Prosecuting cyber criminals need of the hour

India ranks 11th globally in terms of cybercrime. Besides more than 10 million active computer systems, there are over 800 million mobile phone users in the country, generating digital footprints and making them vulnerable to cyberattacks every moment.

According to a report published by Norton, a cybersecurity software company, 59 per cent of the adult Indians have fallen victim to cyberfraud in the past 12 months. A company is hit by ransomware every 40 seconds and more than 15 per cent businesses in top 10 Indian industries have already been targeted by cyber criminals.

Certainly, we are surfing on a sea of cybercrimes as the growth in cyberspace has attained exponential dimensions. The National Crime Records Bureau figures indicate that only 27,248 cybercrimes were registered by the police in 2020 and just

3 per cent of them led to a chargesheet. The conviction rate in these cases is dismally low. These facts are sufficient to conclude that the cyber criminal justice ecosystem has not yet developed.

Such an ecosystem entails a prompt online reporting protocol, immediate action to prevent further crime and enforcement of the victim’s right to be forgotten, online and offline crime reporting system, recovery of financial loss, standard operating procedures for investigation, plugging loopholes in laws and procedures, soliciting international assistance to ensure identification and apprehension of offenders and revamping the existing criminal justice system to bring the offenders to justice.

Cyberattacks are huge in their scope and applications. Aristotle once said, “Poverty is the parent of crime and revolution.” But, in cyberspace, there is no distinction between the rich and poor. Financial and bank frauds are rising and gullible people are losing their life’s savings.

Cyber offenders are capable of playing havoc with the functioning of governments and even denting military operations. They can trigger missile attacks and cause nuclear plants to go haywire.

The hackers are capable of hijacking any public or private digital record related to business secrets and financial securities and incidence of ransomware has already attained menacing dimensions.

The digital world has become more unsafe for women and children than ever before. Cyberbullying, child pornography, stalking of women, voyeurism and blackmail are common crimes of the cyber age. Thorough investigation and successful prosecution of cyber offenders are crucial for people to have faith in the establishment.

An investigation into cybercrimes is substantially different from an investigation into traditional crimes. While an investigation into traditional crimes is mainly an art of interrogation, tracing of digital evidence is purely a technological feat, known only to cyber experts. Cyber offenders are either faceless or masked. It is difficult to locate them without due support from the internet service providers (ISPs) situated outside India.

The problem is compounded by the easy availability of activated mobile phones and bank accounts for sale. Virtual Private Number (VPN) and proxy servers are available on demand. The cyber offenders use The Onion Router (TOR) for anonymity. The existing mutually agreed international regulations and control mechanism to keep an eye on activities in the cyberspace are proving to be insufficient.

The ISPs often take shelter under the umbrella of the right to privacy and freedom of expression, while denying information to the law enforcement agencies regarding the identity and activities of their users. This is evident from the fact when social media platforms such as Twitter and Facebook initially refused to honour the request from the Government of India to take down accounts containing objectionable material during the farmers’ agitation.

Citing security concern and sovereignty issues, India has not yet signed the Budapest Cybersecurity Convention, 2001, though we have signed mutual legal assistance treaties with many countries to solicit international cooperation.

At the same time, synchronisation of domestic laws with international criminal laws is equally important to seek mutual legal assistance.

It is a ground reality that computer literate and trained investigating officers to handle cybercrimes are not available in required number and the existing cyber forensics support system is proving to be highly inadequate. Even lawyers, prosecutors and judges are not appropriately trained and oriented to appreciate the nuances of digital evidence during trials. Professional training and educational institutions are not appropriately geared up to impart knowledge and skills to police investigating officers, law students and judges to meet the challenges posed by cyber offenders.

The laws of evidence and criminal procedures related to digital investigations are in the nascent stage and still evolving. Protocols to guide the professionals in the field are yet to be developed. Though the ISPs and social media platforms have laid down policies to prevent misuse of their services, including guidelines for blocking defamatory and malicious posts, and Citizen Financial Cyber Fraud Reporting and Management System has been established by the government for victims to report their grievances on the national helpline (155260), people are not able to avail these services due to digital illiteracy and lack of awareness.

Social media monitoring and interception of digital signals are very important to address external and internal security concerns. Snooping into cyberspace of individuals requires prior validation under the Telegraph Act-1885 because there is always a lurking danger that illegal cyber snooping may lead to politically motivated surveillance and moral policing. Therefore, a fair balance between requirements of ‘state safety’ and ‘individual right to privacy’ needs to be struck by framing a constitutionally valid policy. The government is already contemplating amending the Telegraph Act to address some of these issues.

The landscape of policing and justice delivery is changing fast. Apparently, the traditional system cannot cope with the diverse demands and specific needs to mete out punishment to digital offenders. The time has arrived to design a separate cyber criminal justice ecosystem, parallel to the existing one.