Arun Kumar Bastola
In the modern times, there are several types of crimes based on different aspects. In laymen’s terms, the crimes which are carried out through computers or any other electronic devices are termed ‘cyber crimes’. With the advancement of technology, it has become one of the most wide and complex crimes to deal with. It uses several flaws and loopholes of the law in the aspect of jurisdiction, investigation and identification.
What is a computer?
Electronic Transaction Act 2063 defines a ‘computer’ as an electro-magnetic, optical or other high-speed data processing device or system which performs logical, arithmetic and memory functions by manipulating electro-magnetic or optical impulses, and also includes all acts of input, output, processing, storage and computer software or communication facilities which are connected or related to the computer in any computer system or computer network. In general public view, a computer as we define it, is a common personal computer (PC) or a laptop, but such is not the case. Any device with computing capabilities are computers. They include our mobile phones, tablet pc, smart watches and similar devices.
Computers have connected us and are often used to solve various calculations and tasks that would virtually be impossible to perform. They are the devices designed primarily for betterment of our lives but their misuse has created some serious problems in the modern time. With increment in access and availability of computers and computing devices along with wide coverage of the internet, several cyber crimes have risen up.
Understanding cyber crimes
Cyber comes are the criminal activities done with the use of computer and the Internet. The misuse and manipulation of cyber space for carrying out illegal activities are cyber crimes in general sense. Modern technology is used intentionally to harm others. It includes crimes from downloading music illegally to hacking. There are both monetary as well as non-monetary cyber crimes. Illegal access of others account, hacking computer for random, cyber bullying, spreading computer viruses, spamming etc. are some of the most common and widely heard cyber-crimes. Cyber crimes are different than traditional crimes. The actions in cyber crimes are intangible. The entire crime is carried out through an intangible surrounding generally called as cyberspace. This makes the crime difficult to prove, as evidence is not tangible enough to grab. The traces left by offenders are also not easy to trace.
Cyber crimes call up the question of jurisdiction. A crime in one country might have been carried out from some other countries and the server used for the crime might be situated in a third country. This causes a hindrance and raises a question on which country’s court should one look for the jurisdiction to carry out the prosecution. Similarly, the evidences are very difficult to trace. Only through very skilled and knowledgeable technician the traces can be found. The police all on their own lack this capability and resort to seeking assistances from IT technicians.
Dealing with cyber crimes in Nepal
With the availability and reach of technologies and the Internet service, cyber crimes in Nepal have been on sudden rise since quite some years now. Crimes generally include spamming, cyber bullying, harassment, cyber stalking, hacking of accounts, unauthorized use of accounts etc. Although most of the cyber crimes in Nepal are non-monetary, some monetary crimes have also been recorded in the recent times. Crimes such as hacking the ATM and Central Banking System of banks have gained huge media attention.
Through studies it is revealed that carrying out cyber crimes in Nepal is relatively easier. In Nepal, cyber security is not given adequate focus. The use of out-of-date software and lack of attention towards the security fire-wall is seen as primary cause. The investigating authorities also lack the proper manpower as well as up-to-date technologies.
There is also lack in understanding among law-makers about the need to update in the laws regarding cyber crimes. The current law is criticized by most of the professionals and the draft of the upcoming law is also very debatable. The activists have criticized the new law, claiming that it curtails the freedom of the people. The government, however, has been defending the law.
What to do?
There are certain things a person must do if the person is victimized by cyber crimes:
Filing a First Information Report: It should be done at the police station within 35 days of the knowledge of the offence or the date of the information of crime. Cyber crimes are state offences that is, the government acts as plaintiff as per the Electronic Transaction Act and Government Cases Act 2049. The police investigates the case along with the help of concerned experts. Warrants are produced according to Government Cases Act and the devices used for carrying out the crimes are confiscated as well.
Filing a Charge-sheet: Police works with Public Prosecutors to file a charge-sheet. It must be filed at Information Technology tribunal. Although the law regarding the IT tribunal has been made, the tribunal itself does not exist. Thus the cases under Electronic Transaction Act is under the jurisdiction of Kathmandu District Court.
Problems
The lack of IT tribunal, and the limitation of the jurisdiction only to the Kathmandu District Court has made dealing with cyber crime harder than it already is. Cyber crime victims have to compulsorily come to Kathmandu in order to file the charge-sheet. This is a huge problem for the victims outside the valley. Also, our Act requires an investigation supported by independent expert or Controller of Certifying Authority. Despite the provision, no independent expert is consulted. The investigating officer is often a junior police officer. This leads to the danger of losing vital evidences and data required for prosecution, which already is a challenge.
These practices need to be improved and the delicate processes required for collection of evidences and investigation must be duly followed so that the offenders can be tracked and be successfully prosecuted.
[Arjun is a final year bachelor student of law at National Law College, Lalitpur. He is currently working as an intern at Nepal Law Commission.]