The Rise of Cyberlaw

Today’s CEOs and management not only need to worry about profit margins, market analysis, and mergers and acquisitions; now they also need to step into a world of practicing security with due care, understanding and complying with new government privacy and information security regulations, risking civil and criminal liability for security failures (including the possibility of being held personally liable for certain security breaches), and trying to comprehend and address the myriad of ways in which information security problems can affect their companies. Business managers must develop at least a passing familiarity with the technical, systemic, and physical elements of information security. They also need to become sufficiently well-versed in relevant legal and regulatory requirements to address the competitive pressures and consumer expectations associated with privacy and security that affect decision making in the information security area—a large and ever-growing area of our economy.

Just as businesspeople must increasingly turn to security professionals for advice in seeking to protect their company’s assets, operations, and infrastructure, so, too, must they turn to legal professionals for assistance in navigating the changing legal land- scape in the privacy and information security area. Legislators, governmental and private information security organizations, and law enforcement professionals are

constantly updating laws and related investigative techniques in an effort to counter each new and emerging form of attack and technique that the bad guys come up with. This means security technology developers and other professionals are constantly trying to outsmart sophisticated attackers, and vice versa. In this context, the laws being enacted provide an accumulated and constantly evolving set of rules that attempts to stay in step with new types of crimes and how they are carried out.

Compounding the challenge for business is the fact that the information security situation is not static; it is highly fluid and will remain so for the foreseeable future. Networks are increasingly porous to accommodate the wide range of access points needed to conduct business. These and other new technologies are also giving rise to new transaction structures and ways of doing business. All of these changes challenge the existing rules and laws that seek to govern such transactions. Like business leaders, those involved in the legal system, including attorneys, legislators, government regulators, judges, and others, also need to be properly versed in developing laws and in customer and supplier product and service expectations that drive the quickening evolution of new ways of transacting business—all of which can be captured in the term cyberlaw.

Cyberlaw is a broad term encompassing many elements of the legal structure that are associated with this rapidly evolving area. The increasing prominence of cyberlaw is not surprising if you consider that the first daily act of millions of American workers is to turn on their computers (frequently after they have already made ample use of their other Internet access devices and cell phones). These acts are innocuous to most people who have become accustomed to easy and robust connections to the Internet and oth- er networks as a regular part of life. But this ease of access also results in business risk, since network openness can also enable unauthorized access to networks, computers, and data, including access that violates various laws,

Cyberlaw touches on many elements of business, including how a company contracts and interacts with its suppliers and customers, sets policies for employees handling data and accessing company systems, uses computers to comply with government regulations and programs, and so on. A very important subset of these laws is the group of laws directed at preventing and punishing unauthorized access to computer networks and data. This chapter focuses on the most significant of these laws. Security professionals should be familiar with these laws, since they are expected to work in the construct the laws provide. A misunderstanding of these ever-evolving laws, which is certainly possible given the complexity of computer crimes, can, in the extreme case, result in the innocent being prosecuted or the guilty remaining free. And usually it is the guilty ones who get to remain free.