What is Computer Law?
Copyright 1999 by Ronald B. Standler
In 1996, Judge Frank Easterbrook
that there is no such thing as computer law,
just as Dean Gerhard Casper had earlier said there was no "law of the horse".
What is popularly called computer law
is mostly an eclectic amalgamation of concepts from existing law,
which are applied to the relatively new technologies of computer
hardware and software, e-mail, and the Internet.
However, there are several reasons why it is convenient to have a separate
classification for computer law:
The Internet has been revolutionary in giving anyone with a website
the equivalent of a printing press or television transmitter:
now anyone can broadcast their information or opinion to the whole world,
without first going through formal review by a publisher.
Many governments have reacted to the Internet with new censorship
of both websites and readers' access to the Internet.
(See my further comments on censorship in my essay on
The Response of Law to New
Furthermore, there has been widespread
copyright infringement by people who
post material at their website that was copied from other websites,
or copied from books, without written permission of the copyright owner.
- Solving legal problems that arose from the use of computers often
requires some legal principles that are rarely encountered in
the practice of law. For example:
- Disputes about e-mail and web pages on the Internet
extend across state lines, and may even
extend across national borders. For example, there are
technical issues in personal jurisdiction and which state's
law should be applied to the resolution of the dispute.
To solve these legal problems,
one must understand principles of an abstruse area of law, called
Conflicts of Law. Few attorneys took a class in this subject
when they were in law school. Instead of relatively firm rules
with predictable results, as in most other areas of law,
conflicts analysis can be characterized
as choosing from a menu of possibilities.
- Information stored on computers (e.g., software, data, trade secrets,
confidential personal information) is generally much more
valuable than the computer hardware. In order to protect
this information, many of the concepts in the practice
of computer law involve the specialized area of
Intellectual Property Law, which
includes copyrights, trademarks, and patents.
Again, few attorneys took classes in copyrights, trademarks, and
patents when they were in law school. In order to practice
before the U.S. Patent Office, an attorney must have
at least a bachelor's degree in some area of science or engineering,
a requirement that excludes nearly all attorneys.
- Traditional concepts in law are being expanded by
events in the area of computer law. For example:
- Computer software is legally considered a "good". Unlike other
goods, the "purchaser" only owns the floppy diskette or compact disk
that contains the software, plus a license to use the software.
The Uniform Commercial Code was amended by including Article 2B
to cover licensing of computer software.
- Computer databases that contain erroneous information (e.g., false
credit reports) can be harmful to people, which may give rise to a
new class of torts, called infotorts.
- Hackers who use a modem to enter a computer without authorization
and either (1) use its services or (2) alter records
are committing a crime similar to burglary,
but the traditional notion of burglary requires
the criminal personally to enter the victim's premises,
which is not satisfied in the case of entry via data to/from a modem.
Therefore, new laws were enacted to define
(Personally, I think it would have been preferable to change
the definitions in existing concepts, instead of create new
concepts, but no one would accuse the legal profession of honoring
simplicity and economy.)
- Authentication of evidence contained in files on a computer
presents some new problems, because of the ease with which data
in the file can be altered, and also because it is easy to alter
the operating system's date and time stamp in the directory.
- Searches of computer databases provide access to information
that was difficult to locate in the pre-computer age, which makes
computer databases a major new threat to privacy of individuals.
Law reacts slowly to new technology, as discussed in my essay
Law & Technology.
Professor Hugh Gibbons at Franklin Pierce Law Center said
- With the exception of the telephone and typewriter, the technological
revolution of the past century has left the law untouched.
Law has dealt at arm's length with technology, making new rules
to cover air travel, genetic engineering, and the like, while
the lawyers who do the work carry on with paper and pencil
until the advent of the computer.
In looking at the educational background of attorneys, most of them
took the minimum amount of mathematics and science in high school
and college. It is not surprising that people who are ignorant of
science and technology not only avoid using it, but often react fearfully to it.
The few attorneys who have a bachelor's degree in either
engineering, physics, chemistry, or computer science typically
concentrate in patent law, not in tort law.
I have wondered if the flight of attorney-scientists and attorney-engineers
from mainstream law is, at least partly, caused by their disgust and dismay
with arbitrary and unnecessarily complex legal concepts.
Law grows with ad hoc additions, which are often not consistent
with a small collection of philosophical principles in this way
law is unlike science and engineering.
Computer Law includes at least the following subjects:
of Computer Law
- Contract Law
- software license agreements, including "shrinkwrap contracts"
(i.e., software license contract inside box of software)
- business transactions in cyberspace, so-called "e-commerce"
- contracts for data processing services
- contracts for development of custom software or hardware
- Y2K problem as breach of warranty
- Copyright Law
- copyright protection for computer software
- copyright protection for text or pictures on Internet
- Trademark Law
- domain name disputes
- infringement or dilution of trademarks on Internet
- Patent Law
- patents for novel software
- patents for computer hardware
- Tort Law
- trade disparagement, unfair competition law
- duty to maintain secure data (i.e., confidentiality)
- privacy issues in databases
- use of Social Security Number by businesses as identifier,
allowing different records to be merged into a comprehensive
- liability for errors or harmful information in content of databases
- repetitive motion injuries from computer keyboards or mice
- products liability involving computer hardware or software
- Y2K problem
- Computer Crime
- unauthorized use of services
- denial of service (DoS) attacks on web sites
- larceny, malicious mischief, vandalism, etc.
- malicious computer programs (e.g., computer virus, worm)
- pedophiles attracting victims on the Internet
- obscenity (commonly called "pornography")
- harassment by e-mail, stalking in cyberspace
- Utility Law or Telecommunications Law
- possible regulation of Internet Service Providers
- tariffs for Internet traffic via long-distance telephone carriers
- assignment of domain names
- Constitutional Law
- Freedom of speech on the Internet
- Search and seizure law (e.g., contents of computer hard drive, monitoring e-mail, etc.)
In conclusion, Computer Law is a useful designation of
specialized subject area in law, partly because it requires
knowledge of arcane areas in law, and partly because it also requires
an understanding of computer technology (i.e., hardware and software).
This essay began with the observation that there is no such thing as
computer law, just as there was no "law of the horse".
Well, if you search on the Internet for law and horse
you will find a many attorneys who specialize in equine law:
contracts for breeding of a mare or stallion,
malpractice law against veterinarians,
zoning law issues (e.g., are horses pets or livestock?), riding accidents,
sales contracts and insurance for horses, etc.
So, critics who deny that computer law is a legitimate legal specialty
are also wrong in saying that there is no "law of the horse".
This document is at http://www.rbs2.com/cdefn.htm
first posted 30 May 1999, minor revision 24 Jan 2009
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