Jusletter IT

Der folgende Beitrag ist der Text eines Vortrags, welcher 1982 in Oslo am Norwegian Research Center for Computers and Law gehalten wurde (NRCCL; Prof. Knut S. Selmer, Prof. Jon Bing). Die Vortragsform wurde hier beibehalten. Dieser Vortrag wurde damals nicht publiziert. Ungeachtet des zeitlichen Abstands scheint seine Thematik heute noch aktuell. Dies gilt sowohl für die besonderen Schwierigkeiten der Forschung zum Informationsrecht, wie auch für deren mögliche Strategien (z.B. Art der Projektorganisation). Und schließlich für die Warnung vor hier besonders naheliegenden Irrwegen von Forschungsansätzen («Not to introduce prejudice and bias by its very setting») – eine damals wie heute vielerorts unbeliebte Art von Warnung vor einer parteiischen «Fortschrittlichkeit».

Information technology and its applications in western industrial societies have triggered off developments, to which have been rightly ascribed the qualities of «revolution». One development here in question is the «privacy revolution» of the last decades, i.e. the surprisingly quick adoption and legal enforcement of rules on «computer privacy». The roots of this development, which originated in the U.S., seem to be twofold: at one hand, fear of computer power (e.g., «national data bank»); at the other hand, fear of information misuse (e.g., credit reporting practices; Watergate). The offsprings of this development, rules and standards of computer privacy, obviously are drawing their greatest force from the «liberal» interests of the individual in protection against societal control, the efficiency of which has now been enhanced quite decisively by information technology. «Big Brother» is the monstrous impersonation of related fears and apprehensions.

In spite of their notoriety and acknowledged importance, however, computer privacy and the privacy revolution are no more than the first paradigm in a far more general field of problems, opened up by the use of modern information technology. These problems in fact regard the whole range of information policy and information control in the age of information technology. The set of legal regulations in this field increasingly is being named by the term of «information law» (or equivalent terms in different languages). Research on information law, and the strategies of this research, have become an important topic on the national as well as on an international scale.

From computer privacy as historical starting point, generalized conceptions may be developed/and have been developed–in several directions, comprising:

• legal regulations on data processing and the use of information technology in general (law on data processing and information technology)
• legal regulations of information handling in general (law of information handling)

These two regions of course overlap, but are not identical, As legal generalizations of «computer privacy», they roughly correspond to its double root, i.e. fear of computer power resp. fear of information misuse. The union of these two generalizations may be said to constitute the field of «information law». Its principal problem fields, and, correspondingly, the principal subject regions of information law (with the background of the legal system of Federal Republic of Germany as an example) may be listed as follows:

The different problem fields of information law are in quite different states of development. There are fields already covered by classical legal theory as weil as fields of utopia. The reference to the legal systematics of Federal Republic of Germany as background of course is not meant to imply, that legal regulations corresponding to each of the problem fields are already in force or even in consideration.

As viewed here, information law is a special subset of societal norms and regulations on information handling and data processing. In its own turn, this set of societal norms and regulations is related to the fields of societal information control and of information policy. Societal information control has the task to ensure that the real processes of information handling and data processing conform to societal norms and goals. The shaping and definition of these goals and norms is the concern of information policy.

More than other fields of law, information law and its development have been influenced by research activities. From its outset, the points of computer privacy have been stressed by researches, hitherto mainly arguing the possibly harmfull impact of computer technology and its applications on the individual. Similarly, the case of information law, societal information control and information policy has been argued by researchers. The public discussion of computer privacy and the preparation of privacy legislation have been greatly influenced by researchers and especially by committees and groups of organized research in many countries.

In the meantime, privacy legislation has created its own problems, which are beginning to become a task for research. There are comprised the problems of transborder data flow and of international harmonization of privacy law. The extension of computer privacy into the field of information law has been postulated by researchers and has opened up a large field of research necessities.

The objectives of research on information law are not only insight and better understanding (of structural, empirical or historical kind). In great extent, the desired results of this research consist in conceptions and acceptable proposals for a variety of regulations:

• codes of professional ethics
• national legal regulations
• directives of national or international organizations
• international treaties and conventions
• national and international standards.

Insomuch, research on information law has a specifically constructive and at the same time pragmatic character. This specific character is also interlinking research of information law with the tasks of «development» in this field.

Research on information law is confronted with some specific conditions and difficulties, which in their turn imply some typical principles and strategies of research. Some of these typical conditions and difficulties are noted here as follows:

From the specific conditions or research on information law can be derived some typical principles of its strategy. Typically, the strategy of research on information law has to provide for the following possibilities:

Typically, research on information law has to comprise contributions from informatics, social science, law and economics. This seems to be widely recognized nowadays. In addition, the importance of contributions from information science should be stressed. The systematic relevance of information science for research on information law seems to have been widely underestimated even up till now. For instance, the factual background of transborder data flows and their legal regulations is clearly a subject in the field of information science, which has, however, been mostly neglected.

In many cases and aspects, research on information law has to incorporate assumptions on future developments. Especially this regards the development of information technology and its relation to other societal, political and legal developments. For instance, the constructions of computer privacy and privacy law heavily relied not so much on present or past grievances, but on arguments about future dangers for the individual from applications of information technology (e.g., «1984»). Of course, the discussion of probable future societal developments is not illegitimate in research. However, its futurological character has to be recognized and the pertinent methods and precautions of futurology have to be adopted. For instance, more or less plausible assumptions on future states of affairs should be introduced in the form of alternative scenarios rather than in the form of apodictic propositions.

Comprised here is not only the consideration of developments in the relevant international «neighbourhoods» (e.g. «Europe») or supranational communities (e.g., EEC, CE, OECD). Beyond this, and especially in view of long term developments, have to be taken into consideration the global dimensions of the east/west, north/south discussions.

Therefore, research on information law in great extent depends on exigent prerequisites. Accordingly, research in this area greatly has been conducted in the organized form of project groups or under the auspices of commissions and committees. It seems sound strategy for research on information law, to conduct its activities rather in organized form. Aside from the possibility to procure the different necessary prerequisites, this strategy many enhance the chances to get «balanced» results by a balanced setting of approach.

Although, of course, there is a large variety of tasks for research on information law, there are some typical kinds of tasks associated with this field of research. As primary members of the relevant set can be listed the following:

This is an open field of tasks of a strongly heuristic character. Examples may be found in the list of problem areas above under (1). In the field of classical computer privacy, for instance, could be listed at present: public and private information services; access to personal data for empirical research; development and influence of control organs; transborder data flow; specialised application fields, like intelligence systems, etc. To this kind of tasks appertains also the identification of danger areas and weak points of systems. According to the openness and heuristic character of this kind of tasks, contributions from a large variety of backgrounds and intentions are possible. Public discussion of the issues concerned will be useful.

A specific necessity is the analysis of different types of interests in the problem areas, especially of conflicting interests on information handling and data processing. The arising «information conflicts» are a typical and important phenomenon. In the discussions on computer privacy it has been often neglected that generally there are meeting several different interests each of which is legitimate in itself, but which are nevertheless conflicting. For instance, it is not sufficient simply to set the conception of the «good» citizen against that of a «vicious» bureaucracy.

Obviously the construction and analysis of such conceptions is one of the main tasks of research on information law. In the field of computer privacy, for instance, during the last decade have been developed quite a lot of conceptions on the regulation of information conflicts, which tend to build up even international standards.

From the foregoing sections there appears a number of consequences, which may be considered as some outlines for strategies of research on information law. When compared with methods and strategies in more traditional fields of legal research, these outlines seem to have a quite specific nature. This specificity corresponds to the specific nature of their subject domain, information law (in connection with other related subjects as information policy and societal information control). One first point worth noting is, of course, that the requirements of research in the specific field of information law in fact necessitate some reflexions on research strategy. According to this remark, some notes on strategy of research in the field of information law tentatively may be listed as follows:

Of course, a strategy of organized, integrative research as indicated cannot guarantee for correct or even «balanced» results. But it might help to avoid the introduction of bias and prejudice by the very setting of research. And it might help to integrate the development of information law into the larger context of reasonable information policy and societal information control. Not at least, a specific research strategy in the field of information law, as outlined above, may prove to be some sort of paradigm for new orientations in legal research on the whole.

Herbert Fiedler, Professor (em.), Universität Bonn, Adenauerallee 24-42, 53113 Bonn, DE,herbert.fiedler@fit.fraunhofer.de ,www.jura.uni-bonn.de/fiedler