Introduction
The perception of the Nigerian cyber infrastructure
and the legal apparatus for the sustenance and governance of the cyber space,
is one which has been largely left in the dark, as such enough misconceptions
abound as to trending legal and socio-economic issues arising in respect of
cyber security.
One of such misconceptions, presently rocking
the Nigerian social corridors is whether or not the average IT enthusiasts and
IT professionals walking our streets, who concern themselves with digital
technologies, coding, web development, software development, ethical hacking,
graphic designs, and a host of others are cyber criminals within the context of
the Nigerian laws?
It is kindly observed, that although a host
of handlers of the cyber space in Nigeria employ their level of technological expertise
to indulge the cyber environment in furtherance of their malicious intent and
purposes, to commit frauds and other unlawful acts, this should not make the
entirety of our IT professionals criminals under the intentions of our laws.
Are Cyber Space Operators, Criminals in the Eyes
of the Law?
To set this discuss in the right perspective,
it is imperative to state clearly that social opinions and perceptions do not amount
to what is legally right or wrong, as the above is strictly within the confines
of cold laws and fact, and as such, are not subject to the dictates of social
opinions, assertions, arguments and conclusions. They are governed by the
provisions of the laws in force, which govern such areas of humanity and the
ability of the Courts, to give meaning to the relevant laws, in the light of
facts before it thereby determining the fate of the individuals before it and
doing justice.
The issue of whether or not, a cyber-operator
is a criminal, or guilty of a crime or not, is strictly governed by the
existing laws, enforcement processes and legal frameworks. The provision of the
Constitution of the Federal Republic of Nigeria,1999(as amended), being a chief
actor in the totality of Nigeria’s Criminal justice administration, has laid
the above to rest, where it provides quite unequivocally under Section 36 (5)
that:
“Every person who is charged with a criminal
offence shall be presumed to be innocent until he is proved guilty.”
And Section 36 (11) of the Constitution, where it states clearly:
“a person shall not be convicted of a
criminal offence unless that offence is defined and the penalty therefore is
prescribed in a written law, and in this subsection, a written law refers to an
Act of the National Assembly or a Law of a State, any subsidiary legislation or
instrument under the provisions of a law”.
By the combined construction and deduction of both provisions above, a
person, can only be declared a criminal,
when the Courts make a pronouncement to that effect, in the light of the
relevant statutory provision, defining such act, as an offence and punishing
it.
In addition to the above existing legal
foundations for criminal enforcement in Nigeria, our criminal justice
administration, has laudably evolved to meet the demands of cyber security,
through the recent enactment of the Cybercrimes (Prohibition, Prevention, Etc.) Act, 2015,
which has clearly defined and punished a wide variety of cyber-offences, all in
a bid to make the cyber space a better place, including but not limited to
cyber stalking, bullying and terrorism, to mention but a few.
In recent days, the Court of Appeal, in the case of Solomon Okedara V. AGF (2019)
LCN/12768 (CA), had to consider the Constitutionality of Section 24 of the Cybercrimes Act to determine whether or not such
was inconsistent with the overriding provisions of the Constitution.
The above Section, provides:
“A person
who knowingly or intentionally sends a message or other matter by means of
computer systems or network that is grossly offensive, pornographic or of an
indecent, obscene or menacing character or causes any such message or matter to
be sent, or he knows to be false, for the purpose of causing annoyance,
inconvenience danger, obstruction, insult, injury, criminal intimidation,
enmity, hatred, ill will or needless anxiety to another or causes such a
message to be sent, commits an offence under this Act and is liable on
conviction to a fine of not more than N7,000,000.00 or imprisonment for a term
not more than 3 years or both.”
In determining the constitutionality of the above provision, The Court reasoned from the above provision that the legislature has the
power to enact laws that are reasonably justifiable in a democratic society and
that such laws shall not be declared invalid merely because they appear to be
in conflict with the rights and freedom extended to citizens under the
Constitution. However, the Court noted, for example in the case at hand, that
the right of freedom of speech guaranteed under Section 39 cannot be taken away “except for the purposes of
preserving the interest of defense, public safety, public order, public
morality, public health or for the purpose of protecting the rights and freedom
of other persons.”
Thus, the question of whether a person is a
cyber-criminal or not, is exclusively determinable by the Courts, when the Courts
breathes life into the provisions of the Cybercrimes Act and other existing
legal frameworks relevant to the Nigerian cyber space. Today, the Act, has
defined and punished several acts which are capable of being committed on the
online space, including:
·
Section
18, Cyber
Terrorism,
·
Section
22, Identity
Theft and Impersonation
·
Section
23, Child
Pornography and Related Offences,
·
Section
23(2) Cyber
Bullying
·
Section
24, Cyber
Stalking,
·
Section
25, Cybersquatting,
to mention but a few.
It is therefore clear, that IT gurus and Fintechs,
are not cybercriminals within the ambit of our laws, in the event that the
society wrongly terms them as such, they only become criminals, when the Courts
pronounces them as such and does justice in the light of relevant and pre-existing
legal frameworks.
Cyber
Space Operators and Law Enforcement Agencies: Towards a Mutually Beneficial Partnership
As the Fin-Tech and IT
industry continues to grow and develop, so does the opportunities for criminals
to exploit such systems meant to foster innovation as well. Thus, it is
important to have that trust and collaboration between regulators, enforcement
agencies and Fintech companies through establishing better lines of
communications and also getting involved in their regulations by reporting
violators, operate according to standards and confines of the law, host
workshops and symposia regularly.
Establishing an open channel
of communication, is imperative to enhancing legal collaborations and
partnership, which helps to secure productive platforms of curbing the events
of criminality in our cyber space, For the following reasons;
1.
The availability of the
requisite skills and technical know-how among cyber space operators, could help
beef up the apparatus of the Nigerian law enforcement agencies, towards better
cyber space policing.
2.
The operators of the
Nigerian cyber space, could help make reports of any suspicious occurrences
among the cyber space operators, capable of evolving into cybercrimes.
3.
The Nigerian law enforcement
agents, can better leverage on indigenous cyber space organisations, bodies and
associations, to report acts of misconduct or ethical breaches, among their
members, thereby curbing potential threats to the security to the Nigerian
cyber space.
4.
The law enforcement agents,
could better curb the menace of cybercrimes, by engaging cyber operators within
their ranks thereby enhancing the efficiency of cyber policing.
The Emerging
Fields of Cyber Threats: A Wake up Call for Nigerian Cyber Space Protection.
While it is laudable, that the Nigerian
criminal justice system has set in motion a legal framework for managing and
controlling the events of cyber-crimes within her borders, through her
recognition and enactment of the Cyber
Crimes Act, 2015, it is imperative to note that law exists as a tool of
social engineering and must continually evolve to meet the emerging curves that
hampers man’s existentiality, by the constant review, amendment and if need be,
enactment of new and relevant laws, which tackle emerging trends in crime
commission in the cyber space.
It is also important for cyber space law
enforcers, to be fully abreast with this emerging tendencies and potentials in
the cyber space today to adequately build capacity and enforce sanity in the
cyber space. Among the emerging areas of cyber threats are:
a.
Identity
Theft: This
has become very prevalent in Nigeria. Identity theft is the crime of obtaining the personal or financial
information of another person to use their identity to commit fraud, such as
making unauthorized transactions or purchases. Identity theft is committed in
many different ways and the end result is that victims are typically left with
damage to their credit, finances, and reputation.
b.
Ransomware: This is
a form of malware (malicious software) that attempts to encrypt (scramble) your
data and then extort a ransom to release an unlock code. Most ransomware is
delivered via malicious emails.
c.
Hackers: Gaining
access to IT systems from outside an organisation still offers rich pickings
for criminals. Traditionally they have attempted to gain access to bank account
information or credit card databases. However, intellectual property is another
source of value. The use of social engineering, tricking staff into revealing
user names and passwords, remains a threat.
d.
Data
leakage:
While cyber security in the office may seem challenging, it is essential to
understand that security extends well beyond the office these days. The use of
smart phones and tablets has become widespread. The ubiquitous and cheap nature
of portable storage devices makes them a useful tool for the backup and
transportation of data. Those features mean they are also a target for data
thieves.
e.
Malware on
Mobile Apps: Mobile devices are vulnerable to malware attacks just
like other computing hardware. Attackers may embed malware in app downloads,
mobile websites or phishing emails and text messages. Once compromised, a
mobile device can give the malicious actor access to personal information, location
data and financial accounts.
f.
Phishing: An
email-borne attack that involves tricking the email recipient into disclosing
confidential information or downloading malware by clicking on a hyperlink in
the message.
g.
Spear
Phishing:
A more sophisticated form of phishing where the attacker learns about the
victim and impersonates someone he or she knows and trusts.
h.
Cyber
Espionage:
Both large and small organizations are beginning to store at least some of
their data in the cloud. Right Scale recently found that private cloud adoption
increased to 77% among organizations; hybrid cloud computing increased as well.
Whether the thief is coming from the inside or outside, attacking private,
public or hybrid cloud technologies, trade secrets and other valuable
intellectual properties are at risk. This is, of course, in addition to
valuable customer data.
Conclusion.
Conclusively, it is
kindly observed that the Nigerian cyber policing infrastructure, must develop
competence, in the light of the recent emerging issues and threats which are
presently exasperating the Nigerian cyber space. It is in not enough that there
are laws, and legal frameworks recognising and curbing the events of cybercrimes
in Nigeria. Our cyber security enforcement frameworks, must treat the
commission of cyber offences differently in the light of enabling legislations,
expertise, technical know-how and experience, and awake to the demands of cyber
security, policing and enforcement, when this is done, the issues of cyber
security will be brought to a definite rest.
Written by: Oyetola Muyiwa Atoyebi, SAN.
Mr. Oyetola Muyiwa Atoyebi, SAN is the Managing Partner of
OMAPLEX Law Firm, he is one of the leading Senior Advocates of Nigeria in
Information Technology, Cyber Security, Fintech and Artificial Intelligence
(AI). He is the youngest in the history of Nigeria to be elevated to the rank
of a Senior Advocate of Nigeria. At age 34, he was conferred with the
prestigious rank in September, 2019. He has a track record of being diligent
and he ensures that the same drive and zeal is put into all matters handled by
the firm. He is also an avid golfer.
LinkedIn:
https://www.linkedin.com/in/atoyebi-oyetola-muyiwa-san-804226122/