Due to the advancement of technology and digitisation of economic activities, there is a spurt in number of cyber-crimes that take place such as hacking. Unprotected or unsecured networks can be hacked to access data, media files etc. that qualifies as criminal trespass under Sec 441 of the IPC and can also be an invasion of a person’s privacy. Stringent actions need to be taken in order to curb these crimes.
WHAT IS HACKING?
The term hacking in general sense, can be defined as gaining access to computers or sites where no access was permitted. Hacking is when the loopholes in computer systems or networks are identified in order to exploit its weaknesses and gain access, usually to steal corporate data, violate privacy rights, transfer funds from bank accounts, etc.
A person who with a malicious intention to harm the network security, breaks into the computer programs of others without any authority to do so is called a cracker. On the other hand, a person who does the same act for defensive purpose, such as protecting it from any cyber-attack, with the authority to do so is called a hacker.
PRIVATE WI-FI HACKING:
Hacking can be carried out in many ways, such as through phishing, malware or even by accessing a Wi-Fi network. When a person cracks the security protocols in a wireless network that gives him complete access to it and exploits the wireless network, which is owned privately, it is called hacking a private Wi-Fi network.
IS HACKING A PRIVATE WI-FI NETWORK A CRIME?
Hacking is a punishable offence in countries all over the world, including India. In each country, this offence is governed by either a common or a specific statute. In India, this offence is governed by the IT Act 2000, which is to be read along with the IPC. The IT Act was established to give legal recognition to any transaction which is done by electronic way or use of the internet, to stop computer crime and protect privacy of internet users etc. This Act also deals with cyber-crimes such as hacking, cyber terrorism, etc.
While interpreting the meaning of the term hacking, Sec 66 of the IT Act is to be read along with Sec 43(a) of the same act.
Sec 43(a) of the IT Act:
Penalty for damage to computer, computer system, etc. – If any person without permission of the owner or any other person who is in charge of a computer, computer system or computer network, — accesses or secures access to such computer, computer system or computer network; he shall be liable to pay damages by way of compensation not exceeding one crore rupees to the person so affected.
Sec 66 of the IT Act:
Computer related offences – If any person, dishonestly or fraudulently, does any act referred to in section 43, he shall be punishable with imprisonment for a term which may extend to three years or with fine which may extend to five lakh rupees or with both.
Explanation – For the purposes of this section,-
(a) the word “dishonestly” shall have the meaning assigned to it in section 24 of the Indian Penal Code;
(b) the word “fraudulently” shall have the meaning assigned to it in section 25 of the Indian Penal Code.
The scope of these sections is wide enough to include Wi-Fi hacks as well. In Sec 43 (a), the word computer network would also include a Wi-Fi network.
The Act does not confine itself to hacking a public Wi-Fi network alone. A careful interpretation of the above sections helps us conclude that even hacking a private Wi-Fi network is a punishable as the sections also talk about unauthorized access to any computer network, making it inclusive of private networks as well.
ESSENTIAL ELEMENTS OF HACKING:
In order to convict a person for hacking, including hacking a private Wi-Fi network, the following essentials need to be satisfied:
- Intention or knowledge of the act
- Unauthorized access
Mens rea is an important element in every crime. Thus, the first essential element required to convict a person for hacking is that there should be a malicious intention. It should be proven that the accused was aware of the consequences of his act and he committed such an act with an intention. The mere presence of intention is not sufficient. A bonafide intention should be distinguished from malafide intention. It is important to prove that such a person’s intention was malafide in nature, i.e. there should be done in order to deceit or cause loss to that person.
2) UNAUTHORIZED ACCESS:
The second essential element of hacking is that there should be an unauthorized access made to any computer resource. This element has been highlighted in Sec 43 (a) of the Act. It means that there should be an ingression of computer, computer system, computer network, data, computer data base or software, without the consent of the owner. In case of hacking a private Wi-Fi network, a cracker makes an unauthorized access to the Wi-Fi network, without the permission of the owner.
According to Sec 43 (a) of the Act, it is presumed that a computer network would include both public network and private network. Thus, hacking a public Wi-Fi network or a private Wi-Fi network is considered as an offence.
Therefore, when a person without any authority, accesses a private Wi-Fi network with a malafide intention, it can make him guilty of hacking. Mere access to the network without consent would also be punishable.
WHY SHOULD PRIVATE WI-FI HACKING BE A CRIME?
When a person accesses the Wi-Fi network of the owner without consent, there are three implications of this act:
(1) The cracker may be able to see all the data on the computer, web pages viewed by the person, images/videos sent or received, etc. This is viewed as an intrusion of a person’s privacy, which is a violation of a person’s fundamental right to privacy.
(2) The cracker may be able to modify, delete existing data of the person whose Wi-Fi network was accessed, which can cause further loss to the person.
(3) The cracker, even by merely accessing another person’s Wi-Fi network is trespassing another person’s property, which is an offence even under the IPC. Further, even if the other person’s Wi-Fi network is used for personal purpose, it would still cause loss to the owner as he will be required to bear the expense of that usage as well.
Thus, keeping the above points in mind, there is a need for criminalizing hacking of a private Wi-Fi so as to protect individual rights and interests.
All instances of hacking aren’t a crime. Ethical hacking is allowed by law. The term ethical hacking means when a hacker is legally permitted to explore the computer resources for the purpose of identifying the vulnerabilities or loopholes in it, in order to secure them from any hacking by a cracker. An ethical hacker has the appropriate consent or authorization to access the computer resource and does so with good intention. Thus, the distinguishing factor in ethical hacking is the absence of a malafide intention, which is why it does not qualify as a crime.
Thus, hacking a Wi-Fi network, regardless of the fact that it is public or private, is a punishable offence, as laid down under Section 66 of the IT Act. According to the section, it will be punishable with imprisonment for a term of up to three years or with a fine of up to five lakh rupees, or with both. All the elements of hacking should be satisfied in order to convict a person. Even a mere unauthorized access to the wireless network, can attract this section.
This article is authored by Karishma Rajesh, 3rd BA LLB, ILS Law College, Pune.
Also Read – Types Of Cyber Crimes