It’s been one of those quiet revolutions. This past decade’s amazing technological changes have rippled, rather than rampaged, into our lives, each generally welcomed with calm accommodation. We depend upon technology at work, at home, and on the road. To be unplugged is increasingly to be unmoored. Yet we have been stung by technology — or have friends who have been stung. Youngsters have been propositioned, identities have been stolen, private medical and financial records have been broadcast, swindles of every sort have been perpetrated. We demand justice for these cyber-offenses. Are there laws to keep us — and our children, and our data — safe from electronically-enabled bad guys?
Actually there are, and they are multiplying right along with technological advances. Members of the New Jersey Bar’s Internet & Computer Law Committee say that it would take more than a week to cover the recent issues and new statutes. Yet in a crash course, the New Jersey Institute of Continuing Legal Education offers “2006 Technology and Computer Law Conference” on Thursday, October 19, at 9 a.m. at the New Jersey Law Center in New Brunswick. Cost: $169. Visit www.njicle.com.
Comprised of individual presentations and a roundtable discussion, the panel is designed to be of interest both to attorneys and to business owners. Speaking on branding and domain security is Susan Goldsmith, of Newark-based Duane Morris. Several members of the New Jersey State Bar’s Internet & Computer Law Committee are making special presentations. They are committee chair Daniel Winters of ReedSmith; committee vice chair, Darrin Behr, who speaks on VOIP, voice over Internet protocol; and former chair Michael Dunne of Pitney Hardin in Morristown, who addresses Internet privacy and security. Ronald Coleman of Bragar, Wexler & Engel; Brett Harris of Wilentz, Goldman & Spitzer; and Daniele Schnapp of ReedSmith in New York are also presenting.
Goldsmith’s, in her fifth year with Duane Morris, works in the same building in which her attorney father and grandfather worked before her. A native of West Orange, she says she was grew up knowing “that I was always destined to be a third generation lawyer.” After graduating from the University of Pennsylvania in l981 with a bachelor’s in business and marketing, she attended Rutgers University Law School.
Goldsmith and the other panelists say that the legal teeth we so desperately seek in the electronic media do indeed exist. However, since the tools, infringements, and protections themselves are new, many people are not familiar with them.
Cybersquatters. Currently over 33 million domain names are registered. Add to this millions more protected brand names and logos applicable to all media, and there is huge potential for infringement. Most domain infringement is simple — the intentional or unintentional use of a pre-existing domain name on the web.
The predators’ aim is to use your company’s and products’ hard won reputation to siphon off profits. But not all domain thieves are profit motivated. Disgruntled employees and customers have been known to pirate the company’s domain name, simply to redirect the visitor to a hate website.
In either case, the original domain owner has recourse, but first he must discover the copier. The first sign that one is victim of a theft, says Goldsmith, is that strange messages will begin to flood into the business. The company owner can wait for this warning sign, or he can begin to poke around preemptively. Using a series of search engines, begin to hunt through variations of the company name and the names of its executive. To go a step further, hire a watch service, such as Thomson & Thomson of Quincy, Massachusetts (www.thomson-thomson.com). Such services will not only monitor and track your domain globally, but many will also help prosecute infringements.
It costs only $10 to $50 to register your website’s name. (See www.register.com.) Those seeking an extra measure of security may want to register their site at not just “.com,” but also at “.biz” and “.net.” If your site has a hyphen, it is best to register both words.
Once you locate a cybersquatter, Goldsmith warns against taking excessive action. Yes, you want to send out a letter informing the individual of your prior claim to the domain title. “But be very careful about how you word any actions you might take if they do not cease and desist,” says Goldsmith. “These could come back to haunt you as an implied legal threat.”
Goldsmith suggests that the better course is to keep control of the action. Inform the cybersquatter, in a most amicable way, that you have all the pertinent patent and registration information for the domain name, and that you are happy to send it upon request. Mention your assumption that the copying was, of course, an oversight. But within this velvet glove of the polite missive, begin stockpiling your written claim evidence.
Telephony privacy. Ever since the old party lines died out, the telephone has been deemed a private person-to-person communications device. Attorney-client conversations given over a land line are still considered privileged, regardless of what federal agency would like to listen in.
But when telecommunications became possible via computer, new expectations of privacy had to be analyzed and established. E-mail and in-home wireless, with its original narrow frequency, were considered about as secure as a note pinned to the back door. As a result, legal applications remained vague.
Yet recently, presenter Darrin Behr points out, E-mail has come to be viewed under the law as affording sufficient expectation of privacy to meet standards of attorney-client privilege. Further, he adds, “There are plenty of opinions indicating that Voice over Internet Protocol has the same privacy expectations.”
The process of communicating both voice and images in real time over the Internet paths has matured both in capability and protection. Security experts themselves are noting that the VoIP service is more difficult to breach than a land line. However, as the newer technology is applied to increasingly large and sensitive business operations, nobody is taking security for granted.
Building walls. “All levels of government are demanding more and more of institutions to make it harder and harder to obtain a client’s personal information,” says Dunne. Cybersecurity appears to be one issue on which government and business most heartily agree. The penalty a bank or brokerage house faces should its ledgers be hacked, or the financial hit an insurance firm or hospital would face should its patient records be published online would far outweigh any federal fine.
The Federal Deposit Insurance Corporation has issued a guidance paper concerning the use of VoIP in banks and lending institutions. It acknowledges the efficiency and low cost of this mode of communications, but at the same time notes the potential for disaster inherent in having both data storage and communications carried on a single wire. The National Institute of Standards and Technology has recently published a report “Security Considerations for VoIP.” The paper notes that in both homes and in major companies VoIP has increased rapidly throughout North America, yet it is sometimes “awkwardly installed,” leaving great security gaps.
Cyber criminals have so many more tools than bank robbers do. Law and policies to corral them are being written all the time, but it’s hard to stay ahead. In the next decade our communications gadgets and methods will most likely have undergone another quiet revolution. And just as likely, humankind, with the same ingenuity that brought forth the new devices, will grapple the new problems and, with a little law and a little inventiveness, will try to solve them.