4 SCC 567. India’s first case of cyber defamation. However internet communications are not geographically dependent. the issue of territoriality and nationality must be placed by a much broader criteria embracing principles of reasonableness and fairness to accommodate overlapping or conflicting interests of states. v. Ltd. Thus traditional rules relating to jurisdiction and competence incorporate a notion of territoriality. has recognized the need of the judiciary to interpret a statute by making allowances for any relevant technological change that has occurred. The concept of consequence and cause of action extends jurisdiction but a conflicting situation arises where there is no defined regulation at one of the places.of the regulation to the international community21 and the extent to which the regulation is consistent with the traditions of the international community is of prime significance. in spirit of universal jurisdiction. Until there is specific legislation in regard to the jurisdiction of the Indian Courts with respect to Internet disputes. Governor of Brixton prison and another. Jogesh Kwatra24. 22 Id.net/cyberindia/defamation. for exercising Internet disputes. SMC Pneumatics (India) Pvt. Exim Aides Silk Importers23. or unless India is a signatory to an International Treaty under which the jurisdiction of the national courts and the circumstances under which they can be exercised are spelt out. SURANA AND SURANA NATIONAL ESSAY WRITING COMPETITION g . because 21 Id. High Court of Delhi assumed jurisdiction over a matter where a corporate’s reputation was being defamed through e-mails.htm (Accessed on 11 October. 1279/2001 available at http://cyberlaws. [1969] 1 All ER 316. § 403(2)(e). In the case of R v. The Supreme Court of India.22 Some case laws will be discussed to substantiate the above agreements. In a leading case of cyber crime. § 403(2)(f). and passed an important ex-parte injunction. the Indian Courts will have to give a wide interpretation to the existing statutes. 24 Being Suit No.2012) 25 R v. in the case of SIL Import v. Governor of Brixton prison and another25 it was held by the court that it is thus important that in order to resolve the disputes related to jurisdiction.

S. 27 Apar Gupta. any offence committed outside India. ROLE OF INFORMATION TECHNOLOGY ACT. It is also embedded with flaws. the principal place of business. Michael A Sussmann. shall be the place of business. Duke Journal of Comparative and International Law . India signed the extradition treaties do not cover any offences related to Cyber crime. 28 SURANA AND SURANA NATIONAL ESSAY WRITING COMPETITION h . Offence must have been committed against computer or computer network located in India. (c) “Usual place of residence”. INTERNATIONAL CONVENTIONS ON CYBER CRIME It is believed that since the nature of Cyber crime is international in nature. Extradition will not be permitted unless the act constitutes a crime under both state. his usual place of residence shall be deemed to be the place of business. .27 It is always going to be a acid test for Indian courts to enforce a jurisdiction over foreign nationals. Commentary on Information Technology Act. therefore International conventions and agreements must be ratified by maximum number of nations under the garb of International co – operation. No.28 The domestic law fails when the crime is not recognized under the perpetrator’s country. 75 of IT Act. S. one to whom request is made and one who is requesting. 2000 deals with extra territorial application of law and it is applicable to any person irrespective of nationality. Extradition is one of the examples of International co-operation.there is no necessary connection between an internet address and a physical jurisdiction and hence it poses diverse challenges and conflicts. 2000 Information Technology Act (ITA) 2000 deals with the issues related with cyber crime in India. ‘The Critical Challenges From International High-Tech and Computer-Related Crime at the Millennium’. Wadhwa : Lexis Nexis Butterworth (2011). (b) if the originator or the addressee does not have a place of business. in relation to a body corporate.(a) if the originator or the addressee has more than one place of business. 1326 and its sub – clause deals how to assert the origination of electronic record which helps in tracing down the place of offender. 26 (5) For the purposes of this section. Vol 9. 458. (1999). means the place where it is registered.

Goldsmith. Indiana Journal of Global Legal Studies. 31 Convention on Cybercrime. provided that they are punishable under the laws of both Parties concerned by deprivation of liberty for a maximum period of at least one year. and in the nation whose assistance is being lent. A dual criminality provision would require that for an offense to be considered a crime under the Treaty. SANS Institute InfoSec Reading Room.” “The law of extradition.30 The offenses are broken down into four areas of crime. a common criminal policy aimed at the protection of society against cybercrime. it closes doors for the possibility of extradition. It 29 Jack L. is a dual law. 33 2000 CrLJ 256. No. The second goal is to adopt a set of procedural tools and powers to properly and effectively investigate crimes.org/stable/25691116. which are fraud and forgery. 30 Dan Robel. it would have to be a crime in both the nation it was committed in. SURANA AND SURANA NATIONAL ESSAY WRITING COMPETITION i . 2 pp. or by a more severe penalty. The Internet and the Abiding Significance of Territorial Sovereignty. (2006).29 The treaty was based on certain agendas. GCIH Gold Certification .Budapest convention on cyber crime held as a matter of priority. Vol.XI. held that “A fugitive brought into this country under an Extradition decree can be tried only for the offences mentioned in the extradition decree and for no other offences and the criminal courts of India will have no jurisdiction to try such fugitive for any other offence. by adopting appropriate legislation and fostering international co-operation which came into force in 2004. Additional Protocol Translations Convention Committee on Cybercrime (T-CY) website Explanatory Report Français 32 Article 24 of Convention on Cyber crime (Budapest) which states that This article applies to extradition between Parties for the criminal offences established in accordance with Articles 2 through 11 of this Convention. child pornography. 23. The first goal is the establishment of a specific list of domestic criminal offenses and conduct that are prohibited by the treaty. The core problem is that the Treaty lacks a “dual criminality” provision.31 The Treaty from the outset outlines what areas and provisions will have a different handling of the procedural or substantive legal processes. The Supreme Court in Daya Singh Lahoria v. Union of India33.2001.32 Thus. International Cybercrime Treaty: Looking Beyond Ratification . (1988) available at http://www. inter alia. 5. copyright infringement (intellectual property). 476. and system interferences. Budapest.jstor. which affect network integrity and availability (covering many aspects of hacking). The last goal is to establish strong mechanisms for fostering international cooperation.

inasmuch as it governs the relations between two sovereign States over the question of whether or not a given person should be handed over by one sovereign State to another sovereign State. Laws are made in many countries after an act of cyber crime is committed because it could not be prosecuted. CONCLUSION Cyber attacks do not entail any boundaries. The sheer number of non – signatory nations will create conducive conditions for the cyber terrorism as there is a involvement of many nations thus creating urge for collective action. It involves multi. where appropriate. The world as a whole has been of a more reactive nature instead of a proactive one. Information Technology Act. one needs to examine which countries fall under the auspices of the Cyber crime Treaty and which do not. yet it is a part of international law also. SURANA AND SURANA NATIONAL ESSAY WRITING COMPETITION j . 34 Dan. nations can tackle the problem of the borderless nature of cybercrime by enabling pursuit beyond the borders of a single nation. the Parties involved shall. therefore amicable remedy need to be evolve without deviating to the target of curbing cyber crime. it still represents a very progressive approach to Cyber crime. However.35 It makes apparent that solution of jurisdictional issue is heavily loaded on the behavior and intent of the nations. While the argument can be made that the Cyber crime Treaty will not manage to achieve its goals by itself.34 It encompasses the provision related to the situation when two or more nations claiming the jurisdiction. These conventions bring nations under one common thinking cap as the solution to Cyber crime and its various sub-issues can only be dealt jointly.is ostensibly a municipal law. supra note 21.” A major premise of the Treaty is that by fostering international cooperation. Consultation and mutual legal assistances should be the means to resolve the issue of jurisdiction.players raising serious concern of jurisdiction. As the nature of problem is collective. This question is decided by national courts but on the basis of international commitments as well as the rules of international law relating to the subject. consult with a view to determining the most appropriate jurisdiction for prosecution. 35 Article 22 of Budapest Convention (2004) which states that When more than one Party claims jurisdiction over an alleged offence established in accordance with this Convention.

Cyber crime will create a daunting task in front of International criminal law system in coming years.2000 is a tooth less law as it does not cover all the legal issues related to cyber crime. Even the recent amendment of 2008 is silence on the issue of jurisdiction. it is imperative to build specialized courts which exclusively deal with the cyber related issues. New York : Cambridge University Press (2010). Jurisdictional issues need to be harmonized between two or more nations as it is not a real contention rather retaliating against cyber crimes collectively should form a agenda for nations. SURANA AND SURANA NATIONAL ESSAY WRITING COMPETITION k . There is an urgent need for creating an umbrella law or convention which covers almost all major crimes related to cyber world and maximum number of nations must be a member of that convention through ratification. BIBLIOGRAPHY Books  Jonathan Clough. While extending jurisdiction into the international field. utmost care and reasonable must be exercised without jeopardizing the natural principles of justice. Moreover. Developed nations need to take initiative in discovering the panacea of cyber crime. International conventions and treaties can one of the tools to consolidate the niche regarding cyber issues. Principles of Cyber crime. Mutual legal Assistance and international cooperation can pave the way for swift disposal of cyber issues. Furthermore. India has to strengthen the domestic laws and bring significant changes in order to make strong claim over jurisdiction. specialized court as a sub-division of International criminal court need to be established at International level that should solely deals with Cyber issues in which experts related to it should be there to adjudicate the matters. While adjudicating cyber crimes issues involving multi players the courts must consider the procedural and substantive policies of other countries whose interest are affected by the court’s assertion of jurisdiction.

pp.edu/articles/10hjolt465. & TECH.  Goodman D Marc.  Jack Goldsmith. Terrorists Will Exploit and Widen the Gap between Governing Structures and the Public’. London : Sage Publishers (2006). 5. New Delhi : New Era law Publications (2007). 313. J. Articles  Michael A Sussmann. No.> SURANA AND SURANA NATIONAL ESSAY WRITING COMPETITION l .  Farooq Ahmad. Cyber Law in India.harvard. ‘The Critical Challenges From International High-Tech and Computer-Related Crime at the Millennium’. No. and the Rule of Law’.  John Stanton.L. 475-491 (1998). ‘Sovereignty..  Jack Goldsmith and Tim Wu. Who Controls the Internet ? New Delhi : Oxford University Press (2006). Vol 9. p.  Fitzpatrick Joan. 2. p. 465.law. Commentary on Information Technology Act. Territoriality. ‘The Internet and the Abiding Significance of Territorial Sovereignty’. Wadhwa : Lexis Nexis Butterworth (2011). Vol. 25. (2002). Indiana Journal of Global Legal Studies. (2000). 468-469 (1997). 45. Majid Yar. Cyber crime and society. Duke Journal of Comparative and International Law . Vol.html. Hastings International and Comparative Law Review. American Behavioral Scientist.org/stable/25691116.jstor. 10 HARV. 458. note 37. available at <http:// jolt. (1999).  Apar Gupta. ‘Terror in Cyberspace. 1022. Why the Police Don’t Care About Computer Crime. available at http://www. Vol.

 Convention on Cybercrime. 5. SURANA AND SURANA NATIONAL ESSAY WRITING COMPETITION m . Budapest. Indiana Journal of Global Legal Studies. Kathleen Hixson. ‘Extraterritorial Jurisdiction Under the Third Restatement of Foreign Relations Law of the United States’. Goldsmith.  Dan Robel.org/stable/25691116. Vol. SANS Institute InfoSec Reading Room. (2006). 2 pp. GCIH Gold Certification . 476.XI. Volume 12.2001. The Internet and the Abiding Significance of Territorial Sovereignty. International Cybercrime Treaty: Looking Beyond Ratification . Issue 1.  Jack L. Fordham International Law Journal. Additional Protocol Explanatory Report Français Translations Convention Committee on Cybercrime (T-CY) website. (1988) available at http://www.(1988). 23.jstor. No.