Legal Aspects of Information Technology

The use of information technology as the primary arena in which the new global economy conducts business raises many important questions. One of the most challenging of these issues is the legal aspects of this new commerce system. This paper will take a look at the legal aspects of internet technology management in the 21st century global economy. The reader will glean a better understanding of the application of current statutes to this new environment. By reviewing several areas in which these legal questions are raised, this paper will demonstrate the new fluidity of the environment in which law and commerce interact.

Keywords: ARPANET; Copyright; Delphi; Digital Signature; Electronic Signatures in Global and National Commerce Act; Health Insurance Portability and Accountability Act (HIPAA); Intellectual Property; Internet Service Provider (ISP)

Overview

While attending a conference, Stephen Hofmyer, Chief Technology Officer of a network security firm in California, decided to try an experiment. He went into a secluded area of the conference center, turned on his laptop and, using the center's local area computer network, launched a program designed to scan the contents of other computers on the network. In moments, he had access to countless computers and the e-mail messages they contained. The experiment was not whether or not his program would work. Rather, it was to see who had not safeguarded their own computers — the conference he was attending was PC Forum, one of the biggest information technology events of the year, whose participants were some of the most renowned experts on computer technology (Anecdotage.com, 2009).

The fact that so many experts had left their own computers susceptible to intrusions was likely not a reflection of their absent-mindedness regarding their own security. Rather, it paints an illustration of the degree to which computer technology and the Internet is constantly evolving. Such technology has developed to such a level that it is not just a vehicle for the global economy of the 21st century — it is the vehicle.

The use of information technology as the primary arena in which the new global economy conducts business raises many important questions. Among the most challenging of these issues are the legal aspects of this new commerce system. After all, despite the fact that most free markets seek to minimize government regulation, it remains that there have long been statutory guidelines by which business, whether local, national or international, has been conducted. In a global economy dominated by information technology, those guidelines must be re-approached and, where relevant, applied to the 21st century mode of business.

This paper will take a look at the legal aspects of technology management in the 21st century global economy. The reader will glean a better understanding of the application of current statutes to this new environment. By reviewing a number of key areas in which these legal questions are raised, this paper will demonstrate the new fluidity of the environment in which law and commerce interact.

An Evolution Without Legal Boundaries

Like many other innovations, the Internet began, in the 1960s) as a military application, ARPANET (Advanced Research Projects Agency Network), forging a global network of computers in order to share military and scientific information more quickly and securely than telephones or conventional mail systems (Shannon, 2009).

By the late 1960s, it became clear that ARPANET had non-military applications as well. A consortium of major scientific and academic institutions sought to link together on-campus computers in order to share information and data. The system crashed before the user was able to complete login, but it still provided inspiration for similar endeavors for more than two decades, linking university information and resources both on campus and around the world. By the late 1980s, the system was becoming more and more user-friendly, accelerated by the introduction of personal computers in the 1970s. It was still limited, however, by the fact that, as a government-funded program, it was not allowed to be used for non-educational or non-research purposes.

This restriction ended in the early 1990s. The 1991 High Performance Computing (HPC) Act, cosponsored by Senator Al Gore, who, according to Cerf (1995), early on saw that "information superhighways limned the potential of a computing and communications infrastructure that would permeate and stimulate the government, business, and private sectors of the U.S. economy." HPC stimulated the development of very high speed network technology. When an increasing number of similar but privately developed commercial networks began to surface. The first of these was Delphi, which offered users access to the growing network without going through the "backbone" established by the federal government's programs. When the National Science Foundation ceased its funding of the backbone, its disappearance caused negligible impact on the web, since universities were funding their own systems and commercial enterprises continued to join (Howe, 2009).

The Internet is a global resource, not just for academic research and information exchanges. It is used to support virtually every aspect of life in the 21st century, from home entertainment and games to shopping to stock exchanges and satellite technology. Its uses and applications continue to develop every year. However, the Internet was developed by the government for the purpose of information exchanges. Commercial networks thereto were allowed to develop without government intervention during its early evolution. When its growth occurred at an explosive rate during the 1990s and early 2000s, those seeking to install legal user protections for the myriad of uses it offers were left to play catch-up.

This point is important — along with the resources and data that users may obtain for legitimate purposes, such as shopping, academic research or systems management, there are many questionable and/or illegal activities being conducted on the Internet. Such behavior thrives on the world wide web, due to the aforementioned reason that the Internet is so vast and yet subject to so few regulatory or legal parameters.

There are a number of areas of legal issues in this evolving area of information technology that have received particular attention in recent years. Among the most prominent are the management and distribution of sensitive medical data, copyright infringement and piracy, and black market activity.

Applications

Health Care Management & Patient Information

Norman Rockwell's classic 1958 print, The Doctor's Office, creates a wholesome image of health care and the sacred relationship between a doctor and his young patient. Indeed, Rockwell was speaking to the degree of trust and familiarity people have with those who administer their health care. Half a century later, this ideal still holds true for most people, although a number of elements have interceded between the doctor and the patient, creating a complexity that Rockwell could never have envisioned.

Indeed, health care has evolved into an intricate system including insurance, medical malpractice and pharmaceutical companies. In addition to the sacred doctor-patient relationship, there now exists a hospital-patient relationship as well as a hospital-doctor relationship, casting even more confusion into the intricacies of health care. Even the doctor's office itself is a shadow of its early 20th century incarnation, with ever-changing coding systems and medical groups consisting of large numbers of doctors. While these changes have been implemented to make it easier for doctors to manage the large number of people seeking health care, they have also opened the door for issues within the system.

One of the most challenging of these issues is the management of patient information. Like so many other industries, the health care industry has utilized computer systems to manage and update the files of patients. As is the case with an ever-changing environment involving computer software, the system is in a constant state of flux as new developments and upgrades are introduced.

Since the later 20th century, traditional paper-based patient records have become increasingly computerized. Such formats serve a number of important purposes. First, physical storage space has been dramatically improved. Additionally, the computerization of patient records improves and simplifies the process of record-keeping among doctors, nurses and other practitioners. In this light, computerization makes life easier for health care professionals.

Computerized patient records also have value for those outside the doctor-patient relationship. Government officials, seeking to understand health care trends and track diseases, have access to greater amounts of information at a faster pace than they would have with paper records. Furthermore, insurance companies may more expeditiously process claims using digital management technologies. Even billing processes are improved as a result of this management trend.

Who has Access?

These improvements also create legal issues. Computerized records mean greater simplicity and wider access for those who are charged with its management as well as those who monitor them for public policy or insurance purposes. Statutes have not been clear on this subject, either on the federal or state level. Only a handful of states specifically give strict guidelines on the computerization or management of computerized patient records. Most have not created statutory frameworks for this issue at all (McWay, 2003). This lack of legal parameters leaves ambiguity in the interpretation of how such information may or may not be used by anyone but doctors and their staffs.

In 1996, some attempts on the federal level were made to create parameters by which all medical records, whether computerized or on paper, would become protected information handled only by those qualified to use this sensitive data. The Health Insurance Portability and Accountability Act (HIPAA) was created to ensure that a patient's privacy is protected by mandating that only doctors and other medical professionals and health insurers would have access to them. The Act was not complete in its protection, however, as life insurers and worker compensation insurance carriers, among others, were still allowed to obtain such information (US Department of Health and Human Services, 2009).

Since the law's passage, other attempts to manage and protect patient information were made, most notably the Electronic Signatures in Global and National Commerce Act (2000) and the Uniform Electronic Transactions Act (1999). Such measures went far to ensure that a patient's information could not be disseminated without his or her full consent. Then again, an individual's official record is not the only form of information that is placed into electronic systems. In fact, the Internet has opened innumerable doors for a wide range of information exchange formats, with more such vehicles being added frequently. Those who are otherwise unauthorized to distribute an individual's medical history and status via the aforementioned laws may be at an advantage over statutory oversight, as the practices they employ may not have been in existence at the time of the laws' passage (Kahn, 2003). In such situations, lawmaking and law enforcement often play a perpetual game of "catch-up."

One of the most challenging legal aspects of technology management is the ever-changing composition of the Internet. The purchase of music on the Internet is one particularly visible issue which has recently emerged.

Music & the Internet

In the early 21st century, it became clear that the music industry was undergoing a dramatic change in the way that music was purchased by fans. The movement was a natural progression, one that followed a long evolution of the industry technology. Traditionally, vinyl, cassette tape, and compact discs had to be purchased in their entirety at a set price. Digital downloads, however, can be purchased or pirated singly. Many artists bristled at this new development, for people were purchasing single songs rather than entire albums. However, the trend continued and, in spite of the reluctance of some, has become the most popular way to obtain music.

As music downloads from the Internet became the norm, a number of sites offering songs for download policed themselves, ensuring that the products that they offered to consumers were permissible by the musicians and those who represented them. However, the expansive and extremely complex world-wide web makes it easy for those who do not have such permission to sell illegal copies. This time, the backlash from musicians and songwriters about such practices was not limited to those who feared change. Those whose careers were greatly benefited by the evolution of Internet-based music were speaking out against such "pirates." Even those performers whose careers blossomed long before the Internet took hold (indeed, whose careers blossomed among non-Internet users), lashed out against this burgeoning illegal enterprise. Iconic tenor Luciano Pavarotti, for example, welcomed music downloads, but cautioned, "Artists and composers — particularly the younger ones — will not stand a chance of creating music in the future if their recordings are simply stolen in this way" (quoted in "What the Artists," 2009).

The practice of illegally downloading music is indeed a common, widespread one. In one survey of New Zealand residents, for example, 80 percent of respondents admitted to doing so, while 32 percent admitted to downloading from illegal sites at least once per month (New Zealand Herald, 2009). In another survey taken in 2005, it was revealed that 15 percent of European web users download music from illegal sources (Cockcroft, 2005).

Who to Target?

As is the case for many aspects of Internet commerce, legal professionals and lawmakers have struggled to keep pace with the development of relevant statutes. Unable to capture those who provide such illegal downloads, political leaders often look at imposing strict enforcement tactics on others involved, such as the consumers themselves. In other cases, with the notion that pursuing individual illegal downloading activities is akin to finding a needle in a haystack, lawmakers have targeted the networks that allow such sites and behavior to occur.

In the early part of the 21st century, a number of attempts were made to pursue Internet service providers (ISPs) who allow consumers access to such sites. These efforts saw mixed degrees of success. Despite a hard push by musicians in Canada to sanction ISPs in this capacity, for example, a 2006 suit brought before the Canadian Supreme Court effectively ended the campaign — the Court, by a unanimous 9-0 decision, ruled the ISPs are but "intermediaries" who are not responsible for the behavior of those who use the Internet for illegal activity ("Downloading music," 2006). One year later, however, the US Supreme Court overruled a lower court decision that said that software makers and ISPs could not be sued for consumer behavior over which they had no control. Justice David Souter, writing for the majority, said, "We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by the clear expression … taken to foster infringement, is liable for the resulting acts of infringement by third parties" (cited in Sullivan, 2007).

The ongoing issue with Internet-based music and infringement of copyright laws due to illegal downloading is complex due to the extreme complexity of the Internet itself. In fact, a system that was created with no geographic boundaries in mind means that no single national law may be applied equitably to prevent illegal downloading, and prosecutions against those who have already committed this act vary in severity from country to country.

This issue underscores a general conflict in what one might call "Internet politics." On one side are parties who assert that the Internet was established as a free and open network protected by the First Amendment (even in countries that otherwise have no such constitutional right). These groups believe that any protections against illegal behavior should be installed by the users themselves, not by any government or collective thereof (Becker, et al, 2003). On the other side of the issue are parties who assert that such a lack of legal protections are causing revenue hemorrhages for the music industry (which they claim is losing billions to illegal downloads), and the only course of action to protect the industry is government intervention. A perhaps more pragmatic assessment observes that superstars (and music companies) are the most negatively effected by illegal downloading; up-and-coming performers freely distribute their music on the Internet in the hope of generating interest in live concerts, which are generally more lucrative for musicians than recording music under contract to a recording company (Arias & Ellis, 2013). Especially with the advent of YouTube, the likelihood of preventing illegal downloads became extremely small.

The music industry was not alone in having to adjust to a popular culture able to have any creative endeavor delivered to individuals without due compensation to the copyright holder. Television shows, movies, and books are openly pirated and hosted on private web sites. Preventing such sites from operating is likened to a game of Whack-a-Mole. Legal questions, however, are not necessarily sparked by shadowy figures or tech savvy college students. Internet giant Google launched an ambitious scanning project involving millions of books, many of them still under copyright, for distribution online. The Authors Guild sued Google, and later its partner the HathiTrust, for copyright infringement. Google proposed limiting access to material under copyright to snippets, thus rendering the presentation of protected books "fair use." After a seven year battle, with various organizations within the publishing industry lining up on either side, the U.S. Supreme Court decided in favor of Google (Academics file, 2013).

The Deep Web

The Internet with which most users are familiar is indexed so sites will turn up in searches. Sites that wish to be anonymous and unsearchable do not exercise the option to be indexed and are therefore "dark" to the typical Internet user. This very large region in cyberspace is called the Deep Web and is the province of intelligence agencies, political dissidents, and black marketeers. The best known figure of the Deep Web is entrepreneur Ross Ulbricht, whose Silk Road emporium provided a worldwide customer base of almost a million people with $1.2 billion worth of contraband. His arrest in 2013 shed light on a global, bitcoin-driven marketplace where illegal materials and human trafficking were conducted (Grossman, Newton-Small, Roy, & Stampler, 2013).

Conclusions

While appearing at a computer conference, President Bill Clinton observed, "When I took office, only high energy physicists had ever heard of what was called the Worldwide Web. [Now,] even my cat has its own page" ("Best Internet Quotations," 2005). His words would prove to be a concise encapsulation of the brief but explosive history of one of the most significant technological accomplishments of modern human history.

The Internet was created without a need for government regulation, since it was funded by the government for non-commercial purposes. When its fundamentals were duplicated and improved upon in the private sector, the Internet rapidly evolved into a worldwide network that presented seemingly limitless amounts of information, improved global communications and became one of the main drivers of the 21st century economy.

In light of the fact that the Internet was born free of statutory enforcement on a number of fronts, its growth meant those seeking to protect its users from illegal or unethical practices would have to attempt to keep pace with the system's ongoing expansion. Those committing criminal acts or sharing sensitive information have long enjoyed an advantage in this regard, since enforcement officials have had to act in reactive rather than proactive fashion.

As this paper has demonstrated, the nexus between the management of Internet technology and legal and regulatory entities remains thin, due in no small part to the increasing complexity of the network itself and the reluctance of users to allow legal intervention. In the case of the management of such technology in the health care system, the fact that so many different avenues and resources for health care professionals means that the application of comprehensive legal protections is an ongoing and oft-frustrating pursuit. The issues concerning the legal protection of music copyrights on the web echo this point and add the fact that challenges remain for law enforcement attempting to stem illegal activity in a complex environment that traditionally frowns upon government intervention.

The Internet has long developed outside of the statutes of national governments. The installation of consumer and copyright protections and efforts to combat certain illegal actions are therefore often piecemeal and specific to the state or country which is conducting such pursuits. As long as an expanding and increasingly complex Internet continues to develop (and does so in the relative absence of international government intervention), it is likely that this gulf will be maintained.

Terms & Concepts

ARPANET: 1960s-era computer network that gave rise to the modern Internet.

Delphi: First private, commercial version of the modern Internet.

Electronic Signatures in Global and National Commerce Act: 2000 US law that created consumer protections for the secure handling of personal data.

Health Insurance Portability and Accountability Act (HIPAA): 1996 US law that ensured sensitive patient records remained in the hands of proper parties.

Bibliography

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Suggested Reading

Engel, C. (2006). The role of law in the governance of the Internet. International Review of Law, Computers and Technology, 20(1/2), 201-216. Retrieved August 8, 2009 from EBSCO Online Database Academic Search Complete. http://search.ebscohost.com/login.aspx?direct=true&db=a9h&AN=21871124&site=ehost-live.

Goddard, D. (2000). Does the internet require new norms? International Law Forum du Droit International, 2, 183-195. Retreived August 8, 2009 from EBSCO Online Database Academic Search Complete. http://search.ebscohost.com/login.aspx?direct=true&db=a9h&AN=12509732&site=ehost-live.

Mangan, K. S. (2000). Law schools can't meet the demand for courses on Internet issues. Chronicle of Higher Education, 47, A12-A13. Retrieved August 8, 2009 from EBSCO Online Database Academic Search Complete. http://search.ebscohost.com/login.aspx?direct=true&db=a9h&AN=3580334&site=ehost-live.

Miller, S. F. (2003). Prescriptive jurisdiction over Internet activity. Indiana Journal of Global Legal Studies, 10, 227-254. Retrieved August 8, 2009 from EBSCO Online Database Academic Search Complete. http://search.ebscohost.com/login.aspx?direct=true&db=a9h&AN=10800211&site=ehost-live,

Satola, D. (2007). Legal aspects of Internet governance reform. Information Polity: The International Journal of Government & Democracy in the Information Age, 12(1/2), 49-62. Retrieved August 8, 2009 from EBSCO Online Database Academic Search Complete. http://search.ebscohost.com/login.aspx?direct=true&db=a9h&AN=26619524&site=ehost-live.