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Friday, December 1, 2006

Column: Cyberspeak

The Hewlett-Packard leak scandal has uncovered many unpleasant truths. Surely the worst of them all is the fact that millions of people appear to be using the word pretext as a verb, as in: did H-P engage in pretexting?

We all know what a pretext is. It’s an excuse, a pretense, a sham; in short, it’s one of those things that make modern life possible. Pretexting, on the other hand, is a much more controversial affair: it is the act of using a pretext to get confidential information about other persons.

According to reports, H-P hired investigators who used pretexting to gather phone records of possible leakers. At present, there is no federal law that explicitly forbids pretexting for phone records; however, Congress is weighing several bills that would do just that.

Pretexting is an ugly word. It barely even looks like a word. Grammatically speaking, it is a gerund (a word ending in –ing), the root of which is the suspicious-looking verb “to pretext.”

Here’s the surprising part. The Oxford English Dictionary shows that pretext has been used as a verb since the late 18th Century. “Pretexting” is recorded as early as 1849; originally, it meant “pretending” or “feigning.” And even in its current usage, pretexting describes behavior as old as private detectives. So why the fuss all of a sudden?

Calling All CyberLawyers

The answer is that pretexting is one of those legal terms that has acquired a new sense of urgency, and cachet, in the Information Age. Back in the old days, investigators could merely snoop in back alleys and dumpsters. But now they engage in data mining – in cyberspace, no less. They’re hacking and phishing and using splogs. Whatever it means, it all sounds very alarming.

The use and abuse of electronic information is the subject of cyberlaw, a term that covers laws relating to computers, software, databases, networks and, especially, the Internet. The cyber part comes from cybernetics (from the Greek kybernetes, a steersman or pilot), which is the study of communication and control among animals and machines. Cyber has been a popular prefix in technical circles since 1982 when a science fiction writer coined the word cyberspace.

Today’s law dictionaries like to show that they are on top of this whole cyber thing. Just look under “C” and you’ll find definitions for cybertorts, cyberfraud and cyberattacks (intriguingly, these are torts, frauds, and attacks committed via computer). You’ll see cybercriminals in current dictionaries and, much to one’s relief, cybercops to hunt them down.

Cybersquatting is a novel form of cybertort. It involves the practice of registering an Internet domain name identical or similar to another person’s trademark. The idea is that the trademark owner will pay up to get the squatter to release the domain name. A person who perpetrates such a scam is known as a cybersquatter or, more picturesquely, a cyberpirate. Under the Anticybersquatting Consumer Protection Act of 1999, trademark owners can sue cyberpirates or, presumably, make them walk the plank.

Predators who use chat rooms and email to target their victims may be guilty of cyberstalking. Those who use computer systems and networks to undermine national security risk prosecution for cyberterrorism.

Some legal writers have proposed a formal system of international law to govern conduct on the Internet. They call it cyberalty, a combination of cyber and admiralty, the latter because cyberspace is analogous to the high seas in that it is used by people of all nations. And because it’s full of pirates.

Back to the Future

It all sounds futuristic – or does it? To many, terms like cyberlaw and its derivatives are already passé; reminiscent of sci-fi chestnuts like cyborg and cybernaut. A number of legal academics have suggested that Information Law is a better name for this branch of the law. Still others reject both cyberlaw and Information Law as sounding too stodgy. Instead, they advocate a revolutionary terminology that captures all the cutting-edge drama of the ‘Net. I refer to Latin.

Yes, Latin. According to some experts, the international legal principles covering electronic exchanges of information ought to be known as Lex Informatica. Lex is Latin for law, and Informatica is Latin for – well, actually, it isn’t Latin at all, but rather a pseudo-Latin word meaning “of or pertaining to information.” Lex Informatica takes its inspiration from Lex Mercatoria (the “Law Merchant”), an ancient body of laws that governed the activities of merchants who traveled from one kingdom to another during the Middle Ages.

The use of Latin does have one great advantage: since it is already a dead language, it can’t get any deader, as it were. Technology lingo, you see, rapidly grows obsolete and so do the corresponding legal terms. In 1960, for example, a Time magazine writer argued that government lawyers needed to get serious about “jet age problems.” In 1963, a California lawyer described certain legal terms as belonging to the “atomic age.” Cyberlaw will sound just as dated as those phrases soon enough.

In the meantime, various high tech legal problems are enriching our vocabulary every day. Perhaps the best-known affliction of the Internet era is spam, a term that is now defined by federal law. Under the 2003 CAN-SPAM Act, spam is any unsolicited email, the “primary purpose of which” is to promote a commercial venture. CAN-SPAM makes it a misdemeanor to send spam with falsified “header” information; say, emails pretending to come from a prominent Nigerian barrister.

Incidentally, the title of the federal spam law stands for “Controlling the Assault of Non-Solicited Pornography and Marketing,” making CAN-SPAM an acronym. Or, more precisely, a backronym: that is, somebody worked backwards to compose an acronym that would fit “CAN-SPAM.” This is fairly common practice in naming laws. The USA PATRIOT ACT, for example, is a backronym for “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism.” It’s this kind of attention to detail that allows Congress to deal with jet age problems.

Throttling, another legal neologism, was the basis for a recent lawsuit against Netflix, a service that allows subscribers to order DVD’s online. Allegedly, Netflix rationed the supply of popular DVD’s by applying an undisclosed “fairness algorithm” that gave priority to new users and infrequent users. The fairness algorithm meant that regular Netflix customers sometimes faced delays of up to 6 days for popular titles, leading to widespread discontent – algorithm and blues, if you will.

A common problem for e-commerce merchants is click fraud, which is the illicit manipulation of keyword-based advertising. Click fraud can take many forms; one example would be a company employing people to click on a rival company’s search engine ads, thereby driving up the competitor’s advertising costs. But round-the-clock clicking is tedious work, so some click fraudsters, as well as many spammers, now do their deeds via botnets; that is, “robot networks.”

Danger, Will Robinson

The very mention of robots conjures up images of walking, talking, C-3PO-like creatures. Given advances in artificial intelligence and robotics, some scientists predict that we are not far from the day when robots will possess the kind of self-awareness and moral judgment that will make them more than mere machines.

Not surprisingly, legal scholars are already beginning to consider the possibility of robot rights. In 2004, the International Bar Association staged a mock trial in which a super intelligent computer sought to enjoin its “employer” from dismantling it.

In Japan, some companies pay union dues for robots on the factory floor. What if the robots assert their right to strike? Already computers can be programmed to compose poetry. Will they demand copyright protection for their works? And if a robot causes harm, can we hold it liable under a reasonable computer standard?

But that is a subject for an entirely different branch of law – Lex Robotica?

This column originally appeared in the December 2006 issue of New York Law Journal Magazine.