New technologies often occasion major changes in the legal world, both due to their transformative effects on the business of practicing law… and the ways they restructure society itself. With the creation of the internet and the explosion of digital computing power around the world, cyberspace has forced major expansions in legal theory and practice.
Paralegals have had to adjust to the use of technology in legal practice, but a subset of them are also grappling with the new laws and new applications of old laws that are driven by the rise of interconnected computers. Cyberspace paralegals work in government, commerce, and with technology companies keeping pace with internet law.
Moreover, because of the global nature of the internet, paralegals are forced to keep up not only with local and national laws, but also with international rulings and trade agreements that impact information sharing.
Although the day-to-day work of paralegals in cyberspace law doesn’t vary much in terms of standard duties and how they handle things like research, filing, drafting, and keeping case files current, the aspects of the law they deal with are often unusual and require creative consideration and well-honed reasoning. As quickly as the field changes, the issues they face one day may change completely the next.
- Pepperdine School of Law offers an online Master of Legal Studies program.
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When Technology Evolves Rapidly, Law Struggles To Keep Up
The law often lags behind the rapid pace of technological development. In the early days of computer hacking, for instance, many of the incidents that would be heavily prosecuted and result in jail time today simply weren’t illegal… the perpetrators walked away with a slap on the wrist or were simply never charged.
Even when laws are passed to address issues unique to cyberspace, they are rarely just and relevant in their first iteration. The Computer Fraud and Abuse Act, as originally passed in 1986, for instance, originally only applied to information stolen through interstate or foreign communication and required that losses exceed $5,000 for charges to be filed. It took a series of amendments over the next three decades to turn it into the broadly useful statute it is today.
But the CFAA also illustrates another problem with cyberlaw, the tendency of new laws to overcorrect. When accused hacker Aaron Swartz was charged with multiple felony counts of computer fraud for downloading academic articles that he had legitimate access to, he committed suicide. Advocates from many legal, Congressional, and Internet watchdog groups found that the charges had been massively disproportionate to the offenses because of the broad strokes the CFAA was drawn with.
The law also may have, inadvertently, a stifling effect on cybersecurity research, providing a civil cause of action for technology vendors to bring suit against legitimate security analysts attempting to secure their systems.
Paralegals Rise To The Challenge of Rapid Developments in Law and Technology
Paralegals working in cyberspace law may find themselves on either side of such novel claims and have the extra professional challenge that comes with not only having to keep up with developments in legislative and case law, but also with the rapid evolution of technology.
To accomplish this, they have to be familiar with laws on the books, such as:
- The Computer Fraud and Abuse Act (CFAA)
- The Digital Millennium Copyright Act (DMCA)
- Electronic Communication Privacy Act (ECPA)
- Homeland Security Act
- Uniform Electronic Transactions Act
There are a host of state-level laws that also impact cyberlaw, including Florida’s Electronic Security Act and the Illinois Electronic Commerce Security Act.
Issues of jurisdiction and sovereignty emerge quickly in many cyberlaw cases. If a German company whose hosting service is based in Arizona makes a fraudulent claim on a website that’s physically hosted on a server in Washington state, where is the case filed and what laws apply?
There are also many questions about existing laws that are called into question by the evolution of technology. Although it’s a somewhat separate body of law and area of practice, copyright infringement was one of these. Suddenly, a relatively tame area of practice became red hot as instant, perfect digital copies of any electronic work could be produced and distributed by anyone with a computer.
Moreover, some of this duplication, technically illegal under existing laws, was performed automatically by software, part of the basic function of machines, undirected by the user. Who could be held accountable? How could the technology even work while remaining legal? More importantly, should it be the technology that would have to change, or the law itself?
Although these, and jurisdictional issues, are most obviously a problem for paralegals working in prosecutor’s offices and for those in civil litigation firms, it’s also a major challenge for technology companies. Paralegals at big internet companies or in specialist practices working with startups have to try to ensure those organizations are compliant with a host of state, local, and sometimes international laws. This can happen through changes to the technologies themselves, as when Google designed search algorithms to comply with the European Union’s “right to be forgotten” rules, or to changes in business practice.
Paralegals specializing in technology law often find themselves working with agencies like the FTC (Federal Trade Commission) and FCC (Federal Communication Commission), and with legislators, to solve these issues. They advise and assist in drafting rules, regulations, and new legislation. They also research both the technical and legal ramifications and attempt to predict the outcomes… no easy task in today’s mutable world.
Dealing With The Social Aspects of Cyberspace
Another law that isn’t actually a law, but that has been reshaping certain types of cases, is Poe’s Law.
Poe’s Law is the observation that, in the purely textual realm of most Internet posts, with little context and often complete anonymity, it’s impossible to determine whether a statement is made satirically or with intent.
Although this seemingly innocuous observation has been true for as long as there has been text, it’s found new life in legal terms as memes and social media have exploded. In 2017, one reporter sued another for accusing her of making a white power hand sign at the White House, claiming it was defamatory because she had done it ironically.
Digital media has also dramatically reshaped discussions of privacy in legal terms. In 1986, Congress passed the Electronic Communication Privacy Act (ECPA) to extend existing restrictions on wiretapping of phone lines to digital communications. Prior to that, it was perfectly legal to intercept and read emails, or even monitor digital voice calls.
These new concerns and new laws to address them can’t be clearly foreseen. Only through the actual work of lawyers and paralegals in cyberspace law can the issues be litigated and resolved to help the legal system find a fresh equilibrium.
As rapidly as cyberspace has changed the legal field, the rate of development is only accelerating. Paralegals that get in on the ground floor of this aspect of the law can expect a wild ride ahead.