Entering the year 2001, several legal developments bear watching. The following trends may characterize the year:
1) UCITA (Uniform Computer Information Transactions Act)
The proposed model law (Lejeune, UCITA--Vertragsrecht für "geistiges Eigentum" im E-Commerce-Zeitalter, 16 Computer & Recht 201 et seq., April 2000) has been the subject of much national and international discussion. In the year 2000, two states adopted it: Maryland and Virginia. It is already the law of the land in Maryland which has attracted numerous high-tech companies. More state assemblies will consider its adoption during their legislative terms which customarily run during the first calendar quarter.
In addition to the issue of its adoption, the model faces the scrutiny from industry as well consumer advocates. While computer industry in general recognizes that the model rewards sloppy development and products, non-computer businesses believe it may encourage turning traditional products into computer products which can then benefit from the broad absolutions of liability that the model offers. Adding a screen, a media drive, a keyboard to a ho-hum non-electronic gadget can work wonders for a manufacturer's liability exposure. Consumer advocates fear that the computerization of traditional products endangers the public as much as the adoption of the law in general. The growing debate of these issues is not likely to subside anytime soon.
2) Privacy
From cookies to freely downloadable Trojan software programs -- ostensibly designed to assist users with various internet tasks -- and cyberpayments, the privacy debate will rage on. Already, the federal Congress in Washington is examining bills to enhance the privacy of consumers. The Internet industry realizes that few products or services on the Internet are worth nearly as much as the information on eyeballs visiting sites. Others industries fear government intervention in general and, while not opposed to some protection of privacy, believe firmly in self-regulation. The balance of opt-in and opt-out policies and the recommendation and actions of the Federal Trade Commission will provide continuing fodder for analyssis and commentatary.
Pro-privacy advocates believe that a comprehensive program should replace the piecemeal approach to privacy protection, perhaps, but not necessarily similar to the European model. They can cast their eyes both at the federal government and at the state assemblies because privacy relates to solutions under contract and tort law which are generally state matter as well as federal law.
Nano and micron sized computers and robots which enable the almost unnoticed physical invasion of privacy may not yet be at the technical state that they will generate great debate but should reach the radar screens of more sensitive observers, Warneke, Last, Liebowitz, Pister, Smart Dust, 34 Computer 44 (Jan. 2001).
3) Database Protection
The federal government will see increased pressure from companies such as EBay, Inc. to protect databases under the copyright laws. Copyright is a matter of the federal constitution, and advocates cannot turn to the state assemblies for protection of databases. In the past, neither Congress nor the United States Supreme Court have been receptive to the industry, Kochinke/Günther, Shrinkwrap-Lizenzen und Datenbankschutz in den USA, 13 Computer & Recht 129, 130 (1997). The Internet industry is expected, however, to wager a massive push in the legislative arena to garner the type of comprehensive protection that its European competitors have enjoyed for years.
4) Immigration
After the year 2000 grant of greater numbers of visas for technology workers (Manea, US-Arbeits- und Aufenthaltsgenehmigung für IT-Berufe, AmerikanischesRecht.com, Nov. 2000), the loss of jobs at Internet and technology companies in late 2000 and early 2001 may trigger an interesting quagmire for labor and industry. The number of such visas is still insufficient to meet demand on a timely basis. While the tech industries can look back to a string of successful years, in terms of pursuading Congress and the Administration of increasing those numbers, labor may have the better arguments in 2001.
For the first time, in 2000, the Bureau of Export Administration applied the longstanding rules on deemed exports to foreign nationals through enforcement action, California Company, Principals Indicted for Deemed Export Violations, 14 The Export Practioner 10 et seq., (November 2000). Visiting foreigners are as much potential targets of such enforcement as U.S. and foreign companies that export or reexport U.S. controlled goods and technical data, Zagaris, U.S. Indicts Silicon Valley Firm and Executives for Technology Transfer to China, 16 International Enforcement Law Reporter X A. (www.ielr.com/dec00.htm, December 2000). In the event that its initial enforcement effort should prove successful, we can expect the Bureau to build on it and seek more actions.
5) Communication
Two issues may particularly affect European companies doing business in the United States. One is the approval for the takeover of the U.S. GSM carrier, Voicestream Wireless Corporation, by Deutsche Telekom AG. The U.S. regulatory agency, Federal Communications Commission, in Washington has indicated that it may apply a waiver provision that allows foreign carrier to acquire U.S. carriers. By contrast, influential politicians on Capitol Hill have strongly objected to the FCC's position and threatened legislative action, Kochinke/Geiger, Trends im US-Computer- und Internetrecht, 3 Kommunikation & Recht 594, 595 (December 2000). Such action could undermine the European ability to acquire U.S. carriers or could expose them to political attempts at extracting significant concessions from acquirors.
The other issue is the already heated debate oover the use and the availability of frequencies, especially in the 2.4 GHz range. This range is used not only for telecom voice purposes but also for data transmissions and it represents a somewhat experimental zone for new gadgetry. Therefore, both the allocation of the frequencies and the increasing danger of colliding uses may result in contentious proceedings, drawing in the regulatory agencies as well as the courts and Congress.
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