Infotech and the Law

Laws Governing Internet Are A-Changin'

James C. Fontana

By James C. Fontana



Like it or not, Congress and some states are starting to legislate the Internet, or seem to be going in that direction. At the same time, state and federal government agencies scoff at overly regulating the information superhighway.

The Internet certainly has changed the way the federal government does business, from more e-commerce in federal buying and the availability of Web-based public procurement data to agency-owned local area and wide area networks dotting the globe. In a few years, the Internet has become a ubiquitous presence for people and businesses.

During the last session of Congress, lawmakers passed a rash of Internet-related legislation. For example:

*The Digital Millennium Copyright Act limits liability for Internet service providers with regard to certain actions that could otherwise be considered copyright infringements.

*The Internet Tax Freedom Act imposes a three-year moratorium on most forms of Internet taxes on both the state and federal levels, and encourages federal agencies to remove barriers to global electronic commerce.

*The Government Paperwork Elimination Act encourages, but doesn't require, federal agencies to use and accept digital signature technologies that may soon be common in e-commerce transactions. The Office of Management and Budget proposed rules in March to implement the paperwork elimination act. If adopted, the rules would require agencies to provide for at least the option of using electronic signatures and record keeping, including electronic acknowledgments of online filings.

Other important laws include the Children's Online Privacy Protection Act, which promotes privacy interests of children by regulating the type and extent of information commercial Web sites or online services may collect or maintain from children under age 13. The Child Online Protection Act targets pornography by requiring online adult site operators to restrict a minor's access to their sites, as well as mandating that online service providers notify their customers of the availability of parental control software.

You may recall the White House's attempt to pass this kind of law was rebuffed by a unanimous Supreme Court decision holding that the Communications Decency Act violated First Amendment speech rights. Privacy advocates recently filed suit in a Philadelphia federal district court challenging the new law on the same constitutional grounds.

Finally, the Protection of Children From Sexual Predators Act extends anti-child-pornography laws to the Internet and requires Internet service providers to report known instances of such crimes occurring over the Net.

On the state level, the Virginia legislature just passed a series of laws that Gov. Jim Gilmore is touting as the nation's first comprehensive state Internet policy. Included are laws that consider unsolicited bulk electronic mail (spam) a form of computer crime, enhanced penalties for use of encryption in committing crimes, extension of personal privacy protection to information collected or managed over the Internet, use of electronic transmittal of information requested through the state's Freedom of Information Act, and the creation of a secretary of technology post to oversee the state's information technology advancements.

What do these laws mean to businesses other than ISPs and the federal integrator? Perhaps plenty. A company embroiled in network technology and security will be mindful of the increased use of digital transactions and the protection of digital signatures. While many states now recognize fax signatures of contracts as legally enforceable, the idea has not yet attached to the digital version, mostly because it's easier to forge an online signature. As the federal government encourages more use of this form of binding transaction, key-based digital encryption, for example, likely will be a sought-after solution in the public and private sectors.

More prevalent in the short term will be more Internet use for public procurements, from release of government-issued solicitations (already becoming commonplace) to secure electronic submissions of proprietary bids and proposals.

As for copyright and child protection laws, as more federal agencies outsource local area and wide area network maintenance, the agencies and the companies doing the work invariably will pay more attention to the chance that inappropriate materials may pass through these networks.

The Internet isn't the same as it was five years ago, and won't be the same five years from now. Neither will the laws governing it.



James Fontana is vice president and corporate counsel of Wang Government Services Inc. of McLean, Va. His e-mail address is james.fontana@wang.com.

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