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Legal aspects of computing |
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Legal aspects of computing are related to the over-lapping areas of law and computing.
The first one, historically, was Information Technology Law (or IT Law). (It should not be confused with the IT aspects of law itself, albeit there is an overlap between the two, as well).
IT Law is a set of legal enactments, currently in existence in several countries, which governs the digital dissemination of both (digitalized) information and software itself (see History of free and open-source software). IT Law covers mainly the digital information (including information security and electronic commerce) aspects and it has been described as "paper laws" for a "paperless environment".
Cyberlaw or Internet law is a term that encapsulates the legal issues related to use of the Internet. It is less a distinct field of law than intellectual property or contract law, as it is a domain covering many areas of law and regulation. Some leading topics include internet access and usage, privacy, freedom of expression, and jurisdiction.
There is intellectual property in general, including copyright, rules on fair use, and special rules on copy protection for digital media, and circumvention of such schemes. The area of software patents is controversial, and still evolving in Europe and elsewhere.[1]
The related topics of software licenses, end user license agreements, free software licenses and open-source licenses can involve discussion of product liability, professional liability of individual developers, warranties, contract law, trade secrets and intellectual property.
In various countries, areas of the computing and communication industries are regulated – often strictly – by government bodies.
There are rules on the uses to which computers and computer networks may be put, in particular there are rules on unauthorized access, data privacy and spamming. There are also limits on the use of encryption and of equipment which may be used to defeat copy protection schemes. The export of Hardware and Software between certain states is also controlled.
There are laws governing trade on the Internet, taxation, consumer protection, and advertising.
There are laws on censorship versus freedom of expression, rules on public access to government information, and individual access to information held on them by private bodies. There are laws on what data must be retained for law enforcement, and what may not be gathered or retained, for privacy reasons.
In certain circumstances and jurisdictions, computer communications may be used in evidence, and to establish contracts. New methods of tapping and surveillance made possible by computers have wildly differing rules on how they may be used by law enforcement bodies and as evidence in court.
Computerized voting technology, from polling machines to internet and mobile-phone voting, raise a host of legal issues.
Some states limit access to the Internet, by law as well as by technical means.
Issues of jurisdiction and sovereignty have quickly come to the fore in the era of the Internet.
Jurisdiction is an aspect of state sovereignty and it refers to judicial, legislative and administrative competence. Although jurisdiction is an aspect of sovereignty, it is not coextensive with it. The laws of a nation may have extraterritorial impact extending the jurisdiction beyond the sovereign and territorial limits of that nation. This is particularly problematic as the medium of the Internet does not explicitly recognize sovereignty and territorial limitations. There is no uniform, international jurisdictional law of universal application, and such questions are generally a matter of conflict of laws, particularly private international law. An example would be where the contents of a web site are legal in one country and illegal in another. In the absence of a uniform jurisdictional code, legal practitioners are generally left with a conflict of law issue.
Another major problem of cyberlaw lies in whether to treat the Internet as if it were physical space (and thus subject to a given jurisdiction's laws) or to act as if the Internet is a world unto itself (and therefore free of such restraints). Those who favor the latter view often feel that government should leave the Internet community to self-regulate. John Perry Barlow, for example, has addressed the governments of the world and stated, "Where there are real conflicts, where there are wrongs, we will identify them and address them by our means. We are forming our own Social Contract. This governance will arise according to the conditions of our world, not yours. Our world is different".[2] A more balanced alternative is the Declaration of Cybersecession: "Human beings possess a mind, which they are absolutely free to inhabit with no legal constraints. Human civilization is developing its own (collective) mind. All we want is to be free to inhabit it with no legal constraints. Since you make sure we cannot harm you, you have no ethical right to intrude our lives. So stop intruding!"[3] Other scholars argue for more of a compromise between the two notions, such as Lawrence Lessig's argument that "The problem for law is to work out how the norms of the two communities are to apply given that the subject to whom they apply may be in both places at once" (Lessig, Code 190).
With the internationalism of the Internet, jurisdiction is a much more tricky area than before, and courts in different countries have taken various views on whether they have jurisdiction over items published on the Internet, or business agreements entered into over the Internet. This can cover areas from contract law, trading standards and tax, through rules on unauthorized access, data privacy and spamming to more political areas such as freedom of speech, censorship, libel or sedition.
Certainly, the frontier idea that the law does not apply in "Cyberspace" is not true. In fact, conflicting laws from different jurisdictions may apply, simultaneously, to the same event. The Internet does not tend to make geographical and jurisdictional boundaries clear, but Internet users remain in physical jurisdictions and are subject to laws independent of their presence on the Internet.[4] As such, a single transaction may involve the laws of at least three jurisdictions:
So a user in one of the United States conducting a transaction with another user in Britain through a server in Canada could theoretically be subject to the laws of all three countries as they relate to the transaction at hand.[5]
In practical terms, a user of the Internet is subject to the laws of the state or nation within which he or she goes online. Thus, in the U.S., Jake Baker faced criminal charges for his e-conduct, and numerous users of peer-to-peer file-sharing software were subject to civil lawsuits for copyright infringement. This system runs into conflicts, however, when these suits are international in nature. Simply put, legal conduct in one nation may be decidedly illegal in another. In fact, even different standards concerning the burden of proof in a civil case can cause jurisdictional problems. For example, an American celebrity, claiming to be insulted by an online American magazine, faces a difficult task of winning a lawsuit against that magazine for libel. But if the celebrity has ties, economic or otherwise, to England, he or she can sue for libel in the British court system, where the standard of "libelous speech" is far lower.
Internet governance is a live issue in international fora such as the International Telecommunication Union (ITU), and the role of the current US-based co-ordinating body, the Internet Corporation for Assigned Names and Numbers (ICANN) was discussed in the UN-sponsored World Summit on the Information Society (WSIS) in December 2003
If there are laws that could govern the Internet, then it appears that such laws would be fundamentally different from laws that geographic nations use today. The unique structure of the Internet has raised several judicial concerns. There is a substantial literature and commentary that the Internet is not only "regulable," but is already subject to substantial law regulations, both public and private, by many parties and at many different levels. Since the Internet defies geographical boundaries, national laws can not apply globally and it has been suggested instead that the Internet can be self-regulated as being its own trans-national "nation".
Since the Internet law represents a legal paradigm shift, it is still in the process of development.[6]
In their essay "Law and Borders -- The Rise of Law in Cyberspace", David R. Johnson and David G. Post argue that it became necessary for the Internet to govern itself and instead of obeying the laws of a particular country, "Internet citizens" will obey the laws of electronic entities like service providers. Instead of identifying as a physical person, Internet citizens will be known by their usernames or email addresses (or, more recently, by their Facebook accounts).
Leaving aside the most obvious examples of internet censorship in nations like China or Saudi Arabia or Iran (that monitor content), there are four primary modes of regulation of the internet described by Lawrence Lessig in his book, Code and Other Laws of Cyberspace:
Another major area of interest is net neutrality, which affects the regulation of the infrastructure of the Internet. Though not obvious to most Internet users, every packet of data sent and received by every user on the Internet passes through routers and transmission infrastructure owned by a collection of private and public entities, including telecommunications companies, universities, and governments, suggesting that the Internet is not as independent as Barlow and others would like to believe. This is turning into one of the most critical aspects of cyberlaw and has immediate jurisdictional implications, as laws in force in one jurisdiction have the potential to have dramatic effects in other jurisdictions when host servers or telecommunications companies are affected.
Article 19 of the Universal Declaration of Human Rights calls for the protection of free expression in all media.
In comparison to traditional print-based media, the accessibility and relative anonymity of cyber space has torn down traditional barriers between an individual and his or her ability to publish. Any person with an internet connection has the potential to reach an audience of millions with little-to-no distribution costs. Yet this new form of highly accessible authorship in cyber space raises questions and perhaps magnifies legal complexities relating to the freedom and regulation of speech in cyberspace.
These complexities have taken many forms, three notable examples being the Jake Baker incident, in which the limits of obscene Internet postings were at issue, the controversial distribution of the DeCSS code, and Gutnick v Dow Jones, in which libel laws were considered in the context of online publishing. The last example was particularly significant because it epitomized the complexities inherent to applying one country's laws (nation-specific by definition) to the internet (international by nature). In 2003, Jonathan Zittrain considered this issue in his paper, "Be Careful What You Ask For: Reconciling a Global Internet and Local Law".[7]
In the UK the case of Keith-Smith v Williams confirmed that existing libel laws applied to internet discussions.[8]
In terms of the tort liability of ISPs and hosts of internet forums, Section 230(c) of the Communications Decency Act may provide immunity in the United States.[9]
In many countries, speech through cyberspace has proven to be another means of communication which has been regulated by the government. The Open Net Initiative, whose mission statement is "to investigate and challenge state filtration and surveillance practices" to "...generate a credible picture of these practices," has released numerous reports documenting the filtration of internet-speech in various countries. While China has thus far proven to be the most rigorous in its attempts to filter unwanted parts of the internet from its citizens,[10] many other countries - including Singapore, Iran, Saudi Arabia, and Tunisia - have engaged in similar practices of Internet censorship. In one of the most vivid examples of information control, the Chinese government for a short time transparently forwarded requests to the Google search engine to its own, state-controlled search engines.
These examples of filtration bring to light many underlying questions concerning the freedom of speech. For example, does the government have a legitimate role in limiting access to information? And if so, what forms of regulation are acceptable? For example, some argue that the blocking of "blogspot" and other websites in India failed to reconcile the conflicting interests of speech and expression on the one hand and legitimate government concerns on the other hand[11]
At the close of the 19th Century, concerns about privacy captivated the general public, and led to the 1890 publication of Samuel Warren and Louis Brandeis: "The Right to Privacy".[12] The vitality of this article can be seen today, when examining the USSC decision of Kyllo v. United States, 533 U.S. 27 (2001) where it is cited by the majority, those in concurrence, and even those in dissent.[13]
The motivation of both authors to write such an article is heavily debated amongst scholars, however, two developments during this time give some insight to the reasons behind it. First, the sensationalistic press and the concurrent rise and use of "yellow journalism" to promote the sale of newspapers in the time following the Civil War brought privacy to the forefront of the public eye. The other reason that brought privacy to the forefront of public concern was the technological development of "instant photography". This article set the stage for all privacy legislation to follow during the 20 and 21st Centuries.[12]
In 1967, the United States Supreme Court decision in Katz v United States, 389 U.S. 347 (1967) established what is known as the Reasonable Expectation of Privacy Test to determine the applicability of the Fourth Amendment in a given situation. It should be noted that the test was not noted by the majority, but instead it was articulated by the concurring opinion of Justice Harlan. Under this test, 1) a person must exhibit an "actual (subjective) expectation of privacy" and 2) "the expectation [must] be one that society is prepared to recognize as 'reasonable.'" [12]
Inspired by the Watergate scandal, the United States Congress enacted the Privacy Act of 1974 just four months after the resignation of then President Richard Nixon. In passing this Act, Congress found that "the privacy of an individual is directly affected by the collection, maintenance, use, and dissemination of personal information by Federal agencies" and that "the increasing use of computers and sophisticated information technology, while essential to the efficient operations of the Government, has greatly magnified the harm to individual privacy that can occur from any collection, maintenance, use, or dissemination of personal information." [12] For More Information See: Privacy Act of 1974
Codified at 50 U.S.C. §§ 1801-1811, this act establishes standards and procedures for use of electronic surveillance to collect "foreign intelligence" within the United States. §1804(a)(7)(B). FISA overrides the Electronic Communications Privacy Act during investigations when foreign intelligence is "a significant purpose" of said investigation. 50 U.S.C. § 1804(a)(7)(B) and §1823(a)(7)(B). Another interesting result of FISA, is the creation of the Foreign Intelligence Surveillance Court (FISC). All FISA orders are reviewed by this special court of federal district judges. The FISC meets in secret, with all proceedings usually also held from both the public eye and those targets of the desired surveillance.[12] For more information see: Foreign Intelligence Act
The ECPA represents an effort by the United States Congress to modernize federal wiretap law. The ECPA amended Title III (see: Omnibus Crime Control and Safe Streets Act of 1968) and included two new acts in response to developing computer technology and communication networks. Thus the ECPA in the domestic venue into three parts: 1) Wiretap Act, 2) Stored Communications Act, and 3) The Pen Register Act.[12]
The DPPA was passed in response to states selling motor vehicle records to private industry. These records contained personal information such as name, address, phone number, SSN, medical information, height, weight, gender, eye color, photograph and date of birth. In 1994, Congress passed the Driver's Privacy Protection (DPPA), 18 U.S.C. §§ 2721-2725, to cease this activity.[12] For More Information See: Driver's Privacy Protection Act
-This act authorizes widespread sharing of personal information by financial institutions such as banks, insurers, and investment companies. The GLBA permits sharing of personal information between companies joined together or affiliated as well as those companies unaffiliated. To protect privacy, the act requires a variety of agencies such as the SEC, FTC, etc. to establish "appropriate standards for the financial institutions subject to their jurisdiction" to "insure security and confidentiality of customer records and information" and "protect against unauthorized access" to this information. 15 U.S.C. § 6801.[12] For More Information See: Gramm-Leach-Bliley Act
-Passed by Congress in 2002, the Homeland Security Act, 6 U.S.C. § 222, consolidated 22 federal agencies into what is commonly known today as the Department of Homeland Security (DHS). The HSA, also created a Privacy Office under the DoHS. The Secretary of Homeland Security must "appoint a senior official to assume primary responsibility for privacy policy." This privacy official's responsibilities include but are not limited to: ensuring compliance with the Privacy Act of 1974, evaluating "legislative and regulatory proposals involving the collection, use, and disclosure of personal information by the Federal Government", while also preparing an annual report to Congress. [12]
For More Information See: Homeland Security Act
-This Act mandates that intelligence be "provided in its most shareable form" that the heads of intelligence agencies and federal departments "promote a culture of information sharing." The IRTPA also sought to establish protection of privacy and civil liberties by setting up a five-member Privacy and Civil Liberties Oversight Board. This Board offers advice to both the President of the United States and the entire executive branch of the Federal Government concerning its actions to ensure that the branch's information sharing policies are adequately protecting privacy and civil liberties.[12] For More Information See: Intelligence Reform and Terrorism Prevention Act
The Computer Misuse Act 1990 [1], enacted by Great Britain on 29 June 1990, and which came into force on 29 August 1990, is an example of one of the earliest of such legal enactments. This Act was enacted with an express purpose of making "provision for securing computer material against unauthorised access or modification." Certain major provisions of the Computer Misuse Act 1990 relate to:
The impact of the Computer Misuse Act 1990 has been limited and with the adoption of the Council of Europe adopts its Convention on Cyber-Crime, it has been indicated that amending legislation would be introduced in parliamentary session 2004–05 in order to rectify possible gaps in its coverage, which are many.
The CMA 1990 has many weaknesses; the most notable is its inability to cater for, or provide suitable protection against, a host of high tech attacks/crimes which have became more prevalent in the last decade. Certain attacks such as DDOS and BOTNET attacks can not be effectively brought to justice under the CMA. This act has been under review for a number of years. Computer crimes such as electronic theft are usually prosecuted in the UK under the legislation that caters for traditional theft (Theft Act 1968), because the CMA is so ineffective.
A recent example of information technology law is India's Information Technology Act 2000, which became effective from 17 October 2000. This Act applies to whole of India, and its provisions also apply to any offence or contravention, committed even outside the territorial jurisdiction of Republic of India, by any person irrespective of his nationality. In order to attract provisions of this Act, such an offence or contravention should involve a computer, computer system, or computer network located in India. The IT Act 2000 provides an extraterritorial applicability to its provisions by virtue of section 1(2) read with section 75.
India's Information Technology Act 2000 has tried to assimilate legal principles available in several such laws (relating to information technology) enacted earlier in several other countries, as also various guidelines pertaining to Information Technology Law. The government of India appointed an Expert Committee to suggest suitable amendments into the existing IT Act, 2000. The amendments suggested by the Committee were severely criticised on various grounds. The chief among them was the dilution of criminal sanctions under the proposed amendments. These amendments, perhaps with some modifications, have been approved by the Cabinet in India on 16 October 2006 and very soon the amendments will be laid down before the Indian Parliament for suitable legislation.
The IT Act, 2000 needs an overall haul[says who?], keeping in mind the contemporary standards and requirements and the Indian law in this regard is lagging far behind. In the absence of proper law in place, the only recourse is to rely upon the traditional criminal law of India, i.e. Indian Penal Code, 1860 (IPC)[1] that is highly insufficient for computer crimes in India. Alternatively, a purposive, updating and organic interpretation of the existing provisions of the IT Act, 2000 and IPC by the judiciary must be tried.[says who?]
The IT Act, 2000 requires a purposive and updating amendment initiative as many contemporary crimes and contraventions are missing from it. Besides, there is an emergent need of introducing the concept of cyber forensics in India.
Many Asian and Middle Eastern nations use any number of combinations of code-based regulation (one of Lessig's four methods of net regulation) to block material that their governments have deemed inappropriate for their citizens to view. PRC, Saudi Arabia and Iran are three examples of nations that have achieved high degrees of success in regulating their citizens' access to the Internet.[10][14]
The Information Technology Laws of various countries, and / or their criminal laws generally stipulate enforcement agencies, entrusted with the task of enforcing the legal provisions and requirements.
Many United States federal agencies oversee the use of information technology. Their regulations are promulgated in the Code of Federal Regulations of the United States.
Over 25 U.S. federal agencies have regulations concerning the use of digital and electronic signatures.[15]
A live example of such an enforcement agency is Cyber Crime Police Station, Bangalore [2], India's first exclusive Cyber Crime enforcement agency.
An information technology attorney is a professional who handles a variety of legal matters related to IT. The attorney gets involved in drafting, negotiating, and interpreting agreements in the areas of software licensing and maintenance, IT consulting, e-commerce, web site hosting and development, and telecommunications agreements, as well as handling dispute resolution and assisting with the client's Internet domain name portfolio. An information technology attorney works with engineering, IT, and other business units and ensures that customer information gathered by company is collected, stored and used in compliance with privacy policies and applicable laws.
Duties also include providing high quality, specialized and practical advice in business-to-business and business-to-consumer arrangements and advising on issues like IT outsourcing arrangements, software and hardware supply and implementation agreements. An information technology attorney contracts for web site developers and consultants in relation to on-line projects. Provides support and maintains confidentiality/know how agreements. Contracts for Internet service providers and data protection advice. An information technology attorney should have a JD degree or an LL.M degree with admission to the local state bar.