§8.0 Basic Arrangements

In any developed scheme of law, there come to be two broad divisions

• Civil Law
  • Where unfortunate situations arise between "individuals" for which some recompence is appropriate

  • And for which a set of publicly acknowledged rules is either appropriate or necessary

• Criminal Law
  • Where something has happened which is unacceptable to the population at large
    - and so to the state

Both divisions work in terms of broad principle, with the detailed application being worked out at the time of application; thus we have

• statute law, as defined in acts of parliament, and

• case law, as defined by
  • successive applications of some given statute
  • in a series of particular judgements

These two patterns (civil and criminal, statute and case law) apply generally across the world, although the manner in which they are applied - and the terms used - vary from country to country.

Note also that there can be various levels of law; for example, in Scotland we necessarily operate under the Scottish judicial system, but the laws which come to be enforced there - or, to be more precise, the penalties for failing to observe those laws which are applied there - derive from a hierarchy of law-giving systems, at Holyrood, at Westminster and at Brussels / Strasbourg.

Already in previous chapters we have referred to many issues dictated by statute

• Company creation and monitoring, in Chapter 1

• Much financial detail, in Chapter 3

• Much on employment, as in Chapter 4

• Health and safety, Chapter 5

• The roles of certain (non-Computer Science) professionals, as in Chapter 6

But there are many other relevant areas in which the law will impinge on computer scientists

• Contracts and obligations

• Copyright and "intellectual property rights"

• Telegraphy and communications

And how about

• Privacy and record keeping?

• Use of the computer itself?

We will start with the latter, and then work our way back up the list. But first let us look at how a new set of laws can come into being.

§8.1 Background Issues

The first and fundamental question has to be - why should a new tool or a new technique require a new law? But that quickly leads on to more detailed questions:

• If a new law is required, then why does that new technique necessitate new law?
• And what should the new law be?
• In particular, what are the new issues?

The usual pattern in law making is very definitely one of making haste slowly - and that pattern is normally a very wise one! Of course what we are talking about here is really a reflection of change in the practices of society: the system can move pretty quickly when it has to, for example to attempt to forestall a terrorist threat, or even to implement the electoral promises of an incoming government.

• Normally, countries (or legal systems) will have some sort of Law Commission, a group of expert lawyers whose responsibility it is to identify changes in societal values, or societal difficulties, and suggest how those changes might best be encapsulated in law.

• This pattern of consideration applies widely, but the outcomes can be very different; consider the issues of computing
  • some countries have special computing laws
    - for example, the countries of the European Union including U.K, Malaysia, many if not all of the individual states of USA

  • but some presently do not

The second major question then follows from trying to identify the new issues that have emerged - what previously existing legal background is there that is of relevance?

For example, think of the legal problems associated with the data handling area: perception of truthfulness and of lack of bias

• Normally in a court each piece of evidence is examined individually, and witnesses are available to swear on oath how that piece of evidence was prepared or obtained (thus building up a perception of truthfulness and lack of bias)

• How then can a computer printout be admitted? Many people will have put the pieces of data in, the software program will have manipulated them ... what scope is there for a witness to know yet alone to be able to swear on oath to the truth of a particular piece of assembled data?

• Nowadays it is accepted as routine that computer listings which are normally fair and accurate can be assumed to be truthful and without bias, and so can be admitted as evidence

• But when the point first arose the American court concerned, acting as good lawyers should, went looking for precedent and eventually found it in a seventeenth century English case involving a brewery's deceased delivery driver!

How can and should existing patterns be adopted?

Against this background, two specific sets of computer-related acts have emerged in the UK (with a similar pattern applying for many other countries)

• The first area, in terms of the date of the first legislation, concentrates on personal data held on computers
  • The need arose from general considerations of personala privacy ...
    ... associated with the great facility of computers to store, retrieve and manipulate data

• The second area came from the realisation that computers offer opportunities for misdemeanours of a type not previously recognised by existing laws
  • for example, computer hacking, and the spreading of computer viruses

It is this last area, of computer misuse, which is the one we first consider.