Download - 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
[email protected] (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