By Obiter 07*
Cyberspace. The Final Frontier. With due apologies to Star Trek fans, a voyage to this new place of enterprise requires lawyers and laymen to have unique navigational skills that even Capt. Kirk would find challenging. The dips and turns of cyberspace law can prove to be quite tricky and treacherous.
It has been described as a “vast library” of “available and indexed publications” as well as a “sprawling mall offering goods and services.” It‘s also been called one big copying machine, for reasons we will find out later. But this library and this mall only exists online, with no concrete presence in the real world, and is in that sense intangible, although tangible goods and services may be sourced from it. The internet’s quality of being almost limitless defies any effort to keep it in check. Although its impact all-encompassing, we will try and look at certain points to pique the interest and to show how things are going.
Valid Document
Let us take up the bread and butter of legal relations - the contract - and see how it has morphed to have new characteristics as used in the internet. How do you say yes or as we say in legalese, express your consent to an agreement? In the real world, we simply sign an agreement and that is that.
On the internet, consent can deemed to have been given by merely clicking a button. Who really reads the lengthy terms and conditions of the license agreement before clicking yes? Assuming that you read that electronic contract, did you understand the ramifications? The agreement can provide that if you file suit, you can only do so in Timbuktu or some other inaccessible place. What law then will govern the agreement? How do you get someone to represent you in Timbuktu? And if you do win the case, how will the judgment be enforced?
If you receive an offer from someone via SMS and you answer with the typical “k”, did you know that this can already form a binding contract under the Philippine E-Commerce law as this can be considered to be an electronic document? Another country has even banned the use of SMS as a means for divorce declarations by Muslims.
It is interesting to note that at least three cases with cyber overtones have already reached our Supreme Court. One involved a labor case on the validity of notices sent by email which it found to be lacking in authenticity. Another was on the use of computer print-outs as basis for dismissal from employment which was invalidated again for lack of authentication. In another, the court allowed the use of print outs from computer diskettes in a criminal prosecution. We can expect more in the years to come.
Jurisdiction
Under Philippine law, the form of contracts is governed by the place where they are executed. But when you click on a contract here in the Philippines for a site that is located somewhere in Brazil, where did you actually execute it? Here or in Brazil? Or did you do so in every place along the path the electrical impulse traveled from your keyboard towards its destination?
In our jurisdiction, the place where a crime is committed dictates where the criminal case can be filed. But if the scam originates and is perpetrated offshore, how will the culprits be brought to justice? And would our courts even have jurisdiction? It has even been argued that the “borderless internet” is outside the criminal jurisdiction of one country. This very argument was raised before our Supreme Court involving an on-line gambling franchise granted by the PAGCOR yet claiming to be beyond Philippine jurisdiction since the gambling is done on-line. The case has since been decided on other grounds.
In a case involving cameras and naked women, the City of Tampa, Florida sought to enforce a zoning ordinance against adult entertainment providing webcam access to women who were at times naked. The court ruled that there was no such entertainment provided in the city as the offering occurs in “virtual space.” Is there new rule now - no site, no foul?
For a criminal case for libel, our rules provide that the place of first publication lays the venue. But in cases of cyber libel, where is the first publication for something posted on the internet to the world at large?
Consider this file swapping software which was targeted by a lawsuit from the entertainment industry filed in the U.S. The software was developed in Estonia, under commission from a company based in the Netherlands. This company sold the software rights to another company based in Vanuatu which has executives in Australia. The U.S. court ordered the developers to cooperate with the litigants but an Estonian court ruled otherwise. A Netherlands court held that local distributors of the software are not responsible for any piracy by its users. The current owner of the software argued that it is not subject to U.S. laws. Pretty complicated, right?
Law and technology
As an example of how complex the interplay of the law and technology can be in cyberspace, the right to free speech has been invoked by someone seeking to post the source code for a DVD decryption program that allows the copying of disks. Is this really free speech or an infringement of intellectual property? Everything is up for downloading and copying as the internet has likewise become notorious for allowing the wholesale infringement of intellectual property rights. Books, music and software seem there for the taking without the need to pay for it.
Even a domain name has been given constitutional protection. This has occurred in one instance where an individual used the name of a shopping mall which he was critical of and to which he appended the word “sucks.” Here in our country, a telecom company faced a similar situation where a critic was able to register its corporate acronym as a domain name for his website and used it as a pulpit for his views. A case was filed but this was apparently settled later on.
On the labor front, U.S. cases have recognized the right of the employer to monitor employee e-mail and use of the internet over any privacy expectations of the employee. It has sanctioned dismissals and disciplinary measures based on such monitoring. However, an employee has claimed that he should not have been dismissed from employment for visiting an adult chat room during working hours as this was only a result of trauma suffered during his service in Viet Nam. Hence, this was a form of discrimination against someone with a disability. Now that is one excuse not everyone can use. But he does argue that if those with drug or alcohol problems are placed in programs by the company, so should he.
It is now no longer “your money or your life” but “your money or your file”! Only recently, there was a report on a computer virus demanding that ransom be sent to a certain address otherwise it would start deleting your files. Once you did, you would get a number to deactivate the virus. And to give new meaning to the word “hijack”, one virus encrypts the data in a computer to deny you access and then demands payment before it can be opened.
In one case, law enforcers used a private individual as a “hacker vigilante.” They used information provided by an anonymous computer hacker as evidence against the accused for violating child pornography laws. The evidence was initially suppressed then allowed, since the government did not know of nor did it encourage the hacking. This seems to be a big loophole in the making for government abuse.
Private Information
The trickiest part for all of us - is our own identity and information on the internet. By simply buying something, you reveal so many details a lot of which can be used against you, not the least of which is your credit card number. Might be better to Mirandize ourselves each time we go on line: “You are now in the internet. You have the right to an attorney and should consult one before transacting, preferably one who knows the law in multiple jurisdictions. You have the right to remain anonymous. Anything you input can and will be used against you by hackers and other evildoers.”
And so the new saying might go: Cyberspace: The final frontier. This is the new age of new enterprises. Its never-ending missions: To explore new ways, to seek new targets and new markets; to legally go where no lawyer has gone before. For this, we can only have one admonition and it is not the Vulcan “Live long and prosper” but rather “Caveat Emptor.” Buyer Beware.
__________
Sometime litigator now corporate lawyer who has been in law practice for almost 15 years.. Some of his other writings have also appeared in more reputable publications.
Cyberspace. The Final Frontier. With due apologies to Star Trek fans, a voyage to this new place of enterprise requires lawyers and laymen to have unique navigational skills that even Capt. Kirk would find challenging. The dips and turns of cyberspace law can prove to be quite tricky and treacherous.
It has been described as a “vast library” of “available and indexed publications” as well as a “sprawling mall offering goods and services.” It‘s also been called one big copying machine, for reasons we will find out later. But this library and this mall only exists online, with no concrete presence in the real world, and is in that sense intangible, although tangible goods and services may be sourced from it. The internet’s quality of being almost limitless defies any effort to keep it in check. Although its impact all-encompassing, we will try and look at certain points to pique the interest and to show how things are going.
Valid Document
Let us take up the bread and butter of legal relations - the contract - and see how it has morphed to have new characteristics as used in the internet. How do you say yes or as we say in legalese, express your consent to an agreement? In the real world, we simply sign an agreement and that is that.
On the internet, consent can deemed to have been given by merely clicking a button. Who really reads the lengthy terms and conditions of the license agreement before clicking yes? Assuming that you read that electronic contract, did you understand the ramifications? The agreement can provide that if you file suit, you can only do so in Timbuktu or some other inaccessible place. What law then will govern the agreement? How do you get someone to represent you in Timbuktu? And if you do win the case, how will the judgment be enforced?
If you receive an offer from someone via SMS and you answer with the typical “k”, did you know that this can already form a binding contract under the Philippine E-Commerce law as this can be considered to be an electronic document? Another country has even banned the use of SMS as a means for divorce declarations by Muslims.
It is interesting to note that at least three cases with cyber overtones have already reached our Supreme Court. One involved a labor case on the validity of notices sent by email which it found to be lacking in authenticity. Another was on the use of computer print-outs as basis for dismissal from employment which was invalidated again for lack of authentication. In another, the court allowed the use of print outs from computer diskettes in a criminal prosecution. We can expect more in the years to come.
Jurisdiction
Under Philippine law, the form of contracts is governed by the place where they are executed. But when you click on a contract here in the Philippines for a site that is located somewhere in Brazil, where did you actually execute it? Here or in Brazil? Or did you do so in every place along the path the electrical impulse traveled from your keyboard towards its destination?
In our jurisdiction, the place where a crime is committed dictates where the criminal case can be filed. But if the scam originates and is perpetrated offshore, how will the culprits be brought to justice? And would our courts even have jurisdiction? It has even been argued that the “borderless internet” is outside the criminal jurisdiction of one country. This very argument was raised before our Supreme Court involving an on-line gambling franchise granted by the PAGCOR yet claiming to be beyond Philippine jurisdiction since the gambling is done on-line. The case has since been decided on other grounds.
In a case involving cameras and naked women, the City of Tampa, Florida sought to enforce a zoning ordinance against adult entertainment providing webcam access to women who were at times naked. The court ruled that there was no such entertainment provided in the city as the offering occurs in “virtual space.” Is there new rule now - no site, no foul?
For a criminal case for libel, our rules provide that the place of first publication lays the venue. But in cases of cyber libel, where is the first publication for something posted on the internet to the world at large?
Consider this file swapping software which was targeted by a lawsuit from the entertainment industry filed in the U.S. The software was developed in Estonia, under commission from a company based in the Netherlands. This company sold the software rights to another company based in Vanuatu which has executives in Australia. The U.S. court ordered the developers to cooperate with the litigants but an Estonian court ruled otherwise. A Netherlands court held that local distributors of the software are not responsible for any piracy by its users. The current owner of the software argued that it is not subject to U.S. laws. Pretty complicated, right?
Law and technology
As an example of how complex the interplay of the law and technology can be in cyberspace, the right to free speech has been invoked by someone seeking to post the source code for a DVD decryption program that allows the copying of disks. Is this really free speech or an infringement of intellectual property? Everything is up for downloading and copying as the internet has likewise become notorious for allowing the wholesale infringement of intellectual property rights. Books, music and software seem there for the taking without the need to pay for it.
Even a domain name has been given constitutional protection. This has occurred in one instance where an individual used the name of a shopping mall which he was critical of and to which he appended the word “sucks.” Here in our country, a telecom company faced a similar situation where a critic was able to register its corporate acronym as a domain name for his website and used it as a pulpit for his views. A case was filed but this was apparently settled later on.
On the labor front, U.S. cases have recognized the right of the employer to monitor employee e-mail and use of the internet over any privacy expectations of the employee. It has sanctioned dismissals and disciplinary measures based on such monitoring. However, an employee has claimed that he should not have been dismissed from employment for visiting an adult chat room during working hours as this was only a result of trauma suffered during his service in Viet Nam. Hence, this was a form of discrimination against someone with a disability. Now that is one excuse not everyone can use. But he does argue that if those with drug or alcohol problems are placed in programs by the company, so should he.
It is now no longer “your money or your life” but “your money or your file”! Only recently, there was a report on a computer virus demanding that ransom be sent to a certain address otherwise it would start deleting your files. Once you did, you would get a number to deactivate the virus. And to give new meaning to the word “hijack”, one virus encrypts the data in a computer to deny you access and then demands payment before it can be opened.
In one case, law enforcers used a private individual as a “hacker vigilante.” They used information provided by an anonymous computer hacker as evidence against the accused for violating child pornography laws. The evidence was initially suppressed then allowed, since the government did not know of nor did it encourage the hacking. This seems to be a big loophole in the making for government abuse.
Private Information
The trickiest part for all of us - is our own identity and information on the internet. By simply buying something, you reveal so many details a lot of which can be used against you, not the least of which is your credit card number. Might be better to Mirandize ourselves each time we go on line: “You are now in the internet. You have the right to an attorney and should consult one before transacting, preferably one who knows the law in multiple jurisdictions. You have the right to remain anonymous. Anything you input can and will be used against you by hackers and other evildoers.”
And so the new saying might go: Cyberspace: The final frontier. This is the new age of new enterprises. Its never-ending missions: To explore new ways, to seek new targets and new markets; to legally go where no lawyer has gone before. For this, we can only have one admonition and it is not the Vulcan “Live long and prosper” but rather “Caveat Emptor.” Buyer Beware.
__________
Sometime litigator now corporate lawyer who has been in law practice for almost 15 years.. Some of his other writings have also appeared in more reputable publications.
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