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Law Reform and the Internet
John D. Gregory
General Counsel, Policy Branch
Ministry of the Attorney General (Ontario)
The Internet is in its early days. Its widespread popular use is less than a decade old, dating in effect from the appearance
of accessible browsers for the World Wide Web in about 1993. (1) People are still coming on line, more quickly among
certain parts of the population - and of the world - than others (2). Uses are developing, the technology itself is evolving.
So both the tools and their users are new.
As a result, this essay sets out just the beginnings of an analysis of how the Internet can affect law reform, and tells some
stories of its early use. The main story here is largely that of my own experience in developing the law applicable to
electronic communications in Canada.
The story is not limited to the World Wide Web, though that is a valuable tool for law reformers as it is for others.
Elements of Law Reform
The process of law reform is more or less formal, depending on the forum and the subject. Sometimes the elements merge,
or the steps are compressed. Nevertheless it can be argued with some confidence that law reform follows the following
steps, most of the time:
- Identification of a problem
- Demand for a solution (knowing problem is not enough - agendas and concerns vary)
- Development of options for a solution
- Analysis of options
- Recommendation to policy makers or legislators
- Focus of political will to resolve problem (by those capable of taking action)
- Legally effective action (legislation, regulation, program spending, …)
These elements interrelate at different times. The amount and source of the demand for a solution affects the political will
among those capable of acting, and the likelihood of getting some action affects the likelihood that something will become
a "live" issue at all. The political orientation of the political actors will affect to some extent the range of options that
appear realistic. None of this is new or particularly subtle.
Some of these elements will be more susceptible of assistance through the Internet than others. You can't automate
judgment, but you can multiply information and ideas.
Features of the Internet
The Internet offers a number of features that make it relevant to law reform. Some of these features may have both
advantages and disadvantages for the law reformer. It is:
- vast: there is a huge range of information and ideas available in all those computers
- fast: much of the information is available at the time one wants it
- searchable: there are paths to and through the information
- global: one is not confined to local ideas or solutions or perspectives
- linked: one can track ideas and information from site to site, refining or broadening as one goes
- unmediated: one can get ideas directly from their source, without interference or quality control
- accessible (i) = available with relatively little effort
- accessible (ii) = usable by anyone with a cheap computer and an ISP
- automated: information is traceable and sortable and shareable beyond the capacity of one person to handle
- variable in focus: communications may be sent one-to-one, one-to-many or many-to-many, unlike most other
media which have a single focus or distribution pattern
- interactive: communications can work in both directions, whether responses are live, deferred, or automated.
As noted, these features are more applicable to some of the elements of law reform than others. The vast, fast, linked and
searchable information that makes the Internet so useful for legal research generally also makes it useful to develop options
to solve problems and to analyse the options. Those are the elements of law reform that most resemble other legal
research.
Besides these "passive" features, available to be used or not, there are several features that one can describe as "active".
They depend on the communications function, with targeted and often interactive messages. Messages into government
can affect the identification of a problem, demonstrate a demand for a solution, and focus the political will of those
responsible for taking action. Messages out from government can inquire about options for solutions, can test the analysis
of those options and the acceptability of a recommendation. (3)
The ease with which Internet messages can be sent from multiple adresses, or to multiple addresses, gives these
communications unique status. The interactivity permits large scale feedback, in both directions, making the law reform
process much more of a conversation than it has been outside the setting of a town hall in a small community. (4)
It is arguable that these communications features are what make the Internet valuable to law reform in a way that it is not
to normal legal research.
Participants in law reform
Looking at communications directs attention at the participants in law reform and how they are served by the Internet.
The traditional major participant in law reform is of course the government. Internet communications allows civil servants
and politicians alike to broaden their resources and get in touch with more people. Most governments and political parties
and many individual politicians have web sites that offer information and to which messages may be sent. Many civil
servants have electronic mail to keep in touch within government, with civil servants in other governments, and with those
interested in the programs and statutes of their own departments.
Academics have often promoted the reform of legislation through their writings and speeches. They are among the early
users of the Internet, though much of that use has been directed to research rather than advocacy. Mailing lists and web
sites can promote views and criticisms of the law, leading in some cases to pressure for changes.
The biggest winners from the Internet are probably non-governmental organizations, known as NGOs. These groups may
be commercial or non-commercial, narrowly or widely based, reasonable or unreasonable to deal with. While the
existence of NGOs is not new, the power that the Net gives them to communicate information, form alliances, put pressure
on governments, and generally be visible and legitimate has increased dramatically. One thinks of their influence in
international discussions in recent years: against the Multilateral Agreement on Investment from the World Trade
Organization; in favour of the International Criminal Court; in favour of strengthening environmental standards at the Rio
conference; against globalization in Seattle and several other forums in the past year or so. (5) The sharing of information
and plans is qualitatively different from what it could be with letter mail, telephone and fax.
Even the traditionally less effective "concerned citizens" are given new arms by the Internet - including the ability to find
allies, collaborate, and turn themselves into new NGOs! The Internet "reduces transaction costs", in the law and
economics jargon. Communications with a wide variety of people is little more expensive than communicating to a
neighbour across the street. New voices can be heard far more readily than they could when publishing one's ideas meant
acquiring a printing press or persuading or paying the owner of a press to provide space.
Finally, the Internet has extended the scope of the participants in law reform well beyond one's national borders. Experts
and foreign quasi-public organizations have increased their role, by being accessible to law reformers anywhere in the
world. One thinks of course of the more or less passive data banks of law reform projects around the globe, as maintained
by the British Columbia Law Institute. (6) The accessibility of experts is greater, however. In many cases one can just
locate an expert's e-mail address and ask! This could be done in writing as well, and still is, but the immediacy and the
potential for dialog makes the process more valuable. (7)
Disadvantages of the Internet in law reform
The contribution of the Internet to law reform is mainly positive, but some disadvantages must be recognized.
The most important is the variable reliability of any information that one finds online. There is something to the old
description of "the Net of a million lies". (8) Information on the World Wide Web may be put there by anyone for any
reason; there is no gatekeeper, no editor. Before the World Wide Web existed, most information available on line was
found in academic databases or at least in university computers: not a guarantee of trustworthiness either, but less likely to
have been put there deliberately to mislead an incautious visitor.
Besides the problematic passive information, one has the challenge of deciding if one's sources of active communication
are what they say they are. Are the experts really expert? Do the representatives of stakeholders really represent them?
Technology allows small numbers of people to appear to be more numerous than they are, by repetitive automated
messages, well-designed web sites, and the like. Internet technology will lead to some scepticism about who is who and
who represents whom. On the Internet, no one knows if you're a … real NGO. (9)
Assuming that one knows the real experts or the real representatives, do the messages that purport to come from them
actually come from them? It is not difficult (apparently) to "spoof" an electronic message, so it appears to come from
someone else. Stories abound of official web sites being taken over by opponents or critics of the official sponsors of the
sites. Even public records may be tampered with.
The capacity for bulk mail can of course also make it easier to ignore messages in this medium. One can configure an
electronic mail system to highlight or to delete messages on particular subjects or from particular sources. So
communications are far from assured, even if the technology succeeds in getting the message to the addressee's computer,
which is by no means guaranteed. (10)
Although these are not new problems, one loses on the Internet some of the indicia of reliability that one may have in
personal or even paper-based communications. Electronic security is a growing business these days, and there are
solutions to many of these problems. The solutions often involve expense, and they may apply only within bounded
systems or among those linked by contract or at least by common hardware or software. They reduce the advantages of the
global reach of the Net.
Using the Internet: Reforming Private Law
This part of the text describes the use made of the Internet in developing the Uniform Electronic Commerce Act and its
implementation in Ontario and other provinces.
The Uniform Law Conference of Canada (ULCC), a law reform and harmonization body sponsored by the federal,
provincial and territorial justice departments, set up in 1997 a working group to develop a Canadian statute to implement
here the United Nations Model Law on Electronic Commerce. (11) The working group was to consist of a small number of
experts in information technology law. Some of these were in Toronto, but some were in Ottawa and some elsewhere in
the country.
It was decided to link the members of the group through an electronic mailing list, known informally as a "listserve". (12)
The mailing list operates as a central relay point for electronic mail. Any member of the list could send an e-mail message
to the server, which would send it in turn to all members of the list. A reply to the server would likewise go to all
members. In this way all members could participate in a conversation on a topic, or just "listen in". Since the messages
had a subject line, it was easy to have discussions going on at the same time on different subjects and keep track of them
all.
This list was set up on an Industry Canada server, thanks to the interests of the federal government in harmonized
legislation on electronic commerce, and the personal help of Michael Power, then the "Electronic Commerce Secretariat"
for the federal Department of Justice with an office in Industry Canada.
The list was used in the early stages to convene meetings of the working group - to test people's availability and canvass
possible locations. One of the early topics of substance for the group was whether the Uniform Act would be an "opt in"
or an "opt out" statute. Would it apply to all legal relations not expressly excluded, or would some extra action be needed
to bring it into force for particular cases? Members of the group volunteered to write brief submissions on each point of
view, and they were distributed to members by the list. (13) A few arguments were made on line, but most of the discussion
on this point occurred in the physical meetings.
Over time the mailing list grew. The discussions at the meetings did not involve a great deal of confidential discussions,
and it was thought that the list could be opened to a broader group without loss of frankness. A level of expertise was no
longer needed to join the list; an interest in the subject was sufficient. After all, it requires no more effort to send a
message to 20 or to 200 people on an Internet list. By the time of the adoption of the Uniform Act in the late summer of
1999, the list had about 140 members (14), and today it has about 225. A number of international observers have joined,
notably some members of the drafting committee for the American Uniform Electronic Transactions Act and several
delegates to the United Nations Working Group on Electronic Signatures. These people have frequently provided useful
perspective from their own similar projects.
The list has been a very useful sounding board for ideas or theories or debates on particular issues that the working group
faced in drafting. It has served to a large extent as the government's consultation with the people most knowledgeable
about the law in the field. Private sector lawyers from across the country are on the list, as well as a selection of
academics. Almost every provincial and territorial government has been represented on the list as well, so policy
development and feedback on it could be uniform in a way that the ULCC had not achieved before. The list has had a few
postings in French, which I have accompanied by a summary or translation for the assistance of those who needed them.
Among the issues where the discussion was most helpful were the rules on receiving electronic messages; the need for a
reliability test for electronic signatures; the formalities for designating beneficiaries of insurance policies and retirement
plans; and the method of creating an electronic equivalent of a seal. Here are some examples of the issues that we
canvassed through this medium.
(i) receipt of electronic messages
The UNCITRAL Model Law on Electronic Commerce provides a rule on when an electronic message is received. Such a
rule is useful because of the presence of intermediaries between the sender and the recipient. At what stage is the message
received for legal purposes? The Model Law says: when it enters an information system designated by the addressee for
such messages (Article 15). The US draft uniform statute, the UETA, had added to this the need for the message to be
accessible and processable by the recipient, and these elements were picked up in Canada too (UECA section 23).
However, electronic mail is known to experience problems with delivery. Just how reliable is it? Is it fair to say that for
all legal purposes a person has received a message that enters his or her designated information system? What of messages
to undesignated systems? The Model Law says the message is received when it is retrieved by the addressee. The UETA
is silent. Does it make sense to have such a rule anyway if one will be unable to prove when the message entered the
information system, say because the ISP does not keep message logs beyond a couple of months (a common practice)?
Can someone claim to have sent a message if he or she gets back a notice that delivery has failed, or does it matter what
reason is given for the failure (e.g. host unknown, user unknown, "user unavailable to receive message", etc)?
All of these questions were discussed on the list. We heard from technical experts who stressed the unreliability of e-mail;
we saw a copy of testimony presented to the Federal Trade Commission in the US to the same effect. A representative of
the Canadian Association of Internet Providers discussed the log-keeping practices of CAIP members. A US observer
argued that the practical availability of evidence should not affect the choice of principle about when the message was
received. It was noted as well that Australia had developed a rule about undesignated information systems that relied on
actual notice of the availability of the message.
As a result of this discussion, the UECA contains a presumption rather than a rule about receiving messages, so that those
who still do not receive the message have the ability to avoid the consequences of receipt. (15) It also adopts the Australian
solution for undesignated systems.
(ii) reliability of signatures
The UN Model Law says that a legal requirement for a person's signature can be met by a method that identifies the person
and indicates his or her approval of the message, if the method is as reliable as appropriate for the purposes for which it
was used, under all the circumstances (Article 7). The UECA defines an electronic signature as electronic data created or
adopted by a person in order to sign a document and in, attached to or associated with the document (section 1). In the
light of that definition and our law in general, should we have a reliability test as in the Model Law?
The list saw submissions that the doubtful reliability of many electronic signatures required caution in a legal test; that the
language was too vague, as it really could be applied only after a signature had been created and used, so the signer could
not know at the time that the signature would be acceptable; that there was no equivalent requirement that a handwritten
signature be reliable; and that an additional test of reliability would be a kind of wild card that courts could use against
signatures even though all the elements of the definition - identity, intent, link to the signed document - were proved.
Ultimately - and it was between the meeting of the Conference that approved the UECA and the circulation of the final
draft, so it needed special dispensation from the members of the Civil Section - the final argument proved decisive. The
person alleging the signature would have to prove the elements of the definition, in a way that one did not do under the
Model Law. Section 10 of the UECA says that a signature requirement may be met simply by an electronic signature.
However, the UECA also gives power to make regulations to insert the Model Law's appropriate reliability test for
particular signatures. (Ontario's implementing statute also allows regulations on specific e-signing methods.)
(iii) designating beneficiaries
The UECA does not apply to wills, among other documents. It also does not apply to trusts created by wills. It uses this
expression, rather than the common legal term "testamentary trusts", because it was suggested in one working group
meeting that "testamentary trusts" would exclude electronic documents to designate beneficiaries under life insurance
policies and under pension and retirement plans. Although these designations operate after death of the designator, statute
law makes them effective without the formalities of a will.
After adoption of the UECA, however, at least two provincial governments received a letter from an insurance industry
association, asking that the designation of beneficiaries be clearly included in any provincial legislation to implement the
Uniform Act. Most provinces define a "will" broadly enough to cover such a designation, so the exclusion of wills from
the UECA would exclude designations, regardless of the other rules about their formalities.
The list was asked whether such designations should be covered by the Act. A number of postings said that they should
not be. Electronic documents created by individuals, often without legal and usually without technical advice, might be
unreliable, especially when the designator would be dead when the validity of the document came to be tested. The
existence of statutes alleviating formalities for paper documents did not impress. Some of the comments in this sense
came from lawyers for banks, which themselves issue RRSPs and similar instruments requiring designation of
beneficiaries, so the advice went against the interests of the banks to carry on their business electronically. Other opinions
were posted as well, but this one carried the day - at least for the provinces that have implemented the UECA so far.
(iv) electronic seals
At the legislative committee hearings on Ontario's Electronic Commerce Act 2000, Bill 88, the Canadian Bankers'
Association deplored the lack of authority to use an electronic seal. The Association pointed out that a number of
documents used in banking required a seal, and they would have to stay on paper unless some electronic equivalent was
found. (16)
The UECA said nothing about electronic seals because it was not known what they might be. The federal statute, Bill C-6,
said that provisions of federal law requiring a seal might be satisfied with a "secure electronic signature", which is likely to
be a digital signature created by public key cryptography and supported by the Government of Canada's Public Key
Infrastructure. (17) However, no regulations or designations of seal requirements have yet been made in Ottawa.
Meanwhile, the Uniform Act did not provide for a different class of signatures.
The list was asked whether there was a good way of providing an electronic equivalent to seals. This provoked one of the
most voluminous discussions in the three-year history of the list - 37 messages. We heard about the recent Supreme Court
of Canada decision affirming the legal effect of seals (18); we heard about the different uses of seals: to authenticate the
source of (usually public) records, to show seriousness of legal intent, to replace consideration in contracts, to preserve the
integrity of documents. Some argued that we should take the opportunity to abolish seals altogether, or eliminate the need
for them for electronic documents, while others thought that nothing should be done without extensive consultation and
thought.
It was proposed that an electronic document that purported to be under seal would be deemed to be sealed, even if no
additional "seal" was added in any way. However, this in turn was said to be the equivalent of abolishing the seal
requirement, which some thought a good thing and some thought an improper derogation of the legal principle behind seals
at all. List members also reported on the seals provisions in the Bills of Exchange Act and the Evidence Act, and about a
British Columbia Law Reform Commission report on the topic, as well as explanations of English and American law.
In the end the Ontario government introduced an amendment to its bill to authorize regulations to prescribe the electronic
equivalent of a seal (subsection 11(6)). One imagines that it would be possible to regulate equivalents of some kinds of
seal while leaving others to require paper. To date no other province has followed Ontario's lead on this issue.
From these four examples one can see the richness of the potential policy discussions from a mailing list. One cannot see
the speed, but that is a factor too. The first message on seals preceded the 37th by only a week. Given the time by which
amendments had to be submitted to the committee, the speed was important.
The examples do not include policy questions raised for the list to which the list did not respond at all, or only in small
numbers. One cannot force people to respond, and there is a limit to the inducements one may offer. "Your silence is your
consent" was not an effective stimulus to comment. On the other hand the list, even when silent, is a good method to
spread understanding of the policy goals and implications of legislation. Members of the list regularly remark on how
useful they find the discussions, even when they do not participate in them.
One feature that would have added considerable value to the list on electronic commerce is an archive. Software is
available to keep the postings to the list, usually on a web site, sorted by author, date and topic (19). A library of the themes
and viewpoints of the mailing list would be an important contribution to the literature on e-commerce law in Canada.
When one creates an archive, however, one must deal with the status of messages. Will all members of the list want their
views - possibly hasty - available over the long term to anyone who wants to search for them? Could they be used to
embarrass a member who later represents a client with a different interest?
Mailing lists dedicated to law reform are relatively well known in the United States, especially in the hands of NGOs. The
American Bar Association runs a large number of lists in its various sections, some restricted to members of the section
and some open to the public. Some are more strictly dedicated to developing the law, and some are more open to simple -
but often valuable - exchanges of views and information.
There are many mailing lists on legal topics on the Internet (20), some of which lend themselves to policy discussions better
than others. Occasionally it is productive to inquire of a specialized list run by someone else - or even an unmoderated list
- to test the waters, to seek focused information, and the like.
This discussion has not dealt with newsgroups, chat rooms or other methods of Internet communication. My limited and
not very recent experience with them does not inspire confidence in the quality or the manageable quantity of the
discussions.
Another method of managing law reform on line is to build an interactive web site. This device was used for the Uniform
Electronic Transactions Act in the United States, though by a private developer not by the sponsor of the Act. The site
accepted postings and articles on the topics under discussion by the Drafting Committee, and records of the discussions at
the meetings of the Committee. It was used by members of the Drafting Committee and by other interested parties. Now
it is used to link to states' implementing legislation, and to discuss subjects of current interest about the Uniform Act. (21)
On a less detailed level, the federal Department of Justice has published consultation documents online to develop
Canadian positions for international meetings, especially on e-commerce issues. Industry Canada has done the same on
questions of authentication. (22) The federal government is required by law to publish proposed regulations 90 days before
they come into effect, for the purpose of collecting public views of them. This is done through the Canada Gazette, which
is available via the Internet these days, as well as by more traditional methods (23). Similar but more extensive consultations
are conducted in the United States through web sites, and they are beginning to be held in other countries as well.
The Uniform Law Conference supplemented its mailing list with a small collection of documents on electronic commerce
that it posted to its web site, to enrich the discussions with more detail than electronic mail could support. (24) This has
proved popular. The study on Internet jurisdiction is the single most requested document on the ULCC site. (25)
On the web, those interested in the topic have to go look for it, rather than have the discussion show up in their mailbox
automatically. Both these features are compensable by software, however. There are free services that will notify
someone if a particular web site has changed, so that postings would be brought to the attention of the member.
Sometimes the site itself offers update notices. Closer to one's own server, many e-mail systems will sort incoming mail
and direct it to particular folders or directories even before it is read, so matters relating to the same topic can be
considered together at a convenient time.
Using the Internet: Reforming Public Law
The preceding section has focussed on reforming "private law", by which is meant law that governs the relations of private
parties to each other. However, the electronic commerce legislation, despite its name, intends to govern relations between
public bodies and private ones. The UECA says in section 3 that the Act binds the Crown. In short, the boundary between
private law and public law is not well defined.
This section, however, will sketch three short notes about law reform efforts aimed at different targets than commercial
law. These efforts focus on the principles of government itself, either in its capacity as government or in the exercise of
democratic rights inherent in many governments around the world.
The first example is the law of electronic government itself. To some extent "e-government" is just the latest trendy phrase
in a line from the information (super)highway to e-commerce through e-business. In most of its uses today it refers to
electronic service delivery (ESD to its practitioners): relating to the citizens and "clients" of government through electronic
communications. This kind of activity raises interesting legal questions about liability and reliability, about security and
trust. It does not necessarily involve law reform on the Internet, so much as law reform to facilitate the use of the Internet
for other purposes.
However, people are starting to become aware that more efficient provision of government services by electronic means
has implications for the accountability of government programs and the maintenance of other public values. The more the
government, or several governments, provide their services through "one window", the harder it is to see who is
responsible for the quality of the services. Likewise, the more the government centralizes its services for efficiency, the
more personal information about citizens is shared among departments and, again, levels of government. This raises
privacy concerns that are hard to dismiss.
These issues touch law reform through the Internet because they involve questions about the relationship of citizens to
each other in the electronic era that need to be examined using the Internet. Those most familiar with the Internet will
have the best chance of providing useful answers to them At present the Centre for Collaborative Government in Ottawa is
developing a public consultation on these subjects in conjunction with Reg Alcock, M.P. A focused conference will be
held in Ottawa in March 2001, after real and electronic discussions across the country. It is too early to tell how successful
this will be on its own terms or in stimulating future law reform in a similar vein. (26)
The second example of public law reform and the Internet is electronic democracy in action, in particular electronic voting.
A number of experiments in electronic voting were held during the recent American national elections, and these will be
analysed and refined for the next round. Voting is one of the essential steps in democratic law-making. It is therefore a
form of law reform, even at the low level of subtlety expressed in the old phrase "throw the rascals out!"
A variant of electronic voting is electronic plebiscite or electronic referendum. This brings the law reform edge closer to
the specific law, depending on the status of the results of the vote. In some U.S. states, the voters adopt propositions that
then bind their legislatures. If this is done at election time, it can be done at other times. People debate whether such
"direct democracy" is good or bad, dangerous or promising, but it invokes a law reform agenda and these days, electronic
communications usually depend on an Internet protocol and most often use of the Internet itself.
Again we are in the early stages of this process - even earlier in Canada than in our southern neighbours. The implications
of using the Internet with such direct impact on our laws are not well understood. They will have to be considered, though.
The move to such uses of the Net will not be resistible without good reasons.
The third example returns to the international level. The activity of NGOs in making their ideas known and effectively
felt, either inside the boardrooms or on the streets, has already been mentioned. So too has the potential of the Internet to
reduce the economic divide; the infrastructure costs of building an electronic economy, for getting access to the Internet,
are lower than those of building other methods of communication. Thus we see remote or devastated economies betting
heavily on the Internet to modernize their nations. (27)
The Internet is providing the tools of democracy directly in countries that lack them. Much work has been done at the
community level in Bosnia and more recently in Kosovo to restore political and social links among the people. Dean
Perritt speaks of the Net's ability to "enhance the functioning of state-based and international legal institutions through the
Internet." (28) This discussion explores in detail the characteristics of the Internet that suit it to this kind of fundamental law-building. Among them are its decentralized nature, which helps avoid both physical obstacles, whether caused by war or
other disasters, and intentional obstacles like attempts to censor it. New kinds of intermediaries will grow, creating a new
kind of state in the remains of an old, inefficient, and undemocratic one.
The Internet does not necessarily promote democracy, of course. Methods of avoiding censorship are also methods of
avoiding law enforcement and responsibility. Not all revolutionaries have good motives (and not everyone sees "good" in
the same way). So we will have the traditional challenges of ensuring that the right principles prevail, but in a new world
of communications and group dynamics. Such novelties will arguably spread more quickly in places where the old
communications and social infrastructure is in disarray, rather than in places that are more heavily wired but also more
solid in their pre-Internet social, political and economic assumptions.
Public law reform has thus a number of fronts to grow on, and it would be hardy to predict what the next ten years will
bring. It is however safe to predict that the Internet will have a serious and enduring impact on political and policy
processes in this field.
Hidden Law Reform
A discussion of the impact of the Internet on law reform would not be complete without looking at the effect that
technological choices themselves make on relations otherwise governed by law. The way technology works is not
necessarily neutral in its values. It creates winners and losers not just among shareholders of dot.coms but among those
who depend on communications. That is a large group today.
This brief note is intended to draw the reader's attention to the thesis of Professor Lawrence Lessig, notably expressed in
his book, The Code. (29) The code of which he writes is the code in which electronic communications systems are written,
and the protocols that govern the exchange of information on the Internet. This code, or these codes, can be written in a
way that enables their writers to control the flow of information, for the benefit of the writers.
Information is fundamental to an open economy and an open society. It is hard to monopolize information. There are no
common law rights in information that has been made public. The law has traditionally granted certain limited monopolies
in order to give a chance for creators of information to get an economic return from its creation, to encourage them to
create it. Thus statutes grant patents, trade marks, and copyright, and some variants of them.
But these monopolies are limited in time, and they are limited in scope. Particularly copyright, which lasts a long time
(life of the author plus fifty years, or more), is limited. Copyrighted information can be used without permission and
payment for purposes set out in the statute. In Canada, "fair dealing" is permitted, and some uses without commercial
purpose that are not thought to cost the copyright owner dearly. Libraries have some rights, and educators. The scope of
these rights has been debated, and methods of compensating authors developed, such as the public lending right for library
materials.
Technology can reduce those rights without amending the law. It is possible to prevent someone from copying an
electronic text. A recent news story reports that Sony uses code to prevent Digital Video Disks from being played at all
outside specified regions of the world (30). Presumably this is intended to reduce global piracy, but it means that the
copyright owner, not the statute, decides the limits on the use of its information.
Such limits on copying are sometimes themselves backed up by statute, as they are in the United States, where the Digital
Millennium Copyright Act makes illegal any disabling of technology that prevents copying. One understands the interest
of the copyright owners in maintaining the integrity of their systems, but it strengthens their control, not legal control, over
who copies.
In the United States at least there is beginning to be some awareness of and resistance to this kind of technology-assisted
law. The Uniform Computer Information Transactions Act (UCITA) was adopted by the National Conference of
Commissioners on Uniform State Laws (NCCUSL) in the summer of 1999. Article 816 permitted "self-help" for licensors
of information to prevent extra-contractual use of their licensed information (largely software). After considerable
criticism, based in large part on the ability of such remedies to override the balances in copyright law. UCITA was
amended in the summer of 2000 to restrict the use of self-help remedies, especially in "mass market" licences which were
not subject to meaningful negotiation between the parties. (31)
More recently, the Librarian of Congress published a rule to implement the anti-contravention provisions laid out in the
Digital Millennium Copyright Act (section 1201). They included administrative prohibitions on practices that the Act was
intended to discourage, including breaking of anti-copying software (except for finding out what sites filtering programs
filtered). This policy has been severely criticized by a number of library and civil liberties groups, and some legislators, on
the ground that it lets copyright owners control copying to a greater extent than general copyright policy allows. (32)
Lessig's work explores the implications of this kind of technology. Enough said for the present discussion. It is a reminder
that laws change for many reasons. Statutes grow old, conditions evolve. Technology changes the law. This too is law
reform, and the Internet and its protocols are part of the technology that changes the law and its potential impact.
Conclusion
The Internet is a very powerful tool for communications, and communications is an essential element of law reform. Not
all the processes of law reform benefit from the Net, but many do, both active and passive. We have seen both private law
and public law affected by use of the Internet, often in ways that promise unpredictable paths of development. Even the
technology promoted by, carried by, used by the Internet affects relationships traditionally protected by law.
In short, the Internet creates law reform whether legislators and policy developers know it or not. That is one more
challenge of law reform in the Internet age.
[November 2000]
1.
0 The Internet developed from an American military computer network known originally as ARPANET, which proposed to link computers in a way
that would resist breakdown if any part of the network were destroyed or damage. The first computers to talk to each other did so in 1969. This
system developed substantial academic uses for exchange of documents in the 1980s, and methods of searching what was available developed along
side: gopher, archie, veronica…
2.
0 UNESCO documents remind us that half the population of the world has not even made a telephone call, much less accessed the Internet.
Domestically there is much talk of a "digital divide" between parts of the population with access and those without. Those on the side of the divide
without access are sometimes described by literacy rates, economic class, race, or other factors, many of which overlap. Governments here and
elsewhere are making serious efforts to overcome this divide, through creating public access points in libraries and elsewhere, supplying computers
to schools, and other actions. See http://www.connect.gc.ca/en/100-e.htm.
3.
0 The sources of Internet communications can provide both passive and active information, as well. The line is not well defined, since the offer of
"passive" information may stimulate response, rebuttal, revision, and so on.
4.
0 One recognizes the limits both to the number of people on line, and who they may represent, and to the amount of information that can be
absorbed and responded to by any given policy group. The potential is nevertheless exciting and new.
5.
0 It is said that NGOs play a proportionately greater role in international than in domestic law reform, because the institutional structure for
international governmental functions is less complete than at home. See Henry H.Perritt, Jr, "The Internet and Public International Law", 88
Ky.L.R. 885, 894 (2000).
6.
0 See http://www.bcli.org for the database on law reform projects in the English-speaking world, originally assembled by its predecessor, the British
Columbia Law Reform Commission. This used to be available on diskette on request; it is now available any time, anywhere.
7.
0 For more examples, see my article, "Foreign Influences on Canada's Electronic Commerce Legislation",
http://www.interlog.com/~euclidav/foreign.html.
8.
0 The expression was used by Verner Vinge in Fire Upon the Deep (1992), a fictional description of an interstellar communications network
seemingly modelled on the Internet.
9.
0 The challenge is not completely new. One recalls the story of the seven tailors petitioning King Henry VIII with a document beginning "We, the
people of England, ….". The Internet and electronic publication facilities generally bring the production of very large effects within the reach of a
much larger population.
10.
0 On the reliability of e-mail, see Cem Kaner's testimony to the FTC at http://www.ftc.gov/bcp/ icpw/comments/kaner.htm .
11.
0 The Model Law and a Guide to Enactment were approved by the United Nations in 1996. They are on line at
http://www.uncitral.org/english/texts/electcom/ml-ec.htm
12.
0 "Listserv" is a trade mark of the maker of the software that manages an electronic mailing list. The two other main software packages for this
purpose are "Listproc" and "Majordomo". They have similar features.
13.
0 The federal government's statute, eventually enacted as Part 2 of the Personal Information Protection and Electronic Documents Act (Bill C-6),
S.C.2000 c.5, is an opt-in statute, and federal representatives on the working group made strong submissions for this approach. The Uniform
Electronic Commerce Act took the opposite view, although Manitoba has made part of its implementing legislation opt-in too. Here are the
citations to the Uniform Act and to all the provincial and territorial legislation or bills on the subject: the Uniform Electronic Commerce Act:
http://www.law.ualberta.ca/alri/ulc/current/euecafa.htm. Saskatchewan: The Electronic Documents and Information Act, S.S. c.E-7.22,
http://www.legassembly.sk.ca/ bills/HTML/bill038.htm. Manitoba: The Electronic Commerce and Information Act, C.C.S.M. c.E55,
http://www.gov.mb.ca/chc/statpub/free/pdf/b31-1s00.pdf. Ontario: the Electronic Commerce Act 2000, S.O. 2000 c.17,
http://www.ontla.on.ca/Documents/documentsindex.htm. The UECA has been introduced in British Columbia: the Electronic Transactions Act,
http://www.legis.gov.bc.ca/2000/1st_read/gov32-1.htm, Nova Scotia: the Electronic Commerce Act, http://www.gov.ns.ca/legi/legc/bills/58th_1st/
1st_read/b061.htm, and the Yukon: the Electronic Commerce Act, http://www.gov.yk.ca/leg-assembly/progress.html. The federal statute is at
http://www.parl.gc.ca/36/2/parlbus/chambus/house/bills/government/C-6/C-6_4/C-6_cover-E.html
14.
0 At that time it included all of the most frequently recommended experts in the field as identified by Lexpert
(http://www.lexpert.ca/areas/computer.html ); those listed there as knowledgeable who were not in the list were then invited to join, and some did.
Currently not a week goes by without adding somebody.
15.
0 The UECA does not deal with when an electronic message has legal effect, as distinct from when it was received. It was suggested that we should
make such a rule, but the point of the UECA was to deal only with the technology, not to improve existing law. For an argument on the legal effect,
see John D. Gregory, "Receiving Electronic Messages", (2000) 13 B.F.L.R. 473.
16.
0 The submissions of the Association, and the others, are on line at http://www.ontla.on.ca/ hansard/compro.htm#Justice for August 28, 2000, and
August 29.
17.
0 See Bill C-6 section 39 on seals and 48 on secure electronic signatures. For more on the GOC PKI, see http://www.cio-dpi.gc.ca/pki-icp/index_e.asp
18. 0 Friedmann Equity Developments Inc. v. Final Note Ltd., July 20, 2000, on line at http://www.lexum. umontreal.ca/csc-scc/en/rec/html/friedman.en.html
19.
0 See for example http://www.e-groups.com for archives of many Internet mailing lists. Archives may be public or private, i.e. restricted to members
of the group.
20.
0 An excellent source of information on legal mailing lists is Lyo's lists, published by Lyonette Louis-Jacques of the University of Chicago Law
Library: http://www.lib.uchicago.edu/~llou/ lawlists/intro.html .
21.
0 See http://www.uetaonline.com and http://www.ucitaonline.com , both maintained by Carol Kunze, a California lawyer who attended the
meetings, took her own record of discussions at meetings, and the like. So much of the value of the Net depends on the goodwill and talent of such
volunteers.
22.
0 See http://canada.justice.gc.ca/en/cons/index.html and http://canada.justice.gc.ca/en/cons/ un2000wp84.html. Compare http://www.e-com.ic.gc.ca/english/authen/631e10.html for Industry Canada's consultation on electronic authentication.
23.
0 See http://www.canada.gc.ca/gazette/part1/ascII/g1-13441_e.txt
24.
0 See http://www.law.ualberta.ca/alri/ulc/eindex.htm
25.
0 See http://www.law.ualberta.ca/alri/ulc/current/ejurisd.htm
26.
0 See http://www.crossingboundaries.ca (apparently; the site does not respond in mid-November) and
http://www.ipaciapc.ca/english/research/IPAC-5.pdf for the Institute on Public Administration of Canada study.
27.
0 Dean Perritt's study noted in footnote 5 above refers to Bhutan and Ukraine as examples.
28.
0 Henry H. Perritt,Jr "Cyberspace and State Sovereignty", 3 J.Int'l Legal Stud. 155 (1997), on line at
http://www.kentlaw.edu/perritt/professorperritt/jilspub.html . See also http://pbosnia.kentlaw.edu/roltt/ for "Rule of Law through Technology".
29.
0 L.Lessig, Code and other Laws of Cyberspace, 1999. See http://code-is-law.org . See also Lessig, "The Limits in Open Code: Regulatory
Standards and the Future of the Net", 14 Berk.Tech.L.J. 758 (1999); "Reclaiming a Commons", http://cyber.law.harvard.edu/events/
lessigkeynote.pdf ; and http://www.lessig.org .
30.
0 http://www.inside.com/story/Story_Cached/0/2770/13777_10_18_1.00.html
31.
0 The text and amendment process for UCITA is best traced at http://www.ucitaonline.com . The official 2000 amendments are at
http://www.law.upenn.edu/bll/ulc/ucita/ucitaAMD.htm .
32.
0 See for example the Digital Future Coalition's news release for October 27, 2000, at
http://www.dfc.org/dfc1/Active_Issues/graphic/1201_release.html
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