Information Technology Laws

[Minette Mccandrew]

Informationtechnology law (IT law), also known as information, communication and technology law (ICT law) or cyberlaw, concerns the juridical regulation of information technology, its possibilities and the consequences of its use, including computing, software coding, artificial intelligence, the internet and virtual worlds. The ICT field of law comprises elements of various branches of law, originating under various acts or statutes of parliaments, the common and continental law and international law. Some important areas it covers are information and data, communication, and information technology, both software and hardware and technical communications technology, including coding and protocols.

Due to the shifting and adapting nature of the technological industry, the nature, source and derivation of this information legal system and ideology changes significantly across borders, economies and in time. As a base structure, Information technology law is related to primarily governing dissemination of both (digitized) information and software, information security and crossing-border commerce. It raises specific issues of intellectual property, contract law, criminal law and fundamental rights like privacy, the right to self-determination and freedom of expression. Information technology law has also been heavily invested of late in issues such as obviating risks of data breaches and artificial intelligence.

Information technology law can also relate directly to dissemination and utlilzation of information within the legal industry, dubbed legal informatics. The nature of this utilisation of data and information technology platform is changing heavily with the advent of Artificial Intelligence systems, with major lawfirms in the United States of America, Australia, China, and the United Kingdom reporting pilot programs of Artificial Intelligence programs to assist in practices such as legal research, drafting and document review.

IT law does not constitute a separate area of law; rather, it encompasses aspects of contract, intellectual property, privacy and data protection laws. Intellectual property is an important component of IT law, including copyright and authors' rights, rules on fair use, rules on copy protection for digital media and circumvention of such schemes. The area of software patents has been controversial, and is still evolving in Europe and elsewhere.[1][page needed]

The related topics of software licenses, end user license agreements, free software licenses and open-source licenses can involve discussion of product liability, professional liability of individual developers, warranties, contract law, trade secrets and intellectual property.

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 within the United States is also controlled.[2]

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.

Global computer-based communications cut across territorial borders; issues of regulation, jurisdiction and sovereignty have therefore quickly come to the fore in the era of the Internet. They have been solved pretty quickly as well, because cross-border communication, negotiating or ordering was nothing new; new were the massive amounts of contacts, the possibilities of hiding one's identity and sometime later the colonisation of the terrain by corporations.[3]

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. The medium of the Internet, like electrical telegraph, telephone or radio, does not explicitly recognize sovereignty and territorial limitations.[4][page needed] There is no uniform, international jurisdictional law of universal application, and such questions are generally a matter of international treaties and contracts, or conflict of laws, particularly private international law. An example would be where the contents stored on a server located in the United Kingdom, by a citizen of France, and published on a web site, are legal in one country and illegal in another. In the absence of a uniform jurisdictional code, legal practitioners and judges have solved these kind of questions according the general rules for conflict of law; governments and supra-national bodies did design outlines for new legal frameworks.

Whether to treat the Internet as if it were physical space and thus subject to a given jurisdiction's laws, or that the Internet should have a legal framework of its own has been questioned. Those who favor the latter view often feel that government should leave the Internet to self-regulate. American poet 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".[5] Another view can be read from a wiki-website with the name "An Introduction to Cybersecession",[6] that argues for ethical validation of absolute anonymity on the Internet. It compares the Internet with the human mind and declares: "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!"[7] The project is defining "you" as "all governments", "we" is undefined. Some 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).[citation needed]

With the internationalism of the Internet and the rapid growth of users, jurisdiction became a more difficult area than before, and in the beginning 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 areas of fundamental rights such as freedom of speech and privacy, via state censorship, to criminal law with libel or sedition.

The frontier idea that laws do not apply in "cyberspace" is however not true in a legal sense. 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 both Internet technology (hardware), the providers of services and its users remain in physical jurisdictions and are subject to laws independent of their presence on the Internet.[8] 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 that lives in the United Kingdom, through a server in Canada, could theoretically be subject to the laws of all three countries and of international treaties as they relate to the transaction at hand.[9]

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., in 1997, 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 English court system, where the burden of proof for establishing defamation may make the case more favorable to the plaintiff.

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.

As of 2020, the European Union copyright law consists of 13 directives and 2 regulations, harmonising the essential rights of authors, performers, producers and broadcasters. The legal framework reduces national discrepancies, and guarantees the level of protection needed to foster creativity and investment in creativity.[10] Many of the directives reflect obligations under the Berne Convention and the Rome Convention, as well as the obligations of the EU and its Member States under the World Trade Organisation 'TRIPS' Agreement and the two 1996 World Intellectual Property Organisation (WIPO) Internet Treaties: the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty. Two other WIPO Treaties signed in 2012 and 2016, are the Beijing Treaty on the Protection of Audiovisual Performances and the Marrakesh VIP Treaty to Facilitate Access to Published Works for Persons who are Blind, Visually Impaired or otherwise Print Disabled. Moreover, free-trade agreements, which the EU concluded with a large number of third countries, reflect many provisions of EU law.

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