What's Law Got To Do With It: February 2000 Feature


By now, you have probably seen uncountable headlines and articles describing the brave new world of the Internet and how it will revolutionize financial services and everything else. Your initial reaction may well be "But how is it going to make my life easier as a financial services lawyer?" This article will attempt to provide some helpful tips to answer that question.

Before launching into a discussion of the specific Web sites that should be on your Web travel plans, allow me to offer a few general observations:

  • The financial services industry, and in particular the financial services regulatory agencies, are leaders in making materials available on the Web. The Federal Reserve Board, OCC, FDIC and OTS were on the Web with well-organized sites well before anyone used the term "e-commerce." The depth of materials they make available, and the speed with which they make them available, put to shame almost all other government agencies and all but the most Net-conscious technology companies. As a result, financial services lawyers and policymakers now have ready access to materials that previously could only be obtained through specialized services days or weeks after the fact.
  • The Web is an unparalleled source of information, but the Internet is much more than just the Web. The Internet should be viewed as primarily a communications medium, and those of us who use it primarily for information-gathering are missing the boat (or at least the rudder). One of the best ways of communicating on topics of interest is by joining a mailing list. Lyonette Louis-Jacques of the University of Chicago Law School has compiled a comprehensive guide to law-related lists, available online.
  • The Web is a constantly-changing environment, and even the best survey of useful Web sites will only skim the surface of what is or shortly will be available. I have undoubtedly missed many valuable financial services resources. New search tools and Web sites are constantly being created, so among the most important sites are those that keep track of changes in the field of Web searching in general and legal research in particular. My favorites: the Law Library Resource Exchange and the Research Buzz.
  • Everybody has different information needs and patterns of information-gathering, and the only way to find what works best for you is to spend some time on the Web looking around. To paraphrase that great hardware end-user Yogi Berra, you can observe a lot just by surfing.
  • The hyperlink, connecting one Web site to another, is now taken for granted but remains in my mind the essence of the Web. In particular, in the financial services arena, links between information sources provide a vivid demonstration of the much-fabled convergence of financial services and technology. Banks, finance companies, broker-dealers, investment banks and insurance companies and their regulators and industry commentators are only a click away from each other. Having dispensed with these preliminaries, allow me to proceed to discuss some of the "best of the best" financial services Web sites. You'll want to visit almost all of these if you haven't already.

BANKING AND ELECTRONIC COMMERCE LAW
The birth of Internet commerce has coincided with a period of intense activity in development of commercial law. The National Conference of Commissioners on Uniform State Law (NCCUSL) and the American Law Institute are comprehensively rewriting the two most important portions of the Uniform Commercial Code (at least for companies that are not payments providers), Article 2 on Sales of Goods and Article 9 on Secured Transactions. At the same time, a controversial proposal to codify commercial law for software and electronic information transactions has been developed as the Uniform Computer Information Transactions Act (UCITA) (the statute formerly known as UCC 2B). The Uniform Money Services Business Act, initiated in large part to address money laundering issues, may end up governing the regulation of stored value cards and other new forms of electronic payment. Each new draft version of these texts is posted online by NCCUSL as soon as they become available, through the good offices of the University of Pennsylvania Law School.

Trying to keep track of legal developments in the midst of these and other changes can be a full-time job, but fortunately there are a few Web resources that make the task manageable. I will start with a shameless plug for the Web site of the American Bar Association Business Law Section Joint Subcommittee on Electronic Financial Services, which I supervise. In the "What's New" section, we attempt to keep tabs on national and (to a limited extent) international developments in electronic financial services law, policy and standards. You can also sign-up for monthly e-mail alerts of new developments.

Three equally valuable resources are the Tech Law Journal, LawBytes.com and UCITA Guide. These Web sites have been created by lone individuals, without the resources of a law firm behind them, in an impressive illustration of the potential of Web publishing. Carol Kunze's UCITA Guide is the definitive source for coverage of the proposed UCITA as it wends its way through the uniform law-making process. David Carney's Tech Law Journal provides coverage, updated almost daily, of developments in technology policy, including antitrust, Federal Trade Commission and Federal Communications Commission issues. Professor Michael Geist of the University of Ottawa Law School has developed comprehensive resources on e-commerce law, with a particular focus on Canadian law. He prepares the best daily Internet law news service, and subscription instructions are available on his site.

A number of law firms, schools and others have collected useful links on Internet law topics, but for organizing a comprehensive compendium of Internet law jurisprudence, the John Marshall Law School in Chicago stands out. The BNA Electronic Commerce Law Report also offers an online library of cases which, while not as comprehensive, publishes the full text of decisions.

For publication of new appellate decisions, and links to courts, law firms, forms and other useful resources, the best single site is FindLaw, especially because it's all free. This entire article could be devoted to an exploration of the resources at FindLaw and the other sites listed above, but that would be too much of a good thing. So let's move on to:

CONVERGENCE OF BANKING AND TECHNOLOGY
The Internet is the natural place to seek information on the intersection of banking and technology; after all, for the most part the Internet is where the new business models are targeted. The leading sites can be broken down into three categories: existing payments networks moving into the era of electronic commerce, new for-profit and non-profit bank consortia developing online business models, and banking standards-setting organizations.

In the first category, an important resource is the Federal Reserve System's financial services Web site. The Federal Reserve has been providing financial services electronically since its founding in 1913, and it continues to take a leadership role in this area. Through its ACH services, it has encouraged the banking industry to provide electronic data interchange services, and in 1998 it concluded a study of the Fed's future role in the payments system.

NACHA is also taking the lead in moving the Automated Clearing House system onto the Internet. It has formed an Internet council whose current projects include enabling ATM transactions over the Internet and allowing consumers to use the Internet to "push" value from their bank account to a payee.

The newer organizations include the Banking Industry Technology Secretariat (BITS) (sponsored by the Financial Services Roundtable), the Financial Services Technology Consortium (FSTC) and the Electronic Payments Forum (EPF). BITS and the FSTC represent efforts by banks to retain their leading role in the payments system and to work with rather than against potential technology company competition. BITS, working with the NACHA Council for Electronic Billing and Payment, has taken a lead role in developing the new Interactive Financial Exchange (IFX) standard for electronic bill presentment and payment.

A brand new effort bringing together Visa, MasterCard, AOL, Microsoft, Brodia and other industry leaders is the Electronic Commerce Modeling Language. This group seeks to develop a standard for the interaction of so-called "electronic wallets" and merchant Web sites, so that consumers will only have to enter their payment and shipping information once and can then use the same information on any enabled shopping site. The software developed by the group will be freely available to all, and will be submitted to the Internet Engineering Task Force for consideration as a standard.

The existing financial services technology standards-setting bodies will play an increasingly important role as more banking services move on to the Internet. Although much of their work is available only for a fee, and in any case is beyond the understanding of most lawyers (or at least this lawyer), a visit to the American National Standards Institute Accredited Standards Committee X9 and International Organization for Standardization (ISO) financial services and securities standards Web sites is useful in providing an understanding of the nature of the standard-setting work and its potential interaction with law and policy issues. ISO Joint Technical Committee 1, for example, in its Subcommittee 27 on Security Techniques, has developed technical standards for non-repudiation. This is a concept with significant legal overlay, particularly in the consumer protection arena. Financial services lawyers will continue to need to learn more about the work of technologists, and technologists will need to understand some legal fundamentals as they develop the new ways we will be doing business.

REGULATORY AGENCIES

The financial services regulatory agency Web sites provide an incredible wealth of statistics, laws and regulations, and policymaker speeches and testimony, and the agencies are continually striving to improve the quality and usability of their sites. Both the Federal Reserve Board and the Office of the Comptroller of the Currency (OCC) have recently completed thorough redesigns of their site. In fact, the amount of material available can be daunting. A good way to get a sense of the resources available at these sites (and most of the sites listed in this article) is through the site map or site index page. The agency "What's New" pages, which feature the most recent material added to their site, are also invaluable for regular visitors.

A few other pages of particular interest to lawyers within the regulatory agency sites:

Finally, for same-day access to the official text of new and proposed banking agency regulations, and for releases from other agencies, you can visit the Government Printing Office's Federal Register site where you can look for the entire Federal Register for a particular day in 2000. You can also search for a specific release published in the Federal Register anytime between 1995 and the present.

NET CULTURE
Although the Internet is becoming more and more influenced by mainstream culture as the number of U.S. households with Internet access reaches the 50% threshold, many of the most interesting Internet sites capture an elusive and hard-to-define feel that "something different and exciting is going on here." For those who are interested in a rapid immersion in Net culture, perhaps the best site to visit is Slashdot.org, a favorite discussion area for software developers and other techies, particularly those associated with the Open Source "movement." Open Source is a new model of software development, under which the source code for software products is made available to the user and developer community for product improvement and enhanced interoperability. A good primer on the movement is available online from O'Reilly Publishing.

A few other sites that capture the work of some of the thought leaders in the Internet culture:

  • Nua, a consultancy based in Ireland that provides excellent free commentary and a wealth of statistics on Internet usage and the Internet economy, with international coverage particularly useful for the U.S.-centric.
  • John Young's Cryptome, an archive for information security and national security developments.
  • Keith Dawson's Tasty Bits from the Technology Future, with regular commentary and links to items of note.
  • Robert Metcalfe, the principal inventor of the Ethernet networking protocol, has moved on to a second career commenting and organizing conferences on the world of technology. His weekly column for InfoWorld is available online.
  • The Risks Digest, focusing on network security issues and exposing the sometimes-lax standards of leading technology companies;
  • NewsScan, a daily news service with perspective going beyond the headlines; and
  • Phil Agre's Red Rock Eater, informed and passionate commentary on Net matters.

Finally, when you spend time online it quickly becomes obvious that one of the highest and best uses of the Web is to find something to laugh about (and then e-mail it to all your friends). My own favorites are Dave Barry, and News of the Weird. ENJOY!

These materials have been prepared by Brobeck, Phleger & Harrison LLP for information purposes only and are not legal advice. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship between the sender and receiver. Internet subscribers and online readers should not act upon this information without seeking professional counsel.