Unit 3 Cyber Law Notes
Unit 3 Cyber Law Notes
Unit 3 Cyber Law Notes
UNIT – 3
EVIDENCE ASPECT AND CRIMINAL
ASPECT IN CYBER LAW
EVIDENCE ASPECTS
3.1 MEANING OF EVIDENCE
1. Direct evidence
Generally speaking, there are two primary types of evidence: direct and
circumstantial. Direct evidence, as its name implies, is evidence that directly links a
defendant to the crime for which they’re on trial without any need for inference. A
common example would be the sworn testimony of an eyewitness.
2. Circumstantial evidence
3. Physical evidence
Also called real evidence, physical evidence refers to any material object that
may play a role in the matter that led to the litigation at hand. Most commonly, physical
evidence will consist of objects found at the scene of a crime, whether it be a possible
weapon, a shoe print, tire marks or even minuscule fibers from a piece of fabric—
perhaps an item of clothing worn by the perpetrator.
6. Forensic evidence
7. Trace evidence
Simply put, trace evidence is created when two objects make contact with one
another. Examples of trace evidence include gunshot residue, hair, fibers, soil, wood
and pollen. Such evidence can help investigators link a defendant and/or a victim to a
mutual location.
8. Testimonial evidence
Most all courts bar witnesses from testifying based on their personal opinions—
this is why we have expert witness evidence. Expert witnesses are permitted to
testify about matters within their field of expertise. This can include a forensic analyst
testifying about the results of a DNA test, a doctor testifying about the analysis of a set
of X-rays or a fingerprint analyst testifying about findings related to prints lifted from a
crime scene or weapon.
It’s true that the rules regarding hearsay evidence differ by jurisdiction, but it is
most commonly ruled to be inadmissible at trial. That is because hearsay
evidence refers to an out-of-court statement made by a relevant party in relation to an
issue being discussed at trial. This is generally deemed inadmissible because of the
inability of the other party to cross-examine the person who made the statement in
question.
During trial proceedings, defense teams will often present evidence that serves
to either justify, excuse or introduce reasonable doubt about the defendant’s alleged
actions or intentions. This is called exculpatory evidence, and it is most commonly
used to demonstrate that a defendant is not guilty. When prosecutors willfully withhold
potentially exculpatory evidence, this is considered a violation of the Brady Rule.
Amidst the many different types of evidence, there are two primary categories
that will greatly impact the outcome of a court case: admissible and inadmissible
evidence. Generally speaking, all evidence that is able to be formally presented in
front of a judge or jury has been deemed admissible evidence. Prior to the trial, it is
the duty of the judge to determine whether or not particular evidence may be included.
Conversely, evidence that the judge determines cannot be presented to the jury
is considered inadmissible evidence. Reasons for deeming evidence to be
inadmissible can include the following: It was improperly obtained, it is prejudicial, it is
not relevant to the case or it is hearsay.
In court cases, it is the obligation of the prosecutorial team to meet the burden
of proof—or the responsibility to prove their allegations beyond a reasonable doubt.
Evidence that fails to meet the burden of proof is considered insufficient evidence.
In such cases, a judge may even dismiss a case before the defense presents their
side.
The best evidence rule requires that the original of any record or document be
used if available. It can also mean that copies, even if introduced, are given
lower weight. The rule need not be satisfied if:
The original has been lost
It is impractical or unduly burdensome to produce the original
The original is a public record in the custody of the state archives and a certified
copy is available, or
The original is in the possession of the other party to the case (eg. a medical
record in a negligence case, where the plaintiff relies on a photocopy of a page
of a medical file, the original file remaining in the hospital’s possession).
If there is a dispute about the Authenticity of an email, which will hold more force - the
electronic version or the printed?
• If I scan incoming correspondence and destroy the paper copy, will the scan
be Treated as the “original”?
The Evidence Act prescribes a process for accepting certain kinds of copies,
including microfilm, but scanned images are not yet among them. This could
potentially lead to the scan being considered not the “best” evidence.
• If I enter data from a form into a database and then use the database as the
source For my information & activities, do I have to keep the paper form?
Section 3
(a) in the definition of "Evidence", for the words "all documents produced for the
Inspection of the Court", the words "all documents including electronic records
produced for the inspection of the Court" shall be substituted;
(b) After the definition of "India", the following shall be inserted, namely:— 'the
Expressions "Certifying Authority", "digital signature", "Digital Signature Certificate",
"Electronic form", "electronic records", "information", "secure electronic record",
"secure Digital signature" and "subscriber" shall have the meanings respectively
assigned to them in the Information Technology Act, 2000.'.
Special provisions
(a) that person or the Controller or the Certifying Authority to produce the Digital
Signature Certificate;
(b) any other person to apply the public key listed in the Digital Signature Certificate
and verify the digital signature purported to have been affixed by that person.
(2) In any proceedings, involving secure digital signature, the Court shall presume
unless the contrary is proved that—
(a) the secure digital signature is affixed by subscriber with the intention of signing or
approving the electronic record;
(b) except in the case of a secure electronic record or a secure digital signature,
nothing in this section shall create any presumption relating to authenticity and integrity
of the electronic record or any digital signature.
Information which has not been verified, if the certificate was accepted by the
subscriber.
• They will clearly fall within the “business records” rule (see below for
explanation);
• They are less prone to being challenged as unusual or false than ad hoc
records.
If an agency can demonstrate that in any given situation, certain records are:
• always created
Then:
• for any one transaction, it will be easier to claim that all records are present or
accounted for;
Should your records be disputed, it may be vitally important to prove that their
integrity remains intact – that they have not been tampered with. The ability to
demonstrate who has interacted with the records and in what ways may also be critical.
A number of techniques may be useful here:
Audit logs. Audit logs can help you show who accessed, altered or updated
records, when, and to what extent. For this reason, audit logs should always be
retained for as long as the records themselves are kept.
1. Short title, extent and commencement - This Act may be called the Indian
Evidence Act, 1872.
2. Interpretation clause - In this Act the following words and expressions are used
in the following senses, unless a contrary intention appears from the context: -
"Court" - "Court" includes all Judges and Magistrates, and all person, except
arbitrators, legally authorized to take evidence.
(1) All statements which the Court permits or requires to be made before it by
witnesses, in relation to matters of fact under inquiry; such statements are called oral
evidence.
(2) All documents produced for the inspection of the Court; such documents are called
documentary evidence.
"Proved" - A fact is said to be proved when, after considering the matters before it,
the Court either believes it to exist, or considers its existence so probable that a
prudent man ought under the circumstances of the particular case, to act upon the
supposition that it exists.
"Disproved" - A fact is said to be disproved when, after considering the matters before
it, the Court either believes that it does not exist or considers its non-existence so
probable that a
prudent man ought, under the circumstances of the particular case, to act upon the
supposition that it does not exist.
"Not proved" - A fact is said not to be proved when it is neither proved nor disproved.
CRIMINAL ASPECTS
3.1 COMPUTER CRIME:
of offenses renders any narrow definition unworkable. The U.S. Department of Justice
(DOJ) broadly defines computer crimes as "any violations of criminal law that involve
a knowledge of computer technology for their perpetration.
(2) crimes facilitated by computer networks or devices, the primary target of which is
independent of the computer network or device.
Examples of crimes that primarily target computer networks or devices would include,
Examples of crimes that merely use computer networks or devices would include,
Cyber stalking
Fraud and identity theft
Phishing scams
Information warfare
Spam
Spam, or the unsolicited sending of bulk email for commercial purposes, is unlawful
to varying degrees. As applied to email, specific anti-spam laws are relatively new,
however limits on unsolicited electronic communications have existed in some forms
for some time.
Fraud
Other forms of fraud may be facilitated using computer systems, including bank fraud,
identity theft, extortion, and theft of classified information. A variety of Internet scams
target consumers direct.
Harassment
Drug trafficking
Drug traffickers are increasingly taking advantage of the Internet to sell their
illegal substances through encrypted e-mail and other Internet Technology. Some drug
traffickers arrange deals at internet cafes, use courier Web sites to track illegal
packages of pills, and swap recipes for amphetamines in restricted-access chat
rooms.
The rise in Internet drug trades could also be attributed to the lack of face-to-face
communication. These virtual exchanges allow more intimidated individuals to more
comfortably purchase illegal drugs. The sketchy effects that are often associated with
drug trades are severely minimized and the filtering process that comes with physical
interaction fades away. Furthermore, traditional drug recipes were carefully kept
secrets. But with modern computer technology, this information is now being made
available to anyone with computer access.
Cyberterrorism
Experts often say that the security of the system is the security of the weakest
password. Some of the blame rests on users who pick bad passwords such as
someone's name, a birth date or a word from a dictionary. These may be easier
to remember, but they also are very easy to break. The following security tips
offer protection for passwords.
When creating a password:
i. Don’t use names or numbers associated with you in any form,i.e. your user name,
your spouse’s name, your dog’s name spelled backward, your telephone number
transposed, your middle name in French, etc. Hackers are sophisticated enough
to make an educated guess.
ii. Don’t use names or dictionary words, including several words strung together, in
any language. Sophisticated password cracking programs can discover
passwords with effective dictionary or brute force attacks.
iii. Do use upper and lower case letters, as well as punctuation symbols or numbers,
for passwords that are several characters long.
iv. Do use different passwords for different accounts and for
v. screen savers and share passwords. An intruder who cracks your password on
one network can use it to jump to other networks where you also use it. The same
applies to each Web site and Internet business that requires passwords.
i. Do change it frequently, at least every four to six months. If you need to use the
same basic word as your password, vary it with unexpected numbers, symbols or
misspellings. Sniffer programs that intercept passwords are quite common, and
changing your password offers at least some protection.
ii. Don’t e-mail your password to anyone.
iii. Don’t tell anyone your password, no matter who asks for it. If someone calls you
claiming to need your password, refuse to provide it. Any legitimate technician
already will have authorization to enter your system. If, for any reason, you must
share your password, change it as soon as possible. Some secrets are too
tempting not to use or share.
Online Auction Frauds. Sellers may not deliver items, or their value may be
inflated. Sometimes shills drive up the bids. The FTC, which received
approximately 10,000 complaints about Internet auction fraud in 1999, has issued
similar warnings. Online auction buyers can guard against fraud by placing
payments in escrow accounts rather than sending them immediately to the sellers.
Transgressors are referred to government authorities.
General Merchandise Rip-offs. These involve sales of everything from T-shirts
to toys, calendars to collectibles. The goods are never delivered, or they are not
as advertised.
Bogus Sales of Hardware or Software. Purchased computer products may never
be delivered, or they may not be as represented.
Shady Sales of Internet Services. There may be charges for services that were
touted as free, failure to deliver on promised services and false representations of
services.
Work-at-Home Schemes. Two popular versions offer the chance to earn money
by stuffing envelopes or assembling crafts at home. However, nobody is paid for
stuffing envelopes or craft assembly since promoters, claiming the work does not
meet their "quality standards," usually refuse to buy the finished product.
Business Opportunity Scams. These promise significant income for a small
investment of time and money in a business — often a franchise. Some are
actually old-fashioned pyramid schemes camouflaged to look like something
else.
Chain Letters, Pyramid Schemes and Ponzi Schemes. Any profits are made
from recruiting others, not from sales of goods or services to end-users.
Guaranteed Loans or Credit on Easy Terms. Some schemes offer home
equity loans, even for those who lack equity in their homes. Others offer
guaranteed, unsecured credit cards, regardless of the applicant’s credit history.
The "loans" turn out to be lists of lending institutions, and the credit cards never
arrive.
Bulk E-Mail Scams. Victims are sold lists of e-mail addresses and software
with the claim that this will enable them to make money by sending their own
solicitations via bulk e-mail. However, the lists are of poor quality; sending bulk
e-mail violates the terms of service of most Internet service providers (ISPs);
virtually no legitimate businesses engage in bulk e-mailings; and several states
have laws regulating the sending of bulk e-mail.
Cyber-Smears. Perpetrators post false information or fake press releases
about companies on the Internet.