Tuesday, March 03, 2009

Making laws align with egovernment

I've come across some interesting situations recently where technology is far in advance of legal frameworks, placing governments in a position where agencies may be breaking - or at least bending - laws by using certain online tools.

Twitter is a case in point. The technology was invented after the Spam Act was passed and it is not actually email, however it does permit the sending of advertising messages out to thousands or even millions of people. How is this covered? Personally I'm not sure, however I'd hazard a guess that legal opinions will probably vary.

Another example is the use of services such as YouTube, Facebook and other social media tools. All come with terms of use attached which may in some cases contravene government legal requirements.

This hasn't yet become a pressing issue in Australia and the use of YouTube in particular has become quite widespread across government, with at least 20 agencies using it to host and distribute video.

In the US there's also a great deal of use of YouTube by local state and federal agencies.

In this case federal agencies have been in a legally gray area. While they are only answerable to federal law, YouTube's terms of service specify that its users are liable to the applicable state libel laws.

Also of concern is that in the US anything the government publishes is in the public domain and freely available for reuse (unlike in Australia where agencies generally attach copyright to their work). YouTube's terms also specify that the user posting the video is responsible for the video - which is not the approach the US government takes.

As in most situations, where new technology meets old laws it's the laws and how they are interpreted that changes. In this case the US federal government is negotiating with YouTube to change the conditions to legitimise its use of the channel.

This has been discussed quite broadly in Nextgov, particularly in the article Feds and YouTube close to reaching a deal to post video.

I wonder how Australian government agencies will handle the inevitable conflicts between laws and society in the online world - particularly when dealing with services often created, owned and managed out of overseas jurisdictions.

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