16. INDIAN EVIDENCE ACT
Sec. 88A - Presumption as to electronic
messages
The Court may presume that an electronic
message forwarded by the originator through an
electronic mail server to the addressee to whom
the message purports to be addressed
corresponds with the message as fed into his
computer for transmission; but the Court shall
not make any presumption as to the person by
whom such message was sent.
19. WHO IS AN EXPERT?
Daubert principle is a very famous for cases in
which scientific methods and knowledge is
involved and is still referred in courts while
determining the test for the admission of
scientific expert’s testimony.
In Frye v United States, 54 App. D.C. 46, 47, 293
F.1013, 1014, for the rule that expert opinion
based on a scientific technique is inadmissible
unless the technique is “generally accepted” as
reliable in the relevant scientific community.
20. WHO IS AN EXPERT? THE
COURT MUST ASK
Does this person possess enough specialized or skilled
knowledge about the subject matter in question, to
enable him or her to assist the trier of fact?
But again here the question arises, though the expert
witness possesses the knowledge, whether the judge has
understood the technology involved in the case? Without
understanding the technology involved, how can a judge
deny expert’s testimony?
21. WHO IS AN EXPERT? DAUBERT TEST
FOCUSES ON THE FOLLOWING POINTS
1. While carrying out the investigation, whether the expert
working on that case has used scientific method i.e.
discovery technique.?
This will help court in determining the approach of the
expert and the method used to arrive at the conclusion is
proper or not. The court will see in the testimony of the
expert is able to explain proper justification of each and
every step performed to arrive at the conclusion.
22. WHO IS AN EXPERT? DAUBERT TEST
FOCUSES ON THE FOLLOWING POINTS –
2. The court shall also try to analyze whether the
method used by the expert in the present case has
ever been used by any other expert or same expert in
any other case.
The court may also look at the impact in the light of
facts of both cases. The court may also see the
justification of each and every step.
23. WHO IS AN EXPERT? DAUBERT TEST
FOCUSES ON THE FOLLOWING POINTS –
3. The court may also look at what kind of discovery
methods used and may ask for the justification.
Court may also go into the inquiry of tools used by the
expert and chances of getting error in computer forensics.
Court may go for the comparison for the same discovery
technique used in present case with the technique used
in the other cases. It becomes the responsibility of the
computer forensics expert to satisfy judge.
24. WHO IS AN EXPERT? DAUBERT TEST
FOCUSES ON THE FOLLOWING POINTS –
4. If the computer forensics expert is relying on
someone’s opinion, then the expert should
produce such document or such opinion before
the court of law to justify his statement.
25. WHO IS AN EXPERT? DAUBERT TEST
FOCUSES ON THE FOLLOWING POINTS –
Other factors to be considered when evaluating the
admissibility of expert testimony –
Testing method;
Peer review;
Error rates;
Acceptability within the relevant professional community.
26. WHO IS AN EXPERT? DAUBERT TEST
FOCUSES ON THE FOLLOWING POINTS –
Minimum Standard to be called as an “Computer
Forensics Expert” may include –
Technical knowledge and Qualification
Experience
Evidence Analysis
Discovery technique
27. WHO IS AN EXPERT? DAUBERT TEST
FOCUSES ON THE FOLLOWING POINTS –
Court may reject the Computer Forensics Expert
in the following circumstances –
Unable to answer
Unable to preserve the evidence
Does not find the evidence for the same issue
Vague Conclusion
Judge’s discretion
30. SECTION 66
Removal of definition of “hacking”
Section renamed as Computer related offences
All the acts referred under Section 43, are covered
u/Sec. 66 if they are done “dishonestly” or
“fraudulently”
31.
32. SOURCE CODE THEFT
Section 65 and 43 (j)
• Punishment (U/Sec. 65) –
Imprisonment – Upto 3 years or
Fine – Upto Rs. 2 Lakh or
Both
• Additionally provisions of Copyright Act will
also apply
33. SECTION 66A
• Sending of offensive or false messages
• Covers following sent by sms / email:-
grossly offensive messages
menacing messages
false information sent for causing annoyance,
inconvenience, danger, obstruction, insult,
injury, criminal intimidation, enmity, hatred or
ill will..
phishing, email spoofing, Spam mails, Threat
mails
• Punishment – imprisonment upto 3 years and
fine
34. SECTION 66B
• Dishonestly receiving stolen computer
resource or communication device
• Covers use of stolen Computers,
mobile phones, SIM Cards, etc
• Also covers “data theft”
• Punishment – imprisonment upto 3
years and fine
35. Section 66 C
• Identity theft
• Fraudulently or dishonestly using
someone else’s electronic signature,
password or any other unique
identification feature
• Punishment - imprisonment
upto 3 years and fine
36. Section 66 D
• Cheating by Personation
• Cheating by pretending to be some other
person
• To create an e-mail account, Social
networking a/c on someone else's name
• Punishment – imprisonment upto 3 years
and fine
37. Section 66F - Cyber Terrorism
Use of Cyberspace to –
Threaten the unity, integrity, security
or sovereignty of India or
To strike terror amongst people or
Attack on Critical Information
Infrastructure of India with terror
intentions
Punishment - Life imprisonment
(Max.)
38. Sec. 66 E
• Violation of Personal Privacy
• Popularly known as Voyeurism
• Covers acts like hiding cameras in changing
rooms, hotel rooms, etc.
• Punishment –imprisonment upto 3 years or
fine upto Rs. 2 lakh or both
39. Section 67
Cyber Pornography
Publishing or transmitting obscene
material in the electronic form
Punishment –
First instance - imprisonment upto 3
years and fine upto Rs. 5 lakh
Subsequent - imprisonment upto 5 years
and fine upto Rs. 10 lakh
40. Section 67(B)
Child Pornography
Creating, collecting, browsing, downloading, etc of a
material relating to Child Pornography
Punishment –
• First instance - imprisonment upto 5 years
• Subsequent - imprisonment upto 7 years
Fine upto Rs. 10 lakh
42. PRESERVATION OF INFORMATION BY
INTERMEDIARIES
• Section 67(C)
• Intermediary shall preserve and
retain information as may be specified
for such duration and in such manner and
format as the Central Government may
prescribe
• Maintaining MAC address????
43. SEC 69- POWER TO INTERCEPT OR
MONITOR OR DECRYPT
Central or State Government or any of its officer specially
authorised have powers to issue directions for interception
or monitoring or decryption of any information through any
computer resource under special circumstances*
Failure to co-operate with the aforementioned agencies
shall be punishable with imprisonment for 7 years + fine
44. SEC 69(A)- BLOCKING FOR PUBLIC
ACCESS
Central Government or any of its officer specially
authorised have powers to issue directions for blocking
for public access of any information through any
computer resource under special circumstances*
Intermediary failing to comply with the directions
shall be punishable with imprisonment for 7 years +
fine
46. AVNISH BAJAJ VS. STATE (N.C.T.) OF
DELHI
Avnish Bajaj, CEO of Baazee.com, (former Indian
subsidiary of eBay) was arrested for distributing
pornographic clip by using its website.
The charges stemmed from the fact that someone
had sold copies of a pornographic CD through the
Baazee.com website.
47. GOOGLE INDIA PVT. LTD., VS. M/S.
VISAKA INDUSTRIES LIMITED
The petitioner cannot claim any exemption u/s 79
of the IT Act and as petitioner had failed to act
expeditiously and diligently despite of the fact
that the respondent issued notice about
dissemination of the defamatory material and
unlawful activities.
48. SHRI. THOMAS RAJU VS
ICICI BANK
Case decided by – the Adjudicating officer,
Government of Tamilnadu
Petitioner suffered a loss of Rs. 1,62,800/- as a result
of the phishing attack
Amount was supposed to have been transferred on
the account of another customer of ICICI Bank
Petitioner claimed that he had suffered a loss due to
unauthorised access to his account
Petitioner further claimed that he had suffered a loss
as bank has failed to establish a due diligence and in
providing adequate checks and safeguards to prevent
unauthorised access into his account. Bank had also
48
not adhered to the KYC norms given by the RBI.
49. STATE VS. MOHD. AFZAL AND
OTHERS
Several terrorists had attacked the Parliament of
India on 13th December, 2001. During their
prosecution, evidence produced was in a Digital
form.
The accused had argued that computers and
digital evidence can easily be tampered and
hence should not be relied upon. The court
dismissed these arguments and held that
challenges as to the accuracy of digital evidence
on any ground should be proved by the
challenger. Mere theoretical and generic doubts
cannot be cast on the evidence.
54. POSSIBLE SOLUTIONS
Initiate efforts to achieve international co-operation in investigation
(Eu Conv.)
Laws relating to expert witness should be clear
Establish guidelines for search and seizure (Increasing capacity of 1 st
responders)
Correct application of law
Establishment of cyber forensics cells
Awareness, sensitization and training
ASCL has been training and working closely with the law enforcement for the past 10years We are aware about on ground realities and requirements and based on inputs by law enforcement and field operatives.
www.swiftforensics.com Digital Forensics with Encase - I
www.swiftforensics.com Digital Forensics with Encase - I
www.swiftforensics.com Digital Forensics with Encase - I
Electronic records – Sec. 2(1)(t) - "electronic record" means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche.
