by Merlin Hernandez

See article on Internet transactions published on October 8, 2012

After reading my article on Internet Transactions, one of my friends expressed surprise that there was no real comprehensive legal framework for internet transactions. Some transactions are subject to existing contract laws but interstate and international commerce where laws may be different present problems – which state/country’s laws apply. Hence the CISG umbrella for international arbitration. The area of privacy, however, is particularly volatile. I think the issue of the differences in laws relating to both domestic and international internet transactions is also one of the main reasons why there seems to be an overall reluctance by the US judicial system to wade in an enact legislation to govern privacy considerations in internet usage.

But perhaps a more salient issue is the rate of new technological inventions and applications. The changing landscape might essentially make draft legislation outdated before it even becomes law. The current legal framework for online privacy rests mainly on two federal laws, the Electronic Communication Privacy Act of 1968, and the Children’s Online Privacy Protection Act. Since then, new and emerging internet technologies and usage have created a minefield of inquiry that has essentially stumped the judicial system and the FTC itself.

Part of the problem appears to be that legal architects are of necessity seeking to legislate behaviors within a fragmented approach. There is really no overall statutory structure for internet privacy, sites are not required to have privacy policies, and there is no generalized “right of privacy” unless there are violations that are paralleled in an offline setting. Perhaps in order to give some form to the inquiry, the first order of business might be to create some kind of charter of internet privacy rights and develop a body of law that would safeguard them.

The fluidity of internet usage which influences the structure of internet marketing will continue to have lawmakers struggling to catch up. In such an open-ended environment, arbitration is probably the most viable form of dispute resolution.

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