Information technology, especially as it is deployed in the Internet's World Wide Web, is changing the law, the functioning of legal institutions and the roles of lawyers. The Internet's potential for enhancing the Rule of Law is profound.
Legislatures, courts, and statutory bodies all over the world are discovering how a $3,000 Internet-connected computer can be a remarkably cheap printing press for legal publishing, through which new statutes, court decisions and administrative regulations can be communicated instantly to anyone in the world. Thus used, the Internet is an engine of legitimacy for new political and legal institutions in countries in transition because it makes it easy for such institutions to communicate their work and their reasoning to citizens in their own societies and in the International Community. Readily available court decisions are necessary components of any rule of law which depends on consistent decisionmaking. Without knowing how similar cases were decided in the past, one cannot assure that a new decision will be consistent with those which have gone before.
At the same time, a low-cost PC connected to the Internet becomes a virtual library through which a judge, legislator or government official can consult the laws of other jurisdictions and international bodies such as the European Commission, the European Court of Human Rights, and the World Trade Organization. Such a virtual library makes legal harmonization possible, while also allowing deviations from legal norms followed elsewhere when local policy so requires.
The Internet also makes it easier for citizens and their representatives to participate in political and legal processes. Legislatures and administrative agencies regularly publish proposed laws and regulations on the Web, and solicit comment from interest persons. Comments can be submitted to the agency by email, simply by clicking on an icon on the Web page containing the proposed legal act. Internet connectivity makes it easier to form and to maintain political action groups and NGOs.1 But the Internet does not only favor those seeking to change governmental policy or incumbent governments; it also makes it easier for established governments to inform their constituencies of their policies and the bases for them. When disputes arise, the Internet facilitates adjudication by making it easier to find court dockets, to exchange legal materials between litigants, and to file papers with judicial officers.2
But the Internet is not only an instrument of legal procedure and political action; it also is a means of commerce.3 Like other means of commerce its use gives rise to disputes which must be adjusted according to law.4 Contracts made through the Internet, like contracts made with a handshake or an elaborate written document , sometimes lead to disappointed expectations and to breach-of-contract lawsuits. Statements made through Internet email, and offers made to consumers on Web sites; private data collected through electronic orders; pictures allegedly infringing copyright,5 symbols allegedly infringing trademarks all give rise to tort and statutory disputes. Sometimes these disputes arising in Cyberspace give rise to suggestions that new legal principles should be applied to resolve them because of the Internet's unique characteristics.6 Such Cyberlaw proposals must be evaluated against claims that the Internet is different as a medium for commercial transactions from older technologies used to accomplish the same functions.
As commerce moves to the Web and the Internet so also do criminals. Fraud, forgery, extortion, theft of property already are serious threats. Law enforcement personnel and lawyers who advise them, direct their activities, and judge their results must be able to understand the details of alleged crimes conducted in Cyberspace.
For the potential of electronic publishing of legal materials, of virtual libraries of the world's legal models, of electronic democracy to be realized, lawyers performing judging, parliamentary and administrative functions must understand the Internet's potential and be knowledgeable about its use by other legal institutions around the world.
For practicing lawyers advising or representing clients, for lawyers serving as judges hearing Cyberspace disputes or criminal prosecutions some knowledge of the new medium and of the legal issues it produces is necessary for professional effectiveness. One could go seriously astray in analyzing a judicial jurisdiction issue, for example, if one believed that a document requested from a World Wide Web site is necessarily physically present or necessarily is communicated through the Web-connected computer from which it is requested. In fact, a request for a document, made by clicking an icon displayed by one Web server, often merely connects the requester's computer to a third computer containing the requested information. The third computer may be half way around the world from the computer originally contacted.
Those interested in developing a rule of law and of developing an effective legal profession must think about how lawyers, judges, legislators and administrators will get the requisite knowledge.
As an engine of a Rule of Law, the Internet is a means of making existing, and mostly state-based, public institutions more effective.7 Through the Internet constitutional courts can harmonize human rights law and internalize it into state legal systems. Ombudsmen can use the Internet to strengthen world opinion as a practicable enforcement method for their decisions.
For these new instruments of constitutionalism, the Internet functions as a virtual library, as a medium for electronic publishing and as a case manager.8
The virtual library and electronic publishing functions are interdependent. The extent of the virtual library depends on the scope of electronic publishing of relevant materials. John Dawson in his classic9 explained how the wide availability of legal texts promoted the unification of legal systems. The Internet, by making it easier for lawyers and different legal cultures to access information about other cultures similarly promotes unification. Constitutionalism and human rights are ripe for that kind of unification. The restricted set of authoritative texts - about a dozen new constitutions and three treaties10 - and relatively limited output of specialized courts should enhance the feasibility of constructing a complete electronic information system encompassing all relevant precedent. There is at least the possibility that these institutions will develop a common case law, not necessarily in the stare decisis sense that a case from the Czech Republic will bind a Slovenian court, but in the sense that all of the state decisions within the United States make up a common caselaw. Such harmonization would make constitutionalism and human rights law a truly international set of norms rather than a patchwork differing from state to state. National courts and legislatures must be tied to supranational ones; an ECHR decision or an OSCE finding cannot influence a national judge or legislator if he does not know about it. That is where the Internet comes in; it makes it easy for him for find such a decision, and to use earlier decisions as justification for his own.11
A new international court, or a national one trying to enhance principled decisionmaking, need not have these aspirations frustrated by a poor traditional law library. The virtual library function also enhances legitimacy of the institutions using it. A controversial case by the constitutional court in the Czech Republic may be more difficult to vilify if it is virtually identical and decided the same as a case involving the same source of law decided by a constitutional court in Slovenia - if the analogous case is known and pointed out by the Czech judges.
A rich variety of national materials from the same country, national materials from other countries, and international materials from the ECHR are available through the Internet's World Wide Web. Access to them easily and cheaply can be organized by constructing specialized Web pages oriented toward the types of cases in the areas of law most frequently of interest to a particular tribunal. The Venice Commission12 recognizes the potential of such an information infrastructure for the constitutional courts by publishing their opinions and developing a conceptual topology or thesaurus to index opinions according to their subject matter.
Electronic publishing is a tool to promote compliance as well as increasing efficiency and legitimacy. The Bosnian Ombudsman is a creature of the Dayton Accords,13 and is the central feature of a rule of law with respect to human rights. Someone alleging a human rights violation may file a complaint with an ombudsman, triggering the ombudsman's duty to investigate. If settlement is achieved the ombudsman's job is complete. If it is not achieved, the ombudsman then can follow two courses of action. The ombudsman may publicize the human rights violation, seeking to mobilize domestic and world opinion to induce the offending governmental entity through political means to resolve the dispute and to mend its ways.
Inherent in the ombudsman tradition and nomenclature is the idea that informal means, particularly public opinion, can be an effective alternative to more traditional and formal court judgments and coercive enforcement and execution of them. That is where the Internet comes in. The Internet is a startlingly effective new tool for mobilizing public opinion through electronic publishing.
Not only does electronic publishing on the Internet enhance the power of official judicial institutions, the vast network of interested nongovernmental organizations and human rights advocates around the world can focus public attention by adding their own indexes, and analytical frameworks to raw material developed and published by the ombudsman. The need for translations into other languages need not delay publishing. The basic findings can be posted in the native language of the ombudsman with anyone else anywhere in the world performing the translation function through the World Wide Web.
Electronic publishing, especially, is of profound importance in preserving a rule of law and enhancing democracy. Freedom of information is an essential feature of responsive government. In the past, freedom of information meant a right in the press and the public to obtain information on paper upon request. Now, freedom of information means more. It means the possibility of accessing virtually the entire stock of public information generated by governments at the click of a mouse button on an Internet client.14 This is significant not only for the convenience of citizens and their representatives who can get specific information items much more quickly and cheaply. It also is significant for governments who can disseminate information much more cheaply. Now, even small countries like Macedonia can expect their information resources to be widely available even though the market for government information from such small countries is likely to be too thin for traditional publishing initiatives. Because the Internet reduces costs it lowers barriers to entry and makes it easier for even smaller bodies of information to be made available.
The case management function permits documents filed anywhere to be available from everywhere the court desires. New constitutional courts need not establish regional court houses or be integrated with a hierarchy of trial courts in order to be accessible to individual claimants. The case management function also permits confidential deliberations among the judges, and conferences with counsel without all of them having to be in the same place at the same time.
Using the Internet in this fashion - to automate adjudication, and to link it to an increasingly unified body of substantive law -- does not require any change in the formal organic or procedural documents for the potential institutional users in Eastern and Central Europe. Nevertheless, the mere existence of technology does not change international law; people have to use the technology for certain activities.
The Internet is a vast virtual library. In order for this library to have a collection, however, individuals and institutions possessing relevant information must place it on computers connected to the Internet. Moreover, other individuals and institutions must provide a value-added layer of bibliographic information pointing to primary documentation. For example, the full text of treaties must be placed on the Internet, and someone also must organize a list of treaties with pointers to the text of the treaties, which may be located on a multiplicity of severs. Many of those providing the bibliographic information may chose to standard typologies or thesauri for indexing documents, but they need not do so. One of the Internet's major advantages is the diversity of approaches to information retrieval.
Both the placement of primary information and the publication of bibliographic aids is facilitated by the Internet. An Internet server can be established for a little as $5,000. All it takes to publish a document on the server is to save it in a particular format --"HTML" -- from either of the two most popular word processing programs and then to "publish it" to a particular directory on the server -- a single step in either of the two most popular Internet Web browser Programs. For an institution such as a court that regularly generates textual judgments or opinions, the process of web publishing can be automated with a few simple scripts that take word processing files for opinions or judgments as soon as they are released and automatically formats them and publishes them to an appropriate directory on the Web server, automatically generating indexes and tables of contents as new opinions or judgments are added.
The preparation of bibliographic aids also is simple. All one needs is a concept for organizing the information. For simple consent, one simply keys the text for the --usually hierarchical -- arrangements for organizing the information resources and links the entries on the word processing documents to the URLs for the full documents. Typically, the linking can be done with one mouse click in popular word processing programs and Internet Web browsers. The typology or thesaurus then is published to an Internet Web Server and the same fashion is used for a primary documents. The Web server containing the bibliographic information may be anywhere in the world and need have no pre-established relationship with the Web server containing primary documents.
Unfortunately, not all governments make their information resources available for electronic access. The reluctance of some governments stems from the Communist era in which public access to information about government activities either was unnecessary or was actively opposed. In other cases, the motivation is not to discourage public participation in government, but to make money. Many government institutions recognize the economic value of government information in electronic form and also recognize that monopolists can extract more revenue by maintaining their monopolies and discouraging competition. Accordingly, they set up government-run or government-sponsored monopolies to sell access to their information resources blocking access by others.15
State sponsored monopolies over government information are undesirable for a number of reasons. Monopolies make it easier for censorship to occur. Monopolies usually perpetuate older information technologies because monopolists have no economic incentive to introduce new technologies, thus depriving consumers of the benefits of new technology. Monopolies rarely serve the needs of particular consuming communities as well as a competitive market structure can serve them because no monopolist can understand and cater to the needs of specialized communities as well as a designer and producer who specializes more narrowly.
Accordingly, information policy should commit to and encourage a diversity of sources and channels for government information.16 This policy is best implemented by a legal framework that grants anyone a right of access to basic government information and also gives everyone a privilege to publish that information in electronic form or otherwise.17
The Macedonian Legal Resource Center18 is a good example of how a law faculty can help the profession embrace the possibilities of the new technologies. Beginning less than two years ago, Professor Ivanov, director of the Center, aided by the American Bar Association Central and East European Law Initiative ("CEELI"), EUPhare, and others, successfully organized core Macedonian legal information, including constitutional materials, most of the important parliamentary enactments, major decisions of the constitutional and supreme court and significant regulatory materials for access through the Web. By going to the MLRC Web site,19 one can get the full text of major Macedonian legal resource materials. Working from models created elsewhere in the world, the MLRC now has surpassed most of them in its comprehensiveness and organization. I have followed Professor Ivanov's accomplishments closely, traveling to Skopje in the Spring of 1997, when the possibilities for legal publishing through the Internet just were becoming apparent to the Macedonian legal community and to International technical assistance bodies such as ABA CEELI, traveling to Skopje again at the end of 1998 to view Prof. Ivanov's results, meanwhile assigning engineering and law students to work with Macedonian legal institutions from Villanova University, where I was on the law faculty, and from Illinois Institute of Technology, where I now am dean of the law faculty.
But demonstrating and constructing the electronic printing press and virtual library are not enough; we also must educate lawyers, for the bench and for the bar. Law faculties specialize in educating legal professionals and, in most parts of the world, law faculties recognize the need to include in their educational programs some exposure to issues at the frontier of legal thinking and analysis. The Internet is a source of such issues.
The question is how best to adapt legal education to encompass the Internet. Most basically it is important to distinguish between technology as a tool for lawyers, and technology as a source of legal problems that lawyers help solve. Educating legal professionals about information technology as a tool is skills focused. All law students should know how to use a PC for word processing and email, and all should know how to use the Web. Increasingly law students learn this on their own, often before they become law students. Part of a law faculty's responsibility is to reinforce the need for these skills, to expect them of their students, and to provide supplementary instruction as necessary for students who lack the requisite skills. The same approach is appropriate for newer skills such as ability to publish a Web page, and basic knowledge of database design and use. A competent law graduate for the 21st Century should know how to publish a Web page as easily as sending an email message.
Educating legal professionals about the legal problems arising from the Internet ultimately will occur in the regular curriculum, just as learning about contract problems resulting from use of the telephone and learning about torts arising from automobile use are covered in the regular contracts and torts classes respectively. Now, however, there are few teaching materials that cover Internet-related problems, and few regular faculty are sufficiently familiar with how the Internet is used in commerce and how it functions to be well equipped to generate their own. Two initiatives by law faculties thus are appropriate in the near term. First they should undertake to develop teaching materials and to equip willing faculty with knowledge of Internet commerce. Second, they should offer special courses such as those that have become commonplace in American law schools with titles such as "Computer Law," "Internet Law" or "Cyberlaw." Such courses should cover the following subjects:
1. Introduction to Internet technology, stressing the function of routers in packet-switched networks, and the architecture of http, ftp, and mail protocols
2. Contract formation via electronic networks
3. Authentication and electronic payment systems
4. Tort issues in the Internet, including standards for intermediary liability
5. Jurisdiction to prescribe, to adjudicate and to enforce
6. Intellectual property in the Internet, especially copyright and trademark
7. Computer crimes, with an emphasis on definition, detection and apprehension
8. Consumer fraud and breach of Internet access service contracts
9. Relationship of the Internet to the public switched telephone system and its regulation
The same basic curriculum is appropriate as an integral component of the Macedonian Judges Association's new Judicial Training Center
These subjects can be covered adequately in a one-semester course, meeting three hours per week, if students already have sufficient grounding in basic contract, tort, jurisdiction, crimes, and administrative law, and if the instructor is appropriately selective in assigning materials to permit in-depth analysis of examples rather than a superficial description of a multiplicity of problems in each topic.
But skilled lawyers and judges are not enough; effective use of information technology also needs technical support. The Internet is easy to use, but work is required to make it so. Any law-faculty or judges-association initiative, such as the very active ones in Macedonia, must allocate sufficient resources to network administration and technical support personnel, and provide training for such personnel. Often, a university-based effort benefits from the availability of relatively low cost student resources in meeting these needs.
Macedonia has made a good start in realizing the potential of the Internet to enhance a Rule of Law. It can continue its leadership by committing to free availability of basic legal information through the Internet's World Wide Web, allowing multiple publishing channels; by supporting university- and bar association and judges association based efforts to educate judges and practicing lawyers on the new possibilities for legal institutions and new legal issues likely to arise from electronic commerce.
1 See generally Henry H. Perritt, Jr., Cyberspace and State Sovereignty, 3 J. INT'L LEGAL STUD. 155 (1997); Henry H. Perritt, Jr., The Internet as a Threat to Sovereignty? Thoughts on the Internet's Role in Strengthening National and Global Governance, 5 IND. J. GLOB. LEG. STUD. 423 (1998)
2 Henry H. Perritt, Jr., Video Depositions, Transcripts and Trials, 43 EMORY L.J. 1071 (1994)
3 See Kerry Lynn Macintosh How to Encourage Global Electronic Commerce: The Case for Private Currencies on the Internet, 11 Harv. J.L. & Tech. 733 (1998); Janine S. Hiller & Don Lloyd Cook, From Clipper Ships to Clipper Chips: The Evolution of Payment Systems for Electronic Commerce,17 J.L. & Com. 53 (1997); Henry H. Perritt, Jr., Legal and Technological Infrastructures for Electronic Payment Systems, 22 RUTGERS COMP. & TECH. L. J. 1 (1996).
4 See generally Henry H. Perritt, Jr., LAW AND THE INFORMATION SUPERHIGHWAY (740 pages, John Wiley & Sons 1996) (analyzing contract, tort, intellectual property, jurisdictional and various regulatory issues raised by the Internet).
5 Maureen A. O'Rourke, Fencing Cyberspace: Drawing Borders in a Virtual World, 82 Minn. L. Rev. 609 (1998) (considering appropriate legal treatment of linking and framing); DanThu Thi Phan, Note Will Fair Use Function On The Internet?, 98 Colum. L. Rev. 169, 173 (1998) (explaining why current or expanded fair-use concept is important for Internet); Henry H. Perritt, Jr., Property and Innovation in the Global Information Infrastructure, 1996 U. Chi. Legal F. 261 (1996).
6 HENRY H. PERRITT, JR., Cyberspace Self-Government: Town-Hall Democracy or Rediscovered Royalism?, 12 BERKELEY TECH. L. J. 413 (1997); Josh A. Goldfoot, Note Antitrust Implications of Internet Administration, 84 Va. L. Rev. 909 (1998) .
7 "Effective" signifies improvements in democratization and legitimacy as well as improvements in efficiency. Often, efficiency conflicts with democratization and legitimacy. Transparency usually impairs efficiency, in the short run at least.
8 Electronic publishing is considered in all three currents: in the first as a technique for improving the functioning of courts and other existing institutons, in the second as an example of the transformation of information markets, in the third as an influence giving rise to new political intermediaries.
9 John P. Dawson, THE ORACLES OF THE LAW (1968) (explaining importance of dissemination of legal texts and decisions through law reports): "One main theme that will recur throughout this study is that the reasoned opinion, issued by the judge as a function of his office, is modern product. I will also contend that the assumption by judges of a duty to publish their own official statements of reasons has transformed their relationship to other agencies for the declaring and making of law." Id. at xii.
10 The three treaties are the Universal Declaration of Human Rights, the International Covenant of Civil and Political Rights, and the European Convention on Human Rights. The constitutions are those of the former Communist countries.
11 Kratochwil at 183 (third-party, whether mediator or judge, is unlikely to forgo advantage of explicitly invoking rules, norms and principles even if she has power to disregard them; invoking shared norms increases persuasive power of decision and likely adherence to decision by those affected).
12 The European Commission for Democracy through Law (the Venice Commission) is an advisory body on constitutional law, set up within the Council of Europe.
13 Cite Dayton Accords article no. ___. A similar office was established under the constitution for the Federation of Bosnia-Herzegovina, [cite], which bridges differences between Croat and Muslim nationalities within Bosnia.
14 See generally Henry H. Perritt, Jr., Sources of Rights to Access Public Information, 4 WILLIAM & MARY BILL OF RIGHTS J. 179 (1995).
15 See Henry H. Perritt, Jr., Sources of Rights to Access Public Information, 4 WILLIAM & MARY BILL OF RIGHTS J. 179, 184 (1995) (explaining and criticizing agency temptations to set up state monopolies over government information); Should Local Governments Sell Local Spatial Databases Through State Monopolies?, 35 JURIMETRICS J. 449, 454-55 (1995) (same).
16 A good example of a commitment to a policy of diversity is expressed in the Paperwork Reduction Act Amendments of 1996, Pub.L. 104-13, 109 Stat 163 (May 22, 1995), which amended 44 U.S.C. § 3506 to read as follows, in material part:
"(d) With respect to information dissemination, each agency shall--
"(1) ensure that the public has timely and equitable access to the agency's public information, including ensuring such access through--
"(A) encouraging a diversity of public and private sources for information based on government public information;
"(B) in cases in which the agency provides public information maintained in electronic format, providing timely and equitable access to the underlying data (in whole or in part); and
"(C) agency dissemination of public information in an efficient, effective, and economical manner . . . ."
17 See Henry H. Perritt, Jr. & Christopher J. Lhulier, Information Access Rights Based on International Human Rights Law, 45 BUFF. L. REV. 899 (1997). In the United States, the Paperwork Reduction Act amendments to 44 U.S.C. § 3506(d), appropriately continue:
"(4) [With respect to information dissemination, each agency shall] not, except where specifically authorized by statute--
"(A) establish an exclusive, restricted, or other distribution arrangement that interferes with timely and equitable availability of public information to the public;
"(B) restrict or regulate the use, resale, or redissemination of public information by the public;
"(C) charge fees or royalties for resale or redissemination of public information; or
"(D) establish user fees for public information that exceed the cost of dissemination."