Ethical Hacking – Legal or Illegal ?

                   ETHICAL HACKING LEGAL OR ILLEGAL

Introduction

In the era of computers, our life oscillates between cyber threats and cybersecurity. Hacking is the sour reality of this era wherein an unauthorized person enters into a computer or a network by using his computer knowledge and skills. It is done to cause wrongful loss to others, the person who indulges in such activity is called a hacker or black hat hacker, or cracker. As diamond cuts diamond, ethical hacking is a pre-emptive action for hacking, and the person who performs it is called an ethical hacker. Theoretically, both are the same because the underlying principle in both is to intrude upon the computer data, but the difference lies in the intention and permission. Black hat hackers intrude with bad intention and without permission whereas white hat hackers work with authorization and good intention.

Ethical Hacking in India

Before going into the legality of ethical hacking, we have to keep in mind that hacking and ethical hacking are different. Hacking is a wrongful act under the Indian legal system. Although ethical hacking is not so prevalent in India yet it is an evolving profession. There are various institutes and colleges in different cities of India which offer courses on ethical hacking. India emerged as the third most vulnerable country in terms of risk of cyber threats, such as malware, spam, and ransomware, in 2017, moving up one place over the previous year, according to a report by security solutions provider Symantec.

Although Indian laws do not specifically deal with ethical hacking yet hacking is a punishable offense in India. The act of Hacking contravenes the underlying principles of India’s legal system. The subject of ethical hacking has not been dealt with explicitly in Indian laws, therefore, it enjoyed neutral status under the Indian legal system.

Constitutional Argument

As per constitutional principles hacking interferes with Article 21 which deals with the right to life and personal liberty which includes the right to live with dignity. Moreover, the act of hacking also infringes the right to privacy of an individual which is fundamental right now. By intruding upon the system, black hats invade the private information of a person or organization whereas ethical hacking ensures that such things do not happen. Thus ethical hacking is legal as it stands true on constitutional parameters.

Not a Crime

Two elements are required for the constitution of a crime and these two elements are

1.) mens rea i.e. bad intention

2.) actus reus i.e. physical act.

In ethical hacking, the first and the basic ingredient i.e. mens rea itself is missing, therefore, the question of it being a crime does not arise. Moreover, ethical hacking is done to prevent hacking, therefore, it is necessary.

Trespass

Trespass is mainly divided into 2 sections namely

  1. Trespass to the person, and
  2. Trespass to property.

For this article, the only trespass to the property is relevant. The general definition of trespass states that it is an unauthorized intrusion upon the property of another without the permission of the true owner. Trespass is a wrong under both the branches of laws i.e. civil law and criminal law. In Civil laws, the intention is irrelevant whereas in the latter intention is essential.

The wrong of trespass is the only offense that is often attributed to ethical hacking but it is actually applicable to the act of hacking and not ethical hacking.

Civil Law

Under civil law, trespass means entering the property of another without the permission of the owner. It is a part of the Law of Torts, an uncodified law based on the case laws. Although the law of torts only covers tangible property, it will neither apply to hacking nor applicable to ethical hacking. In furtherance of the same, ethical hacking does not invoke any liability because it is done with the permission of the owner so the question of it being a civil wrong will never arise.

Criminal Law

Under Indian criminal law, trespass is defined under section 441 of the Indian Penal Code (IPC), 1860 with a very wide scope. In short, it defines trespass as entering upon the property of another with malice or to cause some harm or to intimidate the owner of the concerned property. Here, it is not specified that what kind of property is needed to constitute the crime of trespass.

Trespass is a wrong against the property which is of two types

1). tangible

2). intangible.

Hacking is trespass to a computer system which is intangible property. Physical intrusion and physical harm are not always important to determine the liability for trespass. Nowadays computer systems, software, websites all are construed as property. The expressions like homepage, visiting a website, domain or traveling to a site, etc. are used in the internet world, this suggests that the websites are property. Therefore any kind of unauthorized intrusion on them with bad intention can come under the purview of criminal trespass. All the essentials such as intent to commit an offense or to intimidate, insult or annoy are absent in the act of ethical hacking, therefore, it is legal and doesn’t invoke any liability.

Conclusion

The act of ethical hacking is not defined in any Indian law. Its legality can only be ascertained after having a conceptual understanding of the laws that govern hacking. Ethical hacking lacks mens rea which is the prime reason for making any act, an illegal act. This is one of the reasons why ethical hacking is not illegal in India. After testing ethical hacking with parameters of both civil law and criminal law, it can be concluded that ethical is legal hacking in India.

 

 

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