Asian Forum on Information and Communication Technology Policies and e-Strategies, 20-22 October 2003

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Session Summary

Session VII - Legal Issues - Security, Privacy, and IPR

Chair: Ms. Maria Lourdes A Yaptinchay, Assistant Secretary, IT/E-Commerce, Policy and Communications, Department of Trade and Industry, Philippines
Resource Person: Harry Tan, Director, CAPTEL, Nanyang Business School, Nanyang Technological University, Singapore

1.	Mr. Swaran Singh Grover, Senior Director (e-Governance), Ministry of Communications and Information Technology, India
2.	Ms. Pushpa Rene Amarasiri, Director of Economic Affairs, Telecommunications Regulatory Commission, Sri Lanka
3.	Mr. William Hioe, Senior Director (International and Strategic Planning), Infocomm Development Authority, Singapore

Note: The Roundtable was assisted by a facilitator who posed 11 "Key Questions and Issues" to all the participants.

POINTS AND ISSUES RAISED

-	Five general issues covered - anonymity and identity of parties; environment of e-contracts; jurisdiction and applicable law; digital property issues of enforcement and privacy; law and order in the cyber environment.
-	Security - three types; transactional security; computer and network security (against hacker, virus, etc.); national infrastructure security (real attacks from hackers).
-	Privacy Consumer confidence; protection of personal data/information Consumers want stronger controls regarding how their personal information stored, used, etc. Especially important for the promotion of e-commerce
-	Data protection of Development Article 25 - economic sanction against member countries know don't adopt the EU standards
-	Intellectual Property Rights (IPR) Issues World Intellectual Property Organization (WIPO) Treaties; to bring laws up to speed with the Internet world; Application = Digital Millennium Copyright Act; Berne, etc (see presentation for further details)
-	ICT and computer literacy no longer provide individuals, corporations and nations comparative advantage. It is not being left behind but how compatible are your procedural and substantial laws.
-	"The law is an artificial barrier to trade" - cross-border laws are there but they are difficult to sort, access, and navigate through.
-	How different are real space and cyber space commerce; we should not think of ICT as a new industry but it is something that enhances existing comparative advantages (i.e. Manufacturing).
-	Existing legislations that intend to resolve some of the existing gaps find it difficult to deal with consensus over extra-territorial models of law because of jurisdiction and applicability. Difficult to determine who has the right to say where the jurisdiction lies. As parties decide between themselves which country's laws will be and should be applied (in terms of e-transaction).
-	WTO and WIP is developing dispute resolution processes; most difficult issues are between consumer and business - asymmetric (businesses have already established terms and conditions but users are not privy to their own rights); proverbial wall to e-commerce; i.e. terms and conditions of a website.
-	The debates on taxation issues primarily centre on how do you tax and what do you tax? There have been suggestions to tax at the source and governments to impose tax on ISPs, while ISPs transfers the financial burden to end users.

THE WAY FORWARD: SHARED EXPERIENCES/ PROPOSED SOLUTIONS

-	To be able to leapfrog, there is a need to harmonize inter-country laws; phase one - for global and regional e-commerce. Need to consider e-transactions and e-evidence, e-signatures, crimes on the Internet, and Intellectual property; phase two - look into content regulation, taxation issues, privacy and the balance between the state and the individual; mechanisms for dispute resolution. The task may not be to develop new laws but to amend existing legislation, which is the more difficult and urgent task.
-	Transparency is the key to eliminate the artificial barriers to business, and then harmonize laws.
-	Security for computer and networks - so many gaps in different standards for network security - national governments should adopt ISO 17799 because it deals with people and processes; think about developing good domestic standards and therefore trustworthy in the eyes of other countries. There is also a need to tackle security issues in a holistic manner.
-	Basic legal requirements - need a way to penalize criminals; usually legal requirements are considered after the first instance (e.g. I Love U virus); Need to look into substantial criminal law; procedural law; and international cooperation - to deal with cyber criminals who take advantage of domestic laws (or lack of).
-	Data protection is inverse to national security. The way to balance; make a list of provisions that should not be included under data protection - criminal data (national security). Provisions can also be made to consider the degree to which the public needs to know and how much potential harm this causes to national security.
-	Increased Internet and e-commerce activities increases concern about security and the lack of capacities to deal with security issues. Explore means for the government to set up a council of users, R&D, and academia to formalise mechanisms against attacks.
-	SPAM: Let industry self-regulate (because it is a marketing mechanism for many); unless it is undesired content (e.g. pornography).
-	Some countries have initiated Computer Consumer Act against network attacks.
-	ASEAN - under the e-ASEAN framework, a common framework has been drafted for digital signatures.
-	Evidence Act allows for scanned images to be admitted in court as evidence is a new development that augurs well for the frameworks that are slowly developing to monitor content on the internet.
-	e-Transaction Act - would require a review of hundreds of existing legislation, so an umbrella clause says that e-Transaction Act applies to existing acts has been one of the modes of addressing the short term need for cyberlaws.
-	Indonesia is close to finalizing a Information and e-Transaction Act based on best practices from Malaysia, India, and US. But there seems to be gaps in what they have examined 1) extra-territorial issues 2) tax issues, 3) e-payment 4) dispute resolutions; it would seem to be important to harmonize these.
-	Drafting of laws should not belong with a single Ministry - there should be a consultation of all ministries because you can't overestimate how e-transaction laws impacts in other ministries (i.e. ministry of properties or transport) - numerous laws will be affected by 'e-transaction' laws.
-	The development of security laws should also include stakeholders, joint working groups with the public, private sector, civil society. Some countries have engaged consensus building by advertising in the newspapers and Internet (e.g. draft of the computer act of the Pakistan is available for review by the public and lawyer councils for consensus building).

Last modified 2004-05-25 03:31 PM