Cyberlaw

Sumber:http://en.wikipedia.org/wiki/Cyberlaw

Cyberlaw is a term that encapsulates the legal issues related to use of communicative, transactional, and distributive aspects of networked information devices and technologies. It is less a distinct field of law in the way that property or contract are, as it is a domain covering many areas of law and regulation. Some leading topics include intellectual property, privacy, freedom of expression, and jurisdiction.
Contents
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* 1 Jurisdiction and sovereignty
* 2 Net neutrality
* 3 Free speech in cyberspace
* 4 Governance
* 5 Internet regulation in other countries
* 6 The Creation of Privacy in Cyber-Law
o 6.1 Warren and Brandeis
o 6.2 The Reasonable Expectation of Privacy Test and Emerging Technology
* 7 Current US privacy legislation
o 7.1 (1974) Privacy Act
o 7.2 (1978) Foreign Intelligence Surveillance Act
o 7.3 (1986) Electronic Communication Privacy Act
o 7.4 (1994) Driver’s Privacy Protection Act
o 7.5 (1999) Gramm-Leach-Bliley Act
o 7.6 (2002) Homeland Security Act
o 7.7 (2004) Intelligence Reform and Terrorism Prevention Act
* 8 See also
* 9 References
* 10 Further reading
* 11 External links

[edit] Jurisdiction and sovereignty

Issues of jurisdiction and sovereignty have quickly come to the fore in the era of the Internet. 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.[1] As such, a single transaction may involve the laws of at least three jurisdictions: 1) the laws of the state/nation in which the user resides, 2) the laws of the state/nation that apply where the server hosting the transaction is located, and 3) 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.[2]

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".[3]. 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!"[4] 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).

Though rhetorically attractive, cyber secession initiatives have had little real impact on the Internet or the laws governing it. 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 (see Free Speech), 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.
[edit] 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 Barlow 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.
[edit] Free speech in cyberspace

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.

Recently, 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" [5].

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" in order to "...generate a credible picture of these practices," has released numerous reports documenting the filtration of internet-speech in various countries. While China has thus far proven to be the most rigorous in its attempts to filter unwanted parts of the internet from its citizens,[6] many other countries - including Australia, 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 [7]. These examples of filtration bring to light many underlying questions concerning the freedom of speech, namely, does the government have a legitimate role in limiting access to information? And if so, what forms of regulation are acceptable? The recent 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.

In the UK the case of Keith-Smith v Williams confirmed that existing libel laws applied to internet discussions.[8]

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.[9]
[edit] Governance

The unique structure of the Internet has raised several judicial concerns. While grounded in physical computers and other electronic devices, the Internet is independent of any geographic location. While real individuals connect to the Internet and interact with others, it is possible for them to withhold personal information and make their real identities anonymous. 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.

In their essay "Law and Borders -- The Rise of Law in Cyberspace",[10], David Johnson and David Post offer a solution to the problem of Internet governance. Given the Internet's unique situation, with respect to geography and identity, Johnson and Post believe that it becomes necessary for the Internet to govern itself. 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. Since the Internet defies geographical boundaries, national laws will no longer apply. Instead, an entirely new set of laws will be created to address concerns like intellectual property and individual rights. In effect, the Internet will exist as its own sovereign nation.

Even if the Internet represents a legal paradigm shift, Johnson and Post do not make clear exactly how or by whom the law of the Internet will be enforced. Instead, the authors see market mechanisms, like those that Medieval merchants used, guiding Internet citizens' actions like Adam Smith's invisible hand. Yet, as more physical locations go online, the greater the potential for physical manifestation of electronic misdeeds. What do we do when someone electronically turns off the hospital lights?

However, there is also substantial literature and commentary that the internet is not only “regulable,” but is already subject to substantial regulation, both public and private, by many parties and at many different levels. Leaving aside the most obvious examples of internet filtering 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:

1. 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 governance regulations such as the Sarbanes-Oxley Act.
2. 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.
3. 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.
4. 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.

[edit] Internet regulation in other countries

While there is some United States law that does restrict access to materials on the internet, it does not truly filter the internet. 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. China, Saudi Arabia and Iran are three excellent examples of nations that have achieved high degrees of success in regulating their citizens access to the internet.[11][6]

In India Cyber Law is largely governed by the Information Technology Act 2000. The act was recently amended in 2008.The act which is there to ostensibly promote electronic commerce also provides for penalties and criminal offenses.
[edit] The Creation of Privacy in Cyber-Law
[edit] Warren and Brandeis

At the close of the 19th Century, concerns about privacy captivated the general public, and led to the 1890 publication of Samuel Warren and Louis Brandeis: “The Right to Privacy”[12]. 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. [13]

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]
[edit] The 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 exibit an “actual (subjective) expectation of privacy” and 2) “the expectation [must] be one that society is prepared to recognize as ‘reasonable.’” [12]
[edit] Current US privacy legislation
[edit] (1974) Privacy Act

Inspired by the Watergate scandal, 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
[edit] (1978) Foreign Intelligence Surveillance Act

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. 50 U.S.C. § 1804(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
[edit] (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 1968) 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

*
o ‘’’Wire Communication:’’’ Any communication containing the human voice that travels at some point across a wired-medium :::: such as radio, satellite or cable.
o ‘’’Oral Communication:’’’
o ‘’’Electronic Communication’’’

1. ‘’’The Wiretap Act:’’’ For Information See Wiretap Act
2. ‘’’The Stored Communications Act:’’’ For information see Stored Communications Act
3. ‘’’The Pen Register Act:’’’ For information see Pen Register Act

[edit] (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
[edit] (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. 15 U.S.C. §6801.[12] For More Information See: Gramm-Leach-Bliley Act
[edit] (2002) Homeland Security Act

-Passed by Congress in 2002, the Homeland Security Act, 6 U.S.C. §222, 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
[edit] (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 in order 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
[edit] See also

Centers and groups for the study of cyberlaw and related areas

* Berkman Center for Internet and Society at Harvard Law School
* Norwegian Research Center for Computers and Law
* Stanford Center for Internet and Society, at Stanford Law School
* The Centre for Internet and Society, in Bangalore, India.
* Center for the Study of the Public Domain and Intellectual Property and Cyberlaw Society at Duke Law School

Topics related to cyberlaw

* Copyright, especially the Digital Millenium Copyright Act in the United States, and similar laws in other countries
* Digital Rights Management
* File sharing
* Intellectual property
* Internet censorship
* Spamming
* The Law of Cyber-Space (book)

Conferences related to cyberlaw

* State of Play, a conference series put on by the Institute for Information Law & Policy at New York Law School, concerning the intersection of virtual worlds, games and the law.

[edit] References

1. ^ Trout, B. (2007). "Cyber Law: A Legal Arsenal For Online Business", New York: World Audience, Inc.
2. ^ Emerging Technologies and the Law: Forms and Analysis, by Richard Raysman, Peter Brown, Jeffrey D. Neuburger and William E. Bandon, III. Law Journal Press, 2002-2008. ISBN 1-58852-107-9
3. ^ Barlow. "A Declaration of the Independence of Cyberspace". http://homes.eff.org/~barlow/Declaration-Final.html.
4. ^ "An Introduction to Cybersecession". http://editthis.info/cybersecession/An_Introduction_to_Cybersecession.
5. ^ Zittrain, Jonathan (2003). "Be Careful What You Ask For: Reconciling a Global Internet and Local Law". http://papers.ssrn.com/sol3/papers.cfm?abstract_id=395300.
6. ^ a b "All Content related to China". OpenNet Initiative. http://www.opennetinitiative.net/studies/china/.
7. ^ "Google Replacements". Harvard. http://cyber.law.harvard.edu/filtering/china/google-replacements/.
8. ^ Gibson, Owen (March 23, 2006). "Warning to chatroom users after libel award for man labelled a Nazi". The Guardian. http://www.guardian.co.uk/law/story/0,,1737445,00.html.
9. ^ Myers KS (Fall 2006). Wikimmunity: Fitting the Communications Decency Act to Wikipedia. 20. pp. 163. http://ssrn.com/abstract=916529.
10. ^ "Law and Borders - The Rise of Law in Cyberspace". http://www.cli.org/X0025_LBFIN.html.
11. ^ "All Content related to Saudi Arabia". OpenNet Initiative. http://www.opennetinitiative.net/studies/saudi/.
12. ^ Warren & Louis Brandeis, The Right to Privacy , 4 Harv. L. Rev. 193 (1890)
13. ^ Solove, D.,Schwartz, P.. (2009). Privacy, Information, and Technology. (2nd Ed.). New York, NY: Aspen Publishers. ISBN: 978-0735579101.

[edit] Further reading

* Code and Other Laws of Cyberspace, The Future of Ideas, and Free Culture by Lawrence Lessig
* 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

[edit] External links

* Cyber, War and Law
* 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

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Categories: Computer law | Cyberspace