Electronic Law

Abstract

This article will provide a synopsis of the emerging and rapidly changing area of electronic law. The overview provides an introduction to the basic legal framework governing electronic law and some of the most important issues that courts and legislators have addressed in creating law for the dynamic landscape of electronic communication and commerce. These issues include the scope of electronic law as it relates to jurisdiction, cyber crimes, and criminal liability. Other issues at the forefront of electronic law that this article examines include privacy and security rights and intellectual property protections. In addition, this article will describe some of the factors affecting the development of electronic law, such as whether taxation of e-commerce transactions is warranted, how electronic laws will adapt to emerging technologies, and the development of a legal process to regulate the booming world of e-commerce. Finally, a brief examination of how technology is infiltrating modern life and raising significant questions about how electronic law can both protect the privacy rights of individuals while promoting the growth of technology and business development is provided through descriptions of the legal issues surrounding RFID devices, electronic surveillance, and privacy protections of personal, medical, and financial records.

Overview

The world of e-commerce is expanding and increasingly important. As businesses have developed an online presence, their ability to provide an efficient platform for customers to make purchases and gather basic information has improved dramatically, increasing both the profile of businesses and their sales volume. In addition, email has enabled vendors, customers, businesses, and employees to communicate with one another from anywhere in the world at almost no cost. This capability has allowed businesses of almost any size to see the world as their marketplace. However, these changes have also raised significant questions about how the elusive and intangible world of electronic communication, information, and commerce can be regulated by law—as well as what body of law should regulate the electronic environment when it functions outside the realm of the traditional physical boundaries that divide nations, states, and cities.

The legal system has struggled to keep up with the changes occurring in the online environment. Yet even as lawmakers and the courts strive to answer the difficult questions that are commonplace in the area of electronic law, technological advancements continue to develop at a rapid pace, generating even more difficult issues that the law will need to address. Never before has the law had to be developed and adapted so quickly to new business practices and technological capabilities. Since the late 1990s, a body of electronic law has been evolving out of traditional legal principles as courts extract legal precedents and attempt to apply them to the issues raised by emerging legal questions. In spite of the development of new fields of business and commerce, the basic principles of law remain relatively constant, and the rise of electronic law has largely found its place firmly entrenched in the legal framework that has governed the United States since its inception.

The following sections provide a more in-depth explanation of these concepts.

Scope of Electronic Law

Jurisdiction & Procedure. The internet's capacity to transcend political and geographic boundaries makes it revolutionary—and problematic for settling jurisdictional questions in legal disputes. This is because jurisdiction, or the power of a court to hear and settle only those matters that arise from within its boundaries, has traditionally been based on geographic demarcation. Courts have personal jurisdiction over people who reside or do business within a given state or territory and lack the power to assert a legal judgment over an individual who has insufficient contacts with its boundaries. For a court to compel a defendant to appear before it, the defendant must have had some dealings within the state to create minimum contacts, such as establishing a residence, opening a business, or even committing a crime. Thus, if the only connection a defendant has to a given jurisdiction is an advertisement on a website that can be seen from anywhere that the internet is accessible while the defendant lives miles away, this raises the question as to whether there are sufficient minimum contacts for a court to resolve disputes arising from the advertised website or the defendant's services.

For instance, this question could arise in the following scenario: assume Bob lives in Montana and Barbara lives in New York. Barbara has never been to Montana or done business with anyone in Montana. However, she advertises her business on the internet, and her website can be viewed from anyone who has online access. One day, Bob finds Barbara's website, and through a series of events, a legal dispute arises between Bob and Barbara. Bob files a suit against Barbara in a Montana state court. At this point, the Montana court must decide, before it even addresses the merits of the case, whether it even has jurisdiction over someone who has never been to Montana but whose website can be viewed by any Montana internet users.

The court could argue that Barbara should know that her website could be accessed by residents of Montana, and by advertising her business on the internet, she should reasonably expect to be called into court from anywhere her advertisement could be viewed. This interpretation of existing jurisdictional law would subject anyone who advertises services online to the possibility of facing a lawsuit anywhere that the site can be accessed. Yet some courts have upheld the exercise of jurisdiction based on mere accessibility of a website. On the other hand, individual internet users do not have the power to determine which jurisdictions may view their website and which jurisdictions may not. Since business owners cannot minimize their risk of exposure to a lawsuit by limiting their audience, it is unreasonable and unfair for a business owner like Barbara to face the possibility of being haled into court from anywhere in the United States, or even the world. For this reason, other courts have concluded that without more, a presence on the web is not enough to support jurisdiction over nonresident defendants.

Courts have worked to develop a new standard to evaluate the exercise of jurisdiction based on contacts over the internet. This standard is a "sliding scale" in which a court's exercise of personal jurisdiction depends on the amount of business that an individual or firm transacts over the internet. In Zippo Manufacturing Co. v. Zippo Dot Com, Inc., 952 F. Supp. 1119 (W.D. Pa. 1997), the federal district court held that it has jurisdiction over parties that conduct substantial business in its jurisdiction exclusively over the internet. In this case, Zippo Dot Com was based in California, while Zippo Manufacturing Co. was based in Pennsylvania. Zippo Dot Com's contacts with Pennsylvania occurred almost exclusively over the internet, with two percent of its subscribers being Pennsylvania residents. Zippo Dot Com filed a motion to dismiss for lack of personal jurisdiction, but the court held that its business in Pennsylvania via the internet was grounds for personal jurisdiction, and the court denied the motion to dismiss.

Federal courts that have implemented the "sliding scale" test to evaluate jurisdiction and consider the level of activity of a website to determine whether there is sufficient business activity to warrant asserting jurisdiction over a given defendant. Active websites have often been found to provide jurisdictional authority, while passive websites have not. Semi-active websites require the consideration of additional factors such as the nature and relationship of the information exchanged or the business performed.

While many federal courts have either explicitly or implicitly adopted the "sliding scale" test for determining jurisdiction, not all of them have. Thus, significant questions remain about whether and under what circumstances a defendant may be haled into court. In the meantime, as courts continue to consider this issue, electronic law continues to be challenged by many other legal questions as the exchange of information and commerce continues to grow exponentially in the electronic environment.

Cyber Crimes. In addition to determining jurisdiction, courts must also consider whether any given alleged legal dispute actually violates an existing law or regulation. This consideration poses unique challenges in that some crimes may be committed using certain types of electronic media, but the law may not recognize such violations as being illegal. Thus, while in some crimes, one component of the crime may have been committed using an electronic instrument, in other crimes, the crime as a whole is committed in the online or electronic environment. These crimes, known as cyber crimes, generally occur in the virtual community of the internet, or in cyberspace. The rapidly evolving technology and the ability of individuals to communicate over the internet virtually undetected makes the investigation of cyber crimes and the prosecution of perpetrators extremely difficult. The anonymity and the detachment of computer criminals from their victims makes it challenging for courts to simply apply traditional laws that were designed to protect persons from physical harm or to safeguard their physical property. Often, the principal of existing laws covers the wrong committed, but the language of the law does not cover the circumstances of a crime committed in cyberspace. In addition, cyber criminals seldom leave physical traces, such as fingerprints or DNA samples, as evidence of their crimes. Thus, courts and lawmakers continue to search for ways to develop the legal framework for cyber crime along with investigation tools to detect and capture those who commit cyber crimes.

Cyber crimes are committed via the internet and can take numerous forms. For instance, some of the most common forms of cyber crimes are cyber stalking, cyber theft, and hacking activities. Cyber stalkers are stalkers who commit their crimes in cyberspace rather than by any physical act. Cyber stalkers generally find their victims through internet sites, chat rooms, or other online message boards. While most states have enacted general stalking laws that cover physical activities, such as making it a crime to harass or follow a person in ways that put the person in reasonable fear of his or her safety, only some states have adapted their stalking statutes to specifically address cyber stalking.

Another cyber crime is cyber theft. Cyber theft occurs when thieves steal data stored in a networked computer through an internet connection. While some courts have held that certain statues relating to the theft and transportation of stolen property do not apply to intangible property such as computer data, the National Information Infrastructure Protection Act of 1996 makes it a crime to access a computer without authority and take data from it. Still other laws relating to copyright and other intellectual property laws provide additional protections for information stored on computers. However, most theft laws are based on the physical breaking and entering of tangible property for the purpose of stealing items, and these elements cannot be literally met when cyber theft occurs.

Criminal Liability. In 1968, Congress codified the requirements for obtaining court authority to intercept oral and wire communications in Title III of the Omnibus Crime Control and Safe Streets Act ("Title III"). This Act subsequently was amended and expanded in 1994 by the Communications Assistance for Law Enforcement Act ("CALEA"). CALEA requires telephone firms to enable law-enforcement officials to be able to wiretap telephones. Most states have enacted electronic surveillance statutes that are similar to the federal statutes.

Title III, sometimes referred to as the Federal Wiretap Act, establishes procedures for courts to authorize government surveillance of electronic devices in criminal investigations, including voice, email, fax, and internet communications. The Act requires that a judge must conclude, based on an affidavit submitted by the government, that there is probable cause to believe that a crime has been or is being committed before the wiretap may commence. The government can also seek a court order permitting a wiretap before a crime is actually committed in order to gather planning and conspiratorial evidence.

Another act that creates criminal liability in the electronic environment is the Foreign Intelligence Surveillance Act of 1978 ("FISA"). FISA allows government agents to wiretap the communications of aliens and citizens in the US based on a finding of probable cause that they are members of a foreign terrorist group or an agent of a foreign power. For US citizens and permanent resident aliens, there must also be probable cause to believe that the person is engaged in activities that "may" involve a criminal violation. For aliens who are not permanent residents, the standard that the government must meet to initiate a wiretap is membership in a terrorist group.

In the wake of the events of September 11, 2001, Congress passed the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 ("Patriot Act"). The Patriot Act, among other things, expanded the list of criminal statutes for which wiretaps can be ordered and enabled prosecutors to use FISA for the purpose of gathering evidence in criminal investigations of national security crimes. Although both the Senate and the House of Representatives passed the Patriot Act by overwhelming margins, the surveillance and search powers authorized by the law were criticized as overbroad by legislators and interest groups. After the Patriot Act was enacted, municipalities and states passed resolutions that countered various aspects of the Act based on concerns that the legislation violated fundamental privacy rights. Various provisions of the Patriot Act, including roving wiretaps, were extended in 2011. Though some provisions of the act were allowed to expire in June 2015, they were reinstalled and extended with the passing of the USA Freedom Act the following day.

In 2013, investigations revealed that the extent of internet data collection and surveillance carried out by federal agencies such as the National Security Agency (NSA) was much greater than previously known. The NSA surveillance program known as PRISM, which collected data on users from major internet and technology companies, was made possible through amendments to FISA. The USA Freedom Act of 2015 enacted reforms dedicated to greatly limiting the NSA's perceived overreach by ending the mass collection of telephone records.

Another statute that governs electronic data is the Electronic Communications Privacy Act ("ECPA"). This Act regulates government access to stored email and other electronic communications. One section of ECPA, known as the Pen Register statute, governs real time interception of telephone numbers that are dialed from the telephone line to which the device is attached. A pen register records numbers dialed from a telephone. A trap and trace device records numbers dialed to a telephone. Although government officials must still get a court order in order to use these devices, they do not have to meet the probable cause standard. Instead, in order for a court to authorize surveillance using a pen register or trap and trace device, a government attorney must certify to the court that the information that the devices will likely obtain is relevant to an ongoing criminal investigation.

While these statutes provide a basic framework that governs criminal liability based on the use of electronic communication devices, these laws are not the sole sources of power that government agents may use to gather evidence of criminal activity. Government investigators and police officers may still use the traditional forms of search and seizure techniques to build their cases that are legally permissible under current law. These techniques include interrogations, search warrants, physical surveillance, informants, and undercover officers.

Issues: Affecting Electronic Law

Privacy & Security. As the use of electronic devices has increased, there has been a corollary increase in the concern that the personal privacy of individuals is threatened when public and private businesses and agencies collect and compile user information from these devices. The right to privacy is generally understood as the expectation that confidential personal information revealed in a private communication or transaction will not be disclosed to third parties when that disclosure would cause either embarrassment or emotional distress to a person of reasonable sensitivities. Information is interpreted broadly to include facts, images, and even personal or inflammatory opinions. The right to privacy has also been defined historically as the right to be let alone. This means that there is a fundamental view in a civilized society that individuals should be entitled to exert some control over the information about their lives and personal affairs that is publicly disclosed.

While the concept of a fundamental right to the protection of one's personal identity is widely considered to be an important interest, the practice of protecting this right is not as comprehensive. Privacy laws are generally sectoral, which means that legislators and individual industries have created regulations to safeguard the collection and retention of personal information. For instance, Congress has passed expansive legislation to protect medical records and financial records in particular. The Health Insurance Portability and Accountability Act (HIPAA) was enacted by the US Congress in 1996 and requires health plans and other healthcare providers that electronically compile and save certain financial and administrative transactions to comply with standards designed to protect the integrity and privacy of this information. In addition, the Gramm-Leach-Bliley Act protects the privacy of certain financial records collected by financial services providers, and the Right to Financial Privacy Act regulates the access that law enforcement officials have to financial services records. In other sectors, regulations to protect the personally identifiable information gathered by insurance agencies, employers, educational institutions, and other social service providers have also been implemented.

While this patchwork approach to privacy does provide consumers with some protections, the drawbacks of this approach are that while personal information may be protected in one sector, the lack of protections in another sector may expose the information to misuse anyway, and because privacy protections are largely left to individual industries to create, these regulations often lag behind emerging technologies that can be used to exploit personal information.

As the internet and other forms of electronic communication and commerce continue to develop, electronic law will have to adapt to incorporate the privacy protections required by various sectors of the law as well as other data protection laws that may be enacted. While seeking ways to offer greater privacy protections, courts, state and federal legislatures, and many public interest organizations have also been grappling with questions about how to balance privacy interests with other important security interests, especially as electronic communications devices are frequently used in the coordination of criminal activity.

Intellectual Property Protections. One of the most frequently raised issues in the intersection between law and the electronic environment, and particularly the internet, has to do with the ownership and protection of information on the internet. Of particular concern to businesses is the need to protect their rights in intellectual property. Intellectual property is any property that is created and produced out of an individual's mental, intellectual, or creative process. In the electronic world, intellectual property includes the information in computer files, software, programs, and video game and music files.

The protection of intellectual property dates back centuries and was recognized by the founders of the United States. The US Constitution speaks of protecting the writings and discoveries of authors and inventors, and thus the importance of protecting intellectual property is fundamental to the American legal system. The laws, statutes, and regulations that govern intellectual property rights are being reexamined and rewritten in response to the development of the electronic environment as a forum for commerce, information exchange, product development, and criminal activity. Cyber law is a term that has been used to describe the legal issues rising from the use and interaction of electronic devices, particularly in cyberspace, or the online environment. Cyber law is not necessarily a distinct field of law such as property law. Rather, it is a body of law that has developed from the intersection and interaction of many distinct legal fields, including intellectual property, privacy, freedom of expression, and jurisdiction. Cyber law integrates the electronic environment with systems of laws that have been developed to govern and regulate the physical world. An important aspect of cyber law is the legal protections that are being developed to safeguard the ownership rights of individuals and businesses in intangible intellectual property. For many US companies, protecting their intangible intellectual property assets is more important than safeguarding their tangible resources. Yet protecting intellectual property rights in an ever-growing electronic world has proved particularly challenging.

The major forms of intellectual property are trademarks, patents, and copyrights. A trademark is a symbol, figure, name, or mark that manufacturers and merchants use to designate their goods and distinguish them from similar or competitive products. A patent is the exclusive right that the government grants to inventors so that they may manufacture, use, or sell an invented product or process for a certain number of years without competition. Copyright is the legal right that the government grants to an author, composer, or publisher to exclusive publication, production, sale, or distribution of a literary, musical, dramatic, or artistic work.

Intellectual property is protected in the online and electronic environments by a number of laws. For instance, trademark infringement may occur in cyberspace if another's trademark is used without a license on unauthorized goods or competing products or if a licensing agreement is broken. In 1995, Congress passed the Federal Trademark Dilution Act, which expanded the existing trademark protections by creating a federal cause of action for trademark dilution, which occurs when a famous trademark is used on unauthorized goods and services regardless of whether there is competition or confusion over the proper use of the trademark. This act was later amended by the Trademark Dilution Revision Act of 2006. Patent infringement of a product or process in cyberspace may occur if a user such as a software developer uses a patent-protected product without first obtaining a license to do so. Because patent infringement is so costly to detect and prosecute, patent holders often decide to sell a license to use the patented design or product to patent infringers rather than litigating the dispute.

Copyright infringement occurs whenever an idea or expression is copied without the permission of the copyright holder. The Digital Millennium Copyright Act of 1998 ("DMCA") created civil and criminal penalties for anyone who circumvents encryption software or other technological antipiracy protections. In 2000, a federal district court held that decrypting the encryption technology that is used to safeguard the contents of digital versions of intellectual property such as movies, music, and videos violates the DMCA. This empowered record labels and other manufacturers and producers to begin more rigorous monitoring of their intellectual property and to pursue legal action against those who illegally copy or download digital and music files.

In addition, digital rights management ("DRM") is an umbrella term that refers to technologies used by publishers or copyright owners to control access to or usage of digital data or an electronic device. DRM technologies are distinct from other copyright and technology protection measures, although DRM technologies at times interfere with a user's ability to make certain legally permitted duplications of protected materials such as recording television programs or creating remixes of clips of songs and movies for personal consumption. In addition, the rise of proprietary DRM formats has caused controversy, as consumers who purchase electronic music files from a particular vendor may be prohibited by the DRM from playing those files on any player but the one sold by that vendor. DRM technologies often fall within the regulations of the DMCA. This means that if individuals take steps to circumvent DRM technologies to enable noninfringing fair uses of electronic devices, they may still be in jeopardy of violating the DMCA. In the face of widespread consumer opposition to DRM, some companies that previously implemented such protective measures have ceased to do so.

One industry that has been particularly watchful of unauthorized use of copyrighted material is the music industry. The Recording Industry Association of America ("RIAA"), which is a trade group that represents the recording industry in the United States and consists of record labels and distributors, among other members, has brought a series of copyright infringement legal actions on behalf of its members against users who illegally download and share music files. The RIAA claims that music piracy, which consists of copyright infringement through file-sharing, particularly music files that are distributed over the internet using peer-to-peer software or through file-sharing services, erodes the profits to which artists and distributors are entitled and ultimately harms consumers by driving up the costs of music production and distribution. However, because some of the lawsuits that the RIAA has filed have targeted minors, questions have arisen about whether these lawsuits are appropriate given the age, maturity, and experience of teenage and pre-teen computer users. In addition, some critics have deemed the financial penalties sought by the RIAA to be unreasonable.

Factors Affecting Electronic Law

Taxation. Income taxes are taxes that are levied on personal and corporate income, and these tax revenues constitute a source of money for both state governments and the national government. However, to collect taxes, the government must have authority over the activities in the locations where the income is earned. With the rise of the internet, the specific geographic locations of consumers have become disaggregated from vendors, and thus the traditional tax regulations that link income with a specific geographic location do not apply to certain online transactions. Although the federal government has considered ways to tax internet transactions, there is no definitive government regulation of internet commerce to date. However, the debate over the pros and cons of implementing internet taxation on electronic commerce has been occurring for some time and is far from being resolved. Until a system for taxing electronic commerce is finalized, most online purchases continue to be tax-free.

There are many supporters and detractors on both sides of the issue of internet taxation. Many political leaders at the state level have pushed for internet sales taxes to prevent revenue losses from mail-order and internet purchases. Other leaders, including those at the federal level, have argued in favor of keeping the internet tax-free because of the difficulty in creating and enforcing a tax regulatory system for the internet that would also allow e-commerce to develop. Still others have argued that allowing retailers to sell the same items online through a tax-free transaction that they sell in stores, where consumers must pay taxes, is inherently unfair. Most consumers and retailers appreciate the boost that tax revenues from online transactions could provide state and federal governments, but also enjoy the ability to purchase products and services over the internet without paying taxes on these transactions.

Emerging Technology & Electronic Commerce. Electronic commerce is simply commerce that is conducted electronically and is often dubbed "e-commerce." In the past, e-commerce used technologies such as the telegraph, telephone, and fax machine. By the early twenty-first century, however, e-commerce consisted largely of transactions conducted in whole or in part over the internet. E-commerce has grown exponentially with the rise and globalization of internet access and use, and it continues to develop at a rapid rate. Consumers and businesses now view the entire world as a marketplace where goods and services may be advertised and purchased. Whether buying or selling tangible goods or intangible information, consumers and businesses alike are increasingly capitalizing on the speed and cost benefits of conducting business online.

However, the rise in e-commerce has also generated an increase in disputes involving transactions conducted electronically and entirely at arms length. Many of these disputes raise novel legal issues that courts and lawmakers have not addressed. Thus, the rapid growth in electronic commerce has outpaced the development of a legal system to support it. Many businesses and consumers have turned to private arbitration proceedings to reach a resolution to their disputes. Courts and lawmakers continue to grapple with the various and often competing interests raised by e-commerce to develop laws, statutes, and regulations that will appropriately regulate the online marketplace.

Even as e-commerce has experienced rapid growth, other technologies have continued to push the boundaries of the legal framework that governs electronic law. These new technologies include wireless networks that incorporate voice, video, and data; biometrics and other forms of identification techniques using the unique bodily and physical characteristics of individuals; e-books and other forms of electronic publications; and implantable computer chips that monitor or regulate certain bodily and cognitive functions. As these technologies advance, the laws and regulations that govern technology and electronic commerce and communications must also develop to provide governance and a means for resolving disputes stemming from their use.

Internet Governance. The internet is a public, global network of electronically linked computers owned by commercial enterprises, academic institutions, private households, and government agencies. While many forms of electronic communications are developed and regulated by private or commercial entities, the internet is a global and open community that transcends proprietary, geographic, or political boundaries. Instead, the unique combination of open standards, diverse communities, and the anonymity and ubiquity of electronically linked digital devices has allowed the internet to rewrite longstanding forms of commerce, communication, and information dissemination. While the internet initially was seen as a means of transforming cultural, economic, and political institutions and norms by facilitating the free flow of uncensored information and communication, the sheer size and complexity of the internet has created a renewed interest in creating a system of internet governance that would allow for a centralized administration of some of the internet's technical aspects, such as the assignment of IP addresses and domain names.

In November 1998, the Internet Corporation for Names and Numbers ("ICANN"), was created through a Memorandum of Understanding between the US Department of Commerce and ICANN. The purpose for the creation of ICANN was to enable the organization to administer the allocation of IP address space and to manage the domain name system. Thus, ICANN is responsible for the coordination of the internet's system of unique identifiers throughout the world, including domain names such as .com and .org and country codes such as .uk, as well as for administering the IP addresses that are used to identify and distinguish a user's presence on the internet. In addition, ICANN has the responsibility of developing policies that ensure the ongoing security and stability of the internet while facilitating competition, coordination, and representation of all types of internet users.

Because ICANN is not overseen by any national government, its independence enables the organization to rapidly respond to commercial, technological and political developments that affect the internet and its community of users. Although it is independent of any political affiliations, ICANN is governed by a board of directors who regularly receive and review input from all interested and affected constituencies, and who work with necessary parties to implement needed changes to internet governance.

Application

Electronic Law in the Modern World

Electronic Tracking Devices. Electronic tracking devices, such as radio frequency identification ("RFID") instruments, are automated identification systems that allow data implanted in a portable device, called a tag, to be transmitted and read by a signal receiver. The data transmitted by the tag may provide identification or location information about the item to which it is attached, or specifics about the product tagged, such as price, color, or date of purchase. RFID technology has become increasingly popular because of its ability to track moving objects and to convey bits of information that may be valuable to retailers.

RFID tags were initially relatively easy for consumers to identify because they were generally encased in visible devices, such as the hard plastic anti-theft tags that are affixed to retail items in stores. However, other RFID devices are being developed that are so inconspicuous that they can be attached to items unbeknownst to consumers. RFID technology is often used in animal tracking tags, in which tiny RFID tags are implanted in pets or endangered species so that animals can be located or monitored from a remote location. Even smaller, almost microscopic RFID tags have been developed that can be embedded within the fibers of a national currency.

In addition, an RFID device known as the VeriChip personal identification system was developed for use in humans. The VeriChip tag was designed to be implanted into the human body to store certain personal and medical information. In 2004, the Food and Drug Administration ("FDA") approved VeriChip's use in the United States for certain medical applications, such as to confirm the identity of unconscious patients and to retain information about a person's blood type, allergies, prescription drug use, and medical conditions. Although the device was later discontinued, it served as a key example of the possibilities of RFID technology.

While RFID technology offers manufacturers and retailers many benefits for monitoring the use and consumption of products, privacy advocates have raised concerns about the proliferation of the devices. These advocates argue that RFID technology enables corporations to gain a glimpse into the personal world of consumers in ways that are unprecedented. RFID manufacturers have argued that most items that are tagged with the devices cannot be tracked once the item travels beyond the scope of the signal receiver, which is often as limited as a few feet. However, advances in technology suggest that this will not always be the case. As manufacturers and retailers push for better knowledge of consumers' purchasing habits, as people travel the globe with the desire for health care providers to have immediate access to their medical history in case of an emergency, and as individuals continue to push for regulations to protect their privacy, the issues that are created by the rise in electronic tracking devices will continue to challenge courts and lawmakers.

Spam. Spam is unsolicited commercial email that is generally transmitted in bulk to large lists of email addresses. Spammers generate lists of email addresses by scavenging websites, collecting e-mail addresses that are listed on websites, and purchasing email addresses through marketers and brokers.

In response to public dissatisfaction with the expense and nuisance of screening and eliminating unwanted spam, Congress passed the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 ("CAN-SPAM"). Under CAN-SPAM, unsolicited commercial messages may not contain a false or misleading subject line or header information. In addition, such messages must include a valid notice that the message is an advertisement or solicitation, an opt-out notice, and a valid postal address of the sender. Enforcement of CAN-SPAM is largely overseen by the Federal Trade Commission ("FTC"), state attorneys general, and ISPs. Under the law, each violation of CAN-SPAM's provisions is subject to fines. In addition, the FTC adopted a rule that requires senders of spam messages that contain sexually oriented material to include a warning in the subject line, or face fines. While these provisions gave the FTC power to enforce penalties against spammers who violate CAN-SPAMs requirements, the act has done little to stem the rise in misleading and malicious electronic communications. The amount of spam has only proliferated in the years since CAN-SPAM was enacted, and some spam messages contain viruses and other forms of harmful programming that can disable or even destroy the computers of e-mail recipients who unknowingly open unsolicited attachments. Fortunately, the public has become increasingly aware of the dangers that spam can wreak, and many e-mail providers have filtering programs that automatically delete or separate most spam messages. However, many computer programmers and lawmakers continue to look for ways to limit the amount of spam that pollutes the transmission and reception of electronic mail messages.

Cookies. Cookies are messages that an internet server transmits to a web browser so that the server can keep track of a visitor's activity on a specific website. Websites use cookies for several different reasons, including to collect demographic information about who is visiting the website. Sites often use this information to track how often visitors come to the site and how long they remain on the site. Another reason websites use cookies is to personalize the user's experience on the website. When a website collects information about a visitor's browsing habits, this information is packaged into a cookie and sent to the user's browser, where it is stored for later use. The next time the user visits the same website, the user's browser automatically sends the cookie to the server. The server can use this information to present the user with customized pages that contained personalized information to enhance the user's browsing experience. Finally, cookies also enable websites to monitor the advertisements that visitors see.

Cookies are text files that a computer user can delete from his or her computer at any time. They are not designed to act maliciously on computer systems. In addition, cookies are not used to spread viruses or access the hard drives of internet users. However, privacy advocates have raised concerns about the information that cookies collect and store about the browsing habits and patterns of individual internet users. For instance, cookies are designed to store any information, including personal information, that user's provide to any given website, including credit card and other types of personally identifiable information. When an internet user inputs this information into a website, the information is generally stored in a cookie unless the user has turned off the cookie feature in his or her internet browser. While a computer user may delete the cookies that have been stored in his or her browser, some websites have limited functionality or cannot be accessed unless visitors allow cookies to be stored on their browsers, and thus internet users who want to refuse cookies are faced with limited browsing opportunities. Courts and government agencies have considered ways to regulate the use of cookies, but so far, definitive oversight of profiling measures that monitor internet usage such as the use of cookies has not been created or implemented by courts or lawmakers.

Conclusion

Electronic law is the study of the intersection of many important, cutting edge areas, including technology, privacy, security, information science, research and development, and the law. Because the electronic environment is constantly changing and advancing, the laws, statutes, and regulations that govern electronic commerce, communication and information are also being challenged, revised, and reconsidered to reflect and accommodate innovations and competing interests. While courts and lawmakers must labor to build the body of law to regulate the electronic world, important preliminary considerations must also be settled such as jurisdiction, the scope and elements of cyber crimes, and the extent of criminal liability that arises from certain electronic activities. In addition, the advancement of electronic communication and commerce has raised significant questions about how to preserve and protect basic rights such as privacy and intellectual property protections while ensuring that law enforcement officials and government agencies are able to access the information they need to investigate criminal activities and provide security. As courts and legislators struggle to develop appropriate electronic laws, they must confront factors such as whether to tax internet or other e-commerce transactions and the rapid growth of electronic commerce and new technologies that challenge the existing legal framework. There are technologies and activities that are already challenging the sufficiency of current electronic law such as electronic tracking devices, financial records regulations, and the proliferation of unsolicited e-mail messages. The scope of electronic law has only begun to develop. Electronic law is one of the most dynamic and exciting areas of the legal system, and is a gauge of the pulse of the nation's response to and incorporation of advancements in electronic information and commerce.

Terms & Concepts

Appropriation: The use of a person's name, likeness, or other identifying characteristic without permission and for the benefit of the user.

Authenticate: To sign a record, or with the intent to sign a record; to execute or to adopt an electronic sound, symbol, or the like to link with the record.

Click-On Agreement: Occurs when a buyer, completing a transaction on a computer, is required to indicate his or her assent to be bound by the terms of an offer by clicking on a button that says, for example, "I agree."

Computer Crime: Any wrongful act that is directed against computers and computer parts, or the wrongful use or abuse of computers or software.

Copyright: The exclusive right of authors to publish, print, or sell an intellectual product for a statutory period of time.

Cyber Crime: A crime that occurs online, in the virtual community of the internet, as opposed to the physical world.

Cyber Law: An informal term that refers to all laws governing electronic communications and transactions, particularly those conducted via the internet.

Cybersquatting: An act that occurs when a person registers for a domain name that is the same as, or confusingly similar to, the trademark of another and offers to sell the domain name back to the trademark owner.

Digital Cash: Funds contained on computer software, in the form of secure programs stored on microchips and other computer devices.

E-Commerce: A business transaction that occurs in cyberspace.

Encryption: The process by which a message is transformed into something that the sender and receiver intend third parties not to understand.

Hacker: A person who uses one computer to break into another.

Intellectual Property: Property resulting from intellectual, creative processes such as patents, trademarks, and copyrights.

Patent Infringement: Occurs when one uses or sells another's patented design, product, or process without the patent owner's permission.

Trademark: A distinctive mark, motto, device, or emblem that a manufacturer stamps, prints, or otherwise affixes to the goods it produces so that they may be identified on the market and their origins made known.

Trade Secrets: Customer lists, plans, research and development, pricing information, and the like; this information is protected under common law and, in some US states, under statutory law against misappropriation by competitors.

Bibliography

Crossed wires: Technology in the workplace. (1997). Corporate Legal Times, 7, 1. Retrieved May 18, 2007, from EBSCO Online Database Business Source Complete. http://search.ebscohost.com/login.aspx?direct=true&db=bth&AN=9710024441&site=ehost-live

Elkind, P., & Burke, D. (2013). Amazon's (not so secret) war on taxes. Fortune, 167 , 76. Retrieved November 27, 2013, from EBSCO Online Database Business Source Complete. http://search.ebscohost.com/login.aspx?direct=true&db=bth&AN=87863612&site=ehost-live

Fisher, D. (2003). Exemptions to copyright law sought. eWeek, 20, 18. Retrieved May 18, 2007, from EBSCO Online Database Business Source Complete. http://search.ebscohost.com/login.aspx?direct=true&db=bth&AN=8880559&site=ehost-live

Greengard, S. (2012). Law and disorder. Communications of the ACM, 55 , 23–25. Retrieved November 27, 2013, from EBSCO Online Database Business Source Complete. http://search.ebscohost.com/login.aspx?direct=true&db=bth&AN=71676904&site=ehost-live

Hughes, S. (2011). Developments in the laws governing electronic payments. Business Lawyer, 67 , 259–278. Retrieved November 27, 2013, from EBSCO Online Database Business Source Complete. http://search.ebscohost.com/login.aspx?direct=true&db=bth&AN=70703795&site=ehost-live

Middlebrook, S. T., Kierner, T., & Hughes, S. J. (2016). Developments in the law affecting electronic payments and financial services. Business Lawyer, 72(1), 255–264. Retrieved January 12, 2018 from EBSCO Online Database Business Source Ultimate. http://search.ebscohost.com/login.aspx?direct=true&db=bsu&AN=120778275&site=ehost-live&scope=site

Roman, S. (2007). The ethics of online retailing: A scale development and validation from the consumers' perspective. Journal of Business Ethics, 72, 131–148. Retrieved May 18, 2007, from EBSCO Online Database Business Source Complete. http://search.ebscohost.com/login.aspx?direct=true&db=bth&AN=24410944&site=ehost-live

Sandburg, B. (2003). Music labels, Silicon Valley sing truce, but Hollywood is silent. In IP Law & Business, March 2003, (p. 10).

Tarr, G. (2003). Congressmen begin legislative battle for fair use. TWICE: This Week in Consumer Electronics,18, 6. Retrieved May 18, 2007, from EBSCO Online Database Business Source Complete. http://search.ebscohost.com/login.aspx?direct=true&db=bth&AN=8958627&site=ehost-live

Vuolo, M. (2013). E-commerce. (cover story). Insurance Advocate, 124 , 20–25. Retrieved November 27, 2013, from EBSCO Online Database Business Source Complete. http://search.ebscohost.com/login.aspx?direct=true&db=bth&AN=90438249&site=ehost-live

Whitaker, R. (1999). Rules under the Uniform Electronic Transactions Act for an electronic equivalent to a negotiable… Business Lawyer, 55, 437.

Winn, J. & Pullen, M. (1999). Despatches from the Front: Recent Skirmishes Along the Frontiers of Electronic Contracting Law. Business Lawyer, 55, 455.

Zittrain, J. (2007). Saving the Internet. Harvard Business Review, 85, 49–59. Retrieved May 18, 2007, from EBSCO Online Database Business Source Complete. http://search.ebscohost.com/login.aspx?direct=true&db=bth&AN=24997959&site=ehost-live

Suggested Reading

Basinski, E. (2000). Some comments on contributory and induced patent infringement: Implications for software developers. Journal of Internet Law, 3, 11. Retrieved May 18, 2007, from EBSCO Online Database Business Source Complete. http://search.ebscohost.com/login.aspx?direct=true&db=bth&AN=9477096&site=ehost-live

Berkowitz, J. (2000). Protecting business methods in cyberspace. Licensing Journal, 20, 7. Retrieved May 18, 2007, from EBSCO Online Database Business Source Complete. http://search.ebscohost.com/login.aspx?direct=true&db=bth&AN=9489997&site=ehost-live

Boulton, A. (2012). E-discovery rules and the plain view doctrine: The Scylla and Charybdis of electronic document retention. Journal of Corporation Law, 37 , 435–452. Retrieved November 27, 2013, from EBSCO Online Database Business Source Complete. http://search.ebscohost.com/login.aspx?direct=true&db=bth&AN=71939119&site=ehost-live

Crawford, S. (2005). First do no harm: The problem of spyware. Berkeley Technology Law Journal, 20, 1433–1475. Retrieved May 18, 2007, from EBSCO Online Database Business Source Complete. http://search.ebscohost.com/login.aspx?direct=true&db=bth&AN=18694120&site=ehost-live

Grammel, S. (2013). Protecting search terms as opinion work product: Applying the work product doctrine to electronic discovery. University of Pennsylvania Law Review, 161 , 2063–2099. Retrieved November 27, 2013, from EBSCO Online Database Business Source Complete. http://search.ebscohost.com/login.aspx?direct=true&db=bth&AN=88950303&site=ehost-live

Yang, J. S., & Aquilino, F. J. (2016). The updated status of internet commerce tax law. Journal of Internet Law, 20(2), 3–13. Retrieved January 12, 2018 from EBSCO Online Database Business Source Ultimate. http://search.ebscohost.com/login.aspx?direct=true&db=bsu&AN=117486368&site=ehost-live&scope=site