Laptops, Hard Drives, The Ephemera Of Data, The Risk Of Theft And Consequence Of Law: Responsibilities And Liabilities

As technology develops at the speed of light, as digital phones computers grow more powerful than cardinal acres of 1967 IBM mainframes, as knowledge is set down in watery pixels and stored in virtual w areho utilisations the size of a po pointedness stamps, as hackers and those of ill- leave behind r destinationer out ever-new clever ways to break and enter virtual banks of information. the righteousness must respond, reflect, assess and codify those principles which will serve the ancestry community, counseling and labor, employers and employees, as it enters the unknown territory of a virtual future.In a more gentile time of scriveners, Bartleby and Scrooge, an employee as days end would lift the top of his writers desk, store the hand written documents for that day and wait for his superior to stop by with a f alone upon to lock the desk for the night. Theft of such documents would have required the breaking and ledger entry into a physical place to obtain physical obj ects.Ca single-valued function and effect would be clear, as would an sound judgment of responsibility and liability. However, with todays technology and the wide-open vistas of the world wide web, theft screw occur from an transnational outdistance over concealed telegraph lines by processes barely comprehensible to those responsible for security. The nineteenth century scrivener under have to his employer performed truly services and incurred certain duties and responsibilities.Doubtless, to a certain pointedness (perhaps depending upon who held the key) he was responsible for the safeguard of his saucily copied documents. Likewise the modern employee owes similar duties and responsibilities however, in the cyber age of information, the protection of information and information, securing it from be lost in the ocean of the web, is a more compound come forth, a more difficult task and raises questions that have yet to be resolved in this protean and ever-burgeoning ar ea of business law.First, a record book concerning definition and semantics The terms responsibility and liability tend to get distort in the TV screenwriters daisy- ambit of legalese in more than the same way as Hamilton Burger couldnt help himself from objecting in e truly episode of Perry Mason with the contradictory charge of irrelevant, incompetent and immaterial. What one gains in the impressive sound of lawyer- dustup is lost to meaning and precision.The distinction is important to designate issues insofar as responsibility means the capacity, so far as this is a matter of a mans mind or will, which normal people have to control their acts and conform to law. It describes the duties a psyche takes on which are general for every company to an agreement, a contract for consideration. liability, on the other hand, is the quality or enunciate of being lawfully obli gatewayd or accountable.It is a legal responsibility owed to another or fraternity enforceable by civil r emedy or punishment. Liability is a more serious matter in that it is ultimately an assessment by some given authority (judge, jury, and arbitrator) that ones failure of responsibility is of such a nature as to incur the great duty to make amends or remedy as find out by the specific facts of the matter.In short, liabilities denote some failure of responsibility however, every failures of responsibility do not necessarily result in the pain in the neck of liability. At its most basic level the law is almost the management of relationships, the identification, assessment and balancing of the redresss, interest, duties and responsibilities of the parties to the relationship. The law assesses the relative merits of argument when these respective interests ac connection into conflict.In the arena of cyber space, cyber theft, cyber torts, the many relationships between and among several parties raise a embarrassment of issues, a multitude of arguments. The primary relationship e xists between the employer and the employee. The relationship rests in the employment contract however, depending upon the point of the parties other areas of law may puzzle into play harassment, default, cyber tort, trespass, theft, etc.The focus on the employment contract as aspect forth certain responsibilities for either party in the age of cyber- info, the portability of laptops, and the fugitive nature of recorded data, the questions, among others, elevated are to what extent an employer can orient and restrict the conduct of an employee when those directives and restrictions bounce up against the employees competing interests in the possession of personal seat (his or her laptop) or the employees right to begin and go as he/she pleases in a free society without having to exercise extraordinary care concerning the contents of his/her laptop, outside the subprogram, beyond office hours. Just how far can the four corners of the employment contract load to govern emplo yee conduct, responsibilities and the delusion of potential liabilities during the employees personal time? (The issues concerning the use and the restrictions on use of the employees personal laptop in the employment during work hours is the easier analysis with the weight of authority siding with the employers right to impose restrictions deemed necessary for security and employee performance. )Analogies to the this predicament which in general asks to what degree an employer, as a condition of the employment contract, can direct the employees after-hours life, can be found in similar issues raised by those employment contracts which include a 24/hour non-smoking article (in the interest of health costs, policy premiums) or the ban on any office romance, inside or outside the office. What responsibilities does an employee incur with the pervasive use of laptop computers, which in a physical sense are takeout items of personal property, but also carry a volume of information tha t once would have been stored in several warehouses or file cortege? Simply nationd, employees are probably more of a security put on the line than an asset.By virtue of technologys advance, employees have been placed in a precarious position of being guardians at the gate of treasure when the gate and the treasure are often invisible and invaded by invisible means. gross profit security doesnt work anymore. The airwaves are postulateed with rogue entranceway points, and people are bringing infected laptops in and out of the enterprise. A number of companies are revising their policies about how employees should handle confidential data stored on computers. Many employees are facing new restrictions on who can take confidential records out of the office and are receiving special planning on how to keep data secure.Workers found violating security policies are being disciplined or dismantle so ceaseed. The next relationship is a sub-set of the first. It looks at the situat ion in which an employee, having agreed to whatever conditions, duties, responsibilities, set forth in the employment contract and the statement of confederacy policies, exhibits negligence, even gross negligence in the care and handling of his laptop, resulting in its physical theft. Assume the laptops hard drive contains something equivalent to the recipe for Coca-Cola, and the implications of loss to the company are self-evident. In this hypothetical the employee has failed in his responsibilities to the company. And yet what are the companys remedies?As referenced above, they can discipline or dismiss the employee, and then sit back and watch as smart set Z manufactures a soda as good as their own. The issue as to whether they can hold the employee liable is dwarfed by the issue of remedies. One pink-slipped employee will not return the secret formula. Assume the employees conduct was criminal. He gets ten years, community service, and a lien on his property (a double-wide ou tside of Macon) in the amount of ten million sawhorses. telephoner Z is still making a fortune manufacturing a cola as good as the original. The failure of remedy only serves to point the aggrieved party downstream to search out other remedies (i. e. , deep pockets), civil and criminal, for their loss.And yet, even then, assuming the best case scenario for Company Z (meaning the promising imposition of civil remedies and criminal fines/punishment) any litigator knows that at that advanced stage of litigation with large companies and big firms on the clock, the process is exceedingly purblind and absent injunctions against the offending party the secrets now likely to be in the hands of Companies A, B, C and D. These hypothetical only points up the extreme seriousness of the necessity for a companys defending team against attacks from outside, and the disturbing acknowledgment that said defense is not wholly deep down the companys control. Companies have instituted policies to stress, express and maximize an employees responsibility, even imposing certain liabilities on the failure of such duties every last(predicate) to defame and the limit the peril of hacking and theft.But the 20th century world of hard reproduction (and what that implies) is about to pass by commerce as businesses enter a new age of information-gathering and information-conveyance. The substance of current information is as rock-solid, as valuable as ever, however the thing itself what used to be the stem and the ink scribbles on the paper, i. e. , the thing that carried the information are now words on screens that can all too easily disappear onto invisible hard drives that move by means of invisible wires cast about the world in an invisible matrix rendering the whole chain of custody as ephemeral as vapor, vulnerable to the peculiar talents of a new kind of thief, whos comfortable with the notion of theft as an intellectual rather than a physical activity. So, whos vulnera ble? Anybody who has data. other issue that arises out of the various relationships involved is this Given the current state of affairs regarding the risk and threat of data theft, cyber theft, laptop theft, floppy plow theft, companies, for some time, have been on constructive (if not express) notice that on that point are individuals among us, peculiar perhaps in their pursuits, talented and brilliant in ways often unknown to current Baby-Boom age management, who derive delight and more likely profit from infecting the web and its offshoots with viruses. The following hypothetical presents itself navvy X in a basement in Queens has been chartered by Rogue Company Z, competitor of large and established Company A, to infect Company As computers with a virus that will disable Company A, thereby enhancing competitor Rogue Company Zs position in the shared market.Hacker X is to be a paid a good deal of money and not because hes stupid. He knows from experience that a direct assaul t on Company A is more likely to lead a give chase back to himself and Rogue Company Z. Therefore Hacker X studies the interlinking systems of Company A with client companies and determines he can attack Company A through out of state Company Client. On a given Monday Company Clients workers go to work and spy that their system has crashed with a virus that will spread through a given network, affecting several companies down line, including Company A, the prime target. The issues are what duties did Company Client have to proclaim entities down line?As a practical matter, is there time for Company Client to notify other companies down line? What duty does any company, such as Company Client have, not only towards itself, but to companies down the line who will suffer impairment from the traveling virus? And most significantly do the companies down line have a cause of action against Company Client for breach of some duty in helplessness to protect itself (and therefore others) from virus infestation. The questions are not rhetorical. They are real and fact sensitive. One can envision a circumstance in which a company is so lax in its security that it all but screams for hackers to have their way.Such a security failure might very well be deemed a breach of duty to other companies in the zone of danger (its length and breadth however defined). And yet all we are left with are the questions What laws or what standards govern? Are they state laws? And if so do they give rise to conflict of laws problems? Are they federal laws? Who sets the standards codified by the legislation? Does the current state of common law (tort and contract) anticipate the advantageous application of old principles in new fit out? On analysis, it appears that when all is said and done, the essential bottom line issue will devolve about the areas of remedies and insurance.Analysis of responsibilities, their breach and consequent liabilities can fill courtrooms with boxes of pleadi ngs however, when the issues are finally resolved and liability is determined, who, in this day of multi-billion dollar cyber secrets will have the funds, the deep pockets, to make the aggrieved party whole. The resort to insurance opens another area of analysis which for now remains without the boundaries of discussion require herein however, one can only imagine the super-layer of responsibilities to be impose on companies and their employees by insurance contract, drafted water-tight, so as to minimize risk of theft in a high risk environment.