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Role of Law, Regulation and Public Policy in Information Sciences & Technology John W. Bagby Professor of IST What Theme for the “Law of the Horse?” Generalism serves best by reducing search, transactions, switching & opportunity costs

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role of law regulation and public policy in information sciences technology

Role of Law, Regulation and Public Policy in Information Sciences & Technology

John W. Bagby

Professor of IST

what theme for the law of the horse
What Theme for the “Law of the Horse?”
  • Generalism serves best by reducing search, transactions, switching & opportunity costs
  • Jump to define new fields risks ineptitude, unjustified special exceptions
  • Public policy set by insiders risks self-serving complexity; set by newcomers risks unintended consequences, waste, irrelevance
  • Optimality requires pioneering & adaptation
is cyberlaw just another law of the horse
Is Cyberlaw just another “Law of the Horse?”
  • Rules for idiosyncratic transactions between amateurs?
  • Observation about new fields
    • They must illuminate the entire law - not pander to dilettantes (dabblers, connoisseurs)
  • Netizen’s Utopian Declaration of Independence might insulate Cyberspace from traditional social, political, legal & regulatory controls
    • Should not pander to Cyber Libertarians
  • Traditional law too often fails to encourage or accommodate technological development
  • Regulation will stifle eCommerce
biggest challenge of ecommerce cyberlaw
Biggest Challenge of eCommerce & Cyberlaw
  • Adapt Existing Law vs. Make New Laws
    • Some existing law adapts well unchanged
    • Rush to legislate will produce some bad laws (e.g., DMCA, CDA, DigSig, what else?)
  • Pamela Samuelson suggests a careful approach
    • Review first principles underlying traditional regulation, many accommodate cyberspace effectively without much adaptation
    • Exercise restraint: study, deliberate then confine new law to reasonable & proportionate responses
    • Simple/minimal new law & technology neutral
some fields of law relevant to information sciences technology
Some Fields of Law Relevant to Information Sciences & Technology
  • Regulation & Litigation Processes
  • Intellectual Property Rights (IP)
  • Migrating from Traditional Contracting to eCommerce Business Models
  • Jurisdiction & Internet Taxation
  • Telecommunications
  • eGovernment
  • Privacy & Security
regulation litigation in an electronic records environment
Regulation & Litigation in an Electronic Records Environment
  • Admissibility of e-Records
    • Best Evidence, Custody
  • Fallibility of e-Rasure
  • Discovery of e-Records
    • Evolving cost burden for search & production
    • CyberForensics
    • Protective Orders
  • e-Filings in Courts & w/ Regulators
  • Posting of Public Information
  • Key Word in Context Search
intellectual property rights
Intellectual Property Rights
  • Copyrights
  • Trade Secrets
  • Patents
  • Trademarks & Trade Dress
  • Unfair Competition
  • Sui Generis Protections:
    • Semiconductor chips, asexual plants, boat hull design, designs, petty patents, databases
  • Technology Transfer & Licensing are Contracts too!
traditional contracting models
Traditional Contracting Models
  • Information Exchange Model
    • No actual contracting
  • Mutual Assent Model
    • Offers, acceptances, counter-offers, revocations, rejections, documentation
  • Consideration Model
    • Online interaction contingent on agreement to terms of use, collection of private information
  • Performance Model
    • Electronic payments, deliveries or commercial docs
ecommerce business models
eCommerce Business Models
  • Information Access & Warehousing
    • e-Brochures, Ads, Info Capture for Resale
  • Ordering On-Line
  • e-Payment Systems
  • e-Delivery
    • Information & Data
    • Software
    • Advice & other Services
  • Combinations of these 4
existing ecommerce successes
Existing eCommerce Successes
  • Banking: Wire Transfer & EFT
  • Securities: trading, execution, record keeping
  • Health Care Records & Reimbursement
  • Travel search, Airline Reservations, e-Ticketing
  • Telecommunications
  • Broadcast, Television, CATV
  • Book, CD, Video Sales: amazon.com
  • On-Line Auctions
  • Advertising, referrals, search
  • P2P, online music sales
  • Outsourcing: customer service, programming, professional services (x-ray reading)
jurisdiction internet taxation
Jurisdiction & Internet Taxation
  • Jurisdiction & Tax share power/authority of a government to regulate/tax activities
  • Due Process: state tax interstate business
  • Sales & Use Tax if Nexus
    • Internet Tax Freedom Act (access, bit)
  • Complexity of taxation of eCommerce
    • Differences: rates, base, exemptions, remitter
  • Int’l taxation: collect EU’s VAT?
egovt
eGovt
  • Diffusion of Information Technology into Government Activities
    • Migrating transaction processes
    • Compare/Contrast private sector eCom w/ eGovt
    • Applications: military, terrorism, control
  • ID Key Applications, Facilitate Further Diffusion:
    • IRS, PTO, DOD, FTC, SEC, SAP (PA), DMVs, Public Docs
    • Nine Next Neediest: utility, INS, national security, transportation, insurance, professional licensure, public safety, elections, cybercrime
some information sciences related research experience
Intellectual Property

Patents

Software & Bus. Mthd.

Database Protections

Trade Secrets

Trademark/dns Merger

Technology Transfer

Employment Contracts

Confidentiality

Standards & Antitrust

Network economics

eCommerce Transaction Process

ePmts

eAgents

eGovt

mCommerce

Intelligent Transport

Telematics

Privacy

Security

Some Information Sciences Related Research Experience
doctrinal legal research
Doctrinal Legal Research
  • Combines Analytical Methods from Humanities, Empirical Social/Natural Sciences, Public Policy Analysis
  • Evaluates Existing/Proposed Law for Consistency, Validity, Authority & Impact (social, political, economic)
    • Constitutions, precedents, statutes, regs
  • Influences cases, legislative history, policymaking, other disciplines’ research design
finding interesting important topics
Finding Interesting & Important Topics
  • Public Policy Research Discloses Constraints & Opportunities for Info. Sciences Research
  • Distinguish Interesting Issues from Significant & Researchable Issues
    • Develop Heuristics: insights from direct & vicarious experience improve quality of R&D investment decisions
    • Deductive: link general principles to new phenomena
    • Inductive: discover new phenomena, search for general principles