Cyber Law Issues - Essay Example

 Cyber Law Introduction Cyber laws refer to the legal issues relating to the use of communication technology especially in the cyber space (in the internet). According to many sources, cyber laws relate to the regulations that impact the transactions of persons in Cyber Space including the imaginary transaction area that seems to exist when two computers exchange data. Cyber laws can be classified as laws Relating to Digital Property, Laws Relating to Digital Rights, Law of Cyber Crimes as well as the Law of Digital Contracts (Sood, 2012). However, cyber laws are less clear field of law with regard to the way contracts and property should be regulated since cyber laws are intersections of various legal fields like privacy, intellectual property, freedom of expression, and jurisdiction (Chander, 2010). Jurisdiction and sovereignty Jurisdiction refers to the power and authority of a government to adjudicate, legislate and enforce its laws it is bound by territorial confines (does not outspread beyond the territory) (Singh, 2010). At one given time, the first questions that courts consider when a case is brought forward is whether they have the mandate to hear the case and whether they are the most appropriate courts for to hear the case. If a court does not have jurisdiction over a matter, then the court is regarded as incompetent to adjudicate the matter and if it hears and make a decision over the matter, then the ruling made by the court would be quashed and termed as null and void (Chander, 2010). In this era of internet, worries of sovereignty and jurisdiction have rapidly come to the fore because internet does not make jurisdictional and geographical boundaries clear (Sherry, 2013). Therefore, for the above explained situation, the transaction may involve application of at least two jurisdictions namely 1) the laws of the state/nation in which the user resides (California and the terrorists in Germany), the laws of the state/nation that apply where the server hosting the transaction is located (owner of Widget product). The law of the state/nation which applies to a person or business with whom a transaction takes place may also apply as the third law (Sherry, 2013). For the case of the user in California, Federal Statues should apply since they are the supreme laws on the US soil and they overrule any opposing USA constituent state’s statues. Though jurisdiction is a feature of nation autonomy thus referring to legislative, judicial, and administrative competence, it is still not coextensive with it (Moore, 2010). Laws of a country can have extra-territorial effect extending jurisdiction past the sovereign and territorial confines of that nation. This is the main problem because the medium of the Internet does not clearly recognize territorial limitations and sovereignty yet there are no uniform, international jurisdictional laws of universal application (Lloyd, 2010). E-business and Cyber laws There has been a pressing need for establishment of uniform global e-business laws in order to regulate and solve disputes relating to it amicably. In the recent past, there has been a rapid reformation of domestic and global laws in attempt to regulate online transactions though the laws have consistently been outdated because e-business is one of technological developments that are growing rapidly (Sood, 2012). Currently, there are no clear laws that regulate e-business, comparative electronic trading systems of securities, consumer protection in cross-border markets, risk management, international bank transfers as well as digital currency. However, plans are underway so as to introduce global universal legislatures that would control the industry with a good example of such efforts being the ‘Hague Convention on Jurisdiction and Enforcement of Foreign Judgments in Civil and Commercial Matters’. The Hague Convention does not offer a general rule on international jurisdiction since it only applies to choice of court agreements in civil and commercial matters that deal with clauses that assign jurisdiction to a particular court (as opposed to many different courts in different jurisdictions). However, there are numerous restrictions on the application of the Convention, namely that it does not apply to transactions where one of the parties is a consumer or a person acting for personal or employment purposes (Brenner, 2010). Therefore, for the given case study, business laws for the two separate sovereign states (USA and Germany) would apply. International laws may also apply because the German defendant is a terrorist and there are global laws that deal with terrorism issues. International Intellectual Property Law and Cyberspace Internet is considered as one of the major threats to technological inventions in the modern world. It has become a Modern Virtual Marketplace that is rapidly replacing the traditional physical, local, national, and international markets. Therefore, it is imperative for individuals and organizations to develop effective Intellectual Property Management and protection mechanisms in Cyber Space so as to safeguard their business interest, owing to substantial amount of business and commerce taking place in Cyber Space nowadays (Moore, 2010). Modern methods of communication that are mostly perpetuated online have made businesses susceptible to diverse types of cybercrimes such as misuse of intellectual property and intellectual property rights, and identity thefts just to mention a few. This can only be prevented by ensuring that business organizations have developed effective and interactive IP management methods and protection approaches to safeguard their organizations against these ever looming threats in the virtual world. For the above explained situation, International Intellectual Property Law would apply which is categories into three major parts namely the cross-border licensing and IP asset management, the US enforcement of IP rights abroad, and cross-border consensus building. In addition, IP laws are applicable in Europe and in some other developing countries (Wiles & Reyes, 2007). Therefore, the international IP laws would apply in this case since Germany is one of the developed countries in Europe. However, there are no comprehensive International IP Systems at the moment though attempts to create them have been underway. In the recent past, there have been a number of multilateral and bilateral agreements that solidify IP arrangements between countries among them being the Patent Cooperation Treaty, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), and the Hague Agreement Concerning the Deposit of Industrial Designs among others Cybercrimes Cybercrimes refer to crimes committed using computers or relating to computers particularly over the internet, (Ec-Council, 2009). Terrorist attacks against national security establishments and infrastructures, against human lives as well as attacks against essential veins of society are also considered as cybercrimes. Under cyber terrorism, the term ‘cyber’ refers to the instigation of new offences that are supported by the information technology or that are integrating cyberspace into more traditional activities like intelligence, planning, finance and logistical capabilities among others (Reyes, 2007). For the above-given case study, the types of cybercrimes committed can be termed as three namely propagation of illegal and harmful content by the Californian blogger, sabotage and extortion by the German terrorists as well as the act of terrorism itself. Constitutional Law The fourth amendment of the US constitution covers some issues relating to cybercrime among them unreasonable searches and seizures (Sherry, 2013). However, it applies to police and other public officials since private parties cannot violate a suspect’s Fourth Amendment rights unless acting at the direction of the police or another government agency. Initially, statues like the “Foreign Intelligence Surveillance Act (FISA)” and the “Electronic Communications Privacy Act (ECPA)” were protecting US citizens’ privacy but they have been weakened by subsequent legislation. For the given case study, child pornography laws would not apply because the Californian blogger was making false allegations but human rights particularly freedom of expression and privacy would apply. References Top of Form Bottom of Form Top of Form Bottom of Form Top of Form Bottom of Form Top of Form Bottom of Form Top of Form Brenner, S. W. (2010). Cybercrime: Criminal threats from cyberspace. Santa Barbara, Calif: Praeger. Chander, H. (2010). Cyber laws and it protection. S.l.: Prentice-Hall Of India Pv. Ec-Council, . (2009). Investigating Networking Intrusions and Cybercrime. Course Technology Ptr. Lloyd, I. J. (2010). Cyber law in the United Kingdom. Alphen aan de Rijn: Kluwer Law International. Moore, R. (2010). Cybercrime: Investigating High-Technology Computer Crime. Burlington: Elsevier Science. Reyes, A. (2007). Cyber crime investigations: Bridging the gaps between security professionals, law enforcement, and prosecutors. Rockland, MA: Syngress Pub. Sherry Thomas (2013). CYBER CRIME AND ITS JURISDICTION ISSUES - Study - Google Docs. Retrieved  2014, from https://docs.google.com/document/d/1iIkaF0SLs8CaVFihNTwRlGQpczkZdZfIlyAHsjqP7Wk/edit Singh, Y. (2010). Cyber laws: A guide to cyber laws, information technology, computer software, intellectual property rights, e-commerce, taxation, privacy, etc. along with policies, guidelines and agreements. Delhi: Universal Law Pub. Co. Sood, V. (2012). Cyber law simplified. New Delhi: Tata McGraw-Hill Pub. Co. Wiles, J., & Reyes, A. (2007). The best damn cybercrime and digital forensics book period. Rockland, Mass: Syngress. Bottom of Form Read More