legal issues

Legal IssuesCE00303-3 Critical issues in Managing MIS in Organization

Legal Issues

Legal IssuesCE00303-3 Critical issues in Managing MIS in Organization

Learning Outcome

• Explain the various legal issues surrounding Information Systems

Legal IssuesCE00303-3 Critical issues in Managing MIS in Organization

Key Words

• Patents

• copyright

• trademarks

• trade secrets

• Defamation

• ISP Liability

• Privacy

• Jurisdiction Issues

Legal IssuesCE00303-3 Critical issues in Managing MIS in Organization

Law Caveats

• Some people read the text of the law and think they know it. Things are never so easy. If you have questions ask a lawyer.

• Others ignore the law relying on corporate lawyers in case something goes wrong. This is not a good idea. As in any other system, catching problems in the design phase is always better than in the debugging phase.

Legal IssuesCE00303-3 Critical issues in Managing MIS in Organization

Life for Lawyers

• Supreme court ultimate authority when disputes arise

• Guiding Philosophy - “Laws are passed based on how society should run - even if enforcement and legal interpretation issues have yet to be nailed down.”

Legal IssuesCE00303-3 Critical issues in Managing MIS in Organization

When Worlds Collide . . .

• Legal community always behind the technology curve

• Lawyers and politicians typically have poor technical backgrounds

• Different interpretations would result in different laws

Legal IssuesCE00303-3 Critical issues in Managing MIS in Organization

Patents

• Embodiment of a specific methodology

• Competing products must use different method for achieving same task to avoid payments

• Definite lifespan beyond which patent information freely available for use by the public

Legal IssuesCE00303-3 Critical issues in Managing MIS in Organization

Copyright

• Specific work

• Automatically held when work is created, but easier to defend if it is registered

• Definite lifetime beyond which the work is freely available to the public

Legal IssuesCE00303-3 Critical issues in Managing MIS in Organization

Trademark

• Specific name or phrase

• Generic terms cannot be trademarked

• Trademarks can be lost if they are not defended

– Lost trademarks: aspirin, kleenex

– Held Trademarks: Coke, Pepsi

Legal IssuesCE00303-3 Critical issues in Managing MIS in Organization

Trade Secrets

• Does not expire - as long as it is kept secret

• Competitors may not use secrets obtained through extraordinary means

• Example: Walled chemical plant layout learned through helicopter use

Legal IssuesCE00303-3 Critical issues in Managing MIS in Organization

Defamation

• Publishing damaging statements you cannot prove about others

• The publisher and author are both liable

• Slander is a less serious, but similar, crime where damaging statements that cannot be proven are made in a public arena

Legal IssuesCE00303-3 Critical issues in Managing MIS in Organization

Bally Total Fitness Vs. Faber

• A “Bally Sucks” web site was created by Faber complaining about Bally fitness centers

• The trademarked Bally seal was placed on the site overlaid with the words “Sucks”

• Bally sued Faber making claims of trademark infringement, dilution, and unfair competition.

Legal IssuesCE00303-3 Critical issues in Managing MIS in Organization

Bally Case Decision

• No trademark infringement - little possibility of confusion

• No dilution - the defendant did not sell a competing product and did not convey confusion about the author’s identity

• No dilution (lessening ability of the plaintiff’s mark to identify its goods and services) since defendant was not marketing a competing product

• Incidentally - no slander, negative opinions protected under the first amendment

Legal IssuesCE00303-3 Critical issues in Managing MIS in Organization

ISP Liability

• What is an Internet Service Provider Like?

– Phone Company: Route information flows between individuals

– Newspaper: Package content for distribution in a public forum

• Answer determines ISP’s legal liability

• The rules have been in a constant state of flux in recent years

Legal IssuesCE00303-3 Critical issues in Managing MIS in Organization

Ancient History (~Decade Ago)

• Defamatory posting on Prodigy (Stratton Oakmont Vs. Prodigy Services 1995)– Prodigy a large ISP – Claimed to be “family friendly”. Prodigy advertised

that internal newsgroups monitored for bad/inappropriate language

– Role of a publisher - hence, Prodigy like a newspaper

– CompuServe did not monitor users activity - like a telephone company (Cubby Inc. Vs. CompuServe Inc. in 1991)

Legal IssuesCE00303-3 Critical issues in Managing MIS in Organization

Modern EraCommunications Decency Act

• ISP may monitor user activity (according to policy)

• If statement to the effect that ISP does not take responsibility for user traffic in place then no ISP liability, BUT

– Area for complaints must be available

– Complaint response must happen in a timely fashion

Legal IssuesCE00303-3 Critical issues in Managing MIS in Organization

DMCA

• Digital Millennium Copyright Act – If a copyright infringement is claimed a web

site must be taken down (however tenuous the claim may be)

– Web site can only be reinstated after an appeals process.

Legal IssuesCE00303-3 Critical issues in Managing MIS in Organization

Near Future? . . .

• European Computer Crime Treaty may be created by the end of this year

• ISP’s may be required to monitor user traffic with a 40 day data-log.

• ISP’s not explicitly exempt from liability

• Hacker/Security Tools Illegal

• Citizens must provide passwords for data seized by police

Legal IssuesCE00303-3 Critical issues in Managing MIS in Organization

Privacy in the Workplace

• Test for employers/employees - “Do you have a reasonable expectation of privacy?”

• A case can be made that private e-mail on business machines still private, but this is not the law

• Work-related material on business machines is definitely not private

Legal IssuesCE00303-3 Critical issues in Managing MIS in Organization

Privacy in E-mail

• Legally, e-mail is like a postal letter– Expectation of privacy in transit – Mail loses its special protected status once it

leaves the letter carrier's grasp• For e-mail,

– Expectation of privacy while signal travels over Internet

– E-mail loses its protected status at the mail server whether you have read it or not

Legal IssuesCE00303-3 Critical issues in Managing MIS in Organization

Spam and Address Spoofing

• Matthew Seidl v. Greentree Mortgage Co. (1998)• Greentree hired third party to send mass e-mail

to potential customers (spam)• Return address spoofed to read

nobody@localhost.com (an actual address)• Over 7,000 complaints sent to nobody resulting

in denial of service for 3 days• Libel case dismissed since third party was a

contractor. Likely that third party would, in fact, be vulnerable to a lawsuit.

Legal IssuesCE00303-3 Critical issues in Managing MIS in Organization

Business E-mail

• Electronic Communications Privacy Act (1986) says all business communication belongs to that business

• Deleting e-mail can be ruled spoliation (intentionally destroying company records)

• Archive worthless if it cannot be indexed effectively (in effect, saving everything can be equivalent to saving nothing)

Legal IssuesCE00303-3 Critical issues in Managing MIS in Organization

What about Privacy at Home?

• A lot of public information is considered private.

• An increasing amount of public information available on the Internet– Reverse phone lookups– Campaign Contributions– Housing prices– (Thwarted) Driver’s license information and

photographs

Legal IssuesCE00303-3 Critical issues in Managing MIS in Organization

Data Collection

• Data collection has few boundaries in U.S.

• Check privacy policy (can change!!)

• EU Safe Harbor agreement may change things in the future (TRUSTe web site privacy seal program)

Legal IssuesCE00303-3 Critical issues in Managing MIS in Organization

Jurisdiction

• “The Internet has no boundaries”

• Is that really true?

• If you break a law in Finland, but you were on the Internet in the United States, what happens to you?

• What if you are in California and you break a law in Minnesota?

Legal IssuesCE00303-3 Critical issues in Managing MIS in Organization

E-Commerce Big Questions

• Did you sell an illegal item to a resident of community X?

• Did you try to stop the flow of illegal sales into X?

• An easy example of where this might come up is found in the on-line pornography boom.

Legal IssuesCE00303-3 Critical issues in Managing MIS in Organization

Obscene or Offensive?

• Indecent speech and offensive speech protected under the 1st Amendment

• Obscene speech is not

• But what is obscene speech?

Legal IssuesCE00303-3 Critical issues in Managing MIS in Organization

International Jurisdiction

• Extradition over civil suits unlikely

• Big Question #1: Do you have assets in the country in question?

• Big Question #2: Will you ever try to enter country X?

Legal IssuesCE00303-3 Critical issues in Managing MIS in Organization

Godfrey Vs. Dolenga

• Dolenga was a Cornell Biochemistry Master’s student from British Columbia

• Godfrey, a nuclear physicist from London, made anti-Canadian remarks in a newsgroup

• Dolenga responded by flaming Godfrey• Godfrey notified Cornell of the offensive remarks,

but they were not removed (First Amendment)

• Godfrey filed defamation suits against Dolenga and Cornell in Britain (one of at least seven such cases)

Legal IssuesCE00303-3 Critical issues in Managing MIS in Organization

Dolenga Did Not Defend Himself . . .

• Dolenga was found guilty by default in English court

• BUT - Dolenga does not have assets in England and it is unlikely that American courts will enforce the British judgement.

Legal IssuesCE00303-3 Critical issues in Managing MIS in Organization

Cornell Did Defend Itself

• Cornell has assets in England (the Cornell abroad program)

• The suit was for roughly 80,000 pounds. The University could have settled, but chose to take the case to court

• The suit was brought to a successful conclusion (for Cornell)

• Lessons to be taken away from this . . .

Legal IssuesCE00303-3 Critical issues in Managing MIS in Organization

Conclusions . . .

• The law is constantly changing and never as simple as it seems

• You should try to be familiar with the law to protect yourself (corporate lawyers are like a fire department, not like a seeing eye dog)

• Even so, you DO need the help of someone with formal training when dealing with legal issues

Legal IssuesCE00303-3 Critical issues in Managing MIS in Organization

Q & A

Source: Staffordshire University