This article has been written by our intern Ravit Singh, a law student from Gujarat National Law University
ABSTRACT
The increased encroachment by governments and tech giants on the internet led to the start of a parallel, hidden internet, called the dark web. It allows its users to surf across web pages without being visible to tracking agencies and other parties. While the dark web hosts all sorts of illegal activities, accessing it is not illegal per se. Governments, while enacting policies for the regulation of the dark web, face some sincere issues owing to its anonymous and hidden nature. Therefore, there exists a need to comprehensively understand the issues associated with the dark web before enacting policy regulations in this regard.
This article aims to introduce the dark web to its readers, lay down the issues that come with it and also the problems regarding the enactment of laws to regulate it. The article is exploratory and makes use of existing material as secondary sources to explore the issue at hand.
INTRODUCTION
EMERGENCE OF THE DARK WEB
LEGALITY OF ACCESSING THE DARK WEB IN INDIA
CHALLENGES TO REGULATING THE DARK WEB
CONCLUSION: THE ROAD AHEAD
REFERENCES
INTRODUCTION
According to Meriam Webster, the internet is a worldwide electronics communications network that connects computer networks and organisational computer facilities around the world. Initially created as a method of sharing information across platforms, the internet, today, has become a defining unit in the way we communicate with each other across the globe. The internet was created to provide open access to information to everyone across a global network and make the sharing of information much easier.
However, with the evolution of the internet over the past few decades, the understanding among governments and large central entities regarding the policy framework required to govern it also evolved. This resulted in creators, users and thinkers related to the internet on one side and government institutions and big corporate houses on the other. The policies and business methodologies implemented by the latter go against the open-for-all, free-access model that the internet strives to achieve.
Over the past few years, there have been a lot of debates and deliberations around the centralisation of internet services, which collect a large amount of user data and are effectively controlled by tech giants of the world. The latest of these battles regarding internet services revolve around the collection of user data, online surveillance, restoring the balance of the web, restoring privacy, etc. All these issues led to people making an attempt to get away from the prying eyes of the tech giants that control the internet, as we know it.
EMERGENCE OF THE DARK WEB
The ‘World Wide Web’ hosts a collection of web pages that can be divided on the basis of their availability and accessibility. The web pages that can be easily accessed and traced are part of the so-called ‘surface web’, whereas, the web pages that are password or paywall-protected are called the ‘deep web’. The deep web essentially constitutes approximately 96% of the world wide web. Some areas of the deep web are totally hidden and only accessible with specialised software browsers like Tor. These components combine to produce the "dark" web, commonly referred to as the unseen or secret web. The browser software that is used to access the dark web provides users with anonymizing and encrypting features so they can purposefully conceal their browsing habits, location, and true identities.
The dark web is home to swathes of ordinary data and derelict URLs. However, it is also home to a shady, anything goes commercial network. This is a place where drugs, weapons, etc are openly traded, terror networks established, illegal pornography created, etc. Today, the problem of controlling the dark web looms large over central authorities and governments, internationally. However, before getting into the technicalities of the dark web, it would be beneficial to look at how the dark web actually came into existence.
With the advent of the modern web in the 1980s, the storage of illegal data had already become a problem. To solve this issue, physical data spaces were established to harbour illegal tax data. However, these were used to establish everything from illegal pornography to weapons trading networks. As the internet went mainstream and file compression and storage became easier and easier, an explosion of dark web activities was set off. The internet’s peer-to-peer data transmission gave birth to decentralised data hubs, most of which were password protected.
In 2002, programmers at the United States Research Naval Academy released an early version of the ‘Onion Router’ (Tor) to protect the identities of American operatives in enemy nations. However, this Tor gained notoriety with dark web users, who widely use Tor browsers and Tor websites. Tor browsers create encrypted entry points and pathways, allowing dark web users to make anonymous searches. Today, the dark web is used for drug trafficking, black markets, selling weapons, operating illegal networks, etc. Besides this, it also harbours a host of whistle-blower sites, surveillance agencies, etc.
LEGALITY OF ACCESSING THE DARK WEB IN INDIA
The dark web has become a big issue for law enforcement in India. It hosts all sorts of illegal activities, posing a huge threat to cyberspace across multiple dimensions. The first contemporary dark net market was the notorious "Silk Road," which is best known for serving as a venue for the sale of illicit substances. 2013 saw the removal of this. Since then, individuals from all around the world have looked for items like guns, credit card information, malware, Distributed Denial of Service (DDoS), stolen data, and more in the online dark market.
In India, there are no written rules that prohibit people from accessing the dark web in India. A part of this is because it is very hard to track the user and the country to which they belong. However, it is very well possible to get into legal troubles while surfing web pages on the dark web. The reason for the legal status of the dark web in India is that it is just another part of the internet that is being accessed through different forms of routers, like the onion router, amongst others. The things that are prohibited over there are illegal activities per se and not just because they are found on the dark web.
Some of the instances in which using the dark web are punishable under statutes present in Indian law are as follows:
According to Section 67(B) of the Information Technology Act of 2000 and Sections 14 and 15 of the POCSO Act of 2012, child pornography is a serious offence that carries harsh penalties. These are the only parts that address the crimes of pornography depicting children.
Whoever deals in narcotic drugs outside of India is subject to punishment under this Act, according to Section 24 of the Narcotics Drugs and Psychotropic Substances Act, 1985. Now, if someone were to engage in external drug dealing on the dark web, that would undoubtedly be unlawful even if the dark web was legal but the behaviour was not.
CHALLENGES TO REGULATING THE DARK WEB
Creating a policy for the regulation of the dark web shall require a thorough understanding of the pros and cons of an open, hidden internet with anonymous users. With the advent of new technologies, the government must determine ways of regulating them. However, this does not mean that they can be allowed to inhibit people's access to free and safe internet. The right to access the internet was declared a fundamental right by the Kerala High Court in the Faheema Shirin v. State of Kerala case. Therefore, the government cannot restrict the right of individuals to access the internet. All that it can do is enact a comprehensive policy to prevent the illegal activities that are carried out on the dark web.
The biggest challenge that lies ahead for governments is that there is nothing inherently criminal about using Tor. However, this also means that there is not a clear way to distinguish perpetrators of crime from innocent people. Another challenge for governments is the coordination of regulations. This is because the internet is inherently an international entity. Therefore, it is essential to devise a method to regulate the internet on a country-to-country basis without destroying the benefits that the internet brings to the international community.
CONCLUSION: THE ROAD AHEAD
Law enforcement organisations must adopt a nuanced strategy to both safeguard this area's advantages and put an end to the unlawful activities that are blooming there. By offering solutions like new encrypting tools, etc., strong collaboration between public and commercial organisations can assist in addressing the new and rising technological difficulties of the dark web. The assistance of cutting-edge technology like artificial intelligence and machine learning, among others, should be aggressively used by law enforcement organisations. By collaborating with other organisations, agencies, and industries, intelligence data can be shared to address the issues posed by the dark web's international character. In this context, multilateral exchanges through seminars, forums, and cooperative capacity-building activities are a very effective type of international cooperation.
References:
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