УДК 340

CONTEMPORARY ISSUES OF LAW AND INFORMATICS

E.M. Frolovich

Perm State National Research University

15, Bukirev st., Perm, 614990

E-mail: Этот адрес электронной почты защищен от спам-ботов. У вас должен быть включен JavaScript для просмотра.

S.V. Polyakova

Perm State National Research University

15, Bukirev st., Perm, 614990

E-mail: Этот адрес электронной почты защищен от спам-ботов. У вас должен быть включен JavaScript для просмотра.

The integration of law and informatics is one of the key interdisciplinary challenges for the US and Europe’s universities and businesses and our review is a reflection on this topic. The paper provides an analysis of the diversity of the approaches to the issues based on the scientific reports presented at the international Law and Informatics Symposium organized by the the NKU Chase Law and Informatics and the Northern Kentucky Law Review, held on March 1–2, 2012. The presentations of academics, lawyers, and industry leaders from throughout the United States, Europe, and Asia focused on burning issues involving data privacy, cuber-security, international trade, and Internet regulation. The topics ranged from criminal justice and the media, antitrust, HIPAA/HITECH Act compliance, GLBA reporting, social media marketing, and international Internet regulations, international cuber-crime cross border, transactions, international publicity to cuber currency, privacy legislation, and cuber defense. On the whole all papers could be divided into three large themes. The first group of the papers concentrated on Internet regulations and security policies in various fields. We focus on three reports by David Satola (Lead Counsel Finance, Private Sector Development & Infrastructure Legal Vice Presidency of The World Bank), by Eric Chaffee (Dayton University Law School) and by Jorge Contreras (American University's Washington College of Law). One of the cutting edge issues in this area, according to David Satola is related to the Internet Government and internet collaboration and cyber-security policies. Internet Government (IG) issues have become the center of international and foreign policy and bilateral positions taken by governments. D. Satola argues that IG issues and their inter-relationships are now better understood and there is no central “top-down” governance of the Internet.

The shift from the focus on “institutions” can now be characterized by recognition of cross-cutting themes, or “domains”. These domains can be envisioned as: Domain of Global Intergovernmental Action. Domain of Non-Governmental Organizations, Human Rights Domain, IP Domain, Privacy and Data Protection Domain, Information Security Domain, Telecommunications Policy Domain, Military Domain, and Jurisdiction Domain. While attempts to “define” domains are inherently artificial, they are hopefully helpful in organizing an analysis. Currently the principal drivers of the debates seem to focus on the domains of Human Rights and Information Security. Within these domains there is lack of basic consensus as to what the terms even mean and the fundamental analytical and interpretive approaches that should be taken to help resolve the lack of consensus. The paper explores these issues and offers suggestions for more productive approaches. In addition, the concept of “Multistakeholderism”, embraced by the IGF, threatens formerly tightly bounded concepts of the traditional Westphalian nation state in the area of international policy development. While sea-changes have been witnessed in the area of IG, old fissures remain concerning the benefits of governmental control vs. multistakeholderism [8].

Another study in this area was presented by professor Eric Chaffee from Dayton University Law School. The paper explores the informatics and securities regulation and the role of securities law on the Internet. The presenter stated that the best approach to regulate securities markets in the Internet is to create a transnational entity to promulgate and enforce a harmonized and centralized system of securities regulation. One of the advantages is an opportunity to experiment with globalized securities regulation and computing [2]. The study presented by Jorge Contreras was related to the issues of bioinformatics standards in today’s technology-driven marketplace. Some standards mandate minimum requirements for product safety, others seek to reduce environmental impact, while others specify minimum levels of information that must be provided to consumers. The presenter considers “interoperability” and compatability standards. “Interoperability standards” dominate the information, computing and telecommunications (ICT) sector, specify the manner in which products and services offered by different vendors interact with one another (WiFi, USB, CD, DVD, PDF and HTML and others). Such standards are developed by a wide range of organizations, from governmental agencies to industry consortia to multinational treaty organizations. Some standards are adopted into local, state or federal legislation and attain the force of law, others remain voluntary, yet are adopted by entire industries. The process of standardization in the ICT sector is costly. Over the recent years, the have been ICT a lot of lawsuits brought by both participants in the standards-development process and by government regulators as well as by affected third parties. Two types of claims generally arise in standards-related litigation: “process-abuse” claims (when the standards process has been abused to exclude competitors from the market) and “ patent hold-up” claims” (when a participant in the standards-development process has improperly asserted its patents against an implementer of the standard.

Recently there have been a lot of discussions of the issue of the development of interoperability and compatibility standards. These range from standards for data exchange and controlled vocabularies (ontologies) to minimum experimental information and data analytics. A variety of organizations are involved in these standards-development activities. Although the bioinformatics field has not experienced much litigation yet, with the increasing adoption of standards by bioinformatics researchers and vendors, the issues faced by ICT standards groups will become increasingly relevant. Jorge Contreras concluded that present bioinformatics standardization organizations are not ready to handle or deter process-abuse and patent hold up due to the lack of general written policies or “adopt vague, aspirational statements regarding a desire that materials produced to be “open” and publicly-available. Another disadvantage is that they do not address a number of key points regarding process openness and intellectual property. In order to prevent the massively disruptive and costly standards-related litigation in the sector of ICT the presenter offered to revise such polices and apply a new straightforward policy template that can be adapted to the specific needs and requirements of individual bioinformatics standards organizations [3].

The second major area of discussion was focused on the comparison of cyber crime law and digital and computational forensics in Russia, the US and under the convention on cybercrime of the council of Europe. This study was carried out by an international team from Perm State University (Perm, Russia) and the University of Lousiville. It was presented by Michael Losavio, Deborah G. Keeling, Svetlana Polyaskya Evelina Frolovich, Galina Borisevich, Natalya Chernyadyeva, Pavel Pastukhov, and Olga Dobrovlyanina. In this presentation both substantive and procedural laws and the possible impact of digital and computational forensics in the transnational environment were addressed. The paper covered such vital issues of the substantive law as offenses against the confidentiality, integrity and availability of computer data and systems unauthorized access to a computer etc. Another focus of the presentation was on procedural issues that include procedure and evidence, reliability of electronic evidence; computer and digital forensics and investigations computational forensics. special attention was paid to the problem of cyberterrorism and related areas. The presentation included some important aspects of the global framework as well. At first the conception of cybercrime was presented at different angels. The idea of “cybercrime” highlights potential problems in analyzing a computer crime, particularly new kinds of injury to the innocent. The facts of computer operations may not always nicely match up to the traditional elements of criminal practice. The application of the rules of criminal procedure and evidence must take into account these unique aspects of computer usage. Addressing cybercrime requires knowledge of computer and network operations and how those operations may be different from usual activities involving the processing of information. The overview focused on cybercrime in the context of the American and Russian criminal systems that define crimes through legislative acts (statutes) that set out the factual elements of conduct to be punished. American federalism creates a dual system of sovereignty with limited federal criminal jurisdiction. The transnational nature of cybercrime generally invokes U.S. federal jurisdiction, although this remains a proof element in prosecutions. The Russian Federation has general criminal jurisdiction over all cybercrime activity within its jurisdictional sphere. Prosecution of a cybercrime over a network may invoke multiple transnational jurisdictions. The transnational nature of network cybercrime is a factor that greatly complicates efforts to address and prosecute these crimes. Further in the analysis the presenters went on to the issue of frameworks for Cybercrime and the Convention on Cybercrime of the Council of Europe. Organized frameworks for criminal statutes help assure completeness, currency and standardization with a regime as well as consistency across jurisdictions. It was stated that the Convention on Cybercrime is a useful, powerful treaty framework for analyzing and conforming national laws regarding cybercrime. It reflects national practices and transnational needs. As a multi-signatory international treaty it enforces consensus and treaty obligations to conform national cybercrime laws to promote easier enforcement enforceable across borders, reducing the havens for illicit online conduct. It supplements other existing multilateral and bilateral legal assistance agreements and domestic laws relating to criminal law enforcement.

In the final part of the paper it was stressed out that the transnational nature of cybercrime creates many challenges. The conformance of law promoted by the Convention on Cybercrime is the beginning and the basis for promoting the cooperation necessary to combat cyberterrorism. The idea that criminal justice methods might apply to cybercrime and information security systems was introduced by the Institute for Strategic Studies of the U.S. Army War College.The enmeshed nature of cyber networks assure that addressing cybercrime may impact civil society where a response to a cybercrime, particularly one of cyberterrorism or hostile state action, create “profound constitutional and security challenges” for the United States as well as Russia. Safety and security require more than technical protections and police response. They necessitate critical blend of technical protections and legal response with individual practice and social norms. Ways of controlling and limiting injurious behavior, whether formal or informal, are essential for public safety.

In conclusion the presenters underlined that the these criminal justice models may offer opportunities to mitigate cybercrime’s impact on information society. Another possibility might be, in effect, a transnational court using the transnational technologies at issue. One example of this is the introduction of IP based arbitration courts in the Russian Federation. The introduction of new technologies in the work of state bodies resulted in three sets of rules that entered into force in 2010. They govern the use of the Internet, audio protocols (reporting) and videoconferencing in arbitration courts of Russia. The adoption of the Russian Federation Law of 27.07.2010 №228 made possible participation of parties to the hearing via video-conferencing. It was noted that the introduction of the regulations to conduct the hearing by the use of videoconferencing systems will certainly help to achieve justice in arbitration courts - ensuring access to justice in the sphere of entrepreneurial and other economic activity and fair public hearing within the statutory time by an independent and impartial tribunal. Over time, lawmaking and judicial practice in this area negate all the shortcomings in this regard [5].

The subsequent presentation was delivered by professor P.J. Blount the National Center for Remote Sensing, Air, and Space Law at the University of Mississippi School of Law. He presented on legal review of cyber-weapons and capabilities. In the study the concept of cyber weapon is considered in detail. Using the Air Force Instruction as a starting point, the presentation explored the definitions of weapon under international law and the standards that apply to such reviews of weapons. Also it considered the targeting functions of such weapons and how those functions affect the legality of these capabilities. The analysis highlighted the definitional issues that attach to cyber weapons. The presenter discussed on how militaries are coping with the tensions caused by the interaction of this highly valuable technology with both domestic national security law and the law of armed conflict [1]. The third group of papers analyzed various social aspects of human rights, crime and punishment related to the Internet. One of the presentations examined stereotypes in crime and human with the insights into the issues of media, race and crime and punishment. The paper was presented by Rachel Lyon (the Northern Kentucky University College of Informatics), David Harris ( the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School ), and Marcus McPhail (the College of Arts and Communication at the University of Wisconsin-Whitewater). The case of Troy Anthony Davis for the murder of police officer Mark MacPhail was considered. The presentation demonstrated e the ways in which legal, social, and moral attitudes and institutions remain tainted by the media’s hidden racialized communication. They argue that the legal and high-tech communication structures in question remain linked to a “Racial Contract,” an empirical set of social relations that expose law as a system of privilege that protects the interests of the stronger, and undermines genuine democratic inclusion, social equality, and racial reconciliation [6]. Another cutting-edge interdisciplinary study was presented by Dr. Jasmine McNealy from Syracuse University. The presentation explored the “right to be forgotten” in connection with improving in individual data protection strategies in the EU and the USA. This right to be forgotten would give individuals the right to not have their data retained and expressly deleted. Such a right is applied in some countries in the EU; some have used privacy related legislation to allow an individual to stop unwanted publicity about them. Dr.J. McNealy gave an example of the Wolfgang Werle case (Germany). In 2009 this man sent Wikipedia a cease and desist letter claiming that the online encyclopedia must remove information about him. Wolfgang Werle, who was tried and convicted of killing his former associate, Walter Sedlmayr, used a German law quite like American common law misappropriation, which protects an individual’s name and likeness from unwarranted publicity. In early 2010, France also began considering a “right to forget,” which would allow an individual to demand that online organizations delete information about them.

The presenter stated that unlike EU members that consider the creation of this right to be forgotten as improving individual privacy rights, such a right creates a problem for American online news organizations. Such law comes into direct conflict with protections found in the First Amendment and it also conflicts with traditional privacy jurisprudence, which states that information made public cannot become private again. At the same time, Americans seem to be attempting to assert a right to be forgotten. For instance, a man threatened to sue a college newspaper that had articles reporting on the misdeeds of his son in its online archives. However, a court in the United States might entertain such a claim. On the whole, this presentation analyzed the conflict that recognizing a right to be forgotten online would have with American jurisprudence regarding the role of the online press as a watchdog for the public as well as with traditional U.S. privacy policy [7].

One more aspect of private and confidential information was analyzed by Anne Gilliland and Judith Wiener from the Ohio University. They reported on protection preservation of special information in institutions with health sciences history collections. Such institutions should preserve and provide access to the historical record while respecting the confidences of those whose lives are reflected in the records. The presenters mentioned the requirements of the Health Insurance Portability and Accountability Act of 1996 (HIPAA) that have made these two duties more difficult because the Act’s Privacy Rule places no time limit on the bounds of confidentiality or privacy for the records it covers. The rationale that concerns about hereditary diseases and genetic risks might continue after the subjects’ deaths. This creates significant concerns and challenges for special collections librarians and archivists and for historical researchers who work with material subject to HIPAA’s requirements. Historically, archivists and special collections librarians have often used professional judgments and general rules of thumb, such as “grandfather” thresholds, for controlling access to sensitive material; however, if information is subject to the Privacy Rule, these thresholds are no longer adequate. The scholars stated that Changing societal mores around privacy and the strictures of evolving privacy laws make privacy and confidentiality issues for historical health sciences collections an ongoing challenge even when HIPAA does not apply. The trend toward providing even greater access to historical collections through digitization likewise increases the risk and privacy dilemmas for the custodians of these collections [4].

>To conclude, this conference was very important for legal academic and professional communities and society both on global and local level. Through partnerships among disciplines and around the globe, it was possible to fully explore the challenges of the new digital world.

The bibliographic list

1. Blount P.J. The Pre-Operational Legal Review of Cyber Weapons and Capabilities.Law and Informatics Symposium, the NKU Chase Law and Informatics and the Northern Kentucky Law Review, March 1–2, 2012. Mode of access: http://www.youtube.com/watch?v=buW0GNDC-1k& feature=plcp

2. Сhaffee E. Informatics and Securities Regulation:Exploring the Role of Securities Law on the Internet and within Virtual Worlds. Law and Informatics Symposium, the NKU Chase Law and Informatics and the Northern Kentucky Law Review, March 1–2, 2012. Mode of access: http://www.youtube.com/watch?v=k5lCZkue680; Mode of access: http://www.youtube.com/watch?v=zLVJ2QnRKbg.

3. Contreras J. Practical Policies for Bioinformatics Standards Law and Informatics Symposium, the NKU Chase Law and Informatics and the Northern Kentucky Law Review, March 1–2, 2012. Mode of access: http://www.youtube.com/watch?v=lER169pgbn0.

4. Gilliland A., Wiener J. Privacy and Confidentiality Issues in Historical Health Sciences Collections. Law and Informatics Symposium, the NKU Chase Law and Informatics and the Northern Kentucky Law Review, March 1–2, 2012. Mode of access: http://www.youtube.com/watch?v=A7hNjiO-8JU&feature=relmfu.

5. Losavio M., Keeling D., Polyakova S., Frolovich E., Borisevich G., Chernyadyeva N., Pastukhov P., Dobrovlyanina O. A Comparative Review of Cyber Crime Law and Digital and Computational Forensics in Russia, the United States and under the Convention on Cybercrime of the Council of Europe. Law and Informatics Symposium, the NKU Chase Law and Informatics and the Northern Kentucky Law Review, March 1-2, 2012. Mode of access: http://www.youtube.com/watch?v=K5M7KViZnlg&feature=relmfu; Mode of access: http://www.youtube.com/watch?v=K5M7KViZnlg&feature=relmfu

6. Lyon R., Harris D., McPhail M.Media, Race, Crime & Punishment: Re-Framing Stereotypes in Crime and Human Rights Issues. Law and Informatics Symposium, the NKU Chase Law and Informatics and the Northern Kentucky Law Review, March 1-2, 2012. Mode of access: http://www.youtube.com/watch?v=sgLjW4ugsfc&feature=plcp. Mode of access: http://www.youtube.com/watch?v=XWOkeWWjRuE&feature=relmfu.

7. McNealy J. The Right to Know v. The Right to be Forgotten. Law and Informatics Symposium, the NKU Chase Law and Informatics and the Northern Kentucky Law Review, March 1–2, 2012. Mode of access: http://www.youtube.com/watchv=LYiTH9pfHBk&feature=relmfu.

8. Satola D. Legal Aspects of Internet Governance: International Cooperation on Cyber-Security. The Collection of materialsLaw and Informatics Symposium, the NKU Chase Law and Informatics and the Northern Kentucky Law Review, March 1–2, 2012. Mode of access: http://www.youtube.com/watch?v=1Nb9eLA8qiE.