It has been at least ten years since lawyers began answering questions relating to the intersection of law and technology. In the beginning, the Office of General Counsel at The Catholic University of America perhaps naively believed we could simply capture all of the relevant areas where technology intersected with the law in a few pages. The result was a series of papers on “computers and the law” that now seem quaint.  Our basic premise was that the legal system was going to have to develop entirely new rules and legal processes to deal with questions arising from rapidly changing technology.

A few years later, our joint venture with EDUCAUSE, intended to be a new source of current information about federal regulation of Information Technology on campus, stalled due to problems with duplication of information already contained on the Campus Legal Information Clearinghouse (CLIC) web page and the question of how to integrate the two.  Once again, the attempt to create whole new information set for technology and law presented a daunting task.

We finally realized, as Steve McDonald, our colleague at the Rhode Island School of Design has been saying for years, that the best way to proceed is to simply use the policies and resources campuses already have in place for dealing with student and employee technology issues, without creating an entirely new policy for each overlap between the physical and the online world.  As Steve says, “cyberspace is not a separate jurisdiction.”   A university’s student code of conduct or staff handbook should be adequate for both worlds.

Technology has changed the law for information consumers in a variety of ways. Some are subtle and some are direct: either a no-holds-barred, frontal assault on time-honored traditions of access to information or simply a savvy business sidestep of an outdated legal code, depending perhaps upon whether one is the faculty or student user of information, or the vendor providing it in print and online.  Some changes come and go quickly – does anyone remember the days of free downloading with Napster?  Ultimately, as these changes in technology have clashed with the desires of consumers, the conflicts that have ended up in the courts have largely been resolved under traditional legal principles.

Sometimes the law has simply not been able to keep up with rapid technological advances. Copyright law and the Google Library Partners Project is an excellent example. When Google commenced scanning (in 2004) the library collections of Oxford University, University of Michigan, Harvard University, Stanford, and the New York Public Library, many questions were raised. While some schools did not allow scanning of works under copyright, other schools did.  Additional schools have joined into partnerships with Google over the last few years.

The collections scanned in are available online in snippets (if still under copyright) or in full view if in the public domain, the goal being “an enhanced card catalog of the world’s books.” [1] Each participating library receives a complete digital copy of all the works in their library that were scanned by Google.[2]

In the fall of 2005, litigation commenced [3] against Google by the publishers claiming an infringement of copyright in the snippets of text placed online, and also in the digital copy given to the libraries. Google claims the use is a fair use under Section 107 of Copyright Law.

An example from the field of legal practice of how existing rules can be easily applied to new technology is the new Federal Rules of Civil Procedure Related to Discovery and Electronically Stored Information.  Effective Dec. 1, 2006, the Federal Rules of Civil Procedure were amended to clarify the process of retrieving, saving and producing electronically stored information in anticipation of and during litigation. In response to these new rules, campuses across the country are scrambling to update (or perhaps create) data retention policies as to how long data should be retained.

Some of these efforts at revising the law have been more successful than others. For example, the Electronic Signatures in Global and National Commerce Act has been around since 2000 and has not yet lived up to its promise.