Hot Practice

By Margaret Graham Tebo

Regardless of your intended practice area, cyberspace law will always be there

No matter what area of law you decide to practice, you will at some point be called upon to counsel your clients about the vagaries of cyberspace.

Whether your client is a consumer dissatisfied with goods purchased via the Internet, a small business that needs to know whether it must collect tax on Internet sales, or a large company whose trademarked logo may be misappropriated on a web page, the Internet will be an inescapable part of every lawyer’s practice in the next century.

Among the hottest issues in cyber law is jurisdiction over Internet transactions. Traditionally, the question of jurisdiction has been settled by following geographic boundaries. But the World Wide Web makes it possible for people to do business without even knowing what country the other party is in. So, just where is the appropriate forum for suing a company when you don’t know where it’s located?

The issue is complicated by the number of countries from which Internet transactions may originate. Even less-developed countries might have Internet businesses within their borders, often set up by business owners with the express intention of thwarting jurisdiction in more developed countries.

"When you don’t know the origin of a company with whom you’re doing business on the Internet, that can be a big problem," says Thomas Vartanian, chair of the American Bar Association Business Law Section’s Committee on Cyberspace Law. "If the consumer is dissatisfied with the purchase, who do they complain to?"

So Vartanian’s committee set out to study that question with a global initiative called Jurisdiction in Cyberspace. The two-year project will culminate at the ABA’s annual meeting in July 2000, when the committee will present a series of white papers on nine areas of the law related to the Internet. Those nine areas are advertising/consumer protection, intellectual property, payment systems/ banking, privacy, public law/gaming, sale of goods, sale of services, securities, and taxation.

"Uniformity is an enormously important aspect of developing the law of the future," Vartanian says. "Geography is gone as a measure of jurisdiction. The question is, what’s next?"

In an effort to answer perplexing questions such as these, the committee has gathered lawyers from countries around the world to study various national and international laws and to make recommendations on uniform laws for Internet transactions. Committee members also come from every conceivable discipline of law in order to ensure consideration of the widest possible range of issues.

In addition to the jurisdiction project, Vartanian’s committee also houses several subcommittees on issues such as e-commerce, Internet infrastructure , liability of Internet service providers, Y2K readiness, and corporate aspects of information technology, which includes issues such as employee e-mail privacy, computer espionage, and similar issues facing employers in the technological age.

Other ABA sections are also taking on the issue of law and cyberspace. The Science and Technology Section’s Computer Law Division is studying issues such as online sales contracts, software licensing, and the so-called "click" issue—whether a consumer can be deemed to have accepted certain terms of sale or use without a signature by merely clicking a box on a computer screen.

"The host of issues is huge," says Scott Alter, the Computer Law Division’s vice chair. "Things like, what makes a contract binding when the negotiation and agreement is done solely online? Are digital signatures valid in court? Who can use private information that is stored on the Internet, such as medical records, buying habit information, etc.? It goes on and on."

Alter, who is a patent attorney, also sees a range of intellectual property issues on the Internet. For example, when a speculator buys the rights to a web domain name that is trademarked—such as Burger King, Ford, or Motorola—courts so far have found that the company that owns the name is generally not obligated to pay a high fee to "purchase" its name for ransom from the speculator. But what about more personal names, such as the name of a celebrity? Or a name such as "JonesFor Congress.com"? Alter says that some of these issues are addressed by the Digital Millennium Copyright Act, a federal law passed last year, but new questions seem to pop up daily.

Mary Lee Jenkins, chair of the Intellectual Property Law Section’s Special Committee on Trademarks and the Internet, agrees that intellectual property and privacy issues are going to continue to be hot topics.

"Every day there is some new way of sending, seeing, and retrieving information from the net," Jenkins says. "It’s now very easy for average people to copy or scan protected trademarks onto a web page with home equipment. Some do it with the intent of hurting the owner of the mark, but others are just ignorant and don’t realize that they are violating the law."

According to Jenkins, many companies fail to be diligent in policing use of their intellectual property on the Internet, and they often fail to recognize a problem until a great deal of damage has been done.

"We need to do a better job of educating both business clients and the public about the proper use, and the consequences of misuse, of registered intellectual property and other proprietary information on the Internet," she says.

Jenkins’ committee is also studying the domain name issue, including proposals to open the Internet to additional domains beyond the common ones known today, such as .com, .org, .net, .edu, and .gov.

All three lawyers suggest that students with an interest in cyberspace law take courses in intellectual property, constitutional and First Amendment issues, conflicts, remedies, international law/jurisdiction, and the Uniform Commercial Code. The UCC is being updated to include issues related to Internet transactions.

And, of course, join the ABA committees mentioned in this article.

For those who don’t expect to make the Internet a large part of their law practice, Jenkins has this reminder:

"No matter what type or size client you have, the word ‘Internet’ is going to come up. You need familiarity with the issues, or you’re going to be left behind."

Margaret Graham Tebo, a former Student Lawyer student editor, is a writer, lawyer, teacher, and literary agent in suburban Chicago.