Stokes, Michael --- "Editorial" [1998] JlLawInfoSci 11; (1998) 9(2) Journal of Law, Information and Science 139

• EDITORIAL

EDITORIAL

Three of the articles in this issue examine changes in the ways in which we do things in response to information technology. The first, by the Hon Justice Michael Kirby, of the High Court of Australia, looks at the impact of information technology on the procedures and methods of the courts. He concentrates on two ways in which information technology is revolutionising the procedures and practices of courts, barristers and judges. The first revolution is in court procedures. Information technology enables courts to hear evidence and argument without the parties or the witnesses being present. However, Justice Kirby warns that the practice threatens and should not be allowed to destroy the common law tradition of trials in open court in the presence of the parties and the public. The second revolution is in the preparation of arguments and judgments as search tools enable lawyers and judges to find the law on the internet more quickly than was possible in the past. The development of voice control is likely to add to the ease with which lawyers and judges can find the law. However, Justice Kirby concludes that we are a long way from computers which will be able to act as judges. In part this is because the public expects the courts to provide just solutions to human problems.

The article by Professor Eugene Clark, Associate Professor George Cho and Arthur Hoyle deals with the changing role of the legal profession in the management of businesses. Using the Y2K problem as a case study, the article considers the new role of lawyers in ensuring that businesses comply with the law and hence limit their risk of exposure to criminal or civil liability. They argue that government, business and other organisations avoided Y2K disasters by taking preventive measures before the disaster occurred. This, they argue, is the best way of dealing with all foreseeable risks. Hence, the best way to minimise legal risks is by developing a culture of compliance in which all personnel in the business from the top to the bottom, are aware of the legal risks to which their actions may give rise, and have the training to avoid those risks. They conclude that lawyers have a role to play in management teams set up to identify legal risks and to develop strategies to ensure that they do not occur.

The third article on this theme, that by Christopher Tay, examines the ways in which new ways of doing business, which have arisen as a result of the development of new technologies, are challenging traditional concepts in the law of contracts, such as the need for offer and acceptance. He considers in particular the problems which the courts and legislatures face in deciding whether and on what basis shrink wrap licences and click wrap agreements should be treated as contracts imposing terms on the consumer before they have any real chance to examine their terms.

The other two articles deal with particular legal issues to which information technology has given rise. The first, by Craig Vernon, argues that Australian copyright law gives too much protection to the owners of copyright in computer software and to that extent ignores the public interest in having reasonable access to that software. The result is that Australian software producers are disadvantaged compared with their international competitors. Vernon suggests that to ensure access to copyright software, copyright owner should be under the same obligation as the authors of books to deposit a copy of the work in the National Library. He also argues that the current licence agreements between software manufacturers and users allow the manufacturers to protect the ideas behind their software by preventing its decoding into source code, which makes the ideas apparent. This gives too much protection and acts a brake on new developments. To encourage innovation and competition, software manufacturers, like other copyright owners, should only be able to protect the ways in which their ideas are expressed, not the ideas themselves.

The final article, by Ian Wilson, Alan Tickle, Katherine Grigg and George Mohay, considers whether intrusion detection systems are legal in Australia. Intrusion detection systems are designed to protect an organisation’s information technology infrastructure from unauthorised access and misuse. They do this by the monitoring and surveillance of activities on the organisation’s communications network. They have the potential to reveal and record information, some of which may be of a private and personal nature. The article considers whether the capacity to reveal and store information makes intrusion detection systems illegal under Commonwealth and Queensland legislation. They conclude that intrusion detection systems are probably legal but that the answer is not certain. There may be some need for reform in the area as the relevant legislation was not drafted with the problem of unauthorised intrusion into the IT infrastructure of organisations in mind.

Michael Stokes

Editor