The rise of the Internet has impacted virtually every branch of law and is expected to revolutionize the relationship between law, government, and technology. Central questions concerning Internet-related legal issues include: If cyberspace constitutes a separate legal domain, should there be a separate branch of "cyberlaw" to regulate it? Or should existing laws be reinterpreted to adapt to the special legal circumstances of the electronic world? Alternatively, should the Internet remain free of regulation altogether? How will the Internet affect fundamental principles of civil liberties, commercial relations, and international law?
The terrain of cyberspace creates unique legal dilemmas. The Internet transcends all geographic and political borders, potentially rendering obsolete one of the fundamental tenets of modern law: that laws are created and enforced within discrete, political territories. When users can access online services and information or communicate with individuals all over the world, which legal jurisdiction takes responsibility for disputes that may arise? To what extent should the laws of differing nations—which cover topics as varied as intellectual property and freedom of speech—be harmonized, especially to facilitate international e-commerce?
The branches of law most under discussion at the turn of the millennium included intellectual property, criminal law, conflict of jurisdiction, and the civil liberties issues of privacy and freedom of expression.
Intellectual property (IP)—inventions, artistic creations, and commercial symbols, for example—falls under the branch of law covering protections and rights such as copyrights, patents, trademarks, and trade secrets. Ideally, IP laws balance the rights holder's ability to derive profit from creations with society's interest in the free flow of information. However, the Internet makes it possible to generate numerous, flawless reproductions of digitized information and instantaneously transmit those copies anywhere in the world. This imperils the ability of the rights holder to control how and by whom that information is used. However, erecting stricter protections around intellectual property rights (through, for example, encryption or licensing requirements) might stifle both creative expression and commercial innovation. Copyright and trademark form the nucleus of contested cyberspace-related intellectual property issues.
The U.S. Constitution grants Congress the power to regulate copyright. The basic statute is the Copyright Act of 1976, which protects traditional creative works and online text, image, and sound files. Copyright violations can be prosecuted as civil or criminal offenses, depending on the circumstances, and those committing unintentional or contributory infringement may also incur liability. Subsequent legislation directly addressing copyright in cyberspace included the Copyright Felony Act (1992), which addressed software piracy as a felony; the Digital Performance Right Act (1996), governing inclusion of non-original music on Web sites; the No Electronic Theft Act (1997), which abolished the requirement that a violation had to be committed for financial gain in order to be prosecutable; and the Digital Millennium Copyright Act (1998), which harmonized American copyright law with international law as embodied in the World Intellectual Property Organization's Copyright Treaty. Among other things, DMCA prohibits the circumvention of technology used to block unauthorized access to protected digital content.
In the U.S., the states also regulate copyright. In particular, the Uniform Computer Information Transactions Act (USCITA), introduced in 1999, was adopted by Virginia and Maryland and was under consideration in many other states in the early 2000s. It strictly limits permitted ("fair") free use of copyrighted digital materials, and has been opposed by many groups who fear it could erase copyright exceptions that currently permit unauthorized use of works for scholarly, news, and critical purposes.
Within trademark law, the intellectual-property status of domain names emerged as the leading cyberlaw dilemma. The practice of "cyber-squatting," the bad-faith registration of domain names in the hopes that the namesake will later purchase the name back, spurred new guidelines for registration of domain names. WIPO implemented a swift arbitration procedure to handle international domain-name disputes.
Many international treaties govern IP, including the Berne Convention, the WIPO Copyright Treaty, and the Trade-Related Aspects of Intellectual Property Rights (TRIPs) Agreement. Most industrialized nations provide stronger IP protections than the U.S. Experts predict that e-commerce, globalization, and IP piracy will prompt increased standardization of international IP laws, perhaps at the expense of developing nations.
Crimes committed in connection with the Internet (commonly called "cybercrimes") have attracted widespread attention. Cybercrime encompasses an enormous range of offenses, from hacking to online fraud to child pornography. Generally, cybercrimes either involve traditional crimes committed with computers or crimes in which the computer serves as the "victim" of the illegal act, as in hacking or virus attacks.
The Internet has made certain kinds of criminal activities much more attractive, since cyberspace possesses unique characteristics that may actually encourage the commission of criminal acts. For example, identifying and apprehending an offender is more difficult in cyberspace than in real space; cyber-crimes are often far cheaper to carry out than traditional offenses; the physical risk and expense required to commit crimes are often reduced when they occur in cyberspace; and the impersonality of the Internet may diminish the perpetrator's perception of the impact his or her actions have on the victim of the crime, as well as limit the opportunities that victim has for retaliation. Finally, computers cloak the identity and location of the perpetrator and erasure and encryption software can obliterate virtual evidence. Cybercrimes may also implicate third parties, such as Internet service providers (ISPs).
Though reliable statistics are hard to find since cybercrime incidents are under-reported, many believe cybercrime is accelerating. Recorded computer security breaches increased from six in 1988 to more than 8,000 in 1999, while ten to 15 new viruses appeared daily by the early 2000s. In 2000, the U.S. Department of Defense recorded over 22,000 attacks against its computers.
The basic federal statute, the Federal Computer Fraud and Abuse Act, prohibits unauthorized access to any "protected" computer (basically any computer connected to the Internet) for purposes of espionage, accessing unauthorized information, fraud, and damaging the computers. Online dissemination of child pornography was the focus of much controversial federal legislation, including the Child Pornography Prevention Act (1996). Many state laws criminalize various cybercrimes, among them e-mail crimes and cyber-stalking. The attacks on the World Trade Center and Pentagon on September 11, 2001 swiftly drew international attention to the threat of cyber-terrorism, and the Bush administration enacted sweeping online-surveillance legislation that supporters argued was essential for enhanced national security, but that critics charged ran roughshod over fundamental civil liberties.
European nations were moving toward more comprehensive, anti-cybercrime legislation by 2000. The EU's controversial proposed cybercrime treaty, made public in April 2000, was designed to harmonize European criminal laws on a wide range of computer-related offenses. Any nation's enforcement officials could gain online access to other states to pursue cybercrime investigations. The treaty would also grant European governments extensive powers regarding wiretapping, real-time collection of traffic data, and the search and seizure of digital information.
The global interconnectedness of computer systems and the specter of international terrorism prompted calls for greater cooperation in the fight against cybercrime. In 1998 Britain, Canada, France, Germany, Italy, Japan, Russia, and the U.S. agreed to coordinate efforts to investigate and prosecute cyber-crimes. Proposed solutions included a broad, international treaty that could bring all domestic anticybercrime laws into agreement. But nations differed on the extent to which data encryption should be permitted, since it simultaneously protects the privacy of individual and business information, but may aid cyber-criminals in hiding their activities. They also debated increased governmental surveillance of online communications, a particularly sensitive topic in the aftermath of the World Trade Center and Pentagon attacks of 2001. Such monitoring could help identify cyber-criminals and terrorists, but was construed by privacy advocates and members of various ethic and racial groups as a means of fostering the growth of "police" states and the illegal targeting of specific groups ("profiling"). Finally, digital-content regulation, which might help suppress hate speech or child pornography, is seen as endangering freedom of expression and promoting state-sponsored censorship.
JURISDICTION AND SOVEREIGNTY
Because the Internet enables information to be delivered nearly anywhere in the world, irrespective of the physical locations of the sender, service provider, or recipient, territorial boundaries become virtually meaningless in cyberspace. This creates a basic legal dilemma, however, because historically most laws have been understood to function along territorial lines. Legal sovereignty has traditionally followed national borders and legal jurisdictions have recognized, geographic borders as well. A conflict arises concerning how, and whether, to legally regulate the border-free realm of cyberspace according to territorially bound laws. Furthermore, in an Internet-related dispute, which jurisdiction can claim legal cognizance of the matter when the parties involved can be situated in different parts of the world? Domestic and international laws were a long way from clear solutions in the early 2000s.
CONSTITUTIONAL ISSUES: PRIVACY AND FREEDOM OF EXPRESSION
The U.S. Constitution contains no explicit guarantee of privacy. However, case law establishes privacy rights implicit in the provisions of the Bill of Rights and Fourteenth Amendment. The spread of e-commerce has led many consumers to make their sensitive personal information available on the Web. In the U.S., the security of such information is generally guaranteed by voluntary privacy policies enacted by Web sites themselves and by industry self-policing. Technologies, such as "cookies" track users online habits to compile user profiles. Personal data can be transferred or sold to third parties without an individual's consent or even knowledge.
Some U.S. online privacy-protection laws do exist, such as the Children's Online Privacy Protection Act and the Health Insurance Portability and Accountability Act of 1996, but they have been difficult to implement.
Many European nations possess data-protection laws that govern an individual's rights over the use of personal information stored in computers. The European Union's Data Protection Act (1998) mandates that Web sites gathering personal information about users must notify individuals of this practice and user consent is required to collect sensitive, personal data. In addition, member states are directed to block data transmissions to other countries, including the U.S., if they are deemed to lack adequate privacy protection laws.
The U.S. and the EU worked out a compromise, "safe-harbor" agreement to resolve the problem. American companies can transmit data online to EU members as long as their privacy policies accord with certain EU privacy-protection principles. Participation is voluntary, with the American businesses registering their compliance with the U.S. Department of Commerce.
Online marketers and law-enforcement agencies often oppose enhanced privacy protection, because it impedes their ability to gather data in cyberspace. New technologies, such as IPV6, may further erode the anonymity of Internet users by using expanded IP addresses that include the unique serial number of each computer's network-connection hardware, imprinting each data transmission with a user's "electronic fingerprint."
Monitoring of digital communications had been a touchy subject, but after September 11, 2001, governmental leaders moved quickly to reinforce the security of information networks and to deploy greater Internet surveillance in hopes of identifying and tracking suspected terrorists. In October 2001, the Bush administration passed anti-terrorism legislation that established the basis for a massive, domestic intelligence-gathering system incorporating the FBI, CIA, and Treasury Department law enforcement agencies. It decreased legal privacy safeguards in place since Watergate, and permitted governmental agencies freer rein in gathering electronic information and financial records and monitoring Internet communications, sometimes even without a warrant. The move set off alarms among critics concerned about the erosion of privacy rights.
The other constitutional issue at the forefront of cyberlaw debates was the extent to which expression should be regulated online. The founding vision of the Internet was as an untrammeled information super-highway. To a great extent, First Amendment free-speech guarantees fostered this attitude in the U.S., where online content has not been highly regulated. The exceptions concerned speech considered harmful to minors, which was addressed by the 1996 Communications Decency Act and the 1998 Child Online Protection Act; both laws faced First Amendment challenges. Filtering software has also been used to shield certain users from undesirable online content.
Other countries showed less reluctance to regulate online content, particularly hate speech directed against specific groups. Many EU members, such as Germany and France, prohibit Web sites from featuring pro-Nazi messages, for example. And China erected a "Great Firewall" that blocks access to unacceptable sites worldwide. This approach generated wide disagreement between many nations and the U.S., home to many sites deemed "undesirable" or "harmful."
In 2000, the Supreme Court ruled that computer source code qualified as protected speech under the First Amendment. However, the court also recognized the government's legitimate interest in regulating source code, especially in circumstances where national security interests were at stake.
CONCEPTIONS OF CYBERLAW
Some observers have asserted that cyberlaw does not exist, since few of the legal issues raised by the Internet are novel and few branches of law are determined by technology. However, others argue that cyberspace should be considered different from real space, as far as legal issues are concerned. Furthermore, since the Internet transcends territorial boundaries, it renders territorially based laws obsolete. They predict that cyberlaw will become a new form of transnational law, ushering in greater standardization of Internet-related legal regulations worldwide to accommodate e-commerce, globalization, and the spread of western, democratic ideals. Some view this as the opportunity for greater freedoms, security, and prosperity to be extended to more people around the globe. Others, however, fear that such a trend will infringe on national sovereignty and legal jurisdictions. Finally, they caution that cyberlaw will benefit the interests of large, multinational businesses and police surveillance, rather than the civil liberties of individual citizens.
Gilden, Michael. "Jurisdiction and the Internet: The Real World Meets Cyberspace." ILSA Journal of International & Comparative Law, Fall 2000.
"The Internet and the Law: Stop Signs on the Web." Economist, January 13, 2001.
Johnson, David and David G. Post. "Law and Borders: The Rise of Law in Cyberspace." Stanford Law Review, vol. 48, 1996. Available from www.temple.edu/lawschool.
Kaplan, Carl. "How to Govern Cyperspace: Frontier Justice or Legal Precedent?" New York Times Cyberlaw Journal, 1998.
Katyal, Neal Kumar. "Criminal Law in Cyberspace." University of Pennsylvania Law Review, April 2001.
Hongju Koh, Harold. "The Globalization of Freedom." Yale Journal of International Law, Summer 2001.
Lessig, Lawrence. Code and Other Laws of Cyberspace. New York: Basic Books, 1999.
Sommer, Joseph. "Against Cyberlaw." Berkeley Technology Law Journal, Fall 2000.
Tsesis, Alexander. "Hate in Cyberspace: Regulating Hate Speech on the Internet." San Diego Law Review, Summer 2001.
The question of who owns tissues, DNA, and other biological materials raises numerous legal questions. One concern is that genetic information derived from someone's DNA sequences could be used to deny insurance coverage to people whose genes indicate that they have a disease or that they are at risk of contracting one.
Another concern is that the profits made by hospitals and transplant centers for transplantation procedures are unfair, as tissue donors and their families are typically not compensated, despite the fact that these donors often pay for the operations that provide the materials. There is a question of who should profit from such materials: those from whom the materials were originally derived or those who use the materials to treat other patients or conduct research.
In the criminal setting, genetic testing provides the opportunity to identify criminals. Through storage of DNA and DNA analysis data, old, unsolved cases can sometimes be resolved. DNA analysis is also useful for exonerating wrongly accused individuals, including those who have served significant jail time for crimes they did not commit. However, there is concern regarding the potential abuses of DNA data stored by law enforcement agencies. There is also concern that stored genetic material will be used to clone people. Additional concerns center on the safety and risks of genetically modified foods.
Ownership of Tissues
The issue of ownership of tissues was addressed in California in the case Moore v. Regents of the University of California. Moore underwent treatment for leukemia at the University of California at Los Angeles Medical Center. His spleen was removed, and his cells were cultured without his consent. Eventually, he sued the medical center over the ownership of the cell line that was developed from his spleen cells.
The California Supreme Court refused to recognize Moore's ownership of the cell line, pointing to the investment the medical center made to develop it. The court did not place much weight on financial or other contributions Moore made to the development of the cell line.
The court indicated that recognizing a patient's right to own such cells would chill medical research, as scientists would be required to determine the originators of each cell culture they use. Because of the large number of cell cultures used, such a requirement would be burdensome and expensive, and it would potentially halt important research, the court said. The court also noted that researchers establishing cell lines are increasingly using contracts to clarify patent and ownership rights, though in Moore's case none was signed.
DNA testing has proven to be a very valuable tool for convicting criminals, as well as for exonerating falsely accused individuals. The methods used to analyze DNA, as well as the implications of the results of such analyses, are still being standardized and are almost always questioned in court by at least one party, but they are becoming increasingly accepted and refined for use in criminal law.
Despite the usefulness of genetic testing, there are various concerns about privacy and the potential for discrimination. There are also some concerns about the consequences if insurance companies, employers, or other entities have access to such personal data.
Genetic material obtained from individuals is often used in developing patentable inventions. These patents are filed by the scientists who develop the materials and methods that utilize the genetic information. Cells obtained from a person with a rare disease, for example, might be used to develop tests to detect the disease as well as methods and materials for treatment. The patent rights are granted to the scientists who develop the tests, methods, and materials, rather than to the patient who was the source of the cells.
A patient might consider negotiating for an ownership interest in the cells. But very few patients are in a position to do so. They often are afraid that such negotiations would result in denial of treatment. Also, since it is illegal in the United States to sell organs and tissues, agreements involving ownership in such cases could be seen as falling afoul of the law.
Kamrin T. MacKnight
Lewis, Ricki. Human Genetics: Concepts and Applications, 4th ed. Boston: McGraw Hill,2001.
Human Genome Project Information: Ethical, Legal, and Social Issues. U.S. Department of Energy. <http://www.ornl.gov/hgmis/elsi/elsi.html>.
This section contains a diverse collection of legal, political, and historical information, most of which is organized in tabular form and in chronological order.
The tables provide readers with precise dates of the reigns of British monarchs and the terms of service of U.S. Supreme Court justices, presidents, vice presidents, and attorneys general. Readers may, for example, consult the succession of Supreme Court justices to determine which justices were on the Court when a major case was decided.
Using a chronological sequence, the congressional timeline links pertinent information about the House of Representatives and the Senate (size, political parties, procedural matters) with major court cases, laws, and investigations. Wars, presidential eras, and developments in science, technology, and communications are included as well.
The following tables are included:
- Presidents and Vice Presidents of the United States
- Presidential Nominations to the Supreme Court
- Time Chart of the Supreme Court
- Succession of Supreme Court Justices
- U.S. Attorneys General
- Congressional Timeline: Nineteenth Century
- Congressional Timeline: Twentieth Century
- British Regnal Years