Cybercrime liable to prosecution

Crime committed online is subject to prosecution just as any other crime if there is enough electronic evidence, High Court Justice Lungten Dubgyur said during the recent media and law workshop.

Crimes committed on social media, he said, are categorised as cyber crime since it is a crime committed on the Internet. “Online offences include child pornography and exploitation, the intrusion of privacy, defamation, intellectual property theft and malicious conduct,” he said.

The Justice also said technologies are available to trace cyber crime, and a person committing online crimes (sender or user) will be caught and is subject to prosecution. “The Bhutan Information and Communication Media Authority (BICMA) have a committee of a board established to ensure online security.”

He said electronic evidence is permissible in the court of law by Evidence Act, 2005.  “Anything that is defamatory, libel, untrue or harassing becomes an offence under the Penal Code even if it is said or done online.”

Justice Lungten Dubgyur said one of the biggest challenges investigators, prosecutors and judges face in cyber crime is locating, identifying the perpetrator, the extent of crime and the volatility of electronic data. “Electronic evidence may lead to a computer, but not to an individual.”

In absence of direct evidence linking the individual to the crime, he said that circumstantial evidence like access, knowledge, opportunity, motive and state of mind of defendants is taken into account to prove if the defendant committed the crime or not.

“Access means whether the defendant had access to a computer, hardware, software, files, telephone, or cable lines used for online access. It includes investigating to whom the computer belonged to,” he said.

The Justice said circumstantial knowledge means looking into who used the system such as whether the defendant had computer training, education, experience, ability and familiarity with facts linked to the crime.  “Circumstantial evidence also looks at whether the defendant had the opportunity to use the device at the time of the criminal activity.”

He said that investigating the motive and state of mind of the defendant are also considered as circumstantial evidence.

Justice Lungten Dubgyur said categories of digital evidence includes content such as e-mails and messages, real-time traffic data collection, subscriber’s information, search and seizure of computer system, drives, disks and USB, network and the internet, manual acquisition such as photos, contacts, audio, apps and data, logical acquisition such as system files and hidden files and physical acquisition of locked devices such as boot loaders, disassembly of phones.

“Other forensic evidence includes tracking and locating such as fitness trackers watches, drones and vehicles with the internet, UNIX timestamp which can find the exact time of the crime and defendant, RAM, information stored in the computer as well as encrypted software, forensic imaging and file system acquisition.”

He also said crimes committed on social media can be offences relating to economic reasons such as identity theft, extortion, scam and spam, financial fraud, government and national security offences such as sabotage of data or networks and terrorism. “Offences such as the hacking of trade secrets, business information and trademark theft comes under offences related to economic espionage.”

Karma Cheki

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