Disorder in the Court: Technology and the Law

IT decisions being made by those who aren't tech-savvy, such as legislators, lawyers and judges.

I dont know anything about biomedicine and biochemistry. Sure, I read about them in emerging-technology magazines and get a surface-level understanding of them—enough to get by in a conversation at a cocktail party. But when I talk to a friend of mine who really is a biochemist, I feel the same way some of my friends who arent IT-savvy do when I start talking about XML standards and business process management—clueless.

So, when it comes to bio-anything, its a good thing that I dont make decisions that could drastically affect its development, usage and viability.

Unfortunately, when it comes to IT and, especially, Internet technologies, there are plenty of people who have no clue but dont have any problem making shortsighted, ill-informed and damaging decisions that could cripple the technical engines driving much of the worlds economy.

Im talking, of course, about the legislators, lawyers, special-interest groups and patent seekers who attempt to control and limit modern technologies for personal gain or because of partisan interests or sheer ignorance. And when we are faced with the potentially damaging consequences of laws, policies or claims made by these selfish entities, the only thing protecting the technologies that we all rely on are judges, many of whom are just as ill-informed when it comes to IT and the Internet.

There are, thankfully, a few exceptions.

For example, in a highly publicized decision, the U.S. Supreme Court ruled that the Child Online Protection Act was unconstitutional. In this ruling, the Supreme Court did pretty much everything a technology supporter could hope for: The court clearly understood the broad implications of the proposed law and how it could hamper or even shut down the Internet presence of many businesses and legitimate entities—from medical clinics to counselors to support groups to schools to researchers.

Much more important, the court also understood the fast-changing nature of technology and how assumptions shouldnt be made about technologys capabilities. In his majority summation, Justice Anthony Kennedy discussed how filtering software will most likely end up being more effective and less restrictive than a legal solution could ever be: "The technology of the Internet evolves at a rapid pace," Kennedy wrote.

Unfortunately, not all courts and judges can be counted on to acknowledge that they dont understand technology, and ignorance of core technology principles can be devastating.

Two recent decisions dealing with ISPs clearly show the damage that technology ignorance in the courts can cause.

In a ruling in a New Jersey state court, a temporary restraining order was issued against an ISP. The ISP was forced to allow a customer to discontinue service but hold on to its IP address range.

This decision showed a clear lack of understanding about the most basic of Internet technologies. Imagine if a business had come to the court because it was moving its offices but wanted to keep its old street and town address? The judges would laugh the business out of the courtroom.

But this ruling amounts to the exact same thing in Internet terms. If the judgment stands and is used as a precedent in other cases, it could cripple the entire infrastructure on which the Internet is built. One would hope this ruling will be overturned, but, right now, the New Jersey ISP is being forced basically to do the impossible.

In another recent ruling, a U.S. Court of Appeals in Boston ruled that an e-mail ISP did not violate the Wiretap Act when it read its customers private e-mail communications to see what their purchase habits were. The court ruled that the e-mail messages werent read in communication (that is, not on the live wire) because the ISP stored the messages and then read them. This narrow interpretation almost boggles my mind because it means that, right now, your ISP can legally read your company e-mail if it chooses to do so.

/zimages/6/28571.gifClick here to read more about the recent court ruling on e-mail.

The only chances for overturning this ruling? It either needs to be overturned in a higher court, or Congress needs to rewrite the Wiretap Act to make it more explicit when it comes to the Internet.

In other words, were in trouble.

Labs Director Jim Rapoza can be reached at jim_rapoza@ziffdavis.com.

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