Part A Technology and Law - A Us Perspective


Robert Dunne

In 1997, in Bensusan Restaurant Corporation v. King, a trademark infringement dispute, the plaintiff, owner of the famous Blue Note jazz club in New York City, argued that New York jurisdiction over the Missouri defendant was appropriate based on the existence of a Web site owned and maintained by the defendant and accessible in New York. The United States Court of Appeals for the Second Circuit in affirming the lower court's decision in favor of the defendant (on grounds unrelated to the Web site), opined that, "attempting to apply established trademark law in the fast-developing world of the Internet is somewhat like trying to board a moving bus."

The analogy continues to be true, and not just of attempts to apply trademark law in the context of the Internet, but, in fact, to the general relationship between traditional law and its application in cyberspace and in the general context of other new technologies. Cyberspace is still largely undefined and, from the law's perspective, often frustratingly intangible. When dealing with activities in cyberspace, courts frequently struggle with issues that are glaringly obvious in the physical world, such as where the activity in question occurred. Where, after all, "are" we when we connect to the Internet? When involved in a chat room discussion, where is it happening? In the Bensusan case, the lower court actually said that if a computer user viewing the Missouri Blue Note club's Web site were confused about the club's relationship to the New York club, the confusion would be occurring in Missouri, not wherever the user was sitting at the time! This is, at best, counterintuitive thinking about a question with important legal implications, and it illustrates how confused the courts themselves are about these basic matters.

It is not just computing technology that has generated new and important legal issues. Developments in various surveillance and search technologies, for example, have raised fundamental questions about the extent to which people may reasonably expect to be free from intrusions on their privacy. From the perspective of US law, there is a direct correlation between what technology makes possible and what our privacy expectations are. Thus, the definition of "privacy" is continually evolving. What is "private" today, and therefore subject to protection against unreasonable search and seizure via the Fourth Amendment to the US Constitution, may no longer be "private," and thus exempt from such protection, tomorrow.

This part of the chapter is intended to provide an overview of a number of areas of the law in the United States and how they are affected by technology. These areas include jurisdiction; distribution of pornography and obscenity; child pornography and online solicitation of minors for sexual activity; privacy; and copyright and "theft" of digital intellectual property. Some basic legal principles are reviewed to enhance understanding of how the relevant laws have been interpreted and applied in the context of the Internet and other technologies. Specific legal procedural matters, such as those related to authentication and admissibility of evidence, and search warrant requirements and considerations, are addressed in later chapters.




Digital Evidence and Computer Crime
Digital Evidence and Computer Crime, Second Edition
ISBN: 0121631044
EAN: 2147483647
Year: 2003
Pages: 279

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