DESIGN FOR LAW IN INTERNET TECHNOLOGY

2006-03-14    作者：广东海际明律师事务所 邓尧律师      浏览数：9,101

               该文荣获广州市律师协会2005年度理论成果二等奖

ABSTRACT
    The fast changing Internet has created new space in human life, consequently challenging the existing law. The present legislature procedures are much too slow compared with the rapid developments in Internet technology. The lack or delay of law in the new space has opened numerous doors to crimes and disorder of the society.
    This paper proposes design for law in the technology. From the early design stage, the technological impacts to the society are considered. Legal expertise are consulted and the subsequently needed laws are studied. These anticipated laws will in turn need technologies to support them. The needed technologies to support the anticipated laws are again taken into consideration in this design process. Then as the technologies are developed and the products are deployed, the legislature processes can be initialized much earlier because the legal issues have already been studied. The legislature and enforcement will therefore proceed much faster because there will be minimal technological barriers in an integrated design that has already solved both the legal and the technological issues.
 
Keywords – Information technology, Internet Law, security.

    1. INTRODUCTION
    The rapid and massive changes brought by the Internet technology require new laws. However, the existing regulations even with the new laws cannot keep pace with the fast development of Internet technology, owing to, among other reasons, the lack of considerations of law in the design. This paper proposes that the feasibility of law should be taken into account during the design stage. We start with briefing the challenges to law from Internet technology. Then the idea of design for law will be explained with illustrations. The necessity of design for law will further be demonstrated with two new case studies.

    2. CHALLENGES TO LAW FROM THE INTERNETTECHNOLOGY
    2.1 The challenges to law.
    Internet is growing so fast and is so powerful that it is not just an enabling extension of existing functions, but its changes are revolutionary. Internet is opening new dimensions to human life in many aspects, such as in e-commerce in economy and e-mails in communication. The way that law has been protecting the traditional human life is therefore being challenged by these changes.
    2.2 Problems with Existing Legislation and Enforcement of Law.
    Traditionally, law used to be an afterthought to protect the society after new technologies, products, services, or processes have been introduced. The traditional processes are described chronologically in two stages below.
    Figure 1 shows the first stage of the conventional processes of legislature and law enforcement. The development of products and/or services with the underlying technology is accomplished first. After deployment, the new products enabling new functionalities and/or the new services will affect the society. The effects are, in some cases, so big that the existing laws are insufficient to serve the society with these new functions and services. That is, the law is being challenged. It may then be necessary to modify the existing laws or even to introduce new laws, which will go through legislature and will then be enforced.

    Figure 1. First stage: Conventional Legislation and Enforcement of Law after technology has been developed.
    Figure 2 shows the second stage. Here, after the law has been established and are being enforced, the law will serve to regulate the development of other new products and services under similar technologies.

    Figure 2. Second stage: Conventional Legislation and Enforcement of Law to regulate development of new and similar technology.
    In this conventional process, the cycle from new product introduction to the enforcement of the needed law is long. This conventional process will therefore work only when the required changes in law are gradual and evolutionary.
    With Internet technologies, the changes are extremely fast and revolutionary. With the initiation of the processes to introduce any required new laws being further delayed till aftethe effects of the products to the society have already been manifested, the law will not catch up with the new needs to protect the society.
    In addition, Internet is making fundamental changes to the society. The newly established law may often be difficult to enforce. This is illustrated in Figure 3, which shows that after legislature the technology needed to enforce the required law may be missing. Law enforcement is therefore further delayed.

    Figure 3. Technological difficulties of existing legislature approaches to Internet law.
    It is therefore necessary to initialize the law processes as early as possible.

    3. DESIGN FOR LAW
    We propose incorporating the law requirements into product design. In the electronics, computer, and other industries, the processes of design for manufacture, design for repair, design for user friendliness, design for human factor, etc. had already been undertaken by most manufacturers in recent years. Yet design for law has not been included by these manufacturers.
    3.1 Design lessons from electronics manufacturers.
    The electronics industry had originally been designing new products in terms of functionalities and initial costs first without considering such important issues as manufacturability, reliability, testability, reparability, etc. They had then found out that it often subsequently require very major changes to the products in order to solve the above problems of manufacturability, reparability, reliability, etc. These major fixes could mean new designs and repetitions of the manufacture and testing processes.
    The time taken for these major changes is not compatible with the needs for lower cost and shorter product cycle. The achievement of matured products that have fixed all the problems could take many such development cycles, costing much time and money.
    In around 1980’s, major electronics industries including telecom and computer manufacturers have incorporated most of the above major issues into the product design. Experts in manufacturability, reliability, etc. are consulted during the design stages and may also be included into the design team.
    3.2 Drivers of design for Law
    While the selection of the issues to address in the design stage by the manufacturers may be driven by the need to lower the overall cost and time of the overall product cycle, the only law considerations were perhaps the need to abide with established laws that already exist. It usually does not address the impacts to society, the challenges to law, and any possible solutions.
The driver for design for law may not come from the overall benefits to the manufacturers in terms of cost and overall product cycle time. The impact to the society and the people needs to be taken into account.
    3.3 Design for Law establishment in Internet technology
    It is becoming more difficult if not impossible to establish law after the Internet technology and products have been deployed. The development of Internet technology needs to consider the feasibility of law establishment.
    As was explained in Section 2.2, the Internet technologies are changing much faster than any prior technologies we had experienced  before. These changes are simply too fast for any of the existing legal systems to cope with.
    In addition, the changes to the society from the Internet are too massive so that it is difficult to establish, in a timely manner, new laws which must also be consistent with the legal system in the society. Before matured laws are established, the order of the society will then be in jeopardy.
    For example, it had taken the US Federal Communication Commission (FCC) nine years to establish the standards for high definition digital television (HDTV). Yet, it only took the personal computer (PC) industry several weeks to convince the FCC that these standards were irrelevant owing to changes in technology [1].
    3.4 Design for Law enforcement in Internet technology
    In developing Internet technologies, one needs to consider
(1) how the new technologies will impact human life,
(2) how the existing law will be challenged,
(3) how would law serve the society with the new technologies,
(4) how the technologies can support the required law enforcement.
    Many countries have already established regulations on the Internet in areas such as consumer protection, protection of personal information, protection of critical databases, domain name authority and administration [2]. However some laws have been difficult and inconvenient to enforce because of the lack of supporting technologies.
    For example, the law can recognize emails as legal evidence. Consider now an email that forms part of an electronic contract. If the email recipient denies having received an email, who is in position to provide evidence of the email and are there any technical problems involved. Even if the email has been recorded by the mail server of the Internet service provider, the location of the Internet service provider can be global, whereas law enforcement is primarily national [3]. In this case, even a minor dispute may require quite expensive investigation and jurisdiction to settle.
    In addition the email recipient can delete the email at the server. Many mail servers do not make backup copies of these deleted emails. Backing up these emails would increase the cost to the Internet service provider, and yet many mail services are free of charge to the user. It is controversial whether to impose law for mail server to back up these emails. It is also difficult to determine for low long these backup copies should be required to be kept.
    3.5 Design for Law process
    The design for law process is illustrated in Figure 4.

    Figure 4. The design for law process.
    As shown in this figure, the technology design considers the anticipated impacts of the new functionality and services to the society, which will challenge the existing law. The required new law or changes to law anticipated are studied. These new laws will in turn impact the technology, providing challenges to the technology design to support the legislature and enforcement of the law.
Of course, the designers cannot establish the new law. With design for law, law expertise is involved in the design stage. After analyzing the impact to the society, one must then study whether the existing laws can regulate these impacts. If new laws have to be established, the feasibility of new legislature should be considered.
    3.6 Design for Law development of Internet technology
Figure 5 shows the overall development of Internet technology. The design process has considered the impacts to society, and drawn the requirements to new law or to changes in exiting law. The design has also considered the needed support from the technologies to these anticipated laws. As the technologies are being developed and the new services are scheduled for deployment, the processes required toward legislation of new laws can be initialized.

    Figure 5. Design for law development of Internet technology.
    At that point, the technology to support law enforcement is also ready. There will then be no need to modify or develop new technologies to support law enforcement. The product cycle including technology and law processes will therefore be much shorter.

     4. CASE STUDIES
    We now examine two real life cases in the Internet technology in order to demonstrate the problems with the existing processes.
4.1 Email spam and viruses
    Email technologies were first developed for reasons other than law, so that law was probably not taken into consideration when emails were designed and developed. However, after the technologies had been developed and after the email services had already been deployed, it was found that the email spam and email viruses had subsequently widespread and have affected many people. Law is therefore only an afterthought in this conventional process of legislature and law enforcement. Meanwhile, many companies have already suffered serious losses in revenue and in employee time.
    Although law against email spam and viruses has been established by now, the investigation and hence law enforcement is currently quite difficult with the existing technologies. Making the needed changes in these technologies at this point to make law enforcement possible is now more difficult and expensive when these technologies has already been widely deployed.
    The serious consequences of email spam and viruses and the current difficulties in law enforcement have demonstrated the conventional legislature and law enforcement processes are too slow to cope with the developments in email technology. Improvements are anticipated if the technology had been designed for law enforcement at the first place.
    4.2 Virtual cyber property [2]
    Internet games are creating challenges to the law, which in turn challenges the technology required to design for law.
Internet game companies may award the players with special instrument. These instruments are virtual but are valuable to the users who must surpassed a certain level of difficulty in the game and may upgrade the user to play the game by using these powerful weapons. As the users crave for these weapons, they are willing to purchase them with real cash.
    In 2003 in the Hebei province of China, an Internet game user had spent 2000 Yuan of real cash to purchase a virtual weapon from another user. However, the owner discovered that the purchased weapon had later been stolen by a third user. When the user complained to the game company, the company refuses to get it back from the third user because the company does not have such legal right. When the user sued the game company, the case is complicated by the absence of existing law for a virtual cyber property.
    Because the users had spent real cash on virtual property, the new question is whether it necessary to have laws to protect the users and how.
    Even when the court decided that the company has responsibility to protect the user, and ordered the company to replace it, the technology to protect the user was absent. While the company may only be running a business based on the value of its software, it had also created more value to the users in the virtual property. Is it then necessary to take law into consideration in technology development before deployment?
    In the case of loss, if the weapon is replaceable by the company without requiring the user to surpass the required level of difficulty in the game, will it then lose the value of the weapon?
    The existence of real values on virtual properties was probably beyond the imagination of the past. Yet as unimaginable are the new changes brought by the Internet technologies, the new legal issues that subsequently arise are perhaps equally beyond our prior imaginations.

    5. CONCLUSIONS
    The Internet has brought too fast and massive changes to the human life that the existing legislature process are unable to cope with. With the lack of law, long delay of suitable law in the newly created environments, or the lack of technologies to enforce the new laws, the society becomes vulnerable to disorder and crime.
    This paper proposes design for law in the technology. The anticipated effects of the technology to the society and the laws subsequently needed are studied in the design stage. These anticipated laws will in turn need technologies to support them, which are again taken into consideration in the design process of the technologies. Then as the technologies are developed and the products are deployed, the processes for legislature can be initialized much earlier as the legal issues have already been studied. The legislature and enforcement may also proceed much faster because there will be minimal technological barriers in an integrated design to solve both the legal and technical issues.

REFERENCES
[1] J. Mofman, “Cyberlaw: A guide for South Africans doing business online,” Ampersand Press, South Africa, 1999.
[2] G. J. H. Smith, editors, “Internet Law and Regulation,” 2/e, Sweet & Maxwell, London, 1999.
[3] M. Geist, “Internet Law in Canada,” 3/e, Captus Press, Ontario, 2002.
[4] http://it.rising.com.cn/newSite/Channels/info/rav_news/rav_news/200312/04-184913033.htm