Electronic Commerce Law

Electronic Commerce Law in the United States

Scope

“Electronic commercial law is a permanent and an inherent feature of all commerce. It is not a separate or distinct field that only a few lawyers or companies need pay attention to in their daily affairs. It is commerce and commercial law. For many lawyers and business executives, however, this brings with it surprises and the need to think “electronically.” The laws and practices associated with electronic aspects of modern commerce bring with
them their own unique rules and requirements. These fit within, but fundamentally alter, older business and commercial law and business practices.”(1)

Changing Rules

With the advent of the World Wide Web, commerce is now conducted over the Internet. Typically, website vendors require their customers to enter into mass-market license agreements called terms of service. Electronic commerce creates the need for new rules for validating online contracts or applying contract law to the Internet.

In the United States, the Federal Trading Commission (FTC) is the constable for cyberspace in filing suit against Internet wrongdoers for unfair and deceptive practices. See, e.g., “FTC Settlement Requires Internet Marketer to Stop Selling Cosmetic Contact Lenses Without Prescriptions”, by the Federal Trading Commission.

The FTC administers many Internet-related laws governing consumer rights in e-commerce including the Children’s Online Privacy Protection Act, the Safe Web Act, and the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003. The FTC has yet to formulate a compliance program addressing unfair and deceptive terms of service agreements governing social media and cloud computing. (2)

Online Legal Issues

“A statute of frauds requiring a “signature” no longer requires that signature to be on paper: It may be an electronic signature, and this has many impacts. Consider e-mails: those who have viewed them as an informal means of communication akin to a telephone conversation are learning that they can not only be signed writings but also discoverable evidence.”(3)

The “legal issues associated with digital systems were of primary interest to those companies who specialized in electronic commerce. That has changed. Today, these issues affect every financial institution, every law firm and, indeed, every company in our economy. The new cases and regulations associated with this commerce number several hundred per calendar quarter.”(4)

Resources

Notes

  1. The Law of Electronic Commercial Transactions, Preface, Raymond T Nimmer
  2. Based on the Article “THE PATH OF INTERNET LAW: AN ANNOTATED GUIDE TO LEGAL LANDMARKS”, by MICHAEL L. RUSTAD and DIANE D’ANGELO
  3. The Law of Electronic Commercial Transactions, Preface, Raymond T Nimmer
  4. Id.

See Also

Electronic Commerce Law Concepts
Electronic Frontier Foundation

Further Reading

Jeff C. Dodd, Time and Assent in the Formation of Information Contracts: The Mischief of Applying Article 2 to Information Contracts, 36 Hous. L. Rev.195 (1999).

Christopher R. Drahozal, Electronic Commerce in Kansas: Contract Formation and Formalities Under Article 2, 68-MAY J. Kan. B.A. 22 (1999).

Raymond T. Nimmer, UCC Revision: Information Age in Contracts. 471 PLI/Pat. 377 (1997) [includes good background about Article 2B and about the structure of contract law in general].

Michael L. Rustad, Commercial Law Infrastructure for the Age of Information, 16 J. Marshall J. Computer & Info L. 255 (1997).

Pamela Samuelson, Foreword to Symposium: Intellectual Property and Contract Law in the Information Age: The Impact of Article 2B of the Uniform Commercial Code on the Future of Transactions in Information and Electronic Commerce. 13 Berkeley Tech. L.J. 809 (1998).

Thomas J. Smedinghoff, Electronic Contracts and Digital Signatures and Overview of Law and Legislation, 557 PLI/Pat 549 (1999).

Camilla Baasch Andersen, Furthering the Uniform Application of the CISG: Sources of Law on the Internet, 10 Pace Int’l L. Rev. 403 (1998).

Amelia H. Boss, Electronic Commerce and the Symbiotic Relationship Between International and Domestic Law Reform, 72 Tul. L.Rev. 1931 (1998).

Jennifer Conovitz, UNCITRAL Model Law on Electronic Commerce, 1075 PLI/Corp 47 (1998).

Richard Hill & Ian Walden, The Draft UNCITRAL Model Law for Electronic Commerce: Issues and Solutions, Computer Lawyer (1996).

A. Brooke Overby, UNCITRAL Model Law on Electronic Commerce: Will Cyberlaw be Uniform? An Introduction to the UNCITRAL Model Law on Electronic Commerce, 7 Tulane J. Int’l & Comp. L. 219 (1999).

John R. Austin, The Law of Electronic Commerce and Digital Signatures: An Annotated Bibliography, 17 J. Marshall J. Computer & Info. L. 1043 (1999).

Jody Storm Gale, Service Over the Net: Principles of Contract Law in Conflict, 49 Case W. Res. L. Rev. 547 (1999).

Fred M. Greguras, et al., Electronic Commerce: On-line Contract Issues, <http://www.batnet.com/oikoumene/ec_contracts.html>

John D. Muller, Selected Developments in the Law of Cyberspace Payments, 54 Bus. Law. 403 (1998).

Adam White Scoville, Clear Signatures: Obscure Signs, Cardozo Arts & Entertainment L.J. 17 (1999): 345-412.

Electronic Commerce Topics

  • Cybercrime,
  • Cybersquatting,
  • Cyberpiracy
  • Credit cards and credit transactions
  • Privacy Protection
  • Data Control
  • Liability risks in dealing with third-party information
  • E-Commercial intellectual property
  • Online contract formation
  • Linking Legal Issues
  • Online jurisdiction issues
  • Domain names control
  • Digital signatures
  • Electronic signatures
  • Online Terms of service
  • Online Access contracts,
  • Online Site Agreements
  • Online Service Agreements
  • Application Service Providers
  • Liability for informational content
  • Consumer law issues in e-commerce
  • E-mails evidence
  • Identity theft
  • E-commerce Taxation

Electronic Commerce Law: Open and Free Legal Research of US Law

Federal Primary Materials

The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Electronic Commerce Law. This part provides references, in relation to Electronic Commerce Law, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

Federal primary materials about Electronic Commerce Law by content types:

Laws and Regulations

US Constitution
Federal Statutory Codes and Legislation

Federal Case Law and Court Materials

U.S. Courts of Appeals
United States courts of appeals, inclouding bankruptcy courts and bankcruptcy appellate panels:

Federal Administrative Materials and Resources

Presidential Materials

Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

Executive Materials

Federal Legislative History Materials

Legislative history traces the legislative process of a particular bill (about Electronic Commerce Law and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Electronic Commerce Law or other topics), or locating the current status of a bill and monitoring its progress.

State Administrative Materials and Resources

State regulations are rules and procedures promulgated by state agencies (which may apply to Electronic Commerce Law and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Electronic Commerce Law. Finding these decisions can be challenging. In many cases, researchers about Electronic Commerce Law should check state agency web sites for their regulations, decisions, forms, and other information of interest.

State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

State opinions of the Attorney General (official written advisory opinions on issues of state law related to Electronic Commerce Law when formerly requested by a designated government officer):

Tools and Forms

Law in Other Regions

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