What is Cyberlaw?

8 September 1999
I'm often asked, exactly what does a cyber lawyer do? The answer is a little of everything. I'll prove this to you by briefly discussing some of the recent "headline" issues in this area of the law.

Let's start this little journey though by talking about the term "cyber lawyer." None of my dictionaries includes the term. My take on it is that it includes computer law, Internet law, e-commerce law, intellectual property law, traditional contract law, criminal law, litigation of technology related disputes and more. It's an eclectic area with technology as the common thread.

So, it's technology law? Right? No, that's wrong. It's much more than that.

I think that to call this area of the law "technology law" is too tech focused. While "tech" is in the middle, it's really not about the technology. Rather, it's about what the technology does or can do.

We can make money with the technology, so we have e-commerce law and traditional contract law in the mix. We can find new ways to digitally lose privacy online and we might say that's a pure Internet law issue. The technology can also give us new ways to commit crimes and infringe copyrights.

The Headlines and Taxes

Let's start with our wallets. Congress wants to tax it. What's the "it" that they want to tax, you ask? The answer is that it doesn't matter. If it's new, they want to tax it. In this case, it's e-commerce.

On July 26th, Senator Ernest Hollings (D-S.C.) introduced a bill that would impose a retail excise tax of 5 percent. It would apply to merchandise sold over the Net and through catalogs.

It's burning governments at all levels that e-commerce is often finding loopholes in the current state-based sales tax schemes. This is an attempt to close some of those loopholes.

By the way, you're supposed to feel good about this tax because the money will be used to supplement funding for elementary and secondary school teacher salaries. I know that I feel better already.

I know that our government would never reduce the current levels of funding for teacher salaries by the amount of this new tax so that in the end we net out to the same level of funding for teacher salaries. Never! Certainly, that would never happen in this country.

Moreover, I know that they would never reallocate the money that they didn't have to use for teacher salaries to projects with less public appeal than teacher salaries. Never!


The need to legislate for the "cybersquatting" problem has been around for awhile, but now we have some new proposals. In case you're not familiar with the term, "cybersquatting" is when someone registers a domain name (domain names are Internet addresses likefoxnews.com) similar to another company's trademark. The usual purposes are extorting payments for the transfer of the domain name or embarrassing the trademark owner. In new proposals, Congress is considering creating a scheme of statutory damages and possibly even criminal liability.

Online Privacy

Federal Trade Commission Chairman Robert Pitofsky was recently on Capitol Hill telling a Senate subcommittee that industry self-regulation on privacy is moving in the right direction. He suggested that Congress give the industry six to eight more months to get it right on its own.

This issue goes right to the heart of the question of what happens to all the personal information gathered by websites and those you do business with online. Right now, the answer is that there's almost no government regulation other than for specific types of credit information. Basically, it's a free for all and your private information is the commodity.

If your business has a website, does it have a privacy policy posted? It should. This is the type of self-regulation that the FTC is advocating. You should be telling your users things like what choices you give them regarding your use of their personal information and what access they can have to the information that you have for purposes including verifying its accuracy.

Counting Words

I'm not sure if this one is cyberlaw or not, but, well, let's just say it's different.

For the non-lawyers reading this, I need to give you a little background. Many courts now have specific size limits on briefs filed. One such set of rules limits briefs to 14,000 words.

It turns out that a court knocked Microsoft Word while WordPerfect was praised. It all started with a brief that had 15,056 words. It was not 15,055 or 15,057, nor even more significantly, it wasn't 14,000 or fewer words.

Upon discovering the error (no, it wasn't a Motion for a Recount), the court threatened to impose sanctions on the attorney involved. His defense - "Computer error."

It seems that when WordPerfect counts words, it counts words in footnotes by default, but Word doesn't. With Word, you have to check an extremely prominent box that says "Include footnotes and endnotes" for the software to count the footnotes. The court called it an "unfortunate interaction" between the software and the rules.

Let's not make this a bigger deal than it is, but "computer error" is a cop-out that people love. The software didn't do anything wrong and there was no "unfortunate interaction." This was human carelessness. Was it worthy of sanctions? Clearly, it wasn't, but lay the blame where it belongs, which is on the people who did the brief, not Word.

Mark Grossman's "TechLaw" column appears in numerous publications. Mark Grossman has extensive experience as a speaker as well. If you would like him to speak before your group or corporate meeting, please call (305) 443-8180 for information.

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