Legal aspects of computing
Encyclopedia
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
.
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 patent
s is controversial
, and still evolving in Europe and elsewhere.
The related topics of software licenses, end user license agreements, free software licenses and open-source license
s 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.
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". 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!" 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. 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.
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
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 .
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
:
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.
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".
In the UK the case of Keith-Smith v Williams
confirmed that existing libel laws applied to internet discussions.
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.
has thus far proven to be the most rigorous in its attempts to filter unwanted parts of the internet from its citizens, 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.
captivated the general public, and led to the 1890 publication of Samuel Warren and Louis Brandeis: "The Right to Privacy". 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.
The motivation of both authors to write such an article is heavily debated amongst scholoars, 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]
, 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
For more information see: Foreign Intelligence Act
) 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]
For More Information See: Driver's Privacy Protection Act
For More Information See: Gramm-Leach-Bliley Act
For More Information See: Homeland Security Act
For More Information See: Intelligence Reform and Terrorism Prevention Act
http://www.homeoffice.gov.uk/crime/internetcrime/compmisuse.html, 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, 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.
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.
of the United States.
Over 25 U.S. federal agencies have regulations concerning the use of digital and electronic signatures.
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.
Centers and groups for the study of cyberlaw and related areas
Topics related to cyberlaw
Conferences related to cyberlaw
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
and computing
Computing
Computing is usually defined as the activity of using and improving computer hardware and software. It is the computer-specific part of information technology...
.
The first one, historically, was Information Technology Law (or IT Law). (It should not be confused with the IT aspects of law itself
Legal informatics
Legal informatics is an area within information science. One of the best definitions of legal informatics comes from Erdelez and O’Hare :Legal informatics could be said then, to encompass several conceptual areas:...
, albeit there is an overlap between the two, as well).
IT Law is a set of legal enactments
Statutory law
Statutory law or statute law is written law set down by a legislature or by a legislator .Statutes may originate with national, state legislatures or local municipalities...
, currently in existence in several countries, which governs the digital
Digital
A digital system is a data technology that uses discrete values. By contrast, non-digital systems use a continuous range of values to represent information...
dissemination of both (digitalized) information and software itself (see History of free and open-source software). IT Law covers mainly the digital
Digital
A digital system is a data technology that uses discrete values. By contrast, non-digital systems use a continuous range of values to represent information...
information (including information security
Information security
Information security means protecting information and information systems from unauthorized access, use, disclosure, disruption, modification, perusal, inspection, recording or destruction....
and electronic commerce
Electronic commerce
Electronic commerce, commonly known as e-commerce, eCommerce or e-comm, refers to the buying and selling of products or services over electronic systems such as the Internet and other computer networks. However, the term may refer to more than just buying and selling products online...
) 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
Internet
The Internet is a global system of interconnected computer networks that use the standard Internet protocol suite to serve billions of users worldwide...
. It is less a distinct field of law than intellectual property
Intellectual property
Intellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law...
or contract
Contract
A contract is an agreement entered into by two parties or more with the intention of creating a legal obligation, which may have elements in writing. Contracts can be made orally. The remedy for breach of contract can be "damages" or compensation of money. In equity, the remedy can be specific...
law, as it is a domain covering many areas of law and regulation. Some leading topics include internet access and usage
Internet
The Internet is a global system of interconnected computer networks that use the standard Internet protocol suite to serve billions of users worldwide...
, privacy
Privacy
Privacy is the ability of an individual or group to seclude themselves or information about themselves and thereby reveal themselves selectively...
, freedom of expression, and jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
.
Areas of law
There is intellectual propertyIntellectual property
Intellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law...
in general, including copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
, rules on fair use
Fair use
Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders...
, and special rules on copy protection
Copy protection
Copy protection, also known as content protection, copy obstruction, copy prevention and copy restriction, refer to techniques used for preventing the reproduction of software, films, music, and other media, usually for copyright reasons.- Terminology :Media corporations have always used the term...
for digital media, and circumvention of such schemes. The area of software patent
Software patent
Software patent does not have a universally accepted definition. One definition suggested by the Foundation for a Free Information Infrastructure is that a software patent is a "patent on any performance of a computer realised by means of a computer program".In 2005, the European Patent Office...
s is controversial
Software patent debate
The software patent debate is the argument dealing with the extent to which it should be possible to patent software and computer-implemented inventions as a matter of public policy. Policy debate on software patents has been active for years. The opponents to software patents have gained more...
, and still evolving in Europe and elsewhere.
The related topics of software licenses, end user license agreements, free software licenses and open-source license
Open-source license
An open-source license is a copyright license for computer software that makes the source code available for everyone to use. This allows end users to review and modify the source code for their own customization and/or troubleshooting needs...
s 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
Data privacy
Information privacy, or data privacy is the relationship between collection and dissemination of data, technology, the public expectation of privacy, and the legal and political issues surrounding them....
and spamming. There are also limits on the use of encryption
Encryption
In cryptography, encryption is the process of transforming information using an algorithm to make it unreadable to anyone except those possessing special knowledge, usually referred to as a key. The result of the process is encrypted information...
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
Censorship
thumb|[[Book burning]] following the [[1973 Chilean coup d'état|1973 coup]] that installed the [[Military government of Chile |Pinochet regime]] in Chile...
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.
Jurisdiction
Issues of jurisdictionJurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
and sovereignty
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...
have quickly come to the fore in the era of the Internet
Internet
The Internet is a global system of interconnected computer networks that use the standard Internet protocol suite to serve billions of users worldwide...
.
Jurisdiction is an aspect of state sovereignty
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...
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
Conflict of laws
Conflict of laws is a set of procedural rules that determines which legal system and which jurisdiction's applies to a given dispute...
, 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
John Perry Barlow
John Perry Barlow is an American poet and essayist, a retired Wyoming cattle rancher, and a cyberlibertarian political activist who has been associated with both the Democratic and Republican parties. He is also a former lyricist for the Grateful Dead and a founding member of the Electronic...
, 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". 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!" Other scholars argue for more of a compromise between the two notions, such as Lawrence Lessig
Lawrence Lessig
Lawrence "Larry" Lessig is an American academic and political activist. He is best known as a proponent of reduced legal restrictions on copyright, trademark, and radio frequency spectrum, particularly in technology applications, and he has called for state-based activism to promote substantive...
'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
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
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
Data privacy
Information privacy, or data privacy is the relationship between collection and dissemination of data, technology, the public expectation of privacy, and the legal and political issues surrounding them....
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
Cyberspace
Cyberspace is the electronic medium of computer networks, in which online communication takes place.The term "cyberspace" was first used by the cyberpunk science fiction author William Gibson, though the concept was described somewhat earlier, for example in the Vernor Vinge short story "True...
" 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. As such, a single transaction may involve the laws of at least three jurisdictions:
- the laws of the state/nation in which the user resides,
- the laws of the state/nation that apply where the server hosting the transaction is located, and
- the laws of the state/nation which apply to the person or business with whom the transaction takes place.
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.
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
Copyright infringement
Copyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.- "Piracy" :...
. 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
Internet governance
Internet governance is the development and application of shared principles, norms, rules, decision-making procedures, and programs that shape the evolution and use of the Internet...
is a live issue in international fora such as the International Telecommunication Union
International Telecommunication Union
The International Telecommunication Union is the specialized agency of the United Nations which is responsible for information and communication technologies...
(ITU), and the role of the current US-based co-ordinating body, the Internet Corporation for Assigned Names and Numbers
ICANN
The Internet Corporation for Assigned Names and Numbers is a non-profit corporation headquartered in Marina del Rey, California, United States, that was created on September 18, 1998, and incorporated on September 30, 1998 to oversee a number of Internet-related tasks previously performed directly...
(ICANN) was discussed in the UN-sponsored World Summit on the Information Society
World Summit on the Information Society
The World Summit on the Information Society was a pair of United Nations-sponsored conferences about information, communication and, in broad terms, the information society that took place in 2003 in Geneva and in 2005 in Tunis...
(WSIS) in December 2003
Internet Law
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 InternetInternet
The Internet is a global system of interconnected computer networks that use the standard Internet protocol suite to serve billions of users worldwide...
has raised several judicial
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
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
Paradigm shift
A Paradigm shift is, according to Thomas Kuhn in his influential book The Structure of Scientific Revolutions , a change in the basic assumptions, or paradigms, within the ruling theory of science...
, it is still in the process of development .
In their essay "Law and Borders -- The Rise of Law in Cyberspace", David R. Johnson
David R. Johnson
David A. Johnson is Associate Professor of Philosophy at Yeshiva University and has previously taught at UCLA and Syracuse University. Raised in Nebraska, he earned his BA from the University of Nebraska, where he studied under Robert Audi, and his PhD from Princeton University. His areas of...
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
Internet censorship
Internet censorship is the control or suppression of the publishing of, or access to information on the Internet. It may be carried out by governments or by private organizations either at the behest of government or on their own initiative...
in nations like China
China
Chinese civilization may refer to:* China for more general discussion of the country.* Chinese culture* Greater China, the transnational community of ethnic Chinese.* History of China* Sinosphere, the area historically affected by Chinese culture...
or Saudi Arabia
Saudi Arabia
The Kingdom of Saudi Arabia , commonly known in British English as Saudi Arabia and in Arabic as as-Sa‘ūdiyyah , is the largest state in Western Asia by land area, constituting the bulk of the Arabian Peninsula, and the second-largest in the Arab World...
or Iran
Iran
Iran , officially the Islamic Republic of Iran , is a country in Southern and Western Asia. The name "Iran" has been in use natively since the Sassanian era and came into use internationally in 1935, before which the country was known to the Western world as Persia...
(that monitor content), there are four primary modes of regulation of the internet described by Lawrence Lessig
Lawrence Lessig
Lawrence "Larry" Lessig is an American academic and political activist. He is best known as a proponent of reduced legal restrictions on copyright, trademark, and radio frequency spectrum, particularly in technology applications, and he has called for state-based activism to promote substantive...
in his book, Code and Other Laws of Cyberspace
Code and Other Laws of Cyberspace
Code and Other Laws of Cyberspace is a book by Lawrence Lessig. It has evolved into a partially wiki-written book Code v2 under a Creative Commons Attribution-ShareAlike 2.5 License.- Main topic :...
:
- Law: Standard East Coast Code, and the most self-evident of the four modes of regulation. As the numerous statutes, evolving case law and precedents make clear, many actions on the internet are already subject to conventional legislation (both with regard to transactions conducted on the internet and images posted). Areas like gambling, child pornography, and fraud are regulated in very similar ways online as off-line. While one of the most controversial and unclear areas of evolving laws is the determination of what forum has subject matter jurisdiction over activity (economic and other) conducted on the internet, particularly as cross border transactions affect local jurisdictions, it is certainly clear that substantial portions of internet activity are subject to traditional regulation, and that conduct that is unlawful off-line is presumptively unlawful online, and subject to similar laws and regulations. Scandals with major corporations led to US legislation rethinking corporate governanceGovernanceGovernance is the act of governing. It relates to decisions that define expectations, grant power, or verify performance. It consists of either a separate process or part of management or leadership processes...
regulations such as the Sarbanes-Oxley ActSarbanes-Oxley ActThe Sarbanes–Oxley Act of 2002 , also known as the 'Public Company Accounting Reform and Investor Protection Act' and 'Corporate and Auditing Accountability and Responsibility Act' and commonly called Sarbanes–Oxley, Sarbox or SOX, is a United States federal law enacted on July 30, 2002, which...
. - Architecture: West Coast Code: these mechanisms concern the parameters of how information can and cannot be transmitted across the internet. Everything from internet filtering software (which searches for keywords or specific URLs and blocks them before they can even appear on the computer requesting them), to encryption programs, to the very basic architecture of TCP/IP protocol, falls within this category of regulation. It is arguable that all other modes of regulation either rely on, or are significantly supported by, regulation via West Coast Code.
- Norms: As in all other modes of social interaction, conduct is regulated by social norms and conventions in significant ways. While certain activities or kinds of conduct online may not be specifically prohibited by the code architecture of the internet, or expressly prohibited by applicable law, nevertheless these activities or conduct will be invisibly regulated by the inherent standards of the community, in this case the internet "users." And just as certain patterns of conduct will cause an individual to be ostracised from our real world society, so too certain actions will be censored or self-regulated by the norms of whatever community one chooses to associate with on the internet.
- Markets: Closely allied with regulation by virtue of social norms, markets also regulate certain patterns of conduct on the internet. While economic markets will have limited influence over non-commercial portions of the internet, the internet also creates a virtual marketplace for information, and such information affects everything from the comparative valuation of services to the traditional valuation of stocks. In addition, the increase in popularity of the internet as a means for transacting all forms of commercial activity, and as a forum for advertisement, has brought the laws of supply and demand in cyberspace.
Net neutrality
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 BarlowJohn Perry Barlow
John Perry Barlow is an American poet and essayist, a retired Wyoming cattle rancher, and a cyberlibertarian political activist who has been associated with both the Democratic and Republican parties. He is also a former lyricist for the Grateful Dead and a founding member of the Electronic...
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.
Free speech on the Internet
Article 19 of the Universal Declaration of Human RightsUniversal Declaration of Human Rights
The Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...
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
DeCSS
DeCSS is a computer program capable of decrypting content on a commercially produced DVD video disc. Before the release of DeCSS, there was no way for computers running a Linux-based operating system to play video DVDs....
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
Jonathan Zittrain
Jonathan L. Zittrain is a US professor of Internet law at Harvard Law School and the Harvard Kennedy School, a professor of computer science at the Harvard School of Engineering and Applied Sciences, and a faculty co-director of Harvard's Berkman Center for Internet & Society...
considered this issue in his paper, "Be Careful What You Ask For: Reconciling a Global Internet and Local Law".
In the UK the case of Keith-Smith v Williams
Keith-Smith v Williams
Keith-Smith v Williams is a 2006 English libel case that confirmed that existing libel laws applied to internet discussion.It was seen as important because it was seen as the first UK internet libel case that represented two individuals rather than one party being an Internet Service Provider, and...
confirmed that existing libel laws applied to internet discussions.
In terms of the tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
liability of ISPs and hosts of internet forums, Section 230(c) of the Communications Decency Act
Communications Decency Act
The Communications Decency Act of 1996 was the first notable attempt by the United States Congress to regulate pornographic material on the Internet. In 1997, in the landmark cyberlaw case of Reno v. ACLU, the United States Supreme Court struck the anti-indecency provisions of the Act.The Act was...
may provide immunity in the United States.
Internet censorship
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 ChinaChina
Chinese civilization may refer to:* China for more general discussion of the country.* Chinese culture* Greater China, the transnational community of ethnic Chinese.* History of China* Sinosphere, the area historically affected by Chinese culture...
has thus far proven to be the most rigorous in its attempts to filter unwanted parts of the internet from its citizens, many other countries - including Singapore
Singapore
Singapore , officially the Republic of Singapore, is a Southeast Asian city-state off the southern tip of the Malay Peninsula, north of the equator. An island country made up of 63 islands, it is separated from Malaysia by the Straits of Johor to its north and from Indonesia's Riau Islands by the...
, Iran
Iran
Iran , officially the Islamic Republic of Iran , is a country in Southern and Western Asia. The name "Iran" has been in use natively since the Sassanian era and came into use internationally in 1935, before which the country was known to the Western world as Persia...
, Saudi Arabia
Saudi Arabia
The Kingdom of Saudi Arabia , commonly known in British English as Saudi Arabia and in Arabic as as-Sa‘ūdiyyah , is the largest state in Western Asia by land area, constituting the bulk of the Arabian Peninsula, and the second-largest in the Arab World...
, and Tunisia
Tunisia
Tunisia , officially the Tunisian RepublicThe long name of Tunisia in other languages used in the country is: , is the northernmost country in Africa. It is a Maghreb country and is bordered by Algeria to the west, Libya to the southeast, and the Mediterranean Sea to the north and east. Its area...
- have engaged in similar practices of Internet censorship
Internet censorship
Internet censorship is the control or suppression of the publishing of, or access to information on the Internet. It may be carried out by governments or by private organizations either at the behest of government or on their own initiative...
. In one of the most vivid examples of information control, the Chinese government for a short time transparently forwarded requests to the Google
Google
Google Inc. is an American multinational public corporation invested in Internet search, cloud computing, and advertising technologies. Google hosts and develops a number of Internet-based services and products, and generates profit primarily from advertising through its AdWords program...
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
India
India , officially the Republic of India , is a country in South Asia. It is the seventh-largest country by geographical area, the second-most populous country with over 1.2 billion people, and the most populous democracy in the world...
failed to reconcile the conflicting interests of speech and expression on the one hand and legitimate government concerns on the other hand.
Warren and Brandeis
At the close of the 19th Century, concerns about privacyPrivacy
Privacy is the ability of an individual or group to seclude themselves or information about themselves and thereby reveal themselves selectively...
captivated the general public, and led to the 1890 publication of Samuel Warren and Louis Brandeis: "The Right to Privacy". The vitality of this article can be seen today, when examining the USSC decision of Kyllo v. United States
Kyllo v. United States
Kyllo v. United States, , held that the use of a thermal imaging device from a public vantage point to monitor the radiation of heat from a person's home was a "search" within the meaning of the Fourth Amendment, and thus required a warrant...
, 533 U.S. 27 (2001) where it is cited by the majority, those in concurrence, and even those in dissent.
The motivation of both authors to write such an article is heavily debated amongst scholoars, 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
Yellow journalism
Yellow journalism or the yellow press is a type of journalism that presents little or no legitimate well-researched news and instead uses eye-catching headlines to sell more newspapers. Techniques may include exaggerations of news events, scandal-mongering, or sensationalism...
" 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]
Reasonable Expectation of Privacy Test and emerging technology
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]Privacy Act of 1974
Inspired by the Watergate scandalWatergate scandal
The Watergate scandal was a political scandal during the 1970s in the United States resulting from the break-in of the Democratic National Committee headquarters at the Watergate office complex in Washington, D.C., and the Nixon administration's attempted cover-up of its involvement...
, the United States Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
enacted the Privacy Act of 1974 just four months after the resignation of then President Richard Nixon
Richard Nixon
Richard Milhous Nixon was the 37th President of the United States, serving from 1969 to 1974. The only president to resign the office, Nixon had previously served as a US representative and senator from California and as the 36th Vice President of the United States from 1953 to 1961 under...
. 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
Privacy Act of 1974
The Privacy Act of 1974, 5 U.S.C. § 552a, Public Law No. 93-579, establishes a Code of Fair Information Practice that governs the collection, maintenance, use, and dissemination of personally identifiable information about individuals that is maintained in systems of records by federal agencies...
Foreign Intelligence Surveillance Act of 1978
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. (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
(1986) Electronic Communication Privacy 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 1968Omnibus Crime Control and Safe Streets Act of 1968
The Omnibus Crime Control and Safe Streets Act of 1968 was legislation passed by the Congress of the United States that established the Law Enforcement Assistance Administration . Title III of the Act set rules for obtaining wiretap orders in the United States. It has been started shortly after...
) 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]
-
-
- Types of Communication
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-
- Wire Communication: Any communication containing the human voice that travels at some point across a wired medium such as radio, satellite or cable.
- Oral Communication:
- Electronic Communication
-
- The Wiretap Act: For Information See Wiretap Act
- The Stored Communications Act: For information see Stored Communications ActStored Communications ActThe Stored Communications Act is a law that was enacted by the United States Congress in 1986. It is not a stand-alone law but forms part of the Electronic Communications Privacy Act; it is codified as 18 U.S.C. §§ 2701 to 2712...
- The Pen Register Act: For information see Pen Register ActPen registerA pen register is an electronic device that records all numbers called from a particular telephone line. The term has come to include any device or program that performs similar functions to an original pen register, including programs monitoring Internet communications.The United States statutes...
-
(1994) Driver's Privacy Protection Act
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
Driver's Privacy Protection Act
The Driver's Privacy Protection Act of 1994 is a United States federal statute governing the privacy and disclosure of personal information gathered by state Departments of Motor Vehicles. The law was passed in 1994; it was introduced by Rep...
(1999) Gramm-Leach-Bliley 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. .[12]For More Information See: Gramm-Leach-Bliley Act
Gramm-Leach-Bliley Act
The Gramm–Leach–Bliley Act , also known as the Financial Services Modernization Act of 1999, is an act of the 106th United States Congress...
(2002) Homeland Security Act
-Passed by Congress in 2002, the Homeland Security Act, , 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
Homeland Security Act
The Homeland Security Act of 2002, , 116 Stat. 2135 was introduced in the aftermath of the September 11 attacks and subsequent mailings of anthrax spores. The HSA was cosponsored by 118 members of Congress. It was signed into law by President George W...
(2004) Intelligence Reform and Terrorism Prevention 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
Intelligence Reform and Terrorism Prevention Act
The Intelligence Reform and Terrorism Prevention Act of 2004 , , is a 236-page Act of Congress, signed by President George W. Bush, that broadly affects US federal terrorism laws. In juxtaposition with the single-subject rule, the act is composed of several separate titles with varying subject...
Legal enactments – examples
The Computer Misuse Act 1990Computer Misuse Act 1990
The Computer Misuse Act 1990 is an Act of the Parliament of the United Kingdom, introduced partly in response to the decision in R v Gold & Schifreen 1 AC 1063 . Critics of the bill complained that it was introduced hastily and was poorly thought out...
http://www.homeoffice.gov.uk/crime/internetcrime/compmisuse.html, enacted by Great Britain
Great Britain
Great Britain or Britain is an island situated to the northwest of Continental Europe. It is the ninth largest island in the world, and the largest European island, as well as the largest of the British Isles...
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:
- "unauthorised access to computer materials",
- "unauthorised access with intent to commit or facilitate the commission of further offences", and
- "unauthorised modification of computer material."
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
Theft Act 1968
The Theft Act 1968 is an Act of the Parliament of the United Kingdom. It creates a number of offences against property in England and Wales.On 15 January 2007 the Fraud Act 2006 came into force, redefining most of the offences of deception.-History:...
), because the CMA is so ineffective.
A recent example of information technology law is India's Information Technology Act 2000
Information Technology Act
The Information Technology Act 2000 is an Act of the Indian Parliament notified on October 17, 2000.-History of the Act:...
, 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, 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.
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
People's Republic of China
China , officially the People's Republic of China , is the most populous country in the world, with over 1.3 billion citizens. Located in East Asia, the country covers approximately 9.6 million square kilometres...
, Saudi Arabia
Saudi Arabia
The Kingdom of Saudi Arabia , commonly known in British English as Saudi Arabia and in Arabic as as-Sa‘ūdiyyah , is the largest state in Western Asia by land area, constituting the bulk of the Arabian Peninsula, and the second-largest in the Arab World...
and Iran
Iran
Iran , officially the Islamic Republic of Iran , is a country in Southern and Western Asia. The name "Iran" has been in use natively since the Sassanian era and came into use internationally in 1935, before which the country was known to the Western world as Persia...
are three examples of nations that have achieved high degrees of success in regulating their citizens' access to the Internet.
Electronic signature laws
- U.S. - Electronic Signatures in Global and National Commerce ActElectronic Signatures in Global and National Commerce ActThe Electronic Signatures in Global and National Commerce Act is a United States federal law passed by the U.S. Congress to facilitate the use of electronic records and electronic signatures in interstate and foreign commerce by ensuring the validity and legal effect of contracts entered into...
- U.S. - Uniform Electronic Transactions ActUniform Electronic Transactions ActThe Uniform Electronic Transactions Act is one of the several United States Uniform Acts proposed by the National Conference of Commissioners on Uniform State Laws . Since then 47 States, the District of Columbia, Puerto Rico, and the U.S. Virgin Islands have adopted it into their own laws...
- adopted by 46 states - U.S. - Digital Signature And Electronic Authentication LawDigital Signature And Electronic Authentication LawDigital Signature And Electronic Authentication Law of 1998 was introduced to the United States Senate, as S.1594, and was followed closely by H.R. 3472 which was introduced to the House of Representatives...
- U.S. - Government Paperwork Elimination ActGovernment Paperwork Elimination ActThe Government Paperwork Elimination Act requires that, when practicable, Federal agencies use electronic forms, electronic filing, and electronic signatures to conduct official business with the public by 2003. In doing this, agencies will create records with business, legal and, in some cases,...
(GPEA) - U.S. - The Uniform Commercial Code (UCC)Uniform Commercial CodeThe Uniform Commercial Code , first published in 1952, is one of a number of uniform acts that have been promulgated in conjunction with efforts to harmonize the law of sales and other commercial transactions in all 50 states within the United States of America.The goal of harmonizing state law is...
- UKUnited KingdomThe United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
- s.7 Electronic Communications Act 2000Electronic Communications Act 2000-External links:*... - European UnionEuropean UnionThe European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
- Electronic Signature Directive (1999/93/EC) - MexicoMexicoThe United Mexican States , commonly known as Mexico , is a federal constitutional republic in North America. It is bordered on the north by the United States; on the south and west by the Pacific Ocean; on the southeast by Guatemala, Belize, and the Caribbean Sea; and on the east by the Gulf of...
- E-Commerce Act [2000] - Costa RicaCosta RicaCosta Rica , officially the Republic of Costa Rica is a multilingual, multiethnic and multicultural country in Central America, bordered by Nicaragua to the north, Panama to the southeast, the Pacific Ocean to the west and the Caribbean Sea to the east....
- Digital Signature Law 8454 (2005) - AustraliaAustraliaAustralia , officially the Commonwealth of Australia, is a country in the Southern Hemisphere comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands in the Indian and Pacific Oceans. It is the world's sixth-largest country by total area...
- Electronic Transactions Act 1999 (Cth) (also note that there is State and Territory mirror legislation)
Information technology law
- Florida Electronic Security Act
- Illinois Electronic Commerce Security Act
- Texas Penal Code - Computer Crimes Statute
- Maine Criminal Code - Computer Crimes
- Singapore Electronic Transactions Act
- Malaysia Computer Crimes Act
- Malaysia Digital Signature Act
- UNCITRAL Model Law on Electronic Commerce
- Information Technology Act 2000 of IndiaInformation Technology ActThe Information Technology Act 2000 is an Act of the Indian Parliament notified on October 17, 2000.-History of the Act:...
Information Technology Guidelines
- ABA Digital Signature Guidelines
- United States Office of Management and BudgetUnited States Office of Management and BudgetThe Office of Management and Budget is a Cabinet-level office, and is the largest office within the Executive Office of the President of the United States .The current OMB Director is Jacob Lew.-History:...
Enforcement agencies
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.United States Federal Agencies
Many United States federal agencies oversee the use of information technology. Their regulations are promulgated in the Code of Federal RegulationsCode of Federal Regulations
The Code of Federal Regulations is the codification of the general and permanent rules and regulations published in the Federal Register by the executive departments and agencies of the Federal Government of the United States.The CFR is published by the Office of the Federal Register, an agency...
of the United States.
Over 25 U.S. federal agencies have regulations concerning the use of digital and electronic signatures.
India
A live example of such an enforcement agency is Cyber Crime Police Station, Bangalore http://www.cyberpolicebangalore.nic.in/, India's first exclusive Cyber Crime enforcement agency.- Other examples of such enforcement agencies include:
- Cyber Crime Investigation Cell http://www.cybercellmumbai.com/index.htm of India's MumbaiMumbaiMumbai , formerly known as Bombay in English, is the capital of the Indian state of Maharashtra. It is the most populous city in India, and the fourth most populous city in the world, with a total metropolitan area population of approximately 20.5 million...
Police. - Cyber Crime Police Stationhttp://www.cidap.gov.in/cybercrimes.aspx of the state Government of Andhra PradeshAndhra PradeshAndhra Pradesh , is one of the 28 states of India, situated on the southeastern coast of India. It is India's fourth largest state by area and fifth largest by population. Its capital and largest city by population is Hyderabad.The total GDP of Andhra Pradesh is $100 billion and is ranked third...
, India. This Police stationPolice stationA police station or station house is a building which serves to accommodate police officers and other members of staff. These buildings often contain offices and accommodation for personnel and vehicles, along with locker rooms, temporary holding cells and interview/interrogation rooms.- Facilities...
has jurisdiction over the entire state of Andhra PradeshAndhra PradeshAndhra Pradesh , is one of the 28 states of India, situated on the southeastern coast of India. It is India's fourth largest state by area and fifth largest by population. Its capital and largest city by population is Hyderabad.The total GDP of Andhra Pradesh is $100 billion and is ranked third...
, and functions from the Hyderabad city. - In South IndiaSouth IndiaSouth India is the area encompassing India's states of Andhra Pradesh, Karnataka, Kerala and Tamil Nadu as well as the union territories of Lakshadweep and Pondicherry, occupying 19.31% of India's area...
, the Crime Branch of Criminal Investigation Department, Tamilnadu police, India, has a Cyber Crime Cell at ChennaiChennaiChennai , formerly known as Madras or Madarasapatinam , is the capital city of the Indian state of Tamil Nadu, located on the Coromandel Coast off the Bay of Bengal. Chennai is the fourth most populous metropolitan area and the sixth most populous city in India...
. - In East IndiaEast IndiaEast India is a region of India consisting of the states of West Bengal, Bihar, Jharkhand, and Orissa. The states of Orissa and West Bengal share some cultural and linguistic characteristics with Bangladesh and with the state of Assam. Together with Bangladesh, West Bengal formed the...
, Cyber Crime Cells have been set up by the Kolkata PoliceKolkata PoliceThe Kolkata Police Force is one of the two police forces of the Indian state of West Bengal....
as well as the Criminal Investigation Department, West BengalWest BengalWest Bengal is a state in the eastern region of India and is the nation's fourth-most populous. It is also the seventh-most populous sub-national entity in the world, with over 91 million inhabitants. A major agricultural producer, West Bengal is the sixth-largest contributor to India's GDP...
.
Information Technology Lawyer
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.
Quotations
- "In Cyberspace, the First AmendmentFirst Amendment to the United States ConstitutionThe First Amendment to the United States Constitution is part of the Bill of Rights. The amendment prohibits the making of any law respecting an establishment of religion, impeding the free exercise of religion, abridging the freedom of speech, infringing on the freedom of the press, interfering...
is a local ordinance."
— John Perry BarlowJohn Perry BarlowJohn Perry Barlow is an American poet and essayist, a retired Wyoming cattle rancher, and a cyberlibertarian political activist who has been associated with both the Democratic and Republican parties. He is also a former lyricist for the Grateful Dead and a founding member of the Electronic...
, quoted by Mitchell Kapor in the foreword to The Big Dummy's Guide to the Internet - "National borders aren't even speed bumps on the information superhighway."
— Tim May, signature, from 1996
See also
- Сybercrime
- Computer forensicsComputer forensicsComputer forensics is a branch of digital forensic science pertaining to legal evidence found in computers and digital storage media...
- Digital Millennium Copyright ActDigital Millennium Copyright ActThe Digital Millennium Copyright Act is a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization . It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to...
(DMCA) - Bernstein v. United StatesBernstein v. United StatesBernstein v. United States is a set of court cases brought by Daniel J. Bernstein challenging restrictions on the export of cryptography from the United States....
and Junger v. DaleyJunger v. DaleyJunger v. Daley is a court case brought by Peter Junger challenging restrictions on the export of encryption software outside of the United States....
– on free speech protection of software - Electronic Communications Privacy ActElectronic Communications Privacy ActThe Electronic Communications Privacy Act is a United States law.- Overview :The “electronic communication” means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or...
- Export of cryptographyExport of cryptographyThe export of cryptography in the United States is the transfer from the United States to another country of devices and technology related to cryptography....
- Software patent debateSoftware patent debateThe software patent debate is the argument dealing with the extent to which it should be possible to patent software and computer-implemented inventions as a matter of public policy. Policy debate on software patents has been active for years. The opponents to software patents have gained more...
- Universal v. ReimerdesUniversal v. ReimerdesUniversal City Studios, Inc. v. Reimerdes was the first test of the Digital Millennium Copyright Act , a United States federal law.The plaintiffs, 8 movie studios, successfully sought an injunction against the distribution of DeCSS, a program capable of decrypting content protected using the...
– test of DMCA - Wassenaar ArrangementWassenaar ArrangementThe Wassenaar Arrangement is a multilateral export control regime with 40 participating states including many former COMECON countries.It is the successor to the Cold war-era Coordinating Committee for Multilateral Export Controls , and was...
- Berkman Center for Internet & SocietyBerkman Center for Internet & SocietyThe Berkman Center for Internet & Society is a research center at Harvard University that focuses on the study of cyberspace. Founded at Harvard Law School, the center traditionally focused on internet-related legal issues. On May 15, 2008, the Center was elevated to an interfaculty initiative of...
- Glossary of legal terms in technology
Centers and groups for the study of cyberlaw and related areas
- Berkman Center for Internet and Society at Harvard Law SchoolHarvard Law SchoolHarvard Law School is one of the professional graduate schools of Harvard University. Located in Cambridge, Massachusetts, it is the oldest continually-operating law school in the United States and is home to the largest academic law library in the world. The school is routinely ranked by the U.S...
- Norwegian Research Center for Computers and LawNorwegian Research Center for Computers and LawNorwegian Research Center for Computers and Law at the University of Oslo is the second-oldest academic institution in the world working specifically with the interrelationship of law and information / communication technology...
- Stanford Center for Internet and SocietyStanford Center for Internet and SocietyThe Center for Internet and Society is a public interest technology law and policy program founded in 2000 by Lawrence Lessig at Stanford Law School and a part of Law, Science and Technology Program at Stanford Law School...
, at Stanford Law SchoolStanford Law SchoolStanford Law School is a graduate school at Stanford University located in the area known as the Silicon Valley, near Palo Alto, California in the United States. The Law School was established in 1893 when former President Benjamin Harrison joined the faculty as the first professor of law... - Centre for Internet and SocietyCentre for Internet and Society (India)The Centre for Internet and Society is a Bangalore-based organisation looking at multidisciplinary research and advocacy. CIS works on digital pluralism, public accountability and pedagogic practices, in the field of Internet and Society....
, in Bangalore, India. - Institute for Information, Telecommunication and Media LawInstitute for Information, Telecommunication and Media LawInstitute for Information, Telecommunication and Media Law or ITM is a research & educational organisation located in Münster, North Rhine-Westphalia in Germany. All major research projects conducted by ITM are ordered by European Commission. Scientific Council of the Institute is presented by...
in Münster, Germany - Master of New Technologies law, at Pablo de Olavide University in Sevilla, Spain
Topics related to cyberlaw
- CopyrightCopyrightCopyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
, especially the Digital Millenium Copyright Act in the United States, and similar laws in other countries - Cyber defamation lawCyber defamation lawCyber Defamation is a crime conducted in cyberspace, usually through the Internet, with the intention of defaming others. The cyber defamation law that the Korean government tries to make is intended to capture such criminal activities by allowing police to crack down on hateful comments without...
- Digital Rights ManagementDigital rights managementDigital rights management is a class of access control technologies that are used by hardware manufacturers, publishers, copyright holders and individuals with the intent to limit the use of digital content and devices after sale. DRM is any technology that inhibits uses of digital content that...
- Intellectual propertyIntellectual propertyIntellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law...
- Internet censorshipInternet censorshipInternet censorship is the control or suppression of the publishing of, or access to information on the Internet. It may be carried out by governments or by private organizations either at the behest of government or on their own initiative...
- Spamming
- The Law of Cyber-SpaceThe Law of Cyber-SpaceThe Law of Cyber-Space is a book by Ahmad Kamal, Senior Fellow at the United Nations Institute for Training and Research on the subject of Cyber law....
(book)
Conferences related to cyberlaw
- State of PlayState of Play (Conference series)State of Play is a conference series put on by the Institute for Information Law & Policy at New York Law School which deals with the intersection of virtual worlds, games and the law.-Past Conferences:...
, a conference series put on by the Institute for Information Law & Policy at New York Law SchoolNew York Law SchoolNew York Law School is a private law school in the TriBeCa neighborhood of Lower Manhattan in New York City. New York Law School is one of the oldest independent law schools in the United States. The school is located within four blocks of all major courts in Manhattan. In 2011, New York Law School...
, concerning the intersection of virtual worldVirtual worldA virtual world is an online community that takes the form of a computer-based simulated environment through which users can interact with one another and use and create objects. The term has become largely synonymous with interactive 3D virtual environments, where the users take the form of...
s, gameGameA game is structured playing, usually undertaken for enjoyment and sometimes used as an educational tool. Games are distinct from work, which is usually carried out for remuneration, and from art, which is more often an expression of aesthetic or ideological elements...
s and the law.
Further reading
- Code and Other Laws of CyberspaceCode and Other Laws of CyberspaceCode and Other Laws of Cyberspace is a book by Lawrence Lessig. It has evolved into a partially wiki-written book Code v2 under a Creative Commons Attribution-ShareAlike 2.5 License.- Main topic :...
, The Future of IdeasThe Future of IdeasThe Future of Ideas: the fate of the commons in a connected world is a book by Lawrence Lessig, at the time of writing a professor of law at Stanford Law School, who is well known as a critic of the extension of the copyright term in US....
, and Free CultureFree Culture (book)Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity is a book by law professor Lawrence Lessig that was released on the Internet under the Creative Commons Attribution/Non-commercial license on March 25, 2004."There has never been a...
by Lawrence LessigLawrence LessigLawrence "Larry" Lessig is an American academic and political activist. He is best known as a proponent of reduced legal restrictions on copyright, trademark, and radio frequency spectrum, particularly in technology applications, and he has called for state-based activism to promote substantive... - Cyber RightsCyber RightsCyber Rights: Defending Free speech in the Digital Age is a non-fiction book about cyberlaw, written by free speech lawyer Mike Godwin. It was first published in 1998 by Times Books. It was republished in 2003 as a revised edition by The MIT Press...
by Mike GodwinMike GodwinMichael Wayne Godwin is an American attorney and author. He was the first staff counsel of the Electronic Frontier Foundation , and the creator of the Internet adage Godwin's Law of Nazi Analogies. From July 2007 to October 2010, he was general counsel for the Wikimedia Foundation... - E-Commerce and Internet Law: Treatise with Forms 2d edition, by Ian C. BallonIan C. BallonIan Ballon is an Internet and intellectual property litigator, author of books on Internet law and Executive Director of Stanford University Law School’s Center for E-Commerce. He is the author of the 4-volume legal treatise, E-Commerce and Internet Law: Treatise with Forms 2d edition, the...
External links
- http://cyber.law.harvard.edu/home/ – Berkman Center for Internet & Society at Harvard Law School
- http://grep.law.harvard.edu/ – Greplaw is a news and discussion site for legal and computing issues.
- http://www.eff.org/– The Electronic Frontier Foundation works for individuals' rights.
- http://www.legalarchiver.org/safe.htm – Text of the United StatesUnited StatesThe United States of America is a federal constitutional republic comprising fifty states and a federal district...
' Security And Freedom through Encryption (SAFE) Act. - http://www.cyberlawconsulting.com/it-act.html/ – The Information Technology Amended Act 2008 of India
- US Department of Justice - Cyber crimes
- CERT
- Global School of Tech Juris Pioneering Cyber Law Institute
- Indian Portal on Cyber Law
- Computer Crime Research Center
- Cyber crime and misuse of ICT-UNESCO
- Digital Evidence
- Computer Forensics World
- "Model Information Technology Contract Terms and Systems Implementation Contracts in Europe" . European Newsletter, June 2006 Lestrade, K.OSt.J., SJDr, Dr. Edward
- AHRC Research Centre for Studies in IP and IT Law at Edinburgh Law School
- Critical analysis of proposed Information Technology Act, 2000 amendments
- The proposed IT Act, 2000 amendments: Boon or bane
- Global School of Tech Juris White Paper on Censoring the Indian Cyberspace
- Global School of Tech Juris White Paper on Cyber Voyeurism Perverts Dot Com
- You Be The Judge
- http://www.mid-day.com/news/city/2001/october/16106.htm Natural Porn Killers - Jayesh and Sunil Thacker (Mid Day - October 7, 2001)
- http://timesofindia.indiatimes.com/articleshow/1171868083.cms HC admits cyberporn complaint as PIL (Times of India, July 13, 2001)
- http://timesofindia.indiatimes.com/articleshow/1124348984.cms Cyberporn panel set up, HC wants minors protected, Sunil Thacker invited as a special invitee (Times of India, September 30, 2001)
- Indiacensored.com
- Cyber Law Complete Information
- Stanford Law School Cyberlaw Clinic
- Santa Clara University School of Law Tech LawForum
- Cybertelecom: Federal Internet Policy
- Internet Library of Law and Court Decisions
- Global Cyber Law Database
- WorldLII Cyberspace Law
- Cyber Law World
- Computer Crime Research Center
- ASCL Cyber Law Library
- Borders on, or border around – the future of the Internet
- White Paper on Information technology Act Amendments 2008