By Bashu Dev Phulara

NEED OF THE HOUR: TACKLING CYBER CRIME IN NEPAL AND ELSEWHERE

Abstract
The internet boom has been a boon for all. But in addition to the advantageous, the internet has also proved to be heaven for all kinds of abuses-some so sleek that even authorities in the US and Japan are struggling to crack down on all wrong- doers. Just a couple of months ago, Nepal used to be safe heaven for cyber criminals. As a result, web-site hackings and other online trespassing were a common malpractice in the country. With the recent enactment of the cyber law, however, the perpetrators of online crime can no longer ignore legal repercussions with chutzpa. An assessment of such crimes on the net and our own Cyber Law.

STARTING POINTS

"For a warrior, nothing is higher than a war against evil. The warrior confronted
with such a war should be pleased, Arjuna, for it comes as an open gate to heaven. But if you do not participate in this battle against evil, you will incur sin, violating your Dharma and your honor". - Excerpt from Bhagavad-Gita.

INFORMATION Technology (IT) is on a new high now. The word cyber and its relative dot.com are probably the most commonly used words. The internet has opened new opportunities for communication, education, commerce, and entertainment. Like any new medium, it comes with its share of problems. A rapid development of global Information Technology (IT) has become one of the factors for organized transnational crimes known as cyber crimes. 

INTERNET ACCESS VIS- A- VIS CYBER CRIMES

Although the magic of internet is rapidly increasing by the day, not many Nepalese have access to it. Everyone talks about the explosive growth of IT in Nepal, over the past five years or so. The need of the hour is to enforce a stern Cyber Law to deal with the problems that arise from using the Internet.

The Internet is only an alternative means of communication and information. This is a network of networks. It also includes the group of people that use these information networks and the information therein. The internet is analogous to the high seas. Also known as the Web, the World Wide Web is a set of multimedia information servers connected and accessible on the Internet, thanks to the use of hypertext.

In addition to the advantages, we find in using the Internet, there are disadvantages and abuse. Among the identified Internet abuses are among others, pedophilia, contraband, money laundering, prohibited games and substances. As said, the wide use of information technologies in technological process resulted in the emergence of cyber crime characterized by the intervention into the work of computers, computer systems and networks, unauthorized modification of computer data to disorganizing the work of the national critical infrastructure, threaten people with death, inflict material damage and so on.

Cyber crimes have virtually no boundaries. Most cyber crimes, however, do not involve violence but rather greed, pride, or play on some character weakness of the victims. It is difficult to identify the culprit, as the net can be a vicious web of deceit and can be accessed from any part of the globe. For these reasons, cyber crimes are considered as "white-collar crimes".

Cyber crime is the most acute problem for countries with highly developed IT-structure. Though cyber crimes threaten many states, the USA, Japan and the EU countries are the major targets for cyber cheaters because of their total computerization. The failure of computer networks could paralyze their economy. In addition, the number of hackers will rapidly increase in the near future.

Law enforcement in cyberspace has thus become an international affair. It is difficult to locate and prosecute computer hackers, cyber-terrorists, virus writers, network packet snuffers, IP spoofing, password attackers, distributors of sensitive internal information to external sources, fraudsters like online investors of newsletters and bulletin boards , e-mail scammers, credit card cheaters, modifiers and destructors of digital information, pornographers, infringers of confidential and national security matters and other attackers.  

Increasingly, the USA, Japan, European nations and many more have undertaken a variety of critical infrastructure protection (CIP) and cyber-security initiatives at both the national and international levels. Even so, the majority of nations lack computer crime laws. For instance, on May 1, 2000, the native hacker-a student of Philippines who wrote the "Love Bug virus" that damaged 45 million computer networks worldwide by sending the "I love you" to e-mail addresses: spydersuper.net.ph and mailmesuper.net.ph, including those in the Pentagon and British Parliament. That has become the most active and serious computer virus ever fixed or existed. According to the American Computer Economic Group, it caused a damage of $6.7 billion in the first five days of its existence.

Nevertheless, the law enforcement officials in the Philippines could not prosecute him because it had no laws against writing malicious computer viruses. The FBI with the help of Philippine's NBI detected and arrested him later on. This special case led the Philippines to enact a number of the cyber laws that cover the particular activities of the "Love Bug" virus perpetrator.

From the above, it is obvious that both developing and developed countries with inadequate laws or without stern cyber law will become increasingly unable to compete in the Internet-based economy.

For the past several years, a survey says, Nepal directly or indirectly has examined various internet crimes in international and national level as well, although no domestic law or regulation about internet abuses has been enforced. Nepal had hardly ever attempted to implement any law relating to cyber crime, which could perhaps, has been a far reaching impact on access to fight against the numerous problems/evils caused by the internet. This is vital-considering the growth of trade activities on the internet.

CHEER UP-A NEW ERA BEGINS IN NEPAL WITH CYBER ORDINANCE -2061

After two years of continuous efforts and a series of discussions, the Nepalese government finally has endorsed the much-awaited Electronic Transaction and Digital Signature Act-Ordinance (ETDSA)-2061 also known as cyber law. The law, issued through ordinance on September 15, 2004, is seen as a landmark in the development of information technology in the country. The cyber law came into effect after it received the royal assent as an ordinance from His Majesty the King. It does mean that after completing a long distance, the legal vacuum comes to an end and a new era begins with the new law to regulate the transaction carried out over the internet. Information Technology (IT) experts believe that it is a first and foremost legislation for the development of IT industry in the country.

The Ministry of Science and Technology (MOST) had drafted the bill, which had remained frozen in the dissolved House of Representatives. The previous cabinet too had endorsed the bill related to the ETDSA Act, but it could not materialize after the government was dissolved.  IT professionals, entrepreneurs, policy makers and Legal Eagles had been demanding for the enactment of the act for quite a long time saying the ICT development could not take place as expected in the absence of the cyber law.

Endorsement of Information Technology Ordinance - 2004 by the government has provided a new thrust to the Information Technology (IT) sector in the country. Computer gigs and IT professional are hopeful that the approval of the new ordinance would create a favorable environment for conducting business using IT. With the introduction of the IT Ordinance, digital signature and electronic transactions have received legitimacy at par with traditional manual transactions, paving the way for the development of ICT in the country. The ordinance has filled the void in the cyber industry. The act would bring about changes in the markets of software and hardware industries.

The law has a number of positive provisions. The Act has strong provision of punishment against cyber crimes. As per the nature of crime, wrongdoers involved in hacking, deleting information, stealing document and software, pasting wrong information and improper and illegal materials would be brought under the judicial scrutiny.

After introducing this law, the government can punish cyber criminals- both an individual or institution with up to five years of imprisonment and a fine of up to Rs.50, 000 or both- based on the severity of their crime. Likewise, people have to pay Rs. 100,000 or face a year's imprisonment or both for pasting wrong information in the websites.  So far, the government has been dealing the cyber offenders under the Public Offence Act. It was a wrong perception that public offences, software piracy and cyber crimes are all the same. In reality, they are very different types of crimes.

In the mean time, the Act has a provision for the office of controller that issues license of certification to IT industries. It also monitors the implementation of the law and regulates the ICT activities. The Act also gives legal status to information posted on the web site of government offices, government run corporations, and local bodies. The information posted on web site or correspondence done via electronic devices can get legal status. The cyber law has also given legal status for various banking transactions through electronic media, which will be instrumental in boosting economic activities throughout the world via Internet.

The law has also made provision of an Appellate Judicial body to listen to complaints, cases and cyber related crime. Earlier, police were dealing the cyber crime but they were not aware about the technical aspect of the cyber crime and the actions were not effective.  As stated above, the act has granted legal status to digital signature sent through the electronic media, which would be an important provision to introduce e-banking, e-shopping etc.

The Act also paves way to provide legal status to online news portals in the country, which are providing instant and reliable news and information to hundreds of thousands of people within the country and abroad.
For these raison d'êtres, the Act would not only catalyze the ICT but also would have a drastic impact on the economy of the country as a whole. With the enactment of the law, the e-commerce sector would definitely benefit from the new ordinance. One could do business by remaining in any corner of the world. One need not go to Hong Kong or Japan to file tender or bid contracts. These can be carried out by living in Nepal as the Act has provided legal recognition to electric documents, records and signatures. Furthermore, Government tenders can be submitted and retrieved by using computers and internet. With the introduction of the new IT ordinance, the government has a little bit attempted to remove the red tapes.

Above all, the Act will help materialize the concept of e-Nepal.  The ordinance will play a crucial role in preventing cyber crimes, too. It will also equate illegal transfer of data through internet to stealing of data manually. The ordinance has fulfilled the various demands of the ICT entrepreneurs, including the severe penalties, which they had been eagerly looking forward for a long time. In totality, it has been seen as a major achievement and victory of the IT entrepreneurs. The newly endorsed ordinance, therefore, would boost a number of areas of IT sector in Nepal.

Besides, the introduction of the IT policy 2002, establishment of IT Park and formation of High Level Information Technology Commission are other positive and considerable steps taken by the government to gear up the IT Industry. The government had introduced IT Policy in 2000 that aims at putting Nepal in the global ICT map within five years. It has given priority to the IT industry as the key instrument for fighting poverty, generating employment and revenues.

There is no doubt that getting Royal assent on the first ever cyber law in the country is a positive step to develop the IT industry but still many things remain to be done in the near feature, like: drafting of regulations and by-laws under the new Act and establishment of strong implementing mechanism as directed in the Act. Although the government introduced the cyber law, it will not come into operation until the regulations come into force.

According to the ministry of S & T, it is working out to bring the cyber regulations in near future. The IT Ordinance 2004 could work effectively once the government approves the IT Regulation. The draft of IT regulation has already been submitted to the ministry of science and technology and one could expect it to be endorsed very soon.

LOOPHOLES OF THE NEW ORDINANCE

Though the incorporation of cyber law in the ETA is a good beginning and cyber crimes would be considerably reduced in the country, many believe this is a preliminary Act, as many provisions on IT related security are missing.

According to the Information security experts, the law is not adequate enough for the holistic depiction of cyber related crimes and is not tough to act as a deterrent for online perpetrators. The imprisonment and or fines as determined under the Act are not high enough when compared to other countries.

Despite the positive efforts, the Electronic Transaction and Digital Signature Act-2004, has failed to address the problems of online media. A couple of major online news portals, including the nepaldigest.org, nepalnews.com and kantipuronline.com, and one dozen e-magazines are being published from Nepal and abroad at the moment. Nevertheless, the government has not provided any facilities to online publications and journalists associated with them. Since there is no clear provision to regulate online media under the cyber law, the government should incorporate the issue of online journalism in the new ordinance.

For the same reason, the act has made it legal to purchase and sell through internet. However, IT infrastructure plays a crucial role in promoting e-commerce. It still needs authority to verify digital signature, which is yet to be formed. Subjects related to payment gateways are also not included in the new ordinance. In this context, the Nepal Rastra Bank-the only regulating autonomous agency- can initiate to promote e-commerce in Nepal.

There is still need for e-procurement laws. This ordinance has covered aspects related to e-documentation but we still need internet laws and others laws covering the aspects of intellectual property rights. This is the first step and one can expect other laws in the coming days. The endorsement of IT ordinance has certainly given birth to a new industry, which still needs a lot of homework, if Nepal is to expect a boom in IT sector.

Above all, the effective implementation of cyber law will be a necessity. If it is not properly implemented in all governmental and nongovernmental organizations, the cyber law will no longer remain. Regulating the Internet further needs the cooperation of all the countries since the use of the Internet has no borders.

In view of that, Nepal will not be able to regulate the internet without taking the international legal context into account. The creations of effective IPRS laws are also required in order to be able to effectively fight piracy. Since the computing field is a dynamic one, policies ands laws related to this area need to be revised periodically to reflect the changing trend, both local as well as global.

Equally important, information and awareness campaigns on the advantages and disadvantages of using the Internet should be carried out. Moreover, educating Internet users and providers should be made a priority.

CONCLUDING REMARKS

The problems Nepal will have to face in the future, in terms of the internet disputes will be those related to the application of laws regarding time and space and appointment of the competent judges to resolve the conflicts. In the case of violations committed over the Internet, judges will have to consider the well-defined principles of free competition, civil and criminal responsibility, consumer protection and contracts, since this legal arsenal could give specific and individual responses to possible conflicts regarding the Internet. Let's not forget that when public transmissions of information are made over the Internet, one must not overlook that the punishment imposed by law is not virtual, but very real.

(The author is a legal consultant, teacher and trainer on WTO issues and can be reached at-bphulara@hotmail.com  -Ed.)