Internet and Online Law

This article provides a synopsis of the dynamic body of Internet and online law. The overview introduces the components of intellectual property law that have been most challenged by the rise of Internet usage, including copyright law, patent law, and trademarks and domain names. This article examines central issues in Internet and online law, including questions surrounding the right to privacy, freedom of speech, and transmission of spam. In addition, this article describes some of the factors affecting commerce conducted over the Internet, including contract formation, electronic signatures, and taxation. Finally, brief examinations of areas emerging in Internet and online law are provided, including sections on pharmaceutical sales over the Internet, Internet voting systems, and the electronic distribution and promotion of securities-related materials.

Keywords Click-wrap Agreement; Cookies; Copyright; Domain Name; Electronic Signature; Encryption; Shrink-wrap Agreement; Spam; Trademark

Overview

The world of Internet and online law is dynamic, expanding and increasingly important. As emerging technologies push the boundaries of the current legal landscape, courts and lawmakers are forced to consider the implications that arise from the intersection of laws and cyberspace, both in interpreting laws and in drafting new laws and judicial decisions. Email and a virtual presence enable businesses of almost any size to compete in the global economy. However, these same capabilities raise questions about how commerce and information exchange over the Internet can effectively be regulated by law and the appropriate body of law that should regulate the online environment, especially when the reach of cyberspace crosses the traditional physical boundaries that divide nations, states, and cities.

Lawmakers and the courts continually attempt to answer the difficult questions that frequently arise in Internet and online law. But even as solutions to some questions are formulated, technological advances continue to generate even more difficult issues that will need to be addressed. The pace at which our current legal framework must be developed and adapted to new technological capabilities and business, scientific and medical possibilities is unmatched in the history of the world. However, by continuously looking to the basic constitutional rights and liberties that have remained a part of the US legal system, courts and lawmakers have been able to create a body of Internet and online law that largely tracks the existing legal framework. Thus, a body of electronic law has evolved out of traditional legal principles that courts and lawmakers have extracted from legal precedents and applied to the issues raised by the Internet and online environment. The body of Internet and online law that has been created is well-integrated into the legal framework that has governed the US since its inception.

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

Intellectual Property in the Online Environment

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 an inventor may apply for and the government may grant so that inventors may manufacture, use or sell a product or process that they have invented for a certain number of years without the risk of a competitor copying their invention and profiting from it.
• 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 on the Internet and in the online environment by several laws, some of which have been adapted from existing laws while others have been drafted exclusively to govern intellectual property issues in cyberspace. The following sections describe the copyright, patent and trademark protections that regulate the Internet and online environments.

Copyright Law

Copyright laws protect a wide range of original works of authorship. While copyright law has long been associated with the protection of written words, such as books, magazine articles and poetry, copyright law also protects written words in the electronic environment, such as those that appear on websites and in software programs. In addition to written words, copyright laws also protect visual images such as photographs, pictures in digital formats (such as jpeg and gif) and art created with software programs. Finally, copyright law protects sheet music, recorded music on albums and compact discs as well as digital music files, such as mp3 formats.

A copyright is traditionally understood to mean that it is illegal to duplicate copyright-protected work without permission. However, copyright law provides many additional protections. The US Copyright Act also gives the copyright holder the exclusive right to reproduce or perform the copyrighted work publicly or distribute copies of the work by sale, lease, lending, or some other transfer of ownership. In addition, the copyright owner may also prevent others from doing any of these things. If the copyright protection is violated, the copyright owner may take legal action against the violator for copyright infringement.

Copyright Infringement

Copyright infringement occurs whenever an idea or expression is copied, reproduced, or distributed without the permission of the copyright holder. Copyright protections automatically arise under US law when a work is created and fixed in a tangible medium, so the creator of an original work is not required to apply for a copyright to obtain legal protections. However, many authors and creators do file for copyright protections because the process establishes a public record of the copyright claim. In addition, an author or creator must generally obtain a copyright for original works before filing a copyright infringement lawsuit in court.

Digital Millennium Copyright Act

In the electronic environment, the Digital Millennium Copyright Act of 1998 (DMCA) established civil and criminal repercussions for those who bypass encryption software and various technological antipiracy protections. In 2000, a federal district court held that efforts to decrypt the encryption technology that has been created to protect digital creations such as movies, music and videos from illegal duplication or distribution violate the DMCA. Based on this ruling, record labels and other manufacturers and producers began to take more aggressive steps to prevent individuals from illegally copying or downloading digital and music files, including filing legal actions for injunctions and damages. In 2010, a series of exemptions were issued relating to some film DVDs, computer programs, video games, and e-books.

Digital Rights Management

Copyright protections on the Internet and online sites have also been enforced using various types of restrictive technologies. Digital rights management (DRM) is an umbrella term that refers to technologies that companies or copyright owners install on electronic devices sold to the public that prevent certain access or misuse of the devices or digital data installed on it. However, DRM technologies have not been approved by the government for copyright protection purposes, and some DRM technologies may 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. Because DRM technologies often fall within the scope of the protections provided by the DMCA, individuals who take steps to circumvent DRM technologies even for permissible uses of electronic devices or digital files may still be in jeopardy of violating the DMCA. Courts and lawmakers continue to work with consumer groups, publishers, and manufacturers to reach a better consensus on enforcing copyright protections while permitting fair use of new technologies.

Patent Law

A patent is essentially a contract between an inventor and the US government, whereby the government agrees to prosecute infringements of the patent in exchange for inventors bringing new products to the American consumers. If inventors did not feel that their inventions would be protected and their investment in their efforts able to be recouped through profits from the sale of the product, investors would have fewer incentives to create exciting and innovative new products. Unlike a copyright or trademark, however, patent rights do not automatically arise upon creation of the underlying invention. Patent rights are only created if a patent application is filed with the US Patent and Trademark Office, and the application is ultimately granted.

Patent law has become increasingly significant with the rise of the Internet. For instance, both software and certain business methods may be protected by patents in the US. While software is also generally protectable by copyright law, there are differences between these two forms of protection. Copyright law requires that the protected subject matter be original, while patent law requires that it be novel and neither obvious nor an obvious variation of a prior patent.

Business-method patents are increasingly used by Internet companies to protect innovative sales or service processes that are unique to a company or product. For instance, Amazon obtained a patent for its "1-click" payment process, allowing consumers to store payment, billing, and shipping information on its database and make one click on the appropriate hyperlink to complete a sales transaction, rather than re-entering this information.

Because a patent only gives its owner the right to forbid others from making, using, or selling the covered invention, owning a patent does not maximize the profits that inventors can recover from widespread distribution of their invention. Thus, many patent owners license the patent to others for a fee for permissible use of the invention in addition to enforcing the patent against misuse by suing violators for patent infringement. Because of these options, patent law in the online environment has become a very complex area for courts, lawmakers, companies, and inventors. Patent infringement on the Internet is often costly to detect and prosecute. As a result, patent holders often opt to sell a license to individuals, competitors or even patent infringers for fair use of the patented design or product rather than litigating the dispute.

Trademarks & Domain Names

Trademarks

A trademark includes any word, name, symbol and/or device that is implemented by an individual to find and categorize his or her goods from those assembled and exchanged by others. Trademark infringement may occur online if an existing trademark is used on a competitor's products or website without permission. Because trademarks can be copied with ease using electronic files, trademark infringement can be more widespread and difficult to detect in cyberspace. In addition to trademark infringement, another abuse of trademark law in the online environment is trademark dilution, which occurs when a known trademark is placed on unauthorized goods and services, regardless of whether consumers would be confused by the misuse of the trademark. 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. Thus, holders of trademarks may use the federal court system to enforce their rights and intellectual property protections.

Not every word, name, symbol, or device can function as a trademark, and some trademarks are stronger than others. There are generally five categories of trademarks that are separated by strength and uniqueness of the mark: "Fanciful, arbitrary, suggestive, descriptive and generic" (Kaufman, n.d., ¶13).

• "A fanciful trademark is one that is created for the sole purpose of functioning as a trademark, such as Xerox for reprographic supplies and Kodak for photographic supplies. Fanciful trademarks are the strongest trademarks because they are words that were invented to market a product and few competitors make a claim to the same trademark for their products" (Kaufman, n.d., ¶14).
• "Arbitrary marks are words that have some relevance to consumers but are not immediately associated with the products and are still generally strong trademarks. For instance, V-8 for vegetable juice, and Snickers for candy bars are arbitrary marks" (Kaufman, n.d., ¶15).
• "A weaker type of mark is known as the suggestive trademark. These trademarks generally describe or suggest some quality or character of the product they represent, such as Chicken of the Sea for tuna fish or Greyhound for transportation services. While suggestive marks are protectable as trademarks, descriptive marks generally are not protectable and thus are not enforceable against third parties" (Kaufman, n.d., ¶16).
• "Descriptive trademarks are those which describe some aspect, characteristic or quality of the products on which they are used, such as raisin-bran for bran cereal with raisins and yellow pages for organized telephone number listings" (Kauman, n.d., ¶17).
• "The final category of marks, namely generic terms, cannot constitute trademarks. The name of a product or service itself can never function as a trademark" (Kaufman, n.d., ¶19).

Domain Names

In the online environment, domain name violations comprise a significant portion of trademark infringement cases. Domain names function similarly to trademarks in that domain names represent a product, company, or service by providing an electronic address whereby online users may access information about the product, company or mirrors a corporate name or well-known individual or organization for the purposes of later selling rights to the domain name at an inflated price, is probably the most prominent form of trademark violation on the Internet.

In deciding trademark infringement cases based in cyberspace, courts consider several factors, including the strength of the trademark, the similarity of the trademark to the domain name, the degree of confusion and the intent of the domain name registrant in choosing the domain name. However, these factors are open to interpretation and often there are no clear-cut answers to alleged trademark violations in cyberspace. Courts are still struggling with how to apply traditional trademark infringement law in the context of the Internet and online environment.

Key Issues in Internet & Online Law

Privacy

The exponential growth of the Internet for personal correspondence, electronic commerce, marketing, and networking has given rise to growing concerns about the rights to privacy for the millions of individuals who access and use the World Wide Web. Every time a user visits a Web site, an electronic trail is created that includes personal demographic information about the user and the computer used to access the Internet. Some businesses gather and track this information using computer files called cookies, which are portions of text delivered by a server to an Internet browser and then given back untouched by the browser every time it approaches the server. This capacity to track Internet usage has raised concerns that businesses will compile and use the information for commercial purposes without the consent of individuals.

Privacy policies for online services such as Google and social networks like Facebook have come under increasing scrutiny in the 2020s for issues such as search history, email privacy, user information, and targeted advertising. Issues with online privacy increasingly relate to things like cyberstalking, identity theft, social profiling, and location disclosure. The US government and the National Security Advisory (NSA) under President Barack Obama even made news for data spying in 2012 and 2013. The social media app Tik Tok received significant negative press in the early 2020s as their software was found to invade users' privacy. This eventually led several states and the federal government to limit individuals' access to the app.

Constitutional Protections

Although privacy is generally regarded as an important interest, both in the online environments and as an individual right, the United States Constitution does not contain an express or enumerated right to privacy. Thus, current privacy protections have been derived from implied rights contained in other Constitutional provisions. For instance, the Fourth and Fifth Amendments, made applicable to the states through the Fourteenth Amendment, offer various forms of protections against unwarranted government intrusions. The Fourth Amendment protects people from unreasonable search and seizure tactics. The Fifth Amendment protects individuals from government actions that could result in self-incrimination.

Additionally, the US Supreme Court declared in Griswold v. Connecticut, 381 US 479 (1965), that the Bill of Rights provides what it deemed to be "zones of privacy," or areas or locations where privacy should be expected. For instance, individuals should be able to enjoy a "reasonable expectation of privacy" within their homes or regarding the contents of their purse or luggage. Thus, these areas may not be entered or searched by government officials without following legal procedures, such as obtaining a warrant supported by probable cause that a law has been violated.

The Privacy Act of 1994

Beyond these Constitutional protections, there are several federal laws that contain privacy protections. The Privacy Act of 1994 establishes necessities that must be obtained before management agencies can reveal records and documents that it owns and which contains personal information about individuals. The Cable Communications Protection Act is also applicable to cable television operators and contains privacy protections that cover the personal data or information that cable television operators gather about subscribers.

Omnibus Act

Title III of the Omnibus Crime Control and Safe Streets Act (Omnibus Act) passed in 1968, known as the wiretap statute, established Fourth Amendment requirements that government agencies must satisfy to use wiretaps to capture certain communications, including obtaining a valid search warrant based on a showing of probable cause of illegal activity. This legislation provided important privacy protections for many years. However, advances in wire and electronic communications eventually exceeded the scope of the existing legal framework, and concerns were raised that the existing wiretap laws were inadequate to protect the rights of individuals from unwarranted privacy intrusions. In 1986, the Electronic Communication Privacy Act (ECPA) was enacted, which amended the wiretap statute. ECPA contains two key provisions. Title I applies to the interception and disclosure of wire, oral and electronic communications, and Title II applies to stored wire, transactional and electronic communications. Violations of either title can result in criminal and civil liability. Many state constitutions also offer greater privacy protections than federal laws.

As the Internet and other forms of electronic communication and commerce develop, Internet and online law must continue to adapt to these advances. Courts and lawmakers will undoubtedly be challenged to consider what privacy protections individuals may expect in the online environment and seek ways to incorporate these protections as new technologies are developed. In addition, courts, legislatures, and many public interest organizations must also weigh privacy interests against other important security interests such as electronic communications and the Internet are often used to coordinate criminal activity.

Free Speech & the First Amendment

The First Amendment to the US Constitution protects, among other things, the freedom of expression. This provision puts limitations on the government's ability to regulate the rights of individuals to free speech and expression. One area where this has been significantly debated in the online environment is the area of obscenity. The Supreme Court held in Roth v. United States, 354 US 476 (1957) that immorality was not included in the definition of constitutionally protected speech and press. However, the test for obscenity is not always clear. Courts use a three-pronged test to define obscene materials, which includes attributes such as arousing "prurient interests" that do not conform to "contemporary community standards" or containing words or images that are patently offensive or lacking in "serious literary, artistic, political or scientific value."

The debate over freedom of speech in the online environment has been particularly rigorous over the widespread dissemination of images of pornography on the Internet. Some argue that pornographic images are a form of free speech and, while offensive to some people, are not inherently illegal and thus should not be prohibited from access or distribution over the Internet. Others argue that such images are not regulated sufficiently, which permits the possibility that children may view pornographic images during routine computer use. While courts have acknowledged that some forms of adult images fall within the purview of free speech, the First Amendment does not provide unlimited rights to free speech. Courts have found certain materials to be obscene, and thus not protected by the First Amendment and legislators have enacted laws to regulate this area. For instance, the Communications Decency Act of 1996 mandates that it is a crime for an individual or group to intentionally transport vulgar material for sale or distribution though by using any kind of interactive computer service. Federal and state laws have also been enacted that make it a crime to establish, allocate, exchange, or possess child pornography. While these laws have been attacked by opponents on constitutional grounds, they have been upheld by numerous courts and continue to provide protections for minors from sexual exploitation through the creation of child pornography or from exposure to pornography online.

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 email addresses that are listed on web pages and by 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” (Cook, et.al., 2004, p. 9). Enforcement of CAN-SPAM is “largely overseen by the Federal Trade Commission (“FTC”), state attorneys general and internet service providers. Under the law, each violation of CAN-SPAM’s provisions is subject to fines of up to $11,000. In addition, the FTC adopted a rule that requires senders of spam messages that contain sexually oriented material to include the warning “SEXUALLY-EXPLICIT:” in the subject line, or face fines” (Cook, et.al., 2004, p. 9).

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 spam messages increasingly contain viruses and other forms of harmful programming that can disable or even destroy the computers of email recipients who unknowingly open these unsolicited emails. Fortunately, the public has become increasingly aware of the dangers that spam can wreak and many email 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. After 2012, spam traffic had decreased to a five-year low, due in part to email filters and user education, but in 2022, approximately 49 percent of the emails sent globally were spam, an increase from the prior year (Kulikova et al., 2023).

Commerce & the Internet

Contract Formation

Transacting business over the Internet or in the online environment raises unique legal issues. Traditionally, contracts were formed when the parties met to sign documents that detailed the terms of their agreement. Usually, these contracts were written, and some transactions require that the key terms of a contract and the signatures of both parties be in writing for the contract to be valid. However, many modern transactions are conducted online between individuals and businesses who never meet, may not negotiate the terms of their agreement and do not always keep hard copy records of the transaction or agreement. In the online environment, in particular, hard copy contracts are inefficient in that they cannot be exchanged in the speed with which a transaction may be conducted over the Internet, and they are cumbersome to file and preserve as records of every agreement or transaction completed online.

Instead of traditional contracts, many web-based businesses and services are using high-tech contracts such as shrink-wrap, click-wrap, or browse-wrap agreements to complete transactions online. These contracts offer many advantages over hard-copy contracts, particularly regarding the speed and ease with which they may be exchanged and formed. However, they also raise novel legal issues about their scope and validity that courts are grappling with how, when, and whether to enforce them. The following sections describe these agreements in greater detail.

Shrink-wrap Agreements

Shrink-wrap agreements are license accessions or various terms and circumstances of a contractual sort that can only be read and agreed upon by the consumer after the product has been opened. The agreements are frequently used with computer software products and often contain several legal terms that relate to how the software may be used. Shrink-wrap agreements stipulate that by breaking the shrink wrap, or the cellophane that seals the box and its contents, the purchaser agrees to abide by the terms of the agreement. Some of these terms may include provisions that make it illegal for the purchaser to duplicate the software, distribute copies of it or use the software in ways other than those described in the agreement.

Shrink-wrap agreements are controversial because some opponents have argued that consumers should not be obligated to abide by the terms of an agreement that they might never read. Further, these agreements provide no opportunity for consumers to negotiate their terms. However, courts have been willing to uphold these forms of agreements, although there is no clear precedent on their legality. In ProCD v. Zeidenberg, the court upheld a shrink-wrap agreement and noted that consumers buy airline tickets, concert tickets and other services in transactions where the complete terms of the agreement may not be accessible until the transaction is complete or are otherwise difficult to read. Courts have been less willing to uphold these types of agreements unless the terms are conspicuously displayed and the consumers make some unambiguous form of assent, such as clicking an "I Agree" button or clicking on specific links to access components of the products.

Click-wrap Agreements

Click-wrap agreements (also known as clickthrough agreements) are an online variation of shrink-wrap agreements and are commonly used with software licenses. Click-wrap agreements are often used when consumers access software on the Internet to download to an individual computer. Typically, an agreement is displayed during the download process and the Web user must click on a link or button to assent to be bound by the terms of the agreement before downloading the software or completing a transaction. Like shrink-wrap agreements, click-wrap licenses are controversial in that they are generally unilateral, and their terms may not be negotiated, and because consumers may have difficulty accessing the terms of these agreements for review once they have clicked on the link to accept the terms. However, in Groff v. AOL, a court enforced a clause in an America Online user agreement that held that the plaintiff effectively "signed" an agreement by clicking an "I Agree" button twice. It has become widely accepted that most click-wrap agreements are legally binding and thus enforceable.

Browse-wrap Agreements

A browse-wrap agreement is a contract that a user may view online but does not have to take any affirmative action to indicate assent to their terms. For example, many websites have adopted "Terms of Service" or "Terms of Use" agreements that are accessible from a link at the bottom of the page. Although a Web user may never click on these links to review the terms of use, the terms are made available, and a user is thus implicitly charged with accepting them in that users who have any doubts about the terms may access these agreements and decide whether to continue accessing the website. Courts have been reluctant to find these agreements to be binding or legally enforceable without some affirmative action that users are agreeing to their terms. Without some indication of manifest assent, courts are more likely to find that browse-wrap agreements are invitations, not conditions, for users to agree to their terms.

Electronic Signatures

With the rise in global communications and business transactions, contracts may be transmitted electronically so that the contracting parties never meet in person to sign the appropriate documents. To facilitate electronic commerce and to provide legal validity to contracts that are entered into via electronic transmission, Congress passed the Electronic Signatures in Global and National Commerce Act, also known as the E-Sign Act. Effective as of October 1, 2000, the E-Sign Act provides that a signature or contract related to a transaction will not necessarily be denied in its legal effects or validity; enforceability will still be maintained despite the electronic-based format. By “electronic,” the act means any technology having electronic, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities. Thus, the E-Sign Act provides that, if a contract fulfills other legal needs, it will be valid even if the parties discussed and agreed to it through email or other Internet communication techniques.

Digital signatures are a common type of electronic signature. Digital signatures are digital codes that can be fastened to an electronically transmitted message to establish who the sender of a message or the signer of a document is, and to ensure that the initial content of the message or document that has been sent remains the same. Many individuals and companies depend on these technologies to ensure the validity and enforceability of the many contracts they enter using facsimiles, the Internet, or some other form of electronic transmission.

Taxation

Taxation in cyberspace assumes various forms, such as a sales tax or a use tax. A sales tax is a tax paid by the consumer when an item is purchased as tangible personal property and is then gathered by the seller. It is charged on the gross amount of the sale or leased transaction. 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 allow individual states to set tax rates and collect tax revenues from mail-order and Internet purchases made within the state. Other legislators, particularly those at the federal level, have opposed taxing Internet transactions because of the difficulty in administering and regulating an online tax system, and to continue to allow e-commerce to flourish in the online environment.

In the United States, President George W. Bush enacted into law a fleeting ban on Internet taxes that would expire on November 1, 2007. The law, “Internet Tax Freedom Act Amendments Act of 2007,” added seven years to the moratorium on Internet sales taxes by prohibiting state and local governments from imposing taxes on Internet access and electronic commerce. The act was set to expire November 1, 2014, but after several extensions, the law was signed into permanent law by President Obama in 2016.

Application

Emerging Areas of Internet & Online Law

Pharmaceutical Sales & the Internet

Sales of prescription drugs over the Internet have grown exponentially in the twenty-first century. However, while the sale of prescription drugs through traditional retail channels is highly regulated, these same protections are often not present in online pharmaceutical purchases. For instance, in retail drugstores, most pharmaceuticals can be obtained only with a prescription from a physician and both the physician and the pharmacist dispensing the medication must be licensed professionals. Even more, the prescription drugs themselves must have undergone extensive testing by manufacturers and received approval by the US Food and Drug Administration (FDA) before they are made publicly available. However, in online pharmaceutical sales, consumers cannot be sure a licensed physician or pharmacist is dispensing the medication, nor can they be certain that the products themselves are safe and authentic medications.

Additionally, some online pharmacies permit practices that are not within the scope of traditional pharmacy practices. For instance, some web-based pharmacies allow customers to receive a prescription for medication without a physical examination by a physician but by completing a relatively simple questionnaire. Online customers simply respond to questions about their medical condition and health history and a reportedly licensed physician at the online pharmacy evaluates the questionnaire and authorizes the release of medication to the patient if justified. Still other online pharmacies located outside of the US, but still accessible to most American Internet users, simply sell a wide range of pharmaceutical drugs without requiring any prescription at all. While some of the drugs available on these websites are relatively common, even carefully controlled prescription drugs are often through online pharmacies without a medical examination.

Although it is illegal under certain circumstances to import prescription drugs that are not approved by the Food and Drug Administration (FDA) into the United States, foreign-based pharmacies continue to sell unregulated prescription drugs to American consumers. Further, these drugs may be extremely unsafe to consumers because they may be counterfeit copies of FDA-approved drugs or contain substances that are toxic or simply unlisted on packaging labels. The emergence of these and other questionable activities by online pharmacies has prompted Congress, the FDA, and federal and state legislatures to work together toward restricting sales of unregulated pharmaceuticals to US consumers. While lawmakers have implemented policy changes, heightened government oversight and increased enforcement of existing consumer protection regulations of prescription drugs, government officials are continuing to examine ways to better monitor and regulate pharmaceutical sales over the Internet.

Voting & The Internet

The possibility of widespread use of voting machines that collect or transmit voting data over the Internet has been widely debated. Preserving the secrecy of individual ballots is a central concern in elections and voting systems. To ensure the authentication, secrecy and security of individual votes, Internet voting systems use several types of technologies. These include encryption, or the scrambling of information in data transmissions to send the information confidentially and the use of personal identification numbers, passwords, or digital signatures. In addition to protecting the security of individual votes, other technologies are used to secure the databases and voting machines used in the election process against intrusion by hackers or vote tampering, such as firewalls, antivirus programs and intrusion detection systems.

Despite these technological developments, many voters and officials remain dubious about the use of Internet-based voting machines in elections. Concerned citizens and consumer groups have called for greater transparency about voting machine technologies, and have urged officials to abstain from transmitting votes or election results over the Internet until these systems and the programs that run them can be constructed in a way to ensure the accuracy and confidentiality of individual votes and election tallies. Without proper protections to preserve the integrity of voting data, any vulnerability that could allow for the misuse or abuse of the voting process, such as the possibility of casting multiple votes or changing or erasing votes, could undermine the public's faith in the election process. In addition, some critics have argued that Internet voting and remote access to polling places could erode the commitment of citizens to the electoral process. Still others have pointed out that Internet voting could favor citizens with computers and Internet access, and thus potentially eliminate the voting power of individuals who cannot afford access to computers or lack the education to use the Internet or impede their constitutional right to express their voices through their votes.

Securities & The Internet

In 1995, the Securities and Exchange Commission (SEC) issued a statement that opened the possibility for conducting securities transactions over the Internet and authorized the electronic delivery of offering materials. To successfully deliver offering materials, issuing companies or brokers must meet three basic guidelines.

• First, there must be timely and adequate notice of the delivery of information, such as a notice by email or postal mail.
• Second, there must be relatively easy-to-use electronic communication systems available for information exchange and communication.
• Third, there must be evidence of delivery, or reasonable assurance that investors receive the information, such as through email return receipt.

Each of these components must be met before delivery is accomplished.

To regulate promotion and issuance of securities over the Internet, the SEC created an Office of Internet Enforcement in 1998 within its agency with the task of monitoring securities transactions over the Internet to ensure that these dealings were safe for the investing public. Since its formation, enforcement agents have investigated certain sham investment schemes and securities abuses that have flourished in the online environment, such as ponzi schemes, scalping and pyramid schemes. Although these schemes are created over the Internet, SEC agents and other government officials have prosecuted the individuals responsible for these fraudulent transactions largely using traditional securities laws. Thus, use of the Internet for securities transactions does not substantially change the nature of securities fraud or the laws that may be used to prosecute those who participate in illegal securities related activities.

Conclusion

Many people all over the world use the ease of the Internet to access information, perform research, purchase retail, make financial transactions and correspond. Any of these transactions can raise unique legal questions. Internet and online law, or the laws controlling the use of computers and the Internet, is composed of relevant court decisions and the state and federal laws and administrative regulations that relate to the use of the World Wide Web. Intellectual property has both flourished, and been threatened by, the proliferation of information on the Internet. Lawmakers and courts have worked to adapt copyright, patent, and trademark laws to the online environment. In addition, widespread use of the Internet by both consumers and businesses has raised questions about how to preserve ideals such as the right to privacy without any explicit provision for such a right in the US Constitution. Even basic rights contained in the First Amendment, such as freedom of speech, have challenged courts, legislators, advocacy groups and state and local officials to consider how to protect basic freedoms in the complex arena of cyberspace. Some forms of speech, such as spam or pornography, have been limited or even held to be illegal. However, electronic commerce has grown exponentially as ever more users gain access to the World Wide Web. Internet and online law encompass such areas as electronic contract formation using shrink-wrap and click-wrap licenses and browse-wrap agreements, the transmission of electronic and digital signatures and taxation systems for electronic commerce. Each of these areas contain complex questions about the validity and enforceability of commerce conducted electronically. As the Internet continues to challenge traditional forms of daily life, courts and lawmakers are considering how to construct legal frameworks for pharmaceutical sales over the Internet, web-based voting systems, and the sale of securities and electronic distribution of offering materials. Although these issues raise novel questions that are unique to the online environment, many traditional laws have been adapted to guide courts and lawmakers in applying existing legal principles to new issues. However, this tension is far from over, as the new technologies continue to push boundaries and challenge our ability to develop a sound body of Internet and online law.

Terms & Concepts

Biometrics: Security technology designed to authenticate users by capturing human characteristics.

Choice of Law: A provision in a contract that designates the law that will govern any contractual dispute.

Click-wrap License: A license that materializes onto a computer screen once software has been installed; the purchaser must agree to the license for the installation to continue and complete.

Computer Crime: Any form of banned activity having to do with a computer, its systems, software, or add-ons.

Cookies: Smaller text files that a computer stores to mark the path of a user’s Internet browsing and viewing practices.

Copyright: The restricted right of authors to publish, print, or distribute a creative and intelligent product for a statutory period.

Cracking: An intentional, malicious hacking of a computer or network of another, which constitutes criminal behavior.

Defamation: Verbal or written statements that are falsified and intended to harm an individual or group’s character and reputation.

Digital Certificates: A form of digital identification that enables only authenticated users to access secured data.

Domain Name: Refers to the electronic address of a website on the Internet.

Electronic Communications Privacy Act (ECPA) of 1986: An act that bans the unpermitted interception, access and advertisement of wire or electronic exchanges of information.

Encryption: A process by which plaintext data is encoded by use of a mathematical algorithm to create cipher text, which cannot be read without being decrypted back to readable text.

Internet Corporation for Assigned Names and Numbers (ICANN): A nonprofit, nongovernmental organization with an international board of directors that manages the domain name system and creates new top-level domain names.

Packet: A bundle of data that is sent from one user to another via the Internet.

Software Piracy: The process of replicating and selling products protected with copyrights without receiving permissions from or payment to the copyright owner.

Trademark: A unique mark, slogan, symbol, or emblem that a manufacturer establishes and affixes to its products to achieve further advertisement and to be easily identified in the market and by its consumers.

Bibliography

Barclay, C. A. (2013). A comparison of proposed legislative data privacy protections in the United States. Computer Law & Security Review, 29, 359–367. Retrieved December 2, 2013, from EBSCO Online Database Business Source Premier. http://search.ebscohost.com/login.aspx?direct=true&db=buh&AN=89532716

Brown, E. (2007). Internet law in the courts. Journal of Internet Law, 11, 22-25. Retrieved November 7, 2007, from EBSCO Online Database Business Source Premier. http://search.ebscohost.com/login.aspx?direct=true&db=buh&AN=26977866&site=ehost-live

Kelley, B. (2007). Spyware and data security bills advance. Journal of Internet Law, 11, 25-28. Retrieved November 7, 2007, from EBSCO Online Database Business Source Premier. http://search.ebscohost.com/login.aspx?direct=true&db=buh&AN=26225670&site=ehost-live

Kulikova, T., Shimko, I., Kovtun, A., Svistunova, O., & Dedenok, R. (2023, February 16). Kaspersky’s 2022 spam and phishing report. Securelist English Global. Retrieved June 10, 2023, from https://securelist.com/spam-phishing-scam-report-2022/108692

Milstein, L. (2007). Avoiding legal pitfalls on user-generated content sites. Journal of Internet Law, 11, 3-10. Retrieved November 7, 2007, from EBSCO Online Database Business Source Premier. http://search.ebscohost.com/login.aspx?direct=true&db=buh&AN=26633529&site=ehost-live

Mowshowitz, A. & Kumar, N. (2007). Public vs. private interest on the internet. Communications of the ACM, 50, 23-25. Retrieved November 7, 2007, from EBSCO Online Database Business Source Premier. http://search.ebscohost.com/login.aspx?direct=true&db=buh&AN=25690084&site=ehost-live

Mtima, L. (2007). The changing landscape of internet use and dissemination of copyrighted works: New tools, new rules, or the same old regime? Computer & Internet Lawyer, 24, 1-10. Retrieved November 7, 2007, from EBSCO Online Database Business Source Premier. http://search.ebscohost.com/login.aspx?direct=true&db=buh&AN=26633514&site=ehost-live

Nair, A. (2007). Internet content regulation: Is a global community standard a fallacy or the only way out? International Review of Law, Computers & Technology, 21, 15-25. Retrieved November 7, 2007, from EBSCO Online Database Business Source Premier. http://search.ebscohost.com/login.aspx?direct=true&db=buh&AN=25085271&site=ehost-live

Richards, R. D. (2013). Compulsory process in cyberspace: Rethinking privacy in the social networking age. Harvard Journal Of Law & Public Policy, 36, 519–548. Retrieved December 2, 2013, from EBSCO Online Database Business Source Premier. http://search.ebscohost.com/login.aspx?direct=true&db=buh&AN=87434429

Riofrio, M. (2013). Scary times for online privacy. PC World, 31, 7. Retrieved December 2, 2013, from EBSCO Online Database Business Source Premier. http://search.ebscohost.com/login.aspx?direct=true&db=buh&AN=86983394

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 November 7, 2007, from EBSCO Online Database Business Source Premier. http://search.ebscohost.com/login.aspx?direct=true&db=buh&AN=26619524&site=ehost-live

Schroeder, P. (2007). House committee oks extension of internet access tax ban. Bond Buyer, 362(32732), 6. Retrieved November 7, 2007, from EBSCO Online Database Business Source Premier. http://search.ebscohost.com/login.aspx?direct=true&db=buh&AN=27101565&site=ehost-live

Suggested Reading

Bainbridge, D. (2007). Criminal law tackles computer fraud and misuse. Computer Law & Security Report, 23, 276-281. Retrieved November 7, 2007, from EBSCO Online Database Business Source Premier. http://search.ebscohost.com/login.aspx?direct=true&db=buh&AN=25197710&site=ehost-live

Ievdokymova, I. (2013). ACTA and the enforcement of copyright in cyberspace: The impact on privacy. European Law Journal, 19, 759–778. Retrieved December 2, 2013, from EBSCO Online Database Business Source Premier. http://search.ebscohost.com/login.aspx?direct=true&db=buh&AN=90526186

Jameson, R. (2007). Computer currency. Journal of Consumer Marketing, 24, 254-255. Retrieved November 7, 2007, from EBSCO Online Database Business Source Premier. http://search.ebscohost.com/login.aspx?direct=true&db=buh&AN=26633908&site=ehost-live

Schwartz, P. M. (2013). Information privacy in the cloud. University Of Pennsylvania Law Review, 161, 1623–1662. Retrieved December 2, 2013, from EBSCO Online Database Business Source Premier. http://search.ebscohost.com/login.aspx?direct=true&db=buh&AN=88101955

Zeller, S. (2007). Net debate revs up. CQ Weekly, 65, 937. Retrieved November 7, 2007, from EBSCO Online Database Business Source Premier. http://search.ebscohost.com/login.aspx?direct=true&db=buh&AN=24975133&site=ehost-live