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Saturday, September 03, 2005
  blackhole- What you should know about IT crimes
When someone does something wrong to you using a computer or damage your IT system such as hacking for fun, it can either be a criminal offence or a civil wrong.

When a criminal offence is committed (such as hacking to steal money), the court case is handled typically by state prosecutors against the criminals and the punishment often includes fines or jail sentences.

A civil claim, in turn, deals with a legal claim made by one party against the other in their private capacities. An example is when a movie company sues a peer—to-peer operator for facilitating the sharing of files they do not own and therefore, do not have the right to distribute.

Usually, a civil claim involves one party trying to get the other party to stop doing something or one party asking for payment in the form of damages for a wrong act.

Civil court cases do not involve the public prosecutor or a jail sentences. But in many countries, the violation of copyright is also criminal offence.

In court cases involving computers of IT systems in general, the wrong, whether criminal or civil in nature, is likely to be committed either:

1- against the computer as the target itself; or
2- using the computer to commit an offence. In either case, the computer is often used as a repository or incriminating evidence or data.

For a crime to take place, there has to be criminal intent and action to give effect to that intention. Thinking about committing online theft of money, for example, is not a criminal offence until the crime itself is carried out. An attempt to commit a criminal offence, even if it fails, it is a criminal offence.

In most jurisdictions, it is a paramount rule that if there is no evidence, the accused party cannot prosecuted (if it is a crime) or sued (if it is civil wrong).

To succeed in a court action, evidence must be produced in court. Whether or not any evidence can be brought into the court to be shown to the judge (for the jury in some countries) is governed by rules relating to admissibility of evidence.

Take the example of an intrusion. If the evidence relating to the intrusion is not properly handled, such as when the log files are illegally collected, it may become inadmissible in court.

Once the evidence in admitted, the weight given to the evidence needs to be gathered, computer forensic professionals must be involved.

Computer forensic law is a branch within IT security law that deals with the management of “digital” or “electronic” evidence. Computer forensic law deals with the legal aspects of computer investigation.

In involves the analysis of digital evidence covering the identification, examination, preservation and presentment of electronic evidence in a manner that would allow such evidence to be admitted in a court of law.

The reason why lawyers are involved in what is essentially a technical realm is that, when there is legal proceeding, evidence has to be produced in court to prove a case.

So, computer forensic professionals need to work with lawyers to ensure that what they have collected and analyzed can be presented in court.

The presentation of such evidence in a court has to comply not only with the rules of procedure in a particular country but the substantive law dealing with the admissibility and weight given to such evidence.

Enforcement and investigation officers involved in computer-related crimes should therefore understand the requirements of the law.

-The writer is author of E-security Law & Strategy ( and a visiting associate professor at a local university. He is also an associate fellow at the Center for Asia-Pacific Technology Law & Policy in Singapore

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