From the beginning, the boundaries of appropriate and acceptable behaviour on the internet have been challenged. The notion of the internet as the last bastion of free speech has produced a general mindset that the laws that bind and regulate social behaviour should not apply in that space. Arguably, the laws that have been most challenged relate to intellectual property rights. However, there has developed a sense that anything written in an electronic forum should somehow be immune from oversight and censure. Courts internationally have disagreed with this view, particularly in the realm of defamation.

There is no universal definition of defamation, and so no one set of common elements that need to be satisfied in all jurisdictions. Articles 17 and 19 of the UN International Covenant on Civil and Political Rights (ICCPR) provide for both freedom of expression and the right to hold opinions, but balance these rights and freedoms with considerations of unlawful interference, privacy and the protection of honour and reputation.

These articles were considered and applied by Kirby J in the internet defamation case of Dow Jones v Gutnick. (The case concerned the reputation of a Melbourne-based businessman, Joseph Gutnick, who alleged that the Dow Jones corporation defamed him by publishing an article titled ‘Unholy Gains’ in Barrons, an international financial magazine. Barrons could be purchased in hardcopy or readers could subscribe online.) According to Kirby J:

The advance of information technology and computer technology has led to a corresponding increase in computer crime. There is no accepted definition of computer crime. Computers may be the subject of a crime, such as theft, or a computer may be used to commit a crime. Typically a computer is used, or misused, to elicit or manipulate data or processing. Simple unlawful access to a computer system can be regarded as an offence. Telecommunications may be involved. The result may be a transfer of funds or of confidential information. Sending an email to place a virus can be unlawful. The free flow of information has generated undesirable and abhorrent material. The public has expressed concern about pornography, information on how to make bombs and information about suicide techniques. New offences have been created in response to these concerns. Persons gaining unlawful access to computers for these purposes are typically referred to as crackers: hackers with malicious intent. Many crimes that are not specifically related to computers can be substantially facilitated by the use of computers. Crimes involving electronic commerce typically involve the use of computers and telecommunications. This area is often referred to as cybercrime.

In surveys undertaking by the Australian Computer Emergency Response Team (AusCERT), the most common breaches involved viruses (programs or codes that can replicate themselves and infect computers without the owner's consent and often without the owner's knowledge), worms (programs or codes which replicate themselves using a network system, and that are designed to cause malicious damage) and Trojan infections (code incorporated into an existing program which gives the appearance of performing a desirable function but which performs malicious functions).

The Australian Communications and Media Authority (ACMA) is responsible for administering legislation regarding the content and regulation of most forms of electronic communications. This chapter deals with the role of ACMA and the regulation of internet, television and radio communications.

The Australian Communications and Media Authority

On 1 July 2005 ACMA was formed by the merger of the Australian Broadcasting Authority (ABA) and the Australian Communications Authority (ACA). On 1 July 1997 the ACA was formed by the merger of the Australian Telecommunications Authority (AUSTEL) and the Spectrum Management Agency (SMA).

ACMA is responsible for the regulation of broadcasting, radiocommunications, telecommunications and online content. Its responsibilities include:

• promoting self-regulation and competition in the telecommunications industry, while protecting consumers and other users;

• fostering an environment in which electronic media respect community standards and responds to audience and user needs;

• managing access to the radiofrequency spectrum, including the broadcasting services bands;

• representing Australia's communications and broadcasting interests internationally.

The internet

ACMA administers the scheme for dealing with content on the internet, enforces Australia's anti-spam law and can make rules about accessing the internet via premium mobile phone services. (The term ‘premium services’ relates to a range of voice and data services that are charged at a premium or high rate. They can include voice services such as chat and dating lines, and internet websites containing adult content. The Minister for Broadband, Communications and the Digital Economy can direct ACMA to make a service provider determination relating to accessing premium services on mobile phones.

International organisations, particularly trade organisations, were among the first to recognise the significance of the electronic commerce revolution and the corresponding need to provide rules and guidance. Several of these organisations' responses have become international practice or law. The number and extent of organisations studying, reporting and implementing plans in relation to electronic commerce is astonishing. This chapter briefly examines some of the many electronic commerce policies implemented by selected international organisations.

As the methods and means of trading evolve in a changing technological and social environment, traders must meet the needs and demands of ever-developing communities. International trade has to deal with distance, varying modes of shipping, packaging, containerisation and time delay as well as different languages, customs, laws and infrastructure. Commercial parties must adjust to new modes of communication, and new industry practices. Banking practices, in particular, have become more sophisticated. In all fields, documents no longer have to be physically delivered and the requirement for written documentation to establish bona fides is diminishing.

Electronic commerce is by its nature ‘international’. This means that the laws of one nation state will impact on those of others; that impact will vary according to each particular nation's place and importance in the world of international trade. Electronic commerce, as we have seen, raises questions regarding a number of issues: the security of transactions, standards, protection of intellectual property, taxation, trade law, privacy and many others.

Cyberspace is an illusion. There is no such place. Many terrestrial norms do not and cannot apply to such a fictitious construct. Nevertheless cyberspace users perceive metaphorical chat rooms, folders, files, shops, libraries and so forth. They live digital lives with digital personas in ‘places’ such as Second Life and Facebook. The reality is that each step of the digital experience is rooted terrestrially. Traditional legal principles are applicable to the majority of electronic commerce disputes. Nevertheless, the operation of electronic commerce in cyberspace results in new circumstances to which legal jurists cannot readily apply established legal rules.

The borderless nature of the internet often hides or disguises the origin of particular websites and corresponding information. Questions sometimes arise as to the country or state whose courts have jurisdiction to adjudicate on a matter, and as to which law is to be applied. Courts also have to determine issues such as where conduct occurs – at the computer, the server, the place of business or residence or somewhere else? – and thus which time zone applies. This area of law is referred to as conflict of laws or private international law, and its principles are well established.

By the 1990s, ICANN was in need of a solution to the rising dispute resolution problem. The legal proceedings in court were slow, expensive and involved a minefield of jurisdictional issues. There were moves to put in place an international treaty, but this process was too slow and would not be all-encompassing. The US legislative solution in 1999 was only a partial solution and few jurisdictions expressed the need to follow their lead; the result could well be a plethora of divergent responses. This chapter deals with the dispute resolution policies of ICANN and selected national domain name administrators.

In 1999 ICANN issued its Uniform Dispute Resolution Policy (UDRP) as an alternative to legal proceedings before courts. The UDRP has become the international standard for resolving domain name disputes. It is intended to also discourage abusive registrations. The complainant is required to demonstrate that the disputed domain name is identical or confusingly similar to theirs, that the registrant does not have a right or legitimate interest in the domain name, and that the registrant has registered and used the domain name in bad faith.

ICANN provides that domain name disputes must be resolved by agreement, court action, or arbitration before a registrar will cancel, suspend, or transfer a domain name. The UDRP has been adopted by all ICANN-accredited registrars in the gTLDs .aero, .biz, .cat, .com, .coop, .info, .jobs, .mobi, .museum, .name, .net, .org, .pro, .tel and .travel.

This chapter examines and contemplates law and culture in cyberspace. The role of law and indeed the rule of law have different dynamics in cyberspace as a consequence of the architecture of cyberspace and its anonymous, pseudonymous and borderless features. The resultant structural balance among technology, law and culture may be expressed as the ‘rule of cyberspace’. This spatial dimension, economic influence on human culture and the role of law and regulation together form a subculture which both impacts on and moulds electronic commerce.

First, the nature of cyberspace is examined. This is followed by consideration of theoretical bases for law and order in cyberspace. The rule of cyberspace emerges, by processes known as ‘spontaneous order’, from the environmental factors fashioning cyberspace. It is spontaneous order which best describes and to a limited extent predicts regulation for electronic commerce.

This chapter examines the juxtaposition of culture and cyberspace, a modern application of spontaneous order, and then uses a discussion of libertarian and classical approaches to predict the future of cyberspace.

Cultural and environmental juxtaposition with cyberspace

Human interaction tends towards order and has an aversion to chaos. Culture brings about communities, law, order and stability. And so is it for cyberspace and the rule of cyberspace.

Cyberspace is infused with a kind of spontaneous order, and has thus evolved protocols through public participation. No one controls cyberspace. There are many stakeholders and users, all with their own agendas, impacts and influences.

An important application of multi-transistor gates is the creation of building blocks that retain information, enabling data storage devices.

The static random access memory (SRAM) requires six transistors per storage cell. The electrical configuration of the “unit” determines whether a bit is stored there or not. The MOSFET structures used in SRAMs are fairly standard and comparable to those used in building logic elements.

However, special structures are used to build the dynamic random access memory (DRAM), which stores a charge on individual transistors that incorporate a capacitor. This charge must be constantly refreshed in millisecond cycles as it leaks away.

At the other end of charge storage technology is FLASH (non-volatile) memory, which will maintain charge in the complete absence of a power supply. It requires special MOSFET structures very different from the standard devices.

These MOSFETs hold an electrical charge for a very long period of time in a special isolated capacitor.

Figure A-1.3.1 shows a highly simplified schematic of a special MOSFET p-channel transistor. In contrast to a standard MOSFET, it has a silicon film imbedded within an insulating silicon dioxide film sitting on top of where the gate would normally be. This constitutes the “floating” gate of the p-channel MOSFET.

The basic operation by which the cell stores one bit is as follows.

• The device is programmed by injecting an electronic charge into the floating silicon gate (by applying a very short high-voltage pulse).

• This negative charge in the silicon film – the “floating gate” – induces a conducting p-type channel between the two p-type regions, turning it on.

• […]

Steel, textiles, clothing, and consumer electronics: one after another, manufacturing industries in the US and other developed countries have buckled under the pressure of low-cost foreign competition. It's happened so often over the last half-century that it no longer generates much political heat.

That doesn't mean governments won't enact protectionist measures to shield their basic industries. In 2002, for example, the US imposed tariffs on imported steel. But tariffs are often little more than rearguard holding actions. The basic industries (always excepting agriculture and big employers like automobile manufacturing) no longer seem to be regarded as central to the economic future of their countries.

Let foreign competition threaten the growth engines of a developed nation's economy, however, and this attitude suddenly changes. The government will muster an arsenal of legal and economic countermeasures to thwart the challenge.

Most of these measures target the protection of intellectual property (IP), the foundation of electronics-related industries. They include tactics such as embargoes and policing. Unfortunately, these tactics are not much more effective than import tariffs.

Other approaches, such as patents, trade secrets, and copyrights, may have more staying power. We will consider each of them.

From embargoes to patent protection

The promotion of industrial development has never been a gentleman's game. Countries building their industrial bases always seek to acquire valuable technologies by fair means or foul, and attract investment capital with government subsidies.

In just fifty years digital electronics have transfigured every aspect of human life and redrawn the economic map of the world. Their effect has been revolutionary.

But revolutions produce displacements as well. We must now assess the impact of digital technology on some key industries and the consumers they serve. We will discuss the implications for national economies in Chapter 9, keeping in mind that changes are so rapid that conclusions are risky.

We began our exploration of digital electronics by defining the breakthroughs of the 1950s and 1960s: the devices, systems, and software that launched the digital revolution. We also looked at how scientists and entrepreneurs created and commercialized the resulting products and services that grew out of these innovations.

Their efforts changed the world at incredible speed, often in unanticipated ways, and with far greater effect than even the most optimistic visionaries could have foreseen. Since the 1970s powerful digital systems have transformed the way people work, talk on the phone, send messages, acquire knowledge, play games, access entertainment, and even cure diseases. This is especially true of the Internet, the ultimate embodiment of the digital technology's power and reach.

Nor have the benefits accrued only to wealthy nations. Electronic devices are now so inexpensive that hundreds of millions of consumers in developing countries use cell phones, PCs, and MP3 players. Just two or three decades ago many of these people would have considered a standard telephone to be an unattainable luxury.

We already know that special computers called routers direct data traffic on a packet-switched network, and that computers communicate through special, industry-defined machine languages (protocols). Here we examine the protocols that underlie packet networks in general and the Internet in particular.

The protocol that has reached star status for communications systems is the Internet Protocol (IP), which grew out of the early ARPANET work. Networks designed to operate with the IP protocol use a 32-bit address embedded in each packet header to move it from source to destination.

Every computer on the Internet has an IP address. That includes each router. Since routers transmit digital streams of bits in the form of packets, the physical implementation of the IP protocol involves coding headers attached to the packets. These headers provide the address of the sending and receiving computers.

The packets travel a path from one router to another on the way to their destination. The routers direct this trip, using stored lookup tables to find paths to the destination IP address in the packet headers.

But even IP doesn't work alone. To provide reliable internetworking on the Internet, it is closely linked with TCP (Transmission Control Protocol). Let us look at how IP and TCP work together.

While the router lookup tables are continuously updated, that doesn't prevent packets from getting lost or delayed. If a target router is temporarily overloaded or down, the packets sent through it could lose their way, and the network would be unreliable.