Cyber Crimes
Maybe You Should
Talk to an E-lawyer
It
would be a stretch to suggest the past 18 months have in any way been
good ones for dot-coms. Still, most agree that the Internet will
continue to alter just about every aspect of the way we live, work and
conduct business.
It is also reshaping many of our laws as they relate to commercial
transactions.
“With the Internet, a business can reach so many more customers in
so many different places — and that’s good,” says Matt Cummings,
an associate with the Greensboro-based law firm of Adams Kleemeier.
“But that does open them up to new risks.”
Many North Carolina companies that were used to selling only to North
Carolinians suddenly find themselves with customers in all 50 states
and abroad. Many fail to realize the legal complexities that come into
play if something goes wrong — an intellectual property dispute,
product liability claim or software licensing violation, for instance.
“This is really nothing new, but people get so excited about the
ability of the Internet in commerce that they often overlook the legal
implications,” Cummings explains.
For its part, public policy is trying to keep up. In 2000, Congress
passed a bill giving electronic documents, executed with an electronic
signature, the full binding force of a traditional ink-signed
document. The Electronic Signatures in Global and National Commerce
Act (a.k.a. “The e-Sign Act”) has sharply raised the speed limit
on the Information Superhighway, says Cummings, who believes the law
has had the added benefit of boosting the confidence of consumers
doing business online.
The e-Sign Act created consistent legal standards governing the
enforceability of contracts created by parties using electronic
signatures. A good example: proposing and accepting the terms of an
agreement transmitted via e-mail.
“The question we get most regularly is about electronic
contracting,” Cummings says. The e-Sign Act, he explains, defines an
electronic signature as an electronic sound, symbol or process created
by an individual and executed by that person with an intent to sign a
record. Anyone receiving a contract offer via e-mail may enter into it
by e-mailing a reply accepting the offer stated in the originating
e-mail.
“However, a party to an electronic agreement must clearly express
his consent to be bound by the terms of contract,” cautions
Cummings, “and litigation may still arise if one party does not
definitively express his intent to be bound or if the terms of the
agreement are not stated clearly.”
There is, of course, far more to it than that. So much so that Adams
Kleemeier and other law firms have organized e-commerce and technology
practice groups. The late 1990s witnessed a flood of interest in this
arena of law, though the recent economic slowdown has quieted that
tide somewhat.
“Most business lawyers are doing e-commerce (law) now,” says
Cummings. But all may not be expert in it. There is nothing as yet in
the way of a certification in the specialty, though that too may be in
the works. “It’s uncertain where all this is going to go,” he
says. In the meantime, Cummings offers this advice to those seeking
legal counsel on technology and e-commerce issues: “Ask the lawyer
what they’ve done previously in this area in order to get a feel for
whether they’re qualified.”
The emergence of e-commerce law has required law schools to make
adjustments to their curricula. “We know there is interest in this
from students,” says Laura Gasaway, a professor who teaches
cyberspace law at the University of North Carolina School of Law. In
response to demand, the school recently added a faculty experienced in
the area and is considering a new course to deal specifically with
e-commerce. At the moment, most tech law issues are taught in the
context of existing courses such as intellectual property and
contracts.
“There is not really an e-commerce body of law,” says Jeffrey
Hoffman, the CEO of Chapel Hill-based webslingerZ Inc. and a 1998
graduate of UNC Law. “The key is to understand how current law
becomes applicable to web-based transactions.” More important than
training law students on the nuances of e-commerce, Hoffman believes,
is providing them instruction in entrepreneurial law. “Dealing with
e-commerce would be a part of that as it’s germane to almost all
companies these days. However, there are many other issues relevant to
high-tech startups that are often excluded from law school
curricula.”
Hoffman and others recently formed the Council for Entrepreneurial Law
at UNC. The group aims to help position the School of Law as a
resource for the entrepreneurial economy both in North Carolina and
elsewhere. Its first event, an all-day program entitled “The Art of
Advising a High Technology Company,” was held in mid-November. The
gathering attracted some 75 attendees drawn from the ranks of both law
students and practicing attorneys. -- Lawrence Bivins
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