Cyberlaw

by John Bandler

Cyberlaw is an amorphous term that means different things to different people. Let's break it down in the context of civil and criminal laws.

What is cyberlaw?

Cyberlaw is the merging of two words, "cyber" and "law". Of course, "cyber" has been added to dozens of other words.

Cyber essentially means using cyberspace, using the Internet and a computer.

Law is our system of laws, which is a continually evolving process that started hundreds of years ago (thousands even) and continues.

Cyberlaw is built on a foundation of traditional law. That is my mantra for students learning about cyberlaw.

What is law?

Law is a system of rules put forth by the government. It includes the federal and state constitutions, statutes that are created through the legislative process, regulations but forth through the regulatory process, and decisions by judges (precedent) that interpret the laws.

Even broader than these laws and regulations are various rules for society and individuals, which I discuss in another article.

The misconception

There is a misconception among some that if technology is new, there needs to immediately be a new law to address the new technology. That unless a new law is created, the existing law could not apply, and that law is deficient in lagging.

Imagine a driver in 2010 in his new electric Tesla going 120 MPH on the highway, and the state trooper pulls him over. The driver claims the speeding law does not apply to him. That it was enacted in the 1960's and thus could only apply to gas internal combustion cars, since the legislators could never have imagined an electric car on the highways. The defense fails. The technology may be new, but the existing law applies.

Similarly, we should first look to existing laws to see how they could be applied to new technology and new events. We do what lawyers and judges in a future litigation will eventually do--analogize and distinguish.

Analogize: How is the new technology and events similar to past events and thus might existing law apply?
Distinguish: How is it different now, and why might existing laws not apply?

Cyberlaw is built on a foundation of traditional law

Cyberlaw is built upon a foundation of traditional law and includes:

Constitutional law
Criminal law (substantive and procedural)
Civil law (substantive and procedural).
- Civil law is enormous, and includes many subcategories, including:
- Tort law (negligence torts and intentional torts, PS, a "tort" is a "wrong")
- Contract (including insurance)
- Property law
- Intellectual property law
- Employment
- Law of international conflict (warfare)
- Cybersecurity
- Privacy

Cyberlaw includes cybersecurity and privacy law

Cybersecurity and privacy law 2023-7 (1)

Cybersecurity and privacy law comes from different places, and I depict that here.

As always, we start with "traditional law" which includes:

Criminal law
- Includes cybercrime and collecting digital evidence
Negligence law
Contract law

Then there are laws specific to "cyber", enacted to deal with the new challenges of the internet and all that happens online. This includes specific laws and regulations about:

Cybercrime
Collecting digital evidence
Data disposal (e.g. to securely dispose of data)
Data breach notification
Cybersecurity
Privacy.

Why cyberlaw?

Cyberlaw presents some tremendous challenges for society.

Cybercrime, identity theft, and the market for personal data

Cybercrime is rampant, it is an enormous illicit economy which threatens individuals, organizations, and legitimate economies.

Data collection and use for business purposes

Companies collect and use vast troves of data about consumers. Data has value for legitimate purposes too, and consumers need privacy protections.

Nation state threats

Nation states use the cyber realm in a number of ways, including for planning and conducting infrastructure attacks, espionage, and sowing propaganda and misinformation.

Information, speech, and influence

The Internet is an excellent way to spread information, and also misinformation, disinformation, propaganda, and false conspiracy theories. It also can be used to plan and conduct criminal activity.

There is a tension and compromise between freedom of speech and a desire and need to moderate what is spoken for the good of society and individuals. Even self-proclaimed "free speech absolutists" recognize there need to be some limits on speech. So the question is what those limits should be why, all in the context of the law and other rules.

Is there more to know about cyberlaw?

Of course, and you can continue next with my article on cybersecurity and privacy laws and regulations.

Conclusion

Cyberlaw is a fascinating area built on traditional law. We can broaden our understanding of traditional law, and then see how it applies to cyber, and examine new rules relating to cyber.

This article is (of course) not tailored to your circumstances, nor is it legal or consulting advice.

Additional reading on this site

This article is also available on Medium.com at NOT YET (though not kept as up to date).

Originally posted 1/5/2023, updated 2/5/2024.