Beyond Compliance: Understanding the Legal Aspects of Information System Administration

Beyond Compliance: Understanding the Legal Aspects of Information System Administration

Peter J. Wasilko (The Institute for End User Computing, Inc., USA)
DOI: 10.4018/978-1-4666-4526-4.ch004
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Abstract

This chapter focuses on the relationship between law and information systems administration. It highlights how technological choices can facilitate regulatory compliance, reduce legal costs, and allow agile responses to emerging risks. The reader should not regard this chapter as a comprehensive introduction to all of the world’s criminal and civil IT related statutes, regulations, and case law. It should be used as a basis for discussions with local counsel.
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Background On The Nature Of Law

Law is the medium through which political decisions are promulgated and implemented and through which private obligations are established and enforced. It can take the form of explicit statutes, regulations, and contracts or it can arise implicitly from the Common Law tradition of past judicial and regulatory enforcement opinions in law and equity. It can be substantively related to issues at hand or procedurally based in the rules of the legal system. This procedural dimension governs:

  • Standing: Who has the right to litigate.

  • Venue: Which tribunal will decide a matter.

  • Choice of Laws: Which jurisdiction’s law will be used.

  • Motion Practice: What requests to make by what deadlines at various stages in a dispute.

  • Rules of Evidence: What proof can be offered.

  • Published Tribunal Specific Practice Rules: How parties must conduct themselves.

  • Unpublished Tribunal Specific Practice Norms: Informal rules and patterns of behavior.

Cases often encompass several areas of substantive law raising numerous procedural issues. We speak of tribunal rather than court and adjudicator rather than judge, as many matters are resolved through administrative proceedings under executive branch agencies and commissions, negotiation and settlement, and Alternative Dispute Resolution (ADR) mechanisms like mediation & arbitration outside of the court system.

Formal litigation need not resolve all of the issues “at bar” in a given case if its outcome can be determined without addressing them. If multiple judges hear a case, each is free to issue his or her own opinion—either concurring with the majority on its result under a different interpretation of law, or dissenting to argue against the majority position in the hope that it might be judicially or legislatively overturned. This can occur on an issue-by-issue basis, thus reducing or increasing the precedential value of the majority decision on each point. Portions of opinions going beyond purely legal arguments to stake out Public Policy positions or to suggest how cases ought to be argued before and decided by future courts are called dicta.

While published laws, rules, and options are in-principle intended to offer guidance to ordinary lay people, their use of language assumes readers are familiar with the legal interpretations of terms of art and with legal principles expressed by allusion to famous cases. Thus, the correct interpretation of legal language depends on mastery of its historical context, coupled with the skill set to track down unfamiliar references and to read between the lines (This last facet comes into play in recognizing those hopefully rare instances influenced by extra-legal considerations in which a judicial or regulatory opinion does not reflect the actual decision-making process through which it was reached).

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