The election campaign has ended, the excitement around structuring the Parliament will calm down. The everyday work on establishing laws, determining their priorities will start early or late. It is desirable that People’s deputies would not forget establishing digital legislation after that.
Up-to-date computer information technologies have penetrated into all spheres of human activities: business, education, health protection, public administration, information services, leisure and so on. According to a digital economy analysis, nearly 5% of gross world product will fall at Internet-economy in 2003. In five years, every second expert will obtain the second high education in a remote way. An increasing number of social relations connected with computer technologies results in the necessity of adequate response on the part of lawmakers. News web sites have many reports on different countries-accepted laws of electronic documents, digital signature, e-commerce, fight against cybercrimes, protection of personal data, features of realizing that or other activity in Internet.
The fundamental interstate bill “On declaration of human rights in the digital world” has been even introduced. Its author, the mayor of Issi-le-Moulino and co-chairman of the group studying information technologies in France National Assembly, made an attempt to give a system, global and legal meaning to the digital world. It proves the necessity of accepting laws that would secure human rights and freedoms in the e-world. The system of digital laws must protect property, liberty of speech, freedom of enterprise and competition, and so on.
What priorities can be determined when making digital laws in Ukraine?
Information computer technologies can be perfectly translated into life by business. Some factors explain it. These technologies considerably increase the effectiveness of business processes inside the company and establish more dynamic, comfort relations with partners and consumers. Today some models of e-business are known. However, those taking into a nicer consideration the specific character of relationships appear as well. What combines all them? First, it is a paperless technology when information is electronically exchanged inside the company and out of it. It seems to be good but there is a problem. When it is necessary to make contracts, send commercial proposals, fix any events and so on, the appropriate paper document should be immediately drawn up.
The problem seems to be solved when two or several companies electronically engaged in business with each other agree upon recognizing electronic documents as equivalent to paper ones. It can be considered as that until disputes occur. Documents corroborating or rebutting evidences of parties should be produced to consider deputes in court. Moreover, some laws starting with Civil Code directly require making transactions in written form. It compels business-structures to take electronic business accurately and make paper copies. Such a situation leads to collisions and confusions. The unsolved problem of recognizing juridical equivalence of electronic and paper documents restrains the introduction of relationship electronic forms into many other spheres of human activities that can result in juridical consequences for their participants.
It is an old problem. Since mid-80s, UNCITRAL Commission made out proposals for unification of legal requirements to do e-trade. Those proposals were systematized and reflected in UNCITRAL typical law of electronic commerce. In 1997, UNO recommended national governments to take into maximum consideration provisions of a typical law to develop their legislations. The long work resulted in accepting EU directive of electronic commerce in Europe. The equality of legal status for paper and electronic documents was proclaimed in both acts as a main principle. This principle of functional equivalent allows using the entire traditional basic juridical store accumulated over the period of making contracts in written and electronic forms. In addition, they unify the procedure of concluding on-line contracts, listing information on their parties, as well as establishing claim validity of e-contract and so on.
Ukraine started working on the bill that regulates relations connected with the use of electronic documents some years ago. Its quite difficult fate can be partly explained by little social demand for such legal regulation. It should be reminded that the legislation must not only fix already established social relations but also take part in making relations that will determine the vector of future social development. Therefore, the lawmaker should display great insistence when drawing up bills of using advanced technologies from political, social, technical, agrarian and especially informational sphere of society life.
At present, Ukraine’s bill “On electronic document and e-documents circulation” finished off by Science and Education Committee is ready for consideration in its second reading. As a whole, the bill complies with up-to-date legal regulation of these processes in the world. However, some moments can create difficulties when it is used.
Part III, Article 5 of the bill runs: “The law establishes forms and structures of the e-document, its essential elements and visual forms of its reflection”. If the e-document should have essential elements established by laws, it can entail huge and senseless work on making copies of all Ukraine’s legislative acts, which fix essential elements of paper documents in that or other way. It is expedient to determine the electronic signature as a specific element of the electronic document. The rest elements should comply with those for paper documents established by the legislation currently in force. Such negative consequences are resulted from the legislation demand to specify the form and structure of electronic document data.
The most serious mistake consists in that no bill standard provides for an independent legal force of the electronic document. The bill specifies that the electronic document should have a paper copy to be legally valid (Article 8). The recognized possibility of using the electronic document as evidence does not exhaust all the functions of the legally significant one. In other words, if this bill is adopted, the electronic and paper office work will be needed. What did we fight for? The availability of many reference norms makes the bill helpless, most of them referring to nothing.
The price of such defects is very high. Ukraine will hold up introducing computer systems of the office work. Many socially important projects of applying information technologies including e-government and e-commerce cannot be realized.
By the way, some words should be mentioned about the electronic commerce. When pinning great hopes on Ukraine’s bill “On electronic document and electronic office work”, it is necessary to elaborate and accept the law “On electronic contracts” where the legal regulation of the e-contract conclusion and implementation is reflected. It should describe not only e-commerce but also all the possible civil-legal transactions. This law should be harmonized as much as possible with the international legislation and, first of all, with European one. It is necessary to solve quite a serious problem of the terminological indefiniteness that is always specific for new spheres of human activities. All this will allow Ukrainian businesspersons to communicate and arrange with their home and foreign partners using a single electronic language.
The legal practice of advanced countries proves the necessity of accepting as soon as possible this important bill with due regard for accumulated international experience.
Any document should be identified with a legal and physical person that drew it up. The humanity uses signatures and seals in paper documents whereas in e-documents – e-signatures. The electronic signature means e-data attached to or logically combined with e-document and serves as identification.
All standards concerning the e-signature are known not to enter the bill on electronic documents. They were included into a separate law entitled “On electronic digital signature” to simplify the process of accepting these two bills in Ukraine’s Parliament. However, the fate of the latter bill turned out to be not less difficult than that of the former one.
It should be reminded that there is EU Directive 93 of 1999, which aim is to legally recognize the electronic signature. The same laws operate in Germany, Italy, India and some US States whereas the bills are in Dania, France, England, Spain, Austria and so on. According to the national and international legislative base analysis, there are different approaches to regulating the use of e-signature. The cornerstone of this difference is a specific task of its use: either interstate or international.
Ukraine’s bill and, for example, Germany’s legislative base set forth an idea of using the e-signature within the framework of specially created, hardly regulated, state obligatory system of certification. First, such an approach regards as of paramount importance the secure and reliable use of electronic digital signatures. It has the right to life, especially, with due regard for possible threats to falsify electronic signatures and cause damage to parties using it. Practically every day we make sure of such threats reality. For ill intention or curiosity, hackers check the reliability of computer network and system protection with enviable constancy.
It should be paid attention to that the desire of bill authors to create a harmonious, methodologically justified system of certification gets smashed against the reefs of reality. As an equivalent of the autograph Article 4 of the bill recognizes the electronic signature that conforms to two main requirements: 1) digital electronic signatures should be made and checked by reliable means of digital signature^; 2) digital electronic signature should be checked with the help of intensified certificate of a key.
What should the lawmaker specify as reliable means of e-signature? It turns out that the bill authors offer a “remarkable” mixture. If there is a certificate of conformance (to what?) or a positive expert conclusion (about what?) of the authorized body, or it approved the operation of this means (on the ground of what?), it is a reliable means of the digital signature. The authors of Article 2 seem to have little knowledge of opportunities for cryptographic protection of information in Ukraine and so, just in case, they gave these three variants practically eliminating each other. The bill has many such inexact legislative norms that result in washing away the heart of its text content.
However, let us return to the analysis of the bill methodological principles. The hardly regulated state obligatory system of the digital e-signature certification unambiguously outlines borders of its use – within Ukraine. It means that along with potentialities of providing high security and reliability for the use of e-signatures such an approach crosses all the hopes of an international cooperation in this field. We should clearly realize that we deny the participation in the international e-trade when putting into practice the offered model. The home business-structures will surely take part in it but under others’ rules and laws. In this case, the state refuses an appropriate legal protection to them. Is it right?
In addition, the bill does not comply with the EU directive by some items. It should be noted that in this case the reference to the EU directive does not demonstrate the adherence to a “foreign policy vector”. The document only includes the experience of many years and results of various experts’ work.
First, the broad and open notion of an e-signature used in the directive is brought to a digital e-signature in the bill thereby illegally excluding other ways of current or future e-identification. Secondly, the demand for obligatory accreditation of key certifying centers conflicts with the spirit of the EU directive and Ukraine’s legislation. Thirdly, Article 5 of the directive unambiguously determines that the e-signature does not lose its importance when it is used without certification attributes. Article 6 of Ukraine’s bill gives the right to use the digital e-signature with no certificate of a key but such application has an insignificant legal force in Article 4. In other words, no legally significant signatures should exist beyond the certification system! The authors’ attempt to combine regulations of the EU directive and Germany’s legislation led to the lack of logic in Ukraine’s bill.
However, the situation has a way out. It consists in reviewing all the bill standards and eliminating all the deviations from Germany’s approach. Then it is required to introduce a new draft “On electronic signature” that should be completely harmonized with the directive. The amended bill “On electronic digital signature” should become its separate chapter, which norms as obligatory will regulate relations connected with the use of e-signature in the state and bank spheres. Then in the process of documentary relationships business-structures and physical persons will have the right to freely choose any system of e-signature realization in mutual agreement including state i.e. digital e-signature at the definite level of confidence.
The electronic government means that with internal and external connections and processes to be supported and provided with appropriate information computer technologies. The term “government” is defined as authoritative structures ranged from the Cabinet of ministers and ministries to regional state administrations. Ukraine has recently discusses this idea in an active way and taken first steps of its realization.
The e-government is not a mechanic combination of information technologies and government but a new philosophy of the state administration. Therefore, a new legislative base should be elaborated to make a reality of this idea. First, it should attach a legal status to electronic documents and signature. Then it is necessary to adapt a normative base that regulates an office work in the state establishments to features of using computer technologies. The electronic information resources that will be located in the computer networks by state bodies for interdepartmental and public use should have a legal status as well.
The legal regulation of providing the population and business with online services contains some main problems. The legislation should clearly establish general conditions of providing such services and features of their separate types^; regulate an order of putting in applications and standardize forms of documents to be used. Special attention should be paid to the problem of legislative guarantees for providing such services. The idea of e-government is doomed to failure without solving legal issues.
Protection of personal data
The use of computer information technologies to provide the population and business with services results in accumulating various data on persons. Disclosing such information in an unauthorized way can often inflict the damage. The first national legislative acts regulating the protection of personal data (information on a person) appeared in 80s last century. Then the international legal documents establishing principles and order of protecting personal data were elaborated. In 1996 the author of this article touched upon this subject on pages of Ukraine’s “ZN”. Then a group of authors prepared the complex of legislative acts including the draft “On protection of personal data”. The bill was thoroughly examined by dozens of departments, presented in two monographs and officially submitted to Ukraine’s Cabinet of ministers late 2000.
However, by virtue of strange reasons, the further movement of the bill has come to a standstill in spite of that some other legislative acts including that “On single register of physical persons” for Ministry of Justice were based on it. Moreover, it had to become a legislative umbrella for operation of many national computer systems^; in particular, a single state automated passport system with huge amount of personal information. The demand to protect personal data in computer systems of taxation and militia authorities, medical and educational institutes, as well as business structures has a dual destination. However, on the other hand, it is a functional protection from hacking attacks against computer systems of these structures.
The last Parliament elaborated its own variant of the bill based on the material of corresponding European convention and directive. It should be noted that it features some methodological mistakes and lack of logic. For example, the bill defines “sensitive data” as personal information that results in high danger for data subjects when processed. Nevertheless, the data processing itself bears no risk. Only spreading or using personal data in an unauthorized way can inflict the damage. All these defects can be eliminated. However, the bill has not passed even the first reading. Therefore, Ukrainian people remain unprotected from obtaining, spreading and using personal information in an unauthorized way or for illegal purposes.
Digital mass media
Every day Internet-issues increase, radio stations appear in the computer network and mass shows are directly broadcasted as on air. Soon the single portal and single transport, telecommunication technologies will provide users with an access to printing, TV and radio information sources. Since the various information traffics will be integrated on the user’s level, the convergence of information sources that will operate in the single integrated technological environment seems to be quite logical and obvious. The integration of radio, TV and Internet-technologies will allow meeting high information demands of users. This convergence will result in developing new mass communications that will give an opportunity to watch (read) TV block of news, any film from the studio film collection, carry on a dialogue with a favorite political correspondent, find and read any newspaper and journal at any moment without leaving a working place.
New technologies lead to new social relations. When new social relations appear, they need to be legally regulated. Consequently, early or late the legislation regulating the activity of mass communications, features of producing, spreading and using information products under new technological conditions should be introduced. However, there are some problems to be legally regulated today.
Some TV news programs have their Internet-versions. There emerge a question of their legal status. On the one hand, the traditional activity of TV-radio organization is reflected by other technical means (Internet-technologies). On the other hand, the definition of TV-radio organization given in the current legislation does not allow referring TV Internet-technologies to the same. No comments. However, TV-radio organizations and their creative officials have particular rights and duties. Their main right is to have an access to any information and the main duty is to objectively reflect it in their materials. If you want to use materials produced in the TV program of news to establish a fact, can you use appropriate web site materials? How is the adequacy of air and web site material regulated? If the direct topic uses the author’s statement with unreal data, can they be located on the web site and who will respond? All these problems can be referred to the Internet-versions of printed issues.
Another situation can also cause not less active disputes. It describes the legal status of merely online projects, i.e. those having no analogues in the material world – Internet-journals, Internet-newspapers, Internet-information agencies. Can the web site be considered as a means of mass information? It depends on its functional purpose. The problem of the legal status for online products can be solved in a following way. It is required to introduce a legal norm that would protect rights and interests of persons and organizations when false information on them is placed on the web site of any belonging and destination, as well as on personal ones. Such an approach would deprive many persons of their illusions that everything is permissible in the virtual space. Time when only ethic norms and code of honor could save the Internet-space from boorishness and falsehood has already elapsed or not started yet. On the other hand, the voluntary registration of web sites as means of mass information would allow both organizations and their creative officials to legally have the whole complex of rights of those presenting the fourth authority and, of course, particular duties.
This list of problems connected with means of mass information realizing their functions in the online space is far from being complete. It is necessary to remember about copyrights, authors’ earnings, ratio of content-providers to Internet-providers and many other things. It is necessary now to elaborate laws with due regard for widely used computer technologies and means of mass information to democratize society, create civil society, converge them in future and qualitatively transform them into mass communications. The dynamics of developing new information technologies makes us act without hesitating.
The sphere that directly influences the development of new electronic technologies cannot be passed over in silence. It concerns telecommunications. The development of telecommunications determines the rate of using computer technologies. The lawmakers have realized importance of telecommunications for Ukraine and its economy. They have been attentively considering some variants of the bill “On telecommunications” for two years but there is no positive results. They have been turned down.
Now under conditions of Ukrtelecom privatization, an obviously false point of view is formed: let any law “On telecommunications” be accepted if only more quicker. There is something true in it, as a future industrial investor would like to know game rules on the Ukraine’s telecommunication market in advance. It is not an idle curiosity. It is important to know the content of this law. The strategy of his conduct will depend much on it. Our dominant operator is privatized not only to make assessments to State budget but also encourage an effective owner capable of realizing Ukrtelecom technological and marketing breakthrough that will allow putting telecommunication on the modern technological level. It requires a lot: considerable and quick investments, up-to-date management, new corporate marketing policy and qualified personnel assured of their actions. The staff consisted of more than one hundred thousand persons is difficult to replace, or rather, cannot be replaced at all. Therefore, the human resource also needs appropriate investments.
However, the world experience shows that the development of the whole telecommunication sphere depends not only on the dominant operator but also on other ones capable of competing with it in providing various modern telecommunication services, especially with due regard for those or other local conditions, and, naturally, supplementing and developing potentialities of the dominant operator. In Ukraine as all over the world, laws and normative acts regulate interaction between operators, introduction of technologies, development of main and local networks and determination of tariffs. Consequently, if there are many participants on the telecommunication market, various services are provided, the number of users increases and telecommunications are of great importance for the economy of both a particular enterprise and the country as a whole, the legislative base takes on special significance. Therefore, the law “On telecommunications” is a necessary condition for the progress of the entire telecommunication sphere in Ukraine.
When preparing the bill “On telecommunications”, various models of regulating this sphere can be suggested. However, it should be remembered that the activity in the telecommunication sphere is of an international character. Therefore, it is subjected to the hard legal coordination on the part of appropriate international organizations. Hence, it is expedient to prepare a draft completely harmonized with international laws and WTO requirements whereas some norms can be carried into effect more later when the market is ready for those innovations. Special attention should be paid to the problem of stabilizing the position of the dominant operator on the telecommunication market as a pledge of the entire telecommunication sphere steadiness and simultaneously creating the competitive environment for all operators.
The most important problem for the modern society saturated with information computer technologies is to fight cybercrimes. They are committed against the right of computer information technology owners and users to obtain and spread true and complete data in proper time^; property in information or software^; protection from negative information influence, negative consequences of computer information technology operation and unauthorized spread of data. The objects of computer criminals are financial-banking, transport, telecommunication and other state automated control systems. They also attack computer systems and networks used by commercial structures and particular persons. According to the US statistics, in USA an average damage makes up $3.2 thousand (a physical bank robbery), $23 thousand (a swindle) and $500 thousand (a cybertheft).
According to interrogation data, hearing materials and scientific observations, the world society faces serious problems in this field. If computer technologies and networks remain vulnerable, it can cause appreciable losses in the most various fields. The activities of political extremists and terrorists, as well as criminal groups directed against vital objects can succeed. All this is aggravated by the imperfectness of criminal laws and state system on fighting computer crimes.
Ukraine has accepted a new Criminal Code. It is an advance at least regarding computer crimes. There appeared a special chapter with three direct norms – Articles 361, 362 and 363. Other chapters have also four norms indirectly connected with fighting cybercrimes. However, these norms should be corrected not to repeat a sad mistake made by Ukraine’s previous Criminal Code article of 1981. For example, Article 361 provides for a penalty when “computer viruses are spread by using software and hardware designed to illegally penetrate into these machines, systems and computer networks …”. If software (viruses) can be classified as designed for unauthorized penetration, hardware (computer, telecommunication networks) is quite difficult to refer to the same. Consequently, the criminal prosecution for spreading computer viruses is impossible to realize because of the wording “software and hardware” in the Criminal Code. The punishment of those who produce viruses is not provided for at all.
In addition, the following socially dangerous acts are outside the above articles of Ukraine’s Criminal Code: prevention from obtaining computer information including blockage of computer network operation (Spam), unauthorized use and spread of computer data, prevention from spreading legal information, for example, by cutting web site from Internet and so on.
Therefore, quite laborious work will have to be done in the field of computer crimes. It should be noted that the character of developing up-to-date information computer technologies, especially, their globalization level allows no country to solve the problem of computer crimes alone. Practically all the aspects of fighting these crimes should be harmonized with the international experience.
The above problems are certainly not to exhaust the whole list of legislative work in the field of computer information technologies. So much evident becomes a big package of works that should be done in Ukraine. Writing those drafts cannot be a destiny of particular initiators. It is necessary to combine efforts of many experts in various fields of knowledge. It would be expedient to create a constant working group consisting of representatives from the Parliament, government, science, business and various organizations that could put forward proposals on digital legislation in a dynamic and qualified way and create a future legislative base by using different technologies of promoting bills to the Parliament without facing ambitions.
The world is advancing to the electronic epoch and states develop the e-world with real acts and laws. In Ukraine, many words are said about the necessity of becoming a member of European Union, adhering to the main values of civilization, as well as information society. Let us change words for deeds and take our opportunity of, at least, making laws. After all, laws can favor the development.