What is Cyber Law?

Whenever I talk to other lawyers, I have had the point driven home that even other lawyers don't really know what a computer and Internet attorney does. Tell another lawyer that you do real estate law and you've made your point. Tell him that you do computer law and the conversation has just begun. It's certainly a new field, and I'm going to tell you what it's all about.

I know that other lawyers can relate to meeting people and one of the first things they ask is, "What do you specialize in?" When I say that my practice is limited to computer and Internet law, they give me funny looks. The most common response I get is, "I never heard of that." Sometimes, I'll say Cyber Law and they look at me like I said, "My name is E.T."

Computer and Internet law is a specialty that's developed because of the new and unique legal issues that arise from the use of computers and the Internet. It's a multidisciplinary area that encompasses areas including contract, tort, copyright, employment, trademark, constitutional, banking and criminal law, and civil procedure.

In some ways, it's a narrow area in that it deals with just computer-related topics. In other ways, it requires a lawyer to be a jack of all trades who must be prepared to shift gears from "How do I protect my copyright in that software," to negotiating a complex contract for an Internet virtual store, to "Can I read my employees' email?"

Basic Legal Issues Touched

Computers are more than just a new technology. They are a major force in a large-scale cultural change. They touch everything that we do and raise fascinating new legal issues along the way. Even the most basic legal concepts are effected. For example, until computers arrived, only people could agree to a contract. Whether a person signed it, said "I agree," or formed a contract through their conduct, it generally took a volitional act by a person. Last time I checked, animals, children and inanimate objects, except computers, didn't have the power to contract.

With the growth of electronic commerce and automated systems, however, computers that talk to one another across networks can enter into agreements without human intervention. Orders are being placed by computers directly to other computers. Goods are bought and money is spent. What happens when the computer makes a mistake and orders a million widgets instead of one thousand? What happens when the computer acts bizarrely and breaches a contract? New laws are being made to handle these revolutionary situations.

Litigation

Unfortunately, much of what I see as a Cyber Lawyer is a disaster. It typically starts as a business deal and a contract that is devoid of essential terms. Businesses invest large sums of money in technology. They do things like buy complex networks and set up websites, outsource basic data processing functions, and have software custom developed for them. And they do it with horrendous contracts.

This area is so new that the contracts I see are not so much one-sided for the vendor as just plain bad. Sometimes it's "Our sales manager writes our contracts." (I've heard this one from pretty big companies. The names are suppressed to protect the guilty.) Sometimes, it's "Our general corporate lawyer created the form." The simple fact is that to write a good agreement in this field requires an understanding of the technology, the customs and practices of the industry, and some very new law.

The poorly written contracts common in the computer industry create disputes because the parties can't figure out the terms of the deal from the written agreement. It's true that lawyers write contracts so that their client has an enforceable agreement to sue on in case a deal goes south. But more importantly, they write contracts because a well-written agreement can prevent disputes by clearly stating the terms the parties have agreed to, leaving little to fight about.

A good computer contract answers questions like: what should the system do? How fast should it do it? How should it do it? What options will be available to the user? What are the testing criteria for accepting the new hardware or software? What's the warranty? What are the limitations of liability? Who owns the copyright? How will the user support our system if the vendor goes out of business? What reports will the user be able to create? What if a disaster destroys the data center? Will the system work in the year 2000? What if the data gets corrupted? How long will it take to download a home page over the Internet?

These are just a few of the basic questions that I often see unanswered in computer and Internet-related contracts. These questions also provide a flavor of what Cyber Law is about.

The Computer and Internet Industry

Cyber Law is also about representing companies in the computer industry. Internet service providers (ISPs), computer manufacturers and distributors, software and website developers, network integrators, and others within the industry look to Cyber Lawyers for advice.

It might be for creating a one-sided form contract for their routine business, or custom writing a contract for a large and complex deal. It might be about such issues as protecting, licensing or selling the intellectual property rights of the company, or how to set up electronic commerce procedures that create legally binding contracts."

It could be that an Internet service provider (a company that helps you hook up to the Internet) is concerned about liability for misdelivered email, a user who is using their system to send defamatory emails, or a subpoena from the FBI for information about a subscriber. Increasingly, ISPs need help to either buy a competitor or sell their business.

Uniquely Internet Issues

The last few years have seen an explosion of requests for advice in what I label as purely Internet law. In the last few months, the hottest issue is gambling on the Internet.

For the benefit of the uninitiated, gambling on the Net is experiencing explosive growth. States and the federal government are still pondering how to regulate this activity. Much of this activity is being run by Americans' setting up operations offshore.

While the government ponders, entrepreneurs are seizing this window of opportunity to make money. Their bottom-line question: "Can I do it and stay out of jail?"

Fascinating questions of international law, jurisdiction and the regulation of interstate commerce arise from gambling on the Net. For example, if you have a website hosted on a computer in Nevada, can you be arrested in California for accepting bets from California?

Jurisdiction (the power or authority to interpret and apply law) is a quickly evolving concept in Internet law.

Courts are still trying to find the answers when it comes to scenarios like the following: ABC Inc. is incorporated in Delaware and has a website, hosted on a computer in Texas, from which it sells products. It sells to one person in Washington. Does a Washington court have jurisdiction over ABC? Does the mere fact that a website can be viewed from anywhere in the world give every court jurisdiction? The answers are unclear and developing.

Cyber Law is all about integrating computers, the Internet and cyberspace into our economy and legal system. It's about creating predictable results through clear contracts and laws.

Where we are today is that much of Cyber Law remains unclear and speculative. Today, Cyber Law is as much about knowing what the law is now, as knowing enough about trends and customs to predict where it's going tomorrow.