April 20, 2016 – If you’re reading this article, you’re one of the millions of Americans who owns a computer and is affected by electronic technology, in personal life or work life, every day. Commercial and Consumer Transactions in Wisconsin, published by State Bar of Wisconsin PINNACLE® provides a comprehensive introduction to Internet law.
Spyware, Phishers, and Pharmers – Oh My
As Commercial and Consumer Transactions Chapter 10 – on Internet law – illustrates, there are legal issues aplenty for computer hardware and software manufacturers and consumers, and nearly every American is vulnerable to Internet-based crimes. Operating safely and legally on the Internet depends on protecting against hazards, but first you must know what they are.
For example, what is “spyware” and why is it dangerous?
Spyware is software installed on a computer, usually without the user’s knowledge or consent, as a result of downloading other software or files or visiting certain Internet sites. Spyware is the source of those pesky “pop-up” ads, which are so personal because the spyware has been tracking your online activity.
Related to spyware are “phishing” and “pharming.” When phishing, a criminal uses another person’s login credentials or account information to masquerade as a reputable entity. Pharmers direct users to fake websites that look like legitimate ones, to obtain personal information. In Chapter 10, author Shane Delsman discusses some attempts to regulate these activities, including Utah’s pioneering law imposing penalties for spyware, phishing, and pharming violations.
Businesses that keep customers’ credit card information online are vulnerable to theft of that information, and even if they can go after the spies, phishers, and pharmers, they are likely to be hauled into court themselves by consumer-plaintiffs. Delsman discusses a few notable cases, including the ongoing litigation against Target and The Home Depot.
As the terms phishing and pharming imply, many Internet crooks cast a wide net for information. Other criminals, however, have specific targets, and your firm or the business of one of your clients might be one of them. Electronic storage of client files and business records has made it much easier to misappropriate confidential or proprietary information, and employees are often the perpetrators.
The federal Computer Fraud and Abuse Act of 1986 (CFAA), also discussed in Chapter 10, prohibits unauthorized accessing or hacking of computers used in interstate or foreign commerce or communication (i.e., most computers and all computers used in e-commerce across state or national borders). The CFAA is a criminal statute that also authorizes civil causes of action under which certain damages and losses can be recovered.
One issue in cases brought against former employees is whether the defendants’ use of their employers’ computer systems constitutes “unauthorized access,” as required to bring the violation within the CFAA’s provisions. Chapter 10 includes a 2016 federal district court discussion of the appellate-court split on authorized and unauthorized access.
What’s in a Name?
Not all computer-based misuses of information are intended to harm others; often, their goal is to profit by using competitors’ goodwill. An individual or entity might take advantage of the confusion and misdirection that are rampant on the Internet and hope that computer users will overlook, for example, that a company that used the PLAYBOY and bunny-design marks as links was not Playboy Enterprises.
Linking is not the only way in which Internet users move around on the Web. Another way is to do keyword searches using search engines, which themselves then search websites’ metatags. Sometimes businesses use a competitor’s tags to divert traffic from the competitor’s website, and as Chapter 10 makes clear, courts often find that this practice is trademark infringement. But some uses of metatags are permissible. In another case involving Playboy Enterprises, the court held that the defendant’s use of Playboy’s marks PLAYBOY and PLAYBOY’S PLAYMATE OF THE YEAR was acceptable because she was truthfully identifying herself as a “Playmate of the Year.”
Nuts and Bolts of Daily Business
Safe navigation of the Internet can be enhanced with sound contracts and other agreements, topics covered in-depth in chapters 1 and 3 of Commercial and Consumer Transactions, and featuring extensive updates concerning the economic loss doctrine. Commerce on and off the Internet relies on uniformity and predictability, as reflected in the many Wisconsin statutes derived from the Uniform Commercial Code (UCC). UCC bodies of law discussed in the book include commercial paper (i.e., checks), letters of credit, documents of title, personal property leases, and secured transactions.
And finally, with chapters on consumer laws and on doing business outside the United States, Commercial and Consumer Transactions reflects the range of modern transactions: from mom and pop buying a car to multinational corporations selling wares around the globe.
Commercial and Consumer Transactions in Wisconsin, now in its second edition, is available both in print and online via Books UnBound®, PINNACLE’s interactive online library. To order or for more information, visit the WisBar Marketplace or call the State Bar at (800) 728-7788 or (608) 257-3838.
Subscribers to the State Bar’s automatic supplementation service will receive future updates at a discount off the regular price. Annual subscriptions to Books UnBound start at $159 per title (single-user price; call for full-library and law-firm pricing).