SIBER LAW STUDY OF CYBER LAW BOOK 4.

0 CHAPTER I

"SUB- SECTION E: CYBER LAW 1.0 INSTITUTIONALIZATION"

Arranged

For the Task of Cyber Law Study :

Angelos Gogo Siregar

(110110170303)

Faculty of Law

Padjadjaran University

2020

 
  

A. Background

In the current development, globalization has made the legal system converged. The
meaning of the good development of all sciences is also growing very rapidly and
law is no exception as well. That is because an integrated legal system
alone will not be enough to provide optimal solutions to problems that arise.1

However, there are also experts who believe understanding functionalist

comparatis where the concept of unification of law is a desirable thing where they
berpenda pat that the argument they are based kepad a functional equivalent,
where a legal system dap at looked different because they m empunyai doctrine and
in stitusi different but the difference referred only to the surface only. Due to
the  essentially institutional dimak sud remain capable of fulfilling the functions are
exactly the same . Recognizing that the legal order is substantially similar,
it will making it easy to unify the law also formal.2 H al is actually different from the
opinions of experts who embrace the understanding that the legal culture (legal
culture) is an obstacle of an effort convergence legal order.3 It can be seen
in Indonesia does not have a specific law / cyber law governing cybercrime
However, there are some positive law of other applicable general and can be worn
for the perpetrators of cybercrime especially for cases - cases that using
computers as a means, including:4

a. Criminal Law Book

b. Law No. 19 of 2002 concerning Copyright

1
Anthony Ogus, Competition Between National Legal Systems: A Contribution of Economic Analysis to Comparative
Law  (Int'l & Comp. LQ405, 1999) p.48
2
Ralf Michaels, "Two Paradigm of Jurisdiction on", Michigan Journal of International Law, Summer 2006.
3
Pierre Legrand, "European Legal System Are Not Converging", 45 Int'l & Comp. LQ 52, 61-62 (1996)
4
Deris Setiawan, Computer Security Systems, (Jakarta: PT E Lex Media Komputindo, 2005) p.70-77
 c. Law No. 36 of 1999 concerning Telecommunications or Law No. 11 of
2008 concerning the Internet & Electronic Transactions.
d. Law Number 15 of 2002 concerning Money Laundering Crimes

The development of the age of giving birth to new crimes in the field of information
technology, factors that influence include:5

 First from a technical point of view, it cannot be denied that technological

advancements (information technology) have a negative impact on the
development of society. The success of this technology removes national
borders, making the world so narrow that the connection between one network
and another makes it easy for the perpetrators of crimes to carry out their
actions. Then, the uneven distribution of technology makes one stronger than
the other. This weakness is used by those who are not responsible for
committing crimes.
 Second, the socio-economic factor, cyber crime is an economic
product. The global issue which is then linked to the crime is network
security. Network security is a global issue that is being rolled out together with
the internet. As an economic commodity, many countries are certainly in dire
need of network security devices. Cybercrime is in a big scenario of world
economic activity.

So, in the discussion in this sub-chapter we will learn about legal reforms that

regulate cyber crime that is in accordance with cultural values in society and also
the other side that is in accordance with what is happening in society so that
it can be used as positive law in Indonesia.
 
B) Study

5
Pokrol Bung, CyberCrime in http: //www.hukumonline.  Com / clinics / details / cl2824 / criminal-cyber-crime
are accessed on Monday, March 30, 2020 at 04.08 WIB
In accordance with the background discussion earlier and in the explanation from 2
expert's point of view which states unification and legal culture that make the ideal of
convergence law is still being debated until now. The problem was elaborated through
an explanation by Mochtar Kusumaatmadja, arguing that problems in a developing
society that must be regulated by law in general can be divided into two broad groups,
namely:6

a) problems that are directly related to one's personal life and are closely related
to the cultural and spiritual life of the people;
(b) issues relating to society and progress in general are "neutral" in terms of
culture.

These two things can be used as a solution to create legal reform because it can be
seen that it includes things from the cultural and economic factors that exist in the
community contained in the second point in the "neutral" clause. Where it covers all the
problems that a da in society. Effectively become the main key in enforcing the
laws and regulations that will be made. For mela l ui legal sense alone that
therefore legal sense adequate should not only look at the law as a sua t u device
rules and principles that govern human life in goodness' rakat, but should also
include institutions ( institutions ) and processes ( processes ) needed to bring that law
into reality.7

P The government established its own legal convergence which has 3 types of
thinking, namely:8

a) First thought, that it has become a general understanding that the sovereignty of
the parties involved in a commercial transaction especially with foreign private
parties remains a consideration that causes foreign private parties to submit to a
national law if a choice of law is made in national courts.     

6
Dr. Danrivanto Budhijanto, SH, LL.M., FCB. Arb. , Cyber Law 4.0  , (Bandung: Logoz Published, 2019) p.28-29

7
Mochtar Kusumaatmadja, Legal  Concepts in Development,  Center for the Study of Archipelago Insights, Law and
Development  ( Bandung: PT. Alumni, 2006) p. 30

8
Dr. Danrivanto Budhijanto, SH, LL.M., FCB. Arb. , Op.Cit  , pp.30-31
 b) Second thought, the relationship between the parties and their
sovereignty will still be subject to the application of public international law. It is
no longer a debate that foreigners relating to the sovereignty of a
country will only become the jurisdiction of the international judiciary / tribunal.     
c) Third thought, the increasing number of private parties has greatly influenced the
development of the principles in bilateral, regional and multilateral trade
agreements, particularly the principle relating to the limitation of actions /
behavior of foreign parties towards the sovereignty of other countries.     

Siber crime today jara ng can be found locus delicti. The role of law to find criminal

offenses is necessary efforts to strengthen legal construction in line with international
law. Legal issues in finding jurisdiction to crack down on Cybercrime are part of legal
efforts to strengthen agreements and legal sanctions that have been decided by the
government in 2008, as the Information and Transaction Law The electronics we use
now are to ensnare Cybercrime perpetrators in Indonesia.

That the spread of crimes committed through social networks cannot be equated with
crime in general. The crime is quite difficult in its settlement stage because the crime of
Information and Electronic Transactions is a modern level crime which is a condition
with the sophistication of a communication system that requires intelligence a set of
technology i. To maximize existing laws continue to run , based strander conduct a da n
law will require two things:9

 Legal Principles

Government, private and professional are the main elements of involvement in

monitoring technological developments in Indonesia. Cooperation in combating
cybercrime between government, private and professional is not only a synergy but also
a joint effort and obligation in order to protect the country from crimes committed in a
modern way.

9
Jawade Hafidz, Juridical Study in Anticipating Cyber Crimes  , Journal of Legal Reform Volume I January 1 - April
2014 , p.35
  Conduct Legal Review of National Laws that Are Directly or Indirectly
Related to the Issues Arising from Transaction Development through
Internet-Technology

For example; The Copyright Act, the Trademark Law, the Broadcasting Law are
continuously controlled every time a case is caused by cybercrime. Then protection
against the misuse of the internet and computers requires a review and formation of
modern law. This means that modernizing material law and criminal procedure is
not exclusively prevention based. But the revitalization of modern law is an obligation for
the government. So that protection of victims of cybercrime meets the policy

The formation of the law itself especially cyber law also creates a perception if
foreigners, where in the topics discussed on institutionalization, in this case
Indonesia already has an ID-SIRTII, which is an extension of the Indonesia Security
Incident Response Team on the Internet Infrastructure. The team was assigned by the
Minister of Communication and Information Technology (Kominfo) to help supervise
telecommunications network security based on internet protocols.

The duties and functions of ID-SIRTII include monitoring, early detection, early warning
of threats and disruptions to the network, coordinating with the most important parties at
home and abroad in carrying out the duties of securing telecommunications network
based on internet protocols, operating, maintaining and developing s ystem database
system IDSIRTII, relating to the security of network utilization, provides information on
threats and security problems securing the utilization of telecommunication networks
based on internet protocol, be the contact point with the relevant institutions on security
safeguards utilization of telecommunication networks based on internet protocol and to
design programs work in order Implemen a n work related to safeguarding security
telecommunications network utilization ya ng based on internet protocol.10

10
Article 9 Regulation of the Minister of Communication and Information No. 29 / PER / M.KOMINFO / 12/2010
concerning the second amendment to the Minister of Communication and Information Regulation No. 26 / PER /
M.Kominfo / 5/2007 concerning Safeguarding the Utilization of Internet Protocol Based Telecommunication
Networks
However, the institution has not yet arranged how to follow up and prosecute cyber
crime such as carding, typosite, etc. There only regulates state security, and the
technology is still vulnerable. K ejahatan done through social networks can not be
equated with crime in general. The crime is quite difficult in its settlement stage because
the crime of Information and Electronic Transactions is a modern level crime which is a
condition with the sophistication of a communication system that requires intelligence a
set of technology.

C) Relevant Cases

In the case of dealing with this, the authors take the case of da ri:

Typosite Case "Typosite Klik BCA "11

Where the culprit was carried out by Steven H eryanti who made the site resemble the
BCA click site and also the official sites which are BCA's official sites. This makes
confusion for customers who want to use e-banking facilities. Luckily, no naskabah was
affected by the bulging site by conducting transactions there. Finally, he himself had
declared to ask for affection and stated he did not take advantage of the "stray" PIN
number of the person on the site.

In the observation of the criminal law expert the suspect may be subject to article 378 of
the Criminal Code related to fraud because according to the expert namely Edmon said
about the clauses of a ruse there but in fact it is not enough to prove the elements. This
created a controversy in which the legal interpretation of the article could have been
carried out because there was an intention and the goods taken could not be proven by
this. Acting that he returns the site to its owner is also assessed by
Edmon that Steven's actions must be very disturbing at the same time violating the
ethics of communication. Moreover, the principle of trust which has been used as
the basis for communicating on the internet.  

11
https://www.hukumonline.com/berita/baca/hol2879/itypositei-klikbca-is-fraud-murni/  accessed on 30 March
2020 at 06.41 WIB
Regarding proof which sometimes becomes an obstacle, actually there are laws that
have governed the enactment of electronic data or documents. For example, Law No. 8
of 1987 along with its PP, then regulations in the scope of Customs.

 
D) Conclusions
Cyber crime in Indonesia is still weak in its handling. Sometimes cyber crime is quite
difficult in legal jurisdiction, namely the activities of the cyber world that are not limited
by its tertiorial, intangible activities, and in positive law it is difficult to find
evidence. However, in breast ng to anticipate cyber-crime law itself is ITE and
Electronic Transaction Law then able to interpret the law enforcement of provisions in
force.

There is also no institution dealing with cyber crime because the Cyber Crime Act does
not yet exist. However, there must be a legal principle, namely cooperation between the
government and the private sector in developing technology and law enforcement,
which currently enforces positive law by interpreting and finding all laws as alternatives
to the oasis of legal vacuum against cyber crime.
 BIBLIOGRAPHY
1. Anthony Ogus. 1999.Competition Between National Legal Systems: A
Contribution of Economic Analysis to Comparative Law.Int'l & Comp. LQ405
2. Ralf Michaels. 2006. "Two Paradigm of Jurisdiction on". Michigan Journal of
International Law.
3. Summer Pierre Legrand. 1996. "European Legal System Are Not Converging".
45 Int'l & Comp.
4. Deris Setiawan. 2005. Computer Security Systems. Jakarta: PT E Lex Media
Komputindo, 2005)
5. Pokrol Bung, CyberCrime in http: //www.hukumonline. Com / clinics / details /
cl2824 / criminal-cyber-crime are accessed on Monday, March 30, 2020 at 04.08
WIB
6. Dr. Danrivanto Budhijanto, SH, LL.M., FCB. Arb. 2019. Cyber La w 4.0.
Bandung: Logoz Published.
7. Mochtar Kusumaatmadja. 2006. Legal Concepts in Development, Center for the
Study of Archipelago Insights, Law and Development. Bandung: PT. Alumni.
8. Jawade Hafidz, Juridical Study in Anticipating Cyber Crimes , Journal of Legal
Reform Volume I January 1 - April 2014.
9. Article 9 Regulation of the Minister of Communication and Information No. 29 /
PER / M.KOMINFO / 12/2010 concerning the second amendment to the Minister
of Communication and Information Regulation No. 26 / PER / M.Kominfo / 5/2007
concerning Safeguarding the Utilization of Internet Protocol Based
Telecommunication Networks
10. https://www.hukumonline.com/berita/baca/hol2879/itypositei-klikbca-is-fraud-
murni/ accessed on 30 March 2020 at 06.41 WIB