Cyber
law: unresolved issues for Bangladesh
Mohammad
Osiur Rahman & Mohammad Mahabubur Rahman
The
law, which governs the legal aspects of cyber space, is popularly called
cyber law. The term cyber space primarily was discussed in relation
to internet only. But within very short passage of time the term has
been connected with computer, computer networks, internet data software,
database etc. Personal recourse to computer with help of popular package
programs like MS Word, MS Excel, FoxPro, MS Access, MS Power Point,
Photoshop, Illustrator, MS Paint etc. has been placed on the debate
in relation to cyber space. Now cyber space covers a wide range of activities,
which are increasing rapidly. Our rising reliance on computers and the
Internet has made us all potential victims of cyber activities.
Scope
of Cyber Law
Human resources development, ICT infrastructure, e-governance, e-commerce,
software industry, hardware industry, social welfare, health care, agriculture,
land records, poverty reduction, environment, transportation, tourism,
judiciary, regional and international co-operation etc have become dependent
upon Cyber Space. So Cyber Law has become inevitable to govern the cyber
space occupied by the above-mentioned matters for the following reasons:
(i)
for providing legal basis of administration and management, and
(ii) for providing legal shield against the wrong and the offence committed
in the Cyber Space.
Human
Resources Development and ICT Infrastructure
This is the most important challenge for an over -populated state like
Bangladesh. The government of Bangladesh has realized the necessity
of using IT for human resources development that is reflected in the
Information and Communication Technology (ICT) Policy. But it is not
easy to achieve because it would be difficult to train teachers in ICT
in large number using the present infrastructure. To ensure capacity
building of the nation in the field of Information Technology and to
attain a sustainable growth of the ICT sector of Bangladesh and to help
compete in the expanding global ICT market, Ministry of Science and
Information & Communication Technology and Bangladesh Computer Council
(BCC) should be appropriately strengthened and their functions and interrelation
should be well-defined in legal framework.
Legal
Barriers for Software and Hardware Industry Development
Though the government of Bangladesh expressed deep concern to encourage
the local software industry by giving price preference to locally developed
software in all public and private sector procurement, no legal provision
has been provided in this respect. Moreover a huge number of loopholes
are prevailing for copy right protection of software. It is almost impossible
to achieve development without association with the foreign owned and
multinational companies because hardware industry often requires a huge
capital investment and entrepreneurs. This can be achieved through production
facilities for components, peripherals and accessories with joint venture
cooperation and technology transfer agreements. So, International treaties
providing substantial legal issues concerning international obligation
involves here.
Commerce
and Existing Trade and Business Laws
Some new laws have been enacted in relation to the companies and the
Banking companies in last decade of the20th century. But these are very
insufficient considering demand of digital era. The law of contracts
forms the oldest branch of the law relating to business or to commercial
transactions. In one form to another it has existed from the beginning
of the organized society. Just as the safety of person and of the property
depends upon the rules of criminal law, so the security and stability
of the business world are dependent upon the law of contracts .All contractual
transactions in Bangladesh are executed in accordance with the provisions
of the Contract Act of 1872. This can be a typical example of our so-called
legislative progress. History indicates that during ancient times promises
were not enforceable unless they are accompanied by some prescribed
formality. The early English law enforced only promises that were written,
signed and sealed. But by this time contractual transactions has attained
the electronic as well as optical character requiring a new version
of legal guidelines. The protection and promotion of inter-bank transaction,
Government-to-Government (G2G) transaction, Government to Business (G2B)
transaction, personal or corporate business transaction through electronic
process is not possible without authentication by appropriate legal
measures.
Land
Records
Land is the most important resource in an agrarian society. But unfortunately
Land management system is very much vague. Most of the cases arise from
the land disputes. Because colonial interference for about 200 years
with land management and revenue collection made land laws most complicated
part of legal arena. People-oriented, particularly peasant friendly
land laws has become necessary for sustainable agricultural development
which is the main basis of our national economy. The people at large
face problem to get access to the land records. In many countries, this
has been one of the priority areas for application of IT. The transfer
and registration of deeds can also be made much easier. The implementation
of a nation-wide project would eliminate a lot of harass for all citizens
and can bring the fruits of IT revolution to the doorsteps of ordinary
citizens. This will also drastically reduce the number of litigations
arising from land-related disputes.
Exclusively
Legal Issues and Cyber Crime Protection
We usually acknowledge the concept that the persons within a geographically
defined border are the ultimate source of law-making authority for activities
within that border. The "consent of the governed" implies
that those subject to a set of laws must have a role in their formulation.
By virtue of the preceding considerations, the class of persons subject
to a sovereign's laws, and most deeply affected by those laws, will
consist primarily of individuals who are located in particular physical
spaces. We take for granted a world in which geographical borders separating
physical spaces are of primary importance in determining legal rights
and responsibilities. Although geographic boundaries may be irrelevant
in defining a legal regime for Cyberspace, a more legally significant
border for the "law space" of the Net consists of the screens
and passwords that separate the tangible from the virtual world. Traditional
legal doctrine treats the Net as a mere transmission medium that facilitates
the exchange of messages sent from one legally significant geographical
location to another, each of which has its own applicable laws. Therefore
cyber legislation is facing logically unique Challenges because the
following controversial issues are yet to be resolved.
Extra-territorial
debate
All law is prima facie territorial. Cyberspace has no territorially
based boundaries, because the process of message transmission on the
Internet is almost entirely independent of physical location. Messages
can be transmitted from any physical location to any other location
without degradation, decay, or substantial delay, and without any physical
cues or barriers that might otherwise keep certain geographically remote
places and people separate from one another.
The
cyber wrong or offence can be committed against person and property
Many of the jurisdictional and substantive quandaries raised by border-crossing
electronic communications could be resolved by one simple principle:
conceiving of Cyberspace as a distinct "place" for purposes
of legal analysis by recognizing a legally significant border between
Cyberspace and the real world. So cyber wrong or offence can be committed
against persons and property in relation to the cyber space like other
civil wrong or crime. It includes unauthorized computer trespassing
through cyberspace, computer vandalism, transmission of harmful programs,
unauthorized possession of computerized information, the transmission
of pornography, harassment of a person with the use of a computer such
as e-mail, cyber-stalking and spreading computer viruses as well.
Whether
it is tort or crime
The law of crimes deals with the enforcement of duties imposed by the
state. The law of torts deals with the enforcement of duties existing
between individuals as members of the society. A breach of such duties
may be both a tort and a crime; for example, assault, battery, trespass
and nuisances. Each member of society is entitled to have certain interests
protected. Many times it becomes difficult to find out the differentiating
margin between a tort and a crime for want of any codified law concerning
tort. The Law of Crime generally emphasizes more upon corporal punishment
whereas the law of tort emphasizes the monetary compensation. The gravity
and the character of commission of Cyber wrong or offence have to be
considered minutely to designate as tort or crime.
Different
Investigation Procedure
Criminal matters in Bangladesh are within the purview of the code of
Criminal procedure of 1898. Even though the suits of tort have not been
developed like the USA or the UK, the right forum for remedy is the
civil court and accordingly they are regulated by the Civil Procedure
Code. Unlike traditional terrestrial investigational procedure, Cyber
investigation necessarily related to e-mail based crimes, Network based
crimes, Web based crimes, digital Signatures and encryption, investigative
tools and techniques, unauthorized access and data theft incidents,
investigating e-mail based crimes, virus attacks, investigating DOS
attack and cyber forensics search, seizure of computers, forensic imaging
and verification, data recovery and analysis. So investigational procedures
of terrestrial activities incorporated in the existing procedural laws
cannot be adapted with the cyber challenge without substantial change.
Trial procedure
The acts committed in the cyber space are totally different from traditional
civil wrong or criminal activities. The existing trial systems whether
of adversary or inquisitorial or of mixed nature prevailing all over
the world are not exactly fit for trying wrong or criminal activities
committed in the cyber space. So new type of courts equipped with judges
having sound knowledge of modern technology have to be established.
For this, primarily existing judges have to trained-up and for tackling
the future burdens legal education in our country has to be changed
radically rendering emphasis upon the computer related courses.
Conclusion
Global electronic communications have created new spaces in which a
distinct set of rules will evolve. We can reconcile the new law created
in this space with current territorially-based legal systems by treating
it as a distinct doctrine. In most Cases cyber activities have trans-
border effect. So usually the question arise which state has the jurisdiction
to try and accordingly the principle of dual criminality concerning
extradition involves here. Another aspect of cyber activities is that
all they do not crossing the border and any particular state has territorial
jurisdiction. Therefore the trial of cyber wrong or crime bearing local
and universal effect requires an international cyber tribunal. Even
if it seems to be a hypothetical Concept, the reality of optical era
shall make it inevitable like the international criminal court .As a
result like ICC much controversial issues will arise relating to its
jurisdiction and constitution etc. And as Least Developed Country (LDC)
Bangladesh cannot deny its participation in the universal debate relating
to international obligation because the principle of sovereign equality
principle as envisaged in the UN charter involves here.
Mohammad
Osiur Rahman is an Assistant professor, International Islamic University
Chittagong and Mohammad Mahabubur Rahman is a Lecturer, Premier University
Chittagong.
