Constitutional Law in the Electronic Age

By Reynolds, Larry | Management Review, September 1992 | Go to article overview

Constitutional Law in the Electronic Age

Reynolds, Larry, Management Review

Officials at an Austin, Texas-based designer of electronic fantasy games were shocked when the company was raided by Justice Department agents investigating one of its employees for using company equipment as part of an independent computer fraud ring. By the time they finished, the agents had seized most of the company's computer equipment, including confidential instructions for a new product the business was developing, as potential evidence.

Suspecting some of its programmers of selling trade secrets to competitors, a California software firm began monitoring its corporate electronic mail system for suspicious transmissions. The culprits were uncovered, but the company now is being sued by the alleged industrial spies for invading their personal privacy.

Sophisticated computers and electronic information networks play an increasingly vital and commonplace role in the everyday transactions of individuals and businesses alike. Electronic tools that most people hadn't even heard of a few years ago are being taken for granted today. All this new technology not only has made it faster and easier to complete business functions, ranging from processing payrolls to prospecting for oil, but is "creating new ways and forms for people to communicate," notes technology policy expert Dan Weitzner. Additionally, technology is providing individual white-collar criminals and organized drug rings with more efficient ways to run their illegal enterprises.

Regulatory Void

Until now, most regulations and laws governing computers and computerized databases focused on the actual equipment or hardware, with little or no formal policy about how the information produced by these machines and electronic networks could be used or transmitted. However, just as the pioneers did when they first settled the Wild West, many experts are saying that we must start setting ground rules governing today's electronic frontiers, including such issues as personal privacy versus corporate proprietary rights, data transmissions, and the way in which legal rules of evidence apply to information stored in computers.

"There is an information policy vacuum in this country. Most of the rules of the existing legal system can't be squared against the advances made by the computer revolution," says Lance Hoffman, professor of computer science at George Washington University. "However, it looks like we'll have to have an electronic Chernobyl before the government does anything."

Always having operated with almost total freedom, many computer technologists are afraid that the slightest government interference could inhibit innovation and limit access to information. Argues billionaire software entrepreneur Mitch Kapor: "To help civilize the new electronic frontier and make it useful and beneficial to everyone--and not just the technical elite--we have to keep with our society's highest traditions of free and open flow of information and communications."

Meanwhile, a legislative war also is being waged in Washington over the fundamental question of what kinds of companies should be allowed even to offer many of the new electronic services and products of the future. The regional telephone companies are spending millions to persuade Congress to lift restrictions that prevent them from expanding into these new--and potentially lucrative--information and entertainment markets. Fearing for their existence, newspaper publishers, cable television operators, video store owners and other companies, also are spending bucks to keep the telephone companies out of their business back yard.

E-Mail Migraines

When it comes to personal privacy issues, one of the biggest potential problem areas in the average workplace is the use and company monitoring of employee electronic mail. Similar to the rules governing telephone wire taps, the government can't monitor a company's e-mail transmissions without first obtaining a warrant. …

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