THE INTERNET, AND THE REAL ESTATE LAW PRACTICE A Basic Overview

Transcription

1 THE INTERNET, AND THE REAL ESTATE LAW PRACTICE A Basic Overview by Gurdon H. Buck gbuck@rc.com THE INTERNET The Internet is a global network of computer networks. It links individual subscribers and organizations such as universities, private companies, government agencies and separate service providers with their own networks to cross the world telephone access. It can be used to send electronic mail, download computer files, send and receive interactive documents containing extensive graphics (via the World Wide Web) engage in voice and video conferencing, control remote computers, search the computer files of major organizations, universities and government agencies and undertake research. New technology will allow you to draw down mini-programs (applets) to run dynamic messages, movement, and interactive activities at your site (java), act as a cheap telephone, or receive videos on line and play them as they are received. According to an October 19, 1995 Nielsen survey, more than 24 million North Americans have internet access. This is no more than a guess. Because some of the registered users of the Internet are actual networks in their own right (for instance America On-Line with over 3 million subscribers is listed as a single user) guesses have ranged from 20 to 60 million people. Messages on the internet are broken down and passed in small fragments, each of which has a address of an ultimate recipient over an almost infinite number of lines and routes until these bits and pieces are reassembled at an internet gateway for the recipient. Because the Internet designed so that no one line or highway can block a message, the message being forwarded through an alternate route as soon as a blockage occurs, it us virtually without control. The most popular use of the Internet is . Under text messages or files can be sent to other Internet users anywhere in the world in minutes. started as an in-firm communications system between computers and terminals in a single company. Such programs are either in the form of Local Area Networks ("LAN") or Wide Area Networks ("WAN") wherein the members of the network can communicate with each HART

2 other on the network. Whether it is local or wide area, that is whether the network is within a given location or between several locations, the protocols for s have been relatively well established. The only step necessary to connect an program to the Internet is to provide for a connection through a telephone line and a program which includes a "Simple Mail Transfer Protocol" ("SMTP"), the File Transfer Protocol ("FTP") and a protocol for logging into other computers ("Telenet"). With this rather simple program and a modem, you can log onto the Internet, send s using an address that is understood by the Internet called a "URL" or Uniform Resource Locator. Almost every file on every database, and every resource on the net can be identified by a "URL" address. Many private, singly-owned LANs or WANs found that connection to the Internet involved merely connecting through an SMTP program and a gateway with little extra software, with Internet messages simply appearing on the old familiar company . This was our experience. Every software program offers the ability to reply to a message. Thus, by merely entering the reply symbol or word on the computer screen, the message will automatically be readdressed and sent to the sender. Some programs will automatically include the text to the previous message or messages in the reply message. You can set up a manually created mailing list and thus by giving it a single word address on your program, send messages to multiple recipients. Many programs allow you to attach files such as word processing documents, programs, spreadsheets to an message. A recipient, however, must have the appropriate software to decode the file. There are thousands of discussion groups on the Internet called mailing lists or listserves. Mail is sent to the single source and automatically or after being filtered by a moderator, distributed to the group that has subscribed to the service. FILE TRANSFER PROTOCOLS If you have simple software, you usually can use the file transfer protocol ("FTP"). This is a tool for transferring files and in particular software programs across the Internet. An FTP program lets you choose a computer to connect and allows you to transfer files from that computer's directory to your own. Some of these sources will require that you supply a user name and a password, others will have the password "anonymous" and allow anyone to have access to the programs or the files. NEWS GROUPS - 2 -

3 News groups are discussion areas of the Internet. Each group covers a different topic and there are well over 13,000 use groups and they are growing. News groups are accessed over news group software that is included in most access software programs. In a news group, the participants answer a particular news topic indicated by a subject title. As answers and replies are added, the topic, called a thread, can be individually accessed and uninteresting threads disregarded. A news group is usually more disciplined than a list server. WORLD WIDE WEB The World Wide Web is a special group of addresses on the Internet. At this time only about 20 to 25% of the users of the Internet run through the World Wide Web system. This is merely a connection of special software on each of the user's programs called a "browser" which has the capacity to view and send text, pictures and video and audio files. The browsers on the Web work through a special software program called the Hypertext Transfer Protocol ("HTTP") which allows the users to link documents on one computer with a file on another computer. Thus, an address that begins with the words "HTTP" will be an address to a browser with the capacity to use the powerful graphic and "hypertext links" of the World Wide Web software. Thus, the World Wide Web is not a place or a system of communications lines, that is the Internet. It is merely a series of millions of computers each of which has the software that can read and send the text, graphics and video and audio files in the language of the World Wide Web over the Internet. INTERNET ADDRESSES The format for a Uniform Resource Locater or Internet address is composed of two parts separated by a symbol for at "@" and the format is: service:username:password:@hostname\directory path\filename. The first part of the URL is the name of the Internet service. Pure service is SMTP. The second which is optional is the user name and password. The third part is the address of the host computer. Everything after that is the path of the specific item. For instance, a simple address using Simple Mail Transfer Protocol ("SMTP") need not even start off with the words SMTP it could be simply "gbuck@rc.com. gbuck is the "username", the "rc" is the hostname which is the domain name for Robinson & Cole and the ".com" is the fact that this is a commercial service. The first part of the host name portion of the address of a user on the Internet includes something called a domain name. The domain name is the individual organization's address. The domains are beginning to be treated like trademarks where registered with a private entity known as the Internet Information Center or InterNIC. The registration includes the domain name and then a translation of the complicated address numbers that are used by the Internet to direct its messages. A domain name typically consists of two or more parts. The first identifies the host computer. The last, or extension, identifies how the organization operates. In those domains outside of the United States there is a country code which is a two letter code - 3 -

4 designating the country where the address is located. For instance, the following domain extensions have been adopted in the United States: 1. com - commercial organizations; 2. edu - educational organizations; 3. gov - government agencies; 4. org - non-profit organizations; 5. mil - military agencies; 6. net - networks; 7. two letters for country codes, for instance a Canadian firm might have the address with the last two letters of.ca. com. Each of these extensions are preceded by a period, for instance ".com" pronounced dot Registering with InterNIC costs $50 per year to register. You apply through your Internet service provider who establishes the Internet service code which is related to the domain name. There is beginning to be a certain cachet to having a short domain name meaning that it has been registered early. Many companies have registered thousands of domain names in order to protect the potential use of them as trademarks. For instance, I understand that a leading cosmetics company has registered the domain name "underarm". Earlier registrants got better domain names. For instance the domain name aba.org is not the American Bar Association it is the American Birding Association. Since the American Bar Association got in so late, it had to use the words "abanet" as its domain, the "abanet.com." CONNECTING TO THE INTERNET Connection to the Internet are offered by Internet service providers ("ISPs"). There are a number of connections features support and levels of cost. Each service provider has a service computer and a powerful telephone line connection to another server. All the servers connect up into the Internet. Internet connections are available in a number of forms. The simplest is a shell account which is a connection to a host computer and uses the host's software. All that is needed is a modem and simple software. It can be used also for FTP and browsing the World Wide Web without graphics. On line services like America On Line and Prodigy offer shell accounts that allow extensive use of graphics. However, with these accounts, the user is limited to the software of the Internet service provider. The on-line systems, America OnLine, Compuserve, Prodigy or Delphi offer a lot of toys and services, but are terribly expensive in spite of their free sign-up offers. A much less expensive program, acceptable for casual use is the Serial Line Internet Protocol ("SLIP") or Point to Point Protocol ("PPP"). These are network connections to your own Internet service provider. Instead of relying on the host computer to support the commands, - 4 -

5 the only limitation is your own computer's installed software. If you purchase a browser such as Netscape, your computer uses that browser to handle functions such as , news groups, FTPs and World Wide Web. Local ISPs and universities will provide the service gateways for a very low cost as little as $15 to $20 per month with unlimited use. The ISPs will usually give you a disk with the program to tie into their particular service. The disk is loaded, questions answered on the screen, and you are loaded. Find an ISP with a local telephone number. A general rule for connection speed for a modem is to get as fast a one as possible kilobyte per second modem costs less than $200. That is the fastest that an ordinary telephone line can carry. If you obtain a special telephone line called an ISDN which can be installed by your phone company at a cost similar to a regular line, you can generate 64 kilobytes per second. Faster connections are available with other types of lines, for instance a T1 line can generate 1.5 million bytes per second, but you need specialized equipment and servers. Internet service providers will sometimes offer training, some will offer you your own domain name as a package and register it for you with InterNIC. Some of them will allow you to create your own home page on the Web and store it at their site. There are hundreds of Internet service providers. The best source for them is a source on the Internet called "The List". Cost range from $10 a month for a shell account, the standard seems to be about $20 per month, many with unlimited hours. Direct Internet connections such as a T1 line can cost $500 per month. The Internet will give you access to legal libraries, statutory materials including virtually all of the U.S. Code and Code of Federal Regulations, UCC database of filings, all the federal courts and case law and most of the state courts. The state courts and state statutes are being added as we speak. Last week twenty-three states had their own Web pages. Using an Internet search service, which is free, such as Yahoo, Web Crawler and Alta Vista and using relatively simple searching words, you can find Internet sites on almost any subject that you are interested. LAWYERS ON THE INTERNET Lawyers have leaped onto the Internet bandwagon. In January, 91 of the 100 principal law firms in the United States are now listed as on the Internet. Seventy of them have home pages. A home Web page will purport to indicate that the firm is up on technology and uses the latest. However, in the March addition of the American Lawyer, it was pointed out that in a informal survey of 76 lawyers who had a address, only about half of them responded within a day and about 60% replied within a week. Thus, it was quite clear that those people with addresses in many firms were unused and essentially faking. When American Lawyer made telephone calls to check, they found that many who had addresses did not even have a computer on their desk. Some of them had going to their secretary who then - 5 -

6 downloaded and laid it on the lawyer's desk who dictated a response if they were interested in responding and the secretary loaded it up on the net. The word is that if you have , answer it. Confidentiality of has been misdescribed by many people. Some authorities have said it has no more confidentiality then the broadcast cellular phone message, others, more correctly, have indicated that it has a higher level of confidentiality than a telephone message, but somewhat less confidentiality than a printed, hand-delivered message. William Freivogel of ALAS has provided an article in the materials for his program on liability and electronic communications correctly indicating that the Internet is highly secure. Most writers of article mix up confidentiality with privilege. Because there only need be a reasonable expectation of confidentiality to be privileged under the Codes of Ethics, communications over the net would be deemed privileged under the general principals of the various case laws. However, it must be pointed out that anyone can tap a phone, intercept mail, eavesdrop on lawyer/client conversations with a sensitive microphone, or tap into a fax or telex. However, in any of these methods of communication, there was an expectation of confidentiality by the parties and therefore the communication would be privileged. Some critics have pointed out that cellular and cordless telephones are in fact broadcast and there is not a reasonable expectation of confidentiality. Some ethics opinions have pointed out that thus the privilege is lost. Therefore, the issue of whether privilege will be lost for Internet communication is still yet to be determined, but under the analogous rules applicable to telephones, faxes and telexes and mail should be sustained as long as there was no intentional or unintentional mailing to unprivileged persons. There are available very powerful, private encryption systems whereby as long as the sender and receiver have the encryption keys, it is virtually impossible to break the code. (A software called Pretty Good Privacy ("PGP") is a excellent system that is so secure that the inventor has been cited by the U.S. Government for committing a crime by allowing a national security asset to be broadcast beyond the United States boundaries. The system was totally invented by the private individual.) AND OUR PRACTICE Our firm became active in and received an early domain name without significant thought merely because a client insisted on it. Immediately when a very significant client told us that if they wanted to stay our client we better be on Internet , we were. The daily use of LAN has become virtually universal. I believe there are only two - 6 -

7 lawyers in the firm who have their secretaries download the messages. One of them recently retired. Daily bulletins, inquiries on pending litigation, news notes on items for sale, inquiries on memoranda between lawyers are now being transmitted on the system and stored without ever being printed within files set up in the software. Since our LAN is the recipient of Internet messages which are identical to the internal messages, and the reply system is the same, even the technodinosaurs will receive and reply to Internet messages, although firm business is virtually universally transacted on . With very few exceptions, including confidential firm business, there is virtually no paper used in internal memos. Many lawyers subscribe to news groups and listserves of interest and several are very actively participating. ABA business is now heavily conducted on the Internet. Now hundreds of clients are accessed or are accessing us regularly by links through the Internet directly to their computer. Information on hearings, cases and transactions are transmitted through the Internet to the client on the same day, even the same hour as they occur. I am reviewing an Internet file in a recent transaction involving the purchase and financing of a major shopping center. This file could be defined as a mixed paper and electronic mail file. The basic documentation was drafted and closed in San Francisco with our firm acting as local counsel for the purchaser and providing title and land use reviews and counsel. Twentytwo messages went back and forth to San Francisco and some days as many as half a dozen messages were sent covering memorandums on tax, zoning, recordation, survey issues together with suggested changes and language to add to the various documents to conform to local protocol. The actual closing was executed and completed in the last seven months. Had the ordinary mail system been used it would have taken weeks and possibly months more. Even in this transaction many documents were sent by fax or overnight mail, however in a pure transaction the only documentation that would have had to had been sent by overnight would have been the original documents for recording purposes and in a few years even that will probably be a historical curiosity

8 WORDPERFECT DOCUMENT SEPARATOR SHEET Date: December 21, :18PM Library: HART2 Document Name: INTERNET USERS Document Number: Client Matter Number: Author: BUCK Typist: KDG/DL