An Evaluation of the Existing Legal Framework for the Prohibition of Cybercrime in Nigeria.
By Ater, Solomon Vendaga
One thing that is important to take notice of when it comes to innovation or creative ideals is the fact that with every innovation comes the opportunity for exploitation. This will certainly be amongst the things that should come to your mind when you think of cyberspace and cybercrimes.
The issue of cybercrime has grown to become one of crimes that pose great threat to our existence particularly at the time like this that the world is digitally run.
It is stated in a report that four countries accounted for 85 million attacks, with South Africa being the most targeted with 32 million; followed by Kenya, 28.3 million; Nigeria, 16.7 million; while Ethiopia had eight million attack.
According to recent findings, businesses with less than 200 employees lose an average of $2.5 million each due to cyber threats, and Nigerian SMEs are currently highly subjected to cyber-attack. This necessitates an understanding of the most serious cyber security threats facing businesses in Nigeria, as well as strategies for mitigating them.
Most Nigerian businesses have less severe technical defenses, are less aware of risks, and have less time and resources to dedicate to cybersecurity. Certain industries, such as banking and financial organizations, are frequently targeted by cyber attackers, necessitating high-security standards. Cybercriminals frequently target small businesses in Nigeria because they are always unprepared for the threat even when they are aware of their vulnerabilities.
It is sad to know that no sector is free from this dubious acts of cyber criminals.
This work seeks to forensically examine the legal issue of cyber crime, existing cybersecurity legal framework, challenges and recommendations.
2.0. CYBERCRIME DEFINITION
According to Ufuoma V. Awhefeada Ph.D & Ohwomeregwa Ogechi Bernice, Cybercrime has been defined as the commission of clandestine and criminal activities in cyberspace using a computer that is connected to a type of network as enabled by network providers.
The draft local legislation on electronic crimes, telecommunications and postal offences decree of 1995 define cybercrime as:
… Any person who, inter alia, engages in computer fraud or does anything to fake payments, whether or not the payment is credited to the account of an operator or the account of the subscriber, is guilty of an offense.
Interestingly, At the 10th U.N conference on the punishment of offenders, cybercrime was broken into two categories and thus defined as:
In a narrow sense, as any illegal behavior directed by means of electronic operations that target the security of computer system and data processed by them; and
In a broader sense, as any illegal behavior committed by means of or in relation to a computer system or network including such crimes as illegal possession and offering or distributing information by means of a computer system or network.
Cybercrimes in world that is knitted together in a global village have become an issue. These crimes include but not restricted to:
All crimes imaginable offline can be achieved with the use of computer networks as a tool.
Threats to lives and properties
Disruption of critical services
Terrorism and economic sabotage
Theft of information (identity & credit card theft)
3.0. THE SITUATION
Statistics show that Nigeria loses about N127 Billion annually to cybercrime. This figure represents 0.8% of the country’s Gross Domestic Product (GDP). For instance, in 2015, the Information Security Society of Nigeria (ISSAN) revealed that about 25 per cent of cybercrime in Nigeria are unresolved and 7.5% of the world hackers are Nigerians. The EFCC also reported in 2014 alone that customers in Nigeria lost approximately six billion naira to cybercriminals. Similarly, the CBN in 2015 reported that 70 per cent of attempted or successful fraud/forgery cases in Nigeria’s banking sector were perpetrated via electronic channels. Banks in Nigeria have lost approximately 159 billion naira to electronic frauds and cybercriminals between the years 2000 and 2013 and the impact on the nation’s economy as well as cashless policy are significant.
4.0. TYPES OF CYBERCRIMES
Fraud is a general term used to describe a cybercrime that intends to deceive a person in order to gain important data or information. Fraud can be done by altering, destroying, stealing, or suppressing any information to secure unlawful or unfair gain.
Scam happens in a variety of forms. In cyberspace, scamming can be done by offering computer repair, network troubleshooting, and IT support services, forcing users to shell out hundreds of money for cyber problems that do not even exist. Any illegal plans to make money falls to scamming.
4.3. Computer Viruses
Most criminals take advantage of viruses to gain unauthorized access to systems and steal important data. Mostly, highly-skilled programs send viruses, malware, and Trojan, among others to infect and destroy computers, networks, and systems. Viruses can spread through removable devices and the internet.
Ransomware is one of the most destructive malware-based attacks. It enters your computer network and encrypts files and information through public-key encryption. In 2016, over 638 million computer networks are affected by ransomware. In 2017, over $5 billion is lost due to global ransomware.
4.5. DDoS Attack
DDoS or the Distributed Denial of Service attack is one of the most popular methods of hacking. It temporarily or completely interrupts servers and networks that are successfully running. When the system is offline, they compromise certain functions to make the website unavailable for users. The main goal is for users to pay attention to the DDoS attack, giving hackers the chance to hack the system.
Botnets are controlled by remote attackers called “bot herders” in order to attack computers by sending spams or malware. They usually attack businesses and governments as botnets specifically attack the information technology infrastructure. There are botnet removal tools available on the web to detect and block botnets from entering your system.
Spamming uses electronic messaging systems, most commonly emails in sending messages that host malware, fake links of websites, and other malicious programs. Email spamming is very popular. Unsolicited bulk messages from unfamiliar organizations, companies, and groups are sent to large numbers of users. It offers deals, promos, and other attractive components to deceive users.
Phishers act like a legitimate company or organization. They use “email spoofing” to extract confidential information such as credit card numbers, social security number, passwords, etc. They send out thousands of phishing emails carrying links to fake websites. Users will believe these are legitimate, thus entering their personal information.
4.9. Social Engineering
Social engineering is a method in which cybercriminals make a direct contact with you through phone calls, emails, or even in person. Basically, they will also act like a legitimate company as well. They will befriend you to earn your trust until you will provide your important information and personal data.
Malvertising is the method of filling websites with advertisements carrying malicious codes. Users will click these advertisements, thinking they are legitimate. Once they click these ads, they will be redirected to fake websites or a file carrying viruses and malware will automatically be downloaded.
Cyberstalking involves following a person online anonymously. The stalker will virtually follow the victim, including his or her activities. Most of the victims of cyberstalking are women and children being followed by men and pedophiles.
4.12. Software Piracy
The internet is filled with torrents and other programs that illegally duplicate original content, including songs, books, movies, albums, and software. This is a crime as it translates to copyright infringement. Due to software piracy, companies and developers encounter huge cut down in their income because their products are illegally reproduced.
4.13. Child Pornography
Porn content is very accessible now because of the internet. Most countries have laws that penalize child pornography. Basically, this cybercrime involves the exploitation of children in the porn industry. Child pornography is a $3-billion-a-year industry. Unfortunately, over 10,000 internet locations provide access to child porn.
Cyberbullying is one of the most rampant crimes committed in the virtual world. It is a form of bullying carried over to the internet. On the other hand, global leaders are aware of this crime and pass laws and acts that prohibit the proliferation of cyberbullying.
This is simply any unauthorized access of a computer system. Sometimes, hacking can be fairly harmless, such as rewriting sections of an existing software program to allow access to features the original designer did not intend. While this is technically a violation of the Terms of Service agreement, it is not exactly a prosecutable offense but is still considered hacking. Hacking is probably one of the most broadly used forms of cybercrime, but not all hackers are criminals. Some hackers often referred to as “white hat” hackers, are hired by software companies to find flaws in their systems so they can fix them before “black hat” or criminal hackers do.
4.17. Identity Theft
Identify theft is a specific form of fraud in which cybercriminals steal personal data, including passwords, data about the bank account, credit cards, debit cards, social security, and other sensitive information. Through identity theft, criminals can steal money. According to the U.S. Bureau of Justice Statistics (BJS), more than 1.1 million Americans are victimized by identity theft.
The existence of both legal and technological frameworks aimed at curbing the activities of cyber criminals is what cyber security is all about.
Cyber-security is the body of rules and technological measures put in place for the protection of the Internet. It is the practice of defending computers, servers, mobile devices, electronic systems, networks, and data from malicious attacks. It is also known as information technology security or electronic information security.
6.0. EXISTING LEGAL FRAMEWORKS FOR THE PROHIBITION OF CYBERCRIME IN NIGERIA
Having gone through the basis of Cybercrime let us see the legal frame works for the prohibition of the crimes.
The existing legal framework available for the prohibition of cybercrime in Nigeria include;
6.1. CYBERSECURITY ACT 2015
The Cybercrimes Act 2015 is the first legislation in Nigeria that deals specifically with cyber security. Passed in May 2015, it gives effect to the 2011 ECOWAS Directive on fighting cyber crime and is broad in it scope.
The Act charges the offices of the National Security Advisor (NSA) and the Attorney-General of the Federation (AGF) with coordinating its enforcement and creates the multi-agency Cybercrime Advisory Council (the Council) and the National Cyber Security Fund (the Fund) to be overseen by the NSA.
Section 38 requires service providers to keep all traffic data and subscription for a period of at least two years. Further, service providers are required to turn over such information to law enforcement agencies and failure to comply with either attracts a fine of 7m naira.
Section 39 requires service providers, upon a court order, to assist competent authorities with the collection or recording of content and/or traffic data associated with specified communications. Under s.40 they are required to provide assistance to law enforcement agencies in identifying offenders, tracing proceeds of offences and the cancellation of services used to commit offences.
The Cybercrime Act prescribes the death penalty for an offence committed against a system or network that has been designated critical national infrastructure of Nigeria that results in the death of an individual (amongst other punishments for lesser crimes).
Under the Cybercrime Act 2015 in Nigeria, hackers, if found guilty, of unlawfully accessing a computer system or network, are liable to a fine of up to N10 million or a term of imprisonment of 5 years (depending on the purpose of the hack). The same punishment is also meted out to Internet fraudsters who perpetuate their acts either by sending electronic messages, or accessing and using data stored on computer systems.
The Cybercrime Act 2015 makes provision for identity theft, with the punishment of imprisonment for a term of not less than 3 years or a fine of not less than N7 million or to both fine and imprisonment. An example of identity fraud would be the individual who impersonated Chief Bola Tinubu on Facebook and was apprehended by the police. It also Outlaws Cyber-stalking and Cyber-bullying and prescribes punishment ranging from a fine of not less than N2 million or imprisonment for a term of not less than 1 year or to both fine and imprisonment, up to a term of not less than 10 years or a fine of not less than N25 million or to both fine and imprisonment; depending on the severity of the offence.
The Act mandates that service providers shall keep all traffic data and subscriber information having due regard to the individual’s constitutional Right to privacy, and shall take appropriate measures to safeguard the confidentiality of the data retained, processed or retrieved. It also Allows for the interception of electronic communication, by way of a court order by a Judge, where there are reasonable grounds to suspect that the content of any electronic communication is reasonably required for the purposes of a criminal investigation or proceedings.
6.2. CRIMINAL CODE ACT
The Criminal Code Act of 1990 criminalizes any type of stealing of funds in whatever form, an offence punishable under the Act. Although cyber crime is not mentioned in the Act, it is a type of stealing punishable under the criminal code. The most renowned provision of the Act is Chapter 38, which deals with obtaining Property by false pretences cheating. The specific provisions relating to cyber crime is section 419, while section 418 gave a definition of what constitutes an offence under the Act. Section 418 states that any representation made by words, writing, or conduct, of a matter of fact, either past or present, which representation is false in fact, and which the person making it knows to be false or does not believe to be true, is a false pretence. Also, section 419 states that any person who by any false pretence, and with intent to defraud, obtains from any other person anything capable of being stolen, or induces any other person to deliver to any person anything capable of being stolen, is guilty of a felony, and is liable to imprisonment for three years.
6.3. ADVANCED FEE FRAUD AND OTHER RELATED OFFENCES ACT
Advance fee fraud has existed in various forms since at least the 18th century, though the modern concept dates to the 1920s. In the 1980s, advance fee fraud became closely associated with African-based criminal groups, Nigerian criminal enterprises in particular. It was sometimes called 419 fraud, after the relevant section of the Nigerian criminal code. The 419 fraud scheme was a variation of the confidence swindle, which preys on peoples’ greed and naïveté.
The Advance Fee Fraud and other Fraud Related Offences Act of 2006 is “An Act to Prohibit and punish certain offences pertaining to Advance Fee Fraud and other fraud related offences and to repeal other Acts related therewith.”
The law provides that any person who by any false pretence, and with intent to defraud obtains, from any other person for himself or any other person; induces any other person to deliver to any person; or obtains any property, whether or not the property is obtained or its delivery is induced through the medium of a contract induced by the false pretence, commits an offence under this Act.
The basis of the law is to prevent obtaining from others by false pretence and it does not matter whether the victim is in Nigeria or anywhere in the world. As long Mr. A induces Mr. C to confer a benefit on him by false pretence, Mr. A will be liable under this act for committing the offence. It is also very important to note that anyone found guilty of this offence is liable on conviction to imprisonment for a term of not more than 20 years and not less than seven years without the option of a fine.
Conducting unlawful financial transactions is also an offence under this act and if the offender is a financial or corporation shall be liable to a fine of One Million Naira and where the financial institution or corporate body is unable to pay the fine, its assets to the value of the fine shall be confiscated and forfeited to the Federal Government; or in the case of a director, secretary or other officer of the financial institution or corporate body or any other person, to imprisonment for a term, not more than 10 years and not less than five years.
The law in Section 12 also aims to regulate the practice of companies who conduct services by email or online, such companies shall be required to obtain from the customer or subscriber their full names; residential address, in the case of an individual; corporate address, in the case of corporate bodies and any customer or subscriber who- fails to furnish the information specified; or with the intent to deceive, supplies false information or conceals or disguises the information required under this section, commits an offence and is liable on conviction to imprisonment for a term of not less than three years or a fine of N100,000.Such companies, who fail to comply with the provisions of the law commits an offence and is liable on conviction to a fine of N100, 000 and forfeiture of the equipment or facility used in providing the service.
6.4.THE ECONOMIC AND FINANCIAL CRIME COMMISSION ACT, 2000
The Economic and Financial Crime Commission Act provide the legal framework for the establishment of the Commission. Some of the major responsibilities of the Commission, according to part 2 of the Act, include:
the investigation of all financial crimes, including advance fee fraud, money laundering, counterfeiting, illegal charge transfers, futures market fraud, fraudulent encashment of negotiable instruments, computer credit card fraud, contract scam, among others;
the coordination and enforcement of all laws against economic and financial crimes laws and enforcement functions conferred on any other person or authority;
the examination and investigation of all reported cases of economic and financial crimes with a view to identifying individuals, corporate bodies, or groups involved;
undertaking research and similar works with a view to determining the manifestation, extent, magnitude, and effects of economic and financial crimes and advising government on appropriate intervention measures for combating same;
taking charge of, supervising, controlling, coordinating all the responsibilities, functions, and activities relating to the current investigation and prosecution of all offences connected with or relating to economic and financial crimes, in consultation with the Attorney General of the Federation;
the coordination of all investigating units for existing economic and financial crimes, in Nigeria;
the Commission is further charged with the responsibility of enforcing the provisions of the Money Laundering Act 1998
the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Act 1994, as amended;
the Banks and other Financial Institutions Act 1991, as amended; and Miscellaneous Offences Act.
6.5. MONEY LAUNDERING PROHIBITION ACT 2012
The Act makes provision for the prohibition of the laundering of proceeds of crime or illegal act. Though, cybercrime is not expressly mentioned in the Act, proceeds of cybercrime perpetrated by cybercriminals would appear covered by section 15 of the Money Laundering (Prohibition) (Amendment). In section 15(1)Money laundering is prohibited in Nigeria. (2) Any person or body corporate, in or outside Nigeria, who directly or indirectly (a) conceals or disguises the origin of;(b) converts or transfers;(c) removes from the jurisdiction; or (d) acquires, uses, retains or takes possession or control of; any fund or property, knowingly or reasonably ought to have known that such fund or property is, or forms part of the proceeds of an unlawful act; commits an offence of money laundering under this Act.
The unlawful act referred to in section 15(2) of the Act above includes by virtue of section 15(6) of the Act: Participation in an organized criminal group, racketeering, terrorism, terrorist financing, trafficking in persons, smuggling of migrants, sexual exploitation, sexual exploitation of children, illicit trafficking in narcotic drugs and psychotropic substances, illicit arms trafficking, illicit trafficking in stolen goods, corruption, bribery, fraud, currency counterfeiting, counterfeiting and piracy of products, environmental crimes, murder, grievous bodily injury, kidnapping, hostage taking, robbery or theft, smuggling (including in relation to customs and excise duties and taxes), tax crimes (related to direct taxes and indirect taxes), taxes crimes (related to direct taxes and indirect taxes) extortion, forgery, piracy, insider trading and market manipulation or any other criminal act.
Cybercrime having been outlawed by the Cybercrimes (Prohibition, Prevention Etc.) Act 2015, it therefore means that perpetrators of same may invariably engage in an organized group to perpetuate incidence of cybercrimes; fraud; forgery covered under section 15(6) above. Cybercrime can be interpreted to come under “any other criminal act.” used therein.
Consequently, proceeds from acts perpetrated by cybercriminals are unlawful and when they are laundered, they are held to have committed the offence of money laundering. Anyone who violates section 15(2) of the Act is liable on conviction to a term of not less than 7 years but not more than 14 years imprisonment but where it is a body corporate, liability is on conviction to- (a) a fine of not less than 100% of the funds and properties acquired as a result of the offence committed; and (b) withdrawal of license.
6.6. NATIONAL CYBER SECURITY FRAMEWORK OF NITDA,2019
To achieve this end, this framework targets the following objectives:
To make Nigeria a cyber-resilient State, with ability to define strategy for public and private sector organizations to implement minimum structures to be resilient in cyberspace;
highlight the basic functions organizations have to perform, to enable them overcome the negative consequences of cyber-attacks;
determine, analyze and implement such global information assurance frameworks that could effectively safeguard the organizations in cyberspace;
create a framework for capacity building to address issues of global dearth of technical personnel, and earn a supplier status;
to create a collaboration mechanism for organizations seeking to benefit from the experiences and intelligence of other organizations in a coordinated manner;
ensure that critical equipment and software are strictly guided using the Local Content policy, as well as structures to identify and forestall the dissemination of sensitive information through backdoors in procurement of ICT equipment;
enshrine administrative and operational compliance mechanisms for the effective realization of the above objectives
6.7. THE NIGERIA CYBERSECURITY STRATEGY
The NCSS was formed in 2014, and if we notice, a couple of improvements have happened to our national cybersecurity posture five years down the line due to implementation of some of the concerns of the NCSS such as:
The development and implementation of an appropriate legal framework, The Cybercrime Act 2015.
Establishment of National Computer Emergency Response Team (CERT) and introduction of a roadmap for implementing Detective, Preventive and Response capabilities to deal with cybercrime activities.
Protection of Privacy through The Nigeria Data Protection Regulations
The Strategy on Public-Private Partnership highlights the need for inter-agency collaboration with the private sector. It engages the framework for a public and private partnership in developing a cohesive response to mitigating cyber-risk.
National awareness programs through multi-stakeholder engagement, and international cooperation in the countermeasures giving birth to National Cybersecurity Awareness Month, Child Online Safety, and many more.
There are other objectives of the NCSS that are ongoing. These include;
Protecting Critical information structures which includes shared responsibility between government, owners and, operators of critical infrastructure. Government approach to Critical Information Infrastructure Protection and Resilience (CIIPR).
National Cybersecurity Skills and Manpower Development is another area that we’ve had a lot of improvement in the last five years as many universities and other private training centers are now out there to develop cybersecurity skills and many are upcoming.
From here, we still have a long way to go to fully implement all of the concerns of the NCSS. The following areas need to be address;
Building of a National Incident Management Strategy that will help the country to have a central pool of cybersecurity incidents, track them, and learn from how those incidents were resolved.
The continuous monitoring and review (i.e. assessment and evaluation) of the implementation and management of the National Cybersecurity Program, and the surrounding context that it operates within which is critical to providing assurance to various stakeholders that the National Cybersecurity program can safeguard our critical national infrastructure.
Readiness strategy which addresses the willingness to empower the nation in building a comprehensive, coherent, structural and procedural capability at strategic and tactical levels in mitigating cyber risks.
6.8. RISK-BASED CYBERSECURITY FRAMEWORKS AND GUIDELINES FOR DEPOSIT MONEY BANKS (DMBS) AND PAYMENT SERVICE PROVIDERS (PSPS) (THE “GUIDELINE”), WHICH BECAME EFFECTIVE ON 1 JANUARY 2019.
According to publicly available data, millions of dollars are lost to cybersecurity threats annually.
The NIBSS report as at January 2019, reveals that a total of N46, 000, 000.00 (Forty-six Million Naira) was lost to cyberattacks in 2018. This figure appears to be very low in comparison with the data presented by a spectrum of cybersecurity expert data on the volume of losses due to cyber-attacks.
The Cybercrimes (Prohibition, Prevention etc.) Act of 2015 (“Cybercrimes Act”), which ushered in a regime that criminalized certain acts, which have continued to threaten the security of the cyberspace was however not targeted at defining safety measures. It has neither tackled the problems associated with preventing the occurrence of cyber-attacks nor has it changed the attitude of financial services industry players and other cybersecurity stakeholders towards reporting cybersecurity-attacks.
In response to the problems identified above, the CBN Central Bank of Nigeria (CBN), pursuant to its regulatory powers under its establishing Act, (the CBN Act) and the Banks and Other Financial Institutions Act (BOFIA), issued the Risk-Based Cybersecurity Frameworks and Guidelines for Deposit Money Banks (DMBs) and Payment Service Providers (PSPs) (the “Guideline”), which became effective on 1 January 2019.
The issuance of the Guideline gave effect to Part 7.5 of the National Cybersecurity Policy, which designates the financial services sector as a National Critical Information Infrastructure (NCII).
The CBN Cybersecurity Guideline is partitioned into five main parts covering: Cybersecurity Governance and Oversight, Cybersecurity Risk Management System, Cybersecurity Operational Resilience, Metrics, Monitoring & Reporting and Compliance with Statutory and Regulatory Requirements.
6.9. Other regulatory frameworks are:
Nigerian Communications Communication Act, 2003.
Evidence Act, 2011.
National Information Technology Development Agency (NITDA) Act, 2007.
National Broadcasting Commission Act.
The Terrorism (Prevention) (Amendment) Act, 2013.
The National Identity Management Commission Act, 2007
Notwithstanding the fact that these frameworks have addressed the issue in the country, there are still issues affecting our cyber space. Hence, the challenges.
The question is again is how can we rate ourselves after these years comparing what we have achieved so far. Maybe or maybe not we need to do a revision of the National Cyber Security Strategy (NCSS) to add up a new trend of concerns in the national context. We also have to answer the question of how well those implemented objectives have gone over the years.
There exists serious challenges against the efforts both at the National and International level to fight against Cybercrime. However, Nigeria is confronted with challenges such as:
The unending cyber battles (supremacy disagreements) among law enforcement, intelligence and security agencies;
Lack of integration between the public and private sector in fighting against cyber agencies.
Inadequacy in the policy option that deals with the issues of surveillance.
Inadequacy in the policy option that deals with the prevention of cybercrime.
Poor security architecture for those combating the crime.
Lack of awareness amongst the populace on the dangers of cybercrimes and needs to secure their cyberspace.
Enactment of substantive laws to criminalize illegal activities on the Internet.
Capacity building; training and equipping the bodies fighting against cybercrimes with world standard practices and gadgets.
Cooperation between actors (Private and Public).
Establishment of Institutional framework for coordinating cybersecurity efforts.
Educating the citizens on how to protect themselves about cybersecurity threats.
Enactment of related Bills to strengthen the cybersecurity framework.
It has been observed from the beginning that with every form of development, there is the presence of challenges. Digitization and globalization have given rise to the issue of cyber crimes and cybercriminals are now constantly on the lookout for ways to defraud and harm organizations and institutions in Nigeria and beyond. Businesses must be aware of the risks posed by these cybersecurity threats.
The best method for businesses to protect themselves against these threats is to have a comprehensive set of security measures in place, as well as to use Security.
Awareness Training to ensure that people are aware of security threats and how to avoid them. Proactive measures will inform you of potential hazards and strategies to limit their impact.
The government should also intensify its efforts in ensuring that cyberspace is secured as no sector is free from this menace.
This work is published under the free legal awareness project of Sabi Law Foundation (www.SabiLaw.org) funded by the law firm of Bezaleel Chambers International (www.BezaleelChambers.com). The writer was not paid or charged any publishing fee. You too can support the legal awareness projects and programs of Sabi Law Foundation by donating to us. Donate here and get our unique appreciation certificate or memento.
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