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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 commit-
ted 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.