A new generation of laws

Illinois Cannabis Control Act, House bill 219

State lawmakers apparently have decided that while anything is possible

with the Internet, not everything is legal. The opening weeks of the current

legislative season have brought a spree of proposals to update old laws

and write new ones to keep states on top of the problems and opportunities

created by the Internet.

Several themes are not surprising. As expected in the wake of the contentious

presidential election last fall, lawmakers in numerous states — Florida

among them — are pushing for a closer look at Internet-based voting.

At least two states, Illinois and South Carolina, weigh in on Internet

taxes, and a handful of states join the battle to filter offensive Web sites

from school- and library-based computers.

But the bulk of the legislation focuses on less controversial issues that

nonetheless reveal the ubiquitous role of the Internet in government.

Playing Catch-up

Several states are revising statutes to ensure they have a sound legal

framework for prosecuting online criminal activity. In most cases, it's

not a matter of identifying new crimes, but clarifying how existing definitions

of crimes apply to the Internet.

Illinois legislation, for example, would prohibit the use of the Internet

to promote gang-related activity and drug use. In amending the Cannabis

Control Act, House Bill 219 specifies "an illegal transmission" as a case

where a person transmits "information about a controlled substance by the

Internet knowing that information will be used in furtherance of illegal

activity."

"What we are trying to do is provide the law enforcement community with

laws to keep pace with the technology that criminals are using," said Gregg

Durham, spokesman for Rep. Lee Daniels, who is sponsoring both bills.

Tailoring existing laws to reflect Internet-specific activities might seem

unnecessary, but "codifying it streamlines the process for the state attorneys

and makes it a little clearer how to handle these problems," Durham said.

Both Arizona and Florida would make it illegal to send pornography over

the Internet. Florida, which specifically targets child pornography, "recognizes

that such transmission is a complicated matter involving First Amendment

issues," but still wants a law on the books, according to Senate Bill 144.

Arizona more generally plans to expand its obscenity laws to make it

illegal to knowingly transmit any material that is "harmful to minors."

But House Bill 2289 also sets clear limits, specifying that simply posting

obscene material on a Web site would not qualify as a breach.

Finally, Florida seeks to define clear laws against "computer interference,"

meaning hacking into computer systems, creating computer viruses or otherwise

damaging systems or the data stored on those systems.

"It is the intent of the Legislature to expand the protection afforded

to individuals, businesses and governmental agencies from tampering, interference,

damage and unauthorized access to lawfully created computer data and computer

systems," according to Senate Bill 180.

The bill also clears the way for any individual or business whose systems

are damaged to take its case to the civil courts.

In some cases, the Internet is creating legal problems that defy a quick

fix.

A Virginia resolution asks the commonwealth's Supreme Court to address pressing

questions about the legality of obtaining electronic data for use in civil

cases, because its existing laws only address criminal casework.

Virginia is home to numerous Internet service providers, which, in several

recent cases, have been asked to turn over data from their systems. A clear

ruling is needed "to strengthen the Commonwealth's position as the leader

of technology and relevant laws and to facilitate further growth of Internet

industries," according to Senate Joint Resolution 334.

Accordingly, the legislature directs the executive secretary of the

Virginia Supreme Court to study the possibility of setting out new statutes

or rules of evidence to govern these cases, as well as the feasibility of

providing circuit court judges the authority to appoint special commissioners

to handle disputes involving electronic data.

The Voice of Authority

Most states have also realized that they need to change their laws because

of the expanding role of the Internet in delivering services to the public

— both in the case of their own agencies and the industries they regulate.

Utah, for example, has proposed several bills intended to clear the

way for electronic government services. It's largely a matter of semantics.

Many laws use language that presumes any record or form is in fact a paper

document. Various proposed amendments seek to insert language that does

not preclude electronic transactions.

Utah is in its third year of systematically analyzing and rewriting its

laws.

Each year, the Utah Legislature asks a handful of department heads to

comb its code for restrictive language that requires face-to-face meetings

or written documents, said Richard North, senior research analyst in Utah's

Office of Legislative Research and General Counsel. In each case, they should

decide if an electronic transaction might be a viable alternative.

The departments submit proposed changes to the research office, which

then drafts legislation and passes it to the IT commission, where it begins

winding its way through the legislative process.

Senate Bill 11, for example, proposes new wording to more than two dozen

chapters of law governing state drivers' licensing. An auto repair shop

that receives a car that seems to have been in an accident would have to

file an accident report, not a written report. And the state would certify

teachers of driver education classes to administer "knowledge" and "skills"

tests, not written and driving tests.

House Bill 27 tackles similar language in Utah's existing Administrative

Rulemaking and Administrative Procedures acts and its Water and Irrigation

Code, sweeping away wording that appears to exclude the use of electronic

records.

In both bills, the state generally does not mandate the delivery of

electronic services, but simply leaves open the possibility. In several

instances, Utah is seeking to change the requirement of having a report

filed "in writing" to "a manner specified by the department."

"We have had to have the agencies keep in mind that we are in a transition,

so they have to retain the old way of doing it," North said.

Several other states are amending laws to permit their agencies to conduct

specific types of transactions electronically. Nebraska Bill 617, for example,

would allow its Natural Resources Department to sell permits online, while

Bill 671 would establish the state's authority to issue shipping licenses

to people using the Internet to sell alcohol to state residents.

And Arizona House Bill 2042 defines the terms under which the state

could sell bonds through an electronic bidding process.

Texas, meanwhile, wants to leave no doubt about its authority to monitor

the use of the Internet in the health care industry. House Bill 99 directs

the state pharmacy board to adopt rules governing the sale of drugs over

the Internet, while House Bill 667 would require pharmacies that maintain

public Web sites to provide a link on their home pages to the Web site of

the state's pharmacy board.

House Bill 100 covers similar territory with health care practitioners.

"The fact that an activity occurs through the use of the Internet does not

affect a licensing authority's power to regulate an activity or person that

would otherwise be regulated under this title," according to the bill, which

would amend the state's Occupations Code.

"We spoke with many of the state agencies, and they were concerned that,

with the explosion of the Internet, some of the regulatory activity could

be argued in court," said Brent Biggs, legislative director for public health

for Rep. Glen Maxey, who proposed all three bills.

In other proposed legislation:

* Connecticut, Florida, Pennsylvania, Vermont and Virginia are among

states planning to study Internet voting. The bill in the Vermont Legislature

also directs the secretary of state to set up a pilot project for the November

2002 election to test online voting. The project would include a Web site

where all voters in a certain area could cast ballots from their own computers.

It also would include setting up every polling station in one region to

allow voters to cast ballots via the Internet.

* A change in Arizona campaign disclosure laws would require political

committees to file their reports to the secretary of state in electronic

format, with that information being immediately available to the public

via the Internet. A Tennessee bill also calls for creation of an electronic

filing system with Internet publishing, but stops short of making e-filing

mandatory.

* At least eight states — Arkansas, Florida, Missouri, Montana, Pennsylvania,

Utah, Virginia and Washington — propose requiring public schools and libraries

to buy Internet filters or to subscribe to filtering services if they provide

public computers with Internet access. Under the Missouri bill, any school

official who does not comply with the law could be charged with a misdemeanor.

* The South Carolina Internet Tax Freedom Act would prohibit the state,

as well as its cities and counties, from putting a tax or fee on the Internet

or any interactive computer services. Illinois, meanwhile, wants to create

a task force to study the issue during the next three years, while stipulating

that, in any case, personal property bought over the Internet is exempt

from taxation.

* Maine would appoint an individual or group as an advocate for the privacy

of personal data gathered by public and private organizations, investigating

complaints about information confidentiality, recommending changes to laws

or policies and otherwise championing the cause.

* Oregon plans to amend its public records law to protect Internet-based

exchanges of personal information between an individual and the state, while

a Washington law would prohibit the state from developing services that

require customers to download software that gathers or modifies information

on an end-user's computer.

* A Pennsylvania bill would amend its vehicle laws to include definitions

of the terms "biometrics," "fingerprint-imaging" and "smart card technology."

This would open the door to adding a computer chip to drivers' licenses

to store drivers' fingerprint images and personal data, making it much easier

to verify a person's identity.

In separate legislation, Pennsylvania seeks to establish a Law Enforcement

Fingerprint Network Fund, which would pay for buying and running a network

of equipment that can scan and match electronic fingerprints.