Lawyer Library: Guide to Cyberspace Law
Cyber Law Definition
Cyberspace law, also referred to as cyberlaw, is a term that encompasses the legal issues related to the communication, distribution, and transactions over the Internet or other networked technologies and devices. This type of law is important to protect consumers and other Internet searchers from ill-willed persons and companies. It egulates many areas within cyberspace law include:
- Cyber crimes
- Intellectual property
- Freedom of expression
- Privacy concerns
Cyber Law Issues
These areas of the law are described in more detail below. California lawmakers were on the forefront of establishing Cyberspace Law precedent when they passed the Online Privacy Protection Act of 2003. Also, additional resources on general cyberspace law can be found by clicking the links below:
- E-Commerce and Tech Law: American Law Institute Elects Former ABA Cyberspace Law Committee Chair: Article on the election of former committee chair.
- Fairness: Internet/Cyberspace Law: Articles and resources on cyberspace law.
- Michigan Bar Journal: A Guide to Searching Cyberspace Law Online: A complete guide to searching cyberspace law online as provided from the Michigan Bar Journal.
- FlashcardDB: Cyberspace Law for Non-Lawyers: Flashcards for non-lawyers who want to know about cyberspace law.
- Optics: Cyberspace Law Information Resources and Internet Law: Complete resource for internet law information.
- Washburn University School of Law: Computer/Cyberspace Law: Additional internet resources on computer and cyberspace law.
Also known as business law, commerce law is a body of laws that govern the conduct of individuals and businesses engaged in commerce, merchandising, trade, and sales. As the Internet continues to dominate all aspects of society, businesses are no exception. Thus e-commerce law has become an exciting new field in the legal arena.
There are common issues that arise within e-commerce law in the world of cyberspace, including:
- Security and digital signatures – Digital signatures and biometrics are now used to ensure that parties to a contact are who they say they are.
- Contract formation – Legal issues arise when forming a contract in an electric forum because it must still adhere to traditional contract laws.
- Liability of internet providers – Internet service providers often face liability when events such as Internet outages occur because they can have devastating effects on contract formation, particularly at the offer and acceptance phase.
E-commerce law also controls how a business is conducted, including the buying and selling of a business. Finally, other areas regulated in both traditional and e-commerce law include, but are not limited to:
- Corporate Contracts
- Hiring practices
- Manufacture and sale of good
- Corporations, partnerships, and limited liability companies
- Merchant and shipping (both by land and sea)
- Fire, life and accident insurance.
When engaging in e-commerce, it's important to consider a state's Internet-tax laws. The default rule in the country is that a business must collect sales tax on Internet sales to customers in those states where that business has a "physical presence."
Some states take this rule many steps further. For example, lawyers in the New York legislature have replaced the words "physical presence" with "nexus," which encompasses much more than actual presence in the state. These types of variations on state laws have a significant impact on how one can legally conduct business.
E-Commerce law lawyers will help ensure that businesses conform to the law, as well as protect the rights of the individuals involved. It is also crucial that those who are interested in forming a start-up business, especially one that focuses on technology, to contact a commercial law lawyer. Additional resources can be found by clicking the links below:
- American Bar Association: Cyberspace Law - Electronic Commerce Law Subcommittee: Information on the electronic commerce law subcommittee at the American Bar Association.
- FindLaw: Cyberspace Law - E-Commerce: Legal resources for e-commerce cyberspace law information.
- Business: Internet Law: Directory of ecommerce law, internet lawyers and other information concerning online legal issues.
- Virginia Journal of Law and Technology: E-Commerce Taxation and Cyberspace Law: PDF document with in-depth information on e-commerce taxation and cyberspace law.
- E-Commerce Web Sites: List of websites as a resource for e-commerce information.
- Cyberspace Law: Learning Cyberlaw in Cyberspace: E-commerce information when learning cyberlaw online.
Cyberlaw regulates cyber-crimes, which is defined as any crime involving a computer or network. The laws protect privacy, access to communications, intellectual property, and freedom of speech related to the use of the Internet, websites, email, computers, cell phones, software, and hardware.
Cyber-crimes are committed with the intent to harm the reputation of a person or company and/or cause physical or mental harm to a person through forums such as chat rooms, emails, notice boards, and blogs. Cyberlaw crimes include:
- Copyright Infringement
- Child pornography and child grooming
- Fraud and financial crimes, including identity theft and extortion
- Drug trafficking
- Violations of privacy and confidential information
Due to the rise in Internet traffic, there has been an increased need for cyber law lawyers. The law varies by jurisdiction and punishment can range anywhere from fines to imprisonment. It is important to note that, even if a violation of a cyber-law does not rise to the level of a crime, it can often be actionable in civil court, such as defamation. Additional resources can be found by clicking the links below:
- Federal Bureau of Investigation: Cyber Crime: Information on the cybercrime unit and department of the FBI.
- United States Department of Justice: Computer Crime and Intellectual Property: Press releases and additional information on cybercrimes as provided by the U.S. Department of Justice's Computer Crime and Intellectual Property section.
- Annual Reports on Cyber Crime Investigation from the International High Technology Crime Investigation Association (IHTCIA).
- Cyber Citizenship: What is Cyber Crime?: Definition and explanation on what cybercrime is.
- Cyber Crime Most Wanted: Website that lists the most wanted cyber criminals.
- Computer Crime Research Center: News and Articles on cybercrime.
- DOD Cyber Crime Center: Cybercrime center at the military U.S. Department of Defense.
Freedom of Expression
Freedom of expression is protected by the First Amendment of the U.S. Constitution which states that “Congress shall make no law . . . abridging the freedom of speech, or of the press.” Freedom of expression includes freedom of speech and applies in some way to any forum, including the Internet. In fact, the internet has made it possible for people to express their views to a world-wide audience with the click of a button. This has been an exciting development for advocates of expanding the right to freedom of expression.
However, hate speech, threats and child pornography have also been able to flourish. It wasn’t until 1996, that the government seriously attempted to regulate any speech on the internet when Congress passed a law to limit pornographic material in cyber space. Although, because freedom of expression is a fundamental right, even this law was partially overturned. Current controversies involving freedom of expression, as it relates to the Internet includes:
- What constitutes a threat (even ridiculing a person on the Internet may constitute a hate crime in Connecticut)
- Restrictions on pornography
- Restrictions on accessing intellectual property
- What constitutes sexual harassment on the internet
Additional resources can be found by clicking the links below:
- Freedom Magazine: Freedom of Speech at Risk at Cyberspace: Article that explains how freedom of speech is at risk on cyberspace.
- Human Rights Education Associates: Freedom of Expression: In-depth information on what the freedom of expression is and the history of it.
- American Civil Liberties Union: Freedom of Expression: Freedom of expression information and speech from the first amendment.
- National Paralegal: Freedom of Expression: Definition of the freedom of expression.
- Law Memo: Freedom of Speech, Cyberspace Harassment Law: Comprehensive information on the freedom of speech, cyberspace, harassment law and the Clinton administration.
- Stanford University: Freedom of Speech, Cyberspace and Harassment Law: PDF document on the freedom of speech, cyberspace and harassment law.
- The Independent Institute: Freedom of Speech: PDF document on the freedom of speech.
Intellectual property refers to “creations of the mind,” such as inventions, literary and artistic works, designs, symbols, names and images used in commerce. Intellectual property law protects the creator’s rights in order to ensure they are the ones financially benefiting from their work. It encompasses:
- Copyrights (literary, musical, dramatic, choreographic, pictorial or graphic, audiovisual, or architectural work, or a sound recording)
- Trademarks (words, names, symbols, devices or any combination thereof used to identify and distinguish goods or services of one company from those sold by others)
- Patents (to protect new inventions, including devices, methods, processes or compositions of matter)
- Trade secrets(confidential business practices or information).
Traditionally, it was very costly, and often required the backing of a powerful corporation, to disseminate information on a global level. However, the Internet now gives this power to single individuals or small businesses. Information placed on a website is accessible from many countries, often without knowledge of the source such information. Important legal issues arises from this circumstance, including:
- Copyright infringement (also known as “piracy”) since it is difficult to locate the original source of the information
- Trademark issues since businesses may offer local services under similar business names or with like logos or slogans and never even know the other exists.
- Jurisdictional issues concerning the question of which nation’s laws apply (since the information can be accessed around the globe).
Although the federal government strongly regulates intellectual property, state laws can vary. For example, in Arizona, a person who produce original work, is granted copyright protection the instant the work is produced or recorded in some way. That person is not required to register the work in order to be protected.
As mentioned, intellectual property laws are traditionally complex and with the increased Internet use it is even more so. Therefore, it is extremely important to contact an intellectual property attorney both when you decide to post your work on the internet and when you suspect your work has been used by another. Intellectual property attorneys also defend those accused using another’s work and representing it as their own. Additional resources can be found by clicking the links below:
- Harvard University: General Information on Intellectual Property Law: List of resources that have more information on intellectual property in cyberspace.
- University of San Francisco: Intellectual Property and Technology Law: Concerns with intellectual property on protection for discovery, creation and invention.
- Stetson University: Intellectual Property and Cyberspace Law Update: Recent law and policy issues.
- Gratz College: Upcoming Intellectual Property Classes: List of upcoming classes on intellectual property at Gratz College.
- Penn State Law: Intellectual Property: Legal links to more information on intellectual property including copyrighting, patent and trademark information.
Cyberspace is rapidly growing and consumes many lives as people engage in social, economic, and political interactions online. However, as technology advances, these interactions allow others to have access to the details of one’s life. Increased surveillance, by both the government and private companies, of all cyber-activities have presented serious threats to information privacy.
Companies sells the information, while the government uses the information to engage in wide-spread surveillance like never before. Many critics of this surveillance argue that it chills free speech and association, undermines freedom of the press and threatens the free exercise of religion. Some tactics used to infringe on privacy rights in cyberspace include:
- Malware is software used to cause damage to a computer, server or network.
- Spyware is software that obtains information from a person’s computer without their consent.
- Web bug’s are placed in a web page or email and tracks a person’s views of website or email message.
- Phishing is the process of trying obtaining user names, passwords, credit card or bank information and can be prosecuted as a crime.
- Pharmingredirects traffic from a website to a different internet address.
- Social engineering are tactics used to trick someone into divulging confidential information.
- WebRTC allows a person’s IP address to be read and is enabled by browsers such as Firefox and Google Chrome.
Many states have expanded federal laws to protect the privacy of Internet users. For example, Colorado lawmakers passed a law that requires any state-operated agency to have a written policy on any monitoring of its email systems, as well as disclose the circumstances under which the monitoring will occur. Additionally, Delaware lawyers have initiated many lawsuits against employers who monitor employee email accounts or Internet access without either their permission or, at the very least, a notice of the monitoring.
Privacy laws can be complicated, especially in the context of cyberspace. A privacy law attorney can assist you in dealing with legal issues with internet privacy rights. Additional resources can be found below:
- Cyber Law Centre: Interpreting Privacy Principles: News, events and recent publications on privacy and cyberspace law.
- The “Making Privacy Laws Work” Project: Information on the privacy project entitled, "Making Privacy Laws Work".
- Georgetown University: Internet Law Research Guide - Privacy: Research information on privacy and the cyberspace laws.
- Privacy Rights Clearinghouse: Online Privacy: Privacy and internet laws – using the internet safely.
- The Right of Privacy and Cyberspace Law: Extensive information on the history of privacy rights and cyber law.