sou · GQB3112 · 2003-01-01 00:00:00 — Finally, it has demonstrated the need for orchestrated efforts to handle the numerous legal issues of the information society. This need will persist even after the IT has completed its work in 2003. In Search of a Perspective A Whole and its Parts Man must serve his electric technology with the same servo-mechanistic with which he served his coracle, his canoe, his ty- pography, and all other extensions of his physical organs. But there is this difference, that previous technologies were partial and fragmentary, and the electric is total and inclu- sive. An external consensus or conscience is now as necessary as private consciousness. With the new media, however, it is also possi- ble to store and to translate everything; and, as for speed, that is no problem. No further accel- eration is possible this side of the light bar- rier. , Understanding Media: The Extensions of Man, 1964 1 From ballistics to remote sensing Few people remember the and the BESK computers, once the flagships of budding information industry. was ready for operation in 1950, BESK in 1953. For a short while BESK held the world record in computing speed. Both ma- chines were calculators in the strict sense, i.e. they were de- signed, built, and used for mathematical work such as ballistic calculations. Their development was supervised by a , created in 1948 and existing until 1963. At that time computers were no longer simply mathematical , they had become Processing ma- chines. They had also begun to raise legal questions, not very many at first, and not very interrelated, but still questions worth attention. There was, for example, the question of patent protec- tion of computing devices, and there were questions of contracts, and questions of insurance. Step by step the legal questions have is a member of the IT . become more numerous, more complex, and more interrelated. Part of the explanation has to do with the nature of information and communication technology (ICT). ICT is made up of certain basic elements. The elements have all been present since the birth of the technology, but their relative significance and their visibility are still changing. The elements are automation, information, communication, integra- tion, and sensation. Automation was the natural first element to attract attention. The computer speeded up computation by doing away with slow manual action. Even the primitive could perform mathe- matical operations at a speed of 5 to 10 per second. From the le- gal point of view, automation of this kind did not pass unnoticed. For one thing, computer programs needed to be inserted into the framework of intellectual property law. And automated decision- making in public administration soon caused concern from the point of view of both legality and jurisprudential theory. At the outset, the information element did not mean very much. Both input and output data were mere trickles compared with what we have become used to. Step by step the situation changed and the new technology began to be perceived as an in- strument for storing and using large volumes of data. This meant, among other things, that computer systems found uses in many new contexts where automation could be combined with com- prehensive filing systems and databases. In consequence, new le- gal interests arose having to do, for example, with computerised processing of personal data and the of systems for the storage and retrieval of legal texts. Communication via local and global networks has been a reality for decades. But not until the Internet revolution of the 1990s did communication begin to be perceived as an essential element on a par with, and perhaps even surpassing, the automa- tion and information elements in terms of importance. This de- velopment is reflected by the increasingly frequent use of the term ICT instead of the older IT. It should be underlined that communication has to do not only with communication between but also with communication between people. Thus, ICT has become a medium both for private communication (e- mail, chat) and for mass communication (spam, streaming audio). This development is mirrored by the legal discussion, which has moved from relatively straightforward issues of traditional tele- communications regulation involving conduit to issues of content having to do with such themes as free speech, crime in cyberspace, and different strategies for the governance of global data networks. Integration has to do with different kinds of convergence phe- nomena, best known among them being perhaps the convergence or fusion of telecommunications, mass communication media and data processing. These fields have traditionally been re- garded as separate areas of legal regulation, and their coming to- gether has required (and still requires) changes of regulatory strategies and instruments. Generally speaking, digital technol- ogy has implosive effects, for the simple reason that ICT is uni- versal in nature and can be used to process and communicate in- formation of any kind as long as it can be reduced to ones and ze- roes. Finally, sensation, is perhaps the most difficult of the five elements to grasp. In his Understanding Media (1964), Mar- shall attempted to describe, among other things, the characteristics of different media in terms of hot and cold, depending upon such factors as the intensity of the communica- tion and the degree of involvement of the participants. If nothing else, helped to make people aware that media as such are not neutral, that they affect our behaviour, our expectations, our experience, and so forth. Modern cognitive science studies the relationships between mind, body, and various tools for in- formation processing (notational systems, books, maps, calen- dars, speedometers, microscopes, etc.). It emphasises interaction and interdependencies. Briefly, human beings think and sense not only with their brain and body but also with their tools. One looks in vain for a clear dividing line between the inside and the outside of mans mind. As for ICT, we are only beginning to understand the consequences. And a legal understanding exists. One may look for its first signs in themes such as protection of minors, information services, and digital divide. To summarise: Information and communication technology is a complex and multifaceted array of elements finding its uses in the most diverse contexts. From the point of view of law this is an essential assertion. Sloppy thinking sometimes seeks to reduce ICT to a simple tool, similar in kind to a saw or a typewriter. The reasoning goes: We dont need a law of typewriters, neither is there any need for a legal theory of saws and sawing. , ICT is not worth fussing about. But is that really all there is to it? 2 Dealing with a tool How often does a saw interact with the law? In what contexts? In what ways can a typewriter have an impact on administrative de- cision-making? questions like these quickly indicate that tools are of many kinds and that their relationship to law varies. An attempt at generalising will make it clear that tools may be simple (such as a ring binder) or complex (such as an organisa- tional and technical set-up for verification of electronic signa- tures), that they may be hard (a tape recorder) or soft (a clas- sification scheme), special (a pencil sharpener) or general (pa- per), and so on. Obviously, a simile such as there is no need for a law of typewriters ought to be used with care. ICT must be placed into the category of extremely powerful tools – complex, general, and with far-reaching consequences for society. Perhaps the word tool is not even a very good way of labelling it, perhaps it is even misleading. Other words to charac- terise ICT come to mind – and have indeed been used by differ- ent . Industry, market, ecology, culture, and language may be mentioned. Regardless of their exactness, such notions are useful since they point towards broader perspec- tives and create an interest in exploring legal aspects of ICT in- stead of belittling their importance. since it began, the discussion of ICT and law has dis- tinguished between two main relationships between the two phe- nomena. One relationship at an early stage became evident mainly through the development of computerised legal informa- tion retrieval systems. Briefly, this relationship concerns the use of ICT for legal purposes. The other relationship has to do with substantive law, viz matters of legal regulation associated with ICT and its uses in various contexts. The questions that will oc- cupy us in the following concern both types of relationships, in- cluding the possible links between them. First some comments on ICT law in general. Although fields of law are not of the kind to be found in the Linnæan flora there are, of course, criteria which can be used to classify and divide. Many of these criteria are associated with classical, conceptual or institutional legal ordering – private law, tort law, contract law, insurance law, and so forth. Other criteria are associated with different areas of activity, with practical in- terests, and the like. Some examples are law, banking law, and law. The two types of criteria, conceptual and practical, often blend into one another, so that it may be difficult to tell to what extent a particular field of law is delimited and characterised by theoretical or practical concerns. The prevailing view of ICT law seems to emphasise its practical nature. The radical version of this view does not even recognise ICT law as a field of law proper: It isnt sufficiently coherent, at most it is a loosely interconnected collection of legal problems having to do with computers and data networks. These problems are best treated separately within established fields such as contract law, copyright law, penal law, and so forth. We may call this approach the traditionalists view. It reflects a healthy scepticism towards far-reaching (sometimes almost boastful) claims that ICT has given rise to a new legal order or that ICT in general and cyberspace in particular are phenomena beyond the reach of the law, that the Internet is a lawless country, and so on. This is the revolutionarys view. The divergent reactions of legal professionals (theorists as well as practitioners) can be seen as reflecting the complexity of ICT and the many perspectives that one may apply in order to understand its legal hurdles. One way of describing these hurdles is to focus on what may be called the paradoxes of ICT law. N ICT law encompasses almost all branches of law, but in order to be meaningful it must nevertheless be narrowed down and delimited. N ICT law ought to be independent of technology (technologi- cally neutral). At the same time it must be capable of regulat- ing and steering technology and its various uses. N The development of ICT law often requires broad as well as deep understanding of machinery and methods, but the legal solutions must be simple to understand and apply. N ICT law requires foresight but encounters many difficulties when it comes to predicting future developments, situations, applications, issues etc. N ICT law involves demands for new law but must at the same time be based on inherited legal views and existing legal concepts and regulations. N ICT law has to solve urgent local and national problems (in tax law, for example) but it has to do so in an international, quite often global framework. N Legal solutions to ICT-related problems must often be devel- oped speedily but the solutions should be well thought-out and dependable. These paradoxes are, of course, to be seen, not as logical im- passes but as practical and theoretical difficulties. They may also be seen as arguments against the radical version of the tradition- alists view (the business as usual view). Above all, the tradi- tionalists view is based on two shaky presumptions: (a) that ICT is a relatively simple phenomenon that does not pose demands for legal rethinking, and (b) that a fragmented or piecemeal ap- proach is sufficient, i.e. that the legal problems of ICT can be solved when they come into view and without any need for ef- forts to apply holistic thinking. Moving away from the traditionalists standpoint can mean a variety of things. To begin with, ICT law may be structured and delimited in different ways. As we have already discussed, these differences have to do, among other things, with the diverse cri- teria that can be used to structure and classify. For one thing, the criteria may be theoretical or practical, and they may be more or less closely related to the kind of interest taken in the technology. Thus, there are efforts to treat ICT law as information law, i.e. as a general law of information handling. Such a view involves obvious difficulties of delimitation and invokes needs for a theo- retical basis founded in both jurisprudence and information sci- ence. Typically, information law advocates tend to look for struc- criteria in the different stages of information handling (col- lection, storage, ordering, etc.) and take an interest in information processing whatever the kind of tools that are being used. For natural reasons, it is mostly academics who engage in this kind of thinking. On the practical side, the flow of treatises on Com- puter law, Internet law, Cyberspace law, Software law, and so on continues to swell. This literature at least bears witness to the steady interest taken in ICT law as a field of legal practice where special expertise is appreciated and where issues are often treated across areas of law such as contract law, intellectual property law, insurance law, tax law, penal law etc. A sort of in- terdisciplinary treatment, one may say. Of course, the ambition with regard to integrated analysis varies. Many treatises are more than compilations of comments on assorted ICT-related le- gal issues that could equally well have been treated separately. One question remains: what of the legal use of ICT? Is it completely separated from the notion of ICT law? At first sight, the answer may seem obvious, namely that use and regulation are two different things that have nothing in common. A closer look, however, makes the answer less obvious. For both pursuits there is a need for an understanding of the complex phenomenon of ICT, not only an understanding in general, but a legal under- standing, i.e. knowledge of technology in the legal perspective. bond between the two subjects, yes, but the question is, how strong? Is it only the superficial fact that ICT is of interest both to those who are engaged in legal uses and to those who work with its regulation? No, there is more to consider. Let us return to the interest taken in a possible theoretical platform or basis for a no- tion of information law. Generally speaking, a deeper under- standing of ICT law appears to require a deeper understanding of ICT phenomena and how ICT interacts with the law. In this way, attention focuses not only on legal uses of ICT in a simple sense (automatic calculation of social security benefits or contracting through e-mail, for example) but on legal aspects of uses of ICT in society in general. Consider, for example, use of ICT by finan- cial institutions or use of ICT in commerce. They are not first and foremost legal uses but certainly important enough from the point of view of legal regulation. One way of summarising this use/regulation connection is to say that ICT creates new envi- ronments or a new infrastructure for legally orientated activities and that, in consequence, more and more uses of ICT in society become a legal concern and must be closely studied. Some as- pects of this task will now be considered. 3 A complex interaction Many committees and study groups have done their best to chart the legal effects of ICT. Others have studied legal obstacles to the development of ICT uses in society. Both starting points are viable, but the effects and obstacles approaches both risk being too narrow. The reason is that law and ICT should be seen as mutually preconditioning phenomena. In other words, the two phenomena interact in more or less dynamic and complex pat- terns. The study of this interaction should not limit itself to cer- tain simple effects and obstacles at a given point of time. Consider as an example the emergence of electronic docu- ments. The initial legal effect consists in uncertainty regarding their treatment. Briefly, should they be equalled with traditional paper documents or not? The search for an answer soon makes it apparent that the question has different answers in different legal contexts. If all is well, the most pressing problems are solved through actions of the lawmakers, development of case law, elu- cidatory comments by legal scholars, and so forth. But technol- ogy never rests. Among other things, changes in the electronic environment can bring about factual situations that may or may not have been foreseen. Consequently, legal solutions that were well-suited at a certain stage may become uncertain or even dis- puted and in need of review. On the other hand, it may be con- sidered necessary to impose constraints and requirements that shape or re-shape the electronic environment in a legally accept- able way. For example, if there is found to exist a legal need for original electronic documents, then the technical tools for pro- ducing such documents must be developed and used in the rele- vant situations. The example is sketchy and simple. Nevertheless, it suffices to illustrate that what is initially looked upon as a simple concep- tual issue (can documents be electronic?) will soon turn into more or less complex questions of an interplay between law and ICT over time. Above the level of single concepts, similar conclusions may also be drawn. Consider, again, the notion of integration (con- vergence). It refers to the fact that digital information processing and communication brings with it the disappearance of borders of different kinds. Some examples of such disappearing or increas- ingly fuzzy borders concern technical equipment (e.g. the mobile phone becoming a computer terminal), markets (e.g. the software firm becoming a of communications services), and the public and private sectors (e.g. private companies performing in- formation services for public authorities). All these and other forms of integration have resulted in needs for reappraisals of le- gal regulation that has relied upon stable borders and the possi- bility of upholding different regimes for different sectors or phe- nomena. Debates and analyses have been going on for decades and illustrate well the difficulties of coming to grips with the changing interplay of law and ICT. A third example has to do with legal use of ICT, viz automa- tion and data networks in the administration of in a broad sense, i.e. use of ICT in lawmaking, in the judiciary, in public administration, and so on. By now it is generally accepted that much more than simple efficiency improvements and basic re- tooling (word processing replacing typewriters) is involved. In fact, as present endeavours in and elsewhere illustrate, the very foundations of the legal order need to be scrutinised. Suffice it to mention two examples: (i) the structure and func- tioning of the criminal system (questions associated with data flows between the different actors, rules on evidence and use of digital media in the courtroom, changes in the overall organi- sation of the courts, etc.) and (ii) the respective roles and respon- sibilities of the state and of private parties with regard to the stor- age and dissemination of legal sources (what information should be regarded as a common good available without cost to the citi- zens, and to what extent should the state refrain from providing information services that may come close to a new form of law- making? As already remarked, the issues are neither new, nor can they be formulated and solved once and for all. They aroused theoretical interest already when ICT was at a more primitive stage and its ramifications more uncertain. One of my own con- tributions to this early discussion was a theory of legal system management (in Computing . Perspectives on a New Legal Discipline, Liber 1977). To summarise a complex argument, le- gal system management as it was presented in the monograph concerned both the management of legal information systems proper, such as the ones designed and operated for the courts, and management of legal aspects of information systems of other kinds such as systems aiming at strengthening participatory de- mocracy and systems for rights administration and the like. The basic thoughts have already been presented above, viz that the complex and dynamic interaction of law and ICT (at that time re- ferred to as EDP, Processing) requires serious at- tention and even some new legal thinking. In practice, the theory has found an expression in, among other things, the notion of a satisfactory openness structure, i.e. basic requirements that Swedish public authorities design and operate their information systems with due regard for the right of access to official docu- ments (see Chapter 15 of the Secrecy Act (1980:100)). Today there is a relatively widespread awareness that law and ICT interact in various ways: that the one may steer the other, that they may complement one another, and that they may counteract one another. Viewed in this way, law and ICT form part of a whole, and abstract reasoning in the 1970s about, for example, the need for a legal structural theory of data process- ing has become practical concerns in relation to computer pro- grams that put legal norms into operation, rights management systems, privacy enhancing technologies, filtering of harmful content on the web, and so on. Even in the , where com- puter law has tended to be a predominantly practical concern, the interest taken in theoretical and structural aspects appears to be growing. A recent example is lucid analy- sis of the interplay of legal regulation in the traditional sense and the design of computer programs and other elements of informa- tion processing systems.1 A useful illustration of the early discussion may be found in Fiedler, Forschungsaufgaben der juristischen Informatik. In: und Recht. Möglichkeiten und Probleme. Against this background two assertions may be made. Firstly, ICT law is not devoid of a theoretical basis. On the contrary, the complex interaction of law and ICT opens up a field of interest- ing and challenging questions and possibilities, many of which have yet to be exploited. Secondly, even if one accepts the tradi- tionalists view that ICT law is to be looked upon as a collection of legal issues belonging to different established fields of law (contract law, administrative law, penal law etc.), the collection need not be indiscriminate but can and ought to be shaped ac- cording to particular points of view. 4 Points of view The world one sees depends on ones view of the world. This truth is old and well-known to us all, although we are apt to for- get it. Thus, the question of whether there is such a thing as ICT law oversimplifies things and must be reformulated. One way of doing so is to pick a number of viewpoints and use them to re- flect on some Swedish experiences. As for the viewpoint of legal practice, for some legal practi- tioners ICT law appears to constitute a distinct field of expertise whereas others are inclined to let it melt into the classical pattern of general contract law, tax law, labour law, penal law, and so forth (cf. the contribution by ). Clearly, views depend on the kind of professional and commercial inter- ests taken in the subject matter.