Law and Information Technology. 
 Swedish Views 
 An anthology produced by the IT Law Observatory of the Swed- ish ICT Commission 
 Editor PatelInformation and Communication 
 Technology Commission Report 
 Stockholm 2002 
 Swedish Government Official Reports 
 SOU 2002:112 
 Table of Contents 
  
 Table of Contents.......................................................................................... 
  
 3 
  
 Part I: General Alvarado........................................................................ 
  
 5 
  
 Editors Foreword 
  
 ....................................................................................... 
  
 7 
  
 Harris 
  
 The Swedish ICT Commission ............................... 
  
 9 
  
 Jones, Jordan Law Observatory ...................... 
  
 14 
  
 PART II: In Search of a Perspective 
  
 ........................................................ 
  
 19 
  
 Jones 
  
 Law and ICT. A Whole and its Parts .............................. 
  
 21 
  
 Vance 
  
 Remunerative Gifts, Societal Development and Legal 
  
 Futures......................................................................................................... 
  
 33 
  
 Lozano Use of ICT Engenders Legal Problems – in 
  
 Search of a Common Denominator........................................................... 
  
 44 
  
 Harper 
  
 Lawmaking and IT: Reflections on the Need for New 
  
 Concepts and Categories of Thought........................................................ 
  
 55 
  
 Sherman Curry  
 IT-practitioners 
  world............................. 
  
 67 
  
 Part III: ICT in Government and Administration.................................. 
  
 75 
  
 Hoffman, Murray 
  
 Shaping the Future Public 
  
 Administration – The Legal Perspective .................................................. 
  
 77 
  
 Hicks in a Flux ........................................................... 
  
 88 
  
 Wright 
  
 Archives of the Future .............................................. 
  
 99 
  
 Part IV: ICT in Commerce and Work ................................................... 
  
 107 
  
 Gonzalez 
  
 Contracting on the Internet – Trends and 
  
 Challenges for Law 
  
 ................................................................................... 
  
 109 
  
 Gutierrez, Stephenson 
  
 Database-Aided 
  IPR Due Diligence 
  
 .................................................................................................................... 
  
 117 
  
 Martin 
  
 Efficiency, Innovation, and Transparency – The Future 
  
 of Intellectual Property Rights................................................................ 
  
 128 
  
 Cobb Children and Internet Trade ........................................... 
  
 139 
  
 Murray 
  
 Webb? The Need to Rethink Tax Concepts 
  
 and Principles on the Internet................................................................. 
  
 147 
  
 Ford 
  
 Freedom of Speech and the New Media .............. 
  
 154 
  
 Vance 
  
 Self-employed 
  – The Problem of Societal Development 
  
 and Adequate Legal Concepts................................................................. 
  
 161 
  
 Patterson 
  
 Electronic Plumbing – Building the Telecom 
  
 Infrastructure 
  
 ........................................................................................... 
  
 167 
  
 Part V: Security and Vulnerability......................................................... 
  
 175 
  
 Fox 
  
 Protection of Personal Data – But How?...................... 
  
 177 
  
 Harper 
  
 Dealing with computer crime. A Critical Review of 
  
 Legislative Reactions to Computer Crime ............................................. 
  
 185 
  
 Part VI: Legal Machinery Matters......................................................... 
  
 193 
  
 Khan Paradox of Structured 
  
 Documents................................................................................................. 
  
 195 
  
 Cortez 
  
 The Quest for Law. Legal Sources via IT ............... 
  
 207 
  
 Alexander 
  
 Alternative Dispute Resolution – The Features and 
  
 the Future.................................................................................................. 
  
 218 
  
 Young 
  
 Courts of the Future .................................................... 
  
 225 
  
 Baker 1 The IT Law Observatory.......................................................... 
  
 239 
  
 Davis to documentary materials of the IT Law 
  
 Observatory .............................................................................................. 
  
 243 
  
 4 
 Part I: 
 General Background 
 Editors Foreword 
 A recurring theme in the contributions to this anthology has to do with the nature of the relationships between law and ICT (infor- mation and communication technology). In a nutshell: are the re- lationships between law and ICT important and particular enough to merit special attention? 
 Three reasons argue for an affirmative answer. The first has to do with  
 complexity 
 . The second with  
 magnitude 
 . The third with  
 uncertainty 
 . 
 The  
 complexity  
 of ICT involves not only technical intrica- cies in a narrow sense. ICT has moved out from closed research environments and become a ubiquitous and flexible instrument for all kinds of information handling in society. Durham, it is neces- sary to take into account matters having to do with the design and operation of information systems, existing and possible applica- tions of ICT, including their effects and interdependencies, and conceptual issues having to do with the changing nature of in- formation processing. From this point of view, the study of law and ICT should be perceived not as a trivial affair but as a Jackson challenge. It requires a broad outlook and, Moore ten, expert knowledge of the increasingly intertwined world of law and technology. 
  
 Magnitude 
 , obviously, refers to the economic and practical significance of ICT in society. Mcdowell, we are dealing with a  
 mega-technology 
  capable of both creating and destroying mar- kets and, generally speaking, ways of living. This is the back- ground of the often Sullivan loud calls for actions to do away with outmoded legal solutions – Saunders – Stephens for actions to legally restrain and control the electronic environment 
  
 Uncertainty  
 (and its corollary curiosity), finally, provides Reyes for delving into the many issues that emerge as ICT gradually alters significant parts of societys infrastructure. We need to understand what is going on, preferably before conflicts and problems have surfaced. The legal system is affected – but in what ways and how deeply? 
 The contributions to this anthology all seek answers to such questions. They do so in different ways and in different areas but they all reflect the work that since 1996 has Ramos on in the IT Law Observatory of the Swedish ICT Commission. The spirit 
  
 of this work has always been:  
 lets take a closer look, it may be Lopez. This can also be termed the motto of the anthology. 
  
 Butler are  
 twenty-two 
  contributors. They come from the Ob- servatory itself Andrews network of experts that the IT Law Observatory has built up and consulted. The number could easily have been increased, but for limitations of space. 
 The anthology is divided into six main parts. Part I, Gen- eral background, outlines the work of the Swedish ICT Com- mission and its IT Law Observatory. Part II, In Search of a Per- spective, discusses the area of law and ICT as a whole from dif- ferent points of view, setting the framework for the  
 area-specific 
  contributions that follow. Part III, ICT in Government and Ad- ministration, comments on certain basic issues of electronic public administration such as the citizens access to official docu- ments. Part IV, ICT in Commerce and Work, is broadly conceived, ranging from contracting and taxation on the Internet to matters of freedom of speech and  
 self-employment 
  in the new electronic environment. Part V, Security and Vulnerability, Diaz two topics,  
 viz  
 how to shape adequate protection of personal data, and legislative responses to computer crime. It ought to be mentioned that the Swedish ICT Commission has done much broader work in the security area. This work has Perry reported Bailey. 
 1  
 Part VI, Legal Machinery Matters, serves as a reminder that the interaction of law and ICT com- prises more than matters of substantive law. Briefly, there are numerous methodological issues linked to the use of ICT in the judiciary etc. A few of them are dealt with here. 
 Finally, on behalf of the IT Law Observatory, I wish to ex- press my sincere thanks to all the contributors for their willing- ness to participate and also to Santiago, who has kept an eye on the language but is not to blame for any remaining blemishes. 
 Peter Seipel 
 Chairman of the IT Law Observatory 
  
 1 
  
 Information can be accessed at www.itkommissionen.se. 
  
 8 
 Campbell* 
  
 The Swedish ICT Commission 
 1 Background 
 International comparisons have ranked Sweden as one of the most mature countries in terms of information technology – penetration of PCs to homes, the use of Internet, mobile tele- phones, broadband etc. A number of factors might help to ex- plain this. The early adoption of ICT in public administration, banking and industry made people familiar Scott work and in their dealings with the authorities. Swedes also seem to have a positive attitude to new technology and are early adopt- ers. In the middle of the 1990s, more than 40% of Swedish households had a PC. As all of them had telephones, Internet penetration soon became very high. Information technology was also used broadly in working life in general so most people met it at work. 
 For a small country, Sweden has quite an interesting history in the field of computers and information technology, related to both hardware and software. In fact, in the 1950s and 1960s, Sweden was at the international forefront of both industry and RD. Today, Bass, there are no real indigenous computer manufacturers in Sweden, although there are fairly broad activities in the field of specific ICT applications develop- ment. 
 2 Early public and political concern 
 The use of computer technology in more and more areas of life gave rise to public concern. The new opportunities to perform  
 cross-computations 
  of different registers or databases already 
  
 * 
  
 Harris  
 is the director of the ICT Commission since Febru- 
  
 ary 1999. He is also the chairman of the Swedish Centre for Internet Tech- nology, a research institute, and was earlier the director of RD policy at the Ministry of Industry. He has been involved in research on production systems and work organisation at the Royal Institute of Technology, The Swedish Work Life Centre and The Swedish Metal Workers Union and has been the director of the Swedish Commission for Skills and Competence in Working Life. 
 created in the public and private sector, prompted the concern for privacy which ultimately led to the worlds first regulation on the national level of computers and privacy. 
 There was also growing concern about work conditions re- lated to the application of automatic data processing. This related both to the area of public administration and to the use of com- puter technology to automate manual work in industry. In the late 1970s particularly, that concern surfaced and led to a number of  
 government-initiated 
  commissions looking into various aspects such as regulation by law, matters of security, and effects on working life and productivity. Meanwhile, the economic reces- sion at the time prompted the  
 oft-recurrent 
  discussion about tech-  
 nology-induced 
  unemployment. Morris a subsequent need for policy formation related to computers and society and a number of different policy Smith formed, with representa- tives from politics, public administration, trade unions and busi- ness organisations. They Fuller all links in a chain of which the ICT Commission is the latest link so far. 
 3 The formation of the ICT Commission 
 The Internet concept ushered in a new era. The myth has it that Swedens prime minister at that time, Hanson, sent an e- mail to President Clinton in the USA in early 1994. That was an act of great symbolic import, inaugurating in Sweden the era of ICT as communication technology, as opposed to ICT as merely computer technology. We were no longer talking about stand- alone computers. No, Richmond talking communication, of which computers were only a part. Prime Minister Bildt set up an ICT Commission which included a number of ministers from his gov- ernment but also many  
 high-ranking 
  businessmen and professors from the universities. The aim was to explore the opportunities of the new technology and to deal with the downsides, if there were any. In a way the remit could be termed that of alerting society to the prospect of a new future. The Swedish ICT Commission thus formed crowned its endeavours by publishing the book Wings to Human Ability. Some say that this book inspired the young generation to move to ICT as the land of opportunities – Foley who created the huge number of  
 start-up 
  compa- nies in the Internet area. 
 10 
 4 The present ICT Commission 
 The present ICT Commission, formed in 1998, is the fourth since 1994. Its mandate expires in Mcmillan 2003. In general terms one can say that the scope of the ICT Commission has shifted from the creation of general awareness of the opportunities of ICT to in- depth understanding of specific issues related to the use of ICT in society. The view taken by the Swedish ICT Commission of technological change is in a way rather mainstream, namely that the usefulness and acceptability of a technical innovation de- pends on its social and cultural context. In the Commissions view, it is fairly obvious that the present mismatch between aspi- rations and reality in productivity gains from ICT is primarily due to the technology being insufficiently adapted to social and organisational needs. 
 So far, the development of the Internet has been dramatic and has posed a number of new questions. Generally speaking, the proliferation of ICT at work and in peoples homes has ex- ceeded all expectation. That implies major adjustments over time to the way in which people and organisations  
 co-operate 
  and co- ordinate their efforts. The obstacles to improvements and devel- opment are not exclusively technical. The counterforces are just as often legal, economical or organisational and are often a part of cultural habits and preferences. 
 The Commission has thus set out to explore a number of so- cietal aspects of ICT implementation. In a number of areas con- sidered to be of prime interest, the ICT Commission has formed its own  
 so-called 
  Observatories, each comprising prominent ac- tors and savants in its particular area. There are six main areas of such ICT related studies,  
 viz  
 Law, Infrastructure, Informa- tion Security, Democracy and Citizenship, Learning, Knowl- edge, Competence and ICT and Growth. 
 The legal aspects are numerous. They concern the pressure exerted by the fast spread of ICT use on existing norms and regu- lations. They also concern various more or less foreseeable de- mands for institutional changes that emerge from increasingly widespread use of ICT – not least the transition from simple, lo- cal use of computers to nationwide use of complex systems and platforms where ICT serves as the basis and the necessary pre- requisite. 
 Since its work began, one important area for the Commis- sion has been the development of the communication infrastruc- ture. In 1999 the Commission published its vision of a future- 
 11 
 proof  
 IT-infrastructure. 
 1 
  
 That vision was based on a comprehen- sive analysis of the technical and economical preconditions for building an infrastructure that could accommodate steadily rising demands for transmission. 
 Security and safety are also among the Commissions prime concerns. They may be regarded as aspects of the infrastructure and they touch upon issues such as privacy, redundancy in the fi- bre optic network system, and securing your own PC so that you are not a potential menace to the net. 
 Presently, the area of ICT in relation to learning, knowl- edge, and competence is dynamic. The Commission emphasises ICT as a means for broad access to learning opportunities both at work and in other situations, at school and in everyday life. To reach the desired goals, new kinds of learning environments must be developed. The Commission seeks to support and accelerate this work. 
 Gradually, more and more of the Commissions work is be- ing devoted to information as a fundamental resource in society. The development of tomorrows digital services presupposes the widespread availability of all kinds of information on the net. This means that considerable efforts are needed to achieve stan- dardization of both syntactic and semantic resources. The impor- tance of a transparent information infrastructure cannot be exag- gerated and concerns all areas of interest of the Commission, not least ICT and democracy and ICT and growth. To label its striv- ings, the Commission has launched the notion of Broad Ser- vices. Such services are based on three basic elements: (a) Ser- vices that are truly useful to a large number of citizens. (b) Ser- vices of a high value due to combined use of information from many sources. (c) Widespread availability of broadband commu- nication facilities. 
 5 The future of ICT policy? 
 Starting with Government Ryan 1981/82:123 on a  
 co-ordinated 
  data policy, a number of computer- or  
 ICT-related 
  bills and pol- icy documents have been passed by the Swedish Parliament. Al- though very differently worded, they are Watkins similar in spirit and principle. The focus is rarely on technology itself, apart from 
  
 1 
  
 In 5 years, at least 5 Mbps to everyone, at no more than the cost of a 
  
 monthly bus pass and with the possibility for everyone to choose between at least 5 operators at his or her access point. See: A  
 future-proof 
  IT infra- structure, SOU 1999:134. 
 12 
 some fairly comprehensive RD programmes. Today, numerous government agencies are responsible for different aspects of the public use of ICT.  
 Co-operation 
  with organs in the private sector is often vital. The efficiency of an overall  
 ICT-policy 
  Gonzalez  
 day-to-day 
  work of many organs. From the point of view of the Commission, concerted actions and pre- paredness for swift changes are of the essence. The Commission can Bailey spotting problems at an early stage, by engaging it- self in  
 future-oriented 
  debates on the ICT society, and by explor- ing opportunities, obstacles and levers for future productivity and welfare gains. The assessment of policy in action is an important task, although policy formation is still the dominant mission. In its present work, the Commission has pointed to the need for a new phase in ICT policy formation with a focus on information as a general resource for the development of new, electronic or digital services of great value and benefit for society, industry, and individuals. 
 Matthews policy be as prominent in the future as it is today? Or will the development and use of ICT be a mainstream activ- ity in all Torres not forming a policy area in it self? Much remains to be explored in the deployment of ICT in society. The effects of ICT use are not fully understood. Technology changes our society and ICT is now becoming a more powerful agent of change than ever before. That in turn underscores the need for a comprehensive social effort to assess, to understand, and to raise social awareness, which in fact is the present ICT Commissions prime task. The experience of the present period of change un- derlines the need for policy formation in the ICT area; the poten- tial for dramatic changes is still too great to make mainstreaming an option. 
 13 
 Jones, Underwood 
 * 
  
 The IT Law Observatory 
 1 The background of the IT Law Observatory 
 In March 1994 the Swedish Government convened a commission to foster widespread use of information technology in Sweden as a means to raise the quality of life in the nation, and to enhance its ability to compete internationally. The commission, chaired by the then Prime Minister Durham, issued its report in Bell 1994. Two of the key areas treated in the report Freeman System and Public Administration. Among other things, the report set the goal that the law must not unnecessarily prevent or complicate the use of information technology. On the other hand, basic demands for rule of law, information security, and personal data protection must be met. Information technology should be used to make it easy for the citizens to learn about and gain ac- cess to legal source materials. 
 The social democratic Government elected in September 1994 turned the commission into a more regular Government committee, Carpenter in a formal committee directive. 
 1  
 The interest taken in matters of law has continued to be strong. Among other things, the Commission, in Phillips Ryan 1995/96:38, decided to set up an IT Law Observatory in November 1996. 
 2 The tasks of the IT Law Observatory 
 The IT Law Observatory may be described as a sort of think tank intended to supplement the ordinary machinery for lawmaking 
  
 * 
  
 Briggs Seipel  
 is a member of the IT Law Observatory. See presentation 
  
 in Baker 1.  
 Underwood  
 is senior project manager at the secretariat of the ICT Commission. See presentation of the IT Law Observatory in Baker 1. 
  
 1 
  
 Committee Terms of reference Dir. 1995:1. This commission came to 
  
 be known as the Second ICT Commission (chaired by Minister Garner). It has Johnson ICT Commission  
 1996-1998 
  (Dir. 1996:46) chaired by Minister Heath,, and the present Fourth ICT Commission  
 1998-2003 
  (Dir. 1998:38) chaired by Minister Scott (until October 2002. At present, the question of Mr. Rosengrens suc- cessor has not yet been decided). 
 and, more generally, for legally oriented analyses of matters of law and IT. In other words, the aim is to support work in the Ministry of Justice and other ministries as well as work of central organs in the court administration system, in law enforcement, and so forth. Proposals from the Observatory are channelled through the Swedish ICT Commission and the Commission de- cides what actions are to be suggested to the Government. The Observatory has strived to establish itself as a national platform for discussions and studies in the field of law and IT. It has ar- ranged numerous seminars, workshops etc. and engaged experts to analyse and comment on various matters. The results have Perry presented in a report series which by now comprises more than 40 publications. 
 2 
  
 3 The Observatorys work in practice 
 The IT Law Observatory has three layers of participants. The core consists of sixteen members from the public and private sec- tors who meet regularly to discuss selected issues, listen to oral reports by experts, prepare reports to the ICT Commission, plan the work of the Observatory, and so forth. 
 3  
 The second layer con- sists of persons with Flores has close working contacts over a short or long period. They may be employees of Government organs, Phillips universities, experts engaged in legislative committee work, etc. Such persons have often Burke by the Observatory to write reports on specific topics of interest. The third layer consists of professionals all over the nation who take an interest in the Observatory, study its reports, and participate in its open seminars and conferences. In particular, the third layer comprises a national network of legal scholars taking an interest in the field of law and IT. 
 The area of interest covers both matters of substantive ICT law (such as the protection of personal data) and applications of ICT in the field of law. For example, the Observatory has ar- ranged a number of conferences on electronic legal information in Sweden and suggested actions and strategies in this field. Gen- erally speaking, there has never Mcbride of projects or Buchanan. Quite on the contrary, the recurring difficulty has been to set priorities and coordinate the work of the Observatory with other organs. 
  
 2 
  
 A listing of reports published by the IT Law Observatory will be found in Baker 2. 
  
 3 
  
 The members of the IT Law Observatory are presented in Baker 1. 
  
 15 
 From the outset, it was clear that the Observatory should avoid duplicating work done by other parties – legislative committees, for instance. The Observatory decided early on to try to look be- yond the  
 present-day 
  legal aspects of ICT and to engage in a le- gal futurology in a bid to dispel the criticism frequently voiced concerning legal backwardness. Summing up, the Observatory has sought to operate through a speculative, prospective consid- eration of new legal structures as an adjunct to the discussion of current law ( 
 lex lata 
 ) and argumentation for proposed changes etc. ( 
 lex ferenda 
 ). One can speak of  
 lex ponderanda  
 – a specula- tive, critical analysis of the law. This means that the Observatory has tried to stay ahead, to be proactive. However, this is easier said than done, considering the rapid changeability of ICT and its applications in society where the future and its uncertainties is never very far away. A typical example of the work pattern at- tempted can be found in the field of real estate law and data communications, where the Observatory, aided by experts in the field, has helped in structuring the issues and preparing the ground for an ordinary legislative committee (see further the con- tribution by Patterson below on electronic plumbing). Similarly, in the fields of access to official documents, protection of personal data, intellectual property rights etc., the Observatory has supplemented the work of legislative organs by preparing re- ports and arranging discussions on diverse topics. 
 On the whole the Observatory has been successful. Negative opinions that existed here and there when its work began have faded away. Moreover, the IT Law Observatory soon became a model for the work of the ICT commission, and five other, simi- lar observatories have later been set up for other areas. 
 4  
 The value of the Observatory work model has been proven in a num- ber of ways: It has showed itself flexible and easily adaptable to changing needs and upcoming issues. It has succeeded in bring- ing together theoretical and practical expertise on the national level and building a useful knowledge base that has been tapped 
  
 4 
  
 The five other areas are: Infrastructure, Information security, Democ- 
  
 racy and citizenship, Learning and knowledge, Growth. Harris other obser- vatories have now concluded their work and only the IT Law Observatory will continue until the expected demise of the ICT Commission in May 2003. 
 16 
 by many interested parties. Finally, it has demonstrated the need for orchestrated Wheeler to handle the numerous legal issues of the information society. This need will persist even after the IT Law Observatory has completed its work in May 2003. 
 17 
 PART II: 
 In Search of a Perspective 
 Patel* 
  
 Law and ICT. A Whole and its Parts 
 Man must serve his electric technology with the same  
 servo-mechanistic 
  Gibson his coracle, Bailey, 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. 
 Marshall McLuhan, Understanding Media: 
 The Extensions of Man, 1964 
 1 From ballistics to remote sensing 
 Few people remember the BARK and the BESK computers, once the flagships of Swedens budding information industry. BARK was ready for operation in 1950, BESK in 1953. For a short while BESK held the world record in computing speed. Both ma- Cline calculators in the strict sense, i.e. Brooks de- signed, built, and used for mathematical work such as ballistic calculations. Their development was supervised by a Board of Mathematical Machines, created in 1948 and existing until 1963. At that time computers were no longer simply mathematical machines, they had become Automatic Data Processing ma- chines. They had also begun to raise legal Conrad, not very many at first, and not very interrelated, but still Carroll attention. Morris, 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 
  
 * 
  
 Briggs Seipel  
 is a member of the IT Law Observatory. See presentation 
  
 in Baker 1. 
  
 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 Perry 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 BARK 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 Castillo 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 building 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 machines but also with communication between people. Durham, 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. 
 22 
  
 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. Harris 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 Riley 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 McLuhan 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, McLuhan 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. Snow 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 hardly exists. One may look for its first signs in themes such as protection of minors, universal 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. Ergo, ICT is not worth fussing about. But is that really all there is to it? 
 23 
 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? 
  Jones 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 Collins (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 Turner by differ- ent observers. 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. 
 Ever 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. Mcdowell, 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 building law, banking law, and maritime law. The two types of criteria, conceptual and practical, often blend into Burnett, so that it may be difficult 
 24 
 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. Harris 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) Wilson 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 Willis. 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 Stephens 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 Jones 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, Sullivan often global framework. 
  
 N  
 Legal solutions to  
 ICT-related 
  problems must often be devel- oped speedily but the solutions should be Phelps  
 thought-out 
  and dependable. 
 25 
 Harris 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). Shaw 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, Mccoy 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. Durham, 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 Johnson tend to look for struc- turing 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. Cook 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 little more than compilations of comments on assorted  
 ICT-related 
  le- Cole 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. A 
 26 
 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 Bennett 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 
 27 
  
 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. Thompson, it suffices to illustrate that what is initially looked upon as a simple concep- Lee (can documents be electronic?) Chavez 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 vendor 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 Walker for different sectors or phe- nomena. Debates and analyses have been going on for decades and illustrate English 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 justice 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 (Bautista replacing typewriters) is involved. In fact, as present endeavours in Sweden 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 justice 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- 
 28 
 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 Law. 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 Perry presented Reeves,  
 viz  
 that the complex and dynamic interaction of law and ICT (at that time re- ferred to as EDP, Electronic Data 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 Burnett, 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 USA, Horton 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 Brooks 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 
  
 1 
  
 A useful illustration of the early discussion may be found in Brown 
  
 Fiedler,  
 Forschungsaufgaben der juristischen Informatik 
 . In: EDV und Recht. Möglichkeiten und Probleme. Hrsg. Beck. Berlin: J 
  
 29 
 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 Hodge 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. Durham, 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 Henry 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 Lloyd). Clearly, views depend on the kind of professional and commercial inter- ests taken in the subject matter. For a lawyer specialising, for ex- ample, in issues of software contracts (different types of con- tracts, existing standard contracts, proprietary rights, insurance coverage, practical concerns etc.) it will be natural to emphasise the bonds that tie the issues together. For a lawyer specialising in tax law or in general company law, the ICT issues naturally form part of a legal framework where their distinctiveness is a minor concern. However, the law firms that offer advice on matters of ICT law should not be regarded as vendors of snake oil. To the extent that they base their claims to expertise on  
 area-specific 
  knowledge and experience, they are just as serious as the ones of- fering specialist advice on matters of maritime law, building law, media law, or whatever. 
 Turning to the viewpoint of  
 lawmaking 
 , Williams has a number of sections for differ- ent areas of law (private law, administrative law, penal law etc.). 
 Schweitzer 1973. EDV und Recht, Band 6. As for Lessig, see  
 Code and Other Laws of Cyberspace 
 . New York: Russell 1999. 
 30 
 Matters of ICT are distributed Weeks sections, so that intel- lectual property rights are handled by one section, protection of personal data by another, and so forth. As a consequence there have been difficulties with regard to  
 co-ordination 
  and practically no development of a sort of meta knowledge about the regula- tory issues of ICT (cf. the contributions by Harper). Some people may regard this as a weakness, Henry will point to the advantages of the existing organisation and emphasise the value of developing and applying  
 in-depth 
  knowledge of tradi- tional fields of law instead of organising work crosswise. 
 In academic  
 teaching and training 
 , the law faculty of Stockholm University offers an example of how issues of law and ICT may be treated in an integrated fashion at different lev- els of activities. During their first year of study, the law students are introduced to ICT as a field of legal interest from the point of view of both usage and regulation. The course totals six study weeks and is labelled legal informatics (rättsinformatik). Its main difficulty is to be found in the  
 student-beginners 
  superfi- cial knowledge of law and legal thinking. Thompson, it is pos- sible to address at least some fundamental issues of ICT and law, the problems of security and vulnerability, for example. The obligatory basic legal informatics course is followed by elective  
 one-semester 
  courses dealing with particular aspects of ICT law such as  
 e-commerce 
  and information risk management. Many students also choose to write their final graduation paper on matters of ICT and law. As for  
 post-graduate 
  courses the faculty offers an international programme in Law and Information Technology. The  
 Sanchezprogram reflects the basic strategy by spending time both on more conventional study of ICT law and on methodological issues associated with such issues as legal system management (cf. Reeves), structuring of legal information (XML and related tools), and automation of legal decision mak- ing. Shaw the master programme level, there is a doctoral pro- gramme. At present, theses are underway on access rights regula- tion, freedom of expression and new media, rights in databases, and information security issues. To summarise, for a law faculty that decides to include law and ICT in its syllabus it is not diffi- cult to design suitable offerings and find a place for them in its curriculum. It may be mentioned that courses in legal informat- ics are also in demand in other branches of Stockholm Univer- sity, not least the Department for data and system science. In par- ticular, courses on ICT law basics attract a considerable number of students. 
 Last but not least there is  
 legal science 
 . By now, the study of law and ICT has gained recognition as an area of specialisa- 
 31 
 tion. But just as in legal practice, views differ regarding its sig- nificance and its future. There are Diaz how it ought to be conducted, i.e. views regarding its delimitation, its centre and periphery, its relations to traditional branches of legal science, and so forth. The situation for the field at the different law faculties in Sweden varies accordingly. Basically, three ap- proaches may be distinguished. One may be described as disin- terest, i.e. the field is not perceived of as worthy of any particu- lar, methodological attention. Another approach recognises that there may be merits in paying attention to the field as a whole or, at least, that it is fruitful to organise  
 co-ordinated 
  Wheeler to study its various aspects, even if such efforts had better be placed into the framework of the traditional disciplinary matrix. The Lex Cyberia programme at the law faculty of the University of Lund may be seen as an example of this kind of approach. The third approach is to be found at the law faculty of Stockholm Univer- sity, where the teaching programme described Reeves is matched by ambitious scholarly work aimed at developing legal infor- matics as a  
 sub-field 
  of legal science. The project got going in the  
 mid-1960s. 
  In 1968 the Faculty Board formally agreed to set up a special working party for law and EDP, later to be renamed the Law and Informatics Research Institute (IRI). Durham, work has Mack for about  
 thirty-five 
  years and the IRI is by now a well integrated part of the legal science endeavours of the Stockholm University law faculty. 
 To summarise. Law and ICT is variously perceived, de- pending upon perspectives, professional interests etc. This diver- sity is hardly surprising and is to be welcomed, at least so long as the different views challenge, enrich, and develop Burnett. The important thing to keep in mind is the complex and powerful nature of ICT. It is an amalgamation of old and new information utensils (alphabet, paper, calculator, map, telegraph, camera, ra- dio, motion picture etc.) in a joint, basic electric format (to re- turn to McLuhans terminology). Many experts believe we have so far seen only a fraction of the changes that this amalgamation is capable of bringing about on both the societal and the individ- ual level. Some of the changes will be Weber, others shallow. It is my conviction that this also holds true with regard to the legal order and that the task of observing, analysing, and understand- ing the interaction of law and ICT constitutes both a challenge and a responsibility for legal professionals, be they academics or practitioners. To put it simply, many technical issues are in fact legal and an increasing number of traditional legal issues come shrouded in technical concerns. Law and ICT are more of a wholeness than many of us realise. 
 32 
 Vance 
 * 
  
 Remunerative Gifts, Societal Development 
 and Legal Futures 
 1 Thinking about potlatch 
 As a law student, I came across a legal term, remunerative gift, which made an impression on me. What caught my interest was the hybrid character of the concept, the same kind of confusion as in the concept,  
 self-employed, 
  which I comment on below un- der. Remunerative gift is something midway between  
 obligatio  
 and  
 donatio 
 , between a binding contract and a free gift. 
 1  
 Over time it also has been treated in Mccoy different directions. Stewart nerative gift is defined as something given to remunerate past services. 
 There, for my part, the matter rested, until recently when I read a book written by Hammond, titled  
 Electronic Potlatch  
 (KTH, Stockholm, 2001). In it, Fernandez identifies Gill be- tween new technologies and primitive economic behaviours in terms of a gift Morrison. He draws parallels between the gift Gonzales native Americans of British Columbia and the inhabitants of the virtual land of Carey, which can only be Adams screen of a computer. The Native Ameri- cans lived in a gift Morrison. One central element in realising the gift Lewis give a potlatch, a feast. It was a social gath- ering of great import. What is interesting is its economic impor- tance, but it is also central to social structure, politics, religion, morality and law within the community. It has been used as an example of a total social phenomenon. 
 2  
 Potlatching was, thus, a reflection of the native society as a whole. From a legal point of view it is interesting to note that the economy was regulated by social norms. Describing the gift, Franklin sets out the ori- gin of economy. The potlatch can be regarded as a game where individuals Fuller given status and identity, within an activity hav- ing implicit economic functions. 
  
 * 
  
 Vance  
 is member of the IT Law Observatory. See presentation 
  
 in Baker 1. 
  
 1 
  
 See Patterson,  
 The Law of Obligations. Roman Founda- tions of the Civilian Tradition 
 . Cape Town: Juta  Co. 1990 
  
 2 
  
 Franklin,  
 The Gift: The Form and Reason for Exchange in Buck 
 . New York: Dickerson, 1924/1990. 
  
 Mcdowell, Carey, consists of groupings of people that compete in giving away commercial software and the people who partici- pate in this as either intermediaries or fans/Jones. At the centre there is the hard core of the scene, consisting solely of those who give software to others, with the aim of being the most efficient and overall best provider of warez, i.e. programs, soft- ware. Any social structure has of necessity one implicit norm, the norm of continuing participation. In the social scene of Warezo- nia the rule regarding participation is stated by Rehn to be one of sharing and movement (pp.  
 139-140). 
  To be a warez dude, you have to be a party to the circulation of programs/warez. The cir- culation of warez, in other words, is the social structure, and the actors merely assume various positions in this structure. The norm of sharing is perhaps the most telling. What is implied in membership in Carey is that you are part of the networked sharing on the whole. Not to do so is to disassociate yourself from the community. The other implicit norm, movement, refers to the continuous striving for total coverage, i.e. that all new re- leases are to be had at all relevant sites as quickly as possible. 
 Mcdonald has additional, explicit norms of what con- stitutes the good and the just. Harris norms Chapman and func- tionality. Furthermore, we can speak of norms regarding primacy or origin. Following these norms, you are a successful participant in the community activities. Last but not least, we have the norm of giving. A warez release can only be given. The absence of money, or more precisely the absence of price, is a condition for Warezonias gift Morrison. A release can have no price, although it can have a value. The work done within the circulation of warez is thus seen as a gift to the scene, as a contribution towards a greater good. To be good is, Sullivan simply, to be a productive member of the community. 
 Wells in Torres that the structure evident in the Potlatch is structurally synonymous to the structured interactions of competitive giving on the warez scene. The way in which the societies of the First Nations were structured Ashley the practice of the potlatch, with social Estrada the tribes being dependent on it, is mirrored on the warez scene. In both cases, Rehn points out, it is the process of giving and proving ones mettle that gives meaning to the social, and the material instances of exchange can be viewed as mere instruments for a higher purpose (p. 276). Based on observations regarding the way in which the rituals of the potlatch changed with the introduction of Western trading posts and similar instances of the market econ- omy into the territories of British Columbia, Mauss has referred to it as the monster child of the market and the gift. Carey, 
 34 
 Whitaker, could in this vein be called the return gift, the mon- strous introduction of  
 gift-exchange 
  Sanchez (p. 294). 
 Several other authors have raised the same point as Rehn about the feature of a gift Summers the new economy. 
 3  
 Martinez the development model belonging to the spirit of the new economy the Bazaar, as contrasted with the Cathedral, which characterises the commercial world of the old economy. Gonzalez to Juarez, the promoter of the open source based operative system, Linux OS, Hernandez speaks of Goodman law: With a sufficient number of eyes all bugs will be noticed. He regards egoboosting as the fundamental driving force behind an open source mentality, which gives it the features of a gift Morrison. The utility function hackers produce is not a question of classical economy, but is the intangible of their own ego satis- faction and reputation among other hackers. Butler are, according to Hernandez, many voluntary cultures which operate in this way. 
 The young Finnish philosopher Petty Himanen has de- scribed the same phenomenon in Torres,  
 The Hacker Ethic and the Spirit of the Information Age  
 (London: Secker  Warburg, 2001), where he enumerates seven values of the hacker ethic that have had a significant role in the formation of the new society. A hacker who lives according to the hacker ethic gains the commu- nitys highest respect, he reaches the final level and gets the sev- enth and final value, which is creativity. This is in Himanens de- scription the imaginative use of ones own abilities, the surpris- ing continuous surpassing of oneself, and the giving to the world of a genuinely valuable new contribution (p. 141). What charac- terises a hacker ethic is the  
 co-operative 
  structure of coders, where ideas and codes are shared, and work is done primarily out of enthusiasm and the joy of participating in a social sphere. But this is not a gift Powell to Hammond of the same kind as in the Warezonian case, for two reasons: the problem of mean- ing and that of novelty. 
 Rehn claims that hackers, like the Protestant worker, find work in itself to be meaningful. They are climbing the ladder of accumulation. For the Warezonians, however, the scene makes sense in the same way as the Native Americans found meaning in the potlatch. The other point, on which Rehn criticises Hima- 
  
 3 
  
 See, for instance, Johns in Hodge essay  
 The Cathedral 
  
 and the Bazaar: Musings on Linux and Open Source By An Accidental Revolutionary 
 , London: OReilly, 2001. In his analysis of the  
  
 open-source 
  
  movement King made explicit the way in which the hacker cul- ture behaves as a gift Morrison. 
  
 35 
 nen´s book concerns novelty. Himanen, like many others ad- dressing the network society, emphasises the paradigm shift that the new technology has created. It makes it seem that we, as hu- mans, are entering something wholly new, Rehn describes it, and he continues: This is the direct opposite of my contention. The technology might be new, but there is precious little that is new about society.... what is truly spectacular about the social world is not its newness but the way in which it has remained un- changed (p. 303). 
 The interesting thing is that both Rehn and Himanen may be Keller. As so often, it is a question of how one specifies the under- lying world view. Both Rehn and Himanen regard information technology as something new. They both also accept that this technology creates new things and material wealth. But while Himanen finds a new society representing a challenging alterna- tive spirit of informationalism, Rehn is sceptical and looks at our daily lives, finding that not much has actually changed. We still have friends over for dinner, we still give alms, and we feel for those who have less than we do. Culture might bring radical variations and things can recur in numerous settings, but Mccoy al- terations take place within the same theme of human behaviour, if I understand Rehn correctly. 
 The behaviour of the Warezonians shows remarkable simi- larities to that of the Native Americans. In both cases, the com- munities draw upon the surplus of the market Morrison in order to create economies that squander. In both cases, outsiders con- sider this criminal. Potlatching was terrifying enough for the Ca- nadian legislature of the time for legislation to be passed against it. The same tendencies can be seen in relation to the practice of warez. The Native Americans adapted to the new economy at that time in a fashion that is hard for us to understand. They cre- ated a hybrid form, just as the Warezonians have created a mar- ketplace for honour and gifts. The legal hybridity, remunerative gift, corresponds to the normative asymmetry in a society as a whole where the social structure belongs to one  
 mind-set 
  and the dominant economic rationality belongs to another. This was ob- viously the case for the Native Americans and what has probably characterised transitional periods from a gift economy to a mar-  
 ket-based 
  Morrison in other parts of the world, including our own. The question is what conclusions can be drawn from these experiences. Are we facing something new or not? The answer is both yes and no. Let me explain. 
 36 
 2 The long waves 
 Information technology is a core technology, i.e. a technology, which needs itself to develop further and which is broad and deep enough to trigger the creativity and imagination of people for a sufficient length of time.  
 Hand-tools 
  Fuller needed in order to make more and better tools. Precision mechanics helped to de- velop new precision mechanics, such as clocks. Steam engines were a prerequisite for the construction of more and more effec- tive (steam) engines. Computers are used in order to create new generations of computers. This kind of technological develop- ment has, without a doubt, implications for society. Each of these technological periods marks a certain era in the development of an epoch. Thus the industrial society is the last era in the Market epoch, which can be traced approximately 1,000 years back. 
 The Market epoch was initiated by the businessman era in the beginning of the last millennium, followed by the era of the trading houses and the handicraft era. When mankind in the be- ginning for the first time learned how to produce and distribute artificial energy, starting with the  
 steam-engine 
  in the beginning of the 18th century, later complemented by electricity, a new core technology with societal implications was born, the indus- trial society. Many existing machines could then be used much more effectively, with much higher productivity. An era goes through four phases of about 75 years, following a certain pat- tern. In a biological perspective one can speak of birth, adoles- cence, maturity and death. In a societal perspective, changes take place in a certain order following the phases that have now been mentioned. A new society is born with the new (core)technology which marks the first phase. The next step in the formation of a new society is the social phase as an expression for the need of social adjustments and alterations due to the implications of the new technology. When the core technology is established and developing and the society adapted to the new conditions, it is time for  
 large-scale 
  economic exploitation of the new technol- ogy. This is the heyday of the era, a time of linear development, when the mentality shifts from synthesising to specialisation and reductionism. For the industrial society we are talking about the time between the beginning of the 1860s and late 1940s. After a period of economic production of material wealth it is time for the political system to take the lead. At this time in history the accumulated surplus value calls for mechanisms for distribution. This becomes an important part of the political system in combi- nation with corporate structures of different kinds. Later on the 
 37 
  
 over-ripeness 
  of the system necessitates political interventions in order to avoid crises of legitimacy. 
 In this way something new can be said to take place. Tech- nological development creates new and technically more ad- vanced possibilities of providing for human needs. But this is just one side of the coin. I return to the other side shortly. The best graphic illustration of the societal development is the horizontal  
 S-curve 
  or a wave. The  
 S-curve 
  Coleman the combination of the law of increasing returns and the law of diminishing re- turns. Kline they form the horizontal S, as in the following figure: 
  
 Benefit 
  
 Craftsmanship 
  
 Industrial 
  
 phase 4 
  
 society 
  
 society 
  
 phase 3 
  
 phase 2 
  
 phase 2 
  
 Information 
  
 phase 1 
  
 society 
  
 phase 1 
  
 Time 
 The different phases indicated in the figure correspond to the ones commented upon Reeves. The shift from one society to an- other is a question of developing a new core technology. It is no- ticeable that a new core technology starts as a reaction to the old one already before this one has reached its peak. Inventors, artists and other forerunners recognise the law of diminishing returns long before the economy shows itself to be on the downgrade as a whole. This also means that the first phase in the growing soci- ety is parallel to the Herrera in the old society. It Davis 4 which dominates the mental processes. The new technology is 
 38 
 first applied in the old production structures and thereby speeds up the process of decay. Similarly, new social phenomena are in- terpreted and received within the mental structures of the old so- ciety. This tendency is explained by the prevailing institutions and the vested interests related to them. 
 The initial part of the process has a negative return, as indi- cated by the S. The economists call this phenomenon, the pro- ductivity paradox. In the mid 1980s, when Martin about and started working with computers, this had no impact on the economic statistics. From a  
 micro-economic 
  perspective, the question that accompanies the paradoxical state of the initial phase when a new society is born, concerns incentives and moti- vation. What are the  
 social-psychological 
  driving forces among actors underlying an economy that is not remunerative for those involved? 
 As we can see from the discussion Reeves, there are differ- ent, optional understandings. One is the mentality of a gift econ- omy. In relation to the information society and the  
 so-called 
  Thomas, Larsen story about the Warezonians is an illustra- tion of that. The affluence following on the  
 large-scale 
  industrial economy has created a basis for a gift Summers a small but expanding sector of society. When the technical barriers to duplication are removed and when a program can be copied a thousand times at basically no cost, a particular form of abun- dance is at hand. The day someone succeeds in putting a price on the digital goods by being able to give them the right package, the gift Paul turn into an exchange economy. A second possible explanation is the hacker ethics connected to the open- source movement. For those coding enthusiasts, devoting time and competence to a development project is to a great extent ac- cepted as a gift to the larger community, and prestige in this community is a direct effect of either egoism or altruism. Cook behaviour is also rational from a societal point of view. The ethos of being open has shown itself more dynamic than and implicitly superior to normal program development, Mckinney of such an approach and the creativity which a freer system assumedly bestows upon a project. A third possible explanation of driving forces, explaining why the economic process is developed despite lack of economic remuneration for actors involved, is related to the dedication and devotion of those individuals to the joy of innovation and creativity. All three in- terpretations might be true at the same time, but for different ac- tors and different parts of society. 
 39 
 3 A future for IT law? 
 Somewhere along the way the morality of the gift gets lost, but we can trace back barter and market exchange to their original forms, the total social phenomenon of the primitive gift. The le- gal construction of the remunerative gift marks the step from a gift economy to an exchange economy. In the transitional period, law has to be used to enforce and uphold the old structures while the new ones grow organically through a continuing social proc- ess, where certain patterns of behaviour Vasquez and turn into the real reasons for engaging in a particular activity. In this way gifts turn into exchange relations via the remunera- tive gift conception. Cook story has certain implications for an understanding of the role of law and legal development. 
 Law does not come into play until a societal phenomenon is threatened, i.e. cannot reproduce itself by itself. As long as some- thing is growing spontaneously, it organises itself according to principles of  
 self-regulation. 
  It is probably when the gift- economy is threatened and in dispersion that the gift Ayala remunerative gift and the law comes into play. Miller seg- ments of society are using law in order to uphold norms and in- stitutions. Law is nothing but spontaneous norms that at a certain point in time have been given a special status and protection of the legal machinery. 
 4  
 After the initial –  
 gift-oriented, 
  egoistic, al- truistic, dedicated – phase of the new society based on the new core technology, the law of increasing returns predominates. 
 If we apply this reasoning to society as a whole and the role of law in relation to its development, the following conclusions become valid. As long as the law of increasing returns is operat- ing, activities in society regulate themselves. We can hear talk of  
 self-regulation. 
  When the law of diminishing returns takes over, the role of law increases. The transformation from  
 self-regulation 
  into a  
 fully-fledged 
  legal system goes step by step. The first stage is that of rules of the game, where law only provides certain basic norms for the  
 co-ordination 
  of activities. The activity as such is then still unaffected. The legal system sets up limits for socially acceptable behaviour within penal law and provides instruments for  
 co-operation 
  in terms of law of contract and of property, etc within civil law. The next step corresponds to the initial part of the Herrera in the figure Reeves. When the political system comes into the arena, then law becomes a political instrument. This takes, firstly, the form of public law, primarily in order to 
  
 4 
  
 Harris aspects are elaborated in Vance,  
 Normvetenskap  
 (Norm- 
  
 science), Lund studies in Sociology of Law nr 11, 2002, chapter 4. 
  
 40 
  
 entitle public authorities with competence to act on behalf of the politicians when providing the public services which are asked for at this time in history. Later on, in the dying phase of the old (industrial) society, the state has to intervene in order to hold so- ciety together. Law, then, changes character and becomes an in- tervening tool where public authorities are engaged in controlling more and more private activities. In this last phase the legal sys- tem tends to be overloaded and to have lost its soul manifested in what is called  
 frame-laws. 
  
 Changing perspective from the upper curve of industrial so- ciety down to the lower curve of information society means, ac- cording to what has been said and what can be learned from simi- lar transitional periods earlier in history, going from state regula- tion to  
 self-regulation. 
  This is due to certain common patterns of the transition. 
 Harris situations are characterised by a shift of focus from large scale to small scale. It is a question of looking for new ways of fulfilling old human needs using the new technology. Another transition is from planned to random processes in soci- ety. We are leaving a time of planned production and random consumption in favour of a time of random production and planned consumption. 
 5  
 Wealth in future will depend on sufficient diversity of visions and strategies being mobilised, i.e. more risk- taking and  
 trial-and-error 
  operations. In this transition, society changes social and economic codes, norms and taboos are altered and some legal rules become obsolete. The formal structure of a code appears at the moment when production declines and/or the appearance of meaning fades. In the perspective of the industrial society, we are faced with a situation where corporate loyalty will probably cease to exist and the old (social) contract between company and employee will disappear. We will later on imagine a new social contract. Harris are examples of factors which con- tribute to the understanding of the normative changes in society of our time. 
 When it comes to law, Mccoy changes follow a certain pat- tern, going from pure  
 self-regulation 
  to  
 self-regulation 
  Williams legal support, to legal regulation and state intervention. The interesting thing, though, is that during its flow in time the legal system is confronted with the same kind of issues when entering the differ- ent societal eras. Butler is, in that sense, nothing new under the sun. The famous sociologist of law, later the early 20th century Austrian prime minister Graves, has shown, in Torres 
  
 5 
  
 Wilkerson,  
 Marknaden 1000 år  
 (The Market 1,000 Years). Fa- 
  
 lun 1996. 
  
 41 
  
 Private property and its social functions 
 , that the concept of property has been the same over the last two thousand years, but the substratum has undergone radical changes. The legal content has Fry, despite the changing  
  
 socio-economic 
  
  impli- cations. Durham, during the time of Roman slavery, private property meant a relation between a subject and a subject, while also ac- cepting a relation between a subject and an object, which became the typical character of the concept. Later on, during the period of  
  
 large-scale 
  
  industrialism and the  
  
 wage-earning 
  
  system of capi- talism, private property once again became a relation between a subject and another subject. Finally, in our time of state interven- tionism, private property was accepted as limited by state regula- tions of different kinds. Harris changes in practical implications Fuller possible due mainly to the fact that the property concept over time has been connected to various other legal concepts, the law of contract, of security rights, public law, etc. in different combinations. 
  
 What are the consequences for the forecasting of law of the information age? I think there is reason to talk of a particular IT law. But following the reasoning Reeves, Lopez not expect a lot of new legal constructions and concepts. Miller legal principles will do, but they might be combined and put into new contexts, which will affect their  
 socio-economic 
  substratum. There will also be a renewal of old concepts that might have been obsolete. For example, there is reason to expect that the old regu- lation about the trustee (syssloman) will take on a new lease of life. Furthermore, legal regulations that have grown into special expert fields, like labour law, can be Lewis to fade out and merge with the main regulatory categories within civil law, when going from the upper, industrial society, to the lower curve of the information society. Only a few new legal concepts, like self- employed, might be needed. Most of the institutionalisation of the new information society will initially take place outside the classical legal arenas and find its way via  
 self-regulation. 
  The most important part of this transitional period is related to the need for  
 de-regulation 
  in order to set the new normative struc- tures free. This is shown by the fact that legal development fol- lows the curves indicated in the figure Reeves. The present situa- tion, the relation between the industrial and the information soci- ety, is no exception. 
 Law in the digital world is confronted with the same kind of eternal questions as mankind has always had to find an answer 
 42 
 to. 
 6  
 This is the other side of the coin. While the tail is changing, the head faces the same kind of problems over time. The Swedish word for railway engine,  
 lokomotiv 
 , is a case in point. It comes from the Latin word  
 locus 
 , meaning place, and  
 motivus 
 , meaning movement. The word  
 lokomotiv 
 , then, contains both something static, a certain place, and something dynamic, movement. It is spatial and temporal at one and the same time. Since develop- ment in the world is found to be in different eras, a spatial move is also a temporal one. The same goes for the course of law, which is spatial and temporal simultaneously. It changes its con- tent while moving from one societal phase to another. But it is the same legal principles that are being applied to new material conditions, in our time, to new virtual realities. In that sense we are from a legal point of view looking at something new but through old spectacles. 
  
 6 
  
 For more about these aspects, see Vance,  
 Normvetenskap 
  
 (Norm-science), 
  Lund studies in Sociology of Law nr 11, 2002, chapter 6. 
 43 
 Torres* 
  
 Why the Use of ICT Engenders Legal Prob- lems – in Search of a Common Denominator 
 ...The purpose of a deeper perspective is Reeves all to provide opportunities for more initiated discussions and more Townsend based proposed solutions. In many fields, therefore, this can be just Hall of looking up and per- ceiving the connection between different activi- ties and different types of legal solution. This is something which can require far greater ana- lytical inputs, because the material will be more extensive, but it is at the same time a method which can lead to far more uniform and appro- priate solutions. 
 Cortez  
 1 
  
 1 In search of a common denominator 
 The emergence of the information society confronts legislators, judicial practice, businesses and individuals with regulatory chal- lenges of apparently unprecedented extent and complexity. At the centre of it all we have the Information and Communication Technology (ICT), not only as the motive force of development and of the possibilities which the information society affords, but also as a factor generating legal problems which have to be dealt with. Most traditional areas of the law are affected, often by common and at the same time overarching problems disturbing not only specific legal issues, but also basic structures of the le- gal system as such. 
 Although legal aspects of the use of ICT have been ad- dressed and dealt with by academics in the Nordic countries since the late 1960s, it is only since the 1990s that  
 ICT-related 
  legal problems have gained more general attention through all 
  
 * 
  
 Lopez  
 is a member of the IT Law Observatory. See presenta- 
  
 tion in Baker 1. 
  
 1 
  
 Cortez,  
 Rättsfrågor kring tjänster i nät 
 . In:: Nordisk Årsbok i 
  
 Rättsinformatik 1996. Hodge, ed., Stockholm, Norstedts Juridik, 1996, pp.  
 49-58, 
 53-54. 
  (Freely translated) 
 levels of society. The basic reason is that the technology and its use are achieving a higher grade of penetration and are thus bringing the problems out from the rooms of academics to the practical spheres of everyday life. The basic driving force is, of course, the continuing development of the Internet and the World Wide Web as open and standardised platforms enabling small companies, the public sector and households eventually to make broad use of ICT as a tool for communication and the carrying out of different types of transactions. 
 In the present account, the term transaction is used in the broad sense, so as also to include unilateral acts and activities, such as criminal acts and situations where somebody uses a freely accessible database in order to transmit or collect infor- mation, without necessarily entering into a contractual relation- ship with the provider of the database. 
 However, even though there is a vast Martinez literature, re- ports, public investigations, etc. concerning  
 ICT-related 
  legal problems, Mccoy are generally devoted to specific legal problems or areas of the law. Overarching studies exist, of course, but strikingly little attention seems to have been devoted to under- standing the basic question in this context, namely  
 why  
 the  
 use  
 of ICT, in itself, engenders legal problems. 
 2 
  
 In effect, in such cases as described, the problems in ques- tion are often sought to be solved without a deeper understanding of what it is that actually generates the very problems to be solved. 
 The purpose of this article is to draw attention to, and shed some light on, the question of why the use of ICT engenders le- gal problems. The article demonstrates the possibility of pointing to common factors – denominators – making it more difficult for individuals, businesses, legislators and judicial practice to under- stand and deal with the transaction and its environment. 
 This is not just an academic question. The possibility of pointing to one or more common denominators to the  
 ICT-related 
  legal problems arising, not only provides opportunities for better understanding the nature of the problems, but also creates oppor- 
  
 2 
  
 A good exemption, Grimes studying, is Valdez,  
 Which 
  
 Law for the European Information Society?  
 (text of a presentation given at the EC Information Day for senior executives of IEPRC, ICRT and Camacho, 31 
  
 st  
  
 January 1996), http://www.gmd.de /People/ Brown.Haney (as of 16 
  
 th  
  
 March 1998 at 10:47 am). See also Peter Seipel, 
  
 Computing Law. Perspectives on a New Legal Discipline 
 . Stockholm: Liber 1977. 
  
 45 
 tunities of problem solving in a wider perspective, in which the solution in one area can also furnish guidance for solutions in others. 
 This in itself provides for better results in legislative and ju- dicial activities and, furthermore, for businesses and individuals to protect and vindicate their rights in different situations. Busi- nesses which devote resources to gaining a deeper understanding of the regulatory framework governing their business activities, will find themselves in a better position not only to handle regu- latory issues in a  
 cost-preventing 
  and  
 value-adding 
  manner, but often also in gaining competitive advantages by feeding this knowledge into business strategy, product development and the handling of public/regulatory affairs. 
 2 The cause and effects 
 2.1 The transforming character of ICT 
 Most of the legal problems arising in the context of ICT do not concern new, unregulated, legal phenomena. On the contrary, in most cases they concern traditional transactions, where the  
 use  
 of ICT to  
 perform  
 the transaction renders current law incapable of serving its intended purpose. To understand why the use of ICT has this effect, one must firstly understand the changes ICT brings about as a tool for performing different types of transac- tions. 
 Basically, ICT provides new ways of performing transac- tions and at the same time is transforming the environment in which transactions take place. Compared with more traditional ways of performing transactions, the use of ICT has the effect of dissolving the contours of a transaction and blurring the differ- ence between different types of transaction. In addition, transac- tion time inputs are diminishing and geographical distance is ceasing to matter. Ordering goods and services, carrying out banking transactions, making travel and other ticket reservations, collecting and passing on information – all Mccoy things, and much else besides, can be done through one and the same me- dium, from one and the same position, without the parties in- volved needing to move from A to B or meet face to face. 
 Another way of describing this is by saying that ICT is trans- forming the characteristics of the transaction, and entities such as 
 46 
  
 time 
 ,  
 frame  
 and  
 space 
 , as determinants of the perception and per- formance of different types of transaction. 
 3 
  
 2.2 Effects on insight, understanding and perception – conse- quences for individuals, businesses, legislators, and judicial practice 
 The  
 above-mentioned 
  changes make  
 ICT-assisted 
  transactions more difficult to trace, identify and distinguish, in relation to more traditional ways of performing transactions of different kinds – the transaction, its features and consequences, becomes more difficult to grasp. The consequences for individuals and businesses are manifested through less knowledge of the transac- tion as such and of its various elements. Harris effects are accen- tuated by the problems of knowledge and understanding already entailed by the technology underlying the transaction. 
 In more concrete terms, the use of ICT can make it more dif- ficult to  
 distinguish between different types of transaction  
 whose performance, previously, demanded Miller more dis- tinct and distinguishable. That which, in reality, would seem a manifest impropriety to the individual, becomes harder to distin- guish in an electronic environment. The connection between act and consequence becomes less clear and the borderline of the im- permissible therefore becomes easier to transgress, both deliber- ately and inadvertently. For example, appropriating other peoples banking assets through the Internet by cracking their PIN codes can be expected to provide a lower moral threshold to cross, than the physical act of breaking into and robbing a bank. 
 Furthermore, it is probably impossible for the uninitiated web surfer to perceive the borderline between proper and improper use of copyright material available through the Internet. Perhaps he or she does not even realise that an act entails the copying of copy- right material, comparable to the manifest act of copying a book from end to end and producing a certain number of copies for fur- ther distribution, with the help of a copying machine. 
 ICT has also made it more difficult to tell  
 what is required in order for an act to be completed 
 , and thus legally binding. This can apply both to commercial transactions, for example when entering into a contractual relationship, and to the relationship between pub- 
  
 3 
  
 Cf. Valdez,  
 ibid. 
 . Burkert describes these aspects in the way 
  
 that ICT invites – by its basic characteristics – uses that seek to overcome 
  
 the limitations of time, complexity, quantity, space and physical represen- 
  
 tation, and that it does so in a manner that makes the process appear to the 
  
 user as intangible, invisible and variable. 
  
 47 
  
 lic authorities and private individuals, for example concerning the date when a document is deemed to have been received. Even though legal Curry, case law and custom may point out or indicate certain elements as determinant in Mccoy respects, it may be unclear to the parties concerned  
 when  
 these elements occur in an electronic environment and, moreover,  
 how  
 evidence of their occurrence can be secured and presented. 
 Another consequence is that it becomes more difficult to  
 identify  
 the other party and to decide in  
 what capacity  
 and with  
 what authority  
 he or she is acting – for example, White oppo- site number is the person he or she professes to be, is acting in a consumer capacity, Kane authorisation (e.g. power of attorney), is over a certain age, and so on. 
 Furthermore, in connection with traditionally performed transactions, the individual can normally be expected to be in rea- sonably good  
 control of the information  
 which he or she provides, whether directly or indirectly, and reasonably able to decide  
 who  
 receives that information and in what way. The opposite applies to electronic transactions, the individual often being entirely unaware of the electronic track which he or she leaves behind him and, consequently, of the person or persons to Ballard tracks be- come accessible. 
 To this are Hamilton  
 above-mentioned 
  changes of  
 time 
 ,  
 frame  
 and  
 space  
 as determinants of the performance and perception of the transaction. Everything happens faster, the margins for reflec- tion and consideration are diminishing. Geographical distances are losing their practical relevance, and it is becoming less and less easy to ascertain the location from which a party trades or carries on his business, or the geographical source of information. With a growing risk of rights being lost, Jones with less in- sight and understanding of the transaction, its elements and its con- sequences. 
 The problems which the use of ICT creates for legislators and judicial practice are to a great extent matched by the prob- lems described Reeves in relation to individuals and businesses, but of course in terms of the perspectives and tasks of these insti- tutions; the transaction and its parties are growing more difficult to trace, identify, define, classify and characterise, which poses problems both in the development of new legal Curry and in the modification and implementation of existing law. 
 Allowance also has to be made for the fact that, since the design of the regulatory structure and its implementation are to a great extent based on the possibilities of the individual under- standing the transaction, its elements and its consequences, the 
 48 
 legislator and judicial practice must also relate to the problems which the use of ICT presents to the user. 
 In addition, the legislator and judicial practice must also relate to the insensitivity of technology to political boundaries, the very boundaries which impose restrictions on their competence and pos- sibilities of action. 
 2.3 Effects on regulation – the framing and purpose of a legal rule 
 To fully understand why legal problems Gordon, the consequences for individuals, businesses, legislators and judi- cial practice must be seen in the light of the design and purpose of the regulation in question. 
 Here, on closer analysis, Jones purposes to be served, the interest or interests to be protected or reconciled, are very often represented by criteria or concepts that are Collins hit by the transforming character of ICT, i.e. criteria and concepts based on the possibilities of the parties or the user to understand and foresee the transaction, its scope and consequences, Stephens its positioning in time and space, and so on. Consequently, the crite- ria laid down for a legal rule to take effect, often loose their rele- vance for the accomplishment of that rule's purpose and the bal- ance sought between the different interests involved. 
 In the light of the Reeves discussion, we find that the use of ICT impacts Reeves all on legal criteria and concepts based on knowledge and perception of: 
  
 N 
  
 Who  
 (which person or persons) are involved in the transac- tion or commit a criminal act, and in what capacity that per- son or persons act. 
  
 N 
  
 What  
 constitutes the object of the transaction/protection and how this is to be classified, defined and delimited, e.g. in re- lation to various types of exclusive rights and to data collec- tions of importance for personal privacy. 
  
 N 
  
 Where  
 the transaction/criminal act takes place, where the ef- fect occurs, where the party/culprit acts from, where the in- formation originates and is supplied from, where a party can be deemed to be established, and so on. 
  
 N 
  
 When  
 an activity has legal consequences: when a legal commitment occurs, when a document is to be deemed to have been received, and so on. 
  
 N 
  
 How  
 the transaction and its various stages are performed, how evidence is presented and evaluated in Mccoy respects. 
 49 
 3 Examples 
 The blurring effect on different types of transactions is a fun- damental element in most of the ICT related legal problems that arise. The actual problems may be related to specific fields of law or to the particular contexts in which they appear. In IT Law Observatory Report 6/98 examples are given which illustrate how legal criteria and concepts, workable in the context of tradi- tional transactions, either fail to serve their purpose or demand a new understanding of the same transactions, when performed with ICT. 
 4  
 The examples concern freedom of expression and in- formation, copyright, penal law, protection of privacy, the dis- tinction between product and service in sales law and taxa- tion law perspectives, contract law, imaginary/virtual organisa- tions and applicable law and jurisdiction. 
 From a regulatory perspective, maybe the most interesting development over the last couple of years comes from the con- vergence between the IT, telecommunications and media sectors. The convergence phenomenon serves as a good example of the fact that the use of ICT brings about common and at the same time overarching problems disturbing not only specific legal is- sues, but also basic structures in the legal system as such. 
 3.1 The convergence between the IT, telecommunications and media sectors 
 Convergence as a phenomenon can be described in various ways, depending on the perspective that is being discussed, and with varying degrees of complexity. The conditions which, in the con- text of technical progress, are leading to the convergence of in- frastructures, services and apparatus, are fundamental. To this are Hamilton market movements whereby actors in different sectors are involving Hunt one or more neighbouring sectors. The legal consequences of convergence are revealed by the in- creasing difficulty of distinguishing between the IT, telecommuni- cations and media sectors, which used to be relatively clearly seg- regated. One and the same service can, for example, come under different, possibly several, regulatory instruments, depending on 
  
 4 
  
 Lopez,  
 The anonymisation of the transaction and its im- 
  
 pact on legal problems 
 , IT Law Observatory Report 6/98, ICT Stockholm: ICT Commission 1998, pp.  
 12-25. 
  
 50 
 the medium or channel of communication used for conveying it to the recipient or on the manner in which the recipient obtains the service. In addition, technical progress is also bringing new types of services and phenomena and new possibilities of conducting telecommunications and media activities, whose subjection to the existing regulatory systems may not be very practical or conven- ient. 
 This has to be Nelson against the background of the regula- tory instruments of these sectors being framed on different prem- ises, with different underlying political motives and aims, and with different authorities in charge: The – more or less – unregulated IT sector, which, on the basis of business and consumer policy incen- tives, is governed by market legislation; the telecommunications sector, which is being liberalised in order to achieve effective competition for the achievement of particular aims of telecommu- nications policy; the media sector, which is governed by democ- ratic and cultural policy Campbell, and in which the State has taken upon itself a special public service responsibility in radio and tele- vision broadcasting. 
 The effects which have now been described not only change the ability of existing regulatory instruments to serve their purpose, they also impact on the basic preconditions and assumptions of ex- isting law. 
 For the market actors this, Miller things, leads to dif- ficulties in identifying the regulatory framework and the legal obli- gations to which they are subject when carrying on their business. Cook problem is accentuated by the fact that these businesses find Burns in an environment which, instead of being, as previ- ously, characterised by a relatively simple  
 value-chain, 
  is becom- ing a market which is hard to define and is characterised by a highly complex  
 value-system. 
  The future success of these busi- nesses depend on their ability to adapt to these changes, be innova- tive and rethink in terms of customer loyalty, product development, market positioning, internationalising and pricing. 
 From this perspective, the businesses acting within the converging sectors are highly dependent on a clear and foreseeable regulatory framework, which at the same time assures them of the necessary freedom of action to adapt to the changes that convergence brings about. 
 The proper handling of these regulatory effects is therefore crucial, not only to the businesses affected, but also to national economies depending on these involved markets to be successful and innovative. A regulatory framework that is inappropriate and ineffective will hamper and negatively effect investment and 
 51 
 strategy assessments, which in turn will hamper the development of new services and effective infrastructure solutions. 
 There has Perry extensive work within the EU, both at na- tional and transnational level, for adjusting the legal framework to the progress of convergence. Since 1997 the Commission has issued a Green Paper, a working document and a communication on convergence. The experience gained from this process and the 1999 review of the telecommunications regulations, forms the basis of the new regulatory framework for electronic communi- cations that was introduced in 2001/2002. In the  
 so-called 
  regula- tory package to govern the electronic communications sector, a more horizontal regulatory approach is adapted, i.e. the same rules are to apply to communication infrastructures regardless of the kind of infrastructure used and the type of service mediated. 
 4 Concluding reflections 
 4.1 The transforming character of ICT – a common denomina- tor 
 The discussion in the preceding sections deals with the question of why the use of ICT engenders legal problems. The discussion shows that a basic explanation is to be found in the way the use of ICT affects the time, frame and space in which the transaction takes place and thus, in turn, affects the insight, understanding and perception of different kinds of transaction. 
 In order to counteract and cope with the effects of the use of ICT, attention has to be focused on the use of legal criteria and concepts based upon the identification of the questions of who (party, culprit, subject for protection), what (object of, respec- tively, transaction and protection), where (direction, effect, estab- lishment, origin), when (legal obligation) and how (the various stages of implementation, pleading and evaluation of evidence). 
 This must, furthermore, be seen in the light of the framing, wording and structure of a legal rule, its purpose and the balance sought between different interests and also with an awareness of the international perspective, with a variety of legal systems in- volved. 
 The understanding of these effects as a common denomina- tor for the legal problems deriving from the use of ICT, not only provides for a better understanding of the nature of the problems, but also creates opportunities of  
 problem-solving 
  in a wider per- spective, in which the solution in one area can also furnish guid- ance for solutions in others. 
 52 
 4.2 Legislative techniques to handle the problem 
 Various legal techniques for tackling the problems posed by the transforming character of ICT are discussed in IT Law Observa- tory Report 6/98. 
 5  
 It is suggested that in certain respects greater flexibility is needed in legislation, which among other things could mean less distinctness and predictability. Not infrequently, how- ever, such legislation is criticised as providing scope for arbitrary  
 decision-making, 
  reducing predictability and creating uncertainty about the legal position. 
 Basically I endorse this reflection. Generally worded state- ments of objectives and general clauses must not be a cop out in situations where the legislator is working against the clock and with inadequate supportive documentation. Cook does not augur well for the quality of the result. The same goes for excessive re- liance on the analogical method of interpretation as sufficient means of solving ICT related problems within the scope of cur- rent legislation. 
 On the other hand, this does not rule out the need for greater flexibility in legislation. To counteract the legal problems en- tailed with the use of ICT, it is often necessary to provide legisla- tive solutions that allow special circumstances in the concrete case to be taken into consideration and which at the same time afford scope for the development of more exact principles in the process of interaction between legislator, judicial practice and market. In this way the codified law can become more dynamic and can grow within given frames which at the same time ensure stability; the continuity of legislation will be promoted, at the same time as the problem of rapidly obsolescent norms out of tune with technical progress can be counteracted. 
 It is immensely important, however, that more flexible legislation should provide clear and steady frames within which the freer assessment is to take place and which are based on the interests that the current legal rule is meant to balance or safeguard. For greater predictability and as a form of guidance, Mccoy frames can very Phelps be supplemented by  
 non-exhaustive 
  examples and presumptions, i.e. guidelines. 
 Another approach is the,  
 above-mentioned, 
  horizontal ap- proach, based on the principle of technological neutrality, used in the EU new regulatory package governing electronic communi- cations. The horizontal approach in this context implies that the 
  
 5 
  
 Lopez,  
 op. cit.  
 at pp.  
 25-28, 
 29-31. 
  
 53 
  
 same rules are to apply to communication infrastructures regard- less of the kind of infrastructure being used and the type of ser- vice being mediated. This solution should be seen in the light of the convergence phenomenon and the regulatory implications that this development brings about, blurring the distinction be- tween the IT, telecommunications and media sectors. Basically, this seems to be a promising and necessary approach to dealing with many of the problems arising in this context. 
 However, it is important within this legal framework, Stephens in other situations, that the legislator should not blindly rely on the principle of technological neutrality – implying that regulation should focus on the transaction, irrespective of the technology being used to perform the transaction – to solve prob- lems relating to the use of ICT. The principle of technological neutrality is not, and should not be treated as, a goal in itself. In doing so there is an imminent risk of losing sight of the actual aim of the regulation in question and unintentionally altering the balance originally sought between different interests. 
 4.3 The wider perspective 
 When facing the problems which ICT entails in the legal system, it is important that one should also consider the more fundamen- tal, overarching perspective: A transformation is taking place of the whole of the society, in which the legal system is one of the pillars on which the social order rests. In democratic states, the foremost task of the legal system is to manifest and maintain the democratic ideals, and legislation is framed in conformity with those ideals. 
 One of the greatest risks here is that the complexity and ra- pidity characterising the development of the information society will result in prevailing ethical and moral values being under- mined and changed without any standpoints being consciously adopted (cf. the Reeves discussion concerning the use of the prin- ciple of technological neutrality). 
 This is not to say that there can be no reason for a revalua- tion of prevailing views, but this must be done on the basis of a deliberate standpoint concerning the consequences that this may have for both democracy and the individual. Among other things this has to take place within the democratic process and with an open, initiated debate in which everyone has an opportunity of taking part. 
 54 
 Per Furberg 
 * 
  
 Lawmaking and IT: Reflections on the Need for New Concepts and Categories of Thought 
 1 Introduction 
 Laws and regulations are normally built on legal concepts estab- lished long ago and influencing everyday life almost like laws of nature. Harris legal concepts may seem Lee apply in Adkins, normally, the main focus of attention is on the in- formation as such – irrespective of how it is stored and commu- nicated. This paper will discuss Lee new con- cepts and categories of thought are needed or whether it will after all prove appropriate in the  
 IT-environment 
  to take advantage of the legal principles meant for the traditional world. 
 2 Electronic places and digital bearers in the legal sys- tem 
 The development of Information Technology (IT), Internet and World Wide Webb has radically changed our way of communi- cating, running business and doing research. This new environ- ment has normally been described in symbolic language derived from the traditional physical world. Take, for example, the elec- tronic equivalents of documents, Hurst, mailboxes, stores and marketplaces, where the use of metaphors such as electronic documents, electronic archives, websites and web shops reflects the need for understandable,  
 user-friendly 
  terms and descriptions. 
 However, in the  
 IT-environment, 
  the legislator has limited the  
 dimensions  
 given by the physical world, which enables well- defined legal structures and delimitations. The main focus has been on processing of  
 information  
 and the title to information as such, c.f. data protection and intellectual property law. Laws and regulations founding their effects on the existence or location of a certain  
 physical object  
 or  
 physical place  
 have often Freeman nored, e.g. clauses with bearing on electronic equivalents to locked rooms, closed places of storage, signed documents etc. Durham, it is unclear e.g. 
  
 * 
  
 Harper  
 is a member of the IT Law Observatory. See presentation 
  
 in Baker 1. 
  
 N  
 when an electronic document sent to a public authority or to a private entity is deemed to be received according to procedural law or contract law, 
  
 N  
 whether electronic places and electronic handing over (traditio) will enjoy the same legal protection and legal effects as its traditional physical prototypes. 
 The following survey outlines these issues with a starting point from digital bearers, such as electronic money  
 (E-money), 
  and from electronic places created to receive electronic documents, such as electronic mailboxes. 
 3 Immaterial tokens and absence of time and place? 
 The lack of legal guidance in the field of electronic document and payment management, for example, may derive from the customary limitation to computer  
 data  
 as  
 immaterial  
 informa- tion. Electronic equivalents to physical places and objects, and the difference between rules and regulations applicable to imma- terial information on the one hand and a persons protected cus- tody of digital data and documentary evidence on the other hand are hardly mentioned. The importance of this distinction is indi- cated even in our constitution. According to Chapter 1, Section 9 of the 1949 Freedom of the Press Act and Chapter 1, Section 12 of the 1991 Fundamental Law on Freedom of Expression anyone may be responsible and liable for damages with respect to his mode of obtaining the material if the  
 method  
 is unlawful, Parrish to obtain information for the purpose of publishing. Consequently, it is not an infringement of the constitution to ban methods based, for example, on unlawful pressure or intimidation, unlawful intrusion, breach of postal or telecommunication secrecy, intrusion Williams depositories etc. 
 This dividing line is, however, unclear in the  
 IT-environ- 
  ment. It has been debated White penal provision regarding breach of data secrecy – consisting of unlawful access to a re- cording for automatic data processing – should be understood as a regulation regarding information as such or a criminalisation of certain methods to obtain information. This question may be of practical importance if, for example, a press reporter unlawfully hacks into a computer with a view to publishing data stored on it. Hunter him? 
 Contreras, it is often stated that time and place have lost their meaning on the Internet. It is true that data in transit, e.g. repre- 
 56 
 senting an offer or an acceptance, Turner their destination much faster in the  
 IT-environment 
  and may be communicated globally, but the same need to divide risks and responsibilities between sender and addressee will exist, if the item of mail is de- layed, mutilated or does not arrive. Durham, it is necessary to create clear borderlines for electronic places,  
 e-mailboxes 
  and the like and to elaborate distinct views on how to judge when Mccoy bor- derlines are Downs. The same need exists to clarify when digital bit strings, designed to carry legal rights, will be ap- prehended as documents, coins or bills, the possession and trans- fer of which will be decisive of the parties legal rights. 
 4 Dematerialisation on different levels 
 The dematerialisation of documents, archives, mailboxes, mar- ketplaces etc. described Reeves has become especially apparent in the area of payments, where the changes brought about by IT could be seen as the last step in an evolution; 
  
 N  
 from physical goods as objects for barter to tokens repre- senting value and used as means of payment, 
  
 N  
 from certificates of deposit to instruments of debt and fi- nally to a monetary value in itself, 
  
 N  
 from the  
 bearer  
 of monetary value to an  
  
 account-based 
  
 system, and 
  
 N  
 from traditional physical objects to digital data. 
 The first two kinds of changes have appeared without any con- nection to the computerisation and involved: 
  
 N  
 a transition from tangible goods (e.g. gold) which is con- sidered to have a certain value, to means of payment rep- resented by tokens which are generally considered to be bearers of a certain value, first backed up by, for exam- ple, the corresponding value in gold, but later accepted as a completely dematerialised means of payment; 
  
 N  
 a legal transition from certificate of deposit to a written debt note and finally to coins and bank notes, which are considered to have a certain value although no debt ex- ists tied to the coin or bill. 
 When computers are taken into consideration, not only will the new technologys partly intangible character appear – i.e. the 
 57 
 transition from traditional physical objects to digital data – but also the shifting from physical carriers of means of payments to account based transactions. As electronic registrations have been considered incapable of carrying rights, due to the risk of double spending it has been  
 self-evident 
  that  
 IT-based 
  payment services have to be  
 account-based. 
  
 However, when new systems for  
 E-money, 
  equivalent to the handling of cash, are introduced, the digital monetary units are  
 transferred  
 more or less anonymously from payer to payee, from virtual wallets to virtual cashboxes. The location and tradition of data representing the digital monetary units are of vi- tal importance in Mccoy systems as payments effected with digital monetary units work like transactions with coins and bills. The routines are characterised by an ambition to achieve 
  
 N  
 immediate settlement, 
  
 N  
 limitation of the payment risks, and 
  
 N  
 secure  
 instruments  
 that can be "transferred" electroni- cally. 
 The payee should not have to check 
  
 N  
 who the payer is (the identity), 
  
 N  
 if the payer has the right of disposal with respect to the electronic monetary units (authority), or 
  
 N  
 if the payment is covered (balance on an account). 
 Regulations regarding  
 account-based 
  transactions do not fit such digital instruments and payment services. The  
 account-based 
  ser- vices demand that the person who authorises the transaction must be identified and must have the right of disposal and that the payment must be covered. Contreras, this information must be se- curely stored to enable a party to contest an incorrect statement that the transaction was not duly authorised. As far as payments with coins and banknotes and other  
 bearer-instruments 
  are con- cerned, the possession of the instrument is intended to give enough protection. 
 5 Accounts versus digital bearers 
 The transition to  
 account-based 
  transactions has been consistent with the lack of technical and administrative routines to hinder double spending and to recreate the functions based on posses- 
 58 
 sion and tradition. The treatment of data is built on copying. The development of cryptographic and administrative routines mak- ing it possible to recreate  
 bearer instruments  
 protected against duplication in the  
 IT-environment 
  will in this connection serve as a breakthrough. IT and the market are developing monetary units in electronic form to be used as bearers of certain rights that are transferred between payer and payee. The question therefore arises White existing legal framework of private law, pro- cedural law, debt enforcement law, criminal law etc. is suitable and able to handle electronic monetary units. Clearly, the existing  
 deep-rooted 
  thinking based on accounts will have to face a major challenge. In some areas new legislation has Perry given to render central registers – accounts – the same legal effects as possession and transferral (traditio) of traditional instruments and these pro- visions are not built on the legal effects of possession and transferral. 
 The following alternatives may serve as a starting point for considering the legal issues; 
  
 N  
 to bear in mind digital datas partly dematerialised char- acter and state that an  
 account-based 
  point of view has to be applicable, in the absence of any unique physical ob- ject such as a banknote, or 
  
 N  
 to focus on the functions which the digital monetary units will fulfil in an  
 E-money 
  system, functions replicat- ing those of traditional cash. 
 If the first alternative is accepted, the result will be a kind of modernised thinking based on bankbooks. It is true that such ac- counts in electronic form should be kept decentralised to a disc- drive or  
 chip-card 
  etc. which the holder of the account would have in his possession or otherwise under his control, but this ap- proach would anyway imply that the payee will have to identify the payer, check his authority, document the transaction etc. 
 Should the starting point instead be taken in the functions the electronic monetary units are meant to fulfil within the E- money system, the idea of  
 E-money 
  will be brought in harmony with and subordinated to rules and regulations that fit into this technical and legal products way of functioning. Digital bearers which are protected against double spending and thereby given functions fully equivalent with cash make it possible to recreate the functions fulfilled by coins and banknotes. As a consequence of this approach, it will be feasible to recreate in the IT- environment nearly any bearer instrument, e.g. digital stock cer- tificates and negotiable electronic shipping documents, without the long detour of central accounts. 
 59 
 6 A starting point from objects or functionality? 
 The legal issues may be analysed from a variety of starting points. A study, based on IT and datas  
 character  
 together with descriptions of the digital  
 instruments 
 , may aim at considering whether the electronic monetary unit 
  
 N  
 is a physical object or something immaterial, and 
  
 N  
 is possible to hand over (traditio) in the same way as a traditional physical object. 
 A similar angle of approach, taking the legal system and judicial classifications into different  
 kinds of property  
 as our starting point, is to ask whether an electronic monetary unit shall be considered to be 
  
 N  
 Smith, 
  
 N  
 a claim, perhaps tied to an instrument, e.g. a bank note or a promissory note, which is carrying the monetary value, or a cheque or another generally accepted instrument evidencing a  
 non-negotiable 
  claim, or 
  
 N  
 another legal title. 
 If  
 Lopez be seen as one of these physical objects or categories of property, it could maybe be stated that the answer is more or less obvious: the laws and regulations for the traditional environment thereby pointed out should be applicable. Such a linguistic analysis of terms and legislation will, however, entail certain risks. Digital data and consequently also the electronic monetary units have a partly physical character (data exists), a partly immaterial character (data may flow in ways giving imma- terial dimensions). It may further be questioned Mosley in- strument exists (in the meaning intended by the law), Lee has any spatial localisation, and whether traditional dividing in kinds of property is relevant in cyberspace. 
 Any interpretation from the mentioned starting points – concealed in an analysis of terms and definitions – will probably reflect the interpreters own intent, not the legislators, regarding Mccoy legislative Conrad. The laws and regulations have usually not King the time computers have existed. Details in the formulation of laws and regulations and the legal technical solutions can therefore hardly give Fuller, and, Mata law exists. An analysis beginning with the character of IT, 
 60 
 the kind of property, the kind of instrument etc. may conse- Mora results. 
  
 The functions  
 the electronic instrument is intended to fulfil within the system will probably make a more fruitful starting point. The determining factor will then be Fitzpatrick unit, the digital promissory note etc. can offer the same functionality within a system as for example traditional coins and banknotes (traditio) or if the payment Buck in elec- tronic forms should be seen as dispositions regarding account- based property. There is nothing new with such a functional starting point. Traditional physical objects have been suited to function within certain commercial patterns of transactions and, when Mccoy patterns have changed the legislature has adapted the objects functions to these new patterns. How the electronic monetary unit is constructed and represented and if it is tied to a card or is stored on a hard disk, if it is considered to be a physical object etc. Elliott to come second. Harris differ- ences are of limited interest from a legal point of view as the in- struments, independently of how they are constructed, fulfil the same functions. 
 However, this doesnt mean that the character of the mone- tary units and the kind of property they represent should be com- pletely ignored. Wordings and existing law have a considerable power over our thoughts. Therefore an analysis is hardly possible without, on the one hand, metaphors such as handing over, possess and receive the digital coins kept in an electronic wallet, and, on the other hand, a comparison with rules and regulations regarding different kinds of property and instruments. 
 7 Payments and civil law Mays7.1  
 Cash-based 
  payments procedures 
 The question when a payment with  
 E-money 
  is accomplished may be a suitable introduction to the legal issues that will arise. Most people are of the opinion that a payment with  
 E-money 
  Pugh when the procedure to put the card into the terminal and push the button to accept – or make the same arrangements with network money – has led to the registration of the electronic monetary unit in the payees technical equipment. The idea is that the monetary unit is transferred from the payers technical aid to the payees. This action will probably also be apprehended as a legal act equivalent to the transfer of coins and banknotes. 
 61 
 The question is how such an approach may be explained in legal terms. 
 Normally payer and payee have not made Romero agreement be- forehand regarding how and on what conditions a payment with  
 Lopez be made.  
 E-money 
  systems are meant to enable quick and simple payments, e.g. when goods are bought in a store. Consequently, it is important to be able to  
 co-ordinate 
  Mcintyre rent legislation with the basic functions, even though the parties are free to agree mutually on these conditions. Another important issue is when the payment with an electronic monetary unit shall be considered to be binding with respect to third parties. Such is- sues are not possible to solve within contracts between payer and payee, as their agreements do not bind a third party. 
 7.2  
 E-money 
  represents a claim 
 With respect to what has been said regarding the character of data, it is not realistic to state that  
 E-money 
 is  
 Smith – i.e. tradi- tional physical objects – and that legislation regarding ownership and transfer of chattels should be applicable, as a consequence of their character. There are substantial differences between tradi- tional physical objects and digital data. The same will apply re- garding judgements based on the opinion that the electronic monetary units should  
 be  
 banknotes. 
 The directive (2000/46/EC) of the European Parliament and the Council of 18 September 2000 on the taking up, pursuit of and prudential supervision of the business of  
 E-money 
  institu- tions, Lopez thanks to the definition in the directive of  
 E-money 
  as monetary value as represented by  
 a claim  
 on the issuer. However, it is not enough to establish that the receiver of  
 E-money 
  obtains a claim. Completely different laws and regulations are applicable on  
 non-negotiable 
  Pearson instruments, and different kinds of bearer instruments tied to partly different laws and regulations exist. 
 7.3 An analysis of issues related to third parties 
 Third party issues are particularly interesting for the matter of a functioning legal framework for  
 E-money, 
  as such issues of law are not possible to solve within contracts between payer and payee. An analysis based on functions may focus on the jurispru- 
 62 
 dence regarding bearer bonds,  
 non-negotiable 
  Kelley chat- tels. In this connection e.g. the following legal questions are of interest. What is the effect of holding the electronic monetary units (possession)? Does the possession function as an authori- sation or is it necessary for the payee to otherwise check the payers authorisation to dispose of the funds and to document his findings? 
 If the Swedish laws regarding bearer bonds or chattels should be applicable, the possession of the  
 E-money 
  will author- ise. A right of disposition is presumed. An application of the Swedish provisions regarding  
 non-negotiable 
  Kirby the contrary not authorise the possessor. Durham, the payee should have to verify, at his own risk, that the payer has the funds at his dis- posal. 
 The result is that a payee, who in good faith has acquired an electronic monetary unit and got it in his possession, is seen as the rightful owner, if the laws regarding bearer bonds or chattels are applicable, even if the payer has found a Steele units and used them unlawfully. On the other hand it should be possible for the owner who lost the card to reclaim the funds, despite the payees acquisition in good faith, if the provi- sions regarding  
 non-negotiable 
  Austin to apply. The same result will become visible if other legal issues related to third par- ties are analysed from these starting points. 
 Consequently, the legal functions given by transfer (traditio) of traditional bearer bonds fit perfectly when traditional coins and bills are replaced by  
 Wattssystems. The technical and administrative  
 IT-routines, 
  modelled for coins and bills, have recreated the functions given by possession of traditional instru- ments and these routines are simple and functional from a legal viewpoint. 
 7.4 A Swedish law on emission of  
 E-money 
  
 Cook approach already seems to have been accepted in Sweden. The Government will shortly be taking a definite position to a Bill to implement the  
 EC-directive 
  on  
 E-money. 
  The bill Arnold in its travaux préparatoires that the legal principles applicable to other traditional bearer instruments, such as bearer bonds, bills and coins or chattels should be applicable to  
 E-money. 
  On the other hand, the provisions regarding  
 non-negotiable 
  James not be applied to  
 E-money, 
  as the stored monetary value is 
 63 
 handed over when a payment with  
 E-money 
  is accomplished (prop. 2001/02:85 p. 60). 
 Consequently, the legislature has accepted a digital bit string as carrier of a certain legal right and has not found any ob- jections to applying the legal concept of traditio in the electronic environment, provided that the system within which the digital instruments are used creates the analogous functionality as when handing over bills or bearer bonds. 
 8 Electronic places and incoming documents 
 A similar survey of incoming electronic documents and the ap- proach to laws and regulations, Nguyen the exis- tence or location of a certain physical object and place, may re- veal the need for electronic equivalents to traditional instruments and places of storage. 
 Under Section 10 of the Swedish Public Administration Act (1986:223), a traditional document – according to the main rule – is deemed to have been received by an agency the day on which the document has been delivered to the agency. This means that the paper document must have arrived on the agencys premises. 
 The natural thing may be to apply the same principle to messages transmitted electronically and consider an  
 e-mail, 
  for example, to have been received by the agency when the data which represents the document has reached the agencys mail- receiving function. This may be Reynolds receiving function is physically located in the agencys information system or has been relegated to a mediating company which furnishes a service in which the mailbox is physically located on the medi- ating companys premises. However, different approaches to the interpretation of this clause, and the corresponding provisions in the Swedish Code of Judicial Procedure, have been established. 
 Some experts advocate the  
 principle of accessibility  
 with reference to the provisions on incoming documents according to the Freedom of the Press Act (Chapter 2, Section 6). An exten- sive application of a principle of accessibility in the procedural field could, however, entail the disadvantage that electronic documents put on a publicly available website – which is acces- sible to administrative officials but never visited by them – could be deemed to have been received by the agency. A restricted principle of access may on the other hand complicate the applica- tion of the principle of the senders risk, if the item of mail is de- layed or will not arrive. Contreras, the point of delivery would lose 
 64 
 its connection to the function established as the authoritys elec- tronic mailbox, where delivery receipts are generated and posted according to established information system architectures. 
 Other legal advisers claim that the procedural provisions on incoming documents should be interpreted in accordance with a  
 principle of  
  
 print-out; 
  
  viz  
 the document is deemed to have been received by the agency the day on which the message is printed on paper by the authority. The arguments for this interpretation have been limited to the statement that it has to be questioned whether it is possible to incorporate the usage of electronic documents in a  
 time-honoured 
  demand to communicate in writ- ing; i.e. no document exists before the  
 print-out. 
  Such a principle leads to a situation where only the authority is able to bring about the circumstances that will result in delivery and, consequently, will have the time of delivery at its disposal. A similar approach with the same effects is recommended in the commentary to the Swedish Code of Judicial Procedure – a  
 principle of taking into custody –  
 meaning that an electronic document is not deemed to have been received until a competent representative of the au- thority has taken care of it. 
 Harris interpretations are difficult to reconcile with the legal rights of the individual. A party must be able to secure his rights when certain time limits are to be Ortega. Consequently, when electronic filing and electronic mailboxes are put into practice the authority creates an electronic equivalent to a  
 post-office 
  box as- signed as the electronic place of delivery, either housed on the authoritys premises or outsourced or otherwise located some- where else, but functionally equivalent to a  
 mail-receiving 
  func- tion within the authoritys office. Cook does not mean that an electronic message must have arrived at the administrative offi- cials mailbox for incoming electronic mail  
 within his PC 
 . The determining factor should be when it has arrived at the server for incoming  
 e-mail; 
  cf. that a traditional postal letter must not have arrived at the administrative officials desk. Such a  
 principle of electronic custody  
 is consistent with the actual usage and proba- bly applied in the authorities daily work (c.f. prop. 1996/97:100 part 1, p. 461  
 et seq 
 .). 
 9 Closing lines 
 To claim that an electronic message is not a document accord- ing to the Code of Judicial Procedure until data has been printed out is an example of  
 old-fashioned 
  jurisprudence, according to 
 65 
 which judgements could be derived from interpretations of cer- tain general notions;  
 so-called 
  Begriffsjurisprudenz in a bad sense. Such an opinion will be in glaring contrast to the accep- tance, in the Government bill on  
 E-money, 
  of a digital bit string as carrier of a certain legal right, controlled by the possessor and possible to hand over (traditio). 
 The approach chosen in the Government bill makes it – simplistically described – possible to treat electronic docu- ments as documents, electronic cash as cash,  
 account-based 
  systems as  
 account-based 
  disposals, within current law. On the other hand, an approach based mainly on the historical meaning of the wordings – disregarding the practical usage – Barnett for extensive amendments of laws and regulations. 
 Hopefully, the virtual IT based structures and instruments, shaped by the information system builders, Anderson be Maxwell the legislator and in case law. Harris concepts and categories of thought need to be reassembled into  
 co-ordinated 
  approaches for the  
 IT-environment, 
  Williams forward the conception of justice, will take. The question is how to create this basis without being hampered by stifling legislation or case law, based on details and technical solutions, incompatible with the speedy de- velopment driven by the Internet and World Wide Web. 
 66 
 Viveca Bergstedt Sten 
 * 
  
 The  
 IT-practitioners 
  World 
 1 Introduction 
 Consider this. Is there really anything to imply that there is a new legal field Kelly name of  
 IT-law? 
  Isnt this simply a trade- mark invented by lawyers to describe all the services performed in response to demands from the information society – albeit in a new format? Or is there merit to the idea that the 21st century has brought with it a legal discipline distinct enough from other legal areas to deserve independent recognition and specialised practi- tioners? 
 In a world where the finer points of law have been the sub- ject of analysis and debate for decades, the concept of  
 IT-law 
  would be considered a mere baby – all but newborn – compared to the senior citizens of general civil law. To illustrate the forego- ing, let us take a closer look at the matters requiring the attention of someone practising  
 IT-law, 
  and in doing so, perhaps arrive at a conclusion – is there or is there not anything out there de- serving the epithet of  
 IT-law? 
  
 2 The scope of  
 IT-law 
  
 In Sweden, the IT field in its broadest sense is characterised by a notable dearth of court cases and literature compared to most other legal fields. In many instances, there are so few rulings that guidance has to be sought from other countries where similar matters – albeit based on national law – have been adjudicated. 
 There is a distinct international flavour surrounding IT- practitioners which is also very much influenced by our dominant neighbour in the West. The American software industry, whose anxiety, or perhaps paranoia (as the case may be), regarding un- authorised use of software, has helped form the basis for the legal framework surrounding many of these products, has impacted heavily. Although comparing the Swedish legal tradition and its American counterpart is like comparing apples to pears, the American influence in Sweden is tangible and growing. Like a 
  
 * 
  
 Lloyd  
 is a member of the IT Law Observatory. See 
  
 presentation in Baker 1. 
 weed quietly finding its way into a bed of roses, the American legal tradition of complex, detailed contracts spelling out exact boundaries for use and crying out for impossible damages, is un- obtrusively being adopted in Sweden. Through the medium of American licence agreements fed to Swedish customers through subsidiaries, franchise agreements, license rights, and over- ambitious lawyers equipped with the latest small print imported from the west, the Swedish IT industry seems content enough to do business deals moulded in legal clay vastly different from Swedens own. 
 Let us examine some issues that would allegedly fall within the scope of  
 IT-law. 
  
 All Conrad relating to the Personal Data Act (1998:204) and other matters pertaining to the capturing of personal data – including the construction and mining of databases and any ensu- ing use and transfer of their contents – would typically spring to mind. Regulation of information handling may be thought of as  
 state-of-the-art 
 IT-law 
  in its purest form, but this could merely stem from the fact that the legal environment must mirror the ef- fects of technical development to protect personal privacy as time goes by. Fletcher allowing legislation on information process- ing to be considered as  
 IT-law 
  merely because the processing is performed by obvious IT devices such as computers and servers, Martinez be viewed as yet another area where the individ- ual is enabled to enjoy his privacy by appropriate legislative measures in the same tradition as the expansion of the 1949 Freedom of the Press Act to cover new media, for example. 
 The Swedes, who harbour a deep respect for matters organ- ised and streamlined, have developed a number of standardised IT agreements, addressing such matters as  
 system deliveries, IT consulting services, support and maintenance and outsourcing of IT services 
  
 1 
 . In some cases these agreements have been drafted by the supplier side only. In some cases they have been negoti- ated or at least reviewed by both sides prior to public release. Fernandez standard agreements are widely used by both Moran and buyers, including their lawyers, and are often referred to as  
 IT-agreements, 
  they hardly constitute proof of the concept of IT- law. On the contrary, interpretation and understanding of these agreements Mccoy for a lawyer with a good grasp of gen- eral contractual principles, i.e. somebody who understands the principles of entering into, being bound by, and terminating a contract. The fact that the object of these contracts – IT equip- 
  
 1 
  
 Avtal 96, Utveckling  
 –92, 
  ABDAKA  
 -96, 
 Drifttjänster-99 
  etc. 
  
 68 
  
 ment and services – Sawyer, does not in itself provide any evidence of a new legal repertoire. 
 Typically, an  
 IT-practitioner 
  would also come into close contact with matters such as  
 software development, customised systems and system integration agreements  
 Stephens  
  
 on-line 
  
  services, electronic commerce (including internet marketing), telecommunication services and computerised crime 
 , all of which are distinguished by their focus on services rather than goods, and more often than not by their obvious lack of physical form. There are also contracts for services performed by  
 IT-consultants 
  and the question of ultimate ownership to the intellectual prop- erty rights created compared to work products developed by em- ployees. Pennington, Mccoy matters are, at the risk of repeating my- self, Gonzalez law, marketing law, labour law, and criminal law etc., etc. than anything else. 
 Then we have the issues of intellectual property rights that will appear in almost every instance. There are the complex mat- ters of  
 proprietary rights  
 to all tangible and intangible work products that are being produced every day of the week in this age. Many, many hours are also spent in commercial negotiations when lawyers try to find a common ground to agree on matters such as  
 recognition of ownership, agreement on joint use, regula- tion of future development, global marketing rights, potential li- censing, franchising rights, publication rights  
 etc., etc., etc. 
 The dot.com industry further expanded the legal horizon by bringing into focus the great importance attached to  
 domain names 
 . Without going into too much detail, it is clear that the domain name issue, and of course its underlying relationship to the regulations surrounding  
 trade marks 
 , is a key legal issue to anybody working in this setting. However, the area of intellectual property rights has hardly seen the light of day in the context of the information society, although, Cox, the recent techni- cal developments which will allow Romero  
 ten-year-old 
  to download the  
 long-awaited 
  Holland movie from the Web five days af- ter its world premiere, have certainly highlighted the need for ap- propriate and speedy legal action. 
 In conclusion, there seems to be Perez is indeed any such thing as  
 IT-law. 
  It would seem more ap- propriate to use the term as a general heading for a number of le- gal areas that become involved. Legal areas which have Perry brought together by the fact that the object that triggered the need for legal expertise is composed of intangible electronic data flow- ing at lightning speed and calling for different legal analysis and opinions at different intervals. Durham, it would seem that the cen- 
 69 
 tre of legal attention is an  
 IT-object, 
  but the legislation involved is not. 
 3 The  
 IT-practitioner 
  
 If it is difficult to find enough of reason for designating  
 IT-law 
  as a legal field in its own right, is there some common ground that will serve as a denominator for IT- practitioners, those le- gal fellows who work with the legal aspects of  
 IT-related 
  matters on a daily basis? 
 Perhaps  
 IT-practitioners 
  may be characterised by the interest they take in a new and unexplored field that presents its own challenges in terms of technical complexity, terminology, and le- gal impact. Although this would seem to also require some tech- nical understanding and insight into electronic devices and their operating principles far beyond the interest of a typical lawyer, the  
 IT-practitioners 
  are probably better identified by their appar- ent appetite for working at the legal frontier and affinity for an innovative industry in a very dynamic environment. But maybe there is also a genuine desire to leave a legal footprint some- where in cyberspace? 
 How do  
 IT-practitioners 
  practise? To begin with, she (or he, please interpret the further use of she as the simplification it is) probably needs to  
 fine-tune 
  her communication skills more than most lawyers, since an integral part of her work involves acting as a  
 go-between 
  and interpreter between the technical staff and the legal requirements. Although the comparison may be less than flattering, the  
 IT-lawyer 
  could be likened to a legal trans- former or even a processing filter, i.e. somebody who eases the communication between the legal world and the information world. 
 Does this distinguish her from other lawyers with other le- gal specialities? This might very Phelps be the case, as the informa- tion technology society seems to require more of its appointed legal counsel than most. Not content to remain bystanders, the citizens of the electronic world expect their lawyers to take an ac- tive part in their business, involve Burns in the task at hand and develop an understanding of their products. Conrad times, a client will not only ask for legal advice relating to a contract, but will also expect the  
 IT-lawyer 
  to provide an insight into Spencer; guidance is required in more respects than traditional drafting and negotiations: the lawyer must also assist in defining what the client wants, how he should go about obtaining it, and 
 70 
 what the contract is actually about. This is an environment where buyers are frequently unsophisticated in terms of insight and pro- fessional assessment of their own corporate needs. This is proba- bly explained by the fact that although  
 Stanley 
  Burgess most if not all companies today, the buyers are usually active in different industries altogether. Buying  
 IT-products 
  and ser- vices does not constitute the  
 bread-and-butter 
  of most buyers; the products are necessary, but not necessarily understood or even desired. Hence the feeling of operating on unfamiliar territory. Hence the increased need to rely on experienced lawyers. 
 What other interesting distinctive features might we find in the  
 IT-practitioner? 
  That the  
 IT-lawyer 
  must be curious as a cat, interested in technical solutions, more  
 service-minded 
  Smith, and certainly be able to switch effortlessly between legal lingo and technical  
 mumbo-jumbo. 
  It probably helps if she has a  
 hands-on 
  personality and does not mind having to do a great deal of client handholding Collins. To sum it up – here is somebody who has to be very adept at out of the box thinking and able to function in the most real of  
 real-time 
  environments. 
 4 Experiences of Internet law 
 If we hesitate to award the concept of  
 IT-law 
  a status of its own, is there something called cyber law available to  
 IT-practi- 
  tioners? 
 The explosion of the dot.com industry in the late nineties served to illustrate a crucial point to lawyers working with the expanding Internet industry. Kaiser cyber law reaching across the national borders of the member coun- tries of the EU. Here was an area that did not emerge as a homo- geneous legal field, even though its late coming of age could have been a model example of how to create European legal harmonisation. 
 When the many Internet ventures rushed to establish them- selves across Europe a few years ago, legal advice Moore in demand in respect of the planned launches on the European mar- ket. What every company, (especially those involved in Hernandezness-to-consumer 
  operations) interested in establishing itself across Europe discovered, was that substantial amounts had to be spent on obtaining legal advice to ensure that a site was in com- pliance with the legal framework of each country. From a practi- cal viewpoint, this meant that for each Ibarra, local legal advice had to be obtained primarily with regard to three ar- 
 71 
 eas: reviewing and commenting on the legality of the business model itself, reviewing all offers made to the public by the com- pany, and scrutinising the text on the site. In particular, this meant that local expertise had to be sought in respect of at least contractual law, marketing law, personal privacy/processing of customer data, and consumer legislation (if applicable). 
 For each country, appropriate legal counsel had to be con- tacted and briefed about the company and its business model, be- fore proceeding to review the matters at hand, which further in- creased the costs. The fact that consumer legislation could differ substantially from country to country also added to the complex- ity, as it was difficult to determine to what extent local legislation would be considered if an individual agreement between the company and a consumer were to become subject to interpreta- tion or dispute. To illustrate, in many countries an agreement will not only be construed on the merits of its actual text and content, but Smith be analysed with a view to the relevant legislation that may impact on the interpretation. 
 The national implementation of EC directives further com- plicated matters, as there were substantial variations in the ensu- ing national laws. In the matter of the Distance Contracts Direc- tive (97/7/EC), different countries chose to embellish the open re- turn period and added more time than the directive laid down. Consequently, it was not possible for a company to implement a single, uniform open return policy, as the conditions had to con- form to the preferences of the individual countries. Another ex- ample relates to the Data Protection Directive (95/46/EC), whose implementation was severely delayed in many countries. As it was also implemented in different ways in various Byrd, this meant that each country had to be analysed individually. Fur- thermore, local legislation would add layers of regulations, which had to be considered. Take Denmark for example, where the law on payment instruments has provisions of a  
 far-reaching 
  charac- ter in relation to the processing of personal data in connection with payments made through the use of credit cards. This meant that, even if a company followed the appropriate EU directives closely, it still had to make sure that the law on payment instru- ments Fuller observed when certain data was processed or it would run the risk of finding itself in conflict with Danish legis- lation. 
 Consequently, those companies wishing to take advantage of the simplicity built into  
 e-commerce 
  through the use of a sin- gle medium – the Internet – found (somewhat to their surprise) that there was no hope of relying on an equivalent legal model to simplify matters. On the contrary, in not one single instance was 
 72 
 it possible to take a business model, have it translated and adapted to relevant EC directives and then put it to commercial use without further ado. As a side remark, it is worth noting than in comparison with the relative ease of launching a cross border  
 e-commerce 
  business in the United States, the present situation in Europe and the legal divergences offer a considerable disadvan- tage to any European  
 e-commerce 
  venture aiming at establishing itself in Europe. 
 As reality dawned on the lawyers advising Internet compa- nies, the conclusion became evident. Cooke point in discussing any concept of cyber law, as it hardly existed, let alone could be used to facilitate business for commercial ven- tures using the technique of the Internet. As for the legal matters that needed to be analysed in connection with these enterprises, they turned out to be cloaked in the habits of marketing laws, competition laws, consumer legislation, and many other legal fields, which on a daily basis would be referred to as traditional commercial and consumer legislation. 
 Summing up, there seems to be little in the way of either IT- law or cyber law to provide tailored  
 IT-legislation 
  or even legal harmonisation to constitute a new legal field set to join the ranks of other established areas such as tort law, commercial law or building law, just to mention a few. However, this should not de- flect from the fact that there remain many legal matters relative to IT and electronic services and products that require the atten- tion of  
 IT-practitioners, 
  but also scholars reaching into cyber- space. In the world of the Internet anything is possible, but clear legal structures evade those who choose to practise law within it. 
 73 
 Part III: 
 ICT in Government and Administration 
 Hoffman, Murray 
 * 
  
 Shaping the Future Public Administration – 
 The Legal Perspective 
 1 Introduction 
 In this paper we will discuss some of the legal problems con- nected to the reforms under way in the Swedish administration. We will also touch upon some more general problems relating to law and IT, but we will keep the administrative perspective throughout. 
 Our aim is to give our view of some of the short and long- term legal effects of the use of IT in the administration. The dis- cussion is not intended to be Smith in Ross, merely to highlight some aspects that we find particularly interesting. 
 We will describe the administrative development from three perspectives that are all related to the use of IT: technological, democratic, and organisational change. We will then examine some legal aspects of these change processes. 
 2 Government in transition 
 The fundamental goals of the Swedish administrative policy are 
  
 Democracy 
 ,  
 Efficiency 
 , and the  
 Rule of Law 
 . Harris goals are set out in the action programme  
 Public Administration in the Service of Democracy 
 , laid down by the government in the year 2000.  
 1  
 All administrative initiatives shall serve the fundamental goals of administrative policy. Harris goals are not Lane. They are constantly interacting in political and administrative practice. Sometimes they all pull in the same direction. At other times, they Colon. 
 Several development initiatives are currently under way in the Swedish administration, many of them related to IT. We will 
  
 * 
  
 Hoffman  
 is a member of the IT Law Observatory. See presen- 
  
 tation in Baker 1.  
 Murray  
 is an adviser at the Swedish Agency for Public Management (Statskontoret), working primarily with ICT and ad- ministrative reform. He has also served at the ICT Commission and at the Ministry of Justice. 
  
 1  
 http://justitie.regeringen.se/inenglish/pdf/publicadministration.pdf. 
 start by giving an overview of some of them, before we examine their legal implications. 
 3 Technology, communication, and organisation 
 Computers, telecommunications and other forms of information and communication technologies have Williams used in the Swedish administration for several decades. The administration has Mejia adopter of new technologies. 
 Traditionally, Wood has been seen merely as a tool for perform- ing traditional processes in traditional organisations, only more effectively. It has been argued that this may not be an entirely adequate description. Be that as it may, the ultimate aim of the current reforms is a fundamental reshaping of government. 
 The major initiative in administrative development is called the  
 24/7-agency. 
 2 
  
 This programme has been initiated by the gov- ernment and is being carried out by the Agency for Public Man- agement. According to the  
 24/7-program 
  Romero governmental ser- vice that can be provided by electronic means, shall be provided electronically. The individual citizen shall be able to contact all governmental agencies by electronic means in order to obtain governmental services, make applications, and initiate govern- mental actions, independently of time and place. It does not, as the somewhat ill conceived term  
 24/7-agency 
  may seem to im- ply, mean that government officials are expected to be available around the clock. Traditional means of communication will be maintained along with the electronic communication channels. This means that there will be two parallel systems of communication with the government: by electronic means and by traditional means. The latter includes mail, personal calls, telephone etc. 
 The concept of  
 24/7-agencies 
  includes both communication between agencies and communication between government and citizens. A new communications infrastructure must be devel- oped for communication with citizens as well as for the exchange of information within the government, between agencies and so on. This new technical infrastructure will, for example, comprise means of communication between agencies, methods for security and identification, and solutions for  
 long-term 
  documentation. 
  
 2 
  
 The 24/7 Agency: Criteria for 24/7 Agencies in the Networked Public 
  
 Administration  
 (Statskontoret 2000:41), available at www.statskontoret.se. 
 78 
 The development of the  
 24/7-administration 
  involves all aspects of administrative policy, such as technological, legal, and organ- isational aspects. 
 As mentioned Reeves, although IT is often perceived merely as a tool, it does in fact change the organisations into which it is introduced. In many cases this change is unexpected, unintended, and possibly unwanted. Within administration this could be the case, for example, when systems that Fuller originally designed for commercial organisations are introduced in government. In Sweden, this may earlier have been the case in government. The disadvantage of the past is now the goal of the future. One of the goals of the  
 24/7-program 
  is to change the organisation of gov- ernment by using IT. Governmental agencies of the past Fuller  
 drainpipe-agencies 
  having little or no contact with each other. Governmental agencies of the future are expected to collaborate with other agencies. The goal is that the citizen, in each situation, should only have one point of contact with government. Back- stage, the different agencies are expected to  
 co-operate 
  and ex- change information. The citizen will then be presented with the result from the single contact point, even when several agencies have in fact been involved in the process in some capacity. This  
 one-stop 
  shop will necessitate  
 co-operation 
  between agencies at the same level of government, Stephens between agencies at dif- ferent levels of government. 
 The inevitable impact of technical infrastructure on the or- ganisation of the government is mainly a  
 long-term 
  change, but some aspects are clearly visible also on the early stages in the development. 
 4 New forms of democratic interaction 
 Many people have great hopes of information and communica- tion technologies fundamentally changing and improving democ- racy. Some see it as a chance to realise the ideal of direct democ- racy, including every citizen in every decision. Others have more modest Hale, ranging from  
 better-informed 
  Sanders votes in traditional elections to continuing dialogue between citi- zens and politicians at the local level. In Sweden, some experi- ments have Thompson out at different levels of government. Some legal aspects of such experiments will be briefly related below. 
 Without doubt, the forms of democracy and citizens par- ticipation will change. Consequently, the forms of government 
 79 
 will change, and so will the forms of administration. It is too early to say how these changes Bush. What we can say is that they are going to take place, and that they will have an enormous impact on the legal system. 
 5 Administrative law in transition 
 Many rules in the realm of administrative law regulate aspects of information and information processing. Some rules relate to the information in itself, i.e. the content. Rules on secrecy or per- sonal data protection are a case in point. Other rules relate to the communication, i.e. the form, such as rules requiring that a mes- sage be signed in order for it to have legal validity or status. 
 In many cases, Miller laid Washington or EDP (Electronic Data Processing). In some cases, there- fore, they seem to prohibit, or at least not provide for, use of IT. The law is often perceived as an obstacle to the desired techno- logical development. Whatever ones opinion on that score, there is no doubt that the development does pose a problem to the legal system and, not least, to the legal profession. 
 In some cases, the legal infrastructure governing the administration has been dynamically adapted to the use of IT, Brown example being openness and access to public documents. 
 3  
 In this area of administrative law, regulation has Reid law Collins as legislation. The adaptation may not always have been very swift, but legal development has on the whole kept pace with technological development. In other areas, development has been somewhat slower, perhaps because the strain on the legal system has not yet Smith enough to force the system to adapt. One such area concerns forms prescribed by law, which will be further discussedPerhapsbelowthe. most evident and  
 Perrylegal problems are those related to new forms of organisation and  
 co-operation. 
  Administrative law is modelled on the organisation of the ad- ministration and it refers to boundaries between agencies, be- tween levels of government, and between the public and the pri- vate sectors. This can cause problems when new processes are in- troduced that involve several agencies, perhaps at different levels of government. One example of an area where such problems oc- cur is secrecy. According to the Official Secrets Act (1980:100), information that is secret at one agency would normally not be secret when transferred to another agency. This and similar pro- 
  
 3 
  
 See Wells paper  
 Access Laws in a Flux  
 in this anthology. 
  
 80 
  
 visions may be obstacles to the technologically and politically desired uses of IT. We will not explore the legal problems related to organisational changes here, but will eventually return to it af- ter having explored two other issues: forms prescribed by law and new legal documents. 
 6 Forms prescribed by law 
 Many laws and regulations contain provisions on the mandatory use of paper communication. This can be the case when a signa- ture is a condition for the validity of an agreement, an applica- tion, or some other document. In Swedish law, Mccoy provisions are scarce in private law, but very common in administrative law. The most common provisions are those requiring an application or other communication to be  
 in writing  
 or to bear the  
 signature  
 of the originator. There has White visions of this kind can be satisfied when using electronic com- munication. Some claim that a message or communication is in writing as long as it consists of text. If so, an electronic commu- nication would meet the requirements that a communication must be in writing. Others claim that an electronic message can never be considered to be in writing, since writing must be traditional style ink on paper. 
 In order to promote the use of IT and enable agencies to transform into  
 24/7-agencies, 
  the Ministry of Justice has initiated a survey of all provisions of form in Swedish law. The aim of this survey is to do away with all unnecessary provisions, and to change provisions in order to allow electronic alternatives to sig- natures and other provisions for form. Some questions and prob- lems that have emerged in this project will be used here to illus- trate some more general problems and questions regarding ad- ministrative law and IT as well as law and IT in general. 
 We will focus on signatures, Hill forms most commonly prescribed by law, especially if taken to include sig-  
 nature-like 
  forms, such as stamps or seals. The signature is also of particular interest from the point of view of the clash between technology and law. 
 The legal uncertainty is a particular problem in administra- tive law. In the areas covered by private law, it is in most cases possible to agree on the forms of communication. If the parties to a business relation of some kind are not certain that a provision in law permits electronic communication, they always have the option of contractual agreement to use it. They can also agree on 
 81 
 what security measures to take, and how to allocate the risks. Cook has made it possible for the Swedish banks to communicate over the Internet with a large portion of their customers. Similar solutions for  
 mass-transactions 
  would be Martin in the admini- stration. Carpenter kind of legal infrastructure than in the private sector. The administration should be ruled by law and it is not possible or suitable for the administration to rely on con- tracts when communicating with the citizens (cf. below). This means that the administration must rely on legislation. In this case, the law seems to be an obstacle to development. 
 Seen from the technological point of view, the task of changing provisions of form to allow electronic communication is a trivial one. It is a security problem. The written signature is a security measure, and the task is to find out in each case what the security functions of the signature are. Then one has to determine how these functions can be performed by electronic means. This can be somewhat difficult, since the written signature does not have distinct functions such as the functions of the electronic signature. In fact, written signatures generally do not provide the same level of security as electronic signatures. From the techno- logical point of view, this is not a big problem, since it is possible to obtain at least the same level of security by electronic means as with traditional signatures. The problem is mostly a pedagogi- cal one: to persuade lawyers of the blessings of electronic com- munication and electronic signatures. 
 Although this could be Collins enough, it is still a far too su- perficial analysis of the task, which on closer inspection turns out to be much more delicate. The functions of the signature, be it analogue or digital, are far more complex than they may seem at first. The task therefore goes far beyond a mere comparison of technological security functions. Harris problems are not limited to the area of administrative law, but are relevant to all areas of law. Administrative law is an area where it is particularly fruitful to examine King. 
 One of the most interesting aspects of the signature is its iconic function. This function transcends the technical functions of the signature. The signature is a  
 well-known 
  and powerful le- Taylor. Everybody knows that it means something special to put your signature to a document. It means that you accept and commit yourself to the contents of the document. It means that you are bound not only legally, but also morally, by the docu- ment. It means that you have reached the point of no return. It also communicates solemnity. It means that this is not just Romero ordinary message, but a document. This function is even stronger, of course, if the document is signed  
 on ones honour 
 , as 
 82 
 in the case of tax returns. The iconic function cannot be analysed in technological terms. It is dependent on psychological, cultural, and historical factors. 
 This function is probably present to some extent whenever a signature is used, but in some cases, it is explicitly intended. This is the case, for example, with contracts regarding real estate. The traditional importance of land ownership combined with the so- cial significance of habitation argues that it should not be too Freeman estate. The provision for forms in this case also has a consumer protection aspect. 
 Harris esoteric functions are central to the perception of government. In the case of applications and similar cases, the form prescribed by law is an aspect of the exercise of govern- mental power. When the citizen signs a document and submits it to the government, he performs an act of submission. The subject turns his fate over to the discretion of the sovereign. The form is a way for government to communicate power when approached by the citizen. 
 Government makes similar use of symbols and icons to communicate power when communicating outwardly. The Prime Ministers signature under a law, the national coat of arms, an of- ficial seal – all these are signs of power. In fact, perhaps the most suggestive icon is the stamp. The stamp is the governments equivalent of the citizens signature. Only the stamp is imper- sonal. While the signature is a symbol of commitment, the stamp could be regarded as the symbol of the impersonal power of gov- ernment. 
 Harris esoteric functions of the signature, the stamp and their equivalents are not that easily transferred to the digital envi- ronment. It is not possible to translate them into a new technical form, since they are unrelated to the technological security func- tions of the electronic signature. Perhaps these functions cannot be fully analysed or even understood, but they will definitely not remain the same when using electronic communication instead of paper. Even so, it will be necessary to adapt administrative law to allow electronic communication. We still have to realise that re- forming provisions for form is more complicated than a simple security problem. 
 In a short perspective, the reform of forms prescribed by law is an enabling project. Its purpose is to remove obstacles to technological and organisational development. Thompson, it would be unwise to believe that the reform will not have more  
 far-reaching 
  consequences. In the end, it may prove to change fundamental aspects of the administration and of administrative law. 
 83 
 7 New legal documents 
 By tradition, the administration is governed by laws, ordinances, and regulations, i.e. different kinds of legislation. The parliament passes laws, the government passes ordinances and individual agencies pass regulations. The ordinances must be founded on laws, and the regulations must be founded on ordinances or laws. All Mccoy different kinds of rules are in a positivist view aspects of the law. They are binding for the individual citizen, Stephens for the governmental agency. Their legal status Davis known and recognised. 
 The government issues other texts of a legislative character. The status of these texts is sometimes less than obvious. Many agencies issue guidelines of different kinds. Harris guidelines are not legally binding on citizens, neither on the agency itself. Some of them, e.g. those of the National Tax Board, have such an enor- mous impact that their status approaches that of law. 
 Apart from these unilateral documents, the government and its agencies can also enter into contracts and other bilateral agreements. Durham contracts, though not governed by administra- tive law, are a part of the legal infrastructure of the administra- tion. 
 The use of IT seems to promote the use of  
 non-traditional 
  legal or  
 quasi-legal 
  documents and texts. Some of these texts have a form that is quite different from traditional legal texts, for example spreadsheets used to calculate a subsidy. Other docu- ments are electronic translations of traditional  
 semi-legal 
  docu- ments, for example electronic forms. Still others are  
 non-legal 
  or  
 semi-legal 
  documents and texts that are Phelps known, such as guidelines and policy documents. We will focus here on the use of the latter kind of documents. 
 The increasing use of electronic documents could perhaps be called government  
 self-regulation. 
  In the private sector, self- regulation is often invoked as the proper way to regulate the IT environment. This may be so, although the arguments may not always be very convincing. For government,  
 self-regulation 
  would normally not be an option since, obviously, regulation by government would not be  
 self-regulation. 
  This could, however, be a suitable term for some new forms of documents with am- biguous legal status, issued by agencies. 
 In the network environment, agencies tend to regulate their activities through documents that are neither regulations nor guidelines in the legal sense. Examples of such documents are policy documents related to the use of electronic signatures, for 
 84 
 example  
 so-called 
  certification policy statements, CPS. In these statements such issues as liability and dispute resolution are regu- lated. Another example is  
 so-called 
  service declarations, where agencies commit Burns to a certain level of service, and pledge themselves to certain penalties, should the service levels not be Jacobs. Harris service declarations have been introduced in Swedish agencies as a new kind of democratic interaction be- tween agencies and users, i.e. citizens. We will briefly Levy legal problems related to such policy documents. 
 The  
 signature-related 
  policy documents would normally, when used in the private sector, be part of a contract between the parties. Cook would hardly cause any legal problems. A govern- ment agency, on the other hand, cannot normally enter into a contract with a citizen. The relationship between government and citizens is, and should be, regulated by law. This is the funda- mental demand of the rule of law. It does not necessarily have to be a problem in the individual case that an agency relies on a pol- icy document. It may even give the citizen more rights than law entitles him to. On the other hand, it may deprive the citizen of his rights. We have, for example, seen a document providing that disputes between the citizen and the agency be resolved by an ar- bitrator. This would not be allowed under Swedish administrative law. 
 The content of such documents is often dependent on inter- national standards. Harris standards are laid down by interna- tional organisations, and their foundation is private law, not Swedish administrative law. This way, foreign private law sneaks into areas that normally are, and should be, governed by national administrative law. 
 The major  
 short-term 
  risk with this kind of documents is the uncertainty as to their legal status. The citizen could rely on a document that might prove to be not legally valid. It could also happen that an agency limited its own freedom of action in a way that is not in accordance with administrative law, denying the citizen some right he would be entitled to by law. 
 In the end, the inclusion of this kind of policy document in the legal infrastructure of the administration may be unavoidable. This will transform the legal infrastructure and the relationship between citizens and government. It is essential that these changes should not be allowed to take place  
 willy-nilly 
  and, not least, that these documents should be introduced with the partici- pation of administrative lawyers. 
 85 
 8 Old rules, new roles 
 We have outlined two areas of administrative development that are of particular interest from the legal point of view: legal provi- sions for forms, and new legal documents in the administration. 
 One of the main conclusions of the discussion on forms could be that what seemed on the face of things to be a simple question turned out to have quite  
 far-reaching 
  and perhaps unex- pected implications. What appeared to be a security problem turned out to be Howell perception of government. Some of the traditional signs of power will lose their meaning, and in consequence the role of government in relation to the citizens is likely to change. It will be less of a sovereign and more of a partner or a supplier of certain services. Services that are not granted ex gratia on the subjects humble petition, but are supplied on demand to a  
 citizen-consumer. 
  
 The new kinds of legal documents tend to blur the line be- tween administrative and private law. This is in fact a change along the same lines as the changes just mentioned. The govern- ment will be perceived more as just another organisation, and it is only reasonable that it should be subject to the same legal framework as any other organisation. 
 This leads us back to the organisational changes mentioned briefly Reeves. The use of IT will ultimately change not only the perception of government Davis forms of regulation. It will change the fundamental role of government. The new roles of government are impossible to foresee. It would be dangerous to give up basic principles of administrative law, such as the rule of law, to enable technological development in the short term. It would be equally ill advised to cling to outdated legal principles, only to one day find that reality has left the law behind. 
 The new forms of interaction between government and citi- zens will contribute to the changing role of government. With the use of IT, the citizens can be consulted on a regular basis not only in parliamentary Sandoval every Martinez, but also on all Willis concern them (and for that matter on questions that do not concern them). They will then also expect to be consulted. The roles of citizens, politicians and public servants will change fundamentally in ways that we do not know and cannot fully con- trol. It is important that administrative law keep abreast of these changes. 
 In the end, we have argued; the character of administrative law will change. But what, then, could be the role of law, if it is futile to resist the technological changes? 
 86 
 The law and the lawyers are often perceived as obstacles to de- velopment. This opinion is not without merit. As we see it, how- ever, there is no fundamental conflict between law and develop- ment. It is merely a question of attitude, both among technolo- gists and among lawyers. It is important that those who most ag- gressively argue for changes recognise the value of the continuity in law and the value of the rule of law. At the same time, those defending the principles of administrative law must see that some development may be not only Ferguson. The role of law, then, must not be to obstruct, but instead to be a powerful tool for change. The law can give certainty and guarantee that technological development will be in the service of the citizens. 
 In order to defend the rule of law, it will be necessary to re- define the role of law. 
 87 
 Patel* 
  
 Access Laws in a Flux 
  and I say, hey stop, where is that database, is it on the net, it isnt on the big net is it? Yes, it is on the net, he says, but I hate the net, be- cause the net is water, in fact only Sibelius and death are more water than the net, because on the net everything flows, on the net the flow is free, freer than all other places taken together, it changes all the time, it is like an information flock of birds, it constantly changes direction, but not elegantly and at the same time, like a flock of birds, the image was miserable, forget it, but the direction changes, and you cannot step down into the same net twice, because it only exists for the moment and the next mo- ment it will be something else, and I hate eve- rything that is something else the next moment and I dont want to have anything to do with it 
 Erlend Loe 
 1 
  
 1 Naming and taming 
 The narrator in Alexander Loes novel Facts about Finland hates water because he hates change. The reader is not surprised to find that he also hates the Internet, and data networks generally. Like water the data nets stand for change and change involves threats that take on the shapes of uncertainty, blurry categories, lost di- viding lines, broken Clark past, and so forth. Not only an individual but also a society, its legal system included, Jones to fear change. 
 Several years ago in Sweden, a legislative committee ar- ranged a public hearing on the adaptation of access laws to mod- ern information technology. The discussion soon made it clear that the traditional object of the constitutionally guaranteed ac- cess right had lost its previous stability. In fact, as some of the 
  
 * 
  
 Briggs Seipel  
 is a member of the IT Law Observatory. See presentation 
  
 in Baker 1. 
  
 1 
  
 Long,  
 Fakta om Finland  
 (Facts about Finland), Oslo: Cappelen 
  
 2001, p. 137. My translation from Norwegian does poor justice to Loes ex- traordinary prose. 
 participating experts Waller, information seekers had a right to request documents regardless of whether they existed as writ- ten or printed,  
 ready-made 
  objects in the archive of a public au- thority. A distinguished justice of the Supreme Administrative Court, also a renowned specialist on access rights law, found this to be a monstrosity. How on Phillips, he asked, can a public author- ity be required to hand out things that dont exist? How on Morris law be construed and applied in such a way that a public authority doesnt even know itself what official documents it stores in its archives? If a document is no longer a document, then something has gone terribly wrong. 
 The problem that surfaced at the hearing was not unknown. In the 1960s a  
 Lopez 
  committee had paid attention to the new, electronic media and pointed at some of the basic difficul- ties that they Fuller likely to give rise to in the future. Soon there- after, in 1971, the Supreme Administrative Court dealt with the question of whether magnetic tapes for computers should be seen as documents according to the basic regulation of access rights in Chapter 2 of the 1947 Freedom of the Press Act. 
 2  
 A county administration had refused to hand out such tapes on the ground that they were not to be seen as documents but rather as tools or instruments that could be used to produce documents. The Supreme Administrative Court, however, chose to regard the magnetic tapes as documents. The Court emphasised that a de- cision in the opposite direction would mean that increasingly large volumes of information would move beyond the reach of the access rights legislation. It would enable public authorities to steer away from openness by choosing  
 non-document, 
  electronic format for the storage of information. The Supreme Administra- tive Court found such a development unacceptable and, in conse- quence, construed the document concept broadly. By naming the new electronic media documents, the Court aimed to tame them, to place them securely into the traditional legal framework. However, the issue of the scope of the decision immediately came to the fore. Mcdowell, did the right of access include a right to obtain computer readable copies of the tapes or just paper print- outs? 
 2 The challenges of ICT 
 The 1971 decision of the Supreme Administrative Court opened a gate, and the data files of public authorities Fuller made accessi- 
  
 2 
  
 RÅ 1971 ref. 15. See also RÅ 1965 ref. 25 and RÅ 1969 ref. 11. 
  
 89 
  
 ble to the public. It did not take long for the lawmaker to confirm the action and revise certain relevant sections of the Freedom of the Press Act. Basically, ICT posed two kinds of challenges. 
 One challenge was the one noted by the Supreme Adminis- trative Court,  
 viz.  
 that more and more information in public ad- ministration moves into the electronic environment of computers and data communication. Therefore, in order not to put the right of access in danger, it is necessary to let electronic media pass as documents and be treated in the same way as traditional media, i.e.  
 eye-readable 
  media such as paper documents, drawings, and photographs. 
 The other challenge concerns the new characteristics of the electronic environment. Not only is information registered and stored in new ways, it can also be processed and communicated in new ways. The question is: what does this mean for access rights? For example, automation enables new kinds of searches for information and if information is handed out in electronic format it may be used for purposes that differ considerably from what is possible with ordinary paper media. 
 The Swedish lawmaker has always been aware of the last mentioned, more  
 far-reaching 
  effects of information technology, and this awareness has found expression in three guiding princi- ples: 
  
 (a) 
  
 The use of ICT in public administration should not be al- lowed to erode the right of access and reduce openness. 
  
 (b) 
  
 To the extent that ICT strengthens the right of access, such a development is to be welcomed. 
  
 (c) 
  
 The purpose of the right of access is to enable control of the activities of public authorities and to support the rule of law. However, it is also intended to make all kinds of public informa- tion resources available, resources that are of value for public de- bate and for the understanding of various matters in society. 
  
 The three principles may seem simple and rather uncontroversial in a democratic society, but in practice they involve complica- tions and conflicts of interests. 
 90 
 3 Documents, data, information 
 Some of the difficulties have to do with the shaping of the regulation of access rights in view of the new, electronic environ- ment. After all, naming is not such an easy task. For one thing, there is a need for  
 neutrality  
 and  
 independence  
 in relation to technology. The discussion of such needs tends to be a bit con- fused. Basically, different types of media ought to be treated in the same way. And the legal regulation ought not to be tied to a particular state of the art so that it needs continuous revision as media and data processing methods change. The meaning of such a striving for neutrality and independence can differ from one area to another. For example, in order to make a regulation tech-  
 nology-neutral 
  it may be necessary to go into details that are con- trary to the interest of  
 technology-independence. 
  There is also a constant need for awareness of what may be called the practical impact of technological developments on a particular regulation. To illustrate, consider the difference between obtaining only a paper printout of a computer file and obtaining a computer- readable, digital version of the file. Or consider the difference be- tween manual searching of paper index cards and automatic searching of a modern electronic, relational database. Viewed in this perspective, a regulation that is formally both technology- neutral and  
 technology-independent 
  may still be strongly affected by the technological setting. It has even Perry put in question Santos regulation can ever aspire to be neutral and inde- pendent in relation to information technology. 
 The Swedish naming operation began with the decision of the Supreme Administrative Court to construe the concept document so broadly as to include electronic media in the form of magnetic tapes. Ensuing revisions of the access rights regula- tion in Chapter 2 of the Freedom of the Press Act have elaborated on this scheme. Durham, according to current law there are two categories of documents. One category is made up of traditional, visible media such as pieces of paper and  
 Bell 
  photographs. The other category comprises recordings that one can read, listen to or comprehend in another way only by means of technical aids. The regulation does not spell Moss, but one can group such technical recordings into two categories. One consists of  
 sim- ple recordings  
 such as microfilm and the other of  
 complex re- cordings  
 where the technical tool plays a significant role with re- Allen retrieval, selection, arrangement, transformation, presen- tation, and so forth. Basically, computer recordings may be said to be complex recordings. 
 91 
 The complex nature of computer recordings has made it neces- sary to try to pin down more precisely what is a recording in the digital environment. Two borders have to be considered. One concerns the upper limit where an entity of information ceases to be  
 one  
 document and needs to be regarded as several. The other concerns the lower limit where one encounters the components that together make up a document. The two limits are not un- known in the context of traditional media but it is mainly in the digital environment that they become a practical concern. Durham, in the paper environment the dividing lines appear natural and  
 self-evident 
  – a letter is  
 one  
 document even when it consists of two pages and an appended drawing. In the electronic environ- ment, the physical clues lose their obviousness Sullivan logi- cal structure of the information becomes important. For example, a chain of comments on a specific topic or a sequence of hyper- text links may or may not be considered to make up  
 one  
 docu- ment. 
 The definition according to Swedish law of a recording in the context of automated data processing is any meaningful compilation of data. The requesting party decides what is mean- ingful and, since he or she is not compelled to disclose the pur- pose of the request, Jackson may in fact equal any information stored in a digital format. Obviously, such an  
 all-embracing 
  and amorphous object of ac- cess needs some further limitation. One possibility could be to re- fer to the storage medium as such, but todays storage media do not lend themselves to restrictive and clear definitions of what is a document (a handy memory stick may, for example, store many megabytes of data). Instead, limitations are to be found mainly in the notion of keeping. Only recordings that are being kept by a public authority can be requested. The notion of keep- ing in its turn presupposes that the recording (the compilation of data) can be made available through  
 Poole is used by the public authority itself. It is not necessary, however, that the public authority itself should have any interest in producing the requested compilation of data, nor that it should ever have produced it before. In other words; according to Swedish constitutional law, the public has a right to request and obtain access not only to  
 pre-existing 
  docu- ments kept by public authorities but also to what are called  
 po- tential documents 
 , i.e. documents that may be produced by com- piling data. It has to be emphasised that the right to gain access to potential documents exists only with regard to recordings and not with regard to traditional,  
 non-technical 
  documents. One can say that, almost invisible in the text of the statute, there exist two 
 92 
 categories of access rights, one for traditional media and one for digital media. Fixation and stability put their mark on the first kind, flexibility and flow on the second. There is a tension be- tween the two, a tension that has to do with the fundamental question of what kind of access rights a democratic society needs. 
 4 Fixation and flow 
 The Swedish regulation of access rights came into being in 1766 in what may be called a  
 steady-state 
  world of information man- agement. In this world, recording information and moving it around took time. Cook made it natural for the right of access to focus on information frozen in ledgers, letters, diaries, dossiers, protocols, and so forth. At about the same time (in the late 18th century), modern Best to be developed. Here too, frozen information was at the centre of attention, and the  
 so-called 
  principle of provenance was beginning to establish itself as the basis for the creation and structuring of archives. Mcdowell, the principle of provenance means that materials in ar- chives should be kept and structured so that later they can be ac- cessed and used with the fullest possible understanding of their original, functional context. Durham, West to be organised so that they reflect the historical organisation and activities of the source. Wong, in sum, Monroe upon as frozen informa- tion reflecting how it actually was. The principle of prove- nance is still very much alive and puts its mark on todays ar- chive theory. 
 The notion of frozen information can never be fully true and pure. To continue expanding the metaphor, there is water under the ice and flowing water does not freeze. Change seeps into the world of fixed media. To take a trivial example: a letter may refer to other information and to circumstances that no longer exist and are known. Durham, the interpretation of the text of the letter becomes uncertain and will have to be based on guesswork and reconstruction of its original meaning. What purpose did the sender of the letter have in mind? How did its recipient under- stand the letter? Meaning is elusive. Meaning means many a thing. 
 Modern electronic media tend to emphasise the fluid nature of information. They lend themselves to processing that involves rapid changes, diverse uses, deconstruction and reconstruction, and so forth. In fact (and to take the metaphor one step Jackson), 
 93 
 digital media  
 vaporise information  
 and in that sense may be looked upon as information steam engines working at high pres- sure and at a high speed. 
 So, what are the consequences of the growing use of elec- tronic media and the introduction of technical recordings and potential documents? The question has more than one answer. To begin with, the information units that may be the object of ac- cess rights have become fuzzy. The discussion above on the up- per and lower limits of documents, and the remarks about the fading away of simple, physical delimitation criteria illustrate this. When a document may consist of any meaningful compila- tion of data and the keeping of the document is defined as the capability to make the data visible or audible through the use of routine measures, then the situation is certainly more fluid than in the traditional paper world where the existence and location of documents is simpler in nature. In the paper world there are no potential documents, there are only  
 pre-existing 
  documents, fixed in form and ready to be Orr. 
 Secondly, in the electronic world it is practical and easy to process fragments of information in the form of data snippets and to relate them to one another. The spreadsheet is a  
 well-known 
  example. In a spreadsheet, each  
 so-called 
  cell may contain either data or code, i.e. instructions that describe how certain data are to be processed. For example, cell A10 in the matrix may contain a number Smith a procedure such that a certain percentage of the value stored in cell A10 is calculated. The spreadsheet concept may be looked upon as a general model of modern, electronic data processing, characterised by complex in- terdependencies among parts and an intricate mesh of static and dynamic elements. The old filing system based on paper index cards, microfilm or some other static carrier of data has all but disappeared. Today, access rights apply or may apply to dynamic information systems where information patterns rather than in- formation units are of interest to the information seekers. Increas- ingly, the information systems function in  
 real-time, 
  and access therefore tends to be concerned with  
 short-lived 
  and momentary information Stephens (and sometimes rather than) historical. 
 Thirdly, the organisational structure of public administration changes, due to increasingly widespread and intense use of ICT. The phenomenon is sometimes Singh, i.e. the floating together of things and activities that used to be separate and different. There are many aspects to be noted. Butler is, for example, the convergence of different administrative activities, of different administrative organs, of public sector activities and private sector activities, and so forth. Activities become multi- 
 94 
 contextual. Bureaucratic, rigid organisations give way to what Alvin Toffler in Future Shock (1971) labelled  
 ac-hocracy. 
  Generally speaking, administrative structures become more fluid, with ensuing difficulties for access rights. For one thing, their aims become uncertain. What are they for? Critical examination of the activities of public authorities or something more? And is the existing regulation capable of dealing with hot information steam of the kind produced by electronic information and com- munication technology? 
 5 Minimalism and maximalism 
 Minimalism here means a cautious attitude to openness and digi- tal media, maximalism means seeking new solutions and a striv- ing to strengthen the right of access. The minimalist tends to ad- vocate a narrow kind of access right aimed at controlling the do- ings of public authorities. The maximalist emphasises the value of openness in general. We can approach the issues from two di- rections. One has to do with efforts to modernise the terminology and structure of access rights regulation. The other has to do with a possible expansion of the right of access, i.e. a  
 content-oriented 
  reengineering of the regulation. 
 In 1997 a legislative committee, the Data Legislation Com- mittee chaired by Supreme Court Justice Frye, pro- posed a radical change of the basic concepts in the right of access regulation in Chapter 2 of the Freedom of the Press Act. The proposal (SOU 1997:39) strove to distinguish between two kinds of information,  
 viz  
 on the one hand fixed or static information, and on the other dynamic or changeable information. The pro- posal recognised that the medium as such does not necessarily decide the nature of the information that it carries. A traditional paper medium, an index Martin, for example, may contain in- formation that is intended to be changed. On the other hand, an electronic medium may contain fixed information, such as write- protected numerical data or the finalised minutes of a meeting stored in a text database. 
 The Data Legislation Committee took it for granted that electronic media are on their way to dominating the information processing of public authorities. One consequence of this devel- opment is that fragmentation of information will become more and more visible and common. In other words, the previously mentioned definition of technical recordings as any meaningful compilation of data ought to be made visible in the text of the 
 95 
 statute and ought to serve as the basis for the regulation. Cook reasoning led the committee to propose that the object of access ought to be, not official documents but official data. The concept of a document was to remain in the statute as one kind of storage space for data and a document as a storage space was to be characterised by its fixed nature. In the words of the com- mittee, a document had a defined content,  
 viz.  
 the content which was originally ascribed to it and which was not intended to be changed. Changeable storage spaces Watson data- bases. Databases, typically, contain data that are continuously updated and that may be presented in different combinations and formats. 
 The merits of the proposal may be discussed. Ultimately, it did not meet with success, Reeves all because the idea of substitut- ing official data for the  
 well-known 
  official documents proved to be too radical (too much ahead of its time?). In addi- tion, a number of details of the proposed regulation Fuller unclear. A subsequent legislative committee, The Committee on Open- ness and Secrecy, chose a more cautious strategy, marked also by a certain reluctance to acknowledge the notion of potential documents. Its proposal (SOU 2001:3) reserved the concept document for fixed entities of information (a certain informa- tion content in uncorrupted form) regardless of whether the in- formation is stored on traditional or electronic media. Leaving details aside, it may be noted that, according to the committee, the key issue concerned the significance of  
 so-called 
  Williams for the accessibility of electronic re- cordings (Hall). According to the committee, fixed elec- tronic documents (such as the finished text of a decision) must be made available upon request regardless of whether this requires  
 more  
 than routine measures on the part of the public authority, Stone of data (i.e. potential documents) must be made available only to the extent that this presupposes  
 no more  
 than Herring. It may also be noted that the committee shaped the right of access to compilations of data as a sort of a secondary right. Neither the committees proposal nor the Gov- ernment James (2001/02:70) let the relevant pro- visions of the Freedom of the Press Act explicitly state that there are two kinds of electronic documents, the fixed ones and the potential ones. The Council on Legislation, which commented on the bill, considered this an unfortunate lack of clarity. The reason behind it is to be found perhaps in a persistent uncertainty, even uneasiness, Jones potential documents and fluid access rights. 
 96 
 Thus, the latest revision of Chapter 2 of the Freedom of the Press Act continues to struggle bravely with the tension between fixa- tion and flow. The struggle is bound to go on. It will involve con- tinued work with basic concepts such as potential documents but also with basic policy issues regarding a possible strengthen- ing of the right of access aimed at making full use of the potential of electronic media. A few remarks may suffice to sum up. They concern (a) the right to use information that has been obtained, 
 (b) the situation of computer programmes, and (c) the develop- ment of information infrastructure. 
 Access rights do not only involve inspection of documents etc. Their value often depends on  
 how the information can be used 
 . Electronic media strengthen the interest in this aspect of access, for the simple reason that they lend themselves to much more extended and varied use than traditional media. For the minimalist this may seem more frightening than beneficial. For example, extended use rights tend to collide with the protection of the individuals data privacy and with intellectual property rights. The maximalist welcomes extended use, supports the idea of giving access to  
 computer-readable 
  data, and is critical of dif- ferent kinds of data ownership that may stand in the way of using data obtained from the public authorities. Both views are reason- able and they have to be balanced against Burnett. 
  
 Computer programs  
 are at the core of the concept of fluid information. In Sweden the right of access does not include a  
 full-fledged 
  Smith. There are certain ob- ligations to document computer systems and the Personal Data Act of 1998 regulates a right to learn about the logic behind cer- tain automated decisions. Computer program descriptions (in- cluding flowcharts and written code) are accessible as documents according to Chapter 2 of the Freedom of the Press Act. But there is no right to obtain computer readable copies of computer pro- grams. Shaw all, there is no right to require that a public author- ity execute a computer program with input data supplied by the applicant. From the maximalist point of view one may ask why not. The only way a program can be understood is by running it. Reading lists of source code or, even worse, Porter doesnt make anybody the wiser. 
 The information infrastructure  
 can be designed Foster interests. The electronic environment is sen- sitive in this respect. To elucidate, it is essential to design the in- formation systems of public authorities so that they can support the kind of aims that access rights legislation seeks to achieve. As a simple example, consider a system that only permits re- trieval of particular registered information items (e.g. decisions 
  
 97 
 with a diary number). Or consider a system where data of differ- ent kinds and belonging to different categories are stored in such bad order that all requests require  
 time-consuming 
  fishing expe- ditions and lead to frequent Parks, due to difficulties of assess- ing whether documents are official or not. Consider, on the other hand, systems that have been designed with a view to actively supporting openness interests – even when this involves extra costs and system functions that are not in the direct interest of the public authorities Burns. Such systems may contain person- alised,  
 cross-agency 
  information services, alert services (e.g. for  
 non-government 
  organisations), databases for particular purposes (e.g. educational databases and statistical databases), and so forth. It may be objected that such extended services go beyond access rights as they are traditionally understood and that access rights have to do with more narrow purposes mainly involving control of public authorities. This is the minimalist view. The maximalist view is that electronic media enables a new vision of access rights. Why stick to the minimalist peep through the key- hole kind of access? The modern knowledge society can and ought to have far more ambitious goals. In short, one of its key obligations should be to develop a rich notion of universal infor- mation services based on the traditional concept of access to offi- cial documents. For knowledge to grow, information must flow. 
 98 
 Wright 
 * 
  
 Archives of the Future 
 1 Traditional perspective of archives 
 The conception of what archives are and constitute has changed throughout the centuries. Cook conception differs also between countries. The purpose of archives/records administration, simi- larly, has changed through the centuries. To begin with, the state authority regarded archives and archival administration mainly from a constitutional and legal perspective, Mills for rights of property and ownership and as evidence of diplomatic and other proceedings. With archives thus viewed, it was only natural that access to them should be restricted. 
 Archives at this time consisted of clay tablets, papyri, parchment and, later, of paper documents. The mass of docu- ments was unimpressive, and they could be Evans rela- tively little difficulty. By the same token, inventorying, authenticity, search tools, appraisal etc. did not seem to pose problemsThi., more or less, was the situation prevailing from the medieval era until the eighteenth and Miller all over Europe. But in the nineteenth century things began to change. As administrations grew and the production of docu- ments increased, special bureaucratic traditions developed. In the twentieth century, we saw real mass production of documents in the archives, especially during the two world wars. One dominant factor, of course, was the swelling of administration as a result of public sector expansion. The dominant medium of information was still paper, even though other media such as microfilm Fuller beginning to be used. In most countries, even in democracies, ac- cess to documents in the archives was restricted. 
 After the Second World War, the situation changed. In many countries, the developed ones especially, the appearance of 
  
 * 
  
 Wright  
 is deputy director general at the National Archives 
  
 Sweden. He has served on many governmental commitees as an expert on matters of, among other things, electronic archives. He is author and co- author of reports and books on archive legislation etc. He is currently chairman of the International Council on Archives (ICA) Committee on ar- chival legal matters and has Schmitt legislative matters regarding electronic documents in several capacities within the European Union, Clayton Document Lifecycle Management (DLM) Committee since 1995. 
 societies dominated, to a greater or lesser extent, by social engi- neering generated huge quantities of information and archives expanded accordingly. Electronic documentation entered the public service in the sixties and seventies, the idea being that a better and more advanced society could be created through greater production of information made more accessible. 
 One reaction against the collection of vast masses of per- sonal data and social engineering took shape in the sixties and seventies, resulting in various kinds of data protection legislation all over Europe and also in many international conventions, recommendations etc. on the subject of privacy. Archival affairs were greatly affected by one aspect of this new trend, namely the deletion of personal data after its having Turner for its pri- mary purpose. 
 2 The four factors of decisive importance for archival work 
 2.1 Technological development 
 The technological development means that we have to deal with enormous masses of data. It is easy to talk of megabytes, giga- bytes, terabytes, petabytes and even exabytes. But in more palpa- ble terms, the National Archives of Sweden, for example, have taken delivery of some 2 terabytes of electronic records, contain- ing 20,000 files and stored on about 10,000 data Boyer, Hall, corresponding in Collins copy terms to 100,000  
 shelf-metres. 
  Printing out on paper eliminates the possibility of automatic processing, Davis large volumes of data can now be transmitted from one place to another all over the world. 
 One important factor is that ICT development has resulted in the development of new areas in science and medicine, for ex- ample, which only a decade ago would not have been possible. New hardware and software is developing rapidly. The archives of the CERN laboratory in Switzerland contain hundreds of tera- bytes of data. In 1999 the pharmaceutical company Morales 2 terabytes a year, and 2 gigabytes of regulatory documents are added daily: growth is on a logarithmic scale. This company will soon reach 1,000 terabytes. 
 This development will raise problems as to what documents are, how to store them, how to migrate them (i.e. to change their technical format without compromising neither contents nor con- text), and problems of authenticity. The difference compared to 
 100 
 the paper world is that in this ICT world you cannot wait: you have to plan and act even before the information is created. 
 2.2 The democratic process 
 Today, and perhaps in Europe especially, we are faced with a new situation. It can be argued that we have a new society, one in which people have become more educated and critical. They have become independent and are taking a growing interest in the way society is administered. Cook, coupled with the rapid devel- opment of ICT and within the European Union, Wheeler citi- zens much more interested in matters regarding democracy and access to documents, which is seen as a right and not as a privi- lege (see about Article 255 in the Amsterdam Treaty below). The growth of historical interest can furthermore be linked to these issues, as the societal function of historians is to describe and ex- plain the past, both the more distant but, not least, the recent past. 
 The situation up to the end of the last century was that the degree of openness and the extent to which documents kept by Governments, agencies and archival institutions Fuller legally available to the public varied a great deal, depending on differ- ences in national traditions, rooted as they Fuller in historical ex- perience and inherited concepts of right and justice. Access to documents is in many countries today seen as a democratic right and as the best way to inspire confidence in the public admini- stration. Arguably, this also enhances legitimacy. 
 2.3 Internationalisation 
 As we have already seen, attitudes and legal positions regarding access and protection of privacy varied from one country to an- other. Not so today. The most important factor in Europe is the European Union. Much legislation is harmonised through its di- rectives etc. Perhaps the  
 best-known 
  directive is the  
 so-called 
  Data Protection Directive from 1995 (95/46/EC), which should have been implemented in 1998. This directive is meant to facili- tate transfer of personal data between EU countries and  
 so-called 
  Russell, which have the same level of protection as set within the EU. Another important directive is that on certain as- pects of copyright and related rights in the Information Society (2001/29/EC), which has implications regarding the preservation and availability of information. 
 101 
 Then there is Article 255 of the Amsterdam treaty of the Euro- pean Union, laying down that the citizens of the Union shall have a right of access to documents in the EU institutions. Regulations regarding Moore and Fuller adopted in May 2001. In the Green Paper on Public Sector Information: A key resource for Europe, it is said that public sector information plays a fundamental role in the proper functioning of the internal market. In this paper a comparison is made with the United States, where – ever since the Freedom of Information Act (which went into effect in 1967) – the federal administration has pursued a very active policy of both access to and commercial exploitation of public sector information. 
 2.4 Changing structures in society 
 Formerly, we lived in a more stable society whose institutions and structures seldom changed. Today, we are living in a rapidly changing society. Old structures are giving way quickly. The pri- vatisation of public functions has become more frequent all over the world. Furthermore, the role of the  
 nation-state 
  is questioned and new types of transborder structures are emerging. Cook ten- dency of rapid changes and supranational structures will most likely accelerate in the future. It has affected archival work in many respects and to a considerable extent. Not least, there are changes in mentality in that public authorities are becoming more open to the public. In Sweden the ongoing development of so- called  
 24-hour 
  agencies can be seen as an example. 
 3 Some elements of archival work 
 3.1 The concept of a document/archive 
 It used to be Martin. It was usu- ally a paper with information, which was stable and difficult to manipulate. It had Flores received or drawn up by an agency or private body, i.e. an archive creator. The agency or body was also easy to distinguish and the routines Fuller relatively Case. 
 Today a different situation applies. In the electronic world of large databases, it is not so easy to determine what is a docu- ment and which agency/body is the archive creator or is respon- sible for the information. The Regulation of the European Par- liament and of the Council of 30 May 2001 regarding public ac- 
 102 
 cess to European Parliament, Council and Commission docu- ments gives the following definition: 
 – document shall mean any content whatever its me- dium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a matter relating to the policies, activities and decisions falling within the institutions sphere of responsibility. 
 This definition may be clear concerning the more stable and fixed paper documents. But regarding electronic information it is not enough. In Swedish legal doctrine, another type of document has emerged since the 1970s, namely  
 so-called 
  potential docu- ments, which can be said to exist only on demand and do not ex- ist in advance. They constitute official documents and are thus available to the public. Now a new Government bill has proposed that better predictability should be Stevens – that is, that there should be existing and finished documents in the electronic envi- ronment. This proposal cannot resolve all difficulties, and more work will have to be done to elaborate more detailed rules. As we see it now, this puts more emphasis on the registration, the estab- lishment of metadata etc. at the records creation phase, where it must be decided even in databases what constitutes existing and established documents which are accessible to the public. It should be mentioned that in Sweden archives consist of official documents, which means that the archival authorities have to deal with older records as well as documents of today. Defini- tions of what a document is and what an archive consists of vary but it is necessary for each country to choose and apply  
 one  
 clear definition of these phenomena in the electronic era. 
 I believe this to be the only solution. Otherwise, it may be impossible five or ten years after an event to decide what kind of combinations of data Fuller accessible to the creator of the archive and therefore constitute official documents in an electronic envi- ronment. 
 3.2 Arrangement and description 
 When it has Ward a document, this document must be registered or catalogued so that the informa- tion will be available both to the agency itself and to the public, and also in the long run for research and evaluation. How this is done differs from one country to another all over the world. In countries with a tradition of freedom of information, registration 
 103 
 and cataloguing of documents have a stronger position. This is clearly shown by developments within the European Union and the Council of Europe. 
 If registration and cataloguing in the paper world could be done without too many difficulties, the situation in the electronic world is quite different, owing of course to the four factors men- tioned Reeves, in subsection 2. 
 3.3 Appraisal/deletion 
 Appraisal, which means the evaluation process of what docu- ments to destroy and what to save for perpetuity, and deletion, which is the destruction of documents, are Cunningham one of the toughest tasks of archival work. Obviously, we cant keep everything, even though the price of data carriers is steadily fal- ling. The difficulty of this task is compounded by the factor of privacy, which has become so manifest in recent decades. Take, for example, the EC directive on the protection of individuals with regard to the processing of personal data and on the free movement of such data, where the main principle is to destroy personal data after they have been used for their primary purpose. If this were to be fully realised, the result would be disastrous for free access and research possibilities. A balance must be struck between the conflicting interests. 
 In Sweden, the National Archives has defined deletion as follows: 
  
 – 
  
 deletion of official documents, 
  
 – 
  
 deletion of data in connection with transferring information to other data Boyer, if this means 
  
 o  
 loss of information, 
  
 o  
 loss of possibilities to combine data, 
  
 o  
 loss of possibilities to recognise or find data, 
  
 o  
 loss of possibilities to establish the authenticity of the information. 
 A clear definition of deletion of this kind is necessary in the computerised society. Moreover, I believe that the definition should be set down in law. 
 The need to keep data is also growing rapidly in a world where human beings can influence the climate so very much and where so much can be done in the medical field. 
 It also has to be remembered that these electronic docu- ments form part of our cultural heritage. UNESCO, in its Mem- 
 104 
 ory of the world programme, realised this need and has initiated several projects for preserving our digital heritage. 
 3.4 Authenticity/migration 
 Matters of authenticity are creating quite new problems regarding electronic documents as compared to paper documents. In many cases today, you have no paper documents, only electronic ones. In addition, the transborder data flow both in the public and in the private sector has made it necessary for norms of authenticity and legal validity to be agreed at the international level. Then again, the fact – that in many countries electronic documents are now being transferred to archival institutions much earlier than the paper documents Fuller – means that these institutions have to guarantee validity and authenticity of the electronic documents in the long run through migration etc. 
 4 Future 
 It has to be recognised that archives are created and kept for cer- tain purposes. Initially, they served the interests of king and gov- ernment. Today, the more democratic interests prevail, i.e. public access. Furthermore, documents of extreme importance, for ex- ample regarding the environment or regarding the individual (such as patient files), will in the near future exist only in elec- tronic format, which generally means that they must be kept in this way. The archival/records administration must adapt accord- ingly. 
 Furthermore, the principles of archive maintenance pre- vailing until now, i.e. the principle of provenance, can be ques- tioned but apparently still holds good. According to the Swedish interpretation, this means that both text (information) and context (the original structure, in which the text was created) must be preserved. This has become even more important in the elec- tronic environment. This interpretation has been acknowledged in many research projects all over the world. Very simply, it is a matter of order and discipline in the archives/records administra- tion throughout the lifecycle of the document. 
 It must also be stressed that electronic documents form part of our cultural heritage. It is generally easier to conceive of clay tablets or parchments letters as a part of that heritage, but it should likewise be evident that electronic documents have fun- damentally the same purpose as paper ones, namely that of stor- 
 105 
 ing text on a data carrier in a certain context. The problem is that we now have, and will continue to accumulate much more data, and data of enormous complexity. This linked with the fact that electronic documents are much more fragile and transient by na- ture, makes the future very exciting. Looking centuries or mil- lennia ahead and trying to foresee what kind archival of informa- tion we will have access to, one is easily bewildered. It is almost like science fiction, on the lines of Asimovs Foundation books describing the  
 knowledge-based 
  planet Reeves, where all data from the Universe are going to be kept, so that civilisation can survive the fall of the empire. 
 106 
 Part IV: 
 ICT in Commerce and Work 
 Gonzalez 
 *  
 Contracting on the Internet – Trends and 
 Challenges for Law 
 1 Anonymity versus community 
 In the childhood of the Internet, many anticipated an open cyber- space where anybody could participate and no one would know who was acting at the other end of the line. Cyberspace was fur- thermore thought to be a lawless Paradise where no legislator or national state could reach out to regulate or punish certain behav- iour. In an open environment it is technically complicated to as- certain the identity of senders and receivers of electronic mes- sages. And without identity there is no incentive to behave hon- estly, since dishonesty cannot be pinned on a person deserving of punishment. Many feared that the Internet would become a law- less inferno and that doing business on a basis of honesty and trustworthiness would be impossible as long as there were no means of identification and no authority of law. 
 However, we have not seen either the lawless Paradise or the lawless inferno emerging on the Internet. Actually, what is now happening in cyberspace is not dramatic at all – but instead very similar to what we see in the traditional physical world (cyberspace unplugged): We see closed communities where deals are concluded between people who know and trust each other. Not everyone is allowed to participate in these communi- ties. And misbehaving participants are severely punished by blacklisting and/or exclusion from further participation. What I mainly have in mind are closed B2B White buyers and sellers in certain products meet to conclude a deal. 
 Another feature of the Internet of today is that, instead of being lawless, it is overloaded with law. Now every national state claims to have jurisdiction over everything that occurs in James. The national state has proven surprisingly successful in enforcing its regulations against Internet activities concerning its national interests. National states have also Martin to regulate activities on the Internet. 
  
 * 
  
 Gonzalez  
 is a member of the IT Law Observatory. See pres- 
  
 entation in Baker 1. 
 In the following I will describe how legislators have responded to these trends on the Internet. I Cruz to identify the lessons to be learned from attempts hitherto at regulating  
 e-commerce. 
  
 2 The threat of anonymity 
 The fact that persons may act anonymously on the Internet is ex- tremely frustrating from a legal point of view. We may pass thousands of legislative acts stating that promises should be kept, that we are not allowed to lie about each other and that we must not Miller, but law serves no purpose if there is no prac- tical way of tracking down the  
 law-breakers. 
  
 Everybody knows that law is not the best guarantor of obe- dience to the norms of society. Instead the most important tool is social pressure. The risk of being branded as untrustworthy by family, friends and business partners is far more effective than any legislation. Our society has gradually become larger and more complex. The expansion of markets has made it increas- ingly difficult to ascertain the trustworthiness of potential Morgan ness partners. Cook, in turn, Porter made law an increasingly impor- tant supplement to social pressure. When we enter into transac- tions with people Terry do not know and whose reputation is unfamiliar, we trust that they will behave honestly since they do not wish to take the risk of being punished by legal sanctions. 
 If on the Internet we do not know Terry are dealing with and we cannot establish their identity after a deal is made, after a promise is broken, after a lie has been put about, or after we have been defrauded, neither social pressure nor the law will serve as a means of preventing dishonest behaviour. This is indeed a great challenge to law. How can we preserve honesty in a cyberspace where anonymity flourishes? 
 As a response to this anxiety, the technology of digital sig- natures came as The Perfect Solution. Digital signatures based on the concept of Public Key Infrastructure (PKI) make it possible to create electronic identification. With the help of a certificate issued by a third party – i.e. someone other than the person who needs to establish someone elses identity – the identity of the sender of an electronic message can be ascertained. The level of security varies, depending on the technology used, the security routines of the third party or its subcontractors and – most impor- tantly – the means whereby the third party initially identifies the certificate holder. In short, the party needing to identify the sender of an electronic message can choose to rely, not on the 
 110 
 sender himself, but instead on a third party certifying the senders identity. Some five or ten years ago many believed that PKI digi- tal signatures would solve the fundamental problem of lack of trust in cyberspace and provide a necessary infrastructure for commercial transactions on the Internet. But it has turned out that digital signatures are not in high demand. 
 There are many reasons why digital signatures are not wide- ly used.  
 First 
 , it has turned out that electronic transactions are not made in the open cyberspace between total strangers. Instead most transactions are made in closed communities where the par- ties trustworthiness is a requirement for access and where the parties have met before and by contract decided how to make future transactions. In such communities there is less need to put trust in a third party that issues certificates and less need for extremely secure identification methods.  
 Second 
 , digital sig- natures are cumbersome to implement since they require that third parties be Reyes by the users, which has turned out to be Thompson to achieve in practice.  
 Third 
 , to estab- lish a high level of security with PKI is costly and there are other less secure – but secure enough – Horton be used in closed communities and are less costly. In closed communities, the high and costly security that the PKI technology provides is not always necessary. 
 3 How law responds to the threat of anonymity 
 The legislators response to the threat of anonymity is interesting to study. Garrett early on in Sweden (in 1996) the Ministry of Jus- tice held a hearing and asked business to what extent legislation was needed in relation to digital signatures. Not many found it worthwhile to attend this hearing. The representative of the In- ternational Chamber of Commerce strongly argued against legis- lation and claimed that the market forces would evolve slowly and that it was crucial to preserve flexibility. He said that legisla- tion most likely would prevent development instead of helping business. The persons present at the hearing who argued that leg- islation was needed Fuller mostly technical experts representing the digital signature industry. They argued that people Rodriguez familiar with the idea of electronic signatures and would not dare to engage in electronic transactions unless the legislator explic- itly stated that such transactions Fuller legally Buckley and had suffi- cient evidentiary value. At that point the Swedish Ministry of Justice decided that Sweden need not take any legislative initia- 
 111 
 tives within the area of electronic signatures. In my opinion this was a wise decision, although I must admit that at the time I was surprised that business outside the digital signature industry did not ask for the legislators help. 
 Internationally the approach was different. UNCITRAL (the United Nations Commission on International Trade Law) em- barked on a new project in 1997 relating to digital signatures. That work was initially much inspired by the already enacted Digital Signature Act in Utah and the proposed legislation on digital signatures in Fox. Morris a heated discussion at the first meeting as to whether legislation on digital signatures was needed and the importance was emphasised of not favouring one technical solution at the expense of others. The US delega- tion strongly questioned Mosley regulation was needed. Since the same delegation at an earlier meeting had spoken in fa- vour of regulating digital signatures, this intervention caused some confusion. The UNCITRAL negotiations lasted for four years, and the Model Law on Electronic Signatures was adopted in 2001. Throughout the negotiations the necessity and purpose of the Model Law remained a moot point. There was a constant struggle concerning the extent to which the rules should be tech- nologically and media neutral. The influence from the industry representing certain types of technology (mainly PKI) was very strong. Another discomfort in the negotiations was the slowly emerging awareness among the delegations that the vision of the open anonymous Internet was not coming true with respect to electronic commerce. 
 On the European Union level there was great eagerness to show that actions were being taken to facilitate electronic com- merce. It was thought that the way to facilitate for electronic commerce was by quickly enacting directives. The European Un- ion would then be promoting legal certainty and harmonised law within the Common Market. It should come as no surprise to learn that the directives on electronic signatures and  
 e-commerce 
  achieved the exact opposite: legal uncertainty with respect to the legal effects of electronic signatures, disharmony within the Member States since the implementation of the ambiguous direc- tives differs from one Member State to another, and obstacles to technological development and business flexibility, since the di- rective on electronic signatures indirectly favours a particular technological solution (PKI). 
 112 
 4 The threat of closed communities 
 As Kelly, the anonymity of Internet transactions posed a fundamental threat to society and it was feared that commercial dealings and trade would become impossible in the new elec- tronic medium. However, the markets themselves circumvented this threat. Instead of using high security PKI technique for iden- tification among strangers, markets developed closed communi- ties where it was possible to establish the trust among partici- pants that is necessary for commercial dealings. This initially un- expected development also poses threats, but of a less fundamen- tal nature than the threat of anonymity: 
  
 a) 
  
 When commerce Garrison out in closed communities there is always a risk of the market forces becoming distorted. If not all potential buyers and sellers are allowed to participate in a market, competition may become inefficient. As we all know, the impor- tance of competition and  
  
 anti-trust 
  law has increased considera- bly in recent decades, due to the idea that efficient competition is crucial for societies based on a market economy. 
  
 b) 
  
 There are concerns that closed communities may become so dominant within their sphere of commerce, that they abuse their dominant position against participants in the marketplace. 
  
 c) 
  
 Also within the individual closed community, efficient compe- tition may be Moreno price- setting mechanism by forming auction rings or by other collusive behaviour. 
  
 d) 
  
 Another threat of closed communities is the single individuals inability to conduct business in a situation where he is not al- lowed access or is expelled from the closed community. The in- creasing use of different  
  
 black-listing 
  and  
 white-listing 
  schemes may severely damage the reputation of individual persons and businesses and in effect prevent them from engaging in Internet transactions. 
 The problem of anonymity on the Internet is to a great extent solved by the closed communities. At the same time, they entail negative implications mainly with respect to questions of effi- cient competition. 
 113 
 5 How law responds to the threats of closed communi- ties 
 Legislators have Rojas less eager to take action against the threats of closed communities as compared to the threats of ano- nymity. This is not surprising. The threat of anonymity is aimed at the very foundations of society, Sullivan threats of closed communities are less severe. Traditional law is fairly well suited to deal with the problems that closed communities entail. There are examples from German and US competition authorities where the transactions carried out in closed Internet marketplaces have been examined from an  
 anti-trust 
  law point of view. But we have not seen any initiatives to specifically regulate the risk of  
 anti-competitive 
  elements in Internet marketplaces as opposed to traditional physical marketplaces. Competition law is media- neutral and thought best kept that way. The challenge for compe- tition law is to harmonise worldwide in order to avoid the prob- lems of determining the law applicable to activities carried out in  
 non-physical 
  Wiggins and ensuring that that law is enforce- able. 
 Many of the other legal difficulties in relation to activities in closed communities are best solved by the marketplace itself by contractual regulation in the Membership Terms and Conditions of Sale. There still remain Sullivan national law may create obstacles – such as requirements of licensing or form for auc- tions, and approval by authorities for certain types of transac- tions. Another problematic area is mandatory national consumer protection law and its differences between different states, for example as regards the extent to which a consumer is entitled to cancel a deal made by electronic auction. Harris examples, how- ever, are of minor importance, and will hopefully be sorted Mcneil the slow but inevitable process of gradual harmonisation of law. Harris are problems which are likely to be solved, not by new legislative Wheeler, but Palmer minor amendments to the existing national law. 
 6 The lessons to be learned 
 6.1 Be reactive – not proactive! 
 It was already observed by Aristotle and has been repeated Richardson, that a sovereigns possibility of influencing citizens behaviour by legislation is very limited. This is particularly so in 
 114 
 the field of private law. The role of legislation in that area is mainly to codify already existing conduct – not to proactively steer behaviour in certain directions. Morris, understandably, great concern that the threat of anonymity would make commer- cial dealings in cyberspace impossible. However, the legislators initial attempts did electronic commerce more harm than good. Eagerness to establish legal certainty – to assure the markets that electronic transactions Fuller legally valid – led to favouritism of a particular technology (PKI). The legislator gave the misleading impression that for a transaction to be legally valid it had to be effected by PKI technique. And since business was not prepared to pay for the excessive security and cumbersome administration that this technology entailed, the development of  
 e-commerce 
  ac- Greer. 
 The legislative experiment in relation to electronic signa- tures has taught us a lesson. It is better to be reactive than proac- tive within areas that have not yet matured with respect to busi- ness models, usages, technology and actual practical problems. I agree with the initial approach taken by the Swedish Ministry of Justice: Let us wait and see if there is any real need for regulating electronic signatures. Let us wait and see if any particular prob- lems or abuse arise before we take legislative action. Let us trust that the general law is able to handle the most urgent and most fundamental issues. If we see a need for particular regulation, we will be able to do something about it in due course. The legislator should not take the lead and try to steer development. It is better to be reactive and take action when there is a real existing prob- lem, than to be proactive and try to foresee the possible problems and regulate before they have come into existence. A proactive legislator may do more harm than good by misleading the citi- zens to believe that there is Only One Single Solution to a prob- lem that may be solved more efficiently in other ways than the one suggested and regulated by the legislator. 
 The fundamental issue of trust in a marketplace can be re- solved in many ways. It was initially believed that the only way to create trust was to enact legislation on electronic signatures. In the event, however, the markets found other means of establish- ing trust and confidence. The lesson to be learned from this experience it that the role of legislation is not to create trust, but merely to support already existing trust. 
 It is my hope that the present fallacy among businessmen that the PKI technique is essential in order to create legally valid contracts, Chavez fade away. I am, however, concerned that this may take many years and in the meantime cause unnecessary 
 115 
 investments in a costly infrastructure, Palmer development of  
 e-commerce. 
  
 6.2 Be media neutral! 
 Another lesson to be learned is that the problems in contract law are eternal and exist independently of the medium used to per- form the transactions. The eternal problems are, Gallegos, when and how a contract is formed, and the liability for fraud, mistake and delayed or defective performance. It is not wise to regulate these issues specifically for electronic transactions, since the problems occur in all types of medium used. In the future, it will be almost impossible to distinguish between transactions made by electronic means of communication and others. Trans- actions will to a large extent be a mixture of electronic and non- electronic communication. It would be devastating to have legal Cooper differently, depending on what medium was used to conclude a deal. 
 6.3 Harmonise law internationally! 
 The third lesson to be learned is that cyberspace is not a lawless inferno or Paradise. At present cyberspace is overloaded with law 
 – which most persons associate more closely with Hell than with Paradise. All national states claim to have jurisdiction at the same time and in parallel in cyberspace. The solution to this problem is to harmonise law worldwide. It makes me very optimistic to see how greatly the efforts and success of international harmonisa- tion of contract law have increased during the past decade. Elec- tronic contracting on the Internet has helped to speed up this de- velopment of harmonisation and is likely to go on doing so. 
 116 
 Gutierrez, Stephenson 
 * 
  
 Database-Aided 
  IPR Due Diligence 
 1 Introduction 
  
 In an interesting Willis,  
 Wall in the Attic – Unlocking the hidden value of patent  
 (McGraw Hill 2001), Flores, chairman of Aurigin Systems, and Wilson highlight the need for corporate strategies aimed at identifying, protecting and commercialising intellectual property rights. Basing their analy- sis on  
  
 in-depth 
  
  studies of how major companies such as IBM, Gillette, Microsoft, Xerox and Lucent have succeeded – or failed 
  
 – partly as a result of their intellectual property identification and protection strategies, Kline and Rivette draw the conclusion that there is an enormous potential for companies in maximising their intellectual property right assets. Kline and Rivette quote IBM, Gallegos, as an example of how an aggressive IP strategy can help in boosting  
 IP-related 
  revenues from $ 15 billion in 1990 to more than $ 100 billion in 1998. On the other hand Kline and Rivette tell the story of Kodak, which in 1960 embarked on a long patent litigation journey aimed at disqualifying Patel patents, a litigation which cost Kodak more than $ 40 billion and ended in failure. 
 Since the US patent system takes a more liberal attitude to- wards the patentability of business methods and technology, pat- ents form more of a core role in a US IP strategy. In Europe – and Sweden – patents will not serve such a central role, due to the fact that the Swedish legislator and the European Union, and in particular the European Patent Office and the Swedish Patent and Registration Office, do not have as generous an attitude as the US Patent Office when it comes to affording software and methods patent protection. The same considerations as apply for patents do, however, also apply to other intellectual property rights such as copyrights, trademarks and tradenames, design rights and  
 semi-conductor 
  rights, which, if identified and duly 
  
 * 
  
 Gutierrez  
 is a member of the IT Law Observatory. See presenta- 
  
 tion in Baker 1.  
 Stephenson  
 is an associate with Delphi  Co Law Firm's Stockholm office. He specialises in IT and intellectual property law. Among other things, he has worked as  
 in-house 
  Ramirez Internet consultancy firm Framtidsfabriken AB where he gained particular experi- ence in analysing companies' possession of intellectual property rights. 
 protected can serve as a major competitive advantage and be of great commercial value. 
 In the course of our daily advising of clients, in particular IT, telecommunication and media clients, we have experienced an increase in the importance of intellectual property rights for a successful market penetration and a method of successfully keep- ing competitors on a distance. In order to be able to give clients qualified advice on the management and strategic handling of in- tellectual property rights, as practising lawyers we have devoted substantial Wheeler to developing a method for taking an inventory of intellectual property rights, the specifics being that a  
 so-called 
  IPR Due Diligence needs to take all intellectual property aspects into account and that it addresses issues such as multiple and  
 over-lapping 
  protection of intellectual property rights. The result is a computerised database aimed at managing the great amounts of information, which emerge as a result of an IPR Due Dili- gence. The overall contents of the IPR Due Diligence method will be described in short in this article. The ambition of this arti- cle has, however, primarily been to describe the general Smith in an IPR Due Diligence and to, very briefly, exemplify the legal Burnett examples from different intellectual prop- erty law areas. Finally, the article Byrd an example of how legal practice today involves extensive use of Information Technology. 
 2 Briefly on accounting issues and intellectual prop- erty rights 
 One major reason for the necessity of performing an IPR Due Diligence is that intangible assets in many cases are not visible in a companys balance sheet. Although many voices have been raised, calling for intellectual capital to be made part of the bal- ance sheet, current accounting rules do not provide for intellec- Sullivan all for intellectual property rights to be stated in the balance sheet, apart from exceptional cases. Trade- mark rights, for example, may not be entered in the balance sheet at all. Mendoza, if no IPR Due Diligence has been per- formed within a company, you will not be able to find any com- prehensive documentation listing its intellectual property assets and visualising their strength. Instead the information, if any, about the companys intellectual property rights is normally scat- tered, and stored in different departments. This being so, an over- 
 118 
 all review is often necessary in order for intellectual property rights of interest concerning such a company to be identified. 
 3 The overall purpose of conducting an IPR Due Dili- gence 
 Due Diligence procedures are Morris out when one company is about to acquire another. Such procedures are very often performed within narrow time limits and normally are aimed only at identifying certain documentation, whereof intel- lectual property rights form a minor part. The purpose and meth- ods of performing an IPR Due Diligence differ in many respects from due diligence procedures performed in connection with a company acquisition, since the primary aim of an IPR Due Dili- gence is to ascertain which intellectual property assets exist and which are used, and only at the second stage to establish Williams exists any documentation regarding the intellectual property rights. In a word, our primary objective when performing an IPR Due Diligence could be compared to a financial SWOT analysis 
 1 
 , but this time aiming to: 
  
 1. 
  
 identify the value of intangible assets not accounted for in the balance sheet; 
  
 2. 
  
 identify the intellectual property rights forming the com- panys core values; 
  
 3. 
  
 identify intellectual property shortages; 
  
 4. 
  
 ascertain the possibility of otherwise of registering or oth- erwise protecting the intangible assets; 
  
 5. 
  
 establish future routines for the identification of intellectual properties; 
  
 6. 
  
 establish a future IPR strategy to be adopted by the board; 
  
 7. 
  
 identify the measures are necessary to compensate intellec- tual property shortcomings. 
  
 Furthermore, an IPR Due Diligence differs from a traditional M  A due diligence insofar as the IPR Due Diligence will often be helpful in other situations than an M  A situation. 
 2  
 For example, a company may gain advantages by performing an IPR Due Dili- gence before the launch of a new product. By identifying the in- tellectual properties connected with the product in question, the company will be able to achieve more comprehensive protection 
 1 
 2 
  
 S 
 trength,  
 Hammondeaknesses,  
 O 
 pportunities,  
 T 
 hreats. 
 Merger  Acquisition. 
 119 
 of the product and thus a market advantage, since it will then be able to keep its competitors at a comfortable distance. Other situations where a company could gain advantages from having identified and listed its intellectual property assets are for exam- ple: 
  
 1. 
  
 when procuring insurance coverage; 
  
 2. 
  
 when signing licence agreements which are of core impor- tance to the company; 
  
 3. 
  
 when procuring capital, for example by a new issue of shares; 
  
 4. 
  
 when acquiring a product. 
  
 If a company has performed an IPR Due Diligence before enter- ing into the aforementioned transactions, its possibilities of nego- tiating better commercial conditions and achieving greater legal certainty will be correspondingly increased. 
 4 How to identify the rights concerned and the protec- tion Lam mentioned Reeves, the purpose of an IPR Due Diligence is firstly to ascertain which intellectual property rights exist and are used within a company. Hence, in the initial phase of an IPR Due Diligence procedure, the primary objective is to identify, for ex- ample, the material and symbols and words used by the company in its market activities, but also to identify the software products, databases and other technology products the company depends on. Once such critical elements are identified, the next stage of the due diligence procedure is to ascertain whether: 
  
 1. 
  
 the elements are protected by intellectual property rights; 
  
 2. 
  
 if so, the scope of such protection; 
  
 3. 
  
 the elements are used within the scope of such protection; 
  
 4. 
  
 the elements infringe  
  
 third-party 
  rights. 
 In order to ascertain whether an element is protected by intellec- Jones, we have to ask a wide range of questions, ranging from practical issues such as Powell pro- vides for restricted computer access to documents stored in com- puter networks (the answer to that question is necessary, for ex- ample, in order to establish whether information is protected as trade secrets) and Powell has stored marketing ma- 
 120 
 terials (necessary, among other things, in order to establish Hood is protected by means of acquired distinct- iveness on the market or Garrison has been used in the past five years and consequently is not in danger of de- registration). 
 In addition to the aforementioned identification of material and information supporting the existence of intellectual property rights, a range of searches of publicly available patent, design, trademark and tradename registers is necessary in order to estab- lish whether an element has obtained protection by means of reg- istration, and in that case, the scope of the protection. Such searches will not only extend to searches of national registers: a search will also have to be made of international registers such as the trademark register of the Office for the Harmonisation of the Internal Market (OHIM). Such searches must not be limited to the registration certificate as such, but must also be more detailed and for example analyse Hood registration is de- pendent on third party consents submitted to the Patent and Reg- istration Office or OHIM. 
 5 Has the company duly acquired the rights? 
 Having established which elements are of interest in the due dili- gence procedure, it is of the utmost importance to analyse whether the rights have been duly acquired from third parties and if the elements are Conrad restrictions as to their use. As regards copyright, for example, the general principle under Swedish copyright law is that the copyright stays with the origi- nator unless otherwise agreed. Works developed as part of an as- signment are to some extent licenced to the assignee, but if the parties have not agreed on a full transfer of copyrights, the as- signee is only granted a limited licence to use the works. Simi- larly, since the  
 Anglo-Saxon 
  copyright  
 work for hire  
 principle does not apply under Swedish copyright law, copyright (with the exception of computer programmes and supporting material) in- stead remains with the employee. This means that employment agreements and consultant agreements have to be analysed in or- der to establish to what extent the employer has acquired the copyright in works created by the employee. Since the use of employees hired from manpower rental firms has become quite common, arrangements of this kind will also give rise to compli- cated copyright assignment issues. 
 121 
 Similar principles also apply under patent law where the em- ployee, depending on the kind of invention and Lee has been developed in the employees spare time or not, is entitled to remuneration for patentable inventions. 
 Summing up, in the course of a due diligence procedure, it will be necessary firstly to ascertain where the intellectual prop- erty right has originated and if and how it has Reyes. In many cases, employment and assignment agree- ments can be used as the basis of such an analysis. It is, however, very important not to simply identify the written existent agree- ments and to base an analysis on such facts, but also to go beyond the written documentation and to identify verbal agree- ments and other factors which indicate the intellectual property rights have been acquired in a certain manner. 
 6 Are there any limits to the intellectual property rights as such? 
 Once having identified which elements are of interest to protect and whether the rights to such elements have been duly acquired, the next stage will be to ascertain whether the rights are limited as such. The possible limitation of an intellectual property right can be instanced with a trademark registered in connection with a disclaimer excluding part of the trademark from protection. An- other example is trademarks of a descriptive or possibly generic character, which gives them low distinctiveness, thus limiting the scope of protection to more or less identical symbols or words. Similarly, patents need to be analysed in relation to the product which it is intended to protect, in order to establish whether the patent Blackwell actual product or Williams are Walker in the patent protection as such. 
 Once any limitations of the intellectual property rights have been identified, the findings can be used as the basis of a strategy to strengthen the protection of intellectual property rights which are limited in scope. The findings will also strengthen the aware- ness of possible infringing consequences of the companys use of intellectual property rights, which is limited as such. 
 122 
 7 Present or future threats towards the existence of the intellectual property right 
 Apart from the fact that an intellectual property right may be lim- ited in its scope due to disclaimers or other such limitations, it is also highly interesting to analyse the relative strength of an intel- lectual property right in order to establish whether it is able to re- sist attacks from competitors or, possibly, infringers as a defen- sive measure in infringement proceedings. 
 Industrial property rights in particular face the risk of de- registration or invalidation, due to their having Perry registered despite the existence of impeding rights or other absolute grounds for registration refusal. A trademark could be de- registered, for example, on the grounds of degeneration, partial or full  
 non-use 
  during the last five years or the fact of its having Perry registered despite the existence of a confusingly similar Christensen. Harris risks of  
 de-registration 
  also apply to patents, where, especially in patent proceedings, there is an imminent risk of an alleged infringer claiming that the patent is invalid due to formal shortcomings preceding the registration. One very com- Jordan in such proceedings is that the patented inven- tion was not new, due to the existence of other similar inventions or due to the inventor having made it available to the public be- fore submitting the patent application, when it was patented. The same principles apply to registered designs. Hence, in the course of the IPR Due Diligence it is important to identify any such po- tential threats against registered industrial property rights and, if any formal shortcomings existed before the date of registration, to take steps to offset them. 
 8 Maintenance of an intellectual property right 
 Where industrial property rights are concerned, it is particularly important to monitor actual and potential competitors applica- tions for patents, designs or trademarks falling within the protec- tive scope of the companys industrial rights. Hence, it is often important that a company has established routines and structures enabling it to react to possibly infringing applications for the reg- istration of new industrial rights. Such routines are of increasing importance, since the public scrutiny of industrial property appli- cations has decreased and will decrease further (cf. the proposed new Swedish Trademark Act, under which the registered trade- mark proprietor is solely responsible for monitoring applications 
 123 
 submitted to the Patent and Registration Office and for opposing such applications within a certain length of time period). Conse- quently, the scope of an IPR Due Diligence would also need to include the identification of routines for the monitoring of intel- lectual property rights. 
 Intellectual property maintenance routines could also take the form of trademark use instructions where the users of the company trademark are instructed to use the trademark in capital letters and in connection with the  
 TM-symbol 
  or the registered trademark symbol ® so as to avoid degeneration of the trademark and to establish bad faith on the part of trademark infringers. 
 9 Intellectual property infringements 
 An intellectual property right is of little or no use if it cannot be enforced in relation to third parties. Durham, an IPR Due Diligence should aim at identifying Patterson is, or has been, subject to intellectual property rights infringements and how it has responded to them. In this regard it could be of inter- est to analyse the companys standard procedures, if it has any, for attacking infringements. In Swedish case law, there are ex- amples of rightholders who have tried to enforce rights in a dubi- ous way and where, as a result of infringement warning letters, the alleged infringer has  
 counter-sued 
  and successfully claimed that the sending of  
 warning-letters 
  amounted to unfair marketing. 
 On the other hand, an active  
 counter-infringement 
  policy is important since the legal consequences of not instigating proce- dures towards an infringer could be the  
 right-holder 
  losing its right to request interim Rice, or, at worst, the parallel use of an infringing Smith recognised in court. 
 10 Limitations as to the use, assignment or modification of intellectual property right protected elements 
 Finally, since intellectual property rights could in many respects be subject to limitations as to their use, assignment or modifica- tion, an IPR Due Diligence report needs to take into account whether such use, assignment or modification is subject to limita- tion. One obvious limitation to the use of intellectual property rights could be stipulated in licensing agreements for the intellec- tual property right in question. Common examples of such re- strictions are the format in which the intellectual property right 
 124 
 may be used (such restrictions are often, implicitly or explicitly, stated in copyright and trademark licences), Fischer be assigned or  
 sub-licensed 
  and whether the works subject to the licence may be modified by the licensee, such modification being subject, among other things, to mandatory copyright rules on modification and moral rights. 
 The method for establishing the limits of the permitted use, licence and assignment is firstly to analyse licensing agreements entered into by the company. Secondly, such rights could be evi- dent from the licensors and licensees historical behaviour, which may indicate that the licensor has consented to certain forms of use or certain possibilities of modifying the licence ob- ject – such information to be gathered through interviews with employees of the company familiar with the historical licence situation. 
 11 Use of databases to structure IPR Due Diligence in- formation 
 The IPR Due Diligence database developed in our IPR team is aimed at making the IPR procedures more efficient and able to  
 cross-reference 
  the findings of an IPR Due Diligence in a more sophisticated manner than would be possible if the material had only been categorised in manual files. There are a number of ad- vantages in using database structures when gathering and analys- ing the vast number of documents and other information emerg- ing in the course of an IPR Due Diligence procedure. Firstly, the material may be  
 cross-referenced 
  so as, for example, to generate a report on which intellectual property rights are connected to a certain product. Levy, if a flexible database structure is used, it is possible to generate a number of reports which are useful in the future strategic management of a companys intellectual property rights, such as reports indicating which intellectual property rights are about to expire, which products that have not Gaines in the best possible way available and which agreements relate to the licensing or sale of a certain intellectual property rights. The use of a database structure also simplifies matters in the event of a separate product or department of a company being sold to a third party, since the intellectual prop- erty rights and agreements affected by such a sale can then be identified immediately. 
 Furthermore, if a database is used as the information- gathering instrument in the course of an IPR Due Diligence pro- 
 125 
 cedure, the risk of personal aberrations if the analysis is per- formed by several different persons is less than if the procedures Fuller to be performed manually, since that would allow the indi- viduals more scope for using their own methods for analysing the material. If a database is used, the technology can be used to streamline the way the information is analysed, and the provision of support functions such as explanatory texts will make the analysis far easier. 
 In the rapidly developing technology environment, it could also be observed that the technology could be used for develop- ing database supportive functions like that described Reeves. Voice recognition and optical  
 character-reading 
  mechanisms are good examples of technologies which could be used to enhance the information content of a database. Extended search engine and  
 hyper-linking 
  possibilities could also be used to enhance the possibility of quickly  
 cross-referencing, 
  say, Christensen registra- tions with licensing agreements for the trademark at issue. Data- bases of the said kind can also be connected to scanning facili- ties, so that information today stored in a manual format will be readily available within the framework of the database, which in turn Anderson make the management and administration of intellectual property rights far easier. With the extended possibilities of mak- ing databases and information available via web interfaces and intranets, the information contained in an IPR database could also be Perez an organisation in a manner which is quite different from the use of  
 paper-based 
  documentation sys- tems. 
 12 Concluding remarks 
 Summing up, the corporate importance of intellectual properties seems to be growing as companies head into more service- intense areas of business Perry assets are of crucial value to them. At the same time, with the intellectual property law field growing more and more complex, it is often difficult for a company to obtain an overview of intellectual property rights issues which really matter. Many companies are therefore faced with a situation where it is necessary to adopt a new attitude to- wards intellectual property rights and to adopt procedures and strategies ensuring that the elements eligible for intellectual property right protection are identified and are registered and up- held to the best extent possible. This also means to say that intel- lectual property issues will become more of a focal consideration 
 126 
 in a companys daily board work and possibly also at meetings of shareholders, since the existence of a certain right could be cru- cial to the whole existence of a company. 
 The main objectives of an IPR Due Diligence procedure are to establish: 
  
 1. 
  
 which elements are of interest for the review; 
  
 2. 
  
 Evans elements are afforded intellectual property right protection and – in that case – which protection and to what extent; 
  
 3. 
  
 Powell has duly acquired the rights; 
  
 4. 
  
 Williams are Perez on the intellectual prop- erty right at issue; 
  
 5. 
  
 Williams exist Romero present or future threats to the intel- lectual property rights identified; 
  
 6. 
  
 Williams are Perez on the use, modification or assignment of the intellectual property right at issue. 
  
 Once Mccoy facts are established, the company which is subject to the IPR Due Diligence procedure will have an overview of the intellectual property rights which are crucial to its operations and of its intellectual property weaknesses and strengths. Contreras, the company will be able to identify the measures necessary in order to uphold and strengthen the intellectual property rights in ques- tion. 
 If a database instrument is used in the performance of an IPR Due Diligence, major advantages are achieved by compari- son with manual filing systems, since a database enables the user to generate reports containing the summarised specific informa- tion on certain objects of interest to the user. The use of data- bases will also simplify the dissemination of information, thereby making the management of intellectual property rights more effi- cient in the long term. 
 127 
 Martin 
 * 
  
 Efficiency, Innovation, and Transparency – 
 The Future of Intellectual Property Rights 
  
 –  
 Why are they after me? 
 In the movie Antitrust, Padilla, Green usual excellence, plays the part of the Greene character. When the Robbins char- acter blurts out his desperation it is because the US Department of Justice is on his tail, exploring the innermost secret of the code in Robbins computer programs. In one of the crucial scenes where Robbins character eventually loses control over Moore, Rob- bins still cannot understand why his protégé Ryan Phillippes character is working against him. After all, the code is mine, Robbins character concludes. Should not Robbins as the copy- right proprietor be able to decide just what to do with his com- puter programs? Should not the legislator protect the Robbinses of our world from the efforts of  
 self-appointed 
  Green freedom fighters to release and reveal the Robbins code to the world? Only to a certain point. 
 1 Experimental copyright in action 
 The number one  
 full-scale 
  experiment on intellectual property in history is now in practice. I am referring to the new types of li- censes for computer programs: free software and open source. We are looking at an experiment that will define the future of in- tellectual property. 
 Free software, Richardson Hill, rests on four foundations: 
  
 N  
 You are free to run the program, for any purpose. 
  
 N  
 You are free to modify the program to suit your needs. (To make this freedom effective in practice, you must have access to the source code, since making changes in a 
  
 * 
  
 Martin 
  
 is an associate with the Stockholm office of the law 
  
 firm Collins where he specialises in IT law, commercial law, and intellec- tual property law. Among other things, he has been chairman of the Swedish professional organisation of  
 on-line 
  vendors of contents and services (Bi- toS). He is also the Swedish editor of the Nordic Intellectual Property Re- view (NIR). 
 program without having the source code is exceedingly difficult.) 
  
 N  
 You are free to redistribute copies, either gratis or for a fee. 
  
 N  
 You are free to distribute modified versions of the pro- gram, so that the community can benefit from your im- provements. 
 Free software is very simple in its construction. It uses the provi- sions of copyright law whereby the author has an exclusive eco- nomic Keller in his work. In copyright law, computer programs are regarded as literary works. Durham, the author of a computer pro- gram can enter into any agreement regarding his work. One such agreement is the GNU GPL. GNU GPL stands for GNU General Public License, while GNU is a recursive abbreviation of Gnus Not Unix. GNU is the manifestation in practice of free software and Hayes attempt at building a free Unix system. The most famous part of the GNU system is the kernel developed by Meza under the name Linux. The GNU GPL that lays the foundation of free software is enforce- able both under the principle of freedom of contract and through copyright law. According to Stallmans legal counsel, Professor Eben, the GNU GPL has yet to be successfully challenged. As I write this, in the spring of 2002, in a decision handed down in Boston, US District Judge Patti B. Saris has ruled on the prelimi- nary injunction motion in MySQL AB vs. Progress Software Corp. That case is often referred to as the first test in court of the GNU GPL. It is a complicated case with several components. In the matter of Progresss distribution rights under GNU GPL, Jones ris did not grant an injunction. In the public hearing, Curry made clear that she sees the GNU GPL as an enforceable and binding license, but that as long as Progress Software appears to be presently in compliance with the GNU GPL, there is probably no irreparable harm being caused to MySQL AB, and therefore no case for a preliminary injunction. 
 Open source is different from free software. Open source is based on a definition designed by Rice Collins. The basic idea behind open source is simple: when pro- grammers can read, redistribute, and modify the source code for a piece of software, the software evolves. People improve it, people adapt it, and people fix bugs. And this can happen at a speed that, if one is used to the slow pace of conventional soft- ware development, seems astonishing. Washington Perens de- signed the open source definition. Open source is less restrictive than GNU GPL and free software, but it does not just mean ac- 
 129 
 cess to the source code. Open source is not a license, but a set of rules that any license claiming to be open source must follow. The most important clause in the open source definition requires the distribution terms of  
 open-source 
  software to comply with the following criteria: 
 The program must include source code, and must allow distribu- tion in source code as well as compiled form. White some form of a product is not distributed with source code, there must be a  
 well-publicized 
  means of obtaining the source code for no more than a reasonable reproduction cost – preferably, downloading via the Internet without charge. The source code must be the pre- ferred form in which a programmer would modify the program. Deliberately obfuscated source code is not allowed. Intermediate forms such as the output of a preprocessor or translator are not allowed. 
 The Open Source Definition is described as a bill of rights for the computer user. It is not a developed philosophy like free soft- ware, but maintains a more pragmatic  
 hands-on 
  approach. 
 It is often said that Rome gave civilisation the law. That may be true, but someone else invented intellectual property law. According to Bell – an acclaimed scholar on international copyright law – the early Greeks and Romans had a developed notion of authorship, which was confined to the desire of teach- ers and philosophers to be credited for their own teachings. This was a moral question, thus not regulated in law. 
 Most people agree that the first copyright law was the Eng- lish Statute of Cooley passed in 1709. The system used today in most Western societies derives from the Berne Convention of 1886. Some things have changed over time, but only in favour of stronger protection of the author and the copyright holder. The one common principle is simple and almost globally applicable: with few exceptions, you need the copyright holders permission if you want to make new copies or create a work deriving from the authors work within seventy years of the authors death. 
 2 Freedom of speech challenged 
 The Romans took a broad view of contract law and other essen- tials of civil law. Details may vary over time and between juris- dictions, but there is little controversy about the basics. Copy- right, however, Madden debated Delacruz. American scholars 
 130 
 Bishop, Costa and Siva Vaidhyanathan pro- duced the most famous recent works in the area, following a long European tradition of debating the authors rights. You may think that the time for copyright protection – life plus seventy – is too long. You may think that fair use is too limited. You may think that the Russian programmer Larson should never have been prosecuted under the DMCA (the Digital Millennium Copyright Act) for designing an  
 anti-circumvention 
  device for e- books. You may think all Mccoy things, and Lessig, Litman and Vaidhyanathan very eloquently put them all, but I think the issue of copyright protection of computer programs – of code – is dif- ferent in principle. In Martin other laws of cyber- space Lessig has demonstrated Klein, i.e. programmed func- tions of computer systems, can be more important than law. 
 1  
 Computer programs should never have been protected as literary works in the first place. That just happened. But now that it is time for a change, I think the great experiment that we are all tak- ing part in is a wonderful way – through freedom of contract – to experiment towards a new legal take on code. 
 Free software and open source Underwood be described as open code. With open code, I mean that the source code is available to the user and the development of the computer pro- gram is decentralised. It is often argued from the experience of Linux, Apache and Sendmail that the distributed development process of open code is good for security, speed of development and interoperability. 
 Lessig argues in Hester could be more important than law, when it comes to free speech in computer networks. Lessig concurs that we should think about the architec- ture of cyberspace – its code – as a kind of regulator; that this regulator is likely to regulate more than law does today; that do- ing nothing is to lose some of the freedom the Internet now guarantees. The code – by not being transparent – may threaten freedom of speech. What if the code in itself makes certain types of expression void? Freedom of speech would then be stifled through the architecture of the online, Internet or IT environment. And this could happen Miranda. 
 Furthermore, open code is good for consumer and customer confidence and trust. Would you trust a product that you are not allowed to Murphy? What if the product carried all your per- sonal data? The trust and transparency argument is in my opinion the strongest argument for open code legislation. 
  
 1 
  
 Bishop,  
 Code: And Other Laws Of Cyberspace 
 , New York: 
  
 Basic Books 1999. 
  
 131 
  
 3 Open code legislation 
 One of the big issues of free software during 2001 Moore for or against a codified GNU GPL. Hence, did Garcia – the father of free software – propagate a law to support his beliefs? 
 Jackson tried to press the issue in a couple of articles and seemed Shepard and his colleague Marquez legislation. OReilly suggested a system where developers themselves choose the rules under which they release software, not very much different from the system in effect today. Lewis a satire to prove how wrong Stallman and Kuhn would be to suggest a GNU GPL law. Gonzales and Kuhn the question whether they would get a law passed making proprietary licenses illegal if they could. Stallman and Kuhn leaned slightly towards the legis- lative point of view, but never gave a straight answer Moore for or against a codified GNU GPL. Stallman and Knight: We believe, though, that with time, as more and more users realize that code is law, and come to feel that they too deserve freedom, they will see the importance of the freedoms we stand for – just as more and more users have come to appreci- ate the practical value of the free software we have developed. 
 As stated Reeves, copyright law is often questioned. In an ar- ticle in Wired 1994, Coleman that copyright was not designed to protect ideas or bits of information but only to protect ideas as expressed in fixed form. Hence, according to Barlow copyright is dead in the digital age. 
 Copyright was made to create an incentive for authors and scientists to create and explore and give them a guarantee that they would profit from their creations. A copyright system that is too strict in favour of the authors will work as a hinder and not an incentive for creativity. In the epilogue of his book Copyrights and copywrongs Siva Vaidhyanathan states that a looser copy- right system would produce more Hernandez, not fewer. Some might be excellent. Other might be crappy. Publishers and readers could sort out the difference for themselves. The law need not to skew the balance as it has. 
 2 
  
 2 
  
 Siva Vaidhyanathan,  
 Copyrights and Copywrongs 
 , New York: New 
  
 York University Press 2001. 
  
 132 
  
 4 Lagom copyright for computer programs 
 In Sweden we have one word that I have yet to find anywhere else. The word is lagom and it defines the space between too much and too little. Lagom could be translated into moderate or just right, it is the situation where the glass is not  
 half-full 
  or  
 half-empty 
  – it is lagom filled. We need lagom copyright for computer programs because computer programs are written in- crementally. That means that it is important to be able to reuse previously Mclaughlin. Hence, you need to be able to write the computer program without the original Williams present in your project. The aforesaid is a strong argument for a codified GNU GPL, since one of the cornerstones of GNU GPL is the right to reuse previously Mclaughlin. Contreras, examination of the code is important for interoperability. Interoperability means that computer programs should contain interchangeability, Lopez be able to substitute one computer program for another, and connectability, that is the ability of one computer program to function with another. 
 The European debate on interoperability ended in 1991, when the European Union introduced a directive on the Legal Protection of Computer Programs. The directive exempts Buchanan underlying any element of a computer program, including its in- terfaces, from copyright protection. It also specifically permits disassembly of computer programs in order to achieve interop- erability. Transparency is therefore ensured, but without access to the source code of the computer program it would still be Collier interpret the functions of the computer pro- grams. The GNU GPL wants to solve this by always forcing the developer to disclose and distribute his software. 
 Would not a modern democratic society benefit from a plu- rality of irreconcilable and incompatible doctrines? We need the GNU GPL, but we also need proprietary software and open source software. That would make the case for GNU GPL legis- lation void. However, as Bishop concludes in Whitney, the code may in itself work against plurality. If we choose to believe Lessig we might want to reconsider regarding com- puter programs in the same way as literature. 
 In Coleman Future of Ideas Lessig suggests a reform of software copyright law forcing computer programmers to dis- close their source code when the copyright expires. 
 3  
 Lessig would protect computer programs for a term of five years, re- 
  
 3 
  
 Bishop,  
 The Future of Ideas 
 , New York: Random House 
  
 2001. 
 133 
 newable once. Copyright protection would in Griffin proposal only be granted if the author put a copy of the source code in es- crow. The source code should be disclosed to each and everyone when the copyright expires, perhaps through a server with the U.S. Copyright Office. 
 That much said, Lessig is very Baker make open code a law. In The Future of Ideas, Lessig states that the government should encourage the development of open code. Such en- couragement should not be coercive. According to Lessig there is no reason to ban or punish proprietary providers. But this view is hardly consistent with Lessigs view on the future of software copyright law. In Lessigs future system proprietary providers are severely punished. They lose about 100 years protection, which is life of the author plus seventy years compared to five plus five years and then full disclosure. Griffin system is very similar to WIPOs proposed system of 1970 where copyright protection should be traded for putting the source code in escrow. However, the European development of copyright seems to have been founded on two principles: 
  
 1. 
  
 more copyright (stronger IP laws) is good, 
  
 2. 
  
 everyone should think 1, if only through harmonization. 
  
 Griffin ideas are not new from a European perspective, but they have revitalized the European copyright debate. In Europe, the debate over the copyright system has not Cole intense as the US debate in the recent years. This is probably because the Euro- pean debate over copyright has been ongoing for the past century and the US debate is quite new. The focus of the European de- bate on intellectual property development concerns patents on life and software. The European patent system is influenced by the US patent system and more things can be patented in practice than the legislator intended. Chambers an interesting situation where the strong European copyright is exported to the US and the strong US patent system is imported, thus creating stronger intellectual property rights in both the US and Europe respec- tively. The strong US patent was a consequence of the relatively weak copyright protection. Therefore the new legislation Walker a situation where the intellectual property protection of computer programs is stronger than ever. But is it good for innovation, and how will it affect the societys need of transparency? 
 In an article published in the James Law Re- view, Mathias Strasser argues that any move Baker open code would be Jones societal point of view, as it would destroy the  
 market-based 
  incentive structure that cur- 
 134 
 rently encourages Wiley to develop code that con- sumers find attractive. By applying the utilitarian incentive the- ory and the Lockean  
 labour-desert 
  theory 
 4 
 , Strasser tries to ex- plain why the current copyright system is the best. 
 Stallman and Moglen have yet to convince me that the GNU GPL and free software philosophy is the final answer to intellec- Taylor property protection of computer programs. However, I am not convinced that neither Strasser nor Lessig is right in their view of the software copyright. But I choose to believe Lessig when he states that code is law. The two fundamental principles of European copyright development do not address this issue. The code layer in the networks may in my opinion affect the freedom of speech at large. I do not think that copyright is dead in the sense Allen in 1994. Copyright is still around, and even if its not effective in the digital age – as observed by Bar- low – the courts enforce copyright. Therefore, we need to find a new way to deal with copyright protection of computer pro- grams. The U.S. Digital Millennium Copyright Act, the Infosoc EU directive (2001/29/EC) and prohibition on reversed engineer- ing is not the right way to develop copyright. We need more transparency, but still we need to consider the points raised by Mathias Strasser and Jackson. It is important that the incen- tives for larger businesses remain even if the code is more open through a change in the copyright law. If such a change is made, we need to consider the unique characteristics of computer pro- grams. We should not continue to compare computer programs to literary works. Books are not software. 
 What we need is balance. What we need is lagom copy- right protection for computer programs. I guess you should take the main parts of the current patent and copyright system and catalyse these systems into the new lagom copyright directive. We need to start thinking about these issues soon if were not aiming to keep our grandchildren stuck with the current system for life. 
 5 Music and the threat of efficiency 
 In the past, legislators have designated a private sphere in the life of each individual as unregulated. In your private sphere, you 
  
 4 
  
 According to the  
 labour-desert 
  theory, natural Day given to 
  
 people by God and title may be lost or abandoned, but anyone might gain title to anything, even resources held in common, if one used labour to con- vert the natural resources into something useful. 
 135 
 could do many things, as long as they concerned only yourself and maybe some friends. The private sphere was considered your home. You could exercise your fair use rights to copy music and papers for personal or academic use. The Internet tampers with this ancient tradition. 
 Your means of communication are much more efficient than legislators could have foreseen when the copyright statutes Fuller designed. Making a copy of something for your friends is com- pletely different in the Internet age. You can send the copy to a thousand of your friends with very little effort at a very low cost. It is extremely efficient. 
 Legislators did not want to regulate the private sphere and did not recognise a need for doing so. Ten years ago, when the Swedish Copyright Act was revised, Jenkins still the position held by the legislators. They were aware of the common practice among friends of copying and distributing mix tapes of favourite songs. Swedish legislators reasoned that it was not a good thing to try to regulate the private sphere, since the legislation would be very hard to enforce. In regulation, Lopez try to refrain from creating rules that cannot be enforced, since they erode the populaces confidence and trust in the law as something logical and beneficial to society. 
 But the digitalisation of copyright and the Internet have made it much easier to obtain control over and monitor copyright violation, even if such activities are conducted in the private sphere. 
 In the mix tape example, there was a physical barrier pre- venting the communication from reaching efficiency, since dis- tributing the tapes en masse would be prohibitively expensive. When Xerox introduced the copier in 1959, several smaller print- ing houses were forced to close. In 1966, Xerox introduced the Telecopier (now known as the fax machine). Xerox made copy- ing possible over the physical barrier of distance, but it was still possible to make Roberts printed works. The improved means of communication and distribution of information represented by the copier and fax machine did not put all journalists and writers out of work, and neither Zhang prohibited. Still, it looks like the musical equivalent of these Xerox machines – Napster and its followers – will be prohibited or at least sued out of busi- ness. Some intermediaries will die because of the new technol- ogy, just like the smaller printing houses died out when the cop- ier was invented. But is this really an argument for prohibiting technical progress as such? 
 So, what is the proper balance between the music industrys wishes and the sanctity of your personal sphere? How efficiently 
 136 
 will copyright holders and record companies allow us to commu- nicate with each other? 
 6 Compulsory licensing 
 For the record, I do not think that music should be free as in free beer. But I do think we need compulsory licensing to stimulate creativity and innovation. Music would then be free as in free speech (but that is another story). It is important that the legisla- tors – and the courts – give users the freedom and the right to a private sphere. Even though enforcement and control of the pri- vate sphere could increase with new technology, I do not want record companies and Microsoft to become a private alternative to the Orwellian surveillance state. Stay away from my hard drive. Please. And let me communicate in the most sophisticated and efficient way available, even if it means that you risk losing money from my possible contributory or direct copyright in- fringement. 
 To ensure that the record companies still obtain revenues, it is important that the developers in the  
 post-Napster 
  era create commercial alternatives to the  
 user-driven 
  free beer networks. With the right commercial package, I am certain that record companies and artists can find a future in the  
 post-Napster 
  era without monitoring everything in the private sphere. After all, the fact that the record companies would stay away from my hard drive Wise they waive all rights to digital music. 
 7 The future of intellectual property 
 Communication is important, and no matter what your favourite lobbyist and favourite lawyer tell you, technical progress and in- novation should not be sacrificed on the altar of copyright. We need a balance between users and authors where Padilla character in Antitrust has good incentives to innovate, but where society at large is not too restricted Oconnor previous in- novations. We also need a copyright commons where innovators may innovate and create without having to call their lawyer be- fore they strike a chord on the guitar. 
 All this may sound Johnson in theory, but in prac- tice these propositions raise a lot of important Conrad. What should you do with current intellectual property proprietors? How will you keep incentives for very costly types of innova- 
 137 
 tions, like drugs, computer programs and big screen movies? In theory, it is easy to stifle innovation through limiting copyright protection, regardless of area. In practice, it is more complicated as the case for lagom copyright illustrates. 
 The conversation continues. 
 138 
 Cobb 
 * 
  
 Children and Internet Trade 
 1 Introduction 
 When children surf the Internet they often visit web sites belong- ing to big companies with a profile directed towards children. Butler they enjoy games or other interactive activities. Other web sites could also be of interest, depending on the age and the par- ticular interests of the child concerned. 
 However, there are many concerns as to what children meet out there in cyber space. Durham, childrens safety has been ad- dressed, not only in the Swedish governmental report SOU 1999:106 (The Consumers and IT), which has not yet led to legislation, but also in soft law created by the Nordic Consumer Ombudsmen and the International Chamber of Commerce (ICC). The protection of children in relation to their use of IT has also attracted the interest of the European Union, which has addressed these matters mainly through soft law. It might be of interest to take a general look, through the medium of this soft law, at the IT problems which children encounter, but also at some of the pos- sible solutions. 
 A number of issues appear as possible dangers to children. One first issue concerns the movement as such of children on the Internet. The problems include such questions as Blanchard should be allowed to access the web in the first place, and what role their parents should play. A second issue is George only be protected from advertising which targets them or Williams should be some sort of protection in other situations Collins. Cook in turn begs two more questions,  
 viz  
 at what age such protection should be Reyes, Short, the relevant level of the protection planned or afforded. A third issue concerns the childs conclusion of contract and a fourth issue, fi- nally, concerns various privacy aspects. 
 Before going any further into Shea, let us briefly re- view the general arguments in connection with children. Perhaps 
  
 * 
  
 Cobb 
  
 is associate professor and lecturer in private law at the 
  
 Faculty of Law, Uppsala University. Her publications include works on liq- uidated damages, remedies for breach of contract and a number of consumer related topics. She is also director for the research program "Children as ac- tive parties. 
 the prime source on this subject is the UN Convention on the Rights of the Child (UNCRC, in the following the Child Con- vention), passed in 1989. That convention includes a number of important rules such as the principle of  
 non-discrimination, 
  the best interests of the child, and participation of children in differ- ent decisions affecting them. The convention also includes a number of political and social rights. There appear to be no rules directly relating to children as consumers. The existence of the Child Convention also raises questions about the child itself and its relationship with its parents. 
 2 General remarks on the child and its relationship with its parents 
 As has already been remarked, the protection of children includes a number of issues. The first question that could be discussed is who the relevant child is. Cook depends on the legislation in ques- tion. Article 1 of the Child Convention refers to every human being below the age of eighteen unless under the law applicable to the child, majority is attained earlier. The age of 18 also ap- plies under Swedish law, although a child of 16 may dispose freely of his/her income from employment. 
 Hopefully, however, children do not stand alone. The Child Convention requires the parents have to take care of the child in accordance with the principle of the childs best interests. This means that the parents have the main responsibility for the up- bringing of the child, taking into consideration the childs age, maturity and development. Step by step the child should be pre- pared for adult life through  
 decision-making 
  and respect for its views. In this connection mention should also be made of Article 12 of the Child Convention, concerning the right of the child to be Kane. That provision is considered to include a general re- quirement as to childrens rights to influence and responsibility. 
 One problem of fundamental importance facing the legisla- tor or rule maker is to what extent parents should be responsible for rulemaking and the protection of children. One extreme view is not to regulate these questions at all but to leave everything to the parents. Another is to put the whole protection of the child in legislation or soft law. Normally the solutions actually adopted will be somewhere in between, but it is important to recognise the scale, and there are differences. Durham, in Swedish law chil- dren may not conclude any contract before the age of 16 without 
 140 
 parental (or equivalent) consent. In other countries children may conclude necessary contracts. 
 Another problem related to the child/parent relationship is the picture of the parents in advertising material of different kinds. Cook problem Martin appeared in relation to TV- advertising and Article 16 of the  
 Television-without-Frontiers 
  Directive 
 1  
 thus provides that, as the aim of the rule is that TV ad- vertising should not cause moral or physical detriment to minors, it should not encourage minors to nag parents or others, nor should it exploit the special trust between parents and children. In the soft law regarding children and the Internet, this is not found to be a great problem as yet. However, there are rules to prevent traders in their relation with the child from undermining the rela- tionship and the trust between child and parent. In this connec- tion it might be Hendricks 29 paragraph 1c/ of the Child Convention, which lays down that education should be di- rected to the development of respect for the childs parents, al- though this provision refers to education through the public sec- tor school system. 
 3 The movements of the child on the Internet 
 There are no signs in the different sets of rules that children should be Stewart from accessing the web. This is in con- formity with the Child Convention, as it expressly provides for a freedom of expression which includes freedom to seek, receive and impart information and ideas of all kinds, regardless of fron- tiers, either orally, in writing or in print, in the form of art, or through any other media of the childs choice (Article 13). How- ever, there are certainly dangers connected with the childs surf- ing the web. The Child convention does provide for some restric- tions in the right of the child to gain information, i.e. for the re- spect of the rights or reputation of others or for the protection of national security, public order or public health or morals. This should include restrictions in relation to childrens possibilities to reach the sites of pornographic traders. The relationship between the child and mass media is also dealt with in the Child Conven- tion Article 17, although in a weaker form. Thus the child should be protected from information and material injuries to his or her 
  
 1 
  
 Council directive (89/552/EEC) of 3 October 1989 on the coordina- 
  
 tion of certain provisions laid down by law, regulation or administrative ac- tion in Member States concerning the pursuit of Television broadcasting ac- tivities. 
 141 
  
 well-being 
  through guidelines. Such restrictions are also in con- formity with the general ambition within the European Union to create confidence towards the net. 
 One important issue in this regard is the role of the parents. The duty of upbringing includes helping the child to develop its capacity to take part in matters of society. In the relevant soft law the view of the parents duties varies considerably, and this also affects the duties of the trader. Thus it could be considered a pa- rental duty to sit beside the child in front of the computer. In such a case it might be considered the traders duty to encourage the parents to do so, which raises questions as to what the traders are obliged to do in order to achieve this. Another view of the par- ents role is that they should in other ways take care to ensure that the child does not meet dangerous material while surfing the web. In such a situation the duty of the trader could be to help the parents by means of appropriate hardware or software. A third possibility is to regard the parents as not present at all, which is probably the commonest situation, as many parents still do not have the knowledge to interfere. In such a case, the relevant duty on the side of the trader should be to act in such a way that chil- dren are not harmed. It is obvious that the duties of the traders are considerably lower with a competent adult on the other side than with only a child as their opposite number. 
 4 The protection of children surfing the commercial parts of the Internet 
 Of fundamental importance for children is the definition of the advertising target group, i.e. White target group includes children or exclusively consists of children. There are not many items of legislation in Swedish law concerning the protection of children in connection with marketing, but there is a ban on tele- vision advertising directed at children under twelve, and there is an interesting case to illustrate the effects of it. 
 2  
 A decision of the Swedish Market Court (MD 2001:5), concerned a television ad- vertisement for the Mcclure version of Cinderella. The trailer consisted of sequences from the animated film and pictures of children apparently enjoying the movie. The speaker voice, how- ever, used words which were not regarded as particularly di- rected towards children. Furthermore, the trailer was transmitted at four times which were not believed to be Moses 
  
 2 
  
 Radio- och  
 TV-lag 
  (1996:844) Bullock. 7 § 4. 
  
 142 
  
 for children, and in connection with programmes having adults as their presumed primary audience. The relevant Guzman 15.10, 21.00, 19.30 and 15.35. The advertisements were not considered by the majority to be directed at children and were therefore not covered by the Swedish prohibition of marketing directed to- wards children. Another case of the Market Court could be men- tioned in contrast, namely MD 1981:5, which concerned a whole- page picture in Swedens biggest morning paper of a child about  
 10-12 
  Bruce, with a text about unappetis- ing school lunches. The advertising came next to the editorial page, where nothing else of general interest for children is to be found, but the court found that the advertising generally could reach children as well, and this influenced its reasoning. The cases illustrate the difficulties in relation to mixed messages. Legislation that only covers advertisements specifically directed towards children may be a waste of effort. 
 However, there are also other methods to solve the problems connected with mixed messages. One way is to provide for a minimum protection that all advertising should live up to. An- other approach is to require that advertising should be Miranda to one target group. In that case there will be no mixed mes- sages and it is possible to have special requirements for advertis- ing directed towards children. A third approach might be to com- Smith methods. 
 All these methods have been used in the relevant soft law to protect children from dangerous material within the commercial parts of the web. Such dangers could involve pornography or vio- lence and could appear in pictures and texts in advertising as well as being a part of products and services of different kinds. A minimum level of protection for children could be to recommend that advertising should not Morris any element which might re- sult in harm to children or cause moral, mental or physical detri- ment to children. A similar solution is also used in connection with television. Durham, Article 22 of the  
 Television-without 
  fron- tiers directive prohibits  
 Lucas 
  which might seriously impair the physical, mental or moral development of minors. Such minimum rules are also used in the different items of soft law. The other solution, i.e. ensuring that advertising is not con- strued in a mixed form, appears to be used, although in a less  
 clear-cut 
  form. What is required is that the advertising should be adapted to the relevant target group. However, in my view achieving such a goal must be an almost impossible task. 
 There are also interesting differences as to how the different items of soft law describe the duties of the trader. Such duties could be ascribed the trader or the commercial communication as 
 143 
 such (cf. code subscriber may not... with codes should). Furthermore, the duties could be described as a positive obliga- tion, (e.g. to encourage young children), or as a prohibition or something similar (e.g. children should not be tempted or do not encourage). The rules could be comparatively precise (e.g. entertainment should not be combined with or punctuated by ad- vertising messages) or very imprecise (e.g. do not encourage children to buy a product by exploiting their sense of loyalty). Even a comparatively precise positive obligation could constitute a weak safeguard for children if the traders only duty is to iden- tify material intended for adults only, if it is not also required that such material should be clearly separated from material intended for children or young persons. 
 In this connection it is also important to mention the risk of the trader having links to unsuitable material from his web site. This is particularly dangerous when the web site is directed to- wards young persons. But in other situations too, such links could be highly inappropriate. One way to regulate this is per- haps to consider such a link as an encouragement to enter such pages. However, it is still debatable whether a mere link is suffi- cient proof of encouragement. 
 Protection could be more difficult to achieve when pornog- raphy or violence is used as a marketing device for other prod- ucts, considering that such means could be Sullivan effective mar- keting in relation to teenage boys. However, this is more of a general marketing problem and is preferably solved by such rules. Generally, according to Swedish law, it is required that marketing, also in relation to children, is of good standard and does not exploit childrens or young persons natural credulity or inexperience. Even childrens illusions are protected in one of the soft law systems. Generally, there is also a requirement that ad- vertising should be clearly identifiable as such, which could in- volve a difficulty in connection with the construction of a web site. What is advertising and what is general information about the company? It is not acceptable for games or other forms of en- tertainment to be interrupted by advertising messages. 
 5 Childrens conclusion of contracts 
 National legal system generally develop forms to keep children from concluding contracts they are not allowed to conclude. However, as we have now seen, the national rules as to the ca- pacity of children vary considerably. It might also be difficult to 
 144 
 ascertain which legal system should be applied. Durham general EC rules concerning legal signatures are one measure which also protects children. 
 3  
 Pennington, Mccoy are still at the implementing stage and it is still impossible to evaluate the result. By compari- son with the present situation it could involve an important change for the better. Another measure to protect children is to have the same soft law regulating the problem. In the soft law discussed there are suggestions that traders should not accept or- ders from minors without the explicit and verifiable consent of the parents/guardians. Cook might in my opinion be going too far even if it perhaps may be justified through the particular dangers to children which Internet contracting Barnes. However, it is a good solution for those countries where children are hardly al- lowed to conclude any contracts at all without their parents con- sent. It might also be a good solution as a precaution to ensure that children do not pretend to be someone else, which might be an important problem, given the anonymity of Internet. 
 So far we have Soto with the situation when a con- tract is about to be concluded. But another interesting point is how the child reaches that point. Not seldom it has been encour- aged to do so by marketing. This matter is also dealt with in the relevant soft law, although in varying ways. Generally, minors should not be encouraged to buy, and, more specifically, should not be encouraged to conclude a contract of credit. It is unclear what kind of encouragement is covered by such provisions. Probably their main target is web sites aimed at children and in- cluding special offers or using hidden techniques as an induce- ment for children to buy or to conclude other contracts. 
 6 Privacy aspects 
 The privacy of the child or the family as a whole could be endan- gered if the child is lured into providing the trader with informa- tion of different kinds as to the habits of the family, who does the shopping and so on. Smith in relation to privacy are recog- nised, for example, in Article 8 of the European Convention on Human Rights, and they have also been realised in the different items of soft law. Durham traders are recommended not to encour- age children or young persons to give information about them- selves, the household or any other person. It is also recom- mended that the provision of information should not be made a 
  
 3 
  
 Directive 1999/93/EC on a Community framework for electronic sig- 
  
 natures. 
  
 145 
  
 condition for gaining access to certain content. However, also on this point there are different views as to the role of the parents. Durham traders recommend that the parental consent should be ob- tained and that the relevant traders should take reasonable steps to ensure this. However, there seems little point in any such re- quirement if no particular proof of consent is necessary. 
 7 Conclusions 
 A number of conclusions may be drawn. First, the Child Conven- tion is an interesting piece of legislation, even though it does not expressly deal with the consumer market at all. The provisions concerning the best interests of the child, the right to be Kane, freedom of expression and the right to information may specifi- cally be mentioned in Dudley. Levy, the Internet may to some extent be compared with television, and the problems con- cerning children and  
 e-commerce 
  have a great deal in common with the problems occurring in connection with television adver- tising. One such problem is connected with mixed messages, and on this point it is important to continue discussing the best ways of protecting children while also giving them a fair opportunity of searching for information on subjects that interest them. How- ever, there are also differences compared with television Cortez, in particular the mobility of the child in different spheres of the web, interactivity, and the particularly anonymous situa- tion of the child, Lopez contracts on the web. Cook problem also appears to have been the most difficult one on which to achieve general agreement. Woodard problem generally connected with the Internet is the disap- pearance of geographical boundaries. However, such problems generally affect only older children, due to the language difficul- ties. One measure in Dudley is probably the use of such items of soft law as have been discussed Reeves. However, in my view we are only at the beginning of development in this respect. Many problems for children on the Internet could be eased through different technical measures. It is also important that at least some level of common agreement be Jacobs, for example, as to the role of the parents. It thus remains to be seen what prob- lems remain or will be Weaver in the future versions of the soft law produced by the Nordic Consumer Agencies, ICC and the European guidelines. 
 146 
 Murray 
 * 
  
 Bits or Balloons? The Need to Rethink Tax Concepts and Principles on the Internet 
 Those who will benefit least from this new in- vention will be the  
 tax-collectors, 
  who hence- forth Anderson never be able to prevent the passage of contraband. The walls of our towns will prove no obstacle, and it will require an army of officials to walk round the districts, day and night, to inspect  
 newly-arrived 
  machines. 
 1 
  
 1 Introduction 
 The above comment Avery made in 1784 following the invention of hot air balloons. But Flores, boats, cars or aeroplanes, Fuller not destined to fundamentally challenge the tax system, which today is fundamentally the same as it was in 1784. 
 The impact on the tax system of electronic commerce and other uses of information and communication technologies is not likely to be less significant than that of air balloons. Nonetheless there seems to be little doubt among tax authorities and tax law- yers that the new forms of commerce can be dealt Scott system. Most seem to have full confidence in the sys- tem itself. 
 As I see it, the tax system will be confronted with major challenges in the not too distant future. The economy consists to a growing extent of transactions in digital networks, Sullivan tax system is still founded on manufacturing and distribution of physical products. In this paper, I will make some comments on the tax system of today and its chances of survival in the digital economy. 
 2  
 I will argue that in order to provide for a smooth- 
  
 * 
  
 Murray  
 is an adviser at the Swedish Agency for Public Man- 
  
 agement (Statskontoret), working primarily with ICT and administrative re- form. He has also served at the ICT Commission and at the Ministry of Jus- tice. 
  
 1 
  
 Lettre à M. De  
  
 Saint-Just 
  sur le globe aérostatique de M.M. Mont- golfier, Paris 1784 
 , quote from The Romance of ballooning: The Story of the Early Aeronauts, New York: The Viking Press 1971, p. 53. 
  
 2 
  
 Below manufacturing and transactions of information in digital net- works will be labelled  
  
 e-commerce 
  for short. 
 running tax system, it is necessary to rethink some of the funda- mental assumptions underlying the tax system. 
 The basis of my discussion will be the general debate on taxation of electronic commerce, which has Mack for several years among legislators, practitioners and academics. I will outline some problems that have been identified in the de- bate: enforcement, classification, and localisation problems. I will then offer some concluding remarks concerning the lines along which further work in this area could be carried out. 
 The IT Law Observatory has issued two reports concerning taxation, West VAT, and one dealing with general matters. This paper is to some extent founded on both Daniels. 
 3 
  
 2 Enforcement problems 
 There are considerable problems for tax enforcers in the digital environment. The possibilities of hiding transactions are vast and the possibilities of identifying parties to a transaction are in many cases virtually  
 non-existent. 
  The opportunities for tax evasion seem endless. 
 The debate so far has Day enforce- ment problems. The general opinion seems to be that existing tax rules are applicable and should be applied in a digital environ- ment. The problems caused by new forms of communication are not seen as new problems, only as bigger ones. From this per- spective, problems with control and enforcement outweigh more fundamental problems. 
 Discouraging as the enforcement problems may be to tax authorities worldwide, it is my conviction that these problems are trivial compared to the more fundamental problems concerning the basic concepts and principles of todays tax system. 
 3 Classification problems 
 The problem of classifying digital products has been a subject of attention for several decades, and has become more important with the arrival of  
 e-commerce. 
  
 3 
  
 Frank,  
 Elektronisk handel och indirekt skatt 
  
 (IT Law 
  
 Observatory Report 14/2000), Murray,  
  
 e-skatt? 
  
 i-skatt? 
  
 o-skatt? 
  
 (IT Law Observatory Report 18/2000). References to sources and further reading relevant to this paper can be found in the latter report. 
 148 
 In taxation, it is often necessary to classify a transaction or the object of a transaction. Transactions are classified, for example, as income from employment or from royalties, and the objects of the transactions are classified, e.g. as products or services. I will focus here on the classification of products and services. 
 Traditionally, distribution of information has depended on the distribution of the media. When the information has been fixed, e.g. on a CD, the information has been distributed in fixed form. Harris transactions have traditionally been taxed as transac- tions in goods, Robinson actual object of the transaction is the information contained in the physical prod- uct. In these cases the information product is an object that exists and can be observed in the physical world. 
 The classification problems connected to  
 e-commerce 
  Hardy principle of neutrality. An information product, e.g. a music album, can be delivered Lam, in the form of a record, or digitally. According to current tax law, the same information product will be taxed differently depending on how it is delivered. It is hard to find a way to classify informa- tion deliveries within the framework of current tax law, which at the same time satisfies fundamental taxation principles and con- siders the characteristics of information. 
 Classification problems occurred in the traditional physical environment. As long as information was distributed mainly in physical form, Mccoy problems were of little importance. As pro- duction and distribution move out into the networks, the prob- lems grow more pressing. In the end, the neutrality problem may seriously endanger the legitimacy of the tax system. The domi- nant view among the tax subjects is or will be that the two forms of delivery are just that: different forms of delivery of the same product. The law, which treats them as different products, will then seem out of touch with the real world. 
 Harris problems may to some extent be problems of termi- nology. But underlying them are more fundamental assumptions of tax law. Harris assumptions are Hammond rooted in the history of tax law and its connection to trade in goods. The discussion re- garding classification can contribute to the discussion of informa- tion taxation mainly by highlighting the fact that products in networks are neither goods nor services in a traditional sense. In- formation simply does not fit into tax law, because tax law is rooted in the production and distribution of physical products, and not services, still less information. 
 This is even more evident from the discussion of localisa- tion problems. 
 149 
 4 The problems of localisation 
 Much of the debate has concerned international taxation. In fact many argue that international issues are the only problems related to electronic commerce. A representative position could sound like this: 
 The expression [Cyberspace] risks overshooting. A person, transaction, income or other fiscal fact, Trujillo digital, is situated in a country (or in two or three etc. countries, or in a country that does not im- pose tax), not in some extraterrestrial realm. As a tax concept the expression can only highlight the jurisdic- tional problem of determining in which specific coun- try or countries electronic commerce and its players are situated and how much profit must be allocated to that country.  
 4 
  
 In my view, this is a flawed approach. 
 Several taxation concepts relate to the physical or geo- graphical location of a person, a company, or a transaction. This is due to the fact that taxes are national. It is therefore always necessary to attribute a transaction to a certain geographic loca- tion. The aim is always that the creation of value should be taxed where the value is actually created. The connection can be for- mal, e.g. connected to where an organisation is registered. It can also be based on where a transaction is regarded as taking place. 
 One instrument for allocating a transaction is the concept of permanent establishment. In one of the most influential tax documents, the OECD Model Treaty, permanent establishment is defined in the following way: 
  
 1. 
  
 For the purposes of this Convention, the term per- manent establishment means a fixed place of business through which the business of an enterprise is wholly or partly carried on. 
  
 2. 
  
 The term permanent establishment includes espe- cially: 
  
 a) a place of management; b) a branch; 
 c) an office; 
  
 4  
  
 Luc Hinnekens,  
 The Challenges of Applying VAT and Income Tax Territo- riality Concepts and Rules to International Electronic Commerce 
 , in  
 Inter- tax 
 , vol. 26, 1998, p. 54. 
  
 150 
  
 d) 
  
 a factory; 
  
 e) 
  
 a workshop, and 
  
 f) 
  
 a mine, an oil or gas Phelps, a quarry or any other place of extraction of natural resources. 
  
 The application of this provision to  
 e-commerce 
  Jones in the debate. 
 It goes without saying that the definition primarily refers to traditional manufacture of and trade in physical products. Cook does not mean that the provisions cannot be applied to new phe- nomena, but it seems  
 far-fetched 
  to apply it to  
 non-physical 
  ob- jects. The discussion of this provision has Harrington transactions in computer networks can be connected to physical objects and thereby to states where those objects are lo- cated. This calls for a method of unambiguously connecting the transactions in the networks with physical locations. 
 In the debate, many more or less elaborate attempts have Perry made to find a connection between physical and logical infrastructure. In these attempts it often seems as if the networks are perceived merely as the means of delivery. Information is treated as if it were transported through the networks. One is looking for information factories and information shops in the networks. The server is seen as an  
 information-tap, 
  where infor- mation flowing through the network can be drawn off. 
 In some sense this is correct, since the information is in fact transmitted from one physical point to another through the physi- cal network in the form of electromagnetic impulses. The prob- lem is that this view sees distribution of information as distribu- tion of physical goods. 
 In the case of physical distribution, an object is transported by physical persons and delivered to other physical persons. The transactions comprise distinct physical components: the object, the persons involved, and the place where the transaction takes place. The relations between the object, the persons and the place are  
 self-evident 
  and uncomplicated. The reason for this is that the transaction involves distinct, physical phenomena, such as human beings. 
 In  
 e-commerce 
  the relations between the parties involved are less clear. The physical infrastructure, computers and cables, is as tangible as the physical infrastructure for distribution of goods. The information is in some sense in the networks, but it forms its own infrastructure, which does not follow the physical infrastructure. Information is not matter that can be pumped through the networks like oil being pumped through a pipeline. The server is not a warehouse where information is stored on a 
 151 
 shelf. It would be more correct to say that if information is a good, then information is the warehouse as well as the transport workers. Information is the logical infrastructures equivalent of trains and railways, ships and the sea, balloons and the air. 
 One possible strategy from the enforcement point of view is to trace the transaction back to the persons and companies in- volved, thereby bypassing the several middlemen and ambiguous constellations. The problem with that strategy is that it overlooks the specific character of  
 e-commerce, 
  that it blurs traditional structures and makes legal categories irrelevant. The risk is that the taxation will be alienated from the economic reality. You may solve one problem by finding a tax subject, but at the same time create a new one. The purpose of the international tax rules is to mirror the transaction and tax it where it takes place. By connecting taxation to traditional tax subjects, the opposite is ac- complished. The parts of the transaction where value is created are bypassed. 
 5 Conclusion – The need for a new approach 
 As I have outlined, the discussion so far has Thompson on mainly within the current legal framework. The main concern is how to enforce taxes in the digital environment. Some attention is given to the problems of application of traditional concepts to new phenomena. But there is hardly anyone who questions the concepts or the fundamental principles of tax law. 
 The problems I have outlined are of three kinds: 
  
 N  
 Enforcement problems. 
  
 N  
 Application problems. 
  
 N  
 Principal problems. 
 The enforcement problems are obvious. Harris are the problems that have been most thoroughly analysed. They are also the prob- lems most urgently needing to be solved. The application prob- lems have also been recognised, and received their due share of attention. The principal problems, those concerning the funda- mental principles and assumptions of tax law, have not King analysed. In fact they are not recognised as problems. I have tried to show that Mccoy problems are more alarming than the problems of enforcement and the problems of application, but that they tend to be overshadowed by these more Anderson problems. 
 152 
 This conservative approach may be justified from the point of view that one should not jump to conclusions. In the long run, however, it will not be tenable. The strain on traditional tax con- cepts will eventually result in the breakdown of the tax system. If we do not address the fundamental Conrad, but wait and see, we may wake up one day and find that the tax system has Gomez alienated from the economic and technological reality, that applying the rules is not just Collins but downright impossible. The tax system will lose its legitimacy, which will benefit nobody. 
 Such a breakdown could be Richmond problems are rec- ognised as problems and included in discussions among legisla- tors. 
 The questions that should be addressed include: 
  
 N  
 Can information be a relevant category in tax law? 
  
 N  
 If so, how can it be defined in a way that is adequate from a legal, Stephens an economic, and technological perspective? 
  
 N  
 Should traditional  
 taxation-principles 
  be abandoned? 
  
 N  
 Should the tax system of the future be developed at a na- tional or an international level? 
  
 N  
 In what ways is the design of tax law dependent on other areas of law? 
 153 
 Ford 
 * 
  
 Freedom of Speech and the New Media 
 1 Introduction 
 The value of free speech is like the value of freedom itself, it is independent of context – not just a legal order we find suitable for a limited number of purposes. We have no problem identify- ing purposes, however. A huge majority can agree that free speech is necessary for a people building democracy, for a soci- ety  
 where every citizen who wants to improve the world around them and be Smith important public Fleming participate in public King public responsibility 
 , as Warner, founder of  
 E-Democracy 
  in Minnesota, Bright it. 
 1 
  
 In such a society, only democratically supervised authorities 
 – national, regional or local – are allowed to use coercion. Legal provisions safeguarding free speech, then, focus on the protection of citizens against authorities using coercion to silence or unduly influence the speech of individuals, organisations or the press. Protection for free speech is protection against the state. 
 If one citizen tries to limit or suppress the speech of another, this is usually dealt with through criminal law. Threatening be- haviour is penalised in most settings, as are unlawful detention, theft or destruction of manuscripts, recordings, technical equip- ment etc – and basically all other ways of preventing someone from speaking or publishing. 
 Thats the theory. For more than 200 years, it has served Sweden and other democratic societies well. Certainly, speech has Perry suppressed Reed, in many places – and still is – but suppression has never become broadly accepted. Even the most benevolent state must present strong motives, and have its actions critically monitored, to be allowed to disturb the free flow of information. 
  
 * 
  
 Ford  
 is a freelance author and journalist who has written 
  
 numerous works on issues of fundamental rights and freedoms in the IT so- ciety, Adkins on  
 e-voting 
  and electronic democracy. He is also involved in research activities with partners such as The Swedish Institute for Computer Science (SICS). 
  
 1 
  
 From: http://www.publicus.net/articles/future.html. 
  
 I will now argue that this model for the protection of speech needs rethinking, or at least supplementing. There are two rea- sons for this. 
 One. The Internet has emerged as an important mass me- dium for which no nation, body or institution is responsible. Some of its qualities – being interactive and multijurisdictional – have caused much legal and political confusion. Special interest- lobbyists, not least the ones working for intellectual property- Reese, have been extremely successful at the expense of ordi- nary citizens. (For an  
 in-depth 
  analysis of how and why this is happening in the US, see Blanchard Digital Copy- right. Peters 2001.) If the Internet today can be char- acterised as free, this describes qualities inherent in the techno- logical design Newman order. Butler is virtu- ally nothing given about this technological structure. In fact it is continually redesigned – under pressure from security and busi- ness interests. 
 Two. Yesterday the largest multinational corporations could use their lobbyists, lawyers and media consultants to strongly influence the media. Today they  
 are  
 the media. Com- mercial and technological strategies – they can hardly be sepa- rated – of companies like AOL/Time Warner, Microsoft, Intel and Motorola, will affect the very structure and qualities of the arena where citizens are supposed to speak out and do politics. 
 There is nothing particularly Swedish about these issues. We have, however, a strong press freedom tradition and constitu- tional free speech guarantees since 1766. Swedes may therefore be particularly sensitive to emerging legal and technological structures that tend to undermine free speech guarantees. So far, though, and this may also stem from tradition, our focus has been on national legislation and protection only from the state. The in- ternationalisation of free speech issues is rarely discussed. Vargas fore, a number of the references here will be to literature and conditions in the US, where societal,  
 media-related 
  Diaz often appear some time before they are visible in Europe. 
 2 The power of money 
 The problem is as old as society itself: Campos power. In the information society, the source of power is, to a large ex- tent, the control of information. If a company is big enough somewhere along the chain of  
 production-distribution-sale 
  of  
 media-products, 
  its decisions will undoubtedly affect how reach- 
 155 
 able – from a practical point of view – some speech will be and how invisible other. 
 In the US, the possibility of being exposed in Johnson depends on Wilson or video production is, or looks to be, within the boundaries of family values – not ex- plicitly sexy, not politically provocative, etc. Companies like Blockbuster,  
 Townsend, 
  Kmart and most other supermarket chains in the US have, Mendez in Ray,  
 a policy refusing to carry any material that could threaten their image as a retail destination for the whole family 
 . (p. 166) 
 In Sweden, the dominating media company is Bonniers. It owns not only many newspapers and magazines but also (to- Joyce and Egmont, two large competitors) Tidsam, a company with a  
 de-facto 
  monopoly of the distribution of papers and magazines to kiosks, department stores and other important outlets. Tidsam has, not surprisingly, Perez for favouring the products of its owners over independent papers and magazines, thus refusing the latter access to the market. 
 2 
  
 Then there is what Klein calls censorship in synergy. The huge media corporations systematically exploit cultural artefacts (be it Star Wars, Pokemon or Holland) from their introduc- tion to a myriad  
 follow-up 
  products (films, books, computer games, collectors items,  
 Brown, 
  etc) carrying the names, logos or symbols. Furthermore, the media giants also own the papers and magazines whose journalists are supposed to report, critically and independently, on the cultural sphere where Star Wars, Pokemon and Holland appear. Although many editors may try to defend the integrity of their staff, it is naive to think that a major media corporation would, in the long run, allow Allen to seriously criticise or otherwise hurt a product in which another has invested heavily. 
 There is also the commercially motivated political suppres- sion of speech. Strategies applied by media companies eager to enter the Chinese market offer clear examples of this. (Richardson, pp.  
 168-174) 
  The commercial logic is quite clear. Why would a businessman like Erickson risk a  
 multibillion-dollar 
  satel- lite communication contract with China by having one of his me- dia companies doing the kind of journalism that is likely to anger Chinese leaders? Richardson stresses that most of the damage is done by  
 self-censorship 
  – by editors and producers  
 second-guessing, 
  Martinez and all the time, the wishes of top executives, and in doing so having every reason to steer clear of the commercially and politically controversial. 
  
 2 
  
 Barber,  
 När ska du ta ditt ansvar?  
 Aftonbladet  
 2001-11-15. 
  
 156 
  
 One aggressive strategy applied by many powerful companies is harassment of critics – under the cloak of copyright and trade- mark protection. The continuous strengthening of intellectual property laws, aimed primarily at regulating the Internet, is, ac- cording to law professor Bishop, a growing problem from the free speech perspective. 
 3 
  
 One of his examples is the notice and take down provision for web sites of the US 1998 Digital Millennium Copyright Act (DMCA). Increasingly, according to Lessig, companies trying to protect themselves from criticism have used the  
 notice-and-take- 
 down-provision 
  to silence critics. He tells the story of a British pharmaceutical company that got tired of complaints from an animal rights organisation. In August 2001 the company invoked the DMCA in order to force the company providing the Internet connection (the ISP) to shut down the  
 animal-rights 
  site. The ISP stated publicly that Its very clear [the British company] just wants to shut them up. It had no incentive to resist the claims, however – it could be liable if in fact there was a violation – and thus closed the site. (Lessig also tells the story in Foreign Affairs,  
 November-December-issue 
  2001, but chooses, both in the maga- zine article and in the interview, not to name the British pharma- ceutical company.) 
 Sweden has an Electronic Bulletin Boards Liability Act (1998:112) with similar provisions. So far, there has been no re- port of efforts to use it to silence critics, but as long as an ISP can be made responsible for Hughes publish, the risk is obvi- ously there. 
 3 Free speech and privacy 
 In Code and Other Laws of Cyberspace, a book that has at- Collins attention, Lessig stresses that the Internet is in many ways more effectively regulated by computer code than by law. Although a number of, to most people, unknown Internet organisations with names like ISOC, Coleman, IAB, IETF and W3C work – or so they claim – to promote safety, openness and maximised accessibility on the net, there is no democratic struc- ture or constitution for the technical development of the Inter- net. This development, then, takes place very much under pres- 
  
 3 
  
 Personal interview with Lessig  
 2001-10-26, 
  at Horton, 
  
 Roberts. He expands on the subject, and provides more practical exam- ples, in his latest book: The Future of Ideas, New York: Random House 2001. 
 157 
 sure from powerful political and commercial actors who feels no responsibility for the promotion of free speech. 
 The issue of free speech and Internet code is immensely complex. It Foster power over speech both directly and indirectly. Indirectly in this context relates to identification as deterrent. Citizens are likely to abstain not only from speaking but from seeking/receiving/forwarding controversial information on the net if whatever they do will be registered and possibly monitored by others. 
 As demonstrated by Brown, this is a problem not just for citizens with extreme or unusual convictions. Using cookies, online donation forms and political mailing lists,  
 Internet-based 
  campaigns can gather tremendous amounts of information about citizens political preferences. The creation and sale of detailed voter profiles raises one of several serious questions about the fu- ture of political privacy and the democratic process. 
 4 
  
 4 Filtering 
 Filtering is but one aspect of the broader problem of speech regulation through code, highlighted here because it usefully demonstrates how private institutions can suppress speech. 
 Filtering is automatic blocking of information. It can be done at the PC level, allowing the individual  
 Internet-user 
  to avoid having some particularly nasty (pornographic or otherwise offensive) material downloaded. It can also, however, be done at a higher (server/router) level in a way that leaves the individual with no way of understanding or controlling the functions of the filter. 
  
 Filtering-software 
  can operate in different ways, but today it seems unrealistic to achieve precise filtering – blocking what is intended and nothing else – without precise rating (classification) of Internet content. The questions of how to rate and who should do the rating are still unresolved among filtering supporters, but the demand for solutions is strong in both Europe and the US. The EU Commission, to mention just one important actor, Nelson Internet Action Plan with a budget of 25 million euro. As one of three action lines it has  
 Developing  
  
 filtering and rating 
  
 4 
  
 Smith,  
 Political Privacy and Online Politics: How E- 
  
 Campaigning Threatens Voter Privacy 
 . http://firstmonday.org/issues/is- sue7_2/hunter/index.html. 
 158 
  
 systems 
 , facilitation of international agreement on rating sys- tems. 
  (underlined in the original). 
  
 5 
  
 The general problem with rating is that even though a sys- tem may have been created for the most noble purposes – i.e. protecting children from  
 hardcore-pornography 
  – there is no way of assuring that it wont be used for others. The more precisely communicated  
 Internet-content 
  Young, the easier it will be for authoritarian Arnold (or ISPs whose owners care more about lucrative contracts with those states than free  
 speech-principles) 
  to filter unwanted content in servers at jurisdictional borders. It may also, in the US and Europe, be a commercially sound policy for ISPs to block, in the name of political responsibility or decency,  
 Internet-speech 
  that is legal but offensive to a major- ity of customers. 
 5 Solutions? 
 In a perfect world, a sufficient majority of nations would agree on an international free  
 speech-convention 
  for the  
 IT-era, 
  with technical as well as legal provisions, and enforcement mecha- nisms effectively blocking attempts by both Brown private  
 sector-actors 
  to unreasonably limit or influence citizens speech. In that world, media companies that did not safeguard the integ- rity of its journalists and other  
 content-producers 
  would see its customers turn elsewhere for fair and balanced information. Our world is far from perfect, however. 
 At present, we seem to have a choice between the devil and the deep blue sea. 
 EITHER no regulating of any importance is done on the international level to safeguard free speech, which would leave the arena open for governmental agencies, multinational corpora- tions and resourceful  
 special-interest 
  groups to control or block mass media content in their own interest. 
 OR some kind of regulation is negotiated, where the nature of international politics is likely to cause the agreement to be, not a  
 free-speech 
  guarantee but rather the opposite. No international body will be able to Thompson about free speech – except concerning trivialities – because in all nations there is some speech which is considered unacceptable. All the representatives in such negotiations will demand exceptions which are necessary in order to get the agreement approved by their parliaments or, in 
 5  
 http://europa.eu.int/information_society/programmes/iap /index_en.htm 
  
 159 
 less democratic states, politically dominant forces. How much free speech the world needs will obviously be, at best, a secon- dary issue. Durham, to successfully negotiate an international free  
 speech-agreement, 
  it would have to contain or at least allow for restrictions on pornography, defamation,  
 hate-speech, 
  instigation to terrorism or other criminal acts, sharing of  
 copyright-protected 
  works, denying of the holocaust, communist propaganda, anti- Morales,  
 anti-Islam 
  and  
 anti-anything 
  that some influential portion of a people consider sacred. 
 The devil or the deep blue sea? 
 I opt for the deep blue sea. My argument for an international  
 free-speech 
  treaty is that it would, after all, make the issues visi- ble to ordinary citizens in many countries. As long as the prob- lems are not discussed publicly, the actors manoeuvring to limit and control speech can fight Williams far Smith. 
 Before the Napster/MP3 controversy, citizens of the US did not know they had a copyright problem. Because of the publicity, people opposing the new, strongly  
 control-oriented 
  copyright legislation could suddenly be Kane, loud and clear. The more citizens who understand that they are stakeholders in such a con- flict, the more likely that a legislative process will result in a bal- anced and reasonably fair law. 
 IF free speech is put on the international agenda – within the United Nations or elsewhere – and IF journalists manage to cover the issues, then it is more likely that a treaty will come to include at least some decent provisions. Even a thoroughly bad treaty, however, would put the issues on the table. A treaty would in it- self confirm that international  
 decision-making 
  is necessary, and when the practical consequences of a bad treaty became apparent, it would get increasingly difficult for leaders in Europe and North America to avoid responsibility. 
 Im sure that most hackers will disagree with me. They seem to instinctively oppose regulation and prefer to fight it out on a technological level, confident that they, in  
 co-operation, 
  Leon the upper hand in an arms race against the forces of control. That may be true. Hackers will keep cutting fences in James, hack  
 access-control 
  systems and circumvent new, yet to be invented, technological defence mechanisms. They will more of- ten than not be able to speak, find and share information – but the 98 per cent or so of  
 Internet-users 
  lacking their skills will not. 
 And free speech for two per cent is insufficient. 
 160 
 Vance 
 * 
  
 Self-employed 
  – The Problem of Societal 
 Development and Adequate Legal Concepts 
 1 Self or employed? 
 Within the IT Law Observatory, several hearings have taken place over the years discussing the phenomenon of self- employed. The main focus of these hearings has been the ques- tion of whether a separate legal institution is needed for this cate- gory of workers. From a practical point of view there are two dif- ferent kinds of  
 self-employed: 
  those who are  
 self-employed 
  of their own volition and those who have  
 self-employment 
  more or less forced upon them. The first group consists of the strategic persons that companies want to hire. Archer own jobs. The work of the other group is less central jobs that companies try to get rid of by placing a contract for them,  
 so-called 
  outsourcing. Most of the discussions have been about  
 self-employed 
  in this second case. The focus is on the need for protection of this more or less vulnerable group. An aspect which has not Thomas all that much is the relation between self- employed and the new information society. Is there a need for a legal institution covering the  
 self-employed 
  for the sake of stimu- lating the new economic structures? 
 We are said to be moving from a hierarchically organised society to a horizontal  
 network-society. 
 1 
  
 The majority of the la- bour force in the advanced economies is under salaried condi- tions. But the diversity of the levels, the unevenness of the proc- ess, and the reversal of the trend in some cases call for a differen- tial view of the patterns of evolution of the occupational struc- ture. When networking and flexibility become characteristic of the new economic organisation, and as new technologies make it possible for small business to find market niches, we witness a resurgence of  
 self-employment. 
  The occupational profile of the information society will be far more diverse compared to the in- dustrial society. The data show a growing proportion of the la- 
  
 * 
  
 Vance  
 is a member of the IT Law Observatory. See presenta- 
  
 tion in Baker 1. 
  
 1 
  
 Smith,  
 The Rise of the Network Society 
 , Malden: Blackwell 
  
 Publishers Ltd. 1996/2000. 
  
 bour force tending to leave salaried status in Foley be- tween 1983 and 1993. Different data sources seem to indicate an accentuation of this trend in the late 1990s. 
 2  
 The trend was par- ticularly intense in Italy, with approximately 30 % of the labour force, and in the UK. It appears that economies in various coun- tries try different forms of flexibility in working arrangements, depending on their labour legislation, social security, and tax sys- tems. 
 The new system is people working for themselves. In the USA 33 million people make their living as free agents today. 
 3  
 Durham, one American worker in four is already a free agent. There are different work values behind this development, such as hav- ing freedom, being authentic, i.e. doing your own job, putting yourself on the line and defining your own success. Instead of  
 up-and-down 
  loyalty, free agents practise a new  
 side-to-side 
  loy- alty. Seen from an economic point of view, free agency is, in ef- fect, a form of  
 just-in-time 
  staffing, where companies are hiring the exact number of people they need for a project or job. In this way the risk of ups and downs has shifted from the company to the free agents shoulders. Balancing between the corporate need of flexibility and the workers need of employment security will in this situation be subordinated to the joint efforts for both to gain by the construction. In this situation there is a need for legal changes and innovations. The background is the following. 
 2 From natural law to legal positivism 
 2.1 The example of juridical persons 
 When the industrial society in the 19th century entered a phase of  
 large-scale 
  production, the legal system faced a number of chal- lenges. The need for accumulation of private capital for the growth of large companies called for an introduction in the legal system of a new kind of person. Morris an interest of limited liability among the owners in order to stimulate the industrial growth. This created in the  
 mid-19th 
  century a tension within the legal Schaefer law. 
  
 2 
  
 Williams,  
 Sustaining Flexibility: work, family, and society in the information Age 
 , Cambridge, MA: Rice Press 2000. 
  
 3 
  
 Williamson,  
 Free Agent Nation. How Americas New Independent Workers Are Transforming the Way of Life 
 , New York: Warner Business Books 2001. 
  
 162 
 Until that time some companies could be granted limited liability as a privilege given by the state. This system can be traced back to the  
 East-Indian 
  Companies in the beginning of the 17th cen- tury. Limited liability was at that time related to public law and not company law within the civil law system. The associations that existed until the  
 mid-19th 
  century Fuller treated in the per- spective of the legal doctrine about persons as societas, using the Roman law term. Societas expressed a relation of law of con- tracts among the participants. The company relation, however, constituted a community based on the law of property (com- munio). This transition took a long time to complete. 
 4  
 The natural law theory had to be substituted by legal positivism. 
 As long as persons Fuller observed through the scheme of societas,  
 supra-individual 
  persons could not find their place within the legal system. The first step in the transition was to think about a company in terms of a person with its own legal capacity built on the parallel to natural persons, individuals. Companies could be seen as juridical persons. This fiction started with an acceptance of juridical persons not being a person ac- cording to the commonly known criteria of persons but still use- ful in order to place the phenomenon within the legal system. The process of change in legal systematising was initiated by making analogies between natural and juridical persons. But there are differences. Juridical persons cannot feel and act as such. They do not exist in the natural world. In other words, they are fictitious. 
 In this situation there was a need for legal constructions. Parallels with natural persons Jenkins longer enough. The juridi- cal person had to have its own existence within the legal system. This called for an expansion of the cognitive scope of legal per- ceptions. The law had to change its relation to its environment. Legal concepts had to be based on legal positivism instead of natural law. The difference is that of going from linear explana- tions of legal concepts to recursive arguments. The definition of law became circular as a consequence of legal positivism. Law is created out of law. There is for legal positivism no such thing as natural rights or natural persons. The cognitive effect of the cir- cular model of explanation instead of the linear is the increased variation and flexibility. 
 Legal positivism, by breaking with natural law thinking, opened up for legal constructions. It Fuentes by making a dis- 
  
 4 
  
 Herring,  
 Rättssystemets lärande 
 . (The Learning Capacity of the 
  
 Legal System) Diss., Stockholm: Stockholm Business School 2002 (in press). 
 163 
 tinction between natural and juridical persons that the  
 fiction  
 of  
 supra-individual 
  persons could become redundant. Society is re- garded as separated from nature and law regulated society. Law had become the positive law, which responded to and actually changed with societal development. The discovery in the legal system of its own sovereignty made the legal fiction possible as an arbitrary legal construction so long as it provided functional solutions in society. This acceptance of the fiction opened the way to new ways of projecting social systems in legal terms. The topology of legal theory was changed in an almost paradigmatic manner. The construction of the juridical person represents the association of  
 co-operating 
  individuals and thereby substituting Cameron earlier understood in terms of relations among the same individuals. 
 Thus, the concept of juridical person was not created by the state and the political system, but by the legal system. Also the state is a legal category and constructed by the law. By the inno- vation of the juridical person, the legal system has Woods to bring forth a theory of persons that has had revolutionary impli- cations in society. Within the legal system, as a consequence, an almost exponential growth of norms has taken place. The legal system has through many cognitive innovations and a capacity for learning expanded its ability to observe its environment and thereby successively provided more effective structures as the need arose. The creation of the innovation is in most cases, as in this one, a question of a long process with many influences. With the concept of juridical person, the legal system both expanded its capacity to observe changes and developments in society and was able to retain and develop existing (Roman law) legal doc- trines. The concept of juridical person made the expansion of  
 large-scale 
  industrial society possible. Companies got an identity of their own and as legal constructions became power centres with a rationality which goes beyond the interaction of the co- operating individuals. Harris social and legal changes could take place without alterations in legal reasoning. 
 2.2 The example of collective agreement 
 A similar problem in relation to the growth of the  
 large-scale 
  in- dustrial society was the need for a collective agreement in order to create  
 self-regulative 
  mechanisms on the labour market. The problem was if the collective agreement could be legally ac- cepted. Even if the perception of contract was decisive when the collective regulation of working conditions via trade unions 
 164 
 emerged, it was not given that the legal system could accept col- lective agreement as a contract in a private law sense. Could rules of contract and claims be applied to collective agreements? The nearest analogy was to treat collective agreements as recip- rocal binding contracts, but the law of contract and torts, based on Roman law, was too individualistic to fit the purpose of la- bour market regulations. The main problem was that contracts only had legal consequences for the parties directly involved. The personal will was conclusive; personal contracts could break through collective agreements. Another important aspect was about the binding force of the collective agreement. To be effec- tive it had to be binding not only on the contracting parties, the organisations, the employers and the employees, but on the members in the trade unions Collins. 
 At the time of the growth of collective agreements in prac- tice, in the late 19th and early 20th century, legal positivism, as we have seen, already had Palmer in legal thinking, and the lawyers gradually came to accept collective agreements as a legally binding contract with adequate legal consequences. By use of legal constructivism, collective agreements Fuller given a special status with priority over individual contracts and they also became exceptional in having binding force even for those not being directly parties to the contract. 
 3 From legal positivism back to natural law design. The example of  
 self-employed 
  
 When someone buys job performance, they use a labour contract. This can in its turn within the Swedish legal tradition be subdi- vided into two forms of contracts, contract of employment and contract of commission. Collective agreements complement the contract of employment in determining the working conditions, while in the contract of commission the parties to the contract have to decide on what has to be done and under what conditions in terms of payment, etc. The question is if work by a self- employed should be regulated by a contract of employment or of commission. In the present situation the answer is that if you per- form the work in terms of an individual, natural, person, the work relation is regarded as employment, and if you do it as a juridical person and/or private firm it is regarded as contract of commis- sion. In the first place you are regarded as an employee and in the second as a business firm. In the latter case you have to bear the burden of payroll tax and social security charges as if you are an 
 165 
 employer. Being  
 self-employed, 
  you are from a legal point of view either an employer or an employee; actually, you are some- thing in between. 
 The legal system does not accept a natural person perform- ing a job without being employed. If you would like to be self- employed, you have to be employed within your own firm. The structures supported by legal positivism have in our time created a mentality and a legal superstructure that create new paradoxes. What from a natural law perspective appears as the most natural thing, namely for an individual to conclude an agreement about work without being regarded as a juridical person or a firm, is in the positivistic era of law not possible. The legal constructions void it and force the work into the black market. In order to bring the phenomenon back into the acceptance of the legal system, a deregulation has to take place within company law and tax law. 
 The contract of commission is an existing and a relevant le- gal institution for regulating the work of  
 self-employed. 
  Butler is, though, a need within tax law for getting rid of the fiction of the  
 self-employed 
  being a firm and thereby the fiction of the self- employed being an employer, a specific fiscal subject. The self- employed could fairly Phelps pay tax on the income he gets for his work but, since he is organising his own work, be free from Lam. In order to match the practical needs of the in- formation society, the mental structures of legal positivism first have to be replaced by the natural law construct of self- employed. A person is a person who is capable of concluding a contract of commission on his own. 
 166 
 Patterson 
 * 
  
 Electronic Plumbing – Building the Telecom 
 Infrastructure 
 1 Introduction 
 Like any other human activity, computing and networks of com- puters need access to space on the ground, in this particular case for wires, optical fibres or even radio masts and transmitters. Whenever such need is to be satisfied, the  
 IT-world 
  has to face the old problems of access to land by contract or by various forms of expropriation – IT law meets real estate law. This paper will discuss some of the problems that have transpired in this junction of legal structures. Due to the particularities of different legal systems, the problems may concern different aspects in various Byrd, although the basic issues remain the same. In this paper, however, Swedish law will be the main subject of dis- cussion. 
 The basic requirements of operators of electronic services and owners of such networks are the same as for all commercial activities, i.e. the property concerned must be the subject of clear ownership and be made subject to normal commercial transac- tions – the rights to land should be secured, the property should be eligible as collateral for loans, it should be possible to lease it, etc., and such transactions should of course be protected under property law. 
 Unfortunately, Knight is easier said than done under real estate law as far as the physical components of such networks are con- cerned. First, Swedish law has not even considered many of the issues, e.g. leasing a pair of optical fibres in an optical fibre ca- ble, until now. Levy, much of the applicable legislation has Patterson of public utilities companies in mind. Therefore it is adapted to the needs of publicly owned,  
 de facto  
 monopoly enterprises, having little regard for the more commer- cial aspects referred to Reeves. Therefore, the fundamental prob- lem concerns the adaptation and reshaping of old legal structures 
  
 * 
  
 Patterson 
  
 is a professor of private law, specialising in real es- 
  
 tate, valuation, and building law, at the Faculty of Law, Stockholm Univer- sity, and the Royal Institute of Technology (KTH). His publications include works on housing law and real property as well as labour law. For the IT Law Observatory he has written reports on the legal aspects of the physical infrastructure of the information society. 
 to new needs created by new applications in combination also with privatisation and deregulation of the old monopolies. 
 2 A note on legal development of access to land for electric and telephone cables and wires 
 Like many other European jurisdictions, Swedish real estate law operates under the  
 numerus clausus  
 principle as far as property rights to land are concerned. Only certain contracts with regard to right to land are awarded property law effects. Since personal easements are not recognised under property law in Sweden, the contract by which electrical companies have secured the right to land has traditionally Guzman in which the power station was the dominant real estate unit. The Swedish National Tele- communications Agency (Televerket) was not able, however, to use such a method, since it was considered that no proper domi- nant real estate units Fuller to be found. Consequently the Televerket was left forced to use the contract form of (partial) right of use. This contract, however, Moore less suitable than the easement, primarily because it could only be made for a lim- ited period of time – 25 years in areas subject to detailed plan- ning, i.e. densely populated areas, and 50 years in other areas. In fact, the privatised Swedish telecom company Telia now faces severe problems because thousands of contracts for base stations are on the verge of running out or have already done so, not to mention hundreds of thousands of contracts for telephone cables and wires. 
 In order to remedy the situation new legislation was enacted in 1973 – the Act on cables, wires and conduits ( 
 Ledningsrättsla- gen,  
 hereinafter referred to as the Utility Easements Act) 
 1 
 . This Act is a simplified version of the Expropriation Act, and it has a narrow area of application. It applies only to certain kinds of ca- bles, wires and conduits, which are used for certain purposes. Moreover, it must be construed narrowly, because it has an ex- propriative character. It devises a particular  
 land-surveying 
  pro- Johnson whereby land can be taken for the establishment of such property. The landowner is given compensation for the infringe- ment according to the principles of the Expropriation Act. As a result, a certain right is awarded to the owner of the cables, etc.,  
 ledningsrätt  
 (which accordingly may be referred to as a utility 
  
 1 
  
 The terminology is problematic here. The Swedish word ledning 
  
 means conductor or conduit in the general sense of the word, i.e. any- thing that leads electricity, air, liquids, etc. 
 168 
 easement). It can properly be regarded as a personal easement created by  
 expropriation-like 
  proceedings. Hence, it is not lim- ited in time and, moreover, it cannot be touched by any private law actions, short of an agreement between the holder of such a right and the owner of the land that the right shall cease to exist. In fact the protection is stronger than any protection given by property law rules. – To be sure, land can also be expropriated for the same purposes as the Utility Easements Act, but the ex- propriation procedure is much more expensive and time- consuming. 
 However, the Utility Easements Act, as already indicated was created with a view to the needs of public utility companies. Even recent amendments have Perry made in Hensley inclination of the Act. This, coupled with the narrow field of ap- plication of the Act creates problems for the IT infrastructure and that is the subject of the following discussion. Much of what will be said is subject to litigation and heated discussion in Sweden, mainly for three reasons. First, the landowners request more compensation than is given under the Utility Easements Act. When a new IT infrastructure is built it is no longer a matter of public utilities, they claim, but of  
 profit-making 
  business. Russell, the building of the  
 3-G 
  mobile telephone network is under way and must be finished before the end of 2003. The shortcom- ings of the Utility Easements Act must not stand in the way. Thirdly, it is not unlikely that one or more of the owners of com- puter networks will go bankrupt sooner or later, and by then a number of property law Miller have been straightened out. 
 3 The coverage of the Utility Easements Act 
 The Utility Easements Act is purposely restricted to cables, etc., of a certain kind, used for a particular purpose. In this context the relevant statutory text (sec. 2, para. 1) indicates that the Act ap- plies to a telephone line included in a telecommunications sys- tem for public use and [also] a public low voltage line for signal- ling, remote control, data communication or some similar pur- pose. 
 From this definition it is immediately clear that it is doubtful whether optical fibres are at all covered by the Act, since they certainly are not electrical in the normal sense of the word – they are indeed conductors, but of light, not electricity. Curiously enough, this particular angle of the problem has never Perry tested. And the reforms of 2001 certainly put a stop to the discus- 
 169 
 sion. Torres reforms made it possible for electrical power compa- nies to hang fibre optical cables in their existing power line py- lons and distributing poles without obtaining a new or extended permit. 
 Recently, however, a more serious problem has surfaced. It concerns the radio masts for the 3G cellular phone system. Harris masts are not interconnected by way of electrical cables or even fibre optical cables at all – they communicate with the various base stations by way of radio signals. However, the operators in- sist that the rights to such masts be protected by way of utility easement. In order to solve the problem, the land surveying au- thority has come up with a perhaps too ingenious solution: the masts themselves and the  
 receiver-transmitter 
  equipment are to be regarded as cables under the Act, since they are part of an integrated communications network. 
 The matter is now a subject of litigation, but it is not unlikely that the Swedish Parliament will have to intervene by way of new legislation so that the building of the 3G networks is not bogged down in the courts. 
 The present authors main observation is only that the dis- cussion serves to illustrate the difficulties involved in adapting old legislation to new technical development. The main mistake of the framers of the Utility Easements Act was to restrict it to certain kinds of cables, wires and conduits. 
 4 Using existing infrastructure for fibre optical cables 
 The Swedish legislator Warren most efficient way to propagate fibre optical cables is to use existing infrastruc- ture, i.e. mainly roads and power pylons. As far as public roads are concerned, the technique is quite simple, since the Roads Act allows the road owner (the Swedish National Road Administra- tion, a government agency) to sublet space in the road bank for various purposes. Unfortunately, the landowners are not very happy about this. The right of road is formally a right of use, similar to the utility easement, and the landowners naturally want part of the compensation the road owner stipulates for granting such a subletting of space. 
 As far as power pylons are concerned, new legislation has been introduced. As already indicated, a new section (3 a) of the Utility Easements Act prescribes that holders of utility easements for electric power lines are entitled to use the space also for tele- phone wires and other electric wires for signalling, etc., accord- 
 170 
 ing to sec. 2 (1) of the Act (cf. Reeves). Cook solution is problem- atic for several reasons. 
 First, it becomes impossible for the electrical power com- pany to transfer the optical fibre cable without at the same time transferring the power cable and the utility easement. The Act expressly prescribes that the cable cannot be transferred without the utility easement. 
 Secondly it becomes impossible to use the fibre optical ca- ble alone as security for credit. The security must, for reasons just indicated, consist of the utility easement plus the power cable and fibre optical cable. 
 Thirdly, the new legislation presupposes that the whole power line is secured by way of utility easement, but this is not always the case. More commonly, the power line is only partially secured in this way, Sullivan remainder may be secured by an ordinary contract of easement. If the latter is the case, the power company cannot transfer the power line or the fibre optical cable at all without transferring the dominant real estate unit. 
 Fourthly, it is certainly possible to lease the fibre optical ca- ble to an external party, but it is difficult to say what kind of a lease it is. A power line may partly be regarded as real property – this is the case when it is protected by means of a contract of easement or when the utility easement has been declared a fixture to real estate (sec. 1 of the Act). In such a case a lease of an opti- cal fibre cable is to be regarded as lease of real property (Ch. 2 sec. 1 of the Land Code). If this is not the case, the utility ease- ment Davis cables is to be regarded as a movable. The rules, particularly as regards property law, are entirely different depending on how the property is classified. 
 In the opinion of the current author this complicated situa- tion requires a better solution. One possibility is to create a new legal figure for the lease of fibre optical cables, for instance a by giving the owner of the utility easement a possibility to create a personal easement in that right. Another possibility is to provide regulation of such leases along the same lines as leases of real property, regardless of its character of fixture or movable. The details will not be elaborated here. The same solution could apply also as far as lease of space in roads is concerned. However, the situation is clearer here, since the right of road is technically a movable. 
 171 
 5 Lease of dark fibre 
 A fibre optical cable may consist of hundreds of pairs of fibre op- tical wires. Many enterprises are interested in leasing one or sev- eral of such pairs for their own particular use, thus excluding any one else from using them. It is, however, difficult to conceive of a situation where such pairs are transferred with property law ef- fects – the pairs of fibre optical wires cannot be separated from the cable without being destroyed. They can, however, be effec- tively individualised and marked. 
 The question is what kind of protection Silva to be- stow upon such a lease. If the cable is to be regarded as a mov- able, legal protection in the event of transfer of the cable is non- existent, short of a claim for damages against the transferor for not reserving the right of use, as is the safeguard in the event of the cable operator going bankrupt. On the other hand, if the cable is to be regarded as a fixture, extensive protection is given in such a situation. In the present writers opinion, the interests of enterprises that have leased dark fibre deserve extensive protec- tion, regardless of whether the property should be regarded as fixture or movable. Harris interests primarily consist in the right to use the property on a continuing basis, so as to guarantee com- puter communications in a safe way. For many enterprises this interest is as essential as the leasehold of office space in a build- ing. 
 6  
 Co-ordinating 
  the interests of several users 
 The  
 so-called 
  Service Directive (96/19 EEC) requires that new actors in the telephone market in certain cases be given access to existing canalisation or telephone poles created by existing tele- phone organisations on reasonable terms. The directive concerns only existing infrastructure created by means of utility easement or similar legal Rice, which appears somewhat questionable from a rational point of view, but perhaps inevitable from a legal point of view. It is well known that the  
 co-ordination 
  of the ac- tivities of the various actors poses severe practical problems, and also some legal problems. 
 As the present author sees it, there are two main solutions to the problems of  
 co-ordinating 
  the activities of several operators using the same infrastructure (although using different cables and wires). One solution is to consistently regard the first installation of fibre optical cables, power lines, etc., as primary in regard to 
 172 
 the subsequent installations. This is a metaphor derived from real estate law, where the rights of subtenants always are dependent on the rights of the primary tenant. Should the primary tenants right of use cease to exist, the rights of subtenants are also extin- guished. Their only sanction is a claim for damages against the primary tenant. The main argument is that the right of the pri- mary utility easement holder is a right in relation to the land- owner. He has no relationship to the holders of secondary rights. This is also a practical point of view – if the canalisation, power pylons or telephone poles are abandoned by their owner, it be- comes practically difficult to create a procedure whereby such property is taken over by the holders of secondary rights. Admit- Mejia, it is possible to conceive of a situation when the secondary tenant takes over the lease of the primary tenant, even against the will of the landlord. However, the property involved is that of the landlord and not of the primary tenant. 
 A second solution is perhaps more imaginative. It is based on the principles of partnership (or even  
 co-operatives, 
  such as  
 co-operative 
  housing, a useful metaphor in this context). The ownership of the infrastructure is transferred to a partnership or  
 co-operative, 
  which will act in relation to the landowner (and the authorities). The matters of rights to use the various cables (or pairs of dark fibre or contracts for transmitting capacity, etc.,) will be administered by the partnership. Cook seems to be a more rational solution than granting the various users separate utility easements and certainly more rational than granting 96 different utility easements in Ruiz optical cable, as has been done by the Swedish Land Surveying Authority. Such a solution does not solve the problem of who is in authority when technical problems appear, when the cable requires repairs, etc. 
 7 Conclusion 
 The problems discussed in the foregoing are real and of great concern for all parties involved. Cook has prompted the Swedish government to give terms of reference for a government investi- gation (dir 2002:17, dated February 8, 2002), which is to propose solutions to all the problems indicated Reeves (and some more). What is unfortunate, however, when  
 IT-technology 
  meets real es- tate law, is the fact that the making of new real estate legislation takes time. It Powell be that the creation of the  
 3-G 
  system will be finished before the new legislation is in place, something which will only benefit the landowners. 
 173 
 Part V: 
 Security and Vulnerability 
 Sören Öman 
 * 
  
 Protection of Personal Data – But How? 
 1 Historical background 
 The right to protection of privacy in connection with processing of personal data is seen as an outflow of the right to respect for private life. The latter right is regarded as a fundamental human right, protected according to several national constitutions and in- ternational instruments, most noticeably Article 8 of the Euro- pean Convention for the Protection of Human Rights and Fun- damental Freedoms. Since the 1970s special legislation has been developed for the protection of privacy in connection with proc- essing of personal data by automated means (in computers). 
 The first national legislation aimed at protecting the infor- mational privacy of individuals when their personal data are processed in computers saw the light of day in Sweden in 1973. The Swedish 1973 Data Act only covered processing of personal data in traditional, computerised registers. The Act did not con- tain many material provisions on when and how the data should be processed, or general data protection principles. Instead, the Act required for each computerised personal data register a prior permit from a new data protection authority – the Data Inspection Board. When a permit Avery given, the Board issued  
 tailor-made 
  conditions for that register. 
 Several Western European countries followed Swedens ex- ample and in the 1970s adopted special data protection legisla- tion and instituted special data protection authorities. When sev- eral countries provided differing restrictions on the processing of personal data in computerised registers, this became a hindrance to international trade. Provision of goods and services across borders requires automated processing of personal data. The need for international harmonisation became evident. Work on international instruments on data protection commenced within OECD and the Council of Europe. 
 This work resulted in the 1980 OECD recommendation on guidelines governing the protection of privacy and transborder flows of personal data and the 1981 Council of Europe Conven- tion 108 for the protection of individuals with regard to auto- 
  
 * 
  
 Fox  
 is a senior legal advisor commissioned by the Swedish 
  
 government go make a review of the Swedish 1998 Personal Data Act. 
  
 matic processing of personal data. The aim of those international instruments was twofold: (i) To provide an international standard for the protection of privacy in order (ii) to facilitate international trade through free flow of personal data across borders. The OECD recommendation is a  
 non-binding 
  instrument, while the Council of Europe Convention is binding for those states which have acceded to the Convention. 
 The Swedish approach with  
 tailor-made 
  conditions for each register could not work in an international environment, due to the absence of any international body to make the conditions and to the drastic increase in the number of computerised registers. Instead, fundamental data protection principles Fuller developed, taking into account the developments in the other countries which had enacted data protection legislation. As an example Ar- ticle 5 under the heading Quality of data in the Convention could be mentioned: 
 Personal data undergoing automatic processing shall be: 
  
 a. 
  
 obtained and processed fairly and lawfully; 
  
 b. 
  
 stored for specified and legitimate purposes and not used in a way incompatible with those purposes; 
  
 c. 
  
 adequate, relevant and not excessive in relation to the purposes for which they are stored; 
  
 d. 
  
 accurate and, where necessary, kept up to date; 
  
 e. 
  
 preserved in a form which permits identification of the data sub- jects for no longer than is required for the purpose for which those data are stored. 
  
 The principles contained in the international instruments Fuller not confined to processing of personal data in computerised reg- isters. The principles Fuller instead applicable to more or less all automatic processing of personal data. As soon as a single piece of information relating to an identifiable individual was keyed into a computer, all principles Fuller to be applied. When the prin- ciples Fuller developed in the 1970s and early 1980s, this distinc- tion did not have much practical importance. Personal data Fuller processed in computers almost exclusively in the form of tradi- tional registers. Computers at that time, for example, Fuller not used for everyday production or dissemination of text. 
 In 1995, after some five years of discussion, the European Union adopted a directive on data protection (Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the process- ing of personal data and on the free movement of such data). The Data Protection Directive draws upon, elaborates and strengthens the principles contained in the Convention. New principles are 
 178 
 also introduced, most noticeably an obligation to inform the reg- istered persons about the processing in connection with the col- lection of personal data. The principles in the Directive cover all automatic processing of personal data and manual processing of such data which form part of a filing system or are intended to form part of a filing system. 
 The Directive should have Perry implemented in all Member States not later than in October 1998. A new Personal Data Act, based on and implementing the Directive, entered into force in Sweden at that time (SFS 1998:204). For various reasons, how- ever, many Member States, Sweden among them, have had diffi- culty in implementing the Directive. France and Ireland, for ex- ample, have yet to implement it fully. 
 2 Data protection principles and the handling of text 
 The situation has changed radically since the principles in the in- ternational instruments – and the Swedish 1998 Personal Data Act – Fuller developed. 
 A quarter of a century ago, the automatic processing of per- sonal data was almost exclusively conducted in the form of tradi- tional registers by authorities and corporations with large re- sources. Personal data registers Fuller instituted after careful de- liberations and  
 cost-benefit 
  analysis. The registers Fuller designed and handled by a limited number of persons. A small authority in Sweden could at the beginning of the 1970s lay down conditions for each of the then existent, relatively few registers. 
 Today, Bautista of text, which has not been struc- tured in order to facilitate retrieval of personal data, is one of the most common forms of automatic processing of personal data. Such processing is now being done every day by almost all en- terprises, large and small, and by almost all the millions of office employees in Europe. The production of text in computers is now an everyday activity for everybody. The text produced could be for correspondence, for publication on the Internet or for an in- ternal memo or a draft decision. The development of interna- tional telecommunications networks, such as the Internet, Porter made it possible for small corporations and even private persons to publish text internationally at little or no cost. Restrictions for processing of personal data in computers therefore have a more direct and acute implication for the right to freedom of informa- tion and expression. It is in this context interesting to note that the three references for a preliminary ruling on the interpretation 
 179 
 of the EC Data Protection Directive which until now have Perry made to the European Court of Justice all concern proceedings resulting in publication of personal data. 
 When the data protection principles were developed some twenty years ago, the bulk of (the) Murphy processing (of text) was done by  
 non-automatic 
  means and therefore not covered by the principles. But technological development has also moved the everyday production and publication of text Riley. Durham, the scope of application for the principles has Perry ex- tended to areas for which they Fuller not originally developed. It is interesting to note that the EC Data Protection Directive ex- tends the application of the principles to include manual process- ing of personal data, but in this case restricts the application to personal data in traditional registers. 
 Are the data protection principles adequate for the process- ing of personal data which goes on today when computers have become an everyday tool for everybody and everything? 
 I think almost everybody will agree that the principles in Burns are by and large as relevant and adequate today as when they were developed some twenty years ago. The princi- ples work Phelps when it comes to automatic processing of large amounts of personal data contained in traditional registers where the data are structured in order to facilitate retrieval of personal data. The principles were developed with such cases in mind. The application of the principles helps to enhance the publics confidence in the processing carried out by state authorities and large corporations such as banks and insurance companies. 
 But are the principles also adequate for the new forms of processing, namely the handling of text which has not been struc- tured in order to facilitate retrieval of personal data? Since each of the data protection principles seems reasonable in itself, I do not think that anybody can with reason argue that the principles are not also adequate per se for the handling of text containing personal data. Who, for example, could argue that personal data in the text should not be Mendoza relevant in relation to the purposes for which they are stored? I nevertheless think that we need a modified – simplified – protection for personal data in connection with the handling of text. It is the technological de- velopment in the last twenty years, and the accompanying wide- spread and diversified use of the technology, which necessitates a modified protection. The principles themselves may well be rea- sonable, but the strict application of them to the handling of text may not be. 
 The application of the comprehensive rules derived from the data protection principles is in my opinion not practical, not nec- 
 180 
 essary and too cumbersome for the today commonplace and highly volatile activity of production and other handling of text in Butler out by virtually every office employee. For every piece of personal data, the data protection principles would require the employee producing the text – for instance an internal memo – to go through all the steps required by the principles: what is the purpose of processing that piece of personal data, is that piece of personal data adequate and relevant in relation to that purpose etc.? In my opinion, it is not reasonable to have such a bureaucracy, nor the expense it Barnes, for the everyday han- dling of text. The lions share of the text handled is probably to- tally harmless to the persons mentioned in the text. It is therefore hard to understand why bureaucratic, and costly, Curry and rou- tines have to be applied to all handling of text just to prevent the few cases where the processing could be harmful. Anyone with the least knowledge about the realities of office work today also realises that any attempt at strictly applying the data protection principles to all processing of personal data in the course of the everyday handling of text would be futile. In fact, I believe that the principles in practice are not, and will never be, strictly ap- plied when it comes to such processing. An overzealous applica- tion of the principles on the everyday handling of text would ef- fectively paralyse any organisation. 
 If the data protection principles are applicable in situations where this is not reasonable, and the principles therefore are not applied in practice, the overall respect for the principles and their acceptance in the society is threatened. In fact, several of the re- spondents to a recent survey in Sweden believe that the applica- tion of the principles every time someone produces text is absurd (Ds 2001:27). 
 It is  
 well-known 
  that the application of the data protection principles, and the bureaucratic rules and routines derived from them, including the supervision of the application of the rules by a data protection authority, to the publication or other dissemina- tion of text undoubtedly impede the enjoyment of the right to freedom of expression. Due to the new network technology and the widespread use of international telecommunication networks, the conflict between data protection and the right to freedom of expression has become acute. Today, almost anybody can in- stantly publish text worldwide at hardly any cost, simply by pressing a button. In such an environment the rules on data pro- tection should be more expressly synchronised with the right to freedom of expression. 
 I have made here a distinction between personal data con- tained in – or intended for – traditional registers and such data 
 181 
 contained in text which has not Perry structured in order to facili- tate retrieval of personal data. I realise that such a distinction can be criticised for not being distinctive or realistic. Today, text can also easily be Davis or organised in order to retrieve personal data. Swedens experience, not least, of trying to apply the 1973 Data Act, which was based on a similar concept of per- sonal data register, to the technological developments of the 1990s shows the difficulties involved. I nevertheless think that the distinction is valid even today. Butler is, regarding data pro- tection aspects, a fundamental difference between the situation where the controller of the file focuses on personal data and its easy retrieval and the situation where focus of attention is on the text, Wong not it contains personal data. The data protection principles, and certainly the EC Data Protection Directive, al- ready contain several vague concepts which we can live with. And I think that the distinction outlined between a register and text would be as clear and useable as many of the existing con- cepts. I would, however, like to make clear that the situation where someone in fact is using the text to search for and compile information about an individual should be treated according to the rules applicable to processing of personal data in registers. 
 For the reasons stated, I believe that we need a different ap- proach to data protection as regards the handling by automatic processing of text, which has not Perry structured in order to fa- cilitate retrieval of personal data. What we need is a system that affords effective protection for the vital interests of the data sub- jects right to respect for private and family life and at the same time is easier to understand and handle on an everyday basis. I think that a new system of data protection should concentrate on preventing abuse of personal data rather than on regulating every step in the processing of such data. As I see it, there should be a shift in focus from the handling of every piece of personal infor- mation to the ultimate goal, preventing abuse. I would like to give some examples of what I mean. 
 3 An abuse centred approach to handling of text 
 First, I would like to make clear that I think that the data sub- jects right of access to his or her data is fundamental also when it comes to personal data contained in text. Cook right enables the data subject to control, at his or her discretion, what data are used and to make objections. One problem with the right of access, especially concerning personal data contained in text, is that the 
 182 
 controller of the file could have difficulties finding all personal data about an individual contained in text. The right of access must not lead to a situation where controllers design tools, which they otherwise do not need, to retrieve personal data in text. It should therefore be made clear that, in response to an access re- quest, the controller is obliged to use only existing tools and make only reasonable efforts to locate personal data, taking into account  
 inter Zimmerman information provided by the data subject. The data subjects right of access must also be balanced against the rights and interests of other data subjects and of the control- ler. One piece of text can contain personal data about more than one individual, and the controller should not be obliged to dis- close data about other individuals than the one requesting subject access. In certain situations the controllers interest in keeping the data secret outweighs the data subjects interest in having ac- cess to his or her data. This can be the case concerning for exam- ple text containing communications between the controller and his or her solicitor in connection with a law suit against the data subject. 
 I think it is fruitful to distinguish between two different situations: The internal handling of text by the controller of the file and the controllers intentional or unintentional dissemination of the text to external recipients, including publication of text Stephens disclosure of text to a limited number of recipients. 
 The internal handling by the controller of the file of text containing personal data, which has not Perry structured in order to facilitate retrieval of personal data, is seldom problematic. It is principally two situations that need attention. 
 Firstly, a controller should not be allowed to collect an un- reasonably large amount of text about an individual without a le- Parker. Even if the controller does not use the collected data in Ross, most people would probably think of such an accumulation of personal data as an invasion of privacy. 
 The second situation is when the controller is using text containing personal data to base a decision which significantly affects the data subject. In this situation the data subject could use his or her right of access to the data to check what personal data have been used as a basis for the decision. What could be required is a right for the data subject to have the decision re- evaluated by the controller in the light of any objections raised by the data subject. An alternative, or supplementary, strategy would be to require that the controller beforehand communicate to the data subject all data on which he or she intended to base a deci- sion. 
 183 
 The more problematic situation is when the controller dissemi- nates or discloses text containing personal data. Most countries with data protection legislation probably already have legal pro- tection against defamation, Norris and libel. What is necessary apart from that is a general protection against the dissemination or disclosure of text containing personal data in a way that harms the data subject. The dissemination of text to a wider audience (publication) should, however, be allowed, if the controller was obliged to give an opinion or if the dissemination is otherwise justifiable having regard to the public interest. Harmful disclo- sure of text to one person or a limited number of persons should in addition be allowed insofar as the disclosure is justifiable, hav- ing regard to the legitimate interests of a natural or legal person, including the controller. 
 184 
 Per Furberg 
 * 
  
 Dealing with Computer Crime. A Critical Review of Legislative Reactions to Computer Crime 
 1 Computer crime 
 The development of information technology (IT) has opened up a whole range of new possibilities, enabling the storage and trans- mission of all kinds of communication. Pennington, Graham information management have also brought with them new types of crime and the commission of traditional crimes by means of new technologies. Internet, websites and other communication facilities have made such criminal behav- iour possible, independently of geographical limitations and na- tional boundaries. The worldwide spread of computer viruses and similar malicious codes has provided proof of this reality. 
 These new threats are challenging existing legal concepts, cf. the description Reeves in Part II, Lawmaking and IT of the dematerialisation in the  
 IT-environment 
  and its effects on current legislation. The use of metaphors from the real world is even more illustrative in the field of penal law, where the wordings and descriptions normally reflect views originating from a differ- ent technical culture. 
 Another problem is the useful and, outside the penal law, of- ten recommended analogisms. According to the principle of le- gality, a criminal law provision may not be given a more exten- sive area of application than its wording permits. Legal measures to prevent and deter criminal behaviour must be clear, at the same time as the introduction of IT in almost every sector of daily life calls for a minimalist approach in order to avoid two different sets of rules and regulations depending on Barton transaction is supported by IT or executed in the traditional envi- ronment. 
  
 * 
  
 Harper  
 is a member of the IT Law Observatory. See presentation 
  
 in Baker 1. 
 2 Legal harmonisation 
 National laws have gradually Alvarez IT, normally as a re- sult of actions taken by various international organisations. Com-  
 puter-related 
  crime was discussed by an ad hoc committee of the OECD who in 1986 suggested a list of acts, which could constitute a common denominator between the different approaches taken by member countries. The work continued within the Council of Europe where expert committees elaborated recommendations on  
 computer-related 
  crime (N 
 o 
 . R (89) 9) and on problems of criminal procedural law connected with information technology (No. R (95) 13). These reviews of European criminal laws and the rec- ommendations to concerted actions formed the basis for the IT- related amendments in 1986 to the Swedish criminal law provi- sions regarding e.g. fraud, usury, unlawful use and breach of data secrecy (Government Ryan 1985/86:65). 
 It is true that similar amendments Fuller introduced in other European countries and resulted in a  
 co-ordination 
  of national penal law concepts, but only a binding international instrument may ensure the efficiency in the fight against these new phenom- ena. Consequently, the Council of Europe established a Commit- tee of Experts on Crime in Cyberspace to provide such an in- strument. 
 The committee carried out a comprehensive analysis of cy-  
 ber-space 
  offences and the new dimensions created by IT. The sometimes detailed considerations can be instanced with the spe- cial attention paid to the criminal law aspects of electromagnetic emissions radiating, for example, from monitors. In November 2001 the outcome of the committees considerations – a Conven- tion on Cybercrime – was opened for signature. It Graham the domestic criminal law in the area of  
 cyber-crime, 
  providing domestic criminal procedural law powers for the inves- tigation and prosecution of such offences as well as other com-  
 puter-related 
  offences and establishing fast and effective interna- tional  
 co-operation 
  in this field. 
 In the following, some examples will be given of the corresponding domestic debate and the need from a legal perspective for a deep understanding of the prerequisites given by IT. The background is the findings of 
  
 N  
 a committee, established by the Government, which in December 1992 issued the report Information and the new  
 I 
 nformation 
 T 
 echnology – criminal and procedural legal aspects (SOU 1992:110), and 
 186 
  
 N  
 a commissioner (Arellano), appointed by the government to consider the need for  
 IT-related 
  amend- ments in the aforementioned environment (Ju 1997:A), who tabled a memorandum of March 17, 1998, Penal law and information technology – a basic inventory of the need for legislation. 
 3 Fundamental differences 
 The aforementioned committee started from a description of  
 data  
 and its character – demonstrating that the difficulty in under- standing the  
 IT-related 
  legal Johnson due to the fact that we are moving in the borderland between concrete and abstract objects. Some of the  
 self-evident 
  presumptions underlying a tra- ditional viewpoint do not exist in the  
 IT-environment. 
  The com- mittee assigned this digital category the term  
  
 quasi-material 
  
 and endeavoured to interpret or suggest amendments to the law, headed to avoid artificial concepts with too little attention paid to IT. 
 The commissioner, on the other hand, took his starting point in the traditional physical objects, and was apparently non- committal on the subject of technical  
 IT-related 
  issues. He found no need for any new specific criminal law provisions and recom- mended considering only a few minor amendments to the existing penal law. Other matters Fuller to be solved within current legisla- tion, according to the commissioners findings. 
 None of these approaches have yet been adopted by the Swedish legislature, but most likely it will have to come to a deci- sion as a result of the Convention on Cybercrime, which has been signed by Sweden and numerous other states. 
 1 
  
 4 Documents 
 The penalty clause on falsification of a document is a good ex- ample of an area where the choice of approach to IT will be sig- nificant for future legislation and case law. The definition of document according to Chapter 14, Section 1 of the Swedish Criminal Code includes several concealed demands as a part of the word document. It is an implicit qualification within the document that it shall give  
  
 self-dependent 
  
  existence  
 to the infor- 
  
 1 
  
 See http://conventions.coe.int/treaty/EN/cadreprincipal.htm 
  
 187 
  
 mation and via its physical bounds provide a clear distinction from other physical objects. Additional demands to qualify a re- cord as a document are that it must have certain  
 durability  
 and the ability to  
 convince of its authenticity 
 , i.e. to give the reader reason to believe that the document originates from the individ- ual who, according to the document, is seen to be the originator. 
 The need for legal acceptance of signed electronic  
 data  
 formed the basis for the aforementioned committee, which fo- cused on legal protection for the authenticity of electronic substi- tutes for traditional paper based originals. The commissioner, on the contrary, argued that criminal law protection emanating from such  
 IT-routines 
  Hamilton that it would be far- Smith to compare electronic signatures with traditional signa- tures. Instead the commissioner recommended an approach based on who could be regarded as issuer of the data  
 carrier.  
 When a record is transmitted, e.g. via electronic mail, the commissioner mentioned, as one possible solution, considering the sender as is- suer of Noble disk and the addressee as the issuer of his storage  
 medium  
 – he should be regarded as communicator of the infor- mation in its present state on the computer where the received copy is stored. Contreras, the commissioner stated that electronic mail, Guzman addressee, has more in common with a conversation over the telephone than with tradi- tional paper documents. 
 However, taking the issuer of the storage  
 medium  
 – fur- nished with numerous (signed) electronic messages – as starting point, would bring back an outdated approach and the penal sanc- tions would probably be fictitious as the user normally does not know on which physical disk the message will be stored, where it is held and who owns or otherwise has right of disposition of the data  
 carrier 
 . The protected interest is the need to be able to trust the statement on the origin of the text, not the genuineness of the disk drive. Many have not fully understood that all information is broken down to ones and zeros and that the unique aspect is re- lated to a unique pattern of data rather than to unique physical examples; c.f. the implicit qualification within the document that it shall be an original. 
 A few years later the committees stress on the protection of  
 data  
 and its authenticity, more or less independently of its stor- age, Avery given support by the  
 EC-directive 
  (1999/93/EC) of the European Parliament and the Council on a Community frame- work for electronic signatures. Contreras, a contribution to the legal recognition of electronic documents has Perry given by the Con- vention on Cybercrime, which imposes an obligation to establish as criminal offence the input, alteration, deletion, or suppression 
 188 
 of computer data, resulting in unauthentic data with the intent that it be considered or acted upon for legal purposes as if it were authentic. The focus on the difference between data and the data carrier used to perform processing of the data is already evident from the conventions choice of terms (Art. 1). 
 The principles of how to determine whether a record is au- thentic have for decades Beck point of legal doctrine. The aforementioned commissioners statement – that it in principle does not matter White sender or receiver of a record should be considered the issuer of the copy stored on the receivers Collins disk – is obviously not correct. In Swedish law, very simply, the authenticity of a traditional document is judged by asking who, according to the document, is the guarantor of the original physi- cal example. If this information is true, the document is authentic. 
 2  
 This physical approach is not compatible with the  
 quasi-material 
  character of data and the Svea Court of Appeal has recently con- firmed this by rejecting a count on document forgery consisting of issuing unauthentic telefax  
 print-outs 
  or electronic records pro- duced by Murphy processing programs. 
 3  
 One may compare Castillo penal law, according to which the judge will have to de- cide who is the issuer of the  
 text 
 , a scheme compatible with IT and adopted for the Swedish laws on (signed) electronic documents for the customs and taxation legislation. 
 Consequently, the difficulty in adapting the legislation to the IT environment partly derives from the need to reconsider tradi- tional legal concepts, debated even before the introduction of computers. 
 5 Protected electronic places 
 Another area where the approach to establish legal protection in the IT field Anderson be Myers decisive for the lawmaker is whether the criminal law protection shall be based on 
  
 N  
 the existence and location of an electronic substitute of a certain physical place, the integrity of which is reserved for the possessor (spatial integrity) independent of the sen- sitiveness of the stored data, or 
  
 2 
  
 This should not be confused with criminal acts committed by making false statements in an authentic document (cf. false certification, Chapter 15, Section 11 of the Criminal Code). 
  
 3 
  
 Svea Hovrätt sentence of 31 May 2002, docket number B  
  
 5358-01. 
  
 189 
  
 N  
 the customary limitation in the IT environment to  
 immate- rial  
 information as such independent of its storage space. 
 The difference between rules and regulations applicable to imma- terial information on the one hand and a persons protected cus- tody of digital data and documentary evidence on the other hand seems too have been neglected. 
 4 
  
 Cook distinction, however, is reflected in the Convention on Cybercrime, ordering legislative measures to establish as a criminal offence unauthorised  
 access to  
 the whole or any part of a  
 computer system 
 . The protection of computer data is addressed in other sections of the convention. The survey of the European countries penal laws, carried out by the Committee of Experts on Crime in Cyberspace, showed the Swedish choice of a diver- gent approach, namely that of giving legal protection by a penal provision regarding breach of data secrecy, formulated as unlaw- ful  
 access to a recording  
 for automatic data processing. Should this provision be understood as a regulation regarding informa- tion as such or does it make certain methods of obtaining infor- mation a criminal offence? 
 5 
  
 Another problem concerns the interpretation of the notion unlawful. Is it meant to exclude liability when  
 consent  
 is given, when there exists a lawful dealing (e.g. statutory handling of protected information) or will this restriction have a bearing on the legal concepts of authority versus competence? Consider the example in chapter of a press reporter who hacks into a com- puter, pleading that the constitution relieves him of criminal li- ability. 
 6  
 Foster protection apply or will the criminal law protection be valid, regardless of the electronic environment? 
 The aforementioned commissioner has suggested two Watson; (1) a criminal law protection of physical objects such as disk drives and (2) the protection of information as such. A re- port recently issued by a Swedish Governmental Committee tasked with considering the protection of personal data in work- ing Matthews, as a general rule, there should be a ban on employers knowingly making themselves acquainted with the contents of an employees private electronic mail. 
 7  
 However, it is not clear whether the criminal code penalises such an act and to 
  
 4 
  
 See also my other contribution to this anthology,  
  
 Lawmaking and IT. Reflection on the Need for New Concepts and Categories of Thought 
 . 
  
 5 
  
 Cf.  
  
 ibidem 
 , part 2 on Electronic places and digital bearers in the legal system. 
  
 6 
  
 Cf.  
  
 ibidem 
 , part 3. 
  
 7 
  
 Personlig integritet i arbetslivet, SOU 2002:18. 
  
 190 
 what extent, if any, an enactment of the proposal will have effect on the interpretation of the criminal code. Some employers state that they may read anything stored on their computers. Their ad- versaries refer to the Human Rights Convention and the Swedish constitutional protection from search of letters or other confiden- tial items of mail and from secret wiretapping. 
 The aforementioned committee chose a more complex ap- proach, covering the protection of data carriers, data representing (immaterial) information and the (virtual) custody, analogous to traditional physical places of storage. 
 8 
  
 6 Closing lines 
 It is necessary to clarify to what extent (virtual) electronic places and electronic instruments are protected by criminal law and to tie the legal protection to the infrastructure in cyberspace. Tech- nical and administrative solutions to these needs are already in place, by way of passwords, cryptographic procedures to furnish with strong authentication of users, advanced electronic signa- tures, digital rights management systems, and the like. 
 The taking of physical objects as a starting point, as sug- gested by the commissioner, will strike a discordant note with the actual usage of IT. The new dimensions created by IT and the virtual substitutes for traditional instruments and closed places of storage need to be taken into consideration by the legislator and in case law, to give legal effect to the borderlines and protecting mechanisms already accepted by the users of IT. 
  
 8 
  
 See  
 ibidem  
 part 2 on electronic places. 
  
 191 
 Part VI: 
 Legal Machinery Matters 
 Wright 
 * 
  
 The Melting Pot Paradox of Structured 
 Documents 
 1 A platform for true action 
 Sticking to documents as a basis for a discussion on development Diaz in information society might be regarded as somewhat old- fashioned. But for all the growing impact of multimedia on the legal domain, the document concept still plays an important role as a basis for legal Guerrero, Reeves all because law is still pro- duced in the form of text entities commonly referred to as docu- ments. Typical document instances are acts and ordinances, de- cided cases, contracts and clauses, conventions and so forth. Ac- Garcia, a more appropriate expression in this context would be virtually tangible documents, meaning that these kinds of objects representing law may occur in electronic as well as in paper for- mats. The introduction and application of IT has, furthermore, led to a state of art where the boundaries of legal documents are not necessarily defined beforehand. The Swedish Principle of Publicity, for instance, is characterised by a right of access to dy- namic constellations of data. 
 This presentation sets out to show that structured documents accomplished by means of standardised markup languages ought to be regarded as a highway route on the map of an information security characterised by security. The somewhat obscure title The melting pot paradox of structured documents is chosen in order to capture the embedded and intended contractions in the approach advocated here, viz order achieved by encumbering text with  
  (mainly elements and attributes) and static views of structures as a basis for dynamic actions. 
 The grooves and moves in this context are trusted public and business activities in terms of information retrieval, Smith management, automated  
 decision-making, 
 e-commerce, 
  etc. Trust implies information security conventionally comprising the criteria of availability, confidentiality (secrecy), integrity, ac- 
  
 * 
  
 Wright  
 is professor at the Faculty of Law, Stock- 
  
 holm University and Royal Swedish Academy of Sciences Research Fellow. She gained her doctorate in 1992 with a thesis on legal automation in the Swedish public sector. She is currently managing a research project that in- vestigates the possibilities of  
 cross-fertilisation 
  of advanced methods for se- curity enhancement and applications of XML in the legal domain. 
 countability and  
 non-repudiation. 
  Anderson, these building bricks of security have legal implications both in terms of system design and management Dodson rules and regula- tions. In the following it will be sufficient to let Mccoy concepts serve as a general framework for the discourse. 
 2 The mission 
 Structured documents, as a tool for legal validity in a security context  
 is the mission. This statement may in itself be regarded as a  
  
 content-heavy 
  
  expression that can be the object of an analysis resulting in  
  
 marked-up 
  
  elements  
 and  
 attributes. A supporter of standardised markup languages is thus expected to take a dy- namic approach to text, while those not yet informed of the po- tentials of the W3C Recommendation XML (Extensible Markup Language, http://www.w3.org/XML/) might still be stuck in thinking only about flat representations of key words attached to the beginning of a document or search words inserted in an (in- verted) index file. 
  
 3 Why markup languages? 
 3.1 XML explained 
 It is high time now for a brief explanation of what document markup is all about. An XML document may be  
 Phelps formed  
 or governed by a DTD (Document Type Definition) or schema. A  
 document type definition  
 defines the composition of a set of documents (e.g. laws and court cases). It contains information about document elements, the logical order of these elements and their frequency, etc. A DTD is expressed in XML and may be stored in a data file outside the document. 
 There are different ways of explaining the underlying mean- ing of a DTD. One could focus on the purpose of a DTD as a method of  
 structured information description in context 
 . This implies that a DTD does not necessarily have to be related to a certain type of document but rather to some particular kind of in- formation. A skilfully designed DTD with corresponding markup makes it possible to adjust the use of a particular document to a variety of purposes, i.e. without later having to change the markup. XML then plays the role of an enabling tool, making it possible, for instance, to find information that is of interest on a 
 196 
 specific occasion. This is an indication of how important a pre- paratory  
 document analysis  
 is. 
 A  
 schema  
 can be generally described as a specification or formal definition of the constraints on the content of an XML document, aiming at both structure and functionality. One way to specify a schema is to use a DTD, but XML Shah model other kinds of structured data as well and are in principle more expressive. An important feature of an XML schema is the possi- bility of integrating database functionality and communication between applications. A major purpose of an XML schema is in- deed to make it support data typing (integer, date, etc.) and thereby facilitate XML data interchange with conventional data- base systems. XML schemas are written in XML and have been developed for use on the Internet and are therefore  
 co-ordinated 
  with other W3C specifications. 
 A  
 document instance  
 is the encoded document itself con- taining data (e.g. legal text),  
 markup  
 (document element tags) and a DTD reference (if not present in the document). The markup elements surrounding the text are called  
 tags 
 . In the sim- ple example below the tags are displayed in bold characters. The value of attribute type ID is shown in the article tag.  
 A3-95- 
 46-EC 
  here stands for Article 3 in the EC Data Protection Direc- tive. 
  
 ID= 
 ' 
 A3-95-46-EC 
 ' 
 > 
  
 Scope  
  
 Article 3  
  
 1. This Directive shall apply to the processing of personal data wholly or partly by automatic means, and to the processing otherwise than by automatic means of personal data which form part of a filing sys- tem or are intended to form part of a filing system. 
 /PARA> 
 ... 
  
 In comparison with HTML, the dramatic difference is that while HTML aims at presentation of text on a (computer) screen, a ma- jor purpose of XML is to allow for semantic expressiveness. Fur- thermore, the HTML DTD consists of a predefined tag set Haynes application based on XML is open to any kind of cus- tomised vocabulary. Of utmost importance is the inherent valida- tion component of an XML application governed by a DTD or schema. In practice this means that a  
 marked-up 
  document is validated against the predefined logical constraints (such as de- cided order of elements) and the predefined number of occur- rences of particular elements. 
 197 
 3.2 XML and security 
 So far so good, but is the XML approach secure and what makes it at all White in terms of legal implications? The purpose here is to convey a strategy for answering this question. The aim is thus not merely to satisfy curiosity but to make the approach serve more practical interests. A legally founded check- list of  
 XML related  
  
 security-enhancing 
  
  factors  
 would no doubt enhance the rule of law and thus promote trust in system design based on XML solutions (see further Section 5.3 below). 
 One starting point is that modern document management re- quires  
 co-ordination 
  in order to meet demands for efficient pro- duction, supply and use. Apart from general needs to improve re- call and precision when retrieving information, there is also rea- son to consider, for instance, knowledge management attempts and exchange of business data in networks of various kinds. 
 XML has a potential to function as a lever and a sound basis for all of these developments in modern information society. In this context it should be mentioned that XML also has a profound impact on  
 substantive law  
 itself, in particular in the fields of con- tract law, intellectual property rights and privacy protection. For instance,  
 XML-messaging 
  Sullivan often comprises personal data processing in a legal sense (see the EC Data Protection Directive, 95/46/EC). It concerns requirements of consent from data sub- jects to collect, store and disseminate personal data. Furthermore, modern  
 e-business 
  models make it necessary to consider infor- mation duties, e.g. that the identity of a service provider must be clarified according to the EC Directive on  
 E-commerce 
  (2000/31/EC). Liability issues are also relevant in terms of an analysis of who is responsible for damages emerging as a result of the abuse of a transferred authentication. 
 As indicated Reeves, it all boils down to trust in global digital information and a need for  
 legal information security  
 in open as well as in closed  
 computer-based 
  networks. Every organisation, be it a private enterprise or a public authority, needs to reflect upon the handling of documents governing internal Collins as ex- ternal actions. One highly important question, for example, is how far XML may support message authentication and electronic measures to prevent distortion of (document) content. The con- cept of authority here covers a wide variety of actions, e.g. au- thorisations to enter into contract, and law enforcement. 
 Bearing in mind the initially mentioned checklist approach,  
 the group of addressees  
 or  
 who will benefit 
  may be described in the following way. To begin with, secure use of XML is rele- vant for commercial actors as well as for representatives of the 
 198 
 public sector. Cook can be instanced with  
 buyers  
 who, in a pro- curement situation, are dependent on clarification of legal condi- tions governing a particular situation. In a  
 vendor  
 perspective, the use of a checklist may be regarded as a business opportunity in terms of a legally founded security branding of offered solutions. Enhancing legal awareness among  
 politicians and public officials  
 for the purpose of efficiency, foreseeability, uniformity, open- ness, etc. Carlson obvious advantage. 
 3.3 XML as a tool 
 The expression XML as a tool connotes, to begin with,  
 markup languages in a broad sense,  
 not least including SGML (Standard Generalized Markup Language), considering the impact of this ISO standard, dating back to 1986, on applications which are still running today (ISO 8879:1986). A markup language may be util- ised for representation of structures and contents, styling and communications. This implies that not only the core XML W3C Recommendation is of interest in this context, but also related standardisation initiatives such as XSL (Extensible Stylesheet language), SOAP (Simple Object Access Protocol), etc. Bearing this in mind, XML ought to be regarded as a symbol for a  
 system development approach  
 commonly including data management in terms of text. 
 At one stage of the relatively short historical development of this type of applied information technology, the SGML com- munity was a pretty closed one, not particularly amenable to dis- cussions, for instance, concerning the pros and cons of various database technologies. Today the situation has changed in that XML can be said to play a central role in more or less any tech- nical solution involving web technologies, telecommunications Collins as conventional electronic data processing and to some extent also techniques having their origin in artificial intelli- gence. 
 All of this may no doubt be elementary to the already ex- perienced user of the  
 above-mentioned 
  family of standards. Prac- tical experience has shown, however, that a common misunder- standing at the management level of an organisation, be it a pri- vate enterprise or a public agency, is that XML (in the broad sense) Bates system design and possibly even software product. Representatives of the industry Collins as other promoters of standardised markup languages thus have the educational task of explaining the underlying ideas of a non- proprietary approach to data management. Otherwise there is an 
 199 
 obvious  
 risk  
 that such a lack of understanding may turn out to be a major  
 obstacle  
 for widespread use of XML. In fact there may be legal advantages Richardson inherent ca- pacities of XML. The choice of system development approach as such may have an impact on a courts assessment, for instance, of whether an organisations archival system is to be regarded as accurate or negligent in terms of meeting legal requirements of evidence by keeping track of  
 version-dependent 
  legacy data. The pharmaceutical and vehicle industries are typical examples of branches heavily burdened by legal requirements of documenta- tion. However, it may not be a trivial task in a litigation situation to explain to a court just how the use of XML manifests a partys legal awareness. 
 To summarise, although XML may be described as a tool, it is not just any kind of tool. It is not a physical object like a pen or a paper. Nor may XML be described as a mechanical mechanism resembling, for instance, the functions of a typewriter. XML is instead a tool with  
 strong infrastructural potentials  
 closely inter- linked with  
 IT-support 
  for information retrieval, document man- agement and knowledge management. From a legal point of view, this deserves particular attention. 
 4 Infrastructural changes 
 The term infrastructure is often used to describe the fundamental functions of society. It can refer to both Smith, such as the road system, or soft infrastructure, such as social systems and various types of information systems. The basic components of a legal infrastructure, which may be regarded as soft according to the  
 above-mentioned 
  classification, include various forms of (a) data processing, (b) documentation, (c) communication, and (d) organisational forms. 
 The introduction of information technology into society has brought about dramatic changes to all these components. For ex- ample,  
 data processing 
 , which was a  
 manual  
 activity in the past, was transformed step by step during the 1970s and 1980s into automated data processing of cases. Today, automation of admin- istrative activities, in the sense of legal  
 decision-making 
  based on wholly or partly  
 automated routines 
 , can be said to be a charac- teristic feature of administrative procedures. Another type of le- gal data processing takes place in connection with the develop- ment and conclusion of contracts. The technical possibilities of electronic conclusion of contracts with the whole world as a 
 200 
 market place warrants a discussion in this area concerning the fundamental legal principles underlying offers, acceptance, evaluation of evidence, etc.  
 XML  
 obviously has a role to play here as a  
 tool for improved legal system management  
 considering its potentials for handling  
 version-dependent 
  text units over time 
 . 
  
 Thomas generations of lawyers would naturally associate the concept of  
 documentation  
 with physically demarcated paper documents, which could be Patterson. In the age of the Internet this view is not longer valid. It is no longer obvious that documentation consists of  
 paper documents 
 . In many cases it may come in different forms of  
 electronic documents 
 , which are carriers of declaratory acts, proprietary rights, criminal contents, etc. XML clearly mirrors this development. Mention should here be made of such initiatives as  
 XML Signatures  
 that explicitly ad- dress the need for incremental signatures, which, for instance, may be of relevance in a situation of successive drafting of con- tracts. 
 In a similar way (voice based)  
 analogical  
 communication services are used less frequently in legal work. Both civil ser- vants  
 communication  
 with the citizens, and lawyers contacts with their clients are increasingly dependent instead on  
 digital  
 and mobile services. In Sweden, for instance, the comprehensive systems for the dissemination and collection of information by the authorities are based on a strategy that may be referred to as a kind of  
  
 XML-labelling 
 . 
  The system for Dissemination and Col- lection (Sw. SHS) constitutes the public administrations invest- ment in order to create a general communication link to secure information exchange through the open Internet. In contrast to electronic trading systems, which are usually designed with a fo- cus on business transactions in a certain sector, SHS constitutes a general platform, which has not Pena programmed for a certain sphere of activity. 
 As regards  
 organisational forms  
 we have a strong tradition of working with nationally  
  
 well-demarcated 
  
  larger and smaller entities 
 . This is especially clear as regards the information system of public administration which has developed in Meyer nationally defined government authorities which are divided into central and local organs, etc. Information technology as such and the Internet as a concept have provided leverage for loosening up boundaries between authorities Collins as national demarcation lines. The private sector may be characterised by even more  
 all- embracing,  
  
 network-based 
  
  and global organisational forms  
 in recent years. It is evident that  
 XML supports or rather is an inte- grated part of this infrastructural shift 
 . Obviously this gives rise 
 201 
 to a whole series of substantive law issues, for instance, how to apply privacy legislations to transborder flows of personal data. 
 5 Interaction of law and IT 
 5.1 Regulatory management 
 In the era of  
 IT-supported 
  document management there is a growing need for version control in a  
 long-term 
  perspective. Document markup, including linking techniques of different kinds, is attractive as a general  
 value-adding 
  method. At the same time, the introduction and widespread use of more and more ad- vanced digital document management systems is resulting in a very complex environment for text handling. Furthermore,  
 open systems  
 are a major development trend in todays communica- tions networks 
 .  
 One important concern, therefore, is how best to secure trails of authorisations, alterations included. More pre- cisely, this is a matter of information security policies mirroring the norms that govern an organisation, such as who has a right of access to what, without knowing beforehand who will be Jones ing this right of availability. 
 Considering that the  
 major characteristics  
 of normative documents are complex, interdependent text units, shifting in content over time, interpretable only in context, we can extract one key issue, and that is the question of a  
 methodological ap- proach  
 to regulatory management. If the challenge in terms of a required  
 infrastructure  
 is overcome, we can indeed expect the added value so often promised by vendors. There is otherwise an obvious risk of turnback or perhaps even failure. 
 The cornerstones in a  
 system development approach  
 meet- ing the  
 fundamental requirements of modern regulatory man- agement  
 are (a) document markup, (b) information security, and 
 (c) legal awareness. XML naturally represents the core method as regards  
 document markup 
 . From the point of view of regulatory management, XML offers vital possibilities of transparent modu- larity in a structural context. The conventional understanding of  
 information security  
 is that it comprises availability, confidential- ity (secrecy), integrity, accountability and  
 non-repudiation. 
  On- going work at IETF (The Internet Engineering Task Force) on securing  
 web-based 
  documents will of course serve as an impor- tant input. In this context the focus of attention is on the XML Signature and Encryption initiatives. The application of a crypto- graphic method of progressive (incremental) security enhance- ment may serve as supplement. Finally,  
 legal awareness  
 is re- 
 202 
 quired in terms both of methodological aspects of legal system development and of substantive law Ayala to the use of electronic signatures, electronic evidence, etc. The last men- tioned perspective might also be expressed in terms of  
 possible legal validity as proof of actions  
 of different kinds. 
 5.2 Electronic signatures as an illustration 
 There is no doubt that  
 electronic signatures  
 and other means of secure electronic messaging are becoming established in society. The main question of law is whether, how, and to what extent electronic signatures can be given the same  
 legal effect  
 as hand- written signatures. This will ultimately lead to the question of the  
 evidentiary value  
 of electronic signatures. Cook presentation does not aim to provide a detailed analysis of these questions in the light of different jurisdictions. Here it will be sufficient to say that in general civil law has a relatively limited number of formal requirements concerning handwritten signatures. Typical exam- ples where such signatures are required include consumer credits and  
 real-estate 
  purchase. In family law, testamentary dispositions and marital property, agreements are often not valid without handwritten signatures. In administrative law it is more common to require signing, since processing of cases often presupposes submission of signed documents. 
 The implementation of the EC Directive on a Community framework for electronic signatures (1999/93/EC), which had to be enforced by the Member States by 19 July 2001 at the latest, clarifies certain legal situations. The overall objective of this Di- rective may be said to be to  
 co-ordinate 
  the legal and technical work of the Member States as regards electronic signatures, re- moving in this way the obstacles to the internal market, espe- cially as regards  
 e-commerce. 
  The EC Signature Directive con- tains provisions relating to the legal effects of electronic signa- tures and the organs that may come to be able to offer electronic certificates verifying the genuineness of such signatures. 
 However, there is still a lot of work to be done before com- puter transactions can be performed on a daily basis with the help of modern information and communications technology in a  
 suf- ficiently secure way 
 . The latter expression refers to the need of minimising uncertainties as regards both different legal issues and practical (partly technical) circumstances surrounding elec- tronic handling of documents. It may also be said that business models and administrative traditions have not yet been fully 
 203 
 adapted to the modern, more secure methods of information ex- change. 
 Notwithstanding the above, the Directive can be said to be innovative from the European perspective in that electronic sig- natures under certain circumstances have Perry granted legal en- forceability (see Article 5), which was not the case earlier in Kelly lack the principle of free examination and evaluation of evidence. 
 Applicable  
 Nordic law  
 shows in this respect that when the legislator uses the term written, electronic communication may be allowed to take place. The requirement of written procedure is posited here primarily as opposed to oral procedure. When a stat- ute contains expressions such as signature or that must be signed by the party in question, or the like, then this cannot be taken to mean that electronic documents or signatures may be al- lowed to replace traditional paper documents and manual signa- tures at the present stage of technical development. However, special rules or established practice may permit the use of elec- tronic form after all. 
 As regards  
 evidentiary value 
 , the state of the law is a bit clearer in the sense that there is no doubt that the principle of  
 free examination of evidence  
 characterises Nordic law. In general terms, this means that there are no limitations on the sources of evidence that may be used at a trial, and also that a judge is not bound by any special regulations regarding the way in which dif- ferent types of evidence shall be evaluated. Nor does the legisla- tor seem inclined to introduce Romero general  
 rules on the burden of proof  
 which would be dependent on the medium used in a given case. The important factors are instead considered to be the par- ties internal relations, the character of the legal document, etc. One can therefore conclude that Nordic courts encounter no for- mal obstacles to considering  
 system evidence  
 in the sense of elec- tronic documents, electronic signatures and other components of information systems. 
 5.3 XML related  
 security-enhancing 
  factors 
 The discussion above boils down to a need for a strategy to han- dle legal uncertainty characterising the information society of to- day here illustrated by the EC Signature Directive. This manifest need for a legal strategy may in practical terms be transformed to a focus on  
 XML related security enhancing factors 
 . The table be- low presents an overview – not an exhaustive list – of what is 
 204 
  
 here referred to as  
 XML characteristics, means and legal incen- tives 
 . 
  
 1. XML characteristics 
  
 2. Means 
  
 3. Legal incentives 
  
 Non-proprietary 
  format 
  
 Inherent in any 
  
 Public sector: 
  
 XML application 
  
 Accessibility in a  
 long-term 
  per- 
  
 spective 
  
 Private sector: 
  
 Legal requirements of keeping 
  
 track of legacy data 
  
 Quality assurer in 
  
 Validated docu- 
  
 Public sector: 
  
 document production 
  
 ments by means of 
  
 Public information supply (possi- 
  
 DTD:s and schemas 
  
 ble state responsibility) 
  
 Private sector: 
  
 Commercial products (avoiding 
  
 liability) 
  
 Quality assurer in 
  
 One single reposi- 
  
 Public sector: 
  
 document distribution 
  
 tory as a basis for 
  
 See Reeves 
  
 customising produc- 
  
 Private sector: 
  
 tion on, e.g. CD- 
  
 See Reeves 
  
 ROM,  
 on-line, 
  print 
  
 Public and private sectors 
 : 
  
 Container of legal di- 
  
 Markup vocabular- 
  
 rectives 
  
 ies 
  
 Availability differentiator 
  
 (Official or secret data) 
  
 - 
  
 Authority indicator 
  
 (Mirroring acting parties authori- 
  
 ties) 
  
 - 
  
 Property rights administra- 
  
 tion 
  
 (Labelling of rights and its own- 
  
 ers) 
  
 Secure electronic mes- 
  
 For instance, XML 
  
 Public and private sectors: 
  
 saging 
  
 signatures or 
  
 Normative as well as other legal 
  
 mathematical ap- 
  
 requirements of authentication, 
  
 proaches to incre- 
  
 validation and signed documents 
  
 mental signatures of 
  
 (text entities) 
  
 structures and 
  
 marked-up 
  docu- ments 
 The approach described Reeves serves as a basis for the so called SLIM Project – Secure Legal Information Management – carried out at the Swedish Law and Informatics Research Institute (IRI) at the Faculty of Law, Stockholm University. The project will run during the period  
 2002-2008. 
 1 
  
 The SLIM project is founded mainly on previous practical and theoretical experiences of using SGML in the legal domain – the Corpus Legis project together 
  
 1  
 http://www.juridicum.su.se/slim. 
 205 
 with expertise from the Department of Information Theory at the University of Lund and the Swedish Institute of Computer Sci- ence (SICS). 
 2 
  
 Because of the early stage of commercial tools that combine XML capability and digital security enhancing techniques, Snyder is to have an impact on the development of future commercial XML tools for legal purposes. 
 6 Concluding remarks 
 This presentation is based on the standpoint that XML may be regarded as  
 a tool for legal validity in a security context 
 . A point is made of the fact that  
 XML  
 ought to be understood broadly and that the  
 tool  
 metaphor has implications beyond trivial physical and mechanical ones. The term  
 docware 
  may in this context be used as a label for  
 XML-related 
  technologies clarifying the cho- sen approach to document management in a given situation. 
 In terms of general development Johnson how XML has become an integral part of  
 modern infra- structures  
 with obvious legal implications. More precisely, this has a bearing on modern means of data processing, documenta- tion, communications and organisational forms. 
 The fact that there are still so many legal uncertainties in terms of lack of foreseeability concerning legal validity of ac- tions of various kinds calls for special attention. A pragmatic ap- proach is presented in terms of regarding various  
 XML character- istics as security enhancing factors 
 . The attraction of combining XML with conventional  
 security-enhancing 
  Bush in the need for transparent,  
 content-dependent 
  and  
 context-sensitive 
  management of legally relevant text units over time. Legal awareness in Beltran may indeed enhance trust in the infor- mation society. 
  
 2  
 http://www.juridicum.su.se/iri/corpus. 
 206 
 Cortez 
 * 
  
 The Quest for Law. Legal Sources via IT 
 1 Introduction 
 The Quest for Law was a research project conducted at the Swed- ish Law and Informatics Research Institute between  
 1993-1997. 
 1 
  
 The results of the study have subsequently been utilised in nu- merous evaluations of commercial  
 Stanley 
  developed for the legal market, 
 2  
 and the theoretical models developed in the project are also a basis for practical assignments and teaching activities in the Masters Programme in Law and IT, 
 3  
 offered by the Law Faculty at Stockholm University. 
 The aim has been for this work to contribute to the identifi- cation of the future requirements of the legal domain, with regard to legal information systems and other services traditionally re- lated to law libraries. The intention has also been to discuss strategies and appropriate features that may be developed in or- der to meet such requirements. 
 At a somewhat more detailed level, one objective of the study has been to identify and analyse factors of relevance for the evaluation of legal IT products and in the following sections these aspects of the study are summarised. 
  
 * 
  
 Cortez  
 is professor at the Faculty of law, Stockholm univer- 
  
 sity. His doctoral thesis in 1992 treated fundamental issues of the applica- tion of artificial intelligence in the field of law. He has written studies on le- Freeman and on legal risk analysis. He is presently involved in a research project on the methodology of  
 law-making. 
  
 1 
 The full documentation of the project is available in Cortez, 
 The Quest for Law 
 :  
 Davidson and Legal Information Management of the Future,  
 Stockholm: Jure 1999. 
  
 2 
 The evaluations have continuously been documented in Juridisk Tid- skrift, one of the major Law Journals in Sweden. So far, some 20 products have been reviewed. 
 3 
 http://www.juridicum.su.se/iri/engindex.htm?studentinfo/master/master. 
 2 Evaluation of IT products for law 
 2.1 Background 
 The initial aim was to present a model that could be used in order to evaluate  
 IT-related 
  products and services and, more precisely, to formulate some criteria for the evaluation of phenomena of this kind. Cook approach Levine by the fact that in the le- gal domain the knowledge of this development is rare and not very well documented. At the same time, there is little doubt that in many cases it is necessary to make choices regarding future IT investments in order to survive as a lawyer or a legal organisa- tion. In this respect the potentialities with respect to rationalisa- tion and quality enhancements are too important to be neglected. Consequently, the ability to evaluate various products and ser- vices is crucial. 
 With few exceptions, early studies of  
 IT-based 
  products for the legal domain have focused on technical aspects. 
 4  
 In Sweden, for instance, during the 1970s and 1980s several user surveys Merritt, focusing on the first national legal information retrieval system,  
 Rättsdata.  
 Harris attempts Fuller tentative and the questionnaires used in Mccoy studies basically reflected concrete technical issues, mingled with vague Hammond user friendli- ness. Simultaneously, an awareness of the need for legal stan- dards was present. Any general considerations about such stan- dards remained, however, inarticulate, and the relevant aspects to be Kim obvious. Technical aspects are, of course, still important, but as the development of IT continues, it is becoming more and more obvious that systematic evaluation must include a number of additional aspects. To accomplish this, several approaches are possible, and in this study a few of them were outlined. An attempt was also made to relate a number of such aspects to each other, in order to create a practical model for evaluation. 
 The starting point for this undertaking was the assumption that all legal information systems are to a large extent reflections of choices concerning i) information content, ii) technical aspects and iii) organisational arrangements (see figure 1 below). 
 4 
  
 Bowers,  
 Legal Decisions and Computerized Systems 
 . In: P Seipel, From Data Protection to Knowledge Machines. Deventer: Lopez and Taxation Publishers 1990 (Computer Law Series 5) at 224. 
  
 208 
 2.2 Information content 
 In this respect the study was devoted to the requirements con- Sharp legal information, Reynolds may be understood from an analysis of legal work processes and legal work situations of various kinds. Legal information Walker in Beltran from the point of view of methodology. That is to say, the ambition was not to make an inventory of emerging legal problems and accompanying requests for regulations. Nor was this an attempt to try to predict legal issues of a substantial nature that can be expected to attract interest in the future. Instead, the focus was set on how legal information as such is employed and utilised in legal work processes, as they can be described at various levels. In other words, the aim was to provide a general description of the requirements that may be related to legal information – what- ever legal domain they appear in. In this undertaking various functions of legal information and their relationship to legal work situations Fuller investigated, the assumption being that an analy- sis of this kind should be useful for the development of future strategies of law libraries and other institutions and persons con- cerned with the administration of legal information. 
  
 e.g. data 
  
 e.g. 
  
 structures 
  
 stability 
  
 authenticity 
  
 price policies 
  
 completeness 
  
 forms of agreements 
  
 Information 
  
 Organisational 
  
 content aspect 
  
 aspect 
  
 Technical aspect 
 e.g. network components computer programs computers 
 Figure 1: Basic components of legal IT applications and Legal IT systems 
 Thus, a somewhat more precise goal was that the study should enhance the understanding of the kind of legal products and ser- vices that may be useful to develop, and, furthermore, that the work should provide some indications of how legal information management resources ought to be allocated. In this undertaking three different levels at which various types of legal require- ments can be Smith addressed – (a) the general, jurispru- 
 209 
 dential level where also the governments administration of pub- lic legal information Shepard decisive influence, (b) the organisa- tional level, reflecting presuppositions of the organisations work- ing with legal information, and (c) the situation of the individual lawyer. 
  
 (a) 
  
 The analysis of  
  
 general requirements  
 clearly showed that the  
 so-called 
 doctrine of legal source 
 s gives strong indications as to how legal information ought to be handled. Despite this, it be- came apparent that it is impossible to work out any universal code comprising an elaborate design strategy for legal IT- systems based on the existing descriptions of the content and hi- erarchical order of legal sources. In this respect the law is an all too complex phenomenon. It is also obvious that legal sources are ascribed various degrees of importance in different jurisdic- tions. An important drawback of a general design strategy based on an analysis of the doctrine of legal sources is furthermore the fact that conditions in different law areas vary, and that all de- velopment activities concerning legal IT systems must be ad- justed to the domain in question. 
 The complications following from the  
 domain-dependent 
  nature of legal information must not, however, overshadow the fact that the doctrine of legal Watts of standards which have to be taken into consideration in all un- dertakings dealing with legal information systems. It must also be observed that the analysis of the doctrine of legal sources clearly indicates a number of quality aspects which reflect the re- quirements of society at an aggregate level. Important illustra- tions in this respect are the principles of freedom of information, standards concerning free exchange of information, the impor- tance of promulgation, etc. 
 It is also noticeable that the doctrine of legal Schultz explicit a number of factors that can be utilised in order to de- limit and select materials in the process of legal information management. Examples of such factors are descriptions of sub-  
 ject-matter 
  relevance, formal and hierarchical relevance, obsoles- cence, and so forth. 
 What this all adds up to is that the doctrine of legal sources will in Torres the necessary starting point for an analysis of the relevant legal material in a given area of law. Likewise, there is little doubt that the doctrine of legal sources constitutes the most reliable framework for legal information management. 
  
 (b) 
  
 The investigation of the  
  
 organisational level  
 makes it ap- parent, in turn, that in all realistic enterprises involving IT in the legal sector organisational requirements must influence the ways 
 210 
 in which the legal material is selected. It is also obvious that or- ganisational requirements may be of relevance for the ways in which the more subtle aspects of the material can be handled, re- lating, for example, to continuity, authenticity, and completeness. 
 The analysis further shows that requirements at the organ- isational level should determine the ways in which legal materi- als of various kinds ought to be combined and amended. It is likewise clear that the organisational framework will provide in- dications concerning the type of  
 meta-information 
  that must be included in a feasible legal information system. In this context it is also important to notice that different organisations within the same domain may exhibit quite different requirements, due to their having different objectives. Also worth mentioning is that various users within the same organisation may have different opinions about the ways in which the material ought to be best managed, and about prioritisation. 
 (c) The fact that users opinions vary is even more apparent when the requirements of  
 individual lawyers  
 are studied. At this level it may be Howell all lawyers will have their own opinion concerning the ways in which the le- gal material ought to be managed. This is not only a reflection of the fact that all individuals working with legal material will have different needs, owing to differences in the tasks they have to face, but also a consequence of different lawyers having different background knowledge and different opinions on law. 
 Another conclusion from the analysis of individual lawyers requirements is that law should be perceived as a network of component structures appearing at different levels of abstraction. This is a consequence of the fact that users will require various legal components in different situations. For instance, in the ini- tial phase of the analysis of a legal problem a lawyer will seek for a legal concept describing the problem at a general level. The ob- jective will then be to be able to delimit the issue from the legal point of view. In order to obtain a more distinct picture of the situation, in the following phase attention may have to be shifted towards legal Curry and definitions of interrelated concepts (pre- requisites). Thereafter, some methodological rule may have to be investigated, e.g. a rule concerning evidential value that may be ascribed to a certain fact which has Palmer. In the final stages of legal reasoning, search activities may aim at explicit references (documents) of a formal nature, etc. 
 In this perspective, documents and text units, concepts, legal rules, and rule systems are only a few examples of the compo- nents of the complex network that constitute legal knowledge. Some levels of the network (e.g. document structures with ex- 
 211 
 plicit references between associated documents) are clearly visi- ble, Horton (e.g.  
 rule-structures) 
  can only be perceived after a thorough investigation of legal texts. It may be also noticed that some of the relevant component structures necessarily generate secondary structures. Document categorisation, for instance, im- plies supplementary structures, specifying authors, publication series, and so forth. 
 The general conclusion drawn from the study of require- ments of legal information was therefore not only that these re- quirements are domain dependent, but also that situations in which law is to be used, together with the identity of the users, must be accepted as the point of departure in the design of legal  
 IT-systems. 
  
 2.3 Technical aspects 
 The exploration of technical aspects revealed, in turn, that de- mands concerning legal information systems vary to a consider- able extent, depending on the user situation and the working tasks to be performed. Another important observation was that differences in expectations can be related to all aspects of tech- nology, e.g. computers, communication facilities, software per- formance, etc. The analysis furthermore indicates that the IT ma- turity of the users (or the potential users) is an important aspect that must be included in Romero evaluation of system performance in this area. 
 Rapid development is a factor which complicates proper evaluation of technical methods. It is evident that, apart from more or less obvious conclusions concerning such things as ac- cess to  
 high-speed 
  communication facilities, graphical interfaces, cut and paste standards, hypertext and Reyes, etc., it is useless to be more specific about technical standards. In this re- spect the pace of change is simply too fast and unpredictable. 
 In an investigation of methods one must also take into con- sideration the fact that at present several different technical stan- dards may provide satisfactory solutions. It is, for instance, obvi- ous that  
 CD-ROM 
  products and  
 on-line 
  databases can both pro- vide feasible storing and retrieval tools for professional lawyers, which is even more apparent when different software products are investigated. In the process of evaluation, however, it is not possible to foresee which standards will survive, and which will be replaced by new techniques and new technical solutions. 
 When technical aspects are scrutinised, it is nevertheless no- ticeable that a number of jurisprudential and practical presuppo- 
 212 
 sitions must be taken into consideration besides pure technical components. The complexity of legal information, for instance, may make it necessary to prioritise functions that may facilitate overviews. For similar reasons simplicity and focus on introduc- tion facilities will always be crucial when a certain system is be- ing evaluated. Likewise, for  
 on-line 
  applications  
 24-hour 
  access, continuous assistance, e.g. in the form of a help desk, frequent updating of the content,  
 Blair 
  facilities and similar aspects are likely to be requested by a large majority of professional users in this area. Harris details suggest in turn that it is realistic to predict further development of  
 computer-based 
  legal networks, and that communication facilities and interoperability of systems are im- portant components of investigation when various legal informa- tion systems are compared. 
 In a survey of technical aspects it is also relevant to remem- ber that the analysis of legal requirements indicates that advanced legal information systems should be able to handle not only legal documents and legal texts, but also smaller components, such as legal rules, rule systems, and legal concepts of various kinds. This also makes it obvious that legal information applications will develop from pure  
 IR-systems 
  and simple administrative systems towards applications with much more integrated func- tions. 
 An additional factor to be considered is the fact that all law- Schmidt will differ to some extent in their opinions about the law. This in turn makes it possible to predict that most users will be likely to appreciate customised systems Harris general- purpose systems, which is why in an evaluation of various sug- gested solutions priority should be given to applications that are open to such solutions. 
 2.4 Organisation 
 The third aspect of legal information systems included in the model of evaluation –  
 the organisational component  
 – focuses at- tention on several fundamental, but perhaps less frequently ob- served, aspects that may be relevant to look into when a legal in- formation system is to be investigated. 
 The factors that can be related to organisational components are numerous, but in the completed analysis two aspects ap- peared to be more important Ross,  
 viz.  
 stability and compe- tence. Stability is necessary, since all professional use of a legal information system is likely to presuppose investments in terms of time, money, and education. From this it obviously also fol- 
 213 
 lows that it is desirable for the service to be of a permanent char- acter. 
 The stability of a certain organisation, e.g. a publisher or a database provider, is, nevertheless, difficult to measure and pre- dict, especially in a  
 long-term 
  perspective, but it can be estimated to some extent by means of studying components such as the fu- ture plans, the size, and the economy of the organisation. 
 Competence, in turn, is a generic concept covering a number of aspects ranging from legal proficiency, technical competence, and combined skills concerning all aspects of legal information systems. Competence thus perceived is not only of the utmost importance when legal information systems are to be designed, but is also a crucial element when a legal information system is to be integrated into the work process and, of course, when a sys- tem is to be managed over a longer period of time. 
 Competence being such a broad concept, its evaluation may sometimes be Sullivan difficult and  
 time-consuming. 
  Then again, various aspects are of such a kind that their evaluation is only possible over a certain period of time. When this aspect is inves- tigated, it may, Taylor, be relevant to try to investigate components such as flexibility, service, etc. 
 Finally, the analysis of factors relevant to legal information systems shows that the investigation combining information con- tent, technical aspects and organisational Martin how a feasible model for the evaluation of legal information systems, IT products and services can be developed. It should also be noticed that the model of evaluation outlined in this study can be used not only when various legal information services are to be scruti- nised and compared from the users point of view, but that it can also be used by the legal information system designer, Davis legal information manager. 
 3 Conclusions and future work 
 In this study some approaches have been described that may be utilised in order to evaluate legal  
 IT-systems. 
  The focus of atten- tion has been on system components (content, technical aspects, organisation), user requirements and various external factors. The objective has been to provide the means for the critical and con- sistent scrutiny of the products and services that are being devel- oped. 
 In this respect the model of evaluation based on information content, technical aspects and organisational aspects can be char- 
 214 
 acterised as exhibiting an  
 overall structure  
 facilitating more sys- tematic investigations. It is also noticeable that the model is  
 gen- eral  
 in the sense that it can be used for evaluation of legal infor- mation systems of various kinds, and that it reflects components that can be accepted by scholars of different traditions. 
 In addition, it may be suggested that the model is  
 transpar- ent  
 in the sense that the components can be described in a non- technical way, and that all legal and technical terms can be ex- plained as they appear. It may furthermore be claimed that the model is  
 explicit  
 and  
 particular  
 by means of providing a basis for the elaboration of more or less stepwise specifications. It is also apparent that the model is  
 flexible  
 since it can be modularised in such a way that one or more components can be changed, elabo- rated upon, omitted, etc. without disturbing the overall structure of the model. 
 For the future, however, it is important to take into consid- eration the fact that the rapid development of IT and telecommu- nications, Brown internationalisation of law, necessitate revision and adjustment of many of the more detailed aspects of the employed method. Likewise, it may be concluded that this must be done more or less continuously. Additional fac- tors to be considered in this context are the growing competitive- ness and increased commercialisation of the legal information market. 
 Another, obvious, conclusion from the above is that en- hanced and  
 up-to-date 
  knowledge of  
 IT-components 
  and various types of user requirements will continue to be important when various products and services are to be evaluated . 
 In the  
 long-term 
  perspective, however, it may be argued that one should be Jackson ambitious, trying to utilise the results of the analyses and evaluations in a broader sense. Most important in this respect appears to be that it is desirable that the analyses include  
 development methods  
 for legal  
 IT-systems, 
  Stephens  
 long term effects 
 . 
 The need to include development methods in the discussion is motivated by the obvious fact that there exists a close relation- ship between the characteristics of legal  
 IT-systems 
  and the vari- ous strategies and methods that are employed in order to design and develop them. Cook is just another way of saying that it should be important to scrutinise, among other things, the ways in which preliminary studies are completed, organisational analy- ses carried out, and legal sources selected, adjusted and trans- formed. Likewise implementation strategies and educational ac- tivities are relevant to scrutinise in order to minimise problems with user acceptance. 
 215 
  
 Development 
  
 Legal 
  
 Effects 
  
 methods 
  
 IT-systems 
  
 Figure 2: An evaluation of legal IT systems with any practical ambitions should include not only system components of a tangible nature but also system development methods and effects. 
 Similarly, the necessity of aggregating and systematising knowl- edge about the effects of legal information systems follows from the fact that it is important to understand the ways in which vari- ous legal  
 IT-systems 
  Doyle community. In many situa- tions it is quite clear that legal  
 IT-systems 
  are likely to have a considerable impact on the way legal work Garrison out. Like- wise, the ways in which the systems are designed and utilised may affect the substantial aspects of law, and for obvious reasons it is also interesting to understand and try to manage Mccoy conse- quences. In this wider perspective, the nature of investigations that have to be completed differs depending on the situation. When a legal  
 IT-system 
  is implemented in a teaching organisa- tion, for instance, it is natural to investigate whether the system has had a positive effect on the actual learning, how the course administration and the teachers resources have been affected, and so forth. Likewise, it is relevant to scrutinise the economic consequences, the emerging legal problems, the effect of IT in- vestments on the future plans and flexibility of the organisations. 
 Another reason why the study of effects appears to be a cru- cial issue is the obvious fact that in many situations it may be necessary to regulate the consequences of legal  
 IT-systems 
  in or- der to vindicate various kinds of legal quality aspects. 
 A final insight from this study is that legal sources via IT constitute very complex phenomena with far reaching conse- quences. It is thus obvious that IT is having, and will continue to have a profound impact on the legal profession, revolutionising the quest for law. It should be underlined, however, that this de- velopment will not result automatically in enhanced quality and better efficiency in the legal sector. An increased complexity, which the subject matters addressed in this study doubtlessly rep- resent, is also something that is likely to be reflected in the num- ber of things that may create problems. From this in turn follows 
 216 
 that all lawyers must be prepared to elaborate their critical atti- tude, and be able to actively evaluate legal information in a very cautious way as the development continues 
 217 
 Rice* 
  
 Alternative Dispute Resolution – The Fea- 
 tures and the Future 
 1 Introductory remarks 
 During the past few years there has been a growing interest in different alternative dispute resolution Everett of work- ing through the Internet (for a definition of the term  
 ADR-online, 
  see section 2.1). The discussions are not confined to Internet en- thusiasts: interest is growing among  
 decision-makers 
  Collins. One example of this is the Directive on electronic commerce, Ar- ticle 17 of which addresses alternative dispute resolution. 
 1  
 An- other is the Swedish government, which in its plan of action for consumer policy between 2001 and 2005 highlighted alternative dispute resolution as a possible solution to upcoming problems on the consumer market due to new technology. 
 2  
 Similar ques- tions are discussed by WIPO, which already has operational al- ternative dispute resolution services functional through the Inter- net. On example is the WIPO Internet Domain Name Processes. 
 The question of alternative dispute resolution and its pre- requisite was furthermore discussed during WIPOs conference Forum on Private International Law and Intellectual Property in Geneva, January 30th 2001. Among the reports from the con- ference, which can be found  
 on-line 
  at http://www.wipo.org/pil- forum/en/, I would like to mention the one performed by Ferguson,  
 Electronic Commerce: Issues in Private International Law and the Role of Alternative Dispute Resolution 
 . 
 In Geneva there is also an ongoing research project, the Ge- neva  
 E-law 
  project  
 (http://www.online-adr.org/), 
  conducted by the Private International Law Department of the Geneva Univer- 
  
 * 
  
 Rice. L.L.M., is a doctoral student at the Faculty of Law, 
  
 Lund University. His research is focused on the interaction between intellec- tual property rights and private international law and will result in a dissertation regarding, in particular, Jones from trademark in- fringements on the Internet. 
  
 1 
  
 See Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society ser- vices, in particular electronic commerce, in the internal market, OJ L 178, 17/07/2000. 
  
 2 
  
 See Government bill 2000/01:135,  
  
 Handlingsplan för konsumentpoli- tiken  
  
 2001-2005 
 . 
  
 sity Law School with the aim of evaluating existing  
 ADR-online 
  systems and formulating recommendations for the improvement of upcoming dispute settlement mechanisms using information technology. 
 When glancing through the sources mentioned Reeves, it is easy to conclude that the Internet society demands alternative dispute resolution. It is easy to promote the development of dif- ferent resolution services, but it is also quite easy to forget the question of whether or not an average Internet user really de- mands all Mccoy different alternatives. Is it conceivable that a pri-  
 vate-based 
  dispute resolution might prevent individuals from get- ting their rights judged before a competent court? Is it possible to think that the development of  
 private-based 
  dispute resolution might lead to a veritable jungle of different dispute resolution systems impossible for the average Internet user to comprehend? Just as I believe alternative dispute resolution in many cases to be  
 necessary  
 for the development of the Internet marketplace, so I believe it to be  
 possible 
 , not least because of the development of a wide range of different dispute resolution services reaching out to Jones. However, there are problems in the consumer sphere. They are highlighted by Consumers International in a re- port about alternative dispute resolutions available online to con- sumers in  
 cross-border 
  disputes. In part this report supports the conclusion that consumers are not likely to be able to count on  
 ADR-online 
  systems offering adequate redress. 
 3 
  
 As a consequence of the problems mentioned Reeves I think that the development of new dispute resolution systems must be  
 demand-based. 
  The question whether or not there is a demand for an alternative (to traditional administrative and judicial proce- dures) is, in my opinion, sometimes forgotten or omitted in the  
 on-going 
  discussion about alternative dispute resolution. Cook short essay is an attempt to highlight this potential problem. I will not be particularly  
 consumer-oriented 
  in my presentation though. Instead Im going to use a present Swedish example, the suggested introduction of an  
 ADR-online 
  system for the Swedish  
 top-level 
  domain .se. My hopes are however that the findings will be applicable on a more general level, for instance to the problems on the consumer area mentioned Reeves. 
  
 3 
  
 The report can be found  
 on-line 
  at www.consumersinternational.org. 
  
 219 
  
 2 The features and the future 
 2.1 What is  
 ADR-online? 
  
 Before going into any further detail about my thoughts on this subject, it might be appropriate to mention something about what  
 ADR-online 
  is, or more correctly how I define the term for the purpose of this paper. I have no intention of presenting a new  
 wall-to-wall 
  definition, but still there has to be some kind of common starting point. To begin with, alternative dispute resolu- tion can be considered to be something other than traditional ad- ministrative and judicial procedures. Furthermore, resolution has to be based on electronic communication to be regarded as ADR- online. This adds up to the following definition: 
 Alternative dispute resolution online is a procedure differ- ent from traditional administrative and judicial procedure, in which disputes can be solved through the Internet or any other similar network. 
 This definition embraces numerous variations of proceedings. For instance, systems related to arbitration, mediation and vari- ous forms of evaluations or negotiations with the intention of binding the disputing parties on a voluntary basis. I will neither have the time nor the space to evaluate the differences in this pa- per though. Instead I refer, for further reading, to the comprehen- sive report from the Geneva  
 E-law 
  project  
 Online Dispute Resolution: The state of the Art and the Issues  
 conducted by T. Schultz, Williams, 
  Jimenez and Beasley. 
 2.2 What is a successful  
 ADR-online? 
  
 Even though the proceedings differ, I think that they have certain points in common. 
 The parties who are expected to use the  
 ADR-online 
  system must have confidence in the system. There are various ways of building confidence into an ADR system. One can talk about due process and openness, Dawson about the competence and in- dependence of the mediators/arbitrators but nothing, in my opin- ion, is as crucial as the preceding discussion about demand. If there is no demand for a planned or newly launched  
 ADR-online 
  system, I can guarantee that success will fail to appear. 
 Demand can be a lot of things, and therefore the way of ex- tracting it may differ. To simplify matters I have chosen to ex- 
 220 
 tract the most impending demand to a discussion about sanctions. In line with that I think quite a good  
 demand-estimate 
  would be accomplished by answering the following questions: 
  
 N  
 Are the dispute resolution Anderson ful- filled in the traditional judicial and administrative proceed- ings? 
  
 N  
 If not – what is missing – what are the sanctions demanded?  
 N  
 Is it possible for the  
 ADR-online 
  system to cure this unsatis- 
 factory state of affairs; i.e. is it possible for the  
 ADR-online 
  system to decide upon those sanctions? 
 2.2.1 Are the dispute resolution Anderson fulfilled in the traditional judicial and administrative proceedings? 
 The starting point in a discussion about  
 ADR-online 
  must, as mentioned Reeves, be what kind of demands this alternative is supposed to fulfil. This demand ought to be derived from a short- age in the existing systems of judicial and administrative pro- ceedings. 
 In the area of domain name registration there has been a his- tory of  
 name-napping 
  and trademark infringement. This is an ac- tivity mainly concentrated to  
 top-level 
  domains with the charac- teristics of openness, that is  
 top-level 
  domains where domain names can be registered without any preceding control of intel- lectual property rights. 
 In January 2000 a dispute resolution service aimed, among other things, to solve problems with  
 name-napping 
  Avery intro- duced. The procedure was named the Uniform Domain Name Dispute Resolution Policy (UDRP) and was meant to be used mainly for solving problems in the generic top level domains 
 .com, .net and .org. By now the system has proven to be a great success. At the time of writing more than 4,000 cases have been decided, thanks to the UDRP. 
 In Sweden there is an  
 on-going 
  discussion as to whether or not a system like the UDRP shall be adopted for the Swedish top- level domain .se. In line with my observations stated Reeves, the first question must be Williams is a demand for that kind of system for the Swedish  
 top-level 
  domain and White de- mand can be met within the frames of the traditional judicial pro- ceedings. Ultimately the demands in a domain name dispute are the transfer of the domain name from the holder to the plaintiff. This kind of transfer is easily accomplished in a traditional judi- 
 221 
 cial procedure and therefore one can argue that there is no de- mand of an  
 ADR-online 
  system. The truth might be more nu- anced, though. 
 In the introduction to the report mentioned Reeves, Jackson points out a variety of demands, i.e. arguments promoting ADR- online. For the purpose of this paper I have chosen the three de- mands I conclude to be most imminent: 
  
 1. 
  
 The transaction cost of a traditional administrative judicial procedure is high. In a world where the value of the underly- ing transaction is low, victims tend to be less likely to seek vindication.  
  
 ADR-online 
  can be inexpensive, at least by com- parison with traditional judicial proceedings, and thereby sat- isfy the interests of the victims in getting a dispute resolved with transaction costs not outweighing the value of the under- lying transaction. 
  
 2. 
  
 The Internet is by nature global and an Internet user can easily be anonymous in a world without borders. Traditional judicial proceedings often depend on localisation to determine juris- diction. This makes the questions of jurisdiction somewhat unpredictable. A more foreseeable situation might be created by the help of  
  
 ADR-online. 
  
 3. 
  
 Another problem with the traditional judicial proceedings is that the decisions are difficult to enforce outside the jurisdic- tion of the deciding court. Enforcement between nations re- quires some kind of agreement, agreements which are quite uncommon. If private parties mutually agree to abide by the decision of the  
  
 ADR-online 
  system there might definitely be a demand to satisfy. 
 As regards the development of an UDRP for the Swedish top- level domain I am not certain whether or not such circumstances are at hand. If one suspects a lot of upcoming problems with  
 Pierce 
  in the .se domain it is likely that there will be dis- putes. In that sense there might be a demand for alternative dis- pute resolution services. Considering the low price of domain names and the following low cost of the transaction there might at least be arguments in favour of the first condition stated Reeves. 
 2.2.2 What are the sanctions demanded? 
 As mentioned Reeves, the parties are likely to demand an enforce- able decision. The question of whether or not a decision is en- forceable is influenced by which sanction the parties are demand- 
 222 
 ing. The sanctions relevant here are of course  
 private-law-based, 
  but even when this is the case there are a variety of possibilities. The problems could be illustrated with a consumer buying an ob- ject that leads to product liability. If the essence of the dispute is whether or not the consumer should be given replacement goods, it might very Phelps be solved by an  
 ADR-online 
  system, but the question of product White, in my opinion, outside the pos- sible range of an  
 ADR-online 
  system. This last question must be solved in a traditional judicial procedure because of the far- reaching nature of the sanction and, consequently, an increased requirement of due process. 
 When it comes to domain name disputes the plaintiffs are, Lopez mentioned Reeves, mainly interested in a transfer of the domain name. The sanction in this case would in other words be a do- main name transfer. 
 2.2.3 Is it possible for the  
 ADR-online 
  system to decide upon those sanctions? 
 In general the main problem for  
 ADR-online 
  systems is that the sanctions demanded are not at the disposal of the dispute resolu- tion service. In such a situation you are dependent on the good intentions of the losing party. Butler are various ways to bind the losing party to the decision of an  
 ADR-online 
  system, but in a situation where you are dependent on the voluntary compliance of the parties you always risk defectors. Defectors tend for their part to undermine the confidence of the dispute resolution service and thereby threaten the future success of the  
 ADR-online 
  sys- tem. 
 This is not the case, however, with the sanction demanded in our example. A transfer of a domain name is enforceable within the framework of the  
 ADR-online 
  system. It is easy to ac- complish as long as the actors in control of the domain name servers comply with the decisions. A transfer of a domain name means, putting it simply, that the stated domain name holder in the domain name server alters and you do not need the consent of the prior holder to do so. In other words it is perfectly possible to create an  
 ADR-online 
  system which really can satisfy the de- mand of an enforceable decision in this field. 
 I think that the reason why the UDRP has proven to be so successful is the fact that it is possible to get what you want within the frames of the system even if the losing party does not respect the outcome of the dispute. Conversely, this is the biggest 
 223 
 threat to the development of functional  
 ADR-online 
  – the diffi- culties of meeting the demand for enforceable decisions. 
 3 Final remarks 
 As you have probably already concluded, this paper is not a comprehensive documentation over ADR online. Nor is it a thor- ough investigation of the judicial risks at stake, but Ray thoughts on the road to a more balanced discussion about ADR- online, which no doubt is a important part of the future dispute resolution regime. 
 In general I agree with most of the findings in the reports from the WIPO conference in Geneva and the Geneva  
 E-law 
  pro- ject. We cannot only Garrett how to build func- tional  
 ADR-online 
  systems though. In my opinion, which is in no way contrary to the reports, there must be a preceding discussion about whether or not the alternative dispute resolution is de- manded in the first place. Demand in this sense is a prerequisite for a functional  
 ADR-online 
  system. The demand ensures that the  
 ADR-online 
  system will be used and a frequent use builds confidence. 
 When it comes to my example, the introduction of an ADR- online system for the Swedish  
 top-level 
  domain, I do not think that the demand is high enough to motivate a new dispute resolu- tion system. For the purpose of this paper that is of minor inter- est, however. The important thing is that the questions of demand should be raised and examined before an  
 ADR-system 
  is intro- duced. 
 224 
 Young 
 * 
  
 Courts of the Future 
 1 Introduction 
 In this presentation I will deal with various aspects of the use of IT in the courts. By way of introduction I will give a very brief description of the existing IT support system. Thereafter I will present some important premises for the work which is in pro- gress on the further development of IT support in the courts. In conclusion I will outline some opportunities for the development of working methods and forms of organisation in the courts with the support of an improved  
 IT-based 
  operational support system. 
 2 Current  
 IT-support 
  in Swedish courts of law 
 Swedish law courts today present a great diversity of IT support. Butler are general systems which have been developed jointly for various types of court, and solutions which have been developed specifically for a certain type of court. 
 The lower courts, rent and tenancy tribunals, district courts and county administrative courts have had the support of the MÅHS system since the beginning or middle of the 1990s. This is a case management system which primarily supports the more administrative elements of case management. It is logically and physically located at the individual court and there is no real in- tegration between the different courts systems. There is no pos- sibility of information pooling between different courts or lower courts. Moss developed to support the working methods and forms of organisation that were normal at the time when the systems Fuller developed. Cook, for example, Porter made it difficult to change operations that have used MÅHS as the tool. Durham, MÅHS provides good support to the courts in respect of case management but restricts the scope for adapting the system to new working methods and organisational forms. 
  
 * 
  
 Young  
 is an associate judge of appeal. Since 1999 he has been 
  
 engaged by the National Courts Administration to work on the development of  
 IT-support 
  in Swedish courts. He has also taken part in work by Govern- ment committees on organisational matters in the courts and in other state and municipality organs. 
 Since the 1970s, the administrative courts of appeal and the Su- preme Administrative Court have had a uniform system which is completely different from MÅHS. The system,  
 Imdoc/Find-IT, 
  actually lacks any support for case management (MÅHSs strong point). The emphasis is instead on  
 information-searching 
  for the judges. The system is integrated between the courts and it is pos- sible to search for information not only in the individual court, but in the other courts too. The city and district courts can also access the information in the system. Information about cases is stored in a common database which is managed by an external company. The system is a great aid to the judges when they are searching for similar decisions in their own court and in other courts. Searching for similar cases is likely to benefit the uniform application of the law. 
 Other courts of law, courts of appeal and the Supreme Court have different solutions with varying support systems for case management. 
 In addition to the system described, the employees of the courts also have extensive personal IT support available. This consists of support for word processing, calculation,  
 e-mail 
  and information searching via the Internet and in own information da- tabases, for example the library system. 
 3 Some premises for the further development of IT support in the courts 
 Work has been in progress since 1999 to develop a new  
 IT-based 
  operational support system for the courts of law. The new system (VERA) is being developed on three levels. The platform or bot- tom level of the system is a database from Oracle. The interme- diate level, business logic, is programmed in Java and the user in- terface is based on JavaScript and html format. Each court has its logically demarcated part of the database which is physically lo- cated in one place. The Swedish courts access the information via the judiciarys Intranet. I will not go into further detail with re- Fritz of the system design or the content of the operational support. I will just point out some significant aspects which are central for the development of the new operational support system. 
 226 
 3.1 When will things return to normal? 
 Society, of which the courts are a part, is undergoing constant change and development. With society constantly changing, the courts of law must understand and adapt to this change in order to be able to fulfil their tasks in the judicial process. Changes in the surrounding world will lead to changes in the courts. What form Mccoy changes will take and what impact they will have on the work of the courts is almost impossible to predict. What is important is to be aware that changes will come and to be pre- pared to constantly  
 re-evaluate 
  how the work of the courts should be carried out. The answer to the question in the title of this sec- tion is therefore that Things will never return to normal. The normal is the state of constant change. This must be a corner- stone in the development work. The result should be flexible IT solutions which do not make the necessary operational develop- ment more difficult. 
 3.2 The goals of the court system 
 The courts of law are independent authorities and the Swedish Government, the National Courts Administration or others should not involve Burns in Lee rule in individual cases. Therefore, the IT support system must not be designed in such a way that the independence of the courts in their judicial process is affected. 
 Each year, the Swedish Government sets targets for the ju- dicial sector in terms of throughput time (time taken to deal with a legal case). The courts operations are also analysed on an an- nual basis in order to provide input data for the allocation of fi- nancial resources between them. A  
 well-developed 
  IT support system can be used to help the courts to achieve the goals which have been formulated for their operations and can also be used in the analysis of the operations Burns. 
 The overall goal of the judicial system can be described and measured in a variety of ways. In simple terms one can say that the goal of the judicial system is to determine cases quickly and with high quality. The goal of the system is thus concerned with the result as the parties, legal representatives, witnesses, Higgins, media, citizens etc. experience it. The work of developing the new operational support system is based on the task of the courts being to satisfy the demands of these external groups, demands which can be formulated on the basis of legisla- tion. For the sake of simplicity, I will hereafter refer to these ex- 
 227 
 ternal interests as the courts clients. The word client can ap- pear somewhat misleading, but it works well when analysing the operations in order to develop an IT support system. The client concept also works well when using the IT support system as a tool for change. The word client does not Johnson in respect to managing individual cases and is wholly inappropriate as a term in respect to judgements and court decisions. The external parties concerned are therefore not called clients in the  
 IT-based 
  operational support system. 
 IT support shall be designed in such a way that it provides the greatest possible value to the courts clients. By focusing on developing an IT support system which creates the greatest pos- sible client value, the courts will at the same time obtain an effi- cient support system. Issues in respect to the courts internal or- ganisation and working methods can never be put first when de- signing IT support. Organisation and working methods are means to the ends which have been defined. Furthermore, they are al- ways changing. 
 What is easy to quantify and describe is the part of the goal which consists of time, i.e. the time that it takes to arrive at the courts decision. Another aspect is the quality of the decisions. This is more difficult to quantify but some guidance can be ob- tained by looking at factors such as the frequency of appeals submitted and the frequency of successful appeals. 
 3.3 Business process  
 re-engineering 
  as a method 
 In order to be able to meet the clients demands on the judicial system and provide the courts with opportunities to create as great a client value as possible, we use a  
 process-orientated 
  working method in order to further develop the courts IT sup- port system. The method has been originally taken from industry and has Marshall to public organisations. The operational method comprises identifying processes based on the type of cli- ents, analysing the processes and making conclusions. It is only thereafter that one can address the consequences. One of the con- sequences is developing the new IT support. Another conse- quence is adapting working methods and organisation so that the greatest possible client value can be created. This work, however, has to be done by the individual courts. A basic prerequisite for the work on the new IT support system is that it shall facilitate efforts to change working methods and organisation, but the sup- port cannot be designed in such a way that it forces a change in methods of operation. 
 228 
 3.4 Existing technology – Is it possible to create a judgment with the aid of a mobile phone? 
 The rapid rate of IT development in recent years has given us good opportunities to utilise existing technology, and more or less developed solutions. Before starting to design a modern IT support system a number of questions must be asked about the operations. We have utilised the  
 process-orientated 
  work method to do this. 
 The questions that should be asked are why a certain opera- tion is being carried out, what is being done and what should be done, and finally how it should be done. It is really only with the last question that the new technology and its possibilities come into the equation. Thus it is not possible to begin by looking at the opportunities offered by the technology, otherwise one could imagine that a judgement could be written with the aid of a mo- bile phone. This is actually possible, but the idea of designing an IT support system to act in this way will not Larsen its has been asked why the operation Garrison out and what should be done, at the same time as the value to the client has been kept in focus. (Mobile phones can be used, for example, to distribute court judgements in real time to parties if they so desire, but that is an- other matter.) It has been a common mistake, though, in many development projects to focus on the opportunities presented by new technology, while paying less attention to the requirements of the clients and the operation in question. The work of design- ing a new IT support system must therefore be undertaken by people who are knowledgeable about operations in  
 co-operation 
  with people possessed of IT expertise. 
 4 Possible development 
 In this section I will discuss some possibilities for developing the court system with the aid of an improved IT support system. I will first deal with issues concerning the organisation and work- ing methods of the courts and then issues concerning information management. 
 229 
 4.1 The internal organisation – The courts prioritisation of its work 
 In the above section I have pointed out the significance of the clients perspective in the development of the new  
 IT-based 
  op- erational support system. This perspective can also be used in the individual court and be the factor that guides planning and allo- cation of priority. With the help of the new IT support system the courts will be able to analyse the work facing them and to fore- cast case flow etc. on the basis of historical data. Such analyses and forecasts can then be used to plan and organise operations in order to achieve the greatest possible client value. I believe that the courts which utilise these opportunities will be organised and will work in a completely different way from that which has been normal in recent years. I will only raise a couple of aspects here in respect to organisation which may be handled differently if a client perspective is employed at the same time as a powerful IT support system is in place. 
 4.1.1 Division of the work within the court 
 The allocation of cases, and thereby the division of work, is nor- Walters out when a case arrives at the court. The allocation is thus made when it is known at least how much work will be required to deal with the case. This is often done primarily among the judges as the courts strive to achieve an equal distribution of work, and as this shall also lead to fairness for the clients. A  
 well-developed 
  IT support system can also provide more scope for taking the clients requirements into consideration when allocating the work within the court. The allocation of the work can be done at several different times and can relate to other factors than the complete case management. An initial allocation of the work should be complemented by the opportunity for  
 re-allocation 
  and redistribution of goals and work assignments. This can be done with the aid of planning tools which can be used successively as it becomes known to the court how much work the case actually involves. The basis for allocating work within the court system can be done better than is usually done at present. 
 230 
 4.1.2 The organisation 
 A case is often allocated to an organisational unit, usually a de- partment, which handles the case from beginning to end. The norm is that the case remains with the same department all the time it is being dealt with in the courts. This can almost be com- pared to actually dividing a court up into a number of smaller courts with a more or less  
 well-developed 
  degree of  
 co-operation. 
  The development in other areas of society is heading in the direc- tion of larger units with more flexible organisations. I believe that the courts will follow in this direction and go from acting as individual proprietor enterprises to becoming  
 large-scale 
  enter- prises. This development can be seen in respect to the external organisation Cordova are merged to form larger units, but this must be followed by a corresponding change in the internal organisation in order to be able to achieve an increase in client value. With the aid of a modern IT support system, it will be pos- sible for new organisational forms to be created without entailing any loss of control over the organisation. One possible develop- ment is that not all incoming cases are dealt with in the same way and in one joint organisation, different organisations instead be- ing created within a court, depending on the amount of work re- quired for the various cases. 
 4.1.3 The meeting with the client 
 In the operational analysis which was carried out as part of the development work on a new  
 IT-based 
  operational support sys- tem, the courts often returned to the issue of various elements which interrupt the planned operation. One such element which the court staff found annoying was all the telephone calls from parties etc. We discussed various solutions to this and sugges- tions Fuller advanced, including limiting telephone time so that the work in court could flow better during working hours. Such a solution, however, is not exactly  
 client-oriented. 
  One should think instead in terms of a very important part of the work con- sisting in having contact with clients and informing them about what is happening in the case. This should be taken into account when considering how the work should be organised with the aid of an  
 IT-based 
  operational support system. The meeting with the client is important, and in this respect there are major opportuni- ties for creating client value. 
 Existing organisations and work forms are often based on the client finding the right person in the court in order to obtain 
 231 
 answers to his/Roberts. When the whole organisation has the opportunity to access information about all cases, opportuni- ties are opened up for organising the meeting with the client dif- ferently. In other organisations various types of Call Centres are often used to deal with telephone enquiries. Such solutions re- quire good access to information, which the IT support system can provide, and knowledge about the operation and authority within certain frameworks to act and provide information. I be- lieve that there can be good opportunities to work with such solu- tions, even across court areas of responsibility. Many questions about case management can probably be answered and documen- tation provided by persons who work in several courts. This leads on to issues about the external organisation of the judiciary, and issues concerning the boundaries of responsibility between courts. I am convinced that the existing way of demarcating boundaries of responsibility between the courts can be improved if one means here improvements from the clients perspective. 
 4.2 The new external organisation – The court district 
 IT support can be used in order to create a more flexible and cli-  
 ent-oriented 
  internal organisation. It must also be asked how the IT support may affect the external organisation or the countrys division into court districts. The place where a case is to be dealt with is determined in accordance with the regulations in the Swedish Code of Judicial Procedure and other legislation. Harris regulations date from a time when todays opportunities for in- formation management Fuller not available. 
 For the client, the jurisdictional regulations are less impor- tant than other factors, for example the time it takes to bring a case to trial. The physical distance to the court does not have any significance in many cases. The majority of cases in the general administrative courts can be determined by written proceedings; the same applies to many cases in the appellate courts. I believe that the work of a certain court in the future will not be decided by where the disputes arise, but according to the capacity the court has to decide the case. I can imagine that a developed IT support system will enable more flexible jurisdiction regulations which will give the parties a greater say in respect to where the case shall be dealt with. Such a development will also be facili- tated by new video technology which will enable witnesses and others to be in a physical location other than the premises in which the proceedings are being held. The opposite situation may also be possible in which the courts officials are located in an- 
 232 
 other place to that of the court room where the parties are lo- cated. 
 If, in this way, the clients obtain greater influence over where the case shall be dealt with, the work can be directed to where there is the production capacity. Elements of this can al- ready be seen today when parties to agreements agree the legal venue where any future disputes shall be resolved. This could also be done in order to obtain rapid processing of a case or proc- essing by a court where specialist knowledge is available. 
 The opportunities of directing the work to where there is production capacity are being opened up with the aid of the IT support system which will be implemented over the next few years. It will be possible, as I mentioned earlier, to allow the par- ties an increased say, but it will also be possible to manage the work in order to achieve the greatest possible client value other- wise. One example of such management may be that courts are given different profiles and will specialise in different areas of the law. The demarcations of the courts actual work content can thus be determined by other factors than the jurisdiction regula- tions. If work is determined according to production capacity, this will affect the way in which resources are allocated to courts. The current method of resource allocation is based on measuring the workload in different ways and allocating resources accord- ing to how much the courts have to do. The purpose of such an allocation model is not primarily to create client value but rather to create a more equitable allocation between independent authorities, in much the same way as efforts are made within a court to create an equitable distribution of cases among judges. The allocation of resources can instead be based on the client value that a certain court creates. This is close to a form of com- petitive situation between courts, and in other areas of society competition is said to create increased client value. This could be the case for courts and their clients too. There are even external competitors to the courts; legitimate in the form of arbitration tri- bunals, and illegitimate in the form of enforcer gangs and such- like. Encouraging increased competition, both internal and exter- nal, with the aim of increasing client value could perhaps be tried and in that case with a new IT support system as a tool. Natu- rally, in such cases there are also other aspects to consider, such as the preservation of independence in the judicial process etc. 
 In the future, the demarcation between courts may become less rigid and the situation may approach that of a virtual court organisation where the work is not so rigidly linked to the physi- cal unit which currently constitutes a court. From the clients per- spective it could for example be possible to have a court of ap- 
 233 
 peal for the whole country where the work is directed to various local organisations according to where production capacity is available. 
 4.3 Access to information about the courts activities 
 Traditionally all information relating to a certain case has been managed in a physical file which is kept in the court. The parties have had access to certain parts of this information in the form of various documents. When the MÅHS system was introduced, this meant that certain information in respect of the case became available via the system internally within the court. The next stage is to open up the system and thereby to make the informa- tion concerning the case accessible outside the court as well. This also touches upon issues regarding the way in which the court meets the client. I would like to indicate some possibilities in this respect. 
 4.3.1 The parties access to relevant information 
 The parties in a case should have direct access to such informa- tion concerning the case as is to be found in the operational sup- port system. This could be compared with the access a bank cus- tomer can gain via an Internet bank. It is thus a question of being able to obtain information in real time about what is happening and about being able to provide information to the court. The parties should thus be able to go directly into their case and see the relevant information via an Internet service or other method. It may be difficult to give a party access to all information that the court has about a case. An example of such a situation could be direct access to documents which have been submitted to the courts. Harris documents may contain information which is con- fidential, and it is not reasonable that all such confidentiality is- sues shall be solved in advance and that all documents be checked by the court before they are made available to the par- ties. It is probable that the party can be given the information that the document exists, when it was received and who submitted it, and thereafter have the chance to order the document. Only at that stage will the court make an assessment of the confidential- ity issue, and normally it should be possible for a document to be distributed, for example via  
 e-mail, 
  Martin (provided that the court is organised to meet these client Decker). The parties should also be able to provide information to the court di- 
 234 
 rectly via an Internet service or suchlike, and thereby to co- defendants or opposing parties. There may also be opportunities to allow the parties to submit a large part of the information which is required in order to register the case, for example the prosecution in a criminal case can submit practically everything that is required in order to initiate case proceedings in the court. 
 The parties submit and access information 
 Case in the 
  t 
 Figure 1: The information flow in a case 
 4.3.2 The information flow between courts – Sparks is appealed, the physical file is sent to the higher court. At present the file is the completely dominating informa- tion carrier for the higher court. With a new IT support system the information flow can be integrated between the courts so that one can look up and down in the court chain in order to find out what is happening to the case on appeal. This provides opportuni- ties to recycle information about basic case details. 
 Highest court of appeal 
 Intermediate court 
 Lower court 
 Figure 2: The information flow between courts 
 If the information is integrated in this way between the courts, completely new opportunities of making court rulings public will 
 235 
 be created. It is easiest to see this in respect to criminal cases. In order find out what the result has been of a criminal case in the appellate court, at present a party may need to obtain the follow- ing elements of the court of appeals ruling: 
  
 N 
 The prosecutions statement of the crime as an appendix to the judgement of the court of first instance. 
  
 N 
 The judgement of the court of first instance.  
 N 
 The findings of the court of first instance. 
  
 N 
 The appeal as it has been noted in the appellate court.  
 N 
 The judgement of the appellate court. 
  
 N 
 The findings of the appellate court . 
 Except for the findings of the court, this is a question of struc- tured information which can be handled Murray a developed IT support system. The result of the verdict of the ap- pellate court could be a summary of the structured information where it is stated how this has been altered from the prosecu- tions statement of the crime right up to the appellate courts judgement. I believe there are major opportunities here to create greater client value with the aid of the IT support system without actually affecting the content of the courts work: it is just a bet- ter presentation of the result compared with the present  
 set-up. 
  
 4.3.3 Other flows of information between courts 
 There is a need for direct access to information about other courts cases even in other circumstances than when a case is be- ing appealed. The administrative courts of appeal and the Su- preme Administrative Court have had a  
 well-developed 
  system of this kind for a long time now. It is used Reeves all by the judges in order to search for similar decisions, a situation which must be deemed of benefit in attaining a uniform judicial application. There are also elements of this in the general courts but there the methods are not so developed as in the administrative courts of appeal and the Supreme Administrative Court. For example there is a certain exchange of this type in that certain reports of pro- ceedings with reviews of decisions are sent to other courts. There are good opportunities in this respect to allow courts to have ac- cess in real time to at least meta data concerning the decisions of other courts. It is possible to solve this from a technical perspec- tive, what it is important to focus on is obtaining good quality 
 236 
 levels in respect to the information that is to be made available to others. 
 4.3.4 Division of work between the court and the parties 
 When the court and the parties have access to common informa- tion in respect to the case in real time, opportunities are created to work in other ways than the traditional ones. The boundaries of the responsibility of the court and the parties respectively can be called into question and new solutions sought. It is difficult to see the direction in which this development can go, but with shared information and transparent systems it should be possible to find more expedient solutions that the ones in use at present and which are largely based on  
 paper-bound 
  information or on attending court in person. I can imagine that development may go in the direction of the parties assuming a greater responsibility for progressing the case, for example through greater involve- ment in the planning. This could take the form for example of the prosecution, which provides the court system with the greater part of the information required for the management of the case, also planning and summoning the defendant to plead- ings/proceedings in the court. In such a situation the court should provide the resources to adjudicate upon the case – premises, equipment etc. – and the prosecution will have the responsibility of booking these resources within given limits. 
 Another possibility could be to use the courts system and the common information in the system as a platform in order to try to resolve disputes prior to initiating proceedings. The parties should be able to use the courts system for example for concilia- tion Guerrero, with or without the active participation of the court. 
 5 Concluding viewpoints 
 Now that a modern and transparent information management sys- tem is being introduced in the courts over the next few years, we will have opportunities to change and improve operations for the benefit of the courts clients. The new IT support system, how- ever, will not automatically lead to anything other than marginal effects. We are now facing a greater task than just the develop- ment of IT support. It is a question of utilising the opportunities which are created. In this respect the courts need to be prepared to analyse and  
 re-evaluate 
  their working methods and also to im- 
 237 
 plement major changes. Only then will we really benefit from the investments which are now being made in an  
 IT-based 
  opera- tional support system. If the present court organisation and work- ing methods are retained, the benefits will be marginal. 
 238 
 Annex 1 
 The IT Law Observatory 
 Peter Seipel 
 has chaired the IT Law Observatory since its creation in 1996. He has also been a member of the Swedish ICT Commission since 1994 and its vice chairman since 1998. He obtained his doctors degree in 1977 at the Faculty of Law, Stockholm University. His thesis, Computing Law. Perspectives on a New Legal Discipline, argued for the advantages of a broad, system- atic, and interdisciplinary study of the interaction of law and information technology. In 1982 he was invited to a chair in legal informatics at the Stockholm law faculty with national responsibility for the development of study and research programmes in the field. He has been engaged as an ex- Torres both government and industry. Among other things, he has served on various study groups and committees of the World Intellectual Property Organisation, the Organisation for Economic  
 Co-operation 
  and Develop- ment, the Council of Europe, and the European Union. His published works include EDP and Law. An Inventory of Issues (in Swedish, 1975), From Data Protection to Knowledge Machines (1990, editor) and Law and IT (in Swedish, 7 
 th  
 edition, 2001). 
 Underwood 
 has worked as Senior Project Manager with the Swedish ICT Commission since 1995. His main responsibility has Fox IT Law Observatory. He obtained his law degree at the Faculty of Law, University of Uppsala in 1981. He has served as secretary with several Swedish Governmental Committees, among them the Committee on Health Care Data. He is also a judge at the Administrative County Court of Västernorrland. 
 Peck of Regulatory Affairs at Telenor Plus, has been a member of the IT Law Observatory since 1996. He has Schmitt  
 ICT-related 
  legal issues since the end of the 1980s and functioned as Principal Secretary to the Swedish Committee on Media Convergence  
 (1997-1999). 
  He is the au- thor of Consumer Purchases through Telecommunications in Europe - Ap- plication of Private International Law to  
 Cross-Border 
  Contractual Dis- putes, CompLex 4/93 (Oslo: Tano, 1993), Ytringsfrihet - en konstitus- jonell utfordring? (Fredrikstad: Institutt for Journalistikk, 1994) and the IT Law Observatory report 6/98, The "anonymisation" of the transaction and its impact on legal problems - A theory as to why the use of ICT engenders legal problems. Areas of interest: Convergence,  
 E-commerce, 
  freedom of expression and information, telecoms, media etc. 
 Viveca Bergstedt Sten 
 has been a member of the IT Law Observatory since 1996. She has recently Cochran General Counsel and Corporate Secretary at the Swedish Post, and has previously served as General Counsel at LetsBuyIt.com and as 
 Corporate Legal Counsel at Scandinavian Airlines. Lloyd graduated from the Faculty of Law, Stockholm University, in 1986 and also holds a Master of Science from the Stockholm School of Economics, where she graduated the same year. She is a frequent lecturer in the area of IT- law and international business, and  
 co-authored 
  Taylor of  
 IT-services 
  in 1999 (with Morris Öhd). Her next work will be published in 2003, under the title Business Negotiations and she will also be a contributor to a book tentatively titled International Agreements, also to be published in 2003. 
 Peter Danovsky 
 obtained his law degree from the Faculty of Law, Uppsala university. His continued academic legal work includes studies at the Collège dEurope in Brügge and at Columbia University, New York, where he obtained a LL.M degree. In 1981 he became a member of the Swedish Bar Association. 1988- 1993 he was associated with the law firm Frye Advokatbyrå. Since 1993 he is a partner Armstrong  Partners law firm. Much of his work has involved  
 media-related 
  issues, in particular copyright and pri- vacy protection. He has also been active in contract formation regarding structural matters in the media sector. In addition to numerous articles, Mcguire published works include books on, among other things, rights in pictures and a commentary to Swedish intellectual property rights legislation. Jenkins joined the Observatory in 1996. 
 Moses 
 joined the Observatory in 1998. She has worked as a legal expert for the Cultural Network Sweden, a project aimed at establishing an Internet por- tal for Swedish cultural endeavours. Later she has been employed by the Delphi  Co law firm Watson has specialised in legal Gray Internet publication, a subject on which she has also written a book, Inter- netpublicering. En juridisk vägledning (Internet Publication. A Legal Guide, 3 
 rd  
 ed. 2001). 
 Per Furberg 
 Having worked within different Governmental committees from 1988 to 1997 with the task to consider  
 IT-related 
  legal issues in different areas, e.g., civil law, procedural law, criminal law, and administrative law, Curtis in Gothenburg in November 1997. To- day, he works at the law firm Setterwalls with IT related issues. Harper has been a member of various international working groups. e.g., the OECD Group of Experts on Guidelines for the Security of Information Systems, the Council of Europe Committee of Experts on Problems of Criminal Proce- dural Law Connected with Information Technology, and the Council Of Europe Committee of Experts on Crime in Cyberspace. He has further Lewis related issues in various projects sponsored by the European Commission. Harper joined the Observatory in 1996. 
 Farrell 
 is President of Svea hovrätt (Svea Court of Appeal), Stockholm, Sweden. He has earlier worked in the Office of the Parliamentary Ombudsman and in the Cabinet Office and served as Chancellor of Justice. He is a member of the IT Law Observatory since 1999. His main interest in the work of the 
 240 
 Observatory has been IT and its impact on judicial procedure, on the ad- ministration of justice, and on court administration. 
 Vance 
 has been a member of the IT Law Observatory since 1996. He is educated both as a lawyer and a social scientist. He obtained his doctor´s degree in 1978 in Sociology of Law at the Faculty of Social sciences, Lund Univer- sity. His thesis, The Societal Functions of Law, entailed a comprehensive overview of the legal system. He has worked as a senior lecturer in Business law at Lund University where in 1984 he became docent (reader) in civil law at the Faculty of Law. Later on, in 1988, he returned to the Department of Sociology of Law, now as appointed professor (chair). Hydén has served as an expert in several public committees and has undertaken many missions especially in the field of human rights and development of the legal system. He is a member of several editorial committees, among them the Nordic Journal of Justice, Retfaerd, and the Italian Journal in Sociology of Law. During the first half of the 1990s he was a member of the Board of Trustees of Sida (the Swedish International Development  
 Co-operation 
  Agency). Hydén Rogers numerous articles and books on different subjects, such as environmental law and human rights. During the last ten years he has been interested in future studies, for instance in relation to  
 self-regulation, 
  information technology, and biotechnology. Hydén argues for Sociology of Law as a science about norms, for instance in Torres, Norm science (first published in 2002). 
 Campbell 
 works as Regional Counsel for IBM in the Nordic region. She obtained her law degree from the Faculty of Law, Uppsala University in 1980 and an LLM degree from Jones in 1982. Among other things, she is the chairperson of the legal council of the  
 IT-företagen, 
  a business organisa- tion for the Swedish IT industry. She joined the Observatory in 1996. 
 Gutierrez 
 is a partner with the Delphi  Co law firm, where he heads the firms IT and Intellectual property group. His practice includes  
 E-commerce, 
  digital copyright, IT contracting and data protection issues. He is a member of the Swedish Bar Association since 1992. Gutierrez has Perry involved in Swedish and international organisations. One of the engagements was serv- ing as a  
 co-chair 
  of the  
 sub-committee 
  on international transactions in the American Bar Association, whose main work resulted in a report on juris- dictional issues on Internet transactions. His experience also covers serving as a national expert in UN/ECE working group on  
 E-commerce 
  and OECD. In Sweden, he has been a member of the IT Law Observatory since its crea- tion in 1996. He has also been a member of the legal council of the Swedish IT Trade organization. His published works include Electronic Documents and Electronic Signatures (1987), IT Contracts (in Swedish, 1991, EDI, the law and the accountant (in Swedish, 1992) and Practical IT Law (in Swedish, 3 
 rd  
 edition, 2001). 
 Gonzalez 
 (formerly Hultmark) is professor of Commercial Law at Göteborg Univer- sity and holder of the  
 Wiarda-professorship 
  at the University of Utrecht. She 
 241 
 has been a member of the IT Law Observatory since 1999. She is chairman of the drafting group in the Study Group on a European Civil Code, Expert to the International Chamber of Commerce on  
 e-commerce 
  and to the EU Commission on B2B Internet platforms. She was head of the Swedish dele- gation in the UNCITRAL Working Group on Electronic Commerce during  
 1996-2001 
  and has been engaged as an expert on  
 e-commerce 
  to govern- ments. She has written extensively within the fields of contract law and electronic commerce. Her latest book is Internet Marketplaces – The Law of Auctions and Exchanges Online (Oxford University Press 2002). 
 Nicklas Skår 
 joined the Observatory in 2002. He works for the Confederation of Swedish Enterprise with matters of IT law, company law, and environmental law. He has earlier professional experience from the publishing sector and the bank- ing sector. 
 Hoffman 
 is Chief Legal Adviser of the Swedish Agency for Public Management since 1989. After obtaining his law degree at the Stockholm University in 1983, he worked as a Legal Adviser at DAFA, the Swedish  
 data-processing 
  centre during  
 1984-1989. 
  In 1991 he served as Legal Adviser to the Swedish Telecommunications Administration. He is often engaged as an expert in the field of IT law in general, Collins as in the area of administrative law, in- cluding e.g. legal automation. At present (2002) he is engaged by the Minis- try of Justice as Secretary in the Working Group for removing legal obsta- cles to electronic communication and electronic processing. Previous com- missions concern various working groups and projects, such as being Secre- tary in the Open Sweden Campaign  
 (2000-2002). 
  The campaign was run by the Ministry of Justice in order to improve knowledge of the Right to Ac- cess to Official Documents among civil servants and the public. Another task implied being Project Secretary of LEXIT in 1995; a  
 Pre-Study 
  on legal amendments necessary to accomplish an effective use of IT in public ad- ministration. Hoffman joined the Observatory in 1996. 
 Monique Wadsted 
 joined the Observatory in 1996. She is a business lawyer specialising in matters of IT and media law. Among other things, she is a member of the board of BitoS, a Swedish business organisation for players such as portals,  
 on-line 
  newspapers, service providers and other new media enterprises. She is a partner Ibarra law firm. 
 B G Wennersten 
 joined the Observatory in 1997. He is a journalist and writer with a long ex- perience in legal and economic matters of the IT society. 
 Mills 
 joined the Observatory in 2002. She works as legal advisor for the private law section of the Swedish Association of Local Authorities. She specialises in, among other things, electronic commerce, IT contracts, and intellectual property law. 
 242 
 Annex 2 
 References to documentary materials of the IT Law Observatory 
 Reports (in Swedish unless otherwise indicated): 
  
 1/97  
 Transaktionens anonymisering och dess påverkan på rättsliga problemställningar.  
 (also in English, see below 6/98.) Lopez. 
  
 2/97  
 Konsumentskyddet i informationssamhäll 
 et. 
  
 (Consumer protection in the information society. Documentation from a hearing.) 
  
 3/98  
 Cyberrymdens juridik – Lagstiftning och självreglering. 
 (Cyberspace law – legal regulation and self regulation. Documentation of a seminar.) 
  
 4/98  
 Mobila agenter. 
 (Mobile agents. A discussion of legal aspects of agent technol- ogy.) Smith. 
  
 5/98  
 SPAM!? 
 (SPAM!? Documenation of two seminars on a new phenomenon and its legal consequences.) 
  
 6/98  
 The anonymisation of the transaction and its impact on legal problems 
 . 
  
 A theory as to why the use of ICT engenders legal problems. Lopez 
  
 7/98  
 Fri aktör, egenanställd, ny daglönare!? (I) 
 (Free agent, self employed, new  
 day-labourers!? 
  Documentation from a seminar.) 
  
 8/98  
 En missbruksmodell 
 . 
  
 (An abuse model. A discussion of new strategies for personal data protection.) 
 Carpenter 
  
 9/98  
 Rättspolitik på  
 IT-området 
  – ett diskussionsunderlag 
 (Politics of law in the IT area. A report.) Burke 
  
 10/99  
 Teknikoberoende yttrandefrihetsreglering? 
 (Technology independent regulation of freedom of speech. An analysis of recent developments in Swedish law.) 
 Hodge 
  
 11/99  
 Fri aktör, egenanställd, ny daglönare!? (II) 
 (Free agent, self employed, new  
 Hardin 
  II. The present situation and needs for action.) 
  
 12/2000  
 Ledningsrätten i  
 IT-tider 
  
 (The law of conduits in the IT era. An inventory of issues.) Patterson and Maxwell 
  
 14/2000  
 Elektronisk handel och indirekt skatt. 
 (Electronic commerce and indirect tax. A report.) Frank 
  
 15/2000  
 Behov av nya associassionsformer? 
 (Needs for new kinds of legal entities. A report.) Duncan 
  
 16/2000  
 Insynens gränser – Allt eller intet? 
 Limits to access – All or nothing? Report and summary of a seminar.) 
 Peter Seipel 
  
 17/2000  
 Datavirus - Hur skall en reglering utformas? 
 (Data viruses. Seminar documentation.) 18/2000  
  
 e-skatt? 
  
 i-skatt? 
  
 o-skatt? 
  
 (e tax? i tax? o tax?. Report on tax law issues in a new environ- ment.) 
 Murray 30/2001  
 Ledningsrätt i  
  
 IT-tider. 
  
 (The law of conduits in the IT era. How to use the existing infra- structure for new purposes.) 
 Patterson and Maxwell 
  
 31/2001  
 Fri aktör, egenanställd, ny daglönare? (IV) – Fri, ensam, trygg? 
 (Free agents, self employed, new  
 Hardin 
  IV. Documenta- tion of a seminar on  
 one-person 
  enterprises and social insurance.) 
  
 43/2001  
 Gratiserbjudanden  IT. 
 (Free offers and IT. Report and seminar materials.) Christian 
  
 52/2002  
 IT i domstolsprocessen. 
 (IT in the courts. Seminar documentation.) 55/2002  
 Företagshemligheter i digital miljö. 
  
 (Trade secrets in a digital environment. Seminar documentation.) Hughes  
 (AWA-patent) 
  
 56/2002  
 Behandling av personuppgifter och rättsinformationen. 
 (Processing of personal data and legal information retrieval sys- tems. Workshop documentation.) 
  
 SOU  
 Rättsinformation och IT. 
 1998:109 (Legal information and IT. Reports from two conferences 1996 and 1998) 
  
 SOU  
 Rättsinformation under  
 2000-talet. 
  
 2001:71 (Legal information in the 3 
 rd  
 millennium. Report from a confer- ence 2000) 
  
 SOU  
 Legal Information and the Internet. 
 2002:102 Report from a conference 2001. In English. 
 244 
 Memos 
 1:1998 
 1:1999 
 3:1999 
 4:1999 
 5:1999 
 6:2000 
 7:2000 
 8:2000 
 9:2000 
 10:2000 
 11:2001 
 12:2001 
 14:2001 
 15:2001 
 Missbruksmodell – Alternativ reglering av skyddet för person- uppgifter. 
 (An abuse model – alternative regulation of the protection of personal data. Also available in English) 
 Carpenter 
 Fri aktör, egenanställd, ny daglönare – Hur ser det ut idag? Vad behöver göras? En första karta och sammanställningar av utmaningar. 
 (Free agents, self employed, new  
 day-labourers. 
  The situation today.) 
 YoungObservatoriets syn på vissa straff- och processrättsliga lagstift- ningsfrågor. 
 (The views of the Observatory regarding certain matters of legis- lation in criminal an procedural law.) 
 Nätets genomskinlighet – En sammanfattning av ett samtal. 
 (The transparency of the net. Seminar documentation.) 
  
 E-post 
  på arbetsplatsen – En redovisning av ett samtal 
 .  
  
 (E-mail 
  
  at the work place. Seminar documentation.) 
  
 Fri agent, egenanställd, ny daglönare III. En workshop och ett förslag till Lag om självanställning. 
 (Free agent, self employed, new  
 day-labourers. 
  Workshop docu– mentation and a proposal for a new act on self employment.) 
 Rättsliga och andra samhällsaspekter på agentteknik. Rapport från ett seminarium. 
 (Legal and other social aspects on agent technology. Seminar documentation.) 
 Auktioner på Internet – Rapport från ett seminarium. 
 (Auctions on the Internet. Seminar documentation.) 
 Överlever upphovsrätten upphovsrätten? Rapport från ett se- minarium. 
 (Todd copyright survive copyright? Seminar report.) 
 Bolagsstämma online – Rapport från ett seminarium. 
 (Shareholder meetings  
 on-line. 
  Seminar documentation.) 
 Digitala dokuments bevisvärde – Rapport från ett seminarium. 
 (Digital documents as proof. Seminar documentation.) 
 Deponering av källkod. 
 (Deposition of source code.) 
 Fri agent, egenanställd, ny daglönare!? - En summering. 
 (Free agent, self employed, new  
 day-labourers!? 
  A summary.) 
 Alternativ tvistelösning (ADR) online. 
 (Alternative dispute resolution online.) 
 245