Chapter 4

International Perspective of Cybercrime

“Universal Law is not a true Law but a code of rules of conduct“. John Austin.i

Introduction
In this chapter the researcher discusses the international laws with respect to cyber laws
governing cybercrime at the global level. The researcher discusses the convention governing
cybercrime at international level. Further a comparison is drawn between the international
convention and Information Technology Act 2000.

International Law is a body of law which is composed of principles and rules of conduct, bound
by each stateii. They include:
i) The governance of international institutions
ii) Rules of law relating to individuals.

Thus international law is primarily a system regulating the rights and duties of states inter se
popularly known as the ‘Laws of Nations’. Basic primary aim is securing justice for human
beings. The history of International Law dates back to earliest times to the beginning of the
period of antiquity. As different communities existed there was a need to regulate the relation
between such communities. Before the dawn of Christianity references, as to immunities of
ambassadors and certain laws and usages of war were found in ancient Egypt and India. We can
date back to historical cases of recourse to arbitration and mediation in ancient China and in
early Islamic world.
During the period of Rome’s dominance there were rules governing the relations between Rome
and various nations with which it had commercial relations.
In the 19th Century, this law further expanded the reason being the emergence of powerful states
within and outside Europe.iii
 • Development of International Law
The present day century has witnessed a greater impetus to the development of international law,
the reason being growing interdependence of states and of vastly increased intercourse between
them due to all kinds of inventions that overcame the difficulties of time, space and intellectual
communication. The need was felt to develop new rules or devise techniques to meet
innumerable new situations leading to speedier method of law making. Great number of
multilateral treaties of last 80 years is laying down rules to be observed by the majority of states.

The United Nations with the expert aid of a body known as the International Law Commission
codified and developed the International Law. iv

• Sources of International Law

1. John Austin (1970 – 1859) he was the foremost protagonists of International Law.v

The material “sources” of international law:

i. Custom- “A custom, in intendment of law, is such a usage as hath obtained the force of law”.
Viner’s Abridgement.
ii. Treaties – is between two or more or only a few states.vi
It is a direct source of international law.
iii. Decisions of judicial or arbitral tribunals – source being the International Court of Justice
earlier known as Permanent Court of International Justice.
iv. Juristic works – Lead to the formation of and the development of international law.
v. Decisions or determinations of the organs of international institutions – leads to the
formation of rules of international law.

• Relation between International law and State Law

There exist a number of theories as to applicability of international law to state law. The
principal theories are known as monism and dualism theory. But apart from such theory is the
delegation theory. Accordingly, each state is delegated constitutional rules, the right to determine
 the provisions of a treaty or convention and when can it come into force. The procedure to be
adopted is mentioned in the convention. There exist no new rules.

• Jurisdiction in Cyberspace
The word jurisdiction is the authority of a person or a body to exercise its power. The
Constitution provisions are followed for such jurisdictional sovereignty.vii

Jurisdiction issues can be divided into:

1. Perspective Jurisdiction – Here the state defines its own laws.
2. Enforcement Jurisdiction. – The ability of the state to enforce its laws.viii

The I.T Act under sec 75 specifies the jurisdiction of the Act which states that the Act covers all
the offences committed in and outside India. This offence may be committed by any person of
any nationality.ix It so happens, that jurisdiction of local laws is different from international
laws, as it extends only to its land and not outside the territory.

The following are the case laws which determine the jurisdiction of the state.
In the case of S.S Lotus Case (France v Turkey) x , it was laid down that the state refrains from
use of its power in other’s territory, thereby, making jurisdictional territory. The only time it can
exercise it is through permission derived from international custom or convention.

• Jurisdiction in cyberspace
As there are no physical boundaries the accessibility becomes easy only on the click of a mouse.
The terms and policies of particular websites have only domestic laws applicability. So when the
question arises as to international crime then a person may be trapped in the applicability of
laws. The procedural aspect of I.T. Act 2000 is also inadequate.

• Need for International Conventions and Treaties

The Twelfth United Nations Congress on global assistance came to a resolution on Prevention of
crime and to render fairness. The Congress main aim was to have complete policies worldwide.
The U.N felt the need to have development of a global convention. This was a fight against
 cybercrime and methods to be adopted for its careful and favorable consideration. A number of
four regional meetings were held for the growth of a global agreement to attack cybercrime.
When we compare cyber law to international law we can come to a conclusion that it is
international in nature and global. The national cyber laws are of no use without international
cooperation. A Treaty or Convention provides a “Harmonized Outline” for countries globally.
Countries are signatories to the Convention - The Budapest Convention. This is the first effort
made internationally to cater to Cyber Law / Crimes globally. This treaty is not a fully developed
as many countries, like India, are not a party to it.

• Need for International Law

In an International legal system there is no sovereign political authority above the state. There is
neither legislative authority nor executive and judicial authorities in the form they exists in a
state. Rules of international law are therefore created by means of the consent of the states.

Some functions of international Law are:

• To maintain global harmony, security
• To develop amicable relations among nations
• To achieve cooperation globally in tackling problems
• To settle international disputes by peaceful means
• To provide the right of self-discrimination to the people
• To provide fundamental freedoms and human rights.xi

• States Responsibility under International Law

A right of one state is a duty of another state. If the latter violates its duties as provided by the
rules of international law it becomes responsible to the former. It may mean that whenever a duty
established by any rule of international law is breached by any act or omission of a state it is held
responsible to which the act is imputed. Article 1 of the Draft Articles prepared by the
International Law Commission stated that every global act wrongfully done entails international
responsibility on the state and this applies to all states. xii
1.1 Current International Conventions and Treaties on Cybercrime

The Budapest Agreement / Budapest Convention, being first to emphasis on Internet,

computer crime. Harmonize national laws so as to undercover techniques to tackle these
issues.xiii It was laid down in France. There was active participation by states like Canada and
Japan. It was signed in Budapest in 2001 and brought into force in 2004. The leading agreement
is the first international treaty dealing with computer offences.xiv

This was adopted by the the ministry of Europe on 8-11- 2001, it further was signed on 23-11-
2001 in Budapest and it came into force in 2004 in the month of July.xv As of November, 2013,
41 states have approved the convention. It was further signed by 11 states.This was the first
global agreement on cybercrimes which used internet and a computer as a tool to commit the
offence. It tackled issues of copyrights, internet fraud, pornography (child), and covered network
violation.xviVarious powers and procedures were laid down. The Convention is the outcome of
the work of the European experts. There are a number of other protocols which has tackled
issues of racism through the internet. Cyber Terrorism is part of the Convention.xvii
The Convention allows getting data across the boundary. By being a signatory consent is not
required and provides 24/7 assistance to Signatories.

It harmonizes national lawsxviii, so as to draw a balance between law enforcement and

fundamental human rights. The United Nations International Covenant on Civil and Political
Rights, 1966, and other applicable international human rights documents reaffirm the right of
everyone. The agreement confers upon every country the right of expression, right to get
evidence and also to maintain confidentiality irrespective of boundaries. The council confers the
right to protect individual information this is done by automatic giving out of private
information.

• Objective of the Budapest Convention

1. The preamble state to have a common policy among nations with respect to crime so as to
protect the society at large. This will aid in global cooperation among nations to fight against
cyber war.
2. The Convention aims principally at:
i) Uniformity in criminal law
ii) Laying down procedure as to investigation and prosecution of criminals committing crime
by use of computer.
iii) Laying down an effective command of global co-operation.

3. It further emphasis that every member to provide assistance to one another and aid in the
collection of data transmitted via the internet.xix
One of the major threats to every nation is the Electronic Espionage, Cyber Warfare and
Cyber Terrorism. A practice of obtaining secret or confidential information about an
organization or a society that may be detrimental to the country or the state without the
permission of the holder of the information.xx

• The agreement includes the following types of cybercrime:

1. Unlawful access
2. Unlawful interception
3. Data intrusion
4. System intrusion
5. Misuse of devices
6. Computer-related counterfeit
7. Computer-related swindle
8. Offences related to child pornography
9. Offences related to copyright
10. Abuse of Neighboring Rights

The treaty sets out procedural law issues with respect to information stored in computers and
transfer of the same. There exists constant usage of computer and Internet. Due to the low costs
and easier accessibility, face to face communication has long gone taken a back seat due to the
development of internet accessibility. People prefer to use the internet as it is cost effective and
easy and has high speed as to transfer of information. The United States of America share similar
legal systems and historical ties the United Kingdom. These countries have a well-developed
information technology infrastructure.

If we go deeper we can come to a conclusion that traditional crimes receive universal in

treatment.xxiCybercrime being universal in nature therefore the rules governing it are similar
having uniformity in punishments but due to culture some of the crimes are given different
treatment and varies from jurisdiction to jurisdiction such are influenced by the country’s
environment.xxii

The following are some of the provisions of the Convention of Budapest in comparison with the
Information Technology Act 2000.
The researcher has analyzed the Budapest Treaty in comparison with the I.T. Act, 2000, drawing
out the similarities between them. This has been depicted in the tabular format given below:-

Budapest Treaty / Convention on Provisions of the I.T. Act, 2000 / Co-

Cybercrime. related Legislation.
Articles Description Sections of Description& Co-
I.T.Act,2000 related Legislation.
2 Illegal access 70 Persons who secures
illegal access
3 Member state to 65 –67B Punishable offences.
adopt such
legislation which
are important to
prove offences
under the laws.
4, 5 Data interference, 65 – 67B
System interference
6 Illegal acts 463,499, Indian Penal Code
383 NDPS Act
500 Arms Act.
7, 8, 9 Forgery, fraud, Section 67, 67-
child pornography A, B
10 Infringement of - -
copyright and
correlated rights
11, 12 Corporate Liability - - A detail
13 Criminal offences – - - compari
its sanctions son of
the
14 Offences committed - -
Budapes
by computer system
t Treaty
and electronic
and the
evidence.
I.T. Act
15 Situations and - -
2000 is
protections of
made as
human rights.
follows.
16-18 All ISP to provide - -
data irrespective of
Chapter
transmission on
II of the
commercially basis.
Budape
19 Computer - - st
information – its Treaty
search and seizure relating
20 Traffic data – its Section 30 Certifying Authorities. to
collection measure
21 Interception of Sec 65 No Provision s taken
content data onwards. at
22 Jurisdiction Sec 1(2) Jurisdiction. National
23 Binding on parties Level,
to cooperate. Title 1 –
24 Extradition No Provision No Provisions. To
maintain secrecy and easy access to computer information

Art- 2 Unlawful accesses xxiiicorrelates to Sec 70 of the I.T. Act, 2000 where the government of
any country can may make any computer reserve as protected system. It further prescribes
punishment with imprisonment. A National Nodal Agency set up by the Government to deal
with research and its development for protecting of dire information.xxiv

Art- 3 Illegal Interception- Every party to have its own laws as to the offences and proving
such offences. The Indian I.T. Act, 2000 has in its ambit certain offences, from Section 65 – Sec
67- B, which are offences which are punishable.xxv

Art 4 – Data intrusion, Article 5 – System intrusionxxvi - These provisions of the Convention
correspond to offences laid down u/s 65 – 67-B of the I.T. Act, 2000.

Art 6 - Illegal actsxxvii- This is with respect to crimes against secrecy and national integrity. The
corresponding changes are made to the Indian Penal Code, 1860 and Evidence Act, 1872.As the
Indian Penal Code deals with Forgery of electronic Records,xxviii Sending Defamatory messages
by email,xxix sending threatening messages by email,xxx Bogus websites cyber frauds, xxxi
email
spoofing,xxxiiweb jacking,xxxiii email abuse,xxxiv online sale of drugs ,xxxvonline sale of
arms.xxxviNecessary amendments are being made to Bankers Act and Evidence Act yet no
significant laws are made up for misuse of devices in India, whereas in USA there is a special
Act known as an 1986 Act for Computer Fraud and Abuse, in misuse of computer Act, 1993
Singapore deals with such matters.

Art 7, 8, 9, relate to computer – related forgery, fraud, child pornographyxxxvii corresponding

provisions are made to the Information Technology Act 2000.xxxviii

Art 10 - Against infringement of Copyright and related rights xxxix - Allows every member to
have its own rules and regulation in consonance with the Paris Act, 1971, the Agreements on
Trade – Related Aspects of Intellectual Property Rights and WIPO Copyright
Treaty.Corresponding Laws are framed under the Indian Copyright Act 1957; whereby the main
objective of the Act is to provide protection to artistic, literary works.xlIndia has been a member
of the Berne Conventionxli. India is also a party to the Rome Convention. India has made
necessary changes to its Patent Act by compiling the TRIPS Agreement.

Art11, 12 - Attempt and aiding or abetting, Corporate Liability –Every member to have its
own rules and regulations so as to establish offences of crime. These may be done
intentionally.xlii

Offences of Abetment in India, committed outside India

The word “Abet” means to encourage or incite, induce or provoke another person to commit an
xliii
act prohibited by law. These offences are covered under the I.P.C. , this tells us acts
committed in India but does not include computer related offences. So, the need for
corresponding amendments to include cybercrimeoffence such as Xenophobia.

Art 13 – Corresponds to Authorizations and Actions – Every member to adhere to Article 2 -

11 and adopt their own rules and regulations for effective governance.

Article 14 – Scope of procedural provisions – Every member to have their own e powers and
procedures for offences of computers and for the collection of evidence.

Art 15 – Conditions and safeguards – Every member shall apply its powers and procedures so
as to protect rights of human beings.

Art 16 – 18 – Computer information and its preservation – are made available irrespective of
service providers.

Art 19 – Examination and confiscation of stored data – Every member to have laws with
respect to retrieval and finding of computer data.
Art20 – Traffic Data and its collection - The Information Technology Act has created
Certifying Authority to ensure search and seizure and misuse of hardware, software and
procedures.xliv

Art 21 – Interception of content data –Such legislation to be made by parties as serious

offences and made accountable by competent authorities under the domestic laws.
Corresponding legislative measures are made in the I.T. Act as offences and the various
punishment and competent authority are created by the Act 2000 in India.xlv

Art 22 Jurisdiction – read with Article 2 to 11 for the establishment of jurisdiction over crimes
which may be committed in
a) One’s own land ; or
b) On a ship or
c) on an aircraft ; or
d) By the nationality, on its own land or outside
India has laid down the jurisdiction in the Act, 2000. Section 1(2), applicable to entire India, and
also to trans-border offences.xlvi Thereby the jurisdiction of the I.T. Act, 2000 includes trans-
border offences.

Art 23 – of the Budapest Treaty- states and makes it binding on the parties to co-operate with
each other. Each member country can have mutual laws and treaties to gain co-operation .It may
be on uniform or reciprocal legislations.xlvii

Art 24 - Extradition – Every member country is liable for punishment if the take away the liberty
xlviii
for one or more years. They must give mutual assistance so as to conduct investigation,
making it universally acceptable. The convention has entered into agreement with a number of
companies to support countries for the implementation of the Budapest Convention.xlix

Art 6(1) and (2) of the Protocol specifically allows the party, to prosecute, offense for inciting
hatred and violence. lVienna Declaration and Programme of Action also urge all governments to
 take immediate measures and to develop strong policies to prevent racism, xenophobia or related
intolerance, where necessary by enactment of appropriate legislation including penal measure.li

4.2 Comparative Analysis with Laws of other countries

• United States of America

The United States a Federal Republic, the power to delegate is left to the state itself.lii In America
both computer and cybercrimes are considered illegal irrespective of states. These laws are
adopted at the state as well as in the federal government.liiiEach state have their own laws and
they have procedures and they enforce it.livThe United States Department of Justice (DOJ) has
not only defined computer crimes but had divided them into three categories,lv based on the role
of the computer in the crime.lviThere has always been a dual approach to combat such crimes.lvii
The Counterfeit Access Device and Computer Fraud and Abuse Law of 1984 and subsequent
amending Acts address crimes in which the computer is the “subject”. Then there was the
formation of the National Information Infrastructure Protection Act of 1996 (NIIPA).lviii

There are several federal computer crime and cybercrime statues in the United States governing
cybercrime.lix The other statutes include
1. 18 U.S. Code § 1028 – it makes it a crime to produce, transfer or possess device, computer, that
falsifies identification documents.
2. The 18 U.S. Code § 2319 - makes it a federal offense to infringe a valid copyright.
3. 18 U.S. Code § 1462-1463 prohibits the use of a computer to import or transport obscene
material in the United States.
4. The 18 U.S. Code 2251-2252A - makes it a crime to employ/ induce participation by a minor in
the making of visual depiction of a sexually explicit act and transporting it by electronic means.lx
There are a number of laws framed in the USA to combat Cybercrime, right from 1984 till date
as compared to India with lone legislation i.e. I.T. Act 2000.

Some of the known legislation:

 The Wire Fraud Statute was the first law used to prosecute computer criminals in the USA.
The law was passed to prohibit the use of communication wires. An effective statute to overcome
defrauders trying to obtain money or property by false representation or promise. The modus
operandi being radio or television communication, signs or signalslxi. This statute was
successfully used in 1970’s and 1980’s to convict government officials of defrauding the public
of its intangible rightlxii
1. The Counterfeit Access Device and Computer Fraud and Abuse Law of 1984.
2. The National Information Infrastructure Protection Act of 1996(NIIPA).lxiii
3. The Access Device Fraud Act 1984 was the first genuine cybercrime law passed by the
Federal government. It prohibits creating, distributing, possessing or using counterfeit – making
devices to commit fraud. This includes computers, scanners, printers and a wide variety of
portable electronic devices, including cellular phones equipped with digital cameras. This law
was strengthened in 1968 by the Computer Fraud and Abuse Act (CFFA)lxiv.
4. The Computer Fraud and Abuse Act, 1984(CFAA) and amended in 1986. This being one of
the most important statutes as it deals with computer crimelxv. The main reason for it to be
amended in 1994 was that it could deal with the problem of “malicious Code “such as viruses,
worms and other programs which are designed to destroy data on a computer. The Act suffered
major lacunae as it could not prosecute those who did it with intent to damage a system. To
expand the CFAA the National Information Infrastructure Act (NIIA) was passed in 1996 to
include illegal access to a protected computer, making it unlawfull to see information without
approval. In 2001 the Act was replaced by the Patriot Act which addresses new abuses arising
from misuse of new technologieslxvi. NIIA made it illegal to view information on computer
without authorization
5. In 1986 the Electronic Communication Privacy Act (ECPA) was amended making it illegal to
intercept stored or transmitted electronic communication without authorization. It prohibited
illegal access and certain disclosures of communication contents. Later on amended in 1994lxvii.
The CSEA (Cyber Security Enhancement Act) was passed in 2002. This Act granted powers
to Implementation Authorities and increased penalties as compared to the Computer Fraud and
Abuse Actlxviii. The Act authorizes harsher sentences for individuals who knowingly or recklessly
commit a computer crime that results in death or serious bodily injury.
 6. The Economic Espionage Act was passed in 1996, known as (EEA) to stop trade secret
misappropriation. The other Statute namely National Stolen Property Act and Virginia
Internet Policy Act comprising of 7 bills are the proposed computer crime legislation in the
U.S.lxix
7. FOISA – Fraudulent Online Identity Sanction Act, registering online domain under false
identification, increase jail time to provide false information.
8. CSPCA – Computer Software Privacy and Control Act, to deal with problems of spyware.
When passed it would prohibit transmission of software that collects and transmits personal
information about the owner or operator of the computer.

The US legal system is and always more tech savvy and specialized to tackle various issues. In
case of credit Card Fraud in USA there is a separate Federal Credit Card Law that stipulates
the consumer. The Fair Credit Billing Act (FCBA) will apply to billing errors on credit card,
unauthorized charges, charges for goods and services. This Act is an attempt to minimize Credit
Card Fraud.lxx

• Internet as a means to Freedom of Speech and Expression

In the USA a practice is followed where the ISP’s slowed down the services causing the
companies to pay more to deliver their traffic to users faster with consistency. The US
government banned such. The government has further collected public comments on new ‘Net
Neutrality’ rules. These rules will prohibit internet providers from blocking or slowing down
web sites. This is based on free expression and the basic requirement for real internet
freedom.lxxi

• United Kingdom
The main Council known as the Council of Europe creates laws which control the British
Criminal justice system. It has set up standards for all member states to follow. This makes all
the countries interconnected as they have the same background. But such is not so in the U.S.A.
The Council of Europe (COE)- globally protects from the threat of cybercrime by implementing
Xenophobia and Racism, the Cybercrime Convention Committee (T-CY) and the technical
cooperation Programs on Cybercrime.
 The Convention on Cybercrime of the Council of Europe is the only binding international
instrument, providing guideline for all countries through the tool of cooperation.lxxiiIn The United
Kingdom the computer crimes legislation is the Computer Misuse Act of 1990 (CMA).lxxiii It
has been followed by Singapore and Malaysia.lxxiv

• China and Australia

Australia has joined 38 other nations as part of an international cybercrime treaty designed to
assist international collaboration against online crimes.lxxv

• The Singapore Model

The Singapore legislature focused its efforts on producing a specific computer crime with a
specific legislation. The Singapore Model follows the United Kingdom model for tackling
cybercrime issues.
Similar to U.K. only computer crime is dealt with under the Computer Misuse Act (Cap. 50A)
(CMA).The four approaches of the Act are:

Creating computer regulation;

Providing penalties and policies.

Powers of investigation to law enforcement agencies

Recognising the trans-national nature of offences.

The CMA gives powers to the police to investigate matters. There are specialized units which
handle investigation called the Computer Crimes Branch of the Criminal Investigation
Department (CID), the Forensics Branch of the Singapore Police Force (SPF), and the Singapore
Computer Emergency Response Team (SINGCERT) of the IDA.lxxviCybercrime is under the
provisions of the Penal Code (Cap. 224) and other legislations. lxxviiIrrespective if deficiency the Act
is constantly amended from time to time and is more advanced as compared to the U.K laws. lxxviii

• Status of India
 Till date, there exists no treaty with other countries to extradite a cyber-criminal. In India the
Indian Penal Code, The Evidence Act, The Information Technology Act 2000, The Negotiable
Instruments Act as discussed in the previous chapters of this thesis are applicable for computer
related crime committed in India.

4.3 Cross Border Crimes

It is seen that after people commit a crime they escape to another country to escape the liability
of the crime. These are often seen in the common crimes. But the story is different under the
cybercrime. It is seen here that the crime is committed from a different state upon another state
having different jurisdiction and different laws governing it. It becomes difficult to govern, due
to the existence of different culture and different laws of land. An act may be regarded as illegal
in country A but such may not be so in country B. Normally a state finds itself in a difficult
situation to punish a person who has committed a crime elsewhere primarily because of lack of
jurisdiction and therefore such persons go scot free. Very rarely are they surrendered to the other
state where the crime has been committed. Surrender of an accused or of a convict is referred to
as extradition.lxxixTherefore the need for International Treaty and Convention, to build
international cooperation and universal harmonization of laws.

• International Issues and cooperation to fight Cybercrime

When we talk of International issues and to bring about cooperation to fight cybercrime, the first
thing that comes to our mind is definition of outer space.

Definition of Outer Space

It constitutes the region above airing the entire world. It includes area above the super adjacent
national airspace, over territorial waters, and over High seas. The air space is under the control of
countries involved, and outer space is an area where we have freedom of scientific exploration
and use. All forms of IPR’s are generated and transferred in outer space between countries and
private entities involving contracts and licensing. Specialists have suggested the inner boundary
of outer space as 100+10 Km above sea level. The boundary between air and outer space is
generally accepted at about 100 Km because space craft cannot decent below this height and
aircraft cannot climb these altitudes. Maximum altitude is 50000 Feet or 10 Km to see to the
 governance of outer space UN has made the registration Convention in 1968, where all countries
inform UN in advance regarding the purpose of their space launch. Outer space activity is an
international activity of states and therefore space law is international in character. The UN
Space Treaty 1967 provides space activities are in conformity with trans- national law including
Charter of the UN and to maintain global peace and promoting international cooperation and
understanding and consideration of environmental protection.lxxx

• Extradition
International Extradition is the surrender by one nation to another, for trial and punishment of a
person accused under the jurisdiction of the latter.lxxxi
The basic objective of Extradition is to ensure that criminals are returned from one country to
another. Their rights have also to be protected. There is a need for evidence or proof to hold the
accused.

In a Apex Court Case on extradition , as per sec 21 of the Extradition Act , 1962 the accused can
be tried only for those offences laid down in the extradition decree and for no other offences . So
it was further laid down that criminal courts of India have no jurisdiction to try any other
offence.lxxxiiEvery country exercises control over the persons of one’s own territory, but
sometimes there may be cases when a person after committing a crime runs away to another
country.lxxxiii In such a case the country affected finds itself helpless to exercise jurisdiction to
punish the guilty person this situation is detrimental for the peace and order. Then in such a
situation peace and order can be maintained only when there is international cooperation among
the states. There are social needs to punish such criminals and in order to fulfill this social
necessity the principle of extradition has been recognized.lxxxiv

“The inability of a state to exercise its territory rights would serious undermines the maintenance
of law and order if there were no cooperation in the administration of justice. The awareness
operation is illustrated by the widespread practice of returning an accused or convict to the
country where the crime was made.”lxxxvExtradition is the process of handing over the accused
or of a convicted person to the state on whose territory he has alleged to have committed or have
 been convicted of a crime ,by the state on whose territory the alleged criminal happens to be for
the time being.lxxxvi

• Duty of the State in respect of extradition

International Law does not recognize any general duty of states in respect of extradition. It
depends upon the provisions of the existing extradition treaties. In an American case, Factor v
Laubenheimer,lxxxvii the Court laid down the principle of International Law. Where by extradition
is based on the treaty or if its constitution permits.

The emphasis was on the right to demand extradition and corresponding duty to surrender him to
the demanding state. Such was based on the treaty. But as pointed out in Wheaton’s International
lxxxviii
Law, that there is no universal rule or recognized practice that there can be no extradition
except under a treaty because some countries grant extradition without a treaty.

In India, the Extraditions Act, 1962 which governs the law relating to extradition in India. With
reference to III part of the Act, dealing with the return of the fugitive, criminals from the
commonwealth countries having such arrangements. Part II deals with extradition of convicts to
foreign states and to Common wealth countries. Under Section 4 of the Act, a demand can be
made to government for the submission of a fugitive criminal.lxxxixUnder sec. 7(4), if the
magistrate is of the opinion that a prima facie case exists over the foreign state or commonwealth
country, he may put him in prison, and shall report his enquiry to the government, it may further
issue a warrant for the custody of the fugitive and his delivery.xc Thus Extradition Treaty is not
the only basis for extradition of a fugitive criminalxciFurther ,definition of the words “extradition
offence” in section 2(c) includes” (ii) in relation to a foreign state other than a treaty State. This
enumerates offence in relation to Commonwealth countries.xciiIndia has signed Extradition
Treaties

List of Countries with whom India has Extradition Treatiesxciii

Sl. No. Name of the Country Year of Treaty

1. Belgium 1958

2. Bhutan 1997

3. Canada 1987

4. Hong Kong 1997

5. Nepal (old treaty) 1963

6. Netherlands 1989

7. Russia 2000

8. Switzerland 1996

9. UAE 2000

10. UK 1993

11. USA 1999

12. Uzbekistan 2000

13. Spain 2003

14. Mongolia 2004

15. Turkey 2003

16. Germany 2004

17. Tunisia 2004

18. Oman 2005

19. France 2005

20. Poland 2005

21. Korea 2004

22. Bahrain 2005

23. Bulgaria 2006

24. Ukraine 2006

25. South Africa 2005

26. Belarus 2008

27. Kuwait 2007

28. Mauritius 2008

• Extradition Arrangements

List of Countries with whom India has Extradition Arrangements:xciv

Sl. No. Name of the Year of

Country Arrangement

1. Australia 1971

2. Fiji 1979

3. Italy 2003

4. Papua New 1978

Guinea

5. Singapore 1972

6. Sri Lanka 1978

 7. Sweden 1963

8. Tanzania 1966

9. Thailand 1982

10. Portugal 2002

The status of India with respect to extradition of cybercriminal, India is yet to sign any special
treaty on cybercrime with other countries on matters of extradition of cyber criminals yet the
existing extradition treaty with the above mentioned countries holds good to extradite cyber
criminals from the above mentioned countries. In India the Bureau of Investigation at the
center, has formed a Cybercrime unit for research and development. It has correspondence with
international agencies like the FBI, Interpol and other foreign police agencies and share
expertise on cybercrime.

The I.T. Act 2000 allows the government to use the following techniques to catch cyber
criminals. They are

• Sec 69: Government (Central or State) can issue instructions to ‘intercept’, ‘monitor’ or ‘decrypt’
any information which is connected with the purpose mentioned in this section.
• Sec 69A: Government (Central) can issue instructions for ‘blocking of in access to the Public,
any information which is connected with the purpose mentioned in this section.
• Sec 69 B: Government (Central) can issue instructions to collect data on the internet for safety.xcv

• The European Convention on Extradition

The signatories’ states will co-operate and provide necessary help with the help of relevant
global international instrument. This is based on co-ordination and mutual agreements based on
reciprocal laws. This aids in retrieval of information and collection of electronic evidence.

• Principles relating to extraditionxcvi

 Extradition
1. Article 24, The Convention on Cybercrime, Budapest, 23.XI, 2001, laws down the provisions as
to extradition for offences of crime. This is in accordance with Art 2-11 of this Convention. The
main criteria are that the offences should be punishable under the domestic laws.
2. The parties decide and list the offences to be included under the treaty.xcvii
3. The laws of the treaty govern extradition. They shall have the grounds on which
the party can refuse extradition.
4. The party appoints an authority who takes the request for extradition.

• General principles relating to mutual assistance

The member states give mutual assistance to one another. This helps them to collect evidences
for investigation. These members can adopt laws to achieve their obligations. They can use any
form of communication.

• Spontaneous information
1. A Party may, forward investigation reports to the other party so as to assist the other party with
its investigation.
2. A request can be made to keep all investigations confidential and notify to the other party from
time to time.

Procedures as to assistance in absence of international agreements

(a) When there is no joint arrangement each part can appoint an authority who will be responsible
for queries. These authorities, their names, addresses are declared at the time of signing of the
treaty.xcviiiSince India is not a signatory to the Treaty on Cybercrime there exists major problem
as to extradition of cybercriminal. India has to depend on the Extradition Treaty for which all the
countries have to have a common law. No provisions as to Extradition is made in the local law
i.e. Information Technology Act of 2000. Section 75 has provisions made to crimes committed
outside India. As the Act states that it shall apply to crimes committed outside India by any
citizen of any country.xcix

• Proposed Convention on Cybercrime

 African Union Convention on Cyber security (AUCC) will limit free speech online
would be signed in January 2014.c

4.4 Forth coming Legislations and Pending Bills in Parliament

The US has expertise military and has a fleet of expertise in solving cyber issues. The military of
USA in 2009 has established a Cyber Command within the Department of Defense.ci The
military has included a cyber-security unit. Yet international cooperation is the need as felt by
the Pentagon.ciiThe major challenge to security of the internet in the US is with individuals who
look for profits for their individual benefit.ciii

The Criminal Law Amendment Bill 2013 is pending in India. The Bill claims to boost the
privacy of individuals in India. The Bill further claims to remove the ambiguities in the Indian
law which threatens the confidentiality and self-respect of individuals. The bill will protect the
safety of female individuals.

4.5 Summary and Conclusions

India does not have a “Universally Acceptable” Global Cyber Law Treaty or Convention which
is a must to tackle Cyber issues. The recent amendments made to the IT Act, 2000 is well
adapted to tackle cybercrime in the state and we can come to the conclusion that it is a “fairly
complete “ legal framework, but yet to have an international cooperation in tackling international
crimes such as ‘Terrorism’. A need is felt to be a member of the international treaty. In absence
of a treaty with a country the problem of extradition will arise if the criminal seeks asylum in that
country.
Efforts are made by the United Nations (UN) to accept “Extra Complete” and “Truly
Worldwide” International Cybercrime Agreement. This was not accepted by the UN and now
there is no “Internationally Acceptable” Cybercrime Treaty. There is a need for the UN to
protect Rights of Human in Cyberspace.

There is a need for the Global community on Rights of human and Cyber Safety to think on
issues like Warfare, Terrorism, Espionage, Crimes, E-Surveillance, and Unlawful Interceptions
in cyber which are “Global” in nature.
 As of today the major drawback is that major different Countries of the world have different laws
for such issues, making it problematic to apply such against threats. UN needs to look into this
matter and have corresponding agreements. In India balance has to be drawn between civil,
nation’s security and law enforcement bodies. India should be a part of the Convention on
Cybercrime so as to get international cooperation in attacking cybercriminals further to create
cyber boundary encompassing cyber criminals. India at the present is having not so strong cyber
law, cyber security and cyber forensics. The lack of comprehensive laws and introduction of an
unfamiliar legal framework into its legislation prevents India from signing the Treaty.
Some Countries like the U.S. view new offers with doubt, as such may not be able to create a
strong legal framework. India has not yet signed any Cyber treaty with any country. Therefore
the question of apprehending the cybercriminal would be a difficult task due to absence of
international cooperation. The United States continues to have laws which protect their state. To
resolve disputes related to jurisdiction and not to enhance the border of territory and nationality,
is by implementing the principles of reasonableness and fairness so as to have universal
jurisdictionciv.Yet it is difficult to punish offence under the extradition as both the contracting
parties should have similar laws. In one case the punishment is for one year and in another
contracting state the punishment is for 2 years then it becomes a difficult task for
conviction.India is yet not a signed the Convention on Cybercrime.cv This aspect does have a
detrimental effect on the enforcement of the I.T. Act 2000.

Chapter IV
i
J.G.Starke,” Introduction to International Law”, Aditya Book, Butterworths&
Co (Publishers) Ltd 1989, 10th edition, P. 100.
ii
Professor Charles Cheney Hyde,“ Hyde International Law, The American Law
Institute’s Revised Statement of the Foreign Relations Law of the Uniter ”,2nd
edition,1947, Vol. I, Para 1
iii
Ibid 55
iv
J.G.Starke, ”Introduction to International Law”, Aditya Book, Butterworths& Co
(Publishers) Ltd 1989, 10th edition P. 106.
v
Dennis Lloyd, “The Idea of Law”, Penguin revised edition, 1970,pp37-40,186-
190,224-5, and 238- 239, Passim L. Henkin, “How Nations Behave “,2nd
edition,1979, and J.G.Merrills,” Anatomy of International Law “, 2nd
edition,1981.
vi
J.G.Starke, ”Introduction to International Law, 10th edition Aditya Book,
Butterworths&Co (Publishers) Ltd 1989, P 107.
vii
Vakul Sharma, “Information Technology Law and Practice”, Universal Law
Publishing co, Second Edition, P248-249.
viii
Supra P. 249
ix
Section 75 – I.T. Act of 2000
x
PCIJ Ser A (1927), No.9
xi
Dr. .H.O.Agarwal, ”International Law & Human Rights”, Central Law
Publications, Allahabad, Sixteen Editions (2009), P 225.
xii
Ibid
xiii
Convention on Cybercrime, Budapest, 23 November 2001. Available on website of
the Council of Europe, Available on: http://
conventions.coe.int/Treaty/EN/Treaties/Html/185.htm. Visited on 20th January
2013.
xiv
Ms. Ujjain Ghosh, “Cyber-crimes And Extradition Laws”, manupatra. Available
on www.manupatra.com,
http://portal,unesco.org/culture/en/ev.php_url_id=1955&url_do=do_ topics
&url_section=201.html. Visited on 20th January 2013.
xv
The COE International Convention on Cyber crimebefore Its Entry Into
Force, UNESCO, January– March 2004.Available on: http. Visited on 20th January
2013.
xvi
“List of signatories and ratifications of the treaty”, Council of Europe, Available
on: http://en.wikipedia.org/wiki/Convention_on_Cybercrime#cite_ref-6 . Visited
on 20th January 2013.
xvii
Ibid 133
xviii
http://conventions.coe.int/Treaty/en/Treaties/Html/185.htm; visited on: July 30,
2010.
xix
Convention on Cybercrime, Art. 33(1), Budapest, 23, XI.2001,
http://conventions.coe.int/Treaty/EN/Treaties/Html/185.htm. Visited on 18th
January, 2013.
xx
Espionage, http://ethics.csc.ncsu.edu/risks/security/espionage/study.php.Visited on
:20th January ,2013
xxi
Ibid 136
xxii
Vaidya, “Cybercrimes and Law An Overview”, 1st edition: 2007,
xxiii
Prof. VimlenduTayal, ”Cyber Law Cyber crimeInternet and E-Commerce”, Bharat
Law Publication, Jaipur, (2011), P 670.
xxiv
Section 70, 70- The I.T. Act, 2000.
xxv
I.T. Act, 2000. Indian Penal Code, 1860
xxvi
ibid 96
xxvii
ibid
xxviii
Section 463 Indian Penal Code
xxix
Section 499 Indian Penal Code
xxx
Section 503 Indian Penal Code
xxxi
Section 420 Indian Penal Code
xxxii
Section 463 Indian Penal Code
xxxiii
Section 383 Indian Penal Code
xxxiv
Section 500 Indian Penal Code
xxxv
NDPS Act
xxxvi
Arms Act
xxxvii
Prof.VimlenduTayal,”Cyber Law Cyber crimeInternet and E-Commerce”, Bharat
Law Publication, Jaipur, (2011), P 672.
xxxviii
Section 67, 67-A, B of Information Technology Act 2000, Bare Act, Professional
Book Publishers. (2013).
xxxix
Prof.Vimlendu Tayal, “Cyber Law Cyber crime Internet and E-Commerce”, Bharat
Law Publication, Jaipur,(2011),P 673
xl
The Indian Copyright Act 1957, available at
http://www.ircc.iitb.ac.in/webnew/Indian%20Copyright%20Act%201957.html . :
5th February, 2013.
xli
WIPO Administered Treaties, WIPO International, Contracting Parties, Berne
Convention, available on
http://www.wipo.int/treaties/en/ShowResults.jsp?treaty_id=15.
xlii
Prof.Vimlendu Tayal,”Cyber Law Cyber crime Internet and E-Commerce”, Bharat
Law Publication, Jaipur, (2011), P674.
108A Indian Penal Code, 1860, (Act No. 45 of Year 1860)
xliv
Section 30 The Information Technology Act 2000,Bare Act, Professional Book
Publishers, (2013), P 17.
xlv
Section 65 onwards, “The Information Technology Act 2000”, Bare Act,
Professional Book Publishers (2013) Delhi, P 673.
xlvi
Section 1(2)” The Information Technology Act 2000”, Bare Act , Professional Book
Publishers , (2013),P 17
xlvii
Convention on Cybercrime, Budapest,
23. XI.2001,
http://conventions.coe.int/Treaty/EN/Treaties/Html/185.htm..Visitedon: 12th
February, 2013
xlviii
ibid
xlix
Council of Europe Convention on Cybercrime: Frequently Asked Questions and
Answers by the United States Department of Justice. Last update 10 November
2003.Available on:
http://www.us.doj.gov/criminal/cybercrime/COEFAQs.htm#topic. Visited on: 20th
February, 2013.
l
Explanatory Report on the additional protocol to the convention on cybercrime,
http://conventions.coe.int/Treaty/en/Reports/Html/189.htm. Visited on: 20th
February, 2013.
li
Vienna Declaration and Programme of Action, Part II Para 20.
http://www.ohchr.org/EN/ProfessionalInterest/Pages/Vienna.aspx. Visited on 28th
February,2013
lii
Art. I § 8, U.S. Constitution.
liii
Ibid 139
liv
Susan W. Brenner, ”State Cyber crimeLegislation in the United States of America:
 A Survey”, 7 RICH. J.L. & TECH. 28 (Winter 2001), available at
http://www.richmond.edu/jolt/v7i3/article2.html. Visited 0n25th February, 2013.
lv
National Institute of Justice, U.S. Department of Justice, “Computer Crime:
Criminal justice”, Resource Manual 2 (1989).
lvi
Ibid.
lvii
Dana L. Bazelon, Yun Jung Choi and Jason F. Conaty, “Computer Crimes”, 43 Am.
Crim. L. Rev. (2006), P 259, 264.
lviii
18 U.S. Code § 1030.
lix
18 U.S. Code § 1030.
lx
ibid 138
lxi
18 USC 1343 1988: Emphasis Added. The Mail Fraud Statute 18USC 1341(1988)
lxii
Geraldine SzottMoohr, “Mail Fraud and the Intangible Rights Doctrine: Someone to
Watch over “, US 31 Harvard Journal on Legis. 1994. P153; 163-66.
lxiii
18 US Code 1030.
lxiv
Samuel .C...Mcquade,III “Encyclopedia of Cybercrime”, Greenwood Press,
Westport ,London ©2009
lxv
D. Glenn Baker, ”Trespasser will be prosecuted: Computer Crime in the 1990’s”,
Computer/Law Journal. 1993. 12 (1) P 68.
lxvi
http://www.cpsr.org/cpsr/privacy/communications/wiretype/electroniccommunprivacyact.txt,
electronic communication privacy Act internet. Visited on: 10th March 2013.
lxvii
Cyber Security Enhancement Act
http://itlaw.wikia.com/wiki/Cyber_Security_Enhancement_Act,Visited on 11th
March 2013.
lxviii
Information Technology Act 2000 (Amended 2008).
lxix
The Times of India, Cyber Law,
http://www.cyber.law.harvard.edu/media/files/wpsupplement2005.pdf .Visited on: 19th June
2014.
lxx
Ibid 142
lxxi
Ibid 142
lxxii
Martin Wasik, “The Computer Misuse Act, 1990”, Criminal Law Review 767. Available on: The
United Kingdom CMA available at:
http://www.opsi.gov.uk/acts/acts1990/Ukpga_19900018_en_1.htm. Visited on 20th March
2013.
lxxiii
Ibid 156
lxxiv
Lilian Edwards, “Dawn of the Death of Distributed Denial of Service: How to Kill
Zombies”, 24 Cardozo Arts & EntLJ23, 36, (2006), http://cardozoaelj.com/wp-
content/uploads/Journal%20Issues/Volume%2024/Issue%201/Edwards.pdf.Visited on: 20th
February, 2013
lxxv
Michael Lee ,“Australia joins convention on cyber crimetreaty”, Financial Crime
TrainingMarch 4, 2013, available on http://www.zdnet.com/australia-joins-convention-on-
cybercrime-treaty-7000012071/visited on 25th February, 2013.
lxxvi
The Computer Misuse Act 1990 (Amendment) Bill. Bill 102 Sess. 2004-2005
lxxvii
The Miscellaneous Offences (Public Order and Nuisance) Act (Cap.184).
lxxviii
The Computer Misuse Act 1990 (Amendment) Bill. Bill 102 Sess. 2004-2005. See also, the
U.K. Parliament web site at:
 http://www.publications.parliament.uk/pa/cm200405/cmbills/102/2005102.htm, The Police and
Justice Bill. Bill 119 Sess. 2005-06. See also, the U.K. Parliament web site at:
http://www.publications.parliament.uk/pa/cm200506/cmbills/119/2006119.htm
http://www.lga.gov.uk/Legislative.asp?lsection=59&ccat=1156). See Bill Thompson, How to
Legislate against Hackers (BBC News, 13 March 2006), available at:
http://news.bbc.co.uk/1/hi/technology/4799338.stm.Visited on: 20th February, 2013.
lxxix
Dr.H.O.Agarwal,”International Law & Human Rights”, Central Law Publications, Allahabad,
Sixteen Editions (2009), P 263.
lxxx
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer
Space Including, The Moon and Other Celestial Bodies, 27 January 1967,610 U.N.T.S 205.
http://www.unoosa.org/pdf/publications/ST_SPACE_11_Rev2_Add2E.pdf .Visited
on 25th February,2013
lxxxi
P.RamanathaAiyar “Concise Law Dictionary”, Third Edition Reprint 2009, Lexis
Nexia, ButterworthsWadhwa, P 431.
lxxxii
Daya Singh Lahoria v Union of India (2001) 4 SCC 516.
lxxxiii
Dr. Rahul JairamNikam, ”Space Activities and IPR Protection, Need for a New
Legal Regime”,1st Edition, Haritha Graphics, Hyderabad, Pp 14-15.
lxxxiv
Dr.S.K Kapoor ,”International Law Human Rights “, Central Law Agency
Allahabad, 17th Edition(2009),P 342
lxxxv
Edward Collins, “International Law in changing World (1969), Central Law
Publishing, P 216
lxxxvi
L. Oppenheim, “International Law”, Vol. 1 , Eighth Edition, Pg 696 ; See also Oppenheim’s
International Law, Ninth Edition , Vol 1, Edited by Sir Robert Jennings and Sir Arthur
Watts,Longman Group U.K Ltd. And Mrs. Tomoko Hudson, 1992, Pp 948 – 949.
lxxxvii
(193)280 U.S.276
lxxxviii
Edition, 4. Ss 116 (a) to (d), Pp.186 to 189.
lxxxix
Section 5 of The ExtradictionAct,1962(34 of 1962)
xc
Section 8 ,ibid
xci
Section 31,ibid
xcii
Dr.S.K. Kapoor, “International Law Human Rights “, Central Law Agency Allahabad, 17th
Edition (2009), P 343.
xciii
The Convention on Cybercrime, Budapest, 23.XI, 2001, available on http:www.
convention.coe.int/Treaty/en/Treaties/Html/185.htm.Visited on 21st September, 2013.
xciv
The Convention on Cybercrime, Budapest, 23.XI, 2001, available on http:www.
Convention.coe.int/Treaty/en/Treaties/Html/185.htm.Visited on 21st September, 2013.
xcv
108A Indian Penal Code, 1860, (Act No. 45 of Year 1860) available at
471http://www.advocatekhoj.com/library/bareacts/indianpenalcode/index.php?Title=Indian%20
Pe nal%20Code . Visited on 1st September, 2013.
xcvi
Title 2, Article 24, The Convention on Cybercrime, Budapest, 23.XI, 2001, available on
http:www. convention .coe.int/Treaty/en/Treaties/Html/185.htm.Visited on 21st September,
2013.
xcvii
Prof.Vimlendu Tayal,”Cyber Law Cyber crime Internet and E-Commerce”, Bharat Law
Publication, Jaipur,(2011), P 680.
xcviii
Article 23 - 27 The Convention on Cybercrime, Budapest, 23.XI, 2001. Available on http:www.
convention .coe.int/Treaty/en/Treaties/Html/185.htm, Visited on 25th September, 2013.
xcix
Section 75 The Information Technology Act 2000,Pg 17 , Bare Act , Professional Book
Publishers , (2013)
c
Xinden, Alice Kirkland, African Convention Cybercrimes, November 27, 2013, available at:
http://www.indexoncensorship.org/2013/11/african-convention-cybercrimes-silence-free-
speech- online/Visited on 15th March, 2013.
ci
MaryEllen O’Connel, “Cyber Security without Cyber war, Journal of Conflict and
Security Law, Oxford Journals, Vol17, Issue 2. Pp. – 187 – 209.
cii
Ibid 205
ciii
‘NATO and Cyber Defense’ NATO <http://www.nato.int/cps/en/SID-E61FF165-
78BBC3C8/natolive/topics_78170.htm? Visited on: 20 June 2012.
civ
Ms. Ujjaini Ghosh, “Cyber-crimes And Extradition Laws”, manupatra. Available on :
www.manupatra.com
cv
Vakul Sharma, “Information Technology Law and Practice”, Universal Law
Publishing Co, Second Edition, P. 258.