What is Computer Law?

Copyright 1999 by Ronald B. Standler

In 1996, Judge Frank Easterbrook said that there is no such thing as computer law, just as Dean Gerhard Casper had earlier said there was no "law of the horse". What is popularly called computer law is mostly an eclectic amalgamation of concepts from existing law, which are applied to the relatively new technologies of computer hardware and software, e-mail, and the Internet.

However, there are several reasons why it is convenient to have a separate classification for computer law:
  1. Solving legal problems that arose from the use of computers often requires some legal principles that are rarely encountered in the practice of law. For example:
    1. Disputes about e-mail and web pages on the Internet extend across state lines, and may even extend across national borders. For example, there are technical issues in personal jurisdiction and which state's law should be applied to the resolution of the dispute. To solve these legal problems, one must understand principles of an abstruse area of law, called Conflicts of Law. Few attorneys took a class in this subject when they were in law school. Instead of relatively firm rules with predictable results, as in most other areas of law, conflicts analysis can be characterized as choosing from a menu of possibilities.

    2. Information stored on computers (e.g., software, data, trade secrets, confidential personal information) is generally much more valuable than the computer hardware. In order to protect this information, many of the concepts in the practice of computer law involve the specialized area of Intellectual Property Law, which includes copyrights, trademarks, and patents. Again, few attorneys took classes in copyrights, trademarks, and patents when they were in law school. In order to practice before the U.S. Patent Office, an attorney must have at least a bachelor's degree in some area of science or engineering, a requirement that excludes nearly all attorneys.

  2. Traditional concepts in law are being expanded by events in the area of computer law. For example:
    1. Computer software is legally considered a "good". Unlike other goods, the "purchaser" only owns the floppy diskette or compact disk that contains the software, plus a license to use the software. The Uniform Commercial Code was amended by including Article 2B to cover licensing of computer software.

    2. Computer databases that contain erroneous information (e.g., false credit reports) can be harmful to people, which may give rise to a new class of torts, called infotorts.

    3. Hackers who use a modem to enter a computer without authorization and either (1) use its services or (2) alter records are committing a crime similar to burglary, but the traditional notion of burglary requires the criminal personally to enter the victim's premises, which is not satisfied in the case of entry via data to/from a modem. Therefore, new laws were enacted to define computer crimes. (Personally, I think it would have been preferable to change the definitions in existing concepts, instead of create new concepts, but no one would accuse the legal profession of honoring simplicity and economy.)

    4. Authentication of evidence contained in files on a computer presents some new problems, because of the ease with which data in the file can be altered, and also because it is easy to alter the operating system's date and time stamp in the directory.

    5. Searches of computer databases provide access to information that was difficult to locate in the pre-computer age, which makes computer databases a major new threat to privacy of individuals.
The Internet has been revolutionary in giving anyone with a website the equivalent of a printing press or television transmitter: now anyone can broadcast their information or opinion to the whole world, without first going through formal review by a publisher. Many governments have reacted to the Internet with new censorship of both websites and readers' access to the Internet. (See my further comments on censorship in my essay on The Response of Law to New Technology.) Furthermore, there has been widespread copyright infringement by people who post material at their website that was copied from other websites, or copied from books, without written permission of the copyright owner.

Law reacts slowly to new technology, as discussed in my essay Law & Technology. Professor Hugh Gibbons at Franklin Pierce Law Center said
With the exception of the telephone and typewriter, the technological revolution of the past century has left the law untouched. Law has dealt at arm's length with technology, making new rules to cover air travel, genetic engineering, and the like, while the lawyers who do the work carry on with paper and pencil – until the advent of the computer.

In looking at the educational background of attorneys, most of them took the minimum amount of mathematics and science in high school and college. It is not surprising that people who are ignorant of science and technology not only avoid using it, but often react fearfully to it. The few attorneys who have a bachelor's degree in either engineering, physics, chemistry, or computer science typically concentrate in patent law, not in tort law. I have wondered if the flight of attorney-scientists and attorney-engineers from mainstream law is, at least partly, caused by their disgust and dismay with arbitrary and unnecessarily complex legal concepts. Law grows with ad hoc additions, which are often not consistent with a small collection of philosophical principles — in this way law is unlike science and engineering.

Subject Matter
of Computer Law

Computer Law includes at least the following subjects:
  1. Contract Law
  2. Copyright Law
  3. Trademark Law
  4. Patent Law
  5. Tort Law
  6. Computer Crime
  7. Utility Law or Telecommunications Law
  8. Constitutional Law


In conclusion, Computer Law is a useful designation of specialized subject area in law, partly because it requires knowledge of arcane areas in law, and partly because it also requires an understanding of computer technology (i.e., hardware and software).

This essay began with the observation that there is no such thing as computer law, just as there was no "law of the horse". Well, if you search on the Internet for law and horse you will find a many attorneys who specialize in equine law: contracts for breeding of a mare or stallion, malpractice law against veterinarians, zoning law issues (e.g., are horses pets or livestock?), riding accidents, sales contracts and insurance for horses, etc. So, critics who deny that computer law is a legitimate legal specialty are also wrong in saying that there is no "law of the horse". <grin>

This document is at   http://www.rbs2.com/cdefn.htm
first posted 30 May 1999, minor revision 24 Jan 2009

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