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Mark Grossman

What is 'Tech Law' Anyway?

12 October 2000

I started describing myself as a lawyer with a practice that focused on "computer and tech law" over ten years ago. When I'd tell people this, they'd look at me somewhat quizzically. You know--the same look you would expect if you'd just told them that ET was in your yard.

After that "look" went away, they would typically ask me two questions. What exactly is a "computer lawyer" and can you make money doing it?

As for the second question, nobody ever asks me that anymore. A decade ago, I'd say, "Sure you can. Really! Don't look at me that way. You can!"

At least I hoped so.

What's in a Name?

A lot's changed in 10 years. In that time, I've watched this area go through many incarnations even in its names.

The list is long and includes Internet law, e-commerce law, cyberlaw and tech law. The names reflect the evolution of what was hot in the area.

To some extent, we still use all these names. The only one that hasn't aged well is "cyberlaw."

A few years ago, "cyberlaw" sounded right. Today, it sounds "old-fashioned" like the "Information Superhighway" (Where did it go?) and the word "groovy." ("Groovy" may have been a kewl word when you were a kid, but today saying it is a sure way to get that "You're a 'dork' look" from your kids -- and your friends too.)

A decade ago, a computer lawyer did things like contracting for custom software development, intellectual property (heavy on the copyright side and light on the patent side) for software, and technology related litigation.

While any good litigator can handle the "network is dead" lawsuit, it takes a bit more finesse and knowledge to handle the "network is slow," "the software crashes too often" or "the system is not performing to our expectations." One of the problems with tech litigation is that you have to litigate these mushy issues all too often.

The specialty developed (the Florida Bar doesn't yet technically recognize it as a specialty) because people were spending big money on technology and the typical lawyer in 1990 viewed the computer as the $3000 typewriter on his secretary's desk.

One of the results of most lawyers being technologically challenged was that they were completely unprepared to deal with the contracting and litigation that arose from tech deals. You can't even ask the right questions if you're clueless.

Tech law, or whatever you want to call it, has exploded in the last five years. It reflects the way technology and particularly the Internet have entered our lives.

It really wasn't that long ago that TV commercials and billboards weren't obliged to send you to You don't have to think back too far to remember when the high-profile Super Bowl commercials were for Bud and Pepsi not

What Tech Law Has Become

Tech law today is still about the same things I did a decade ago, but now it's so much more. New issues seem to arise everyday and inevitably it takes awhile for the answer to evolve.

What's scary about this process of legislating is that the Internet and technology have wrought many fundamental changes to our society and, in many cases, the people legislating know so little about the e-world. I have a problem with Internet related legislation being influenced by a guy who thinks that surfing the Web means watching his grandkids play on AOL.

E-Commerce Law

The hot issues evolve, but today include e-commerce and privacy.

As e-commerce grows, businesses want to decrease their reliance on paper and old ways of doing business. The problem is that the law has been playing catch-up.

For example, businesses have clamored for years for assurances that a contract "signed" electronically was as real and enforceable as a traditional paper contract. All too often tech lawyers haven't been able to provide that complete assurance because the law was unclear and undeveloped. Now this area is getting legislative attention.

Privacy Online

Real people want to know what happens to the digital data they provide to websites. They offer some of it voluntarily by answering questions like name and address. Some websites collect information, like "clickstream" data, without the surfer's knowledge.

"Clickstream" is a type of information collection that makes some people uncomfortable. Literally, it's a record of your clicks. It may tell a website things like from what website you came, what you clicked on while in their website and what website you went to after leaving their site.

Is this an invasion of privacy? Should the collection of this data be disclosed? These are some of the hot and heavy issues we'll see legislation addressing in the near future.

Businesses ask tech lawyers things like what data they can collect, what can they do with it once they have it and what must their privacy policy say? In many cases, the answers from even a year or two ago are wrong today. That's how fast things are changing.

So, what's tech law? It's a legal area that's developed because of the new and unique legal issues that arise from the use of computers and other technology.

It's a multi-disciplinary area that encompasses things like contract, tort, copyright, employment, trademark, constitutional, banking and criminal law. In some ways, it's a narrow area in that it deals with only technology-related issues. In other ways, it requires a lawyer to be a jack of all trades.

What is 'Tech Law' Anyway? is republished from
Mark Grossman
Mark Grossman