Comparing Internet Censorship Between Singapore and the US (1999) Malakoff

Page 1

43 of 68 DOCUMENTS Copyright (c) 2007 Ohio Northern University Law Review Ohio Northern University Law Review 2007 33 Ohio N.U.L. Rev. 525 LENGTH: 19173 words ARTICLE: Singapore Computer Law: An International Trend-Setter With a Moderate Degree of Technological Neutrality

NAME: By Stephen E. Blythe* BIO: * Professor of Law & Accounting, New York Institute of Technology, CERT Technology Park, Abu Dhabi, United Arab Emirates. Ph.D. Candidate (Law), The University of Hong Kong; Ph.D. (Business Administration), University of Arkansas, 1979; J.D. cum laude, Texas Southern University, 1986; LL.M. (Int'l Bus. Law) University of Houston, 1992; LL.M. (Info. Tech. Law) with distinction, University of Strathclyde (Scotland), 2005. Attorney at Law, Texas and Oklahoma; C.P.A., Texas. He practiced solo (employment-discrimination litigation) in Houston, Texas, was affiliated with the Cheek Law Firm (insurance-defense litigation) in Oklahoma City, and was a management consultant for the city government of Haikou, China. Additionally, he has taught law, accounting, management, economics and international business at thirteen universities located in the United States, Africa and the Middle East.

SUMMARY: ... I. Singapore: The New High-Tech Hub of Southeast Asia ... An electronic record will be assumed to have been sent when it enters a computer information system outside the control of the sender, or one outside the control of the sender's agent. ... (d)the sender and receiver agreed to employ a digital signature in order to further security, and the digital signature was confirmed using the public key contained in the certificate. ... Unless contractual or legal rules provide otherwise, a third party who relies upon a digital signature to confirm the validity of an E-record assumes the risk that the digital signature is invalid, if the reliance is unreasonable due to the following factors: (1) the facts known to the relying third party, including the facts in the Certificate; (2) the degree of importance of the E-record, if known; (3) prior dealings of the relying third party with the subscriber; and (4) the degree of trustworthiness of the computer information system utilized. ... TEXT: [*525] I. Singapore: The New High-Tech Hub of Southeast Asia

Page 2 33 Ohio N.U.L. Rev. 525, *525

The British established a trading colony in Singapore in 1819. In 1963, Singapore became part of Malaysia before gaining independence in 1965. During the past forty years, Singapore has become a wealthy country with strong international trading connections and one of the world's busiest ports. A strong indicator of Singapore's economic progress is the Gross Domestic Product (GDP), which is equivalent to nations located in Western Europe. n1 And this historical trend extends into our current era: between 2004-2006, Singapore's economy continued to expand at a rate of 7%. n2 The government of Singapore has embarked upon a goal of the nation becoming Southeast Asia's "high-tech hub." n3 As part of this endeavor, Singapore has emerged as "part of an e-commerce hub for Asia." n4 Consequently, Ecommerce activity in Singapore doubled between 2002 and 2005. n5 To facilitate the high-tech and E-commerce goals of Singapore, their lawmakers have enacted some of the most modern, innovative, and trend-setting computer laws in the world. Two examples are the E-commerce law and Singapore's computer crimes law, which are analyzed below. [*526] II. Electronic Signature Laws A. The First Wave: Technological Exclusivity An electronic signature may be defined as "any letters, characters, or symbols manifested by electronic or similar means and executed or adopted by a party with the intent to authenticate a writing." n6 There are many forms of electronic signatures, for instance "a name typed at the end of an e-mail message, a digitized fingerprint, a digitized image of a handwritten signature that is attached to an electronic message, a retinal scan, a pin number, or a digital signature." n7 One type of electronic signature-perhaps the most sophisticated-is the digital signature. n8 In 1995, Utah became the first jurisdiction in the world to enact an electronic signature law. n9 In the Utah statute, digital signatures were given legal recognition, though other types of electronic signatures were not. n10 The authors of the Utah statute believed, with some justification, that digital signatures provide the greatest degree of security for electronic transactions. Utah was not alone with this conclusion; other jurisdictions granted exclusive recognition to the digital signature include India, n11 Germany, Italy, Malaysia and Russia. n12 [*527] Unfortunately, these jurisdictions' choice of "technological-exclusivity" is burdensome and overly-restrictive. Forcing users to employ digital signatures gives them more security, but this benefit may be outweighed by the digital signature's disadvantages: higher expenses and complications, while offering less convenience and adaptability to technologies used in other nations, or even by other persons within the same country. n13 B. The Second Wave: Technological Neutrality Jurisdictions in the Second Wave overcompensated. Their laws reacted in complete reverse to the First Wave and did not include any technological restrictions whatsoever in their statutes. They did not insist upon the utilization of digital signatures, or any other form of technology, to the exclusion of other types of electronic signatures. These nations have been called "permissive" because they have a completely open-minded, liberal perspective on electronic signatures and do not contend that any one of them is necessarily better than the others. In other words, they are "technologically neutral." Permissive jurisdictions provide legal recognition of many types of electronic signatures and do not grant a monopoly to any one of them. Examples of permissive jurisdictions include the United States, the United

Page 3 33 Ohio N.U.L. Rev. 525, *527

Kingdom, Australia and New Zealand. n14 The disadvantage of the permissive approach is that it does not take into account the fact that some types of electronic signatures are better than others. A PIN number and a person's name typed at the end of an E-mail message are both forms of electronic signatures, but neither is able to even approach the degree of security that is provided by the digital signature. C. The Third Wave: Singapore's Moderate Degree of Technological Neutrality Singapore became a trend-setter in drafting its electronic signature law. It adopted a middle-of-the-road compromise with respect to the various types of electronic signatures. Singapore's lawmakers were influenced by the [*528] UNCITRAL Model Law on Electronic Commerce. n15 In terms of relative degree of technological neutrality, Singapore adopted a "hybrid" model-a preference for the digital signature in terms of greater legal presumption of reliability and security, but not to the exclusion of other forms of electronic signatures. Singapore did not want to become "hamstrung" by tying itself to only one form of technology. The legislators realized that technology is continually evolving and that it would be unwise to require one form of technology to the exclusion of others. Thus the digital signature is given more respect under the Singapore statute, but it is not a monopoly, such as is the case in Utah. Singapore allows other types of electronic signatures to be employed. This technological open-mindedness is commensurate with a global perspective and allows parties in Singapore to easily consummate electronic transactions with parties from other nations. Yet simultaneously, the Singapore statute implicitly makes a strong suggestion to usersin two ways-that they should use the digital signature because it is more reliable and more secure than the other types of electronic signatures: (1) digital signatures are given more respect under rules of evidence in a court of law than other forms of electronic signatures, and electronic documents signed with a digital signature carry a legal presumption of reliability and security-these presumptions are not given to other forms of electronic signatures; and (2) although all forms of electronic signatures are allowed to be used in Singapore, its electronic signature law established comprehensive rules for the licensing and regulation of Certification Authorities, who bear the critical role of verifying the of authenticity and integrity of electronic messages affixed to electronic signatures. Since 1998, a number of other countries have joined the Third Wave by emulating the hybrid perspective of Singapore. This moderate position has now become the progressive trend in international electronic signature law. The hybrid approach is the one also taken by the European Union's E-Signatures Directive, n16 Japan, n17 Vanuatu, n18 [*529] Taiwan, n19 Lithuania, n20 Iran, n21 South Korea, n22 Barbados, n23 Hong Kong, n24 Bermuda, n25 Pakistan, n26 Azerbaijan, n27 Tunisia n28 and most recently, China. n29 III. Digital Signatures: Cryptology, PKI, and Certification Authorities If the parties to an electronic transaction employ a digital signature, that decision will have these effects: (1) adoption of asymmetric cryptology; n30 (2) utilization of public key infrastructure ("PKI"); and (3) interaction with a Certification Authority. n31 [*530] A. Asymmetric Cryptology and PKI

Page 4 33 Ohio N.U.L. Rev. 525, *530

In order for a digital signature to attain the same legal status as an ink-on- paper signature, asymmetric key cryptology must have been employed in its production. n32 Such a system employs double keys. n33 The private key is used by the sender to encrypt the message by converting it into a hash function. n34 The public key-a different, albeit mathematically-related, key- corresponds n35 to the private key and is used by the recipient to decrypt the message. n36 The sender has a private key, n37 known only to her, n38 used to generate the digital signature, and the recipient uses the public key, n39 often available online, to verify that the proper party created the message and that it has not been altered during transmission. n40 This is a very good system for electronic commerce ("E- commerce"), since two strangers, perhaps living far apart, can confirm each other's identity and thereby reduce the likelihood of fraud in the transaction. B. Certification Authorities In order to use this cryptology for electronic "signing," a person must first apply for issuance of a pair of keys-a private key and a related public [*531] key. n41 A prospective subscriber of a Certification Authority ("CA") n42 requests the CA to confirm her identity. After verification of the applicant's identity, payment of fees and compliance with other requirements, the new subscriber n43 will be issued the private key which corresponds to the public key contained in the Certificate. The Certificate confirms the identity of the subscriber to the world and will be placed in a public repository, n44 most often the CA's website. n45 Whenever the subscriber digitally signs a message, n46 the CA verifies n47 the signature of the sender and informs the recipient of the encrypted message which "public key" is necessary to decode the message. n48 At that point, the recipient is able to access the public key which is used to decrypt the sender's message. n49 [*532] IV. Singapore's Electronic Transactions Act The Electronic Transactions Act ( "ETA") n50 is a comprehensive E- commerce law created by Act No. 25 of July 10, 1998. n51 In 1999, some minor revisions were made to it. n52 In 2004, some important amendments were made to the Act with the passing of Act No. 54. n53 The Minister is empowered to implement the ETA and is authorized to promulgate specific regulations designed to achieve its execution. n54 The Minister also has the discretion to exempt "any person or class or persons" from the ETA. n55 A. Purposes of the ETA The overarching reason for enactment of the ETA was to improve the security of electronic transactions and in so doing, increase the confidence of the citizens of Singapore in electronic transactions, resulting in greater participation in E- commerce. n56 More specific reasons for creation of the ETA include: (1) to increase the popularity of electronic communication by making it more reliable; (2) to increase the growth of E-commerce by improving its security and by specifying requirements of E-documents and E-signatures; (3) to foster E-government by promoting the filing of E-documents with government agencies and by encouraging government to become more efficient through use of E-documents instead of paper documents; (4) to reduce the amount of fraud, forgery and alteration of records (intentional or unintentional) in E-commerce; (5) to maximize the degree of authenticity and integrity of E-documents by establishment of uniform standards; and (6) to achieve heightened public confidence in E-commerce and E-documents through use of E-signatures which are designed to yield greater authenticity and integrity in electronic communication. n57

Page 5 33 Ohio N.U.L. Rev. 525, *532

B. Documents Not Covered by the ETA n58 The ETA is not applicable to any law which mandates paper documents or ink signatures in reference to the following documents: (1) wills; (2) [*533] negotiable instruments; n59 (3) indentures, trusts n60 and powers of attorney; (4) any contract for the sale of real property; (5) documents conveying real property or the transfer of an interest in real property; and (6) documents of title. n61 C. The Parties Have Discretion To Vary Parts II and IV of the ETA If two or more parties are engaged in the creation, transmission, reception, or retention of electronic records, or another process pertaining to electronic records, they have discretion to make an agreement which will vary any section of Parts II (Electronic Records and Signatures n62 ) or IV (Electronic Contracts n63 ) of the ETA. n64 D. Legal Recognition of Electronic Records Information stored in an electronic format will not be denied enforceability, validity or recognition merely because of its format. n65 1) Satisfaction of Writing Requirement If a statute specifies that information must be in writing, must be presented in writing and enumerates consequences if it is not, then a record stored in electronic format satisfies that requirement if the information contained in it can be easily retrieved for use at a later time. n66 2) Satisfaction of Retention Requirement If a statute mandates that certain documents or information is to be retained, storage of the documents or information as an electronic record satisfies the retention requirement if: (1) the information stored in said electronic record is accessible for use at a later time; (2) the electronic record is in the identical format it was in when it was created, transmitted or received, or the format correctly expresses the information at the time of its [*534] creation, transmission or reception; (3) the information in the electronic record facilitates the determination of the points of origin and reception of the record, and the date and hour it was transmitted and received; n67 and (4) the consent of the governmental department having authority over the said retention requirement has been obtained. n68 So long as the four requirements are complied it, it is acceptable for an agent to be used in the meeting of a retention requirement. n69 Additionally, ETA § 9(1) is not applicable to a situation in which a statute has already granted permission for documents, records or information to be stored in electronic form. n70 Furthermore, any department of the government is authorized to establish additional requirements pertinent to the retention of electronic records. n71 E. Legal Recognition of Electronic Signatures 1) Satisfaction of a Signing Requirement

Page 6 33 Ohio N.U.L. Rev. 525, *534

If a statute mandates that an ink signature be affixed to a document, or for specific consequences if there is no ink signature affixed to a document, then this requirement is met if it is proven n72 that an electronic signature has been affixed to an electronic document. n73 F. Liability of Network Service Providers 1) General Rule: No Liability Network Service Providers ("NSP") are not civilly or criminally liable for merely providing access n74 to a third-party's n75 electronic records when said liability is based upon: (1) the creation or dissemination of the records or any [*535] statements contained in those records; or (2) copyright infringement in reference to the records. n76 2) Exceptions to the General Rule The General Rule may not apply, and there may be NSP liability, in the following situations: (1) when the alleged liability is grounded in a contractual obligation of the NSP; (2) if the obligation is grounded under a regulation or a licensing rule pursuant to any written law; (3) if any written law or court order allows the removal, blockage or denial of access to the records; or (4) if the NSP is liable pursuant to the Copyright Act n77 regarding copyright infringement, or the "unauthorized use of any performance" n78 in which the protection period n79 remains in effect. n80 G. Electronic Contracts 1) Legal Recognition of E-Contracts An offer and an acceptance between negotiating parties may be effected in the form of an electronic record. n81 In a situation where an offer or an acceptance has been effected with an electronic record, that fact alone is insufficient to deny the legal validity or enforceability of the contract which was the culmination of said offer and acceptance. n82 In interpretation of the contract, declarations of the parties' intent or other statements will not be disallowed merely because they are in the form of an electronic record. n83 F. Attribution Rules n84 1) Attribution to Sender. It may be assumed that an electronic record was sent by the Sender if: (1) the Sender sent it; n85 (2) the Sender's agent sent it; n86 or (3) the Sender's [*536] computer information system, which the Sender or her agent programmed, automatically sent it. n87 a. When Receiver May Assume That Sender Sent Message Often, a receiver may not know for sure whether the sender actually sent the message. However, "life goes on" even though the receiver is uncertain. A receiver may assume that a received message was sent by the sender if: (1) a

Page 7 33 Ohio N.U.L. Rev. 525, *536

procedure- previously agreed to by the sender-was applied by the receiver to ascertain whether the sender actually sent the message, and the procedure confirmed that was the case; or (2) the data in the message which was received indicated they were the product of the sender, using an identification method that could have been known only to the sender, her agent, or by someone having a close relationship with the sender or the agent. n88 The rules in the preceding paragraph are inapplicable if: (1) the receiver was in receipt of a timely notice from the sender that said electronic record did not belong to her or her agent; (2) the receiver either knew, or should have known if reasonable care or a specifically-agreed procedure had been employed, that the electronic record did not belong to the sender or her agent; n89 or (3) considering all aspects of the particular case, it is "unconscionable" for the receiver to assume that the electronic record belonged to the sender or her agent or act on such an assumption. n90 b. Sender's Intent Whenever the received message: (1) is the sender's; or (2) is legally considered to be the sender's; or (3) is assumed to be that of the sender, and receiver is entitled to act on that assumption: Then, the receiver may assume that the message is what the sender intended to send, and may act on that assumption. n91 The preceding rule is inapplicable if the receiver either knew, or should have known if an agreed-on-procedure or reasonable care had been employed, that there was an error in the transmission of the message. n92 Ordinarily, the receiver may assume that each electronic message received is independent of the others, and that no duplicate messages were sent by the sender. However, if the receiver mistakenly makes a duplicate of an electronic message, it may not be considered to be a new independent message if the mistake would not have occurred if the receiver had taken [*537] reasonable care or if the receiver had employed a previously-agreed-to procedure. n93 G. Acknowledgement of Receipt n94 1) When Sender Has Requested Acknowledgement. n95 If the sender, who has requested acknowledgement of receipt, does not specify the form or method to be used by receiver, then the receiver may employ: (1) any type of communication, manual or automated; or (2) conduct sufficient to show the sender that the reception has occurred. n96 If the sender has instructed the receiver that the electronic record will have no legal impact n97 until the sender is in receipt of the acknowledgement, then the electronic record is assumed to not have been sent until the sender is in receipt of the acknowledgement from the receiver. n98 On the other hand, if the sender has not placed conditionality upon her receipt of the acknowledgement, and the sender has not received an acknowledgment within a reasonable time or within a previously-specified time, then the sender: (1) after informing the receiver that no acknowledgement has been received, give the sender a reasonable time deadline by which the acknowledgement must be received; and (2) if the sender is not in receipt of the acknowledgement by the deadline, then the sender may take the legal position as if the electronic record had never been sent and exercise her rights accordingly. n99 2) Legal Effect of Receipt of Acknowledgement Once the acknowledgement has been received by the sender, the sender may assume (in the absence of evidence to

Page 8 33 Ohio N.U.L. Rev. 525, *537

the contrary) that the receiver has received her message. However, the acknowledgment is insufficient legal evidence for the sender to assume that the content of the electronic message received by the receiver is identical to what was sent by the sender. n100 If the acknowledgement states that technical requirements have been complied with in the "related electronic record," then the sender may assume (in the absence [*538] of evidence to the contrary) that the electronic record meets either agreed-upon technical requirements or standard technical requirements. n101 H. Time and Place of Transmission and Reception n102 1) Time of Dispatch An electronic record will be assumed to have been sent when it enters a computer information system outside the control of the sender, or one outside the control of the sender's agent. n103 2) Time of Reception: Receiver Has Designated Location. If the receiver has indicated a specific computer information system for the electronic record to be sent to: (1) the assumed time of reception is when it enters the designated computer information system; or (2) if it enters another computer information system of the receiver that is not the designated one, then the assumed time of reception is when the receiver retrieves the electronic record from the computer information system. n104 3) Time of Reception: Receiver Has Not Designated Location. If the receiver has not designated a specific computer information system for the electronic record to be sent to, then the assumed time of reception is when the electronic record enters any computer information system of the receiver. n105 4) Place of Transmission and Reception. The electronic record is assumed to have been sent from the sender's place of business, and the electronic record is assumed to have been received at the receiver's place of business. n106 If either the sender or the receiver has more than one place of business, then the place will be assumed to be the one that has the closest connection to the transaction in question; if there is no transaction involved, then the principal place of business will be the [*539] applicable one. n107 If either the sender or the receiver does not have a place of business, then the assumed location will be the sender or receiver's "usual place of residence." n108 I. Security Issues of E-Records and E-Signatures 1) E-Records A "secure" E-record n109 is one for which the relevant parties have adopted a security procedure that is either "prescribed" or a "commercially reasonable" one, and which has been applied to the E-record from the point of adoption until the point of confirmation. The purpose of the security procedure is to confirm that the E-record has not been altered since the security procedure was adopted. n110

Page 9 33 Ohio N.U.L. Rev. 525, *539

2) Factors Regarding Commercial Reasonableness. The ascertainment of whether a security procedure is commercially reasonable depends upon the objective of the procedure and any of its commercial characteristics at the time of its employment, in conjunction with these factors: (1) the type of transaction involved; (2) whether the parties are knowledgeable; (3) the parties' amount of experience in related transactions, either singularly or collectively; (4) whether other security-related options are available to the parties, but are not accepted; (5) the cost of the other options; and (6) the general security procedures utilized in transactions of a similar nature. n111 3) E-Signatures A "secure" E-signature n112 is one that utilizes an agreed-to security procedure that is prescribed/commercially reasonable in order to verify that it had the following characteristics at the time of its creation : (1) unique to its user; (2) able to identify the user; (3) created by the user using a method under her sole control; and (4) affixed to an E-record with an electronic linkage, and [*540] if the E-record is tampered with, the E-signature will automatically become invalid. n113 4) Legal Presumptions Pertaining to Secure E-Records and E-Signatures a. Secure E-Records. In any legal proceeding in which a secured E-record is involved, it will be presumed that the E-record has not been modified since the time it assumed a "secure" status. However, this is a rebuttable presumption; evidence may be introduced to show that the E-record has been altered after it became a secure record. n114 b. Secure E-Signatures. In any legal proceeding involving a secure E-signature, it will be presumed that: (1) it is the signature of the person that it purports to be of; and (2) the secure E-signature was attached by that person to the E-record in order to show a "signing" (approval) of the E-record. However, this is a rebuttable presumption; evidence may be introduced to show that the E-signature is not that of the person in question, or that the person (although affixing the E-signature to the E-record) did not intend to show approval of the E-record. n115 c. E-Records/E-Signatures Which Are Not Secure. If an E-record or an E-signature does not have "secure" status, then it shall not enjoy any legal presumptions of authenticity or integrity-as discussed above-in a legal proceeding. n116 J. The Impact of Using a Digital Signature 1) With a Secure E-record

Page 10 33 Ohio N.U.L. Rev. 525, *540

Any E-record that has been "signed" with a secure digital signature n117 is considered to be a secure E-record. n118 [*541] 2) Attributes of a Secure Digital Signature To be considered a secure electronic signature with respect to the portion of the E-record it is affixed to, a digital signature must: (1) have come into existence while its certificate was valid n119 and the public key of said certificate provides confirmation of it; (2) the digital signature's certificate is "trustworthy" because it connects the public key in the certificate to the subscriber's identity, since: (a) the certificate was issued by a CA pursuant to ETA Cap. 88 section 42; or (b) the certificate was issued by a foreign CA that is recognized pursuant to ETA Cap. 88 section 43; or (c) the certificate was issued by a department within the government of Singapore who was authorized by the Minister to act as a CA; or (d)the sender and receiver agreed to employ a digital signature in order to further security, and the digital signature was confirmed using the public key contained in the certificate. n120 3) CA-Issued Certificates Presumed to be Accurate In the absence of evidence to the contrary, it is presumed that all information (except for unverified subscriber-provided information) in a Certificate issued by a licensed CA is accurate if the subscriber has accepted the Certificate. n121 4) Relying Third Parties Assume Risk in Secure Situations Unless contractual or legal rules provide otherwise, a third party who relies upon a digital signature to confirm the validity of an E-record assumes the risk that the digital signature is invalid, if the reliance is unreasonable due to the following factors: (1) the facts known to the relying third party, including the facts in the Certificate; (2) the degree of importance of the E-record, if known; (3) prior dealings of the relying third party with the subscriber; and (4) the degree of trustworthiness of the computer information system utilized. n122 [*542] K. Responsibilities of Digital Signature Users

Page 11 33 Ohio N.U.L. Rev. 525, *542

1) Foreseeability of Reliance on the Certificate It is assumed that a party who relies on a digital signature for verification of an E-record can foresee that she must concomitantly rely upon the Certificate which underlies the security of the digital signature, and permits the authenticity of the digital signature to be confirmed. n123 2) Prior Events Necessary for Publication of a Certificate Before a Certificate is publicly published, several things must have happened: (1) it must have been issued by a CA; (2) the subscriber who applied to a CA for the Certificate must have accepted it from the CA; and (3) the Certificate must be valid. n124 3) Fraudulent Publication of Certificate is a Crime It is a crime to publish a Certificate where the purpose of that action is to further a fraud or for other unlawful reasons. The maximum punishment of this offense is two years' imprisonment, a fine of $ 20,000, n125 or both. n126 4) Giving False Information to a CA is a Crime It is also a crime to give false information to a CA pertaining to one's identity or one's agency relationship with another in a request for: (1) issuance of a Certificate; or (2) suspension or revocation of a Certificate. The maximum punishment for this offense is six months' imprisonment, a fine of $ 10,000, n127 or both. n128 L. Responsibilities of the Certification Authority 1) The Foundation of an Acceptable CA In order to become a competent CA, and to provide good verification service, the CA must "utilise trustworthy systems in performing its services." n129 [*543] 2) Required Disclosures of the CA The following information is required to be disclosed to the public: (1) the CA's Certificate which includes the public key which corresponds to the CA's private key which is used by the CA to digitally sign all Certificates issued to the CA's customers (subscribers); (2) "any relevant certification practice statement" ("CPS"); n130 (3) "notice of the revocation or suspension of its certification authority certificate;" and (4) other facts which are relevant to the reliability of the Certificates issued by the CA or to the CA's "ability to perform its services." n131 3) Emerging Negative Impact on Trustworthiness

Page 12 33 Ohio N.U.L. Rev. 525, *543

In the event of an emerging event or situation which has a deleterious, or potentially deleterious, effect upon the CA's degree of trustworthiness in his computer and operating systems and procedures, or the degree of trustworthiness in the Certificates it has issued, the CA should: (1) make a reasonable attempt to contact all parties who will be impacted by this; and (2) follow the relevant procedures outlined in the CA's CPS. n132 4) Requirements Pertaining to Issuance of a Certificate A CA may issue a Certificate only if: (1) an applicant has applied for issuance of a Certificate; and (2) the CA has complied with all of the Certificate issuance procedures included in the CA's CPS. n133 If a CA does not have a CPS, section (2) above is not applicable. Instead, the CA must confirm the following information pertaining to the applicant, either by itself or with an authorized agent: n134 (1) that the applicant is indeed [*544] the person whose name will be listed on the Certificate; (2) if the subscriber's agent is making the application, then the agent must have the authority to take custody of the private key and to request the issuance of the Certificate containing the public key which corresponds to the private key; (3) that the information to be expressed in the Certificate is true and correct; (4) "the subscriber rightfully holds the private key corresponding to the public key to be listed in the certificate;" (5) the applicant has been issued a private key which may be used to digitally sign an E-record, i.e., used to create a digital signature; and (6) the public key in the Certificate is capable of confirming the authenticity of the digital signature which has been affixed to the E-record by the applicant's private key. n135 5) What the Certificate tells the Public Whenever a CA issues a Certificate, she is pledging to any person or entity reasonably relying on the Certificate during its period of validity n136 (or on a digital signature which uses the public key contained in the Certification for its verification) that the Certificate was issued in accordance with all relevant procedures in the CPS. n137 If the CA does not have a CPS, the following items are pledged to any party who reasonably relies upon the Certificate: (1) that the CA has obeyed the ETA in the issuance of the Certificate, and that the subscriber has accepted the Certificate; (2) the subscriber is in possession of the private key, which in turn must correspond to the public key that is listed in the Certificate; (3) the public key and the private key are a "functioning key pair;" (4) the information listed in the Certificate is true and correct, unless the CA states in the Certificate (or incorporates by reference an external statement) that some specific information has not been verified; and (5) the CA is not aware of any material fact which would adversely affect the reliability of sections (1) thorough (4), appearing earlier in this paragraph. n138 [*545] 6) Grounds for Suspension of the Certificate In the absence of a contrary agreement between the CA and the subscriber, the CA must suspend n139 the Certificate whenever the CA receives a request for suspension from the: (1) subscriber; (2) subscriber's agent, whom the subscriber has authorized to act for her; or (3) if the subscriber is not available, a person who is acting on behalf of the subscriber. n140 7) Grounds for Revocation of the Certificate

Page 13 33 Ohio N.U.L. Rev. 525, *545

Sometimes, the subscriber herself may request the CA to revoke n141 the Certificate. At other times, the CA must consider whether to unilaterally revoke it. 8) Revocation with the Subscriber's Permission. The CA must revoke the Certificate whenever: (1) the subscriber or her agent so requests, provided the CA has verified the identity of the subscriber, or that the agent has the necessary authority to make the request; (2) the CA has received a certified copy of the subscriber's death certificate, or has otherwise confirmed that the subscriber is deceased; or (3) (if the subscriber is an entity and not a person) the CA is presented with documents affirming that the entity no longer exists or has been dissolved. n142 9) Revocation without the Subscriber's Permission. Regardless of the fact that the subscriber has not granted consent, the CA must revoke the Certificate whenever: (1) information of a material nature contained in the Certificate is inaccurate; (2) a legal requirement for its issuance remains unsatisfied; (3) the private key belonging to the CA has been lost or compromised, or the security procedures of the CA have been impugned, so that the reliability of the Certificate has been materially and adversely affected; (4) the subscriber, if a person, is now deceased; or (5) the subscribed, if an entity, no longer exists or has been dissolved. n143 [*546] 10) Responsibilities of the Subscriber a. Duty to Use Trustworthy System If the situation is one where the subscriber is given the duty of creating the keys (instead of the CA), the subscriber has the duty of using a "trustworthy system" in their creation. n144 However, this duty to use a trustworthy system does not apply in the situation where the CA provides the system used in the making of the keys. n145 b. Duty to Give Accurate Information in Application for Certificate The applicant for a Certificate has the duty to give information to the CA that is true and correct to the best of the applicant's knowledge and belief. n146 c. Acceptance of the Certificate The subscriber legally accepts a Certificate by: (1) publishing it to one or more persons or in a repository, or authorizing an agent to do so on her behalf; or (2) evidencing approval of the Certificate while being aware of the information contained in the Certificate. n147 d. Warranties of the Subscriber By holding a Certificate that she has accepted, the subscriber implicitly warrants to all reasonably relying third

Page 14 33 Ohio N.U.L. Rev. 525, *546

parties that: (1) the subscriber has lawful possession of the private key which corresponds to the public key contained in the Certificate; (2) all information given to the CA in applying for the Certificate, that is material to the information listed in the Certificate, was true and correct to the best of the subscriber's knowledge and belief; and (3) the information in the Certificate that is within the knowledge of the subscriber is correct. n148 [*547] e. Duty to Maintain Security of the Private Key The subscriber has a duty to maintain security of the private key and not to disclose it to any person not authorized to sign an E-record, i.e., make a digital signature using the private key. n149 This duty to guard the security of the private key applies both when the Certificate is in a valid period, and also when the Certificate is in a period of suspension. n150 f. Duty to Inform the CA If the private key is lost or its security is otherwise compromised, the subscriber has a duty to immediately inform the issuing CA and to request the CA to either suspend the Certificate or revoke it. n151 g. General Authority of the Minister The Minister is entrusted with the permissive general authority to promulgate regulations pertaining to CA's and to determine when a digital signature assumed the status of a "secure electronic signature." n152 h. Specific Authority of the Minister The boundaries of the general authority described in the previous paragraph are intentionally vague because it is difficult for lawmakers to foresee each and every possible responsibility that may arise in the regulation of CA's. Without limiting the general authority just described, the Minister is also given specific authority pertaining to: 1. Applications and renewal of CA licenses 2. Establishment of rules relating to the CA's solicitation of business, and the prohibition of solicitation by unlicensed CA's 3. Standards of CA's in the conduct of their business 4. Determination of qualifications for CA licensure pertinent to experience and training 5. Conditions for the conduct of the CA's business 6. Advertisements pertaining to a digital certificate or key

Page 15 33 Ohio N.U.L. Rev. 525, *547

7. The required form and content of a digital certificate or key 8. Accounting rules applicable to CA's [*548] 9. Rules concerning the hiring and remuneration of the CA's auditor 10. Requirements of computer information systems used by a single CA or in conjunction with other CA's, and the procedure to be used in modification of those requirements 11. A CA's customer relations, conflicts of interest between the CA and its customer, and the CA's duties in reference to an issued Certificate 12. Required forms to be used 13. Fees to be charged for any matter concerned with the ETA. n153 i. Controller of Certification Authorities The Minister is responsible for the appointment of the Controller of Certification Authorities ("Controller"). n154 The duties of the Controller are to develop and implement standard operating procedures used to license, certify, monitor and oversee acts of CA's. n155 j. Maintenance of Public CA Database The Controller will maintain a "publicly available database" which members of the general public may access in order to learn pertinent information relating to a CA. n156 k. Controller May Issue Certificates The Controller is empowered to issue Certificates. When the ETA is being construed in reference to a matter pertaining to a Certificate issued by the Controller (or to confirm a digital signature through reference to said Certificate), the Controller will have the legal status of a CA. n157 l. Recognition of Foreign CA's Through promulgation of appropriate regulations, the Minister may authorize the Controller to recognize foreign CA's provided: (1) the [*549] Certificates issued by the foreign CA meet the minimally acceptable reliance limit; and (2) the presumptions referenced in ETA sections 20(b)(ii) and 21 are applicable, i.e., that the CA's licensed was issued outside Singapore and that the information contained in the Certificate is accurate. n158

Page 16 33 Ohio N.U.L. Rev. 525, *549

m. Reliance Limits The CA must include a reliance limit in every Certificate it issues. n159 Because every situation is different, the CA's reliance limits may vary from one Certificate to another. n160 n. Statutory Limits on CA's Liability n161 The CA is not liable: (1) if a loss is due to reliance of a third party on a "false or forged digital signature," provided the CA carried out all of her responsibilities pursuant to the ETA; or (2) for any amount in excess of the reliance limits expressed in the Certificate if the loss is due to inaccurate information in the Certificate that the CA was required to verify, or was due to the CA's failure to carry out her duties pursuant to ETA sections 29 and 30 (duty to obey its own CPS, or to confirm the information in the application and to ensure that the Certificate has been properly accepted by the subscriber). n162 o. Regulation of Repositories The Minister is empowered to promulgate regulations pertaining to the standards of maintenance of the CA's repositories. n163 M. E-Government 1) E-documents Currently Allowed If, pursuant to written law, any government department does the following: (1) accepts filed documents, or mandates that documents be retained; (2) "issues any permit, license or approval; or [(3)] provides for the method and manner of payment;" then regardless of what the written law may [*550] say to the contrary, the government department is now authorized to: (1) accept the filing of E-documents (instead of written ones), or allow E-documents to be retained; (2) issue E-documents (instead of written ones); or (3) make E- payments. n164 However, this is not a mandate. The government department is not obligated to convert to the use of E-documents. This is within the discretion of the individual departments and agencies. n165 2) Individual Departments May Issue Guidelines Notwithstanding the previous paragraph, the specific department or agency of the government may issue guidelines concerning the following occurrences. 1. The method or the format of the E-records; 2. The type of E-signature required to be used and were they must be signed; 3. How the E-signature is to be attached to the E-record;

Page 17 33 Ohio N.U.L. Rev. 525, *550

4. Methods pertinent to security and privacy of the information in the E- records; and 5. And other details that are currently applicable to paper documents. n166 3) Criminal Offenses a. Disclosure of Confidential Information by Government Employees Government employees who obtain private information in the scope of their employment pursuant to the ETA are forbidden to disclose it. If they do, they have committed a crime. n167 The maximum punishment is imprisonment for one year, a fine of $ 10,000, n168 or both. n169 b. Corporate Officers May Be Individually Liable If a corporation violates the ETA with the knowledge and consent of a corporate "director, manager, secretary or other similar officer," the corporate [*551] officer involved will be individually liable for the violation in addition to the corporation itself. n170 c. Controller May Authorize Subordinates to Enforce the ETA The Controller may delegate her authority to subordinates entrusted with the responsibility of direct enforcement of the ETA. n171 When exercising their criminal enforcement responsibilities, the Controller and her appointed subordinate enforcers will be considered "public servants" pursuant to the Penal Code (Cap. 224). n172 The Controller's authorized subordinates must present their credentials to the party for confirmation of their status when asked by the party being investigated. n173 d. Controller's Corrective Orders The Controller may issue a corrective order in writing to a CA to either affirmatively perform acts which are mandated by the ETA, or to cease and desist from the performance of acts which are unlawful under the ETA. n174 If the CA fails to comply with the corrective order, it is a crime with the maximum punishment being one years' imprisonment, a $ 50,000 fine, n175 or both. n176 e. Controller's Investigatory Power The Controller and her authorized subordinates are empowered to investigate CA's to ensure that they are in compliance with the ETA. n177 The Controller may issue written orders to a CA in order to facilitate an investigation or to achieve the CA's compliance with the ETA. n178 f. Access to the CA's Computer

Page 18 33 Ohio N.U.L. Rev. 525, *551

In the context of an investigation of a CA reasonably suspected of a violation of the ETA, the Controller is entitled to access a CA's computer information system and data produced by that system, and to use said system to search for data and information within it. n179 Furthermore, the CA's [*552] employee who is in charge of the computer information system will be required to provide reasonable assistance (technical or otherwise) to the investigators. n180 g. Failure to Cooperate Is a Crime. It is a crime for the CA to fail to cooperate with the Controller's investigation (including failure to provide reasonable assistance with the CA's computer information system). The maximum punishment is one years' imprisonment, a fine of $ 20,000, n181 or both. n182 Furthermore, any party who obstructs or interferes with the Controller in the lawful exercise of her duties at any time, regardless of whether a formal investigation is underway, commits a crime. n183 h. Right to Demand Production of Documents and Information As part of its investigatory power, the Controller may require: (1) the production of documents or information from CA's; (2) identification documents from CA's and others believed to have committed offenses under the ETA; and (3) to engage in other "inquiries" necessary to determine whether the ETA has been violated. n184 4) Criminal Procedures a. Public Prosecutor Criminal prosecutions pursuant to the ETA must be made by or with the consent of the Public Prosecutor. n185 b. Courts Having Jurisdiction The courts that would be required to try criminal offenses specified in the ETA will either be a District Court or a Magistrate's Court. Despite anything in the Criminal Procedure Code (Cap. 68) to the contrary, these courts are empowered to apply the maximum penalty pursuant to the provisions of the ETA. n186 [*553] c. Compounding of Offenses The Minister may promulgate regulations pertaining to the compounding of offenses under the ETA. Accordingly, the Controller has the authority to compound an offense by assessment of an amount not to exceed $ 5,000 against the person directly involved in the commission of the offense. n187 V. Singapore's Computer Misuse Act

Page 19 33 Ohio N.U.L. Rev. 525, *553

Singapore enacted the Computer Misuse Act ("CMA") n188 on August 30, 1993. n189 It was amended in 1994, 1996, 1998, 2003, and 2005. n190 The purpose of the CMA is to provide more security for computers n191 and computer-borne information from tampering or unauthorized access. n192 A. Unauthorized Access to Computer Material It is a crime to knowingly obtain unauthorized access n193 to a computer or the information contained therein. n194 The maximum penalty for conviction of [*554] the first offense is two years' imprisonment, a $ 5,000 fine, n195 or both. The maximum penalty for conviction of a subsequent offense is three years' imprisonment, a fine of $ 10,000, n196 or both. n197 If the offense results in damages, n198 the maximum penalty is seven years' imprisonment, a $ 50,000 fine, n199 or both. n200 B. Access with Intent to Commit or Facilitate an Offense It is a crime to obtain access to a computer, regardless of whether the access is authorized, n201 if the objective of the access is to carry out a crime specified in the CMA. n202 The objective crime must pertain to theft, misrepresentation, dishonesty or infliction of bodily harm. The minimum penalty must not be less than two years' imprisonment. n203 The maximum penalty for obtaining access to a computer with intent to commit a crime is ten years' imprisonment, a fine of $ 50,000, n204 or both. n205 C. Unauthorized Tampering With Computer Information It is a crime to tamper with a computer n206 while knowing that those acts [*555] will cause unauthorized n207 modification n208 of the computer information. n209 Conviction of the first offense will result in a maximum penalty of three years' imprisonment, a fine of $ 10,000, n210 or both. n211 Conviction of subsequent offenses will be penalized but not to exceed five years' imprisonment, a $ 20,000 fine, n212 or both. n213 If the unlawful acts cause damage, the maximum penalty will be increased to seven years' imprisonment, a fine of $ 50,000, n214 or both. n215 D. Unauthorized Use of a Computer Service It is a crime (1) to access a computer without authorization in order to use a computer service; n216 (2) without authorization, to intercept n217 any computer function using an "electro-magnetic, acoustic, mechanical or other device;" or (3) to use a computer to execute the aforementioned offenses in this paragraph. n218 The maximum punishment will be three years' imprisonment, a fine of $ 10,000, n219 or both. n220 In the case of subsequent convictions, the maximum penalty will be five years' imprisonment, a fine of $ 20,000, n221 or both. n222 If damages are created because of these unlawful acts, the punishment [*556] assessed will be a maximum of seven years' imprisonment, a fine $ 50,000, n223 or both. n224 E. Unauthorized Interference in the Operation of a Computer It is a crime to either interfere with the use of one's computer, to bar access to one's computer, or to diminish the usefulness of another's computer programs or data. The first offense is punishable by up to three years' imprisonment, a fine of $ 10,000, n225 or both. n226 The maximum penalty for subsequent offenses is five years' imprisonment, a fine of $ 20,000, n227 or both. n228 If these unlawful acts cause damage, then the maximum punishment will be increased

Page 20 33 Ohio N.U.L. Rev. 525, *556

to seven years' imprisonment, a fine of $ 50,000, n229 or both. n230 F. Unauthorized Dissemination of Computer Password or Access Code It is a crime to knowingly disclose without permission any computer password or access code if doing so: "(a) for any wrongful gain; (b) for any unlawful purpose; or (c) knowing that it is likely to cause wrongful loss to any person." n231 Offenders committing these acts for the first time are subject to a maximum penalty of three years' imprisonment, a fine of $ 10,000, n232 or both. n233 Subsequent offenses will result in a punishment not to exceed five years' imprisonment, a fine of $ 20,000, n234 or both. n235 G. Increased Punishment for Offenses Relating to "Protected" Computers If any of the aforementioned crimes (specified in CMA sections 3, 5, 6 and 7) are carried out in reference to a computer that is known by the offender to be "protected," the offense is far more serious than in the case of an unprotected computer. Accordingly, the maximum possible punishment will [*557] be greater with 20 years' imprisonment, a fine of $ 100,000, n236 or both. n237 A "protected" computer is one with high security over its access or use because of the following reasons: (1) it is used in reference to national security, the armed forces, or in diplomatic relations with other countries; (2) it contains information pertaining to a confidential information source used in law enforcement; (3) it is used in the provision of government services (e.g., public utilities, banks, public transportation or infrastructure); or (4) it is used by police, medical services or civil defense for public safety. n238 H. Abettors and Attempters Receive Same Punishment Any person attempting to commit one of the aforementioned crimes (but is unsuccessful), or any person aiding or abetting in the commission of one of the aforementioned crimes, will receive the same punishment just as if the attempt had been successful, or just as if the abettor had taken a principal role in the commission of the crime. n239 I. "Long-Arm" Jurisdiction The CMA has jurisdiction over any persons that have committed the aforementioned crimes, regardless of whether the person is a citizen of Singapore or a citizen of a foreign country. n240 Furthermore, the CMA has jurisdiction to prosecute any of the aforementioned crimes regardless of the location of the person at the time the crimes were committed. n241 The prosecution can go forward so long as either: (1) the accused was in Singapore at the alleged time; or (2) the computer information system, or part thereof, was in Singapore at the alleged time. n242 J. The Trial Court under the CMA The trial court for prosecution of the aforementioned crimes will be either a District Court or a Magistrate's Court. n243 Regardless of any possible contrary provisions of the Criminal Procedure Code, n244 the District Court or [*558] the Magistrate's Court will have the authority to impose the maximum punishments stated in the CMA. n245 K. Compounding of Offenses

Page 21 33 Ohio N.U.L. Rev. 525, *558

The Commissioner of Police or any of her authorized subordinates has the discretion to compound any of the aforementioned crimes by requiring the suspected offender to deposit a sum not to exceed $ 3,000. n246 L. Court Order for Convicted Offender to Make Restitution The trial court may order a person convicted of one or more of the aforementioned crimes to pay restitution to the parties she has damaged. The purpose is to reimburse the harmed party for damages caused to her "computer, program or data" due to the unlawful acts. n247 M. Emergency Response to National Security Threat If the national security, national defense, foreign relations or essential services n248 are jeopardized due to a computer security breach, the Minister may authorize any person or organization to take control of any computer, class of computers or computer service. n249 If a violation of the CMA is uncovered in the course of exercising this power, no information pertaining to said violation shall be admitted into evidence in any criminal or civil proceeding. If an informer has informed the police of the violation: (1) no witness in a criminal or civil proceeding will be required to disclose the identity and address of the informer or any other information which could lead to the disclosure of the informer; n250 and (2) if physical items are admitted into evidence which contain identifying information about the informer, the court shall order the information sealed in order to protect the informer. n251 [*559] VI. Summary and recommendations A. The ETA The purpose of Singapore's Electronic Transactions Act ("ETA") is to promote E- commerce by improving the degree of security in electronic transactions. Since its enactment, the ETA has become one of the most influential E-commerce statutes of the developed world because of its innovative adoption of a moderate degree of technological neutrality. The ETA took an open-minded technological approach by recognizing the legal validity of many types of electronic signatures. However, the ETA granted preferred status to the digital signature because it arguably provides the greatest security for E-commerce transactions. Since the ETA's enactment, adoption of the moderate degree has emerged as a new trend in the evolution of international E-commerce law. The ETA recognizes the legal validity and enforceability of electronic documents. The ETA provides that electronic documents or electronic signatures may be used to satisfy a statutory requirement requiring documents to be in writing, archived, or signed. As a general rule, network service providers have no legal liability for dissemination of a third party's electronic material, but there are exceptions. The legal validity of electronic contracts is recognized and contractual rules are included relating to attribution, acknowledgement of receipt, time and place of transmission, and reception. A "secure" E-record is one that has been signed with a secure digital signature. A "secure" digital signature is one that was issued pursuant to a valid certificate, is confirmed by its public key, and has a trustworthy certificate as evidenced by the fact that it connects its public key to the subscriber's identity. Secure E-records and secure E-signatures enjoy a presumption of authenticity and integrity when used in legal proceedings. The digital signature is the preferred type of electronic signature under the ETA and detailed rules are

Page 22 33 Ohio N.U.L. Rev. 525, *559

provided for their use: (1) specification of the attributes of a "secure" digital signature (as just mentioned); (2) responsibilities of digital signature users; and (3) responsibilities of the Certification Authority (the verifier of the authenticity and integrity of a person's digital signature and the electronic document to which it is attached). Government agencies are encouraged to accept and to issue electronic documents and electronic payments, although they are not mandated to do so. When adopting some form of E-government, the individual agencies may issue guidelines mandating specific procedures or formatting to be used. Finally, the ETA contains a list of computer crimes, the maximum penalties for each crime, and the criminal procedures to be applied for crimes that occur under the ETA. [*560] B. The CMA A more comprehensive list of cyber-crimes is contained in the Computer Misuse Act ("CMA"). The CMA states it is a crime to access a computer or its contents without authorization, to tamper with computer information, to use a computer service, or disseminate a computer password. Regardless of whether one has authorization to do so, it is a crime to access a computer with the intent to commit a crime specified in the CMA. All of the crimes contained in the CMA may be punishable with a fine, imprisonment, or both. Those abetting or merely attempting a crime will receive the same punishment assessed against them as though they were the principal offender or as though they had successfully completed the crime. The CMA provides for "long-arm" jurisdiction over offenders residing outside of Singapore when the crime was committed, so long as their unlawful acts impacted a computer located within Singapore's borders. Compounding of offenses and restitution of the victim's damages may be ordered by the court. Emergency powers may be granted to persons or organizations to protect computers used in national defense, national security, foreign relations, and essential services. Interestingly, public key infrastructure is included in the definition of essential services; therefore, the computers of Certification Authorities are also entitled to emergency protection if their security is threatened. C. Recommendations Singapore's ETA and CMA establish a basic framework for the attainment of secure electronic transactions and the prosecution of computer crimes. These statutes are often emulated by other countries seeking to develop their E-commerce laws. However, the following amendments and revisions should be considered in order to strengthen Singapore's statutes. 1) Mandatory E-Government Singapore should add mandatory (not merely permissive) requirements for governmental agencies to utilize electronic documents. This would expand E- government, resulting in greater convenience for citizens, greater efficiency for the government, and less overall cost. In Hong Kong, for example, a substantial number of government services may now be accessed online, such as the scheduling of an interview for a visa or the scheduling of a wedding before a public official. n252 A study of governmental agencies needs to be undertaken in order to specify those agencies which can improve their efficiency by conversion to [*561] electronic forms. E-government should be implemented first at those agencies

Page 23 33 Ohio N.U.L. Rev. 525, *561

with the greatest need, and later at agencies which have less potential for realizing efficiencies with E-government. Specific types of electronic documents and payments should be designated as necessary resources for upgrading an agency's computer system. Also, a timetable for E-commerce implementation should be developed. 2) Elimination of Exclusions Singapore should reduce, and eventually eliminate, the exclusions from coverage in its E-commerce laws. Compared to some jurisdictions, Singapore does not have a large number of exclusions: wills, trusts, titles, conveyance of real property, and powers of attorney. n253 However, the current trend in international E- commerce law is for the exclusions to be minimized or eliminated. A good place to begin in paring down the list would be to recognize the legal validity of wills that have been executed with an electronic signature. n254 3) Information Technology Courts Because of the specialized knowledge that is often required in the adjudication of electronic signature disputes, Information Technology Courts should be established as courts of original jurisdiction. The I.T. Courts would be tribunals consisting of three experts. The chairperson would be an attorney [*562] who is well-versed in electronic signature law. The other two positions would be filled by an I.T. expert and a business management expert. The attorney would obviously be required to hold a law degree and be a member of the bar with relevant legal experience. The I.T. expert would be required to hold a graduate degree in an I.T.-related field and have experience in that field. The business management expert would be required to hold a graduate degree in business administration and have relevant managerial experience. The electronic signature law of the Kingdom of Nepal can be used as a model. n255 4) Consumer Protections Needed in E-Contracts Consumer protection for E-commerce purchasers are missing from Singapore's statutes as well. As a model, Singapore can look to Tunisia for an example of a nation with good consumer protections for E-commerce buyers. All of Tunisia's E- commerce consumer protections are commendable. n256 First, buyers have a "last chance" to review the order before they enter into it. Second, buyers have a 10-day window of opportunity to withdraw from the agreement after it has been made. Third, buyers have the right to a refund if the goods are late or if they do not conform to the specifications. Finally, the risk remains on the seller during the 10-day trial period after the goods have been received. n257

Legal Topics: For related research and practice materials, see the following legal topics: Computer & Internet LawInternet BusinessContractsDigital SignaturesComputer & Internet LawPrivacy & SecurityGeneral OverviewInternational Trade LawGeneral Overview FOOTNOTES:

n1 U.S. Central Intelligence Agency (CIA), Singapore, The World Factbook (Last Updated January 23, 2007), available at https://www.cia.gov/cia/publications/factbook/geos/sn.html (Last Visited Apr. 1, 2007).

Page 24 33 Ohio N.U.L. Rev. 525, *562

n2 Id. n3 Id. n4 N. Ravindran, The E-commerce Resurgence, available at http://www.sim.edu.sg/sim/pub/mag/sim pub mag list.cfm?ID=1151 (last visited Apr. 1, 2007). Internet penetration in Singapore is 49% and mobile phone penetration is 73%. Id. n5 Id. n6 Jochen Zaremba, International Electronic Transaction Contracts Between U.S. and EU Companies and Customers, 18 Conn. J. Int'l. L. 479, 511 (Spring 2003). Singapore law defines an electronic signature as "any letters, characters, numbers or other symbols in digital form attached to or logically associated with an electronic record, and executed or adopted with the intention of authenticating or approving the electronic record." Republic of Singapore, Electronic Transactions Act (Cap. 88) § 2, (1998), available at http://agcvldb4.agc.gov.sg/ (last visited Apr. 1, 2007).(emphasis added) [hereinafter ETA]. As stated, an electronic signature is attached to an electronic record (in E- commerce, this will be the electronic message containing the details of the sale or purchase). Singapore law defines an electronic record as "a record generated, communicated, received or stored by electronic, magnetic, optical or other means in an information system or for transmission from one information system to another." Id. This is an inclusive definition and is evidence of technological open-mindedness. Likewise, Singapore has a broad definition of the basic nuts and bolts of a computer information system-"information." Information is defined as "data, text, images, sound, codes, computer programs, software and databases." Id. n7 Zaremba, supra note 6, at 511. n8 Under Singapore law, a digital signature is defined as an electronic signature consisting of a transformation of an electronic record using an asymmetric cryptosystem and a hash function such that a person having the initial untransformed electronic record and the signer's public key can accurately determine-(a) whether the transformation was created using the private key that corresponds to the signer's public key; and (b) whether the initial electronic record has been altered since the transformation was made. ETA § 2. n9 Utah Code Ann. § 46-3-101 et seq. (1999) (this section is repealed, effective May 1, 2006, but illustrates the historical enactment of Utah's electronic signature law). n10 Id. n11 See Stephen E. Blythe, A Critique of India's Information Technology Act and Recommendations for Improvement (unpublished work, on file with the author). n12 Susanna Frederick Fischer, San Francisco, California Saving Rosencrantz and Guildenstern in a Virtual World? A Comparative Look at Recent Global Electronic Signature Legislation, 7 B.U. J. Sci. & Tech. L. 229, 234-37 (Summer 2001).

Page 25 33 Ohio N.U.L. Rev. 525, *562

n13 It is debatable whether technological-neutrality or technological-specificity is the correct road to take. See Sarah E. Roland, The Uniform Electronic Signatures in Global and National Commerce Act: Removing Barriers to E-Commerce or Just Replacing Them with Privacy and Security Issues?, 35 Suffolk U. L. Rev. 625, 638-45 (2001). n14 Fischer, supra note 12, at 236-37. For concise coverage of the United Nations, European Union, British, and American law of digital signatures, see Stephen E. Blythe, Digital Signature Law of the United Nations, European Union, United Kingdom and United States: Promotion of Growth in E- Commerce with Enhanced Security, 11 Rich. J. L. & Tech. 6 (Winter 2005). n15 Model Law on Electronic Commerce adopted by the United Nations Commission on International Trade Law ("UNCITRAL"), G.A. Res. 51/162, U.N. Doc. A/51/49 (January 30, 1 9 9 7 ) , a v a i l a b l e a t http://www.uncitral.org/uncitral/en/GA/resolutions.html (Last Visited Apr. 1, 2007) [hereinafter MLEC]. n16 European Union Directive 1999/93/EC of the European Parliament and of the Council of 13 December 1999 on a Community Framework for Electronic Signatures, (1999/93/EC)-19 January 2000, O.J. L13/12. For concise coverage of the E.U. Directive, see Blythe, supra note 14. For coverage of the E-signature law of an E.U. member state, see Stephen E. Blythe, Hungary's Electronic Signature Act: Enhancing Economic Development with Secure E- Commerce Transactions (author cites to unpublished manuscripts that are on file with the author). n17 Stephen E. Blythe, Cyberlaw of Japan: Promoting E- Commerce Security, Increasing Personal Information Confidentiality, and Controlling Computer Access ( unpublished work, on file with the author). n18 Stephen E. Blythe, South Pacific Computer Law: Promoting E-Commerce in Vanuatu and Fighting Cyber-Crime in Tonga, 10 J. of S. Pacific L., issue 1, at 20-26 (2006), available at http://www.paclii.org/journals/fJSPL/vol10/2.shtml. n19 Stephen E. Blythe, Taiwan's Electronic Signature Act: Facilitating the E-Commerce Boom with Enhanced Security, Proceedings of the Sixth Annual Hawaii International Conference Business, Honolulu, Hawaii U.S.A., May 25-28, 2006; http://www.hicbusiness.org/Proceedings Bus.htm. n20 Stephen E. Blythe, Lithuania's Electronic Signature Law: Providing More Security in E-Commerce Transactions, (unpublished work, on file with the author). n21 Stephen E. Blythe, Tehran Begins to Digitise: Iran's E-Commerce Law as a Hopeful Bridge to the World, 18 Sri Lanka J. of Int'l. L. 23 (2006). n22 Stephen E. Blythe, The Tiger on the Peninsula is Digitized: Korean E-Commerce Law as a Driving Force in the World's Most Computer-Savvy Nation, 28 Houston J. of Int'l L. 573 (2006). n23 Stephen E. Blythe, The Barbados Electronic Transactions Act: A Comparison with the U.S. Model Statute (unpublished work, on file with the author).

Page 26 33 Ohio N.U.L. Rev. 525, *562

n24 Before amending its original digital signature law, Hong Kong only recognized digital signatures and was therefore a member of the First Wave. After amendments were made, Hong Kong joined the Third Wave. See Stephen E. Blythe, Hong Kong Electronic Signature Law and Certification Authority Regulations: Promoting E-Commerce in the World's "Most Wired" City, 7 N. Carolina J. of L. and Tech. 1 (Fall 2005). n25 Fischer, supra note 12, at 234-37. n26 Stephen E. Blythe, Pakistan Goes Digital: the Electronic Transactions Ordinance as a Facilitator of Growth for E-commerce, 2 J. of Islamic State Practices in Int'l L. 5 (2006), a v a i l a b l e a t http://www.electronicpublications.org/stuff.php?id=151 (subscription required). n27 Stephen E. Blythe, Azerbaijan's E-Commerce Statutes: Contributing to Economic Growth and Globalization in the Caucasus Region (unpublished work, on file with the author). n28 Stephen E. Blythe, Computer Law of Tunisia: Promoting Secure E-Commerce Transactions With Electronic Signatures, 20 Arab L. Q. 240 (2006). n29 Stephen E. Blythe, China's New Electronic Signature Law and Certification Authority Regulations: A Catalyst for Dramatic Future Growth of E-Commerce, (author cites to unpublished manuscripts that are on file with the author). n30 Asymmetric encryption provides one of the highest- if not the highest-degree of security in electronic transactions. Singapore law defines an asymmetric cryptosystem as "a system capable of generating a secure key pair, consisting of a private key for creating a digital signature, and a public key to verify the digital signature." ETA § 2. n31 Richard Wu, Electronic Transaction Ordinance- Building a Legal Framework for E-commerce in Hong Kong, J. Info. L . & T e c h . ( 2 0 0 0 ) , a v a i l a b l e a t http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2000 1/wu/ (last visited Apr. 1, 2007). n32 Renard Francois, Comment, Fair Warning: Preemption and Navigating the Bermuda Triangle of E-Sign, UETA, and State Digital Signature Laws, 19 Marshall J. Computer & Info. L. 401, 405-06 (2001). n33 Singapore law refers to the double keys as a "key pair" and defines it as follows: "in an asymmetric cryptosystem, [key pair] means a private key and its mathematically related public key, having the property that the public key can verify a digital signature that the private key creates." ETA § 2. n34 Singapore law defines a hash function as an algorithm mapping or translating one sequence of bits into another, generally smaller, set (the hash result) such that-(a) a record yields the same hash result every time the algorithm is executed using the same record as input; (b) it is computationally infeasible that a record can be derived or reconstituted from the hash result produced by the algorithm; and (c) it is computationally infeasible that 2 records can be found that produce the same hash result using the algorithm. Id.

Page 27 33 Ohio N.U.L. Rev. 525, *562

n35 Singapore law defines "correspond" as follows: "in relation to a private key or public key, means to belong to the same key pair." Id. n36 American Bar Association, Section of Science & Technology, Information Security Committee, PKI Assessment Guidelines, (Public Draft for Comment June 18, 2001), available at http://www.abanet.org/scitech/ec/isc/pagv30.pdf [hereinafter ABA, PKI Assessment Guidelines]. n37 Singapore law defines a private key as "the key of a key pair used to create a digital signature." ETA § 2. n38 ABA, PKI Assessment Guidelines, supra note 36, at 305. n39 Singapore law defines a public key as "the key of a key pair used to verify a digital signature." ETA § 2. n40 American Bar Association, Section of Science & Technology, Information Security Committee, Electronic Commerce & Information Technology Division, Digital Signature Guidelines: Legal Infrastructure for Certification Authorities and Secure Electronic Commerce, at 9, Aug. 1, 1996, available at http://www.abanet.org/ftp/pub/scitech/ds-ms.doc. n41 Aristotle G. Mirzaian, Esq., Electronic Commerce: This is Not Your Father's Oldsmobile, 26 Rutgers L. Rev. 7, 13 (2002). n42 Singapore law defines a Certification Authority ("CA") as "a person who or an organization that issues a certificate." ETA § 2. However, Singapore law distinguishes a regular CA from a Licensed CA. A Licensed CA is defined as "a certification authority licensed by the Controller pursuant to any regulations made under section 42" of the ETA, to be covered in this article, infra. Id. n43 Singapore law defines a subscriber as "a person who is the subject named or identified in a certificate issued to him and who holds a private key that corresponds to a public key listed in that certificate." Id. n44 Singapore law defines a repository as "a system for storing and retrieving certificates or other information relevant to certificates." Id. n45 Singapore law defines a certificate as "a record issued for the purpose of supporting digital signatures which purports to confirm the identity or other significant characteristics of the person who holds a particular key pair." Id. n46 According to Singapore law, to "sign" makes reference to "any symbol executed or adopted, or any methodology or procedure employed or adopted, by a person with the intention of authenticating a record, including electronic or digital methods." ETA § 2. n47 According to Singapore law, to "verify a digital signature" means for the CA "to determine accurately

Page 28 33 Ohio N.U.L. Rev. 525, *562

that: (a) the digital signature was created using the private key corresponding to the public key listed in the certificate; and (b) the record has not been altered since its digital signature was created." Id. n48 The CA applies a "security procedure" to confirm the authenticity and integrity of the electronic message. Singapore law defines security procedure as a procedure for the purpose of - (a) verifying that an electronic record is that of a specific person; or (b) detecting error or alternation in the communication, content or storage of an electronic record since a specific point in time, which may require the use of algorithms or codes, identifying words or numbers, encryption, answerback or acknowledgement procedures, or similar security devices. Id. n49 Jane K. Winn, The Emperor's New Clothes: The Shocking Truth About Digital Signatures and Internet Commerce, 37 Idaho L. Rev. 353, 384-88 (2001). n50 Republic of Singapore, ELECTRONIC TRANSACTIONS ACT ("ETA") (Cap. 88) (1998) available at http://agcvldb4.agc.gov.sg/ (Last Visited 3 February 2007). n51 Id. at preamble. n52 Id. n53 Id. n54 Id. § 61. n55 ETA § 60. n56 Id. at preamble. n57 Id. § 3. n58 The Minister is empowered to amend this list of exclusions; additions, deletions or modifications may be made. Id. § 4(2). n59 It might be expected that no one would want electronic money. However, the digital "Olympus" cards in Hong Kong enjoy wide popularity in making purchases of tickets in mass transit (buses, subways, ferries and trains), and in making purchases of goods in department stores, supermarkets, convenience stores, McDonald's and other shops. The chip in these cards may be programmed to contain up to 1000 HKD (about US $ 130), and the credit in the cards may be replenished at subway stations and convenience stores (e.g., 7-11 and Circle-K). n60 Resulting and constructive trusts are excluded from this exclusion.

Page 29 33 Ohio N.U.L. Rev. 525, *562

n61 ETA § 4(1). n62 Id. §§ 6-9. n63 Id. §§ 11-15. n64 Id. § 5. n65 ETA § 6. n66 Id. § 7. n67 If electronic records are used to satisfy a retention requirement, it is not necessary to also retain automatically-computer-generated information pertaining to the transmission or receipt of an electronic record. Id. § 9(2). n68 Id. § 9(1). n69 Id. § 9(3). n70 ETA § 9(4)(a). n71 Id. § 9(4)(b). n72 How does one prove the existence of an electronic signature? Certainly, it can't be seen! Id. § 8(2) states that an electronic signature may be proven "in any manner." The proof may include showing the existence of a procedure in which a party previously provided confirmation (e.g., as part of a security procedure, which may have employed a password or a symbol) that the electronic signature belongs to the party. Id. § 8(2). n73 Id. § 8(1). n74 "Providing access" pertains to the technical facilitation of the retrieval of the electronic records, to include the "automatic and temporary storage" of the records. ETA § 10(3). n75 A "third party" is a person over whom the NSP has no control. Id. n76 Id. § 10(1). n77 Republic of Singapore, Copy Right Act ("CRA") (Cap. 63) (1987) available at http://agcvldb4.agc.gov.sg/ (last visited Apr. 1, 2007).

Page 30 33 Ohio N.U.L. Rev. 525, *562

n78 "Performance" is taken here to have the same meaning as it does in the CRA, Part XII. ETA § 10(3). n79 "Protection period" is taken here to have the same meaning as it does in the CRA, Part XII. Id. n80 Id. § 10(2). n81 Id. § 11(1). n82 Id. § 11(2). n83 ETA § 12. n84 The attribution rules have no effect upon contract formation law or the law of agency. Id. § 13(8). n85 Id. § 13(1). n86 Id. § 13(2)(a). n87 Id. § 13(2)(b). n88 ETA § 13(3). n89 Refer to item ETA section 13(2) in the preceding paragraph of the statute. Id. § 13(4)(b). n90 Id. § 13(4). n91 Id. § 13(5). n92 Id. § 13(6). n93 ETA § 13(7). n94 Other than in the context of the transmission and reception of an electronic record, this section of the ETA has no bearing upon the "legal consequences" that may be caused by an electronic record or the acknowledgment of its receipt. Id. § 14(7). n95 Id. § 14(1). n96 Id. § 14(2).

Page 31 33 Ohio N.U.L. Rev. 525, *562

n97 The ETA refers to this situation of no legal impact as "conditional." Id. § 14(3). n98 ETA § 14(3). n99 Id. § 14(4). n100 Id. § 14(5). There may be problems in the transmission of the message. n101 Id. § 14(6). n102 If the parties have made an agreement as to the assumed time and place of dispatch and reception, that agreement will be controlling. Id. § 15. Furthermore, the rules pertaining to time and place of dispatch and receipt may be inapplicable to any "such circumstances as the Minister may by regulations prescribe." ETA § 15(6). n103 Id. § 15(1). n104 Id. § 15(2)(a). This rule applies even if the location of the computer information system differs from the deemed place of reception pursuant to Id. §§ 15(4), 15(3). n105 Id. § 15(2)(b). This rule applies even if the location of the computer information system differs from the deemed place of reception pursuant to ETA § 15(4) and ETA § 15(3). n106 ETA § 15(4). n107 Id. § 15(5)(a). n108 Id. § 15(5)(b). In the case of a corporation, the "usual place of residence" will be the jurisdiction in which it is incorporated or is otherwise considered to be a viable legal entity. Id. § 15(5)(c). n109 In order to be deemed a "secure" E-record, it must meet the requirements of either ETA sections 16 or 19. Id. § 18(4). n110 ETA § 16(1). n111 Id. § 16(2). n112 In order to be considered a "secure" E-signature, it must meet the requirements of either ETA sections 17 or 20. Id. § 18(4).

Page 32 33 Ohio N.U.L. Rev. 525, *562

n113 Id. § 17. n114 Id. § 18(1). n115 ETA § 18(2). n116 Id. § 18(3). n117 The qualification requirements of a secure digital signature are covered in ETA section 20. This provision shows once more that the digital signature is the preferred type of electronic signature under the ETA. n118 Id. § 19. n119 Singapore law defines a valid certificate as one "that a certification authority has issued and which the subscriber listed in it has accepted." Id. § 2. n120 Id. § 20. n121 ETA § 21. n122 Id. § 22. n123 Id. § 23. n124 See id. § 24. With respect to the third item, it is acceptable to publish a Certificate in order to confirm a digital signature which was made before the suspension or revocation. Id. § 24(c). n125 This corresponds to about $ 13,200.00 in U.S. dollars. n126 ETA § 25. n127 This corresponds to about $ 6,600.00 in U.S. dollars. n128 ETA § 26. n129 Id. § 27. Under Singapore law, a "trustworthy" computer information system is defined as "computer hardware, software and procedures that (a) are reasonably secure from intrusion and misuse; (b) provide a reasonable level of availability, reliability and correct operation; (c) are reasonably suited to performing their intended functions; and (d) adhere to generally accepted security procedures." Id. § 2.

Page 33 33 Ohio N.U.L. Rev. 525, *562

n130 Singapore law defines a CPS as "a statement issued by a certification authority to specify the practices that the certification authority employs in issuing certificates." Id. In most jurisdictions, the CPS is required to be drafted by the CA before it can conduct any public business. This is not the case in Singapore. If a CA does have a CPS, it must be kept on file in the Minister's office for public viewing. The CPS contains the everyday policies, procedures, and rules which the CA will use in conducting his business, especially in regard to the issuance of certificates. The idea of the CPS originated in the United States. See American Bar Association, Digital Signature Guidelines, Legal Infrastructure for Certification Authorities and Secure Electronic Commerce, supra note 40, at §1.8. n131 ETA § 28(1). Singapore has a compulsory licensing system for CAs in which no CA may conduct business without a license. Another example of a country with a compulsory system is China. In some jurisdictions, however, the licensing is voluntary, with CAs free to conduct certification business even if they do not have a license. An example is Korea. See Blythe, The Tiger on the Peninsula is Digitized, supra note 22. n132 ETA § 28(2). n133 Id. §§ 29(1)(a), (1)(b)(i). n134 Id. § 29(1)(b)(ii). n135 Id. § 29(2). n136 Singapore law refers to the period of validity of a Certificate as its "operational period." An operational period "begins on the date and time the certificate is issued by a certification authority (or on a later date and time if stated in the certificate), and ends on the date and time it expires as stated in the certificate or is earlier revoked or suspended." Id. § 2. n137 ETA § 30(1). Ordinarily, the CPS is incorporated by reference in the Certificate, and this is how a relying third party receives notice of it. However, if the relying third party receives notice of the CPS from another source, that is also sufficient to create liability of the CA to the relying third party. n138 Id. § 30(2). To the extent that these representations contained section 30(2) are not inconsistent with the CPS, they also apply in the case of CAs who have incorporated their CPS by reference in the Certificate, or in the case of relying third parties who have notice of the CPS and its contents. Id. § 30(3). n139 Under Singapore law, to "suspend a certificate" is "to temporarily suspend the operational period of a certificate from a specified time." Id. § 2. n140 Id. § 31. Public signed notice of the suspension must be given in all of the CA repositories specified in the Certificate, or the ones ordinarily used for publication of notice of suspension. Ordinarily the primary repository used to give notice is the CA website. ETA § 34. n141 To revoke a certificate is "to permanently end the operational period of a certificate from a specified

Page 34 33 Ohio N.U.L. Rev. 525, *562

time." Id. § 2. n142 Id. § 32. Public signed notice of the revocation must be made at all repositories specified in the Certificate, or at the repository ordinarily used to post notice of revocation. The CA website often contains the CA principal repository for giving notice. Id. § 35. n143 Id. § 33(1). Upon revoking the Certificate, the CA must immediately inform the subscriber. This does not apply in situations (4) and (5) specified in this paragraph. ETA § 33(2). Furthermore, public signed notice of the revocation must be made at all repositories specified in the Certificate, or at the repository ordinarily used to post notice of revocation. The CA website often contains the CA principal repository for giving notice. Id. § 35. n144 Id. § 36(1). n145 Id. § 36(2). n146 ETA § 37. n147 Id. § 38(1). n148 Id. § 38(2). n149 Id. § 39(1) n150 Id. § 39(2). n151 ETA § 40. n152 Id. § 42(1) n153 Id. § 42(2). A violation of one or more of these regulations to be promulgated by the Minister may be a criminal offense with a maximum punishment of one year's imprisonment, a fine of $ 50,000, or both. ETA § 42(3). This corresponds to about $ 32,998.00 in U.S. dollars. n154 Singapore law defines "Controller" as "the Controller of Certification Authorities appointed under section 41(1) and includes a Deputy or an Assistant Controller of Certification Authorities appointed under section 41(2)." Id. §§ 2, 41. n155 Id. § 41(1). The Controller will discharge duties which are specified in the ETA or in regulations which may be promulgated by the Minister. Id. § 41(3). n156 Id. § 41(4).

Page 35 33 Ohio N.U.L. Rev. 525, *562

n157 ETA § 41(5). n158 Id. § 43. n159 Id.§ 44(1). The reliance limit indicates the amount of maximum financial liability for which the CA is responsible. The amount will vary from situation to situation. Some situations are more risky than others while some are less risky. n160 Id. § 44(2). n161 These limits on CA liability could be waived by the CA. Id. § 45. However, such a waiver will most likely never happen. n162 ETA § 45. n163 Id. § 46. n164 Id. § 47(1). n165 Id. § 47(3). However, one wonders whether this will be changed in the future, since conversion to wholesale use of E-documents can dramatically improve government efficiency by cutting costs. For example, in Hong Kong as much as 90 percent of the possible conversion to E-documents has already been implemented with significant cost savings. See Blythe, supra note 24. n166 ETA § 47(2). n167 Id. § 48(2). n168 This corresponds to about $ 6,605.00 in U.S. dollars. n169 ETA § 48(2). n170 Id. § 49. n171 Id. § 50(1). n172 Id. § 50(2). n173 Id. § 50(3).

Page 36 33 Ohio N.U.L. Rev. 525, *562

n174 ETA § 51(1). n175 This corresponds to about $ 33,000.00 in U.S. dollars. n176 ETA § 51(2). n177 Id. § 52(1). n178 Id. § 52(2). n179 Id. § 53(1). n180 Id. § 53(2). n181 This corresponds to about $ 13,205.00 in U.S. dollars. n182 ETA § 53(3). n183 Id. § 54. The maximum punishment for this "catch-all" prohibition on interference with the Controller is unspecified. The general "default" penalty would apparently apply which is six months' imprisonment, a fine of $ 20,000, or both. Id. § 56. This corresponds to $ 13,205.00 in U.S. dollars. n184 ETA § 55. n185 Id. § 57. n186 Id. § 58. n187 Id. § 59. n188 Republic of Singapore, Computer Misuse Act ("CMA") (Cap. 50A) (1993), available at http://agcvldb4.agc.gov.sg (last visited Apr. 15, 2007). n189 Id. at Preamble. n190 Id. n191 The CMA has a relatively broad degree of application because it uses an inclusive definition of "computer" as an electronic, magnetic, optical, electrochemical, or other data processing device, or a group of such interconnected or related devices, performing logical, arithmetic, or storage functions, and includes any

Page 37 33 Ohio N.U.L. Rev. 525, *562

data storage facility or communications facility directly related to or operating in conjunction with such device or group of such interconnected or related devices, but does not include (a) an automated typewriter or typesetter; (b) a portable hand held calculator; (c) a similar device which is non- programmable or which does not contain any data storage facility; or (d) such other device as the Minister may, by notification in the Gazette, prescribe. Id. § 2(1). n192 Id. n193 A person has "access" to a program or data held in a computer "if by causing a computer to perform any function he (a) alters or erases the program or data; (b) copies or moves it to any storage medium other than that in which it is held or to a different location in the storage medium in which it is held; (c) uses it; or (d) causes it to be output from the computer in which it is held (whether by having it displayed or in any other manner)." Id. § 2(2). A person has "unauthorized access" to a program or data held in a computer if "(a) he is not himself entitled to control access of the kind in question to the program or data; and (b) he does not have consent to access by him of the kind in question to the program or data from any person who is so entitled." CMA § 2(5). The two preceding definitions refer to "a program or data held in a computer;" that is defined as "any program or data held in any removable storage medium which is for the time being in the computer; and a computer is to be regarded as containing any program or data held in any such medium." Id. § 2(6). n194 It is irrelevant that any of the unlawful acts under this section did not target a specific program or data; or any program or data; or a program or data contained in any particular computer. Id. § 3(3). n195 Id. §3(1). This corresponds to about $ 3,303.00 in U.S. dollars. n196 CMA §3(1). This corresponds to about $ 6,606.00 in U.S. dollars. n197 CMA § 3(1). n198 Damages are defined as except for the purposes of section 13, any impairment to a computer or the integrity or availability of data, a program or system, or information, that: (a) causes loss aggregating at least $ 10,000 in value, or such other amount as the Minister may, by notification in the Gazette, prescribe except that any loss incurred or accrued more than one year after the date of the offence in question shall not be taken into account; (b) modifies or impairs, or potentially modifies or impairs, the medical examination, diagnosis, treatment or care of one of more persons; (c) causes or threatens physical injury or death to any person; or (d) threatens public health or safety." Id. § 2(1). Data is defined as "representations of information or of concepts that are being prepared or have been prepared in a form suitable for use in a computer." Id. n199 Id. § 3(2). This corresponds to about $ 33,039.00 in U.S. dollars. n200 CMA § 3(2). n201 Id. § 4(4). It is also irrelevant as to when the objective crime is carried out, i.e., either at the time of attainment of the access or some other time.

Page 38 33 Ohio N.U.L. Rev. 525, *562

n202 Id. § 4(1). n203 Id. § 4(2). n204 This corresponds to about $ 33,039.00 in U.S. dollars. n205 CMA § 4(3). n206 It is not relevant that the unlawful acts did not target "(a) any specific program or data; (b) a program or data of any kind; or (c) a program or data held in any particular computer." Id. § 5(3). For purposes of interpretation of the preceding definition, a person is considered to have used a program "if the function he causes the computer to perform (a) causes the program to be executed; or (b) is itself a function of the program." Id. § 2(3). n207 A modification of the contents of a computer is "unauthorized" if "(a) the person whose act causes it is not himself entitled to determine whether the modification should be made; and (b) he does not have consent to the modification from any person who is so entitled." Id. § 2(8). n208 Modification of the contents of a computer occurs when: "(a) any program or data held in the computer concerned is altered or erased; (b) any program or data is added to its contents; or (c) any act occurs which impairs the normal operation of any computer." Id. § 2(7). In the preceding sentence, a program is considered to be "data representing instructions or statements that, when executed in a computer, causes the computer to perform a function." It is not relevant whether the modifications were meant to be permanent or only temporary. CMA § 2(1). n209 CMA § 5(1). n210 This corresponds to about $ 6,606.00 in U.S. dollars. n211 CMA § 5(1). n212 This corresponds to about $ 13,211.00 in U.S. dollars n213 CMA § 5(1). n214 This corresponds to about $ 33,027.00 in U.S. dollars. n215 CMA § 5(2). n216 Computer service is defined as "computer time, data processing and the storage and retrieval of data." Id. § 2(1).

Page 39 33 Ohio N.U.L. Rev. 525, *562

n217 Interception "includes listening to or recording a function of a computer, or acquiring the substance, meaning or purport thereof." Id. § 2(1). n218 Id. § 6. It is irrelevant if the unauthorized access did not target a specific computer program or data; any computer program or data; or the contents of any specific computer. Id. § 6(3). n219 This corresponds to about $ 6,606.00 in U.S. dollars. n220 CMA § 6(1). n221 This corresponds to about $ 13,211.00 in U.S. dollars. n222 CMA § 6(1). n223 This corresponds to about $ 33,027.00 in U.S. dollars. n224 CMA § 6(2). n225 This corresponds to about $ 6,606.00 in U.S. dollars. n226 CMA § 7(1). n227 This corresponds to about $ 13,211.00 in U.S. dollars. n228 CMA § 7(1). n229 This corresponds to about $ 33,027.00 in U.S. dollars. n230 CMA § 7(2). n231 Id. § 8(1). n232 This corresponds to about $ 6,606.00 in U.S. dollars. n233 CMA § 8(2). n234 This corresponds to about $ 13,211.00 in U.S. dollars. n235 CMA § 8(2).

Page 40 33 Ohio N.U.L. Rev. 525, *562

n236 This corresponds to about $ 66,064.00 in U.S. dollars. n237 CMA § 9(1). n238 Id. § 9(2). A legal presumption that the offender had knowledge will be made if the computer system automatically gave a warning of a greater punishment under the CMA for accessing it, or if a warning was posted near the computer, or the offender was warned in some other manner. Id. § 9(3). n239 Id. § 10(1). The location at which the attempt or the abetment occurs is not relevant. Id. § 10(2). n240 CMA § 11(1). n241 Id. § 11(2). n242 Id. § 11(3). n243 Id. § 12. n244 Id. n245 CMA § 12. n246 Id..§ 12A(1). This corresponds to about $ 1,982.00 in U.S. dollars. The Minister may promulgate regulations pertaining to the crimes which may be compounded. CMA § 12A(2). n247 Id. § 13(1). This court ordered restitution, if unpaid by the offender, is enforceable in civil court. Id. § 13(3). Furthermore, if the restitution paid to the harmed party under this section does not fully compensate her, she may file a civil suit to recover the additional damages. Id. § 13(2). n248 Essential services are defined as "(a) services directly related to communications infrastructure, banking and finance, public utilities, public transportation or public key infrastructure; and (b) emergency services such as police, civil defence or medical services." Id. § 15A(5). As emphasized, PKI is included in this definition. Accordingly, the computer information systems used by Certification Authorities are entitled to the protections afforded by the CMA in section 15A. n249 CMA §15A(1). The person or organization entrusted with this responsibility may be given the powers referenced in Criminal Procedure Code sections 125A and 125B. Id. §15A(2). n250 Id. § 15A(3)(b). n251 Id. § 15A(4).

Page 41 33 Ohio N.U.L. Rev. 525, *562

n252 Blythe, supra note 24. n253 For example, Hong Kong has a much longer list of exclusions in its E-commerce law. Paper documents are required to be used in the following instances: wills, codicils and other testamentary documents; anything to do with the creation, change or revocation of an express trust; a power of attorney; documents required to be stamped pursuant to the Stamp Duty Ordinance, 1986 ed. (Ch. 117); Government grants and leases; deeds, conveyances, judgments, written instruments, lis pendens and documents effecting a floating charge (§2) pursuant to the Land Registration Ordinance (Ch. 128); assignments, mortgages and legal charges under the Conveyancing and Property Ordinance, 1988 ed. (Ch. 219); oaths and affidavits; statutory declarations; judgments or orders of a court; warrants issued by a court or a magistrate; and negotiable instruments. Furthermore, you cannot use e-mail to file court documents in Hong Kong. The E-commerce law is not applicable to matters coming before the following courts, government agencies or government officials: the Court of Final Appeal; the Court of Appeal; the Court of First Instance; the District Court; the Mental Health Review Tribunal established pursuant to the Mental Health Ordinance, 1989 ed. (Ch. 136); the Lands Tribunal; a coroner appointed under section 3 of the Coroners Ordinance (Cap. 14); the Labour Tribunal; the Obscene Articles Tribunal established under the Control of Obscene and Indecent Articles Ordinance, 1987 ed. (Ch. 390); the Small Claims Tribunal; and a magistrate. Hong Kong Special Autonomous Region, Electronic Transactions Ordinance, Ord. No. 1 of 2000, Schedules 1 and 2. For a discussion of the Hong Kong exclusions, see Blythe, supra note 24. n254 There is evidence that the aversion to electronic wills is beginning to dissipate. In 2005, Tennessee became the first American jurisdiction to recognize the legal validity of a will that is executed with an electronic signature. See Chad Michael Ross, Comment, Probate-Taylor v. Holt-The Tennessee Court of Appeals Allows a Computer Generated Signature to Validate a Testamentary Will, 35 U. Mem. L. Rev. 603 (2005). n255 Electronic Transaction Ordinance, 2061 B.S. (2004 A.D.) §§ 60-71 (Kingdom of Nepal). The original version in Nepalese language is available at the website of the Nepal T e l e c o m m u n i c a t i o n s A u t h o r i t y , a t http://www.nta.gov.np/cyber law.html (last visited Apr. 16, 2007). An official English version was released by the Nepal Ministry of Law, Justice and Parliamentary Affairs and was published in the Nepal Gazette on Mar. 18, 2005; it is available at http://www.hlcit.gov.np/pdf/englishcyberlaw.pdf (last visited Apr. 16, 2007). n256 Electronic Exchanges and Electronic Commerce Law, 2000-83, Aug. 9, 2000. Art. 24-35 (Republic of Tunisia). See Blythe, supra note 28. n257 Korea is one of the few nations that may offer better consumer protections than Tunisia. Korea has enacted a separate statute specifically for E-commerce consumer protection entitled the E-Commerce Transactions Consumer Protection Act. See Act on the Consumer Protection in the Electronic Commerce Transactions (hereinafter "CPA"), in 13 Statutes of the Republic of Korea, 481 (Korean Legislative Research Institute 1999). The Korean Legislation Research Institute is an independent, non- profit organization funded by the government of the Republic of South Korea. The KLRI is responsible for translating all of the Korean federal statutes into English. For a thorough analysis of the CPA, see Blythe, supra note 22. Iran also provides good consumer protections, including a window of opportunity to withdraw from an E-transaction previously entered into; however, the window in Iran is only seven days, as opposed to Tunisia's ten days. See Blythe, supra notes 21 and 28.

Page 42 18 Transnat'l Law. 489, *

46 of 68 DOCUMENTS Copyright (c) 2005 University of the Pacific, McGeorge School of Law The Transnational Lawyer 2005 18 Transnat'l Law. 489 LENGTH: 13650 words Comment: Harmonizing Intellectual Property Law Between the United States and Singapore: The United States--Singapore Free Trade Agreement's Impact on Singapore's Intellectual Property Law NAME: Kenneth Chiu* BIO: * J.D., University of the Pacific, McGeorge School of Law, to be conferred May, 2006; B.A., History, University of California at Berkeley, August, 2002. SUMMARY: ... On May 6, 2003, the United States and Singapore signed The United States-Singapore Free Trade Agreement ("USSFTA") that entered into force on January 1, 2004. ... This comment focuses on the relationship between free trade and intellectual property in Singapore. ... Although the changes in intellectual property law help effectuate the overall intent of the USSFTA to benefit Singapore through increased foreign participation in Singapore's economy, Singapore must accept the burdens of intellectual property protection, including stifled creativity for Singapore inventors and decreased internal competition in the Singapore market. ... At the formation of the organized global economy, the free trade movement was skeptical of, and even hostile to, the notion of intellectual property protection, which was regarded as monopolistic and harmful to a free, competitive economy. ... " Despite Singapore's stance towards accepting free trade, critics have pointed out that Singapore does not have a large intellectual property creation-based industry, claiming that USSFTA is merely protecting foreign companies. ... One provision streamlines the trademark filing process by allowing applicants to use their own national patent and trademark offices for filing trademark applications. ... In addition, the USSFTA mandates both statutory and actual damages under Singaporean law for intellectual property right violations in civil cases. ... TEXT: [*489] I. Introduction On May 6, 2003, the United States and Singapore signed The United States-Singapore Free Trade Agreement ("USSFTA") that entered into force on January 1, 2004. n1 This agreement was the first of its kind between the United States and any Asian Pacific country. n2 Singapore became only the fifth nation to ratify a free [*490] trade agreement ("FTA") with the United States, after Jordan, Israel, Canada and Mexico, and before Morocco and Bahrain. n3 Originally, Singapore acted as a part of the Association of Southeast Asian Nations ("ASEAN"), who collectively aimed to negotiate trade agreements between Japan, China, and South Korea. n4 However, because ASEAN's ten members were in different stages of development, negotiations were complicated. n5 Thus, in response to the problems

Page 43 18 Transnat'l Law. 489, *490

and delays within ASEAN, Singapore shifted to an aggressive strategy of initiating individual free trade agreements with its trade partners. n6 Although angering its fellow ASEAN members, n7 the strategy proved to be successful. n8 Subsequently, Singapore signed FTAs with the United States, Jordan, Japan, Australia, New Zealand and the European Free Trade Association ("EFTA"). n9 Currently, the global economic trend is shifting towards the rapid liberalization of trade. n10 The United States and Singapore, both with large global economic stakes, are no exception. n11 To deal with the pressing need to negotiate [*491] with other countries for free trade, in the summer of 2002, the U.S. Congress granted President George W. Bush trade promotion authority. n12 In response, "the Bush administration launched the Enterprise for ASEAN Initiative n13 to lay the groundwork for bilateral free-trade arrangements with ASEAN countries." n14 Also, the administration began work on opening negotiations with individual countries, leading to free trade negotiations with Chile and Singapore. n15 While the United States views free trade favorably because it fosters overseas trade, n16 critics voice concern over its effect of outsourcing jobs from the United States to foreign countries. n17 Critics also note that the United States has not dealt with the problems arising from the failure to properly enforce free trade provisions. n18 Thus, the United States must consider the quality and content of its negotiations and the effects of implementing free trade, not simply the positive financial effects of free trade. n19 [*492] Singapore has made rapid progress in its free trade negotiations with other countries. n20 Still, the success of these bilateral deals comes only in the face of the failure of multilateral forums such as ASEAN, the Asia-Pacific Economic Cooperation ("APEC") and the World Trade Organization ("WTO"), to open doors to free trade. n21 This comment focuses on the relationship between free trade and intellectual property in Singapore. More specifically, it will discuss the changes to that relationship due to the USSFTA. n22 The USSFTA is particularly important for two reasons. First, Singapore is an important player in the world market and changes to its intellectual property law will greatly affect its economy, which in turn, impacts Asia's economy. n23 Second, as the first free trade agreement between the United States and an Asian Pacific country, the agreement may serve as an example which the United States may duplicate with other countries in the region. n24 Part II provides a brief background to the USSFTA, including political and economic concerns in both the United States and Singapore. n25 Part III focuses on the specific USSFTA provisions related to intellectual property and related business practices. n26 It also highlights Singapore's judicial and legislative challenges in adapting to the law, and discusses specific issues that may arise due to revising the law. n27 Finally, Part IV concludes that the USSFTA is a boon to both the United States and Singapore despite the burdens of heightened intellectual property protection on Singapore. n28 Although the changes in intellectual property law help effectuate the overall intent of the USSFTA to benefit Singapore through increased foreign participation in Singapore's economy, n29 Singapore must accept the burdens of intellectual property protection, [*493] including stifled creativity for Singapore inventors and decreased internal competition in the Singapore market. n30 II. An Instrument of Political and Economical Concerns A. The Relationship Between the United States and Singapore Although the USSFTA is a bilateral agreement between Singapore and the United States, the USSFTA affects many more than those two countries. n31 As the first free trade agreement in Asia, the United States intends to use it as a template for negotiations with other Asian countries, n32 as well as with other countries around the world. n33 Singapore is the second largest Asian investor in the United States, which makes it a natural partner for a free trade agreement. n34 Further, because Singapore is among the strongest economies in Asia, n35 it has great influence over the region's economy, and the USSFTA will impact all of its trading partners. n36 Although the United States has clearly outlined a strategy towards liberalizing free trade, others have suggested that the U.S. agenda includes more than free trade. n37 More than one author has suggested that the United States [*494] responded more kindly to Singapore's request for a free trade agreement because Singapore supported the United States in the war on terrorism and the war in Iraq. n38 Indeed, U.S. government officials have confirmed that the treaty was in

Page 44 18 Transnat'l Law. 489, *494

part to reward Singapore for its support. n39 Franklin L. Lavin, the U.S. ambassador to Singapore, said the USSFTA was made in accord with the U.S. administration's policy of "working with friends." n40 Although the Agreement is not clearly separate from the U.S. political agenda, it has numerous beneficial effects for both the U.S. and Singapore markets. n41 Therefore, it should not be viewed simply as a political favor. n42 Bilateral trade between the United States and Singapore totaled nearly $ 40 billion in 2001. n43 The United States was Singapore's second largest trading partner, while Singapore was the eleventh-largest U.S. trading partner. n44 Furthermore, the Asian region houses five of the top ten U.S. trading partners. n45 Thus, the primary purpose behind entering into the Agreement for both Singapore and the United States was economic. n46 Aside from the issues relating to Singapore's wartime status, another sensitive political issue in the free trade agreement negotiations concerned control over foreign currency flows. n47 In light of the Asian currency crisis of 1997-1998, Singapore felt that it needed to control capital flows to handle possible future economic problems. n48 Singapore was particularly sensitive to this issue due to the U.S. Congress' failure to react quickly to provide aid to the Asian region during the financial crisis. n49 In fact, this issue was the final hurdle in [*495] the USSFTA negotiations. n50 In the USSFTA, both countries reached a compromise that allows Singapore to impose restrictions on foreign capital flows in such a crisis. n51 On the larger global and political scale, the USSFTA may help to mend these negative sentiments towards the United States in Asia. n52 Independent of its specific provisions, the USSFTA is important because it establishes a foothold for the United States in Asia. n53 Nao Matsukata n54 characterized the most important impact of the Agreement is that it provides a "direct link to Southeast Asia, where we don't have the strongest economic ties." n55 Even after the USSFTA's ratification, Professor Tommy Koh urges the United States to increase its work in the area because the United States is losing the competition for influence in Southeast Asia. n56 Thus, the USSFTA is clearly beneficial to the United States as it will help catalyze negotiations in the Southeast Asian region by showing an ongoing commitment to the area. n57 In addition, President Bush summarized the USSFTA's importance at the signing ceremony, where he stated, "This free-trade agreement will increase access to Singapore's dynamic markets for American exporters, services providers and investors. Singapore is a nation that is small in size but large in influence. With this agreement, Singapore becomes an even more valued economic partner of the United States." n58 Thus, the positive political ramifications of the agreement were an important part of the negotiations and played a major role along with the more prevalent economic benefits contained in the Agreement. [*496] B. Trade Regulations and Economic Effects The USSFTA's direct economic effects deserve examination as an instrument of economic progress. The USSFTA removes tariffs on exports from the United States to Singapore. n59 In addition, tariffs on imports from Singapore to United States will largely disappear, with a small number being phased out within eight years. n60 Singapore exporters expect to save over $ 200 million annually due to the removal of these tariffs. n61 Along with providing more freedom for importers and exporters, n62 the Agreement also expands rights for investors and financial-based companies. n63 Specifically, the USSFTA allows U.S. law firms, banks and other financial service companies to expand their presence in Singapore. n64 U.S. investors in Singapore now enjoy the same legal protection given to Singapore investors. n65 Singapore's Home Affairs Minister, Wong Kan Seng, said, "While the benefits of FTAs are not always easy to quantify, trade figures have been encouraging." n66 In their first annual review of the FTA, Singapore's Trade and Industry Ministry and the U.S. Embassy noted that trade in goods and services between Singapore and the United States rose more than ten percent over the previous year, to about $ 40 billion, as a result of the FTA. n67 Aside from these direct economic effects focusing on businesses, the Agreement also

Page 45 18 Transnat'l Law. 489, *496

provides protections for intellectual property, workers' rights, and the environment, n68 which in turn, have indirect economic effects. n69 [*497] The USSFTA not only benefits Singapore, but is also expected to generate positive spillover effects to Indonesia. n70 Under the USSFTA integrated sourcing initiative, companies in Singapore are allowed to relocate production to Indonesia and still enjoy preferential tariffs from the United States if the products are shipped to Singapore for value-added operations, as part of the manufacturing process. n71 This could be a potential loophole that allows items made in other Southeast Asian nations, with whom the United States has not negotiated agreements, to benefit from the lowered Singapore tariffs. n72 Maintaining tariffs is an important political issue in the United States. n73 For example, the tsunami disaster tariffs have not been significantly altered, concerning the countries whose economies were severely harmed by the disaster. n74 However, allowing these countries to benefit from reduced tariffs with the United States without a formal agreement is of equal concern because those countries are not subject to similar regulations imposed by the USSFTA. Although, Singapore is unlikely to ignore the intent of the Agreement and allow such violations to occur, thus quieting the concern. n75 [*498] III. Intellectual Property Aspects A. Trend Towards Increased Protection 1. Historical Struggle Between Protection and Free Trade At the formation of the organized global economy, the free trade movement was skeptical of, and even hostile to, the notion of intellectual property protection, which was regarded as monopolistic and harmful to a free, competitive economy. n76 As an example of the negative attitude taken towards intellectual property, during the late nineteenth century, many European countries reduced patent duration because of public opinion. n77 Today, quite the opposite is the case, as the opinion of intellectual property protection has taken a drastic turn, at least among the world's largest economies. n78 A membership prerequisite to the WTO is agreeing to the Trade-Related Aspects of Intellectual Property Rights ("TRIPS"), n79 a treaty that strengthens and extends protection over intellectual property rights. n80 In general, industrialized nations favor strengthening intellectual property rights because the protections assure businesses and owners of intellectual property rights that they will be free from piracy and theft, thereby raising investor confidence. n81 Thus, the trend of intellectual property rights for industrialized nations is towards increasing protection. n82 However, developing nations prefer to avoid increasing protection. n83 [*499] If intellectual property rights are too broad, creativity and innovation suffer. n84 Thus, a balance must be properly struck to allow developing nations to handle the boost and growth in creativity and innovation while protecting the rights of existing intellectual property right owners. n85 2. Singapore's Relationship with Intellectual Property Singapore has only recently adapted to a knowledge-based economy, n86 and does not have a large amount of intellectual property owners within its borders. n87 Thus, Singapore does not appear to have an interest in increasing intellectual property rights. However, adopting foreign standards as a part of free trade agreements is part of Singapore's strategy to benefit its overall economic position and open free trade. n88 For example, the Heritage Foundation recognized Singapore's dedication to free trade by ranking Singapore second in the world "Index of Economic Freedom." n89 Despite Singapore's stance towards accepting free trade, critics have pointed out that Singapore does not have a large intellectual property creation-based industry, claiming that USSFTA is merely [*500] protecting foreign companies. n90 Although it is true that the intellectual property provisions will protect far more foreign interests than local interests, the economic gain to the local economy from these protections will be evident through increased foreign investment. n91

Page 46 18 Transnat'l Law. 489, *500

Thus, the United States requested that Singapore harmonize its intellectual property laws with those of the United States. n92 Singapore complied with all of the provisions in the Agreement, including implementing amendments to existing laws on July 1, 2004 and January 1, 2005. n93 In Chapter 16 of the USSFTA each country agreed to ratify several treaties guaranteeing further protection of intellectual property, covering trademarks, patents, copyrights, and the enforcement of those rights. n94 In addition, provisions were included to deal with anticompetitive business practices. n95 B. The Effect on Intellectual Property Rights 1. Trademarks Pursuant to the USSFTA, the United States and Singapore agreed to change Singapore's definition of a trademark to match U.S. law. n96 The amended Trade Mark Act went into effect in accordance with the Agreement on July 1, 2004. n97 The definition of trademark no longer contains the requirement that the trademark must be visually perceptible. n98 Trademark applicants may now register for nonconventional marks such as sound and scent marks. n99 However, a non-conventional mark must still satisfy the same registration criteria as more [*501] traditional trademarks. n100 In particular, the mark must be a "sign capable of being represented graphically." n101 However, it is unlikely that nonvisual signs, other than sound marks, n102 will be registered if the Intellectual Property Office of Singapore (IPOS) and the Singapore courts follow the same approach taken in Europe. n103 These steps will help harmonize Singapore trademark laws with global trademark laws, reduce the confusion that foreign companies face when entering into Singapore with distinguished names and identifications, and protect existing local companies' marks. Thus, these changes potentially please both foreign companies and local companies n104 by granting more rights to their identifying marks. The USSFTA also implements various procedural changes. n105 Many of these changes increase the efficiency of trademark registration. n106 One provision streamlines the trademark filing process by allowing applicants to use their own national patent and trademark offices for filing trademark applications. n107 Despite the positive changes to the registration procedures, Singapore scholars demand that Singapore implement more changes to the registration system and give procedural issues more attention. n108 Thus, procedural changes implemented by the agreement are a good start, but Singapore must still continue to improve registration procedures internally and with other nations. n109 The USSFTA applies the property law principle of "first-in-time, first-in-right" to trademarks and geographical indicators (place-names) applied to products. n110 The first to file for a trademark is granted the first right to use that name, phrase or geographical place name. n111 Despite the historical acceptance of [*502] this property law principle, the concept may not properly apply to non-Western legal systems. n112 Although Singapore's system of law is based heavily on English law precedents along with its own common law precedents, n113 scholars, including the Singapore Chief Justice, continue to argue for the belief that Western models are not entirely appropriate for Singapore. n114 Singapore must remain balanced so that the stronger trademark provisions are not abused by trademark rights owners. n115 By increasing the protection for rights holders, the law necessarily lessens the rights of users, who are restricted from employing trademarked symbols or names in any commercial context. n116 With the higher civil damages for infringement, n117 the revised laws create a new financial motivation for owners seeking protection of their rights. 2. Copyrights The USSFTA extends protection for copyrighted works and phonograms, consistent with U.S. standards and international trends. n118 Although the overall value of extended copyright duration is debatable, n119 the uniformity will help eliminate confusion for foreign artists who will have the same duration of their copyright in Singapore as in their original country. n120

Page 47 18 Transnat'l Law. 489, *502

A hotly debated issue in copyright law is copyright protection on the Internet. n121 In 1998, the United States passed the Digital Millennium Copyright [*503] Act ("DCMA"), n122 which resolved the issue of Internet service provider liability for transferring of copyrighted material. n123 The USSFTA is the first international trade agreement to implement anticircumvention provisions similar to those of the DMCA. n124 The DMCA prohibits the circumvention of technological measures that effectively control access to a copyrighted work, such as using programs to bypass encryption software on an MP3 song. n125 These strong anticircumvention provisions are designed to prevent piracy and unauthorized distribution over the Internet. n126 Lawyers debate whether this protection is too strong, as it prevents people from using portions of a file in accord with fair use principles. n127 Unsurprisingly, the record industry praises these efforts to strengthen intellectual property rights. n128 Although Singapore's attitude towards these changes is uncertain, it must adapt to these laws. Several more provisions continue to strengthen and modernize copyright protections. n129 The Agreement ensures that only authors, composers, and other copyright owners have the right to make their works available online. n130 Copyright owners maintain rights to temporary copies of their works on computers, which is important to protect music, videos, software, and text from widespread unauthorized sharing via the Internet. n131 The USSFTA also provides for some long-needed changes to prevent copyright piracy in the digital age. n132 One change adds specific protection for encrypted program-carrying satellite signals. n133 The protection extends to the signals themselves as well as the programming. Thus, these changes will prevent [*504] piracy of satellite television programming, which was formerly unregulated by Singapore laws. n134 Another change to counteract high-tech piracy concerns is a law prohibiting the production of optical discs (CDs, DVDs, or software) without a source identification code, n135 unless authorized by the copyright holder in writing. n136 Critics fear that the source identification code requirement may infringe upon individual civil liberties. n137 However, in reviewing the change, the level of intrusion by source identification codes is analogous to serial numbers on American dollar bills that prevent counterfeiting. n138 These technological protections garnered strong support in the United States and are beneficial to the overall technological environment. n139 3. Patents The differences in patent laws across countries are the most dramatic, n140 and thus the harmonization of patent laws between the United States and Singapore is a significant step to finding common ground. The USSFTA harmonized procedural matters concerning patent applications and patent duration with the United States. n141 Most significantly among procedural changes, the patent term can be extended to compensate for up front administrative or regulatory delays in granting the original patent, n142 consistent with U.S. practice. n143 Also, the limits for [*505] revoking a patent are the same grounds required to originally refuse a patent. n144 Consequently, these standards protect patents from arbitrary revocation. n145 In another provision of the agreement, the USSFTA specifies protections for patents covering biotech plants and animals. n146 These protections restate existing patent practices n147 and also adopt the language of the TRIPS agreement. n148 Unlike the TRIPS agreement, however, the USSFTA does not provide the government with flexibility to refuse a patent based on public health and environmental concerns. n149 While the U.S. Labor Advisory Committee ("LAC") rejected this formation of the protections, n150 the U.S. Trade Representative office responded by noting that USSFTA does not prevent either the United States or Singapore from keeping products produced from a patent, such as new plant or animal forms that potentially may harm the environment, from entering the market. n151 Thus, even if the United States or Singapore granted the patent to be consistent with the Agreement, market restrictions will prevent the harm with which the LAC is concerned. A specific area of concern for both parties was pharmaceutical products and agricultural chemicals. n152 The USSFTA reflects this concern by defining particular rights for each of these industries. n153 For example, it includes protection against imports of pharmaceutical products without the patent holder's consent by allowing breach of contract

Page 48 18 Transnat'l Law. 489, *505

lawsuits. n154 The LAC claims that these rules will prevent Singapore from making life-saving drugs available to combat health crises, n155 and are thus incompatible with current WTO agreements. n156 Specifically, [*506] the LAC contends that the USSFTA contains rules that erode flexibility by offering protection that is beyond the purpose of the TRIPS agreement. n157 The U.S. Trade Representative office responded to these objections by noting that each government will remain free to override drug patents to address any emergency situation, including a health crisis. n158 The tenuous relationship between TRIPS and public health is longstanding, dating back to the Doha WTO Ministerial Declaration of 2001. n159 Realistically, Singapore would not refrain from responding to a health crisis when it has the means to prevent or treat such a crisis, and, thus, the U.S. Trade Representative office's response is more aligned with the intent of the U.S. and Singapore governments. n160 Further, the LAC criticizes the rule governing access to test data, arguing that the rule favors protecting pharmaceutical companies over the public's health. n161 Test data and trade secrets submitted to a government for the purpose of product approval are protected against disclosure for a period of five years for pharmaceuticals and ten years for agricultural chemicals. n162 The LAC advises that denying the generic drug producers access to test data could unnecessarily delay affordable access to quality medicines and make their production more costly. n163 Further, the LAC explains that this restriction could be used by pharmaceutical companies to block the production of generic medicines during a public health crisis. n164 The U.S. Trade Representative office responded by explaining that the disclosure rules are based upon longstanding practice by the U.S. Food and Drug Administration and the Environmental Protection Agency, with regard to test data that predate implementation of the TRIPS Agreement, and that these practices do not directly impede any response to a health crisis. n165 Considering Singapore's open and friendly policy towards businesses, n166 it is doubtful that Singapore would interpret the rule in a way that would produce confusing results, such as the one suggested by the LAC. n167 According to a [*507] statement released by the U.S. Department of Commerce with regard to the general policy of Singapore:

The Singapore Government promotes its regulatory environment as business-friendly, with transparent and clear regulations. Tax, labor, banking and finance, industrial health and safety, arbitration, wage and training rules and regulations are formulated and reviewed with the interests of foreign investors and local enterprises in mind, and the Government is usually open to comments from interested businesses. n168 With the Singapore government open to the needs of its people, the Agreement will probably not prevent Singapore from responding to such a crisis as imagined by the LAC. n169 To further safeguard intellectual property rights, the USSFTA includes promises that government marketing-approval agencies will not grant approval to patent-violating products. n170 These agencies provide marketing approval and sanitary permits for medicines. n171 This regulation goes further than any protection provided in the TRIPS agreement to protect U.S. pharmaceutical interests. n172 4. Anticompetition and Monopolies Even though competition law is separate from intellectual property law, there are still inherent conflicts in the relationship between the two. n173 Chapter 12 of the USSFTA governs anticompetitive practices and monopolies in Singapore. n174 Under the terms of the Agreement, Singapore was to enact legislation proscribing anticompetitive business conduct by January 2005. n175 Although the intent and purpose of the Agreement was to eliminate these practices, Singapore retained a right to designate monopolies under its discretion. n176 [*508] Despite the passage of legislation prohibiting anticompetition and monopolies, issues concerning Singapore's use of the designation provision worry foreign industries. n177 Singapore depends heavily upon state-owned businesses, as evidenced by the fact that Singapore received 27.21 percent of its total revenues from

Page 49 18 Transnat'l Law. 489, *508

state-owned enterprises and government-owned property in 2002. n178 In a specific example of concern, foreign telecommunication companies recently permitted to join the market via the USSFTA alleged that the local telecommunications company, Singapore Telecommunications, utilized anticompetitive pricing tactics in charging for the use of its circuits. n179 Singapore Telecommunications is seventy-five percent government owned, but has not been designated as a monopoly. n180 Therefore, Singapore's conflict of interest could undermine the Agreement's purpose of eliminating anticompetitive practices if Singapore designates a company as a monopoly to hinder businesses which are competing against government owned businesses, or by failing to designate government owned businesses. n181 Although Singapore's extensive government involvement in private businesses is a concern, specifically when it comes to anticompetitive practices, it is also a boon because Singapore maintains a good example to local businesses in order to secure proper enforcement of its anti-competition provisions, as well as other provisions regarding intellectual property rights. 5. Enforcement of Intellectual Property Rights Although the Agreement confers increased intellectual property rights to their owners, without proper enforcement these rights have no value and thus will have no effect. n182 Piracy and intellectual property theft is major concern in Asia, n183 and, thus, is one of the primary focuses of the USSFTA. The U.S. Trade Representative designated Singapore as a high priority concern on the "watch list" for piracy and intellectual property theft. n184 Although Singapore is not known [*509] for creating intellectual property, it has now agreed to strictly protect intellectual property rights. n185 Realistically, a nation with little intellectual property development has little incentive to protect or enforce intellectual property rights. n186 For example, an industrializing Korea between 1960-1970 had little intellectual property protection and enforcement, which resulted in a more active market that encouraged competition and kept Korean businesses free to use intellectual property from other countries. n187 In the following two decades, Korea established stronger intellectual property rights and enforcement mechanisms because its engineers, scientists, and inventors created and owned more intellectual property. n188 Although Singapore is not on the same level as Korea in terms of intellectual property development, n189 similar protections will help create more opportunities for foreign exporters, thus benefiting Singapore's economy. n190 Another incentive for Singapore to deter piracy is the tremendous negative impact on Singapore's tax revenues caused by piracy. n191 Singapore lost nearly $ 40 million in tax revenues due to piracy in 1999. n192 Thus, Singapore is expected to enforce the laws scrupulously to protect its tax revenues for its internal benefit as well as to enhance its reputation to foreign investors and exporters. In response to criticisms from software and entertainment companies, Singapore strengthened its statutes protecting intellectual property in those areas. n193 Singapore also reaffirmed its powers to seize, forfeit, and destroy [*510] counterfeit and pirated goods produced within the country or at its borders. n194 Under the Agreement, Singapore introduced jail terms and stiff fines for people who violate software and Internet copyright laws. n195 In addition, the USSFTA mandates both statutory and actual damages under Singaporean law for intellectual property right violations in civil cases. n196 This serves as a deterrent to piracy n197 and provides that monetary damages can be awarded even if actual economic harm cannot be determined. n198 This harsh stance against piracy and intellectual property theft is difficult to criticize because the previous penalties in Singapore had very little deterrent effect. n199 Further, Singapore responds that these harsher penalties will "help to uphold legitimate businesses and that will directly benefit our economy." n200 Thus, it appears that the change will benefit Singapore, the United States, and other countries doing trade in Singapore by deterring or punishing those guilty of piracy. C. Judicial Challenges of Transition In responding to the legislation proposed and created under the decree of the USSFTA, the Singapore judiciary will have to overhaul its current line of precedents. Despite careful drafting, some intellectual property law problems will inevitably end up in the Singapore court system for clarification. n201

Page 50 18 Transnat'l Law. 489, *510

Like the U.S. legal system, the Singapore legal system is a common law system based on the English tradition. n202 The organization of the Singapore court [*511] system is very similar the U.S. court system. The judiciary is organized into a three-tiered system: the Courts of Appeal at the highest level, the High Court at the intermediate level of appeal, and subordinate courts at the trial level. n203 Thus, the court has the ability to rely on many English precedents in the arena of these new intellectual property changes. n204 Additionally, Singapore courts may apply U.S. law in copyright cases according to the Berne Convention for the Protection of Literary and Artistic Works. n205 In a recent case, McDonalds Corp. v. Future Enterprises Pte Ltd., n206 the High Court clarified that it would not retroactively apply the new laws. Unfortunately, the case was decided in the midst of the amendment to the law, so it is unclear whether the Singapore judiciary will continue to rely purely on precedent when hearing arguments that base the claim on new aspects of the law. n207 The lack of certainty is tempered by the Singapore judiciary's excellent track record for overall fairness. n208 IV. Conclusion By agreeing to adopt these intellectual property protections, Singapore has established itself as a haven in the Asian region for all intellectual property owners to attract future business. n209 Singapore adopts a large amount of U.S. intellectual property law via the USSFTA, n210 most of it to satisfy U.S. concerns. n211 [*512] Although the overall effect of the USSFTA promotes trade in Singapore, the majority of intellectual property changes serve the United States and other foreign nations while hurting Singapore-based companies and Singapore citizens economically. n212 But, as seen in McDonald's Corp., the Singapore court is empowered to interpret the laws and can protect a Singapore company's intellectual property rights against the attack of a foreign company. n213 However, this does not mean that Singapore's court system and legislature will protect only local businesses. McDonald's shows a careful application of the law, rather than an outright preference for local businesses. Furthermore, Singapore will continue to maintain integrity and have an open attitude towards foreign business, as it has in the past. n214 Even though the intellectual property law changes primarily serve countries other than Singapore, strong protection will make Singapore more attractive to foreign investors, n215 fostering economic growth. Further, strong intellectual property protections will encourage the kind of domestic economic policies in the Asian region that enable the growth of high value, high wage industries built on the intellectual property assets of the region's people. n216 Thus, Singapore will attract foreign companies looking to expand, including those companies already doing business in Asia. As the first free trade agreement between the United States and Singapore, the USSFTA signifies that the United States is beginning to understand the importance of Asia. n217 In particular, the United States and Singapore trade link will benefit greatly. n218 Additionally, the United States will strengthen its political base in Southeast Asia. n219 Extending U.S. trade into Asia is a necessary step towards maintaining future economic growth for the United States. n220 Still, the [*513] United States must continue to build upon the USSFTA and demonstrate that Asia is a priority. n221 Further, in negotiations the United States must tailor intellectual property protections to each country rather than creating a uniform level of protection among all countries so as not to disturb the local economies of those countries. n222 Otherwise, those intellectual property changes will stifle creativity, create confusion, and hinder local businesses' ability to compete with foreign businesses, n223 as the USSFTA could have done if not for Singapore's ability to absorb the negative impacts of these intellectual property changes in exchange for future economic growth. Thus, while the USSFTA appears to be a workable solution to an industrialized country such as Singapore, applying those same intellectual property provisions could be harmful to other countries' economies. n224

Legal Topics: For related research and practice materials, see the following legal topics: International LawTreaty FormationNegotiationsInternational Trade LawTrade AgreementsIntellectual Property ProvisionsInternational Trade LawTrade AgreementsLabor Provisions

Page 51 18 Transnat'l Law. 489, *513

FOOTNOTES:

n1. United States - Singapore Free Trade Agreement, May 6, 2003, U.S.-Sing, available at http://www.mti.gov.sg/public/PDF/CMT/FTA_USSFTA_Agreement_Final.pdf. [hereinafter USSFTA].

n2. Press Release, Office of the Press Secretary, Transcript from President Signs U.S.-Singapore Free Trade Agreement (May 6, 2003), available at http://www.whitehouse.gov/news/releases/2003/05/20030506-11.html (last visited Jan. 16, 2005) [hereinafter Transcript] (detailing a statement by President George W. Bush).

n3. See generally U.S. Trade Representative, USTR - Bilateral Trade Agreements, at http://www.ustr.gov/Trade_Agreements/Bilateral/Section_Index.html (last visited Feb. 25, 2005) (listing the bilateral free trade agreements between the United States and other countries).

n4. ASEAN includes Brunei Darussalam, Cambodia, Indonesia, Laos, Malaysia, Myanmar, Philippines, Singapore, Thailand, and Vietnam. George O. White, III, Comment, From Snowplows to Siopao - Trying to Compete in a Global Marketplace: The ASEAN Free Trade Area, 8 Tulsa j. Comp. & Int'l L. 177, 180-81 (2000).

n5. See Hamisah Hamid, Singapore FTAs Spurred by Need to Strengthen Links, Business Times, Aug. 14 2002, available at LEXIS, News Library (noting specifically that Singapore and Malaysia have stronger service sectors than the other ASEAN countries); see also White, supra note 4 at 185-188 (explaining that original members, Indonesia, Malaysia, the Philippines, Singapore, and Thailand are substantially ahead economically when comparing Gross Domestic Product and Purchasing Power Parity).

n6. See Goh Expects to Start Free Trade Talks Early Next Year, JIJI Press Ticker Service, Dec. 9, 1999, available at LEXIS, News Library (reporting that Singapore Prime Minister Goh Chok Tong expressed that Singapore would move on free trade agreements faster than other members of the WTO "to establish a network of free trade agreements to advance the cause of multilateral free trade").

n7. See, e.g., FTAs Must Not Undermine Asean's Interests, Says Rafidah, Malaysia Economic News, June 9, 2001, available at LEXIS, News Library (explaining Malaysia's concerns that free trade agreements offer a "backdoor" to enter the regional market, specifically criticizing Singapore).

Page 52 18 Transnat'l Law. 489, *513

n8. See Amrin Amin et al., South East Asia and International Law, 7 Sing. J. Int'l & Comp. L. 284, 299-302 (2003) (noting that Singapore successfully entered and completed free trade negotiations with many countries).

n9. See Singapore Free Trade Agreements, at http://app.fta.gov.sg/asp/fta/ourfta.asp (last visited Mar. 17, 2005) (listing the concluded and on-going free trade negotiations between Singapore and other countries). The EFTA consists of Switzerland, Iceland, Liechtenstein and Norway. See Singapore Free Trade Agreements European Free Trade Association, at http://app.fta.gov.sg/asp/fta/esfta.asp (last visited April 21, 2005).

n10. See U.S. State Dept., Economic Growth Should Open Door for G8 Reforms, U.S. Says, at http://usinfo.state.gov/xarchives/display.html?p=washfile-english&y=2004&m=June&x=20040608161233ebyessedo0.5631525& (last visited Feb. 21, 2005) (discussing the need for trade promotion authority vested in the executive); see also Thomas J. Manley & Luis Lauredo, International Labor Standards in Free Trade Agreements of the Americas, 18 Emory Int'l L. Rev. 85, 87 (2004) (observing that "the liberalization of international trade rules is certainly among the most powerful trends reshaping the post-Cold War world").

n11. See Transcript, supra note 2 (reporting that President Bush noted that Singapore has built a "strong and vibrant economy"). Singapore ranks as the second freest economy in the world. As for the United States, the International Monetary fund notes that "Global growth remains unduly dependent on the United States and China." See International Monetary Fund, World Economic Outlook 9, at http://www.imf.org/external/pubs/ft/weo/2005/01/pdf/chapter1.pdf (last visited April 19, 2005).

n12. Bipartisan Trade Promotion Authority Act of 2002, 19 U.S.C. 3801 (2004). Congress previously granted this power to the President from 1974 to 1994. Id. See Laura L. Wright, Trade Promotion Authority: Fast Track for the Twenty-First Century?, 12 Wm. & Mary Bill of Rts. J. 979, 979-81 (2004) (explaining that trade promotion authority powers were from what was previously known as "fast track authority," although the trade promotion authority offers the U.S. Congress stronger interference); see also Free Trade Deals: Is the United States Losing Ground as Its Trading Partners Move Ahead?: Hearing Before the Subcomm. of Trade of the House Comm. on Ways and Means, 107th Cong. (2001) (statement of Thomas J. Donohue, President And Chief Executive Officer, U.S. Chamber Of Commerce) (expressing that trade promotion authority is necessary to expand international trade and maintain the United States' position as a world leader).

n13. See Naotaka Matsukata, Letters to the Editor: Robust U.S. Record on Asia Trade Links, Financial Times, Dec. 15, 2004, at 14, available at 2004 WL 100699208 (noting the strength of the U.S. initiative for free trade links towards Singapore and other Asian countries).

Page 53 18 Transnat'l Law. 489, *513

n14. See Bush, Goh Sign U.S.-Singapore Free Trade Pact, Asian Economic News, May 13, 2003, available at 2003 WL 8841779 (explaining the drive of the Bush administration to finish the agreement, which originated at the end of the Clinton administration on November 16, 2000) [hereinafter Pact].

n15. See Transcript, supra note 2 (noting President Bush's statement, "From the first days of this administration, we have been working to extend the benefits of trade to every region of the world.").

n16. See Anup Shah, Criticisms of Current Forms of Free Trade, at http://www.globalissues.org/TradeRelated/FreeTrade/Criticisms.asp (last updated May 6, 2004) (discussing numerous and growing criticisms of free trade). Some of the most apparent criticisms are an increased "unaccountable" power by larger countries over smaller countries, environmental degradation, decrease in worker's rights, and concerns on cultural impact. Id.

n17. See Charles Schumer & Paul Craig Roberts, Second Thoughts on Free Trade, N.Y. Times, Jan. 6, 2004, at A23 (questioning the underlying policies and effects of free trade).

n18. See Excerpts from a Dispatch Interview with Sen. John Kerry, Columbus Dispatch, Sept. 26, 2004, at 17A (explaining that nations are rarely penalized for failing to enforce critical pieces of free trade agreements).

n19. See Implementation of U.S. Bilateral Free Trade Agreements with Chile and Singapore: Hearing Before the Subcomm. on Trade of the House Comm. on Ways and Means, 108th Cong. (2003) (statement of Gawain Kripke, Senior Policy Advisor, Oxfam America) (arguing against copying and applying provisions of a free trade agreement for efficiency purposes to ensure the economic viability of any proposed terms) [hereinafter Kripke].

n20. See Amin, supra note 8, at 299-302 (discussing Singapore's shift in strategy towards bilateral agreements).

n21. See id. at 299 (noting the problems within ASEAN to finalize agreements due to the individual countries' economic and cultural differences).

Page 54 18 Transnat'l Law. 489, *513

n22. See generally infra text accompanying notes 30-41 (characterizing the USSFTA's primary purpose as opening up trade between the United States and Singapore, supported by many influential changes to intellectual property which reflect a concern for trade rather than a concern for intellectual property rights themselves).

n23. See generally infra text accompanying notes 35-41 (describing Singapore's role in the world economy).

n24. See Kripke, supra note 19 (discussing the United States' approach towards free trade negotiations).

n25. See infra Part II (discussing political influences surrounding the agreement).

n26. See infra Part III (examining the changes to all aspects of intellectual property laws in Singapore).

n27. See infra Part IV (describing the challenges that the Singapore judiciary may face in applying the new laws).

n28. See Senator Max Baucus, Speech of Sen. Max Baucus at the First Annual Asia Forum "Toward a Strong Asia Trade Policy", U.S. Fed. News, Sept. 21, 2004, available at LEXIS, News Library (urging the United States to put more resources and focus into negotiations with Asia).

n29. See Intellectual Asset Management, infra note 189 (describing the long term benefits of accepting strengthened intellectual property protection via treaties, including the ability to accept increased exports, imports, and attractiveness for industries built on intangible assets).

n30. See Michele Boldrin & David K. Levine, Perfectly Competitive Innovation, 4 (2003), available at http://levine.sscnet.ucla.edu/papers/pci23.pdf (last visited Mar. 10, 2005) (explaining that intellectual property rights serve only to reinforce monopoly control, with its attendant damages of inefficiently high prices, low quantities, and stifled future innovation).

Page 55 18 Transnat'l Law. 489, *513

n31. See, e.g., Amin, supra note 8, at 298-299 (describing the impact on the ASEAN states).

n32. See David A. Gantz, The Evolution of FTA Investment Provisions: From NAFTA to the United States - Chile Free Trade Agreement, 19 Am. U. Int'l L. Rev. 679, 680 (2004) (describing how the Singapore and Chile free trade agreements used NAFTA as a model); see also Kripke, supra note 19 (noting that the United States may consider a "template" approach for other countries in its future free trade agreements). Sen. Kripke admonishes that this approach can be harmful to many countries because it may not properly account for the nation's current state of development. Id.

n33. See Yeo Si-Dong, Government Must Muster Public Support for FTAs, Chosun ILBO, Dec. 1, 2004, available at 2004 WL 56748273 (arguing that free trade agreements are becoming necessary for global trade). "Many countries are now competing with each other to sign FTAs. Over 150 have now taken global effect and over 50 percent of world trade is now conducted through this framework." Id.

n34. Sherrillyn S. Lim, Comment, The U.S.-Singapore Free Trade Agreement: Fostering Confidence and Commitment in Asia, 34 Cal. W. Int'l L.J. 301, 311 (2004).

n35. See generally John Burton, Singapore Reports Biggest Growth in 8 Years, Financial Times, July 13, 2004, available at LEXIS, News Library (reporting that Singapore's economy experienced a large increase in growth in the first half of 2004).

n36. See Anna Teo, Will S'pore's Trade Markets Change in "05?, Business Times, Feb. 14, 2005, available at 2005 WL 64666013 (reporting that total trade grew 22.5 percent in 2004 to exceed $ 580 billion, crossing the $ 500 billion mark for the first time as the global economic climate improved).

n37. See Simon S.C. Tay, Perspectives on Terrorism from Asia, the United States, and the Middle East: Asia and the United States after 9/11: Primacy and Partnership in the Pacific, 28 Fletcher F. World Aff. 113, 122 (2004) (noting that part of Singapore's reward for helping in the war against terrorism was "strengthened political and economic ties with the United States, signified by the bilateral free trade agreement."); Elizabeth Becker, Bush Signs Trade Pact with Singapore, a Wartime Ally, N.Y. Times, May 7, 2003, at C4 (discussing political implications of Singapore's aid throughout the war against terrorism).

n38. See, e.g., id. (noting that Singapore benefited in its free trade discussions due to its status as a wartime

Page 56 18 Transnat'l Law. 489, *513

ally to the United States).

n39. Id.

n40. Becker, supra note 37, at C4.

n41. See Paul Kangas et al., Nightly Business Report, July 13, 2004 (reporting that American businesses have more money invested in Southeast Asia than in China, Mexico or Japan, and trade with the region amounts to about $ 120 billion a year).

n42. See, e.g., The Report of the Advisory Committee for Trade Policy and Negotiations, 1 (2003) available at http://www.ustr.gov/assets/Trade_Agreements/Bilateral/Singapore_FTA/Reports/asset_upload_file86_3223.pdf (last visited Mar. 15, 2005) (demonstrating that an overwhelming margin of the U.S. Congressional subcommittees found that the agreements promote U.S. economic interests and substantially achieve the negotiating objectives set out by Congress in Trade Promotion Authority legislation it enacted last year).

n43. Pact, supra note 14.

n44. U.S. Banks Express Interest in Local Market, Straits Times, Jan 18, 2003, available at 2003 WL 2355523 (reporting statistics for the 2002 fiscal year).

n45. See Baucus, supra note 28 (encouraging more focus on the Asia market). Sen. Baucus also noted that "seven of the last decade's eleven fastest growing economies [are in Asia]. More than half the world's population lives in Asia. Ask anyone in the business community where the most important markets for the future lie. They're in Asia." Id.

n46. See generally, infra notes 59-69 (noting some of the direct economic benefits of the agreement).

Page 57 18 Transnat'l Law. 489, *513

n47. The Associated Press, U.S. Reports a Final Deal For Singapore Trade Pact, N.Y. Times, Jan. 16, 2003, at C5.

n48. See id. (reporting that the issue was a possible obstacle to the final deal).

n49. See generally Bernard K. Gordon, America's Trade Follies: Turning Economic Leadership Into Strategic Weakness, 116 (Routledge, 2001) (chronicling the start of the financial crisis where Thailand's currency devalued quickly, dragging down neighboring nations). Despite Thailand's and other Asian nations' request for immediate assistance, the United States failed to help via loans until Korea, a major military ally, requested aid. Id. By dragging its feet, the United States caused anti-American sentiments in Asia to rise. Id.

n50. See Singapore, US trade agreement curbs capital flows during crisis - MAS, AFX News, Jan. 16, 2003, at LEXIS Law Library (describing the completion of the Singapore FTA).

n51. See USSFTA, supra note 1, art. 5 (restricting investors from totally withdrawing funds in the event of such an emergency, thus preventing money from rapidly inflating or deflating, and thus stabilizing the economy.)

n52. See Pact, supra note 14 (reporting that Prime Minister Goh Chok Tong said that the USSFTA is "the beginning of a trans-Pacific bridge between the United States and East Asia").

n53. Id.

n54. Nao Matsuka is the former director of policy and planning for the U.S. Trade Representative, Robert B. Zoellick. Id.

n55. Id.

Page 58 18 Transnat'l Law. 489, *513

n56. Asad Latif, US "Losing its Influence' in S-E Asia, Straits Times, Dec. 7, 2004, available at 2004 WL 97947315 (noting that Professor Koh, chairman of the Institute of Policy Studies, believes that China is in the lead for Southeast Asian influence).

n57. See Pact, supra note 14 (reporting that Prime Minister Tong said, "I believe that it will catalyze greater trade liberalization in East Asia.").

n58. Id.

n59. USSFTA, supra note 1, arts. 2.4, 2.7.

n60. Id. at Annex 10C (Specific Commitments).

n61. See William Choong, Cheaper Beer Likely Under Free-Trade Deal, Straits Times, Dec 17, 2002, available at 2002 WL 103123720 (reporting that Singapore will commit to tariff elimination on beer and other alcoholic beverages); see also U.S. Dept. of Commerce, Country Commercial Guide FY2002: Singapore, at http://www.world-digest.com/Guides/sn (last visited Feb. 7, 2005) (explaining that Singapore most frequently exports high-technology goods such as electronic and electrical products and components to the United States).

n62. See Kris Wise, Port Enjoyed Record-Breaking 2004, The Post and Courier, Jan. 31, 2005 (noting that there are substantial economic benefits, although U.S. exporters still have to comply with the complex documentations rules of NAFTA).

n63. Pact, supra note 14.

n64. See id. (explaining that increased financial protections offers U.S. investors heightened security and more options).

Page 59 18 Transnat'l Law. 489, *513

n65. Nicholas Fang, FTA Will Give U.S. Investors Protection, Straits Times, Dec. 18, 2002, available at LEXIS Law Library, Non-US Newspapers and Wires.

n66. Cooperation Gives Singapore Firms Clout, Straits Times, Dec. 7, 2004, available at 2004 WL 100794371.

n67. Singapore-U.S. FTA boosts bilateral trade by 10%, Japan Economic Newswire, Feb. 3, 2005, available at LEXIS, International News. "Investment flows also have increased. They anticipate further gains in coming years as companies take advantage of enhanced trade and investment opportunities created by the Agreement," according to a joint statement issued by the two governments. Id.

n68. See generally Andrea N. Anderson, Comment, The United States Jordan Free Trade Agreement, United States Chile Free Trade Agreement and the United States Singapore Free Trade Agreement: Advancement of Environmental Preservation?, 29 Brooklyn J. Int'l L. 1221 (2004) (discussing issues outside the scope of this comment in the environmental protections contained in free trade agreements between the United States and Jordan, Chile, and Singapore).

n69. See Clyde Summers, The Battle in Seattle: Free Trade, Labor Rights, and Societal Values, 22 U. Pa. J. Int'l Econ. L. 61, 67 (2001) (noting the relation between labor rights and the economy and arguing that protecting "core labor rights" such as those prohibiting forced labor, child labor, and discrimination "would have minimal impact on labor costs").

n70. John Coyle, Comment, Rules of Origin as Instruments of Foreign Economic Policy: An Analysis of the Integrated Sourcing Initiative in the U.S.-Singapore Free Trade Agreement, 29 Yale J. Int'l L. 545, 553 (2004) (noting that "for non-WTO member states, however, the possibility exists that they could realize improved access to the U.S. market by transshipping goods through Singapore.").

n71. Id. at 551-553.

n72. See Trade in Services and E-Commerce: The Significance of the Singapore and Chile Free Trade Agreements: Hearing Before the House Subcomm. on Commerce, Trade, and Consumer Prot. of the House Comm. on Energy and Commerce, 108th Cong. 72 (2003) (statement of Representative Jan Schakowsky) (stating, "There is a potential loophole that will allow for goods produced elsewhere, specifically in Indonesia

Page 60 18 Transnat'l Law. 489, *513

where there are widespread abuses of labor rights, to be treated as Singaporean goods, even if they never go through Singapore. We cannot afford to overlook these practices.").

n73. See U.S. to Consider "Trade Initiatives' for Tsunami-Hit Economies, A FX News Ltd., Jan. 25, 2005, available at LEXIS, News Library (reporting that U.S. industries fiercely resisted the Bush administration's suggestion to cut tariffs in response to the tsunami).

n74. See John Audley & Kareem Saleh, Letters to the Editor: Help by Reducing Tariffs, International Herald Tribune, Jan. 28, 2005, at 9 (noting that requests for textile, agricultural and shrimp export tariff reductions would be the most effective aid for countries hit by the December 26, 2004 tsunami, although those requests face legal and political hurdles in the United States).

n75. See, e.g., U.S. Dept. of Commerce, supra note 61 (discussing Singapore's government as transparent and clean with an open attitude towards business).

n76. See Genetic Resources Action International, Intellectual Property Rights and Biodiversity: The Economic Myths, in 3 Global Trade and Biodiversity in Conflict (1998), at http://www.grain.org/publications/issue3-en.cfm (last visited Feb. 25, 2005) (claiming intellectual property rights are merely a government sanctioned monopoly and subsidy that puts territorial borders around technologies and other inventions so firms can maximize their profits).

n77. See Fritz Machlup & Edith Penrose, The Patent Controversy in the 19th Century, 10 J. Econ. History 1, 1-29 (1950) (explaining the history of free trade and intellectual property in the 1800s).

n78. Compare Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, art. 65:2, Legal Instruments-Results of the Uruguay Round vol. 31, 33 I.L.M. 81 (1994) [hereinafter TRIPS] (defining a set of uniform intellectual property rights), with Brian Martin, Against Intellectual Property, 21 Philosophy and Social Action 7 (1995), available at http://www.uow.edu.au/arts/sts/bmartin/pubs/95psa.html (last visited Mar. 10, 2005) (reflecting that arguments against intellectual property continue today, although these concerns are often ignored outside of the theoretical context).

n79. See World Trade Organization, Module 7, FAQS (2), at

Page 61 18 Transnat'l Law. 489, *513

http://www.wto.org/english/thewto_e/whatis_e/eol/e/wto07/wto7_46.htm(last visited March 17, 2005) (explaining that "the TRIPS Agreement applies to all WTO Members," although extensions for full compliance are granted for developing countries).

n80. See World Trade Organization, Understanding the WTO: Basics: Principles of the Trading System, at http://www.wto.org/english/thewto_e/whatis_e/tif_e/fact2_e.htm (last visited Feb. 4, 2005) (noting the aim of TRIPS to treat foreign and local trademarks, copyrights, and patents equally).

n81. See Ambassador Lauren Moriarty, Remarks to the Asia Society in Sashington (Dec. 1, 2004), at http://usinfo.state.gov/cap/archive/2004/Dec/03-517926.html (last visited Dec. 2, 2004) (noting piracy and security as priorities in the free trade agreements).

n82. See Ana I. Eiras & Denise H. Froning, U.S. Trade Agreements with Chile and Singapore: Steps to Global Free Trade Agreement, The Heritage Foundation (Jan. 30, 2001), available at http://www.heritage.org/Research/TradeandForeignAid/EM715.cfm (last visited Oct. 24, 2004) (discussing the trend towards increased intellectual property protection).

n83. See Civil Groups Want IP Off Trade-Talks Agenda With U.S., The Nation, Oct. 11, 2004, available at 2004 WL 87959471 (reporting that in the Thailand-U.S. free trade negotiations, there has been specific outcry against altering intellectual property laws under the agreement). The Nation reported that "civil groups called for intellectual property to be excluded from the second round of the Thai-US Free Trade Agreement negotiation because of fears it would give unjustified protection to rich IP developers at the expense of Thais." Id.

n84. James Bessen & Eric Maskin, Sequential Innovation, Patents, and Imitiation 2 (2002), at http://researchoninnovation.org/patent.pdf (last visited Apr. 20, 2005) (unpublished manuscript, copy on file with The Transnational Lawyer) (explaining that strengthened computer software patent protection in the 1980's "ushered in a period of stagnant, if not declining, R&D among those industries and firms that patented most").

n85. See id. (describing the negative economic effects of strict intellectual property protection on countries of varying economic development).

n86. See Rahul Sen & Sanja S. Pattanayak, The Challenges Before the Singapore Economy, 24 Fletcher F. World Aff. 15, 16-18 (2000) (explaining the nature of the Singapore economy, its recent transition as a

Page 62 18 Transnat'l Law. 489, *513

knowledge-based economy, and its policy of internationalization).

n87. See Intellectual Property Office of Singapore, Copyright-based Industries Boost Singapore's Economy, at http://www.ipacademy.edu.sg/site/ipa_cws/resource/resource/news/Mediarelease-copyright(amended)3.pdf (last visited Mar. 1, 2005) (reporting that copyright-based industries accounted for 5.6 percent of Singapore's Gross Domestic Product); see also Press Release, International Intellectual Property Alliance, IIPA's New Economic Study Reveals the Copyright Industries Continues to be a Driving Force in the U.S. Economy, at www.iipa. com/pressreleases/2004_Oct7_Siwek.pdf (last visited Mar. 1, 2005) (copy on file with The Transnational Lawyer) (reporting that in the United States, copyright-based industries account for 12 percent of the U.S. Gross Domestic Product).

n88. See Eugene Kheng-Boon Tan, Law and Values in Governance: The Singapore Way, 30 Hong Kong L.J. 91, 91-92 (2000) (examining the role of the law and legal system in Singapore's success, including Singapore's strategy of acceding to many international treaties in the economic and commercial arena).

n89. See Marc A. Miles et al., 2005 Index of Economic Freedom, at http://www.heritage.org/research/features/index/index.cfm (last visited Jan. 15, 2005) (naming Singapore as the world's second freest economy among the 155 economies studied by American conservative think tank, The Heritage Foundation, and The Wall Street Journal). Singapore has been in the number two spot for several years - notably higher than the United States. Id.

n90. See Intellectual Property Office of Singapore, New IP Laws - FAQS, at http://www.newiplaws.org.sg/index_faqs.htm (last visited Jan. 16, 2005) (answering criticisms relating to the strong intellectual property provisions of the agreement) [hereinafter FAQS].

n91. See id. (addressing concerns by local businesses over the new restrictions to consumers and users of intellectual property); see also Progress Achieved on U.S. Priorities at APEC, supra note 81 (noting the correlation between increased intellectual property protection and increased investment).

n92. See U.S. Trade Representative, Free Trade with Singapore: America's First Free Trade Agreement in Asia, at http://www.ustr.gov/Document_Library/Fact_Sheets/2002/Free_Trade_with_Singapore_America's_First_Free_Trade_Agreemen (last visited Nov. 12, 2004) (reflecting how Singapore adopts intellectual property practices of the United States, and not vice versa).

Page 63 18 Transnat'l Law. 489, *513

n93. Copyright (Amendment) Bill (2005) (Sing.) and Trade Marks Act (2004) (Sing.).

n94. USSFTA, supra note 1, art. 16.

n95. Id. art. 12.

n96. See Trade Marks Act 2 (1998) (Sing.) (amended 2004) (defining a trademark as "any sign capable of being represented graphically and which is capable of distinguishing goods or services dealt with or provided in the course of trade by a person from goods or services so dealt with or provided by any other person"); see also USSFTA, supra note 1, art. 16.2, n.16-6 (defining a trademark as "any sign, or combination of signs, capable of identifying a good or service as originating in the territory of a Party").

n97. Trade Marks Act 2 (1998) (Sing.) (amended by Act 20 of 2004).

n98. Id.

n99. Id.

n100. USSFTA, supra note 1, art. 16.2, n.16-6.

n101. Id.

n102. See Keith Callinan et al., New Patent & Trade Mark Laws (from July 1), at http://www.surfip.gov.sg/sip/site/spotl/surfip_spotlight__2004104151456.htm (last visited November 15, 2004) (discussing sound marks, which are commonly represented by musical notes, as an example of a symbol that falls under the new trademark definition).

Page 64 18 Transnat'l Law. 489, *513

n103. Id.

n104. See McDonald's Corp. v. Future Enterprises, 2 S.L.R. 652 (2004) (denying McDonald's allegations that items with the "Mac" label marketed by Future Enterprises infringed upon McDonald's trademark, thus establishing a high burden of proof for a successful trademark infringement action).

n105. USSFTA, supra note 1, art. 16-2.

n106. See Callinan, supra note 102 (remarking that the changes will benefit trademark registrants in Singapore).

n107. USSFTA, supra note 1, art. 16.5.

n108. See Bruce Lehman, The Global Patent Crisis - A Need For Action, Intellectual Property Academy, at http://www.ipacademy.edu.sg/section/programme/research_78.html (last visited April 13, 2005) (warning that "without any relief from the emerging crisis, the number of unexamined patent applications at the USPTO will rise from the current level of 457,000 to 1,489,000 by 2010"). "This will mean an average of thirty-six months to first office action and forty-three months to allowance, with no end in sight to escalating pendancy." Id.

n109. Id.

n110. USSFTA, supra note 1, art. 16.2-1.

n111. Id.

n112. See K. Kalan, Property Rights, Individual Rights, and the Viability Of Patent Law Systems, 71 U. Colo. L. Rev. 1439, 1451-52 (2001) (explaining that Western countries have applied the concept since the beginnings of traditional property ownership).

Page 65 18 Transnat'l Law. 489, *513

n113. See Tan, supra note 88, at 93 (explaining that the inherited common law based legal system is a legacy of Singapore's British colonial past, which began when Sir Stamford Raffles of the British East India Company founded Singapore in 1819).

n114. See id. (stating that the current Chief Justice has underscored the importance of evolving "a body of autochthonous case law, capable of responding to the needs and concerns of the people who live and do business in Singapore").

n115. See Kripke, supra note 19 (urging for a proper balance between free trade and intellectual property that is suited to each economy).

n116. Id.

n117. See Singapore to Introduce Jail Terms, Fines for Software and Internet Piracy, Agence France Presse, Oct. 19, 2004, available at WL96988817 (reporting that Singapore revised its laws to include minimum statutory damages in civil cases).

n118. USSFTA, supra note 1, art. 16.4-4.

n119. See generally Eldred v. Ashcroft, 537 U.S. 186 (2003) (upholding a law extending the copyright duration from fifty years to seventy years after the death of the copyright holder). The majority expressed that creativity would be encouraged by an assurance of fair compensation for their descendants, while the dissent argued that the result harms the public by causing "higher prices for consumers and more obstacles for scholars." Id.

n120. See FAQS, supra note 90 (noting that Singapore will match the duration of the country that originally granted the copyright).

Page 66 18 Transnat'l Law. 489, *513

n121. See Kevin Michael Lemley, Comment, Protecting Consumers From Themselves: Alleviating The Market Inequalities Created by Online Copyright Infringement In The Entertainment Industry, 13 Alb. L.J. Sci. & Tech. 613, 614 (2003) (noting that scholars write extensively on the subject, yet are unable to provide any solution to balance the interests of rights-holders and users).

n122. 17 U.S.C. 1201 et seq.

n123. See U.S. Trade Representative, 2004 Foreign Trade Barriers: Singapore, 425, at http://www.ustr.gov/assets/Document_Library/Reports_Publications/2004/2004_National_Trade_Estimate/204_NTE_Report/asse (Last visited Nov. 12, 2004) (limiting the liability of Internet service providers who have no knowledge of the illegal transfers) [hereinafter Barriers].

n124. USSFTA, supra note 1, art 16.9-22; see also Brandy A. Karl, Comment, Enforcing the Digital Millennium Copyright Act Internationally: Why Congress Shouldn't Lock in the Current DMCA By Approving the Current Version of the U.S.-Singapore Free Trade Agreement, Findlaw's Writ, at http://writ.news.findlaw.com/student/20030519_karl.html (last visited Oct. 25, 2004) (questioning the reasoning behind implementing the DCMA in the USSFTA).

n125. Karl, supra note 124, at 3.

n126. See Free Trade with Singapore: America's First Free Trade Agreement in Asia, supra note 92 (reflecting the U.S. government's concern over piracy on the Internet).

n127. See Karl, supra note 124 (arguing that if a music teacher were to bypass MP3 protection for educational purposes, the act would violate the law despite fair use doctrine, that would allow such an act).

n128. Protecting U.S. Innovations From Intellectual Property Piracy: Hearing Before the Committee on House Government Reform, 108th Cong. (2004) (statement of Joseph Papovich, Senior Vice President of the Recording Industry Association of America) (noting that "the FTA negotiating process is the best avenue currently available to us for ensuring that these important digital copyright issues are adequately addressed").

Page 67 18 Transnat'l Law. 489, *513

n129. America's First Free Trade Agreement in Asia, supra note 92.

n130. USSFTA, supra note 1, art. 16.4-1.

n131. Id.

n132. See Baucus, supra note 28 (calling for continued intellectual property enforcement as "American producers lost $ 13 billion in software sales to piracy in 2002").

n133. USSFTA, supra note 1, art. 16.6.

n134. Id.

n135. See Matt Loney, Media Firms Lobby Piracy Controls to EU, Cnet News (May 24, 2002), available at http://news.com.com/2100-1023-922706.html (last visited Jan. 17, 2005) (informing that a source identification code is an eight-letter code stamped on discs produced by CD recording plants as a unique identifier and is used to track down possible offenders).

n136. USSFTA, supra note 1, art. 16.4-8.

n137. See Loney, supra note 135 (citing concerns for civil liberties that the codes may allow for the tracking of individuals, invading their privacy).

n138. Compare Loney, supra note 135 (discussing the source identification code), with Tougher Penalties Sought for Inkjet Counterfeit Bills, The Record, Apr. 1, 1998, at A15 (showing that the ease and the harm incurred is similar in both cases, while few criticisms arise in calls for more stringent counterfeiting laws).

Page 68 18 Transnat'l Law. 489, *513

n139. See Capitol Hill, Warren's Wash. Internet Daily, Feb. 1, 2005, available at 2005 WL 61938764 (noting that the Association for Competitive Technology set its "Tech Environmental Quality Index" at 100.76, an improvement of 10 points over last year).

n140. Sunil Kanwar & Robert E. Evenson, Does Intellectual Property Protection Spur Technological Change?, Yale U. Library Economic Growth Center Collection, June 2001, at 10, available at http://papers.ssrn.com/paper.taf?abstract_id=275322 (last visited Feb. 7, 2005).

n141. See Laurence R. Hefter & Robert D. Litowitz, Protecting Intellectual Property: Prosperity Paper No. 7, United States Information Agency, 1995 (explaining that longer durations tend to increase investment in those patents and are beneficial until they begin to stifle the creative process); see also Ian Ayres & Paul Klemperer, Limiting Patentees' Market Power Without Reducing Innovation Incentives: The Perverse Benefits Of Uncertainty And Non-Injunctive Remedies, 97 Mich. L. Rev. 985, 1000-1003 (1999) (noting the proportional relationship between an extended duration, profits, innovation, and monopolies).

n142. USSFTA, supra note 1, art 16.7-7.

n143. See Dietmar Harhoff & Stefan Wagner, Modeling the Duration of Patent Examination at the European Patent Office, at http://www.vwl.uniannheim.de/stahl/io_ausschuss/paper/04_harhoff.pdf (last visited Jan. 15, 2005) (comparing the U.S. Patent and Trademark Office and the European Patent Office and their procedural differences and reasons for patent delays in general); see also Jakkrit Kuanpoth, Major Issues in the Thai Patent System, Thailand Law Forum (1999), available at http://www.thailawforum.com/articles/jakpat1.html (last visited Jan. 18, 2005) (noting that a large amount of pressure was put on Thailand to match U.S. patent duration and also comparing differences between Thailand and the European Community approaches to patent procedures).

n144. USSFTA, supra note 1, art. 16.7-4.

n145. America's First Free Trade Agreement in Asia, supra note 92.

n146. USSFTA, supra note 1, art. 16.8-1.

Page 69 18 Transnat'l Law. 489, *513

n147. U.S. Trade Representative, Response to Labor Advisory Committee Report on the Proposed Chile and Singapore FTAs 9 (2003) [hereinafter Response to LAC].

n148. Compare TRIPS, supra note 77, 5.27.3(b), with USSFTA, supra note 1, art. 16.8-2 (demonstrating that the USSFTA does not contain the same language found in TRIPS guaranteeing flexibility).

n149. See LAC, Report for the Labor Advisory Committee for Trade Negotiations and Trade Policy 14 (2003) (warning that Singapore could be required to patent plants and other life forms despite possible harm to the environment or public health and safety) [hereinafter Report for LAC].

n150. Id.

n151. Response to LAC, supra note 147, at 8-9.

n152. See USSFTA, supra note 1, art 16.1 (providing specific, individual laws governing pharmaceutical and agricultural industries).

n153. Id. art. 16.8.

n154. Id. art. 16.7-2.

n155. Report for LAC, supra note 149, at 13-14.

n156. See WTO, Doha Ministerial Declaration on the TRIPS Agreement and Public Health, Nov. 14, 2001, WT/MIN(01)/DEC/2, at http://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_trips_e.htm (last visited April 20, 2005) (declaring that TRIPS "does not and should not prevent members from taking measures to protect public health").

Page 70 18 Transnat'l Law. 489, *513

n157. Report for LAC, supra note 149, at 13.

n158. Response to LAC, supra note 147, at 8-9.

n159. See India's Interests Protected at Doha, Business Line, Nov. 22, 2001, available at LEXIS, News Library (reporting that Murasoli Muran, Union Commerce & Industry Minister of India, had brought forth concerns about public health and the TRIPS agreement).

n160. See Response to LAC, supra note 147, at 8-9 (describing the need to revise the USSFTA provisions to clarify what actions Singapore may take to respond to emergencies).

n161. Report for LAC, supra note 149, at 13.

n162. USSFTA, supra note 1, art. 16.8.

n163. Report for LAC, supra note 149, at 13.

n164. Id.

n165. Response to LAC, supra note 147, at 9.

n166. See U.S. Dept of Commerce, supra note 61 (describing the Singapore government as transparent).

Page 71 18 Transnat'l Law. 489, *513

n167. See Report for LAC, supra note 149, at 13 (describing the possibility of the pharmaceutical patent laws preventing Singapore from acting in a health crisis).

n168. U.S. Dept. of Commerce, supra note 61.

n169. See id. (noting that the provisions have never been construed to prevent action in response to a health crisis).

n170. USSFTA, supra note 1, art. 16.6.

n171. Id.

n172. Report for LAC, supra note 149, at 13.

n173. See James F. Rill & Mark C. Schechter, "International Harmonization Of Antitrust And Intellectual Property": International Antitrust and Intellectual Property Harmonization of the Interface, 34 Law & Pol'y Int'l Bus. 783, 784-88 (2003) (noting the internal conflict in the United States between intellectual property laws and antitrust laws, and describing manners used in other countries which raise the problem of international conflicts).

n174. USSFTA, supra note 1, ch. 12.

n175. See id. at art. 12.2(1), n.12-1 (stating that "Singapore shall enact general competition legislation by January 2005, and shall not exclude enterprises from that legislation on the basis of their status as government enterprises").

n176. See id. art. 12.3(1)(a) (stating that nothing under the agreement prevents either party from designating a monopoly).

Page 72 18 Transnat'l Law. 489, *513

n177. See Lim, supra note 34, at 318 (noting that either country could designate unfavorable businesses as monopolies).

n178. See Miles, supra note 89 (noting that the Singapore government exercises substantial interference, citing figures reported by the International Monetary Fund).

n179. See Barriers, supra note 123, at 420 (reporting that Singapore, which owns a controlling share in Singapore Telecommunications, has been accused of offering low costs in an attempt to restrict competition among all communications companies).

n180. Id.

n181. See id. (recognizing the possible conflict of interest between Singapore and a business owned by Singapore in monopoly battles).

n182. See id. (citing concerns about piracy and its negative effect on intellectual property protection).

n183. See generally Georgina Lee, Hk's Software Piracy Shame, The Standard, July 8, 2004, available at LEXIS, News Library (noting that in the Asia Pacific region, over 53 out of 100 installed programs are pirated). Singapore's piracy rate for 2003 was 43 percent. Id.

n184. Office of the U.S. Trade Representative, 2000 Special 301 Report (May 2000) [hereinafter Special Report].

n185. See generally FAQS, supra note 90 (noting that Singapore is not known for either the development or ownership of intellectual property).

Page 73 18 Transnat'l Law. 489, *513

n186. See H.M. Gladney, Digital Intellectual Property: Controversial and International Aspects, 24 Colum.-Vla J.L. & Arts 47, 80 (2000) (explaining that "since the IP-producing nations inject IP into trade negotiations, it is not surprising that nations that are not major sources of IP sign TRIPs and then fail to enforce the treaty obligations vigorously within their borders").

n187. See Commission on Intellectual Property Rights, Integrating Intellectual Property Rights and Development Policy 20 (2002), available at http://www.iprcommission.org/papers/pdfs/final_report/CIPRfullfinal.pdf (last visited Mar. 5, 2004) (highlighting that this method played an important part in Korea's development of indigenous technologies and innovative capacity).

n188. See Linsu Kim, Technology Transfer and Intellectual Property Rights: Lessons from Korea's Experience, 21 (2002), available at http://www.iprsonline.org/unctadictsd/docs/Kim2002.pdf (last visited Oct. 6, 2004) (noting the role of the government funded Korea Institute of Science and Technology and describing how this is a natural progression from the intermediate technology stage to the mature technology stage).

n189. See Bruce Lehman, Intellectual Asset Management: Going Beyond IP, 11-12 at http://www.iipi.org/newsroom/speeches/Singapore_0302.pdf (Mar. 12, 2003) (last visited Feb. 25, 2005) [hereinafter Intellectual Asset Management] (showing the top twenty-five countries whose nationals have received patents from the U.S. Patent Office in 2001). South Korea nationals received 3,538 patents from the U.S. Patent Office, while Singapore nationals only received 296 patents. Id.

n190. See id. at 14.

n191. See Chong Kee Kin, Business Software Alliance Study: Software Piracy "Cost S'pore $ 40m Last Year', Straits Times, Apr. 12, 2000, available at 2004 WL 83770140 (reporting that Singapore lost an estimated $ 40 million in tax revenues in 1999 due to piracy).

n192. Id.

n193. See Don E. Tomlinson, Intellectual Property in the Digital Age: The Piracy/Counterfeiting Problem and Antipiracy and Anitcounterfeiting Measures, 8 Currents: Int'l Trade L.J. 3, 7-8 (1999) (explaining the state of copyright protection in Singapore previous to 1999). Copyright holders had to assert their rights against

Page 74 18 Transnat'l Law. 489, *513

offenders in civil suits with recovery limited to incidental monetary damages. Id. at 10.

n194. See USSFTA, supra note 1, art. 16.9-19 (noting that Singapore may initiate border measures ex officio, without the need for a formal complaint from a private party or right holder, as opposed to procedures beforehand allowing only private parties to assert their rights).

n195. See Copyright Bill pt. V, div. V (1987) (Sing.) (amended 2004) (listing numerous offenses that carry fines up to "$ 20,000 or to imprisonment for a term not exceeding 6 months or to both and, in the case of a second or subsequent offence, to a fine not exceeding $ 50,000 or to imprisonment for a term not exceeding 5 years or to both").

n196. See USSFTA, supra note 1, art. 16.9-5 (stating that Singapore laws must give civil remedies that include "the opportunity for the right holder to elect between actual damages it suffered or pre-established damages").

n197. See generally Developments in the Law - The Paths of Civil Litigation II. The Use of the Public Nuisance Tort against the Handgun Industry, 113 Harv. L. Rev. 1759 (2000) (explaining that civil litigation is effective to combat crime).

n198. Free Trade with Singapore: America's First Free Trade Agreement in Asia, supra note 92.

n199. See Chua Hian Hou, Home Users Face Fines or Jail for Illegal Downloads, Straits Times, Oct. 19, 2004, available at 2004 WL 91466664 (reporting that before the harsher penalties, the fine imposed on copyright infringers was not worth the cost of tracking and taking legal action against them); see also Special Report, supra note 184 (noting previous problems with piracy in Singapore, despite continued efforts to tighten up border and custom controls).

n200. FAQS, supra note 90.

n201. See, e.g., Intellectual Property Committee of the Law Society of Singapore, Comments on the Proposed Amendments to the Trade Marks Act 1998 (2004), available at

Page 75 18 Transnat'l Law. 489, *513

http://www.newiplaws.org.sg/pdf/Law%20Soc%20Comments%20on%20TM%20_Amendment_%20Bill.pdf (last visited Apr. 20, 2005) (noting unresolved language inconsistencies in the amendments to the Trade Marks Act).

n202. See Karen Blochlinger, Primus Inter Pares: Is The Singapore Judiciary First Among Equals?, 9 Pac. Rim L. & Pol'y J. 591, 594 (2000) (describing the history of the Singapore judiciary dating back to the time of the English colonists).

n203. See id. at 594-95 (explaining the organization and history of the Singapore judiciary system).

n204. See Tan, supra note 88, at 93.

n205. See TRIPS, supra note 78, at art. 2.2 n.2; see also Creative Technology, Ltd. v. Aztech System Pte., Ltd., 61 F.3d 696, 701-703 (9th Cir. 1995) (noting that the Singapore High Court could apply U.S. laws under the Berne convention should the need arise).

n206. McDonald's Corp. v. Future Enterprises, 2 S.L.R. 652 (2004).

n207. See, e.g., Kevin Wong, Highlights of the Singapore Trade Marks (Amendment) Act 2004, Mondaq Business Briefing, Sept. 8, 2004, available at 2004 WL 12300149 (explaining that trademark dilution, which had not been previously recognized in Singapore, is now part of the new amendments. Trademark dilution is the gradual attenuation of a mark's value by another that results in the original owner's loss of goodwill, and generally protects well-known marks. Without a line of precedent, it is difficult to predict how the Singapore judiciary will handle such a case should it arise).

n208. See Blochinger, supra note 202, at 616 (noting that the World Competitiveness Yearbook of 1999 "ranked Singapore first out of forty-seven countries in its assessment of legal frameworks"). Further, World Competitiveness Yearbook of 1999 "ranked Singapore fourth out of forty-six countries, and first in Asia, in a study on the confidence in fair administration of justice." Id.

n209. See Singapore Ministry of Trade and Industry, Singapore's FTA Network: Expanding Markets,

Page 76 18 Transnat'l Law. 489, *513

Connecting Partners at http://www.fta.gov.sg (last visited, Nov. 16, 2004) (explaining "greater cooperation in the area of science & technology will boost research & development in high value industries."); see also Lim, supra note 34, at 311 (noting that Singapore is the first nation in the Southeast Asian region to carry this level of intellectual property protection).

n210. See generally USSFTA, supra note 1, at art. 16-1 (demonstrating that Singapore and the United States both adopt a long list of international agreements, and then further extend their intellectual property law protections to match up with the United States).

n211. See Kim Nayyer, Globalization of Information: Intellectual Property Law Implications, First Monday, at http://www.firstmonday.org/issues/issue7_1/nayyer (last visited Mar. 5, 2005) (arguing that the effects of global standardization of intellectual property laws is positive primarily for intellectual property producing nations and transnational corporations, but not for nations whose intellectual property production is low).

n212. See id. (describing how intellectual property rights empower private entities).

n213. See McDonald's Corp., supra note 206 (finding that Future Enterprises was entitled to continue using the "Mac" trademark, thus rejecting McDonalds' claim that its continued use would cause confusion).

n214. See U.S. Dept. of Commerce, supra note 61 (praising Singapore's open policy in government in relation to business and predictability in terms of procedural matters).

n215. See Intellectual Property Office of Singapore, Patents, at http://www.newiplaws.org.sg/patents.htm (last visited Jan. 17, 2005) (noting that "greater protection accorded to pharmaceuticals can provide an incentive for investments in Singapore especially to an industry that expends considerable cost and time in development of new products.").

n216. See Intellectual Asset Management, supra note 189.

n217. See Pact, supra 14 (reporting President Bush's announcement of the agreement's importance).

Page 77 18 Transnat'l Law. 489, *513

n218. See Singapore-U.S. FTA boosts bilateral trade by 10%, supra note 67 (reporting that trade between the United States and Singapore rose 10 percent due to the agreement).

n219. See Pact, supra note 14 (recording that leaders of both nations praised not only the financial benefits but also the strengthened ties between the United States and Singapore).

n220. See Baucus, supra note 28 (urging the United States to focus more on Asia due to Asia's importance).

n221. See Tommy Koh, An Asian Wishlist for Washington, Straits Times, Dec. 8, 2004, available at 2004 WL 97947425 (recommending that "the US needs to revamp its public diplomacy in South-east Asia in order to redress the serious deterioration in the public support for the US and its policies").

n222. See Kripke, supra note 19 (citing concerns for careful consideration of intellectual property rights for developing countries in possible agreements with those countries).

n223. See Boldrin, supra note 30, at 4 (explaining that strengthened intellectual property rights hurt innovation, increase market prices, and hinder production).

n224. See, e.g., Bessen, supra note 84, at 20 (explaining that a balance must be made in intellectual property protection, ideally to limit imitation, but allow similar but potentially valuable complementary contributions).

53 of 68 DOCUMENTS Copyright (c) 1999 Pacific Rim Law & Policy Association Pacific Rim Law & Policy Journal March, 1999 8 Pac. Rim L. & Pol'y 423

Page 78 8 Pac. Rim L. & Pol'y 423, *

LENGTH: 16587 words COMMENT: ARE YOU MY MOMMY, OR MY BIG BROTHER? COMPARING INTERNET CENSORSHIP IN SINGAPORE AND THE UNITED STATES NAME: Lewis S. Malakoff SUMMARY: ... Singapore has enacted regulations that require Internet Service Providers to filter content at the network level through the use of proxy servers. ... Therefore, the agency has directed all ISPs to offer "Family Access Networks" that use filtering software at the network level to block access to objectionable content. ... The new regulations make clear that ISPs are not required to search the Web proactively for objectionable content. ... They are required to block access to online content only when directed to do so by the SBA, or when they discover prohibited material in the normal course of exercising editorial duties. ... To date, ISPs and ICPs have generally abided by the SBA's guidelines, and the SBA has not "taken action against anyone for objectionable content on the Internet." ... Although Singapore's regulatory apparatus cannot entirely block access to objectionable content, where "regulation increases the cost to this kind of information, it will reduce access to this information." ... Essentially, this is Singapore's original plan; require all access through heavily regulated proxy servers capable of filtering out objectionable content. ... Assuming that proxy server technology advanced to the point where the servers could accommodate large national networks, comprehensive immunization from objectionable content would still require significant human resources, including a vast staff of censors, constantly monitoring the Web and updating the servers' cache. ... TEXT: [*423] Abstract: Governments across the globe are grappling to find an appropriate and effective way to regulate Internet activity. Singapore's experience with Internet regulation is particularly instructive, illustrating the inherent tension when a government simultaneously champions the Net's commercial, educational, and social potential while attempting to protect its population from material that offends the community's normative sensibility. Singapore has enacted regulations that require Internet Service Providers to filter content at the network level through the use of proxy servers. In addition, Singapore has issued an Internet Code of Practice that establishes the framework for acceptable speech in cyberspace. In the United States, Congress faces a similar struggle: constructing an appropriate legislative response to issues posed by the Internet while balancing competing interests of free speech and community values. Despite political, cultural, and social differences between Singapore and the United States, both nations' fledgling attempts to regulate the Internet have been driven by similar goals and have led to remarkably similar conclusions. Regulation in cyberspace presents challenges that transcend national idiosyncrasies and will potentially push divergent nations toward a common legal regime in which a limited market-driven response might provide the most effective instrument of control.

I. Introduction The explosive growth of the Internet has spawned a new frontier of human communication. The ease with which information is distributed through cyberspace create exciting possibilities and unique challenges. The immediacy of communication, the relatively low cost of participation, and a potentially vast audience make the Internet a truly democratic medium in which anyone with a modicum of computer literacy can find a forum for expression. Internet communication draws together people from across the globe into a multi-national, multi-ethnic virtual commons where traditional jurisdictional boundaries might become obsolete. n1 According to John Perry Barlow of the Electronic Frontier Foundation, the Internet offers the "promise of a new social space, global and anti-sovereign, within which anybody anywhere can express to the rest of humanity whatever he or she believes without fear." n2

Page 79 8 Pac. Rim L. & Pol'y 423, *423

[*424] On the other hand, the promise of electronic communication also delivers consequences because individuals now have unprecedented access to all types of information. As a result, governments around the world are grappling to find an appropriate and effective way to regulate Internet activity. Governments that traditionally suppress information and throttle dissent have found the Internet particularly threatening. n3 These countries, which have customarily attempted to restrict and control their citizens' access to all forms of media, have attempted aggressively to regulate the Internet. n4 Fear of the "dark side" of cyberspace is especially pronounced in some Asian nations, where many view the "Americanized" Internet culture as anathema to traditional Asian mores. n5 In these nations, censorship efforts have been aimed at preventing the erosion of "Asian values" perceived to be under siege by the infiltration of pernicious American elements. n6 According to the research head of a Malaysian securities firm, balancing the problems and opportunities of the Internet is particularly vexing for Southeast Asian countries that "want to reap the benefits of globalization and the information age [sic] while at the same time [keep] out "moral hazards' like pornographic material, seditious speech and so on." n7 Singapore's experience with Internet regulation is particularly instructive because it illustrates the inherent tension when a government simultaneously champions the Net's commercial, educational, and social potential while attempting to protect its population from material that offends the community's normative sensibility. The Singapore government has embraced many aspects of the Internet Age. Every Government ministry has its own World Wide Web site, computers link Singapore's entire civil service, and Singaporeans can even pay taxes online. n8 According to the Singapore Broadcast Authority's ("SBA") n9 official Web site, the [*425] Agency's policies are designed to "encourage a healthy and responsive environment for [the] Internet to thrive," while "developing and harnessing the full potential of the Internet." n10 Singapore business has also become increasingly "wired," as more than sixty percent of businesses composed of at least ten employees use electronic mail. n11 Computing and online communication are already woven into the fabric of Singaporean society. The Lion City boasts one of the highest computer literacy rates in the world, n12 along with one of the highest densities of Internet subscribers. n13 Additionally, Singapore has enthusiastically embraced the commercial potential of the Internet, aspiring to establish itself as the "Silicon Valley of Asia." n14 Nevertheless, the Singapore government is both cognizant and wary of the many potentially destructive influences floating through cyberspace. n15 Eager to preserve normative "social values" and shield its population from the Net's most unseemly elements, the Singapore Broadcast Authority instituted an ambitious regulatory program in 1996, designed to control distribution and consumption of the Internet. n16 Since the regulations originally took effect, SBA officials have insisted that the government intends to regulate with a "light touch," without stifling Internet growth. n17 The SBA maintains a dual approach to Internet policy. It actively promotes Internet development, while at the same time limiting public access to content it considers offensive to Singapore's "community values." n18 In [*426] addition, the SBA recognizes the technical and legal complexity involved in regulating cyberspace; through its policies, the agency attempts to work in partnership with the community by emphasizing non-regulatory approaches such as public education, industry self-regulation, and the promotion of what it describes as "positive sites." n19 In the United States, Congress faces a similar struggle: constructing an appropriate legislative response to issues posed by the Internet. As in Singapore, U.S. policy makers have labored to encourage technological growth while attempting to balance the competing interests of free speech and community values. Twice, Congress has passed legislation designed to regulate cyberspace and control Internet content. n20 However, these legislative efforts have yet to withstand judicial scrutiny as the courts have struck down portions of these laws under the First Amendment. n21 Although constitutional constraints have sharply limited Congress' ability to control activity on the Internet, legislators continue to seek a legitimate legislative formula. This Comment will explain how, despite political, cultural, and social differences between Singapore and the United States, both nations' fledgling attempts to regulate the Internet have been driven by similar goals and have led to remarkably similar conclusions. Section II examines Singapore's Internet Regulation scheme, while Section III examines the failed efforts of the U.S. Congress to police Internet activity. Considering that a rule of law is only effective to the extent that it is enforced, Section IV explores liability under Internet regulation in both Singapore and

Page 80 8 Pac. Rim L. & Pol'y 423, *426

the United States. Section V investigates the challenges encountered by the SBA in enforcing Internet rules and how this has limited Singapore's regulatory efforts. Section VI presents alternative models for how a state might regulate Internet content. Finally, Section VII concludes that the challenges of cyberspace transcend national idiosyncrasies and push divergent countries toward a common legal regime in which a limited market-driven response might provide the most effective instrument of control. [*427] II. Internet Regulation Under Singapore Law A. Singapore's Regulatory Framework: The Singapore Broadcast Authority Class Licence Notification Singapore has developed a reputation for efficient control over media and the flow of information. n22 Singapore's Constitution provides every citizen "the right to freedom of speech and expression." n23 However, the Constitution qualifies this right by permitting the government to pass laws that abridge free speech rights in specified instances where "necessary or expedient." n24 Consequently, Singapore's Parliament has passed laws that regulate broadcasting, n25 publication, n26 religious speech, n27 and sedition. n28 Pursuant to the authority granted to it under the Singapore Broadcast Authority Act, the SBA has issued two principal regulations relating to the Internet: the Singapore Broadcasting Authority (Class Licence) Notification 1996 ("Class Licence Notification") n29 and the Internet Code of Practice ("Code"). n30 These laws establish the framework for Singapore's effort to govern Internet activity and content beyond its existing speech laws. Under the regulations promulgated by the SBA, an Internet Service Provider ("ISP") is a company that provides its customers with a "main gateway" to the Internet. n31 An Internet Content Provider ("ICP"), on the other hand, can [*428] be any individual, corporation, or group that "provides any programme, for business, political or religious purposes on the World Wide Web through the Internet." n32 The Class Licence Notification requires all Service Providers and specified Content Providers to register with the SBA n33 and pay a license fee. n34 It also mandates that all ISPs and ICPs comply with the Internet Code of Practice. n35 1. Regulation of Internet Service Providers The first step in the SBA's effort to control Internet content involves filtering at the ISP level. To achieve this, the SBA has imposed technical standards requiring all ISPs to have in place the technical ability to comply with its regulations. n36 Traditional filtering approaches require systems (specialized software and hardware) that examine each page as it is downloaded by the end user. n37 Because large-scale application of this method would be unfeasibly slow, the SBA has encouraged ISPs to install and use proxy server technology. n38 Proxy servers, originally designed to speed access along Intranets, operate by storing a vast array of Web pages in memory. n39 This database, or cache, of Web sites includes those pages most frequently requested by users. n40 Under this system, a user surfing the Net does not connect directly with a distant Web site, but rather, receives a copy of the requested page, which the proxy server stores locally. n41 An ISP can [*429] program a proxy server to update the pages in its cache automatically, storing only those pages considered legitimate. n42 In addition to enhancing access speed, the proxy server acts as an electronic traffic cop, allowing the ISP to control those pages that are stored, while blocking access to predetermined "objectionable" Web sites. n43 Nevertheless, the SBA recognizes that such servers provide only a last resort and cannot effectively filter out all subversive content. n44 Singapore authorities also recognize that exclusive reliance on proxy server filtering is not feasible and might slow access speed and be a drag on Internet growth in Singapore. n45 Therefore, the agency has directed all ISPs to offer "Family Access Networks" that use filtering software at the network level to block access to objectionable content. n46 This optional service allows parents who are unfamiliar with the Internet or lack technical savvy to subscribe to a "cleaner, more sanitized Internet service." n47 In addition, Singapore's National Internet Advisory Committee ("NIAC") n48 recommended that additional filtering should be set up in places where children

Page 81 8 Pac. Rim L. & Pol'y 423, *429

have access to the Internet, such as schools, community centers, and libraries. n49 The [*430] agency has also embarked on an educational campaign, suggesting that subscribers provide parental supervision and/or employ filtering software such as Net Nanny on their home PCs. n50 The SBA also requires that ISPs register with the agency, pay a license fee, comply with all Singapore laws, and abide by the applicable provisions of the Internet Code of Practice. n51 When this law was first enacted, some confusion existed regarding an ISP's duty to police and enforce the law, and ISPs requested further clarification from the SBA. n52 Singapore's NIAC agreed that there was ambiguity. n53 In its first annual report, the NIAC requested that the SBA more clearly articulate both the standard for "offensive" content n54 and an ISP's duty under the law. n55 Addressing these concerns, the SBA revised the Code of Practice in 1997. n56 The new regulations make clear that ISPs are not required to search the Web proactively for objectionable content. Rather, they are only required to follow the directives of the SBA and deny access to any sites the agency identifies as "objectionable." n57 In general, as long as the Service Provider follows the directives of the SBA, it has met its duty of care under the Code. n58 An ISP discharges its duty when it denies access to content on the World Wide Web identified by the SBA as containing prohibited material. n59 With respect to newsgroups, an ISP discharges its duty when it refrains from subscribing to any newsgroup likely to contain prohibited material or "unsubscribes" from any newsgroup as directed by the SBA. n60 Furthermore, the SBA made clear that the Code does not require ISPs to search actively for objectionable Web sites n61 or monitor their subscribers' personal use. n62 Therefore, Singapore law treats an ISP more in the fashion [*431] of a library and less like a publisher or broadcaster, eliminating strict liability for third-party material and for objectionable content carried unknowingly over the ISP's equipment. n63 2. Regulation of Content Providers In addition to regulating Internet services in Singapore, the SBA also established regulations for Internet Content Providers. n64 The Class Licence Notification requires registration only by those content providers who are parties, bodies of persons, individuals engaged in the discussion of political or religious issues, n65 or those who provide an online newspaper for a subscription fee or other consideration. n66 According to the SBA, this policy does not intend to restrict religious and political speech, but rather aims to force content providers to be responsible and accountable for the views they promote online. n67 The SBA claims that registration of sites with political or religious content is necessary to prevent strife, given the multi-ethnic composition of Singapore society. n68 Although the Class Licence Notification requires only a minority of ICPs to register with the SBA, all ICPs in Singapore must abide by the Internet Code of Practice. n69 The law further requires that all content providers make "best efforts" to ensure that all contributions to its site, such [*432] as chats, postings, and so forth also conform with the applicable regulations. n70 Similar to an ISP, an ICP discharges its duty under the Code by denying access to prohibited material where directed to do so by the SBA, n71 choosing themes for private chat groups that are not prohibited, n72 denying contributions from others that contain prohibited materials, n73 and ensuring that its own programming does not include prohibited material. n74 B. Internet Code of Practice In November 1997, the SBA issued a revised Internet Code of Practice that outlines the obligations of ISPs and ICPs, and identifies the kind of content the Singapore community regards as offensive. n75 The central purpose of the 1997 revisions was to provide greater clarity, while fine-tuning the SBA's Internet regulation scheme. n76 Whereas the original Act was criticized for being overly broad and difficult to interpret, the revised Code was an attempt to clarify expectations of ISPs and ICPs. n77 The revised Code alleviated concerns about broad liability exposure, by explicitly outlining the extent and limit of the duty of care. n78 In addition, the Code attempts to define more clearly what constitutes objectionable content by providing guidelines for determining whether specific content is prohibited. n79 Because it is impossible to create by statute an all-inclusive

Page 82 8 Pac. Rim L. & Pol'y 423, *432

list of what might be considered objectionable, the Code provides what the SBA describes as "broad markers" of the type of content "offensive to the Singapore community." n80 Such material includes pornography, depictions of violence, and materials that may undermine Singapore's racial and religious harmony. n81 The 1997 revision maintains the original broad intent, prohibiting material "objectionable on the grounds of public interest, public morality, public order, public security, national harmony, or is otherwise prohibited [*433] by applicable Singapore laws." n82 However, the revised Code defines such content more specifically, outlawing a vast array of sexual content, including material depicting nudity or genitalia, n83 coercive or violent sex, n84 explicit sex, n85 and child pornography. n86 The Code also targets sexual behavior that deviates from the community's normative standard. It finds objectionable material that "advocates homosexuality or lesbianism, or depicts or promotes incest, pedophilia, bestiality, and necrophilia." n87 In the non-sexual arena, the Code targets material depicting extreme violence or cruelty, n88 and material that incites or endorses ethnic, racial or religious hatred, strife, or intolerance. n89 The Code does, however, take into consideration the material's potential medical, scientific, artistic, or educational value. n90 Through the revised Code, the SBA sharpened its definition of "objectionable," focusing on three principal targets: pornography, violence, and racial or religious intolerance. n91 III. Internet Regulation Under United States Law In the United States, the rise of the Internet has been greeted with a mix of enthusiasm and concern similar to that in Singapore. However, in contrast to the experience in Singapore, U.S. courts have stymied Congress' attempts to regulate Internet content directly, holding these legislative efforts unconstitutional on First Amendment grounds. A. Censoring the Net, Round I: The Communications Decency Act and Reno I Attempts to regulate the Internet in the United States expose the inherent tension between the First Amendment's protection of free speech and Congress' intent to protect children from materials it considers harmful. The Communications Decency Act of 1996 ("CDA"), passed by Congress as [*434] Title V of the Telecommunications Act of 1996, n92 was Congress' initial attempt to address this problem. Sweeping in scope, section 223 of the CDA prohibited and made criminal the knowing transmission of "obscene or indecent" material to anyone under the age of eighteen. n93 A second provision outlawed knowingly sending or displaying in a manner available to a person under eighteen "patently offensive" material. n94 The Supreme Court struck down these two provisions in Reno v. A.C.L.U., holding that the CDA was unacceptably broad and that the law placed an impermissibly heavy burden on protected speech. n95 Noting that the First Amendment protects expression that is "indecent but not obscene," n96 the Court held that the CDA interfered with constitutionally protected speech. n97 The Court reasoned that the CDA was a "content-based regulation of speech," too vague to withstand constitutional scrutiny. n98 B. Censoring the Net, Round II: The Child Online Protection Act and Reno II Congress attempted to cure the CDA's constitutional defects with a subsequent piece of legislation, the Child Online Protection Act [*435] ("COPA"). n99 In an attempt to fashion a law more narrowly tailored to a compelling state interest than the CDA, COPA takes aim solely at commercial operators of World Wide Web sites. n100 The law prohibits Web site operators from allowing minors access to "harmful" material, and it subjects violators to stiff criminal sanctions. n101 In addition, COPA requires the operator of a Web site to restrict minors' access to such material, by requiring the use of credit cards, adult personal identification numbers, digital age verification, or "any other reasonable measures that are feasible under available technology." n102 COPA also imposes a uniquely broad and novel standard for determining what is "harmful to minors," defining such material as that which is "obscene or that the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, is designed to appeal to, or ... pander to, the prurient interest." n103

Page 83 8 Pac. Rim L. & Pol'y 423, *435

Opponents of COPA struck first in the battle over the law's constitutionality. After an immediate challenge by the American Civil Liberties Union ("A.C.L.U.") and a consortium of Web site operators, a Pennsylvania district court enjoined the Department of Justice from enforcing COPA until a trial on the merits of the case. n104 Granting the request for injunctive relief, the court held that the plaintiffs were likely to succeed on the merits, finding a substantial likelihood that they would establish that the requirements of COPA would burden constitutionally protected speech. n105 Furthermore, the court held that the government was unlikely to prove that COPA was either narrowly tailored or the least restrictive means available to achieving its goal. n106 While recognizing a [*436] legitimate government interest in protecting minors, the court nevertheless noted that "the public interest is not served by the enforcement of an unconstitutional law." n107 The court aptly framed the complexity and tension underlying this case, and Congress' repeated attempts to regulate the Internet, concluding: "Perhaps we do the minors of this country harm if First Amendment protections, which they with age will inherit fully, are chipped away in the name of their protection." n108 Consequently, U.S. law continues to treat Internet content in a manner similar to content provided by traditional media. n109 Until Congress can fashion legislation that regulates Internet speech without offending First Amendment rights, it cannot place a special patrol on the information superhighway. n110 IV. Enforcing Censorship: Liability in Cyberspace Both Singapore and the United States have attempted to control the Internet through direct regulation. n111 However, in both nations, the extension and enforcement of private rights also shapes online conduct. n112 The Internet is a virtual world in which nearly any liability for private conduct might arise. However, because the Internet is principally a medium of mass communication, defamation provides the most likely cause of action in cyberspace. n113 [*437] A state may proscribe or protect particular speech through its allocation of common law liability among private parties. n114 Where the law vests rights in individuals, an aggrieved party may act as a private regulator and enforce state-sanctioned standards of conduct. n115 In this fashion, tort liability functions as a tool of the state by creating strong incentives for individuals to act in accordance with normative standards. n116 However, the unique nature of the Internet makes it difficult to determine fault and assign liability. Internet communication strains established doctrine of vicarious liability, as the ISP defies traditional categorization as either publisher or distributor. n117 Assigning liability for Internet speech is further complicated because a speaker may lurk anonymously in the vast expanse of cyberspace and an ISP cannot feasibly track and monitor the volume of material it carries each day. n118 Both Singapore and the United States have responded to these challenges by reducing liability exposure for ISPs. n119 However, regulation of individual speakers and Internet Content Providers may not require different legal treatment from traditional media. n120 In Singapore, the Internet Code of Practice, along with existing speech laws, provide a comprehensive legal basis for controlling Internet speech that takes place within Singapore's borders. n121 In the United States, despite the failure of both the CDA and COPA, a court is free to assess traditional common law liability when the [*438] speech is not protected under the First Amendment and a speaker with editorial control can be identified. n122 A. Liability of Internet Service Providers Under Singapore Law The revised Code clarified ISPs' and ICPs' duties under Singapore law and relieved them of liability for content beyond their control. n123 Underlying the SBA Code's relaxation of private liability is a practical compromise recognizing that technological and physical limitations minimize the agency's ability to enforce its regulations effectively. n124 Nevertheless, Singapore's law does not relieve an Internet author of liability under the Code or Singapore's speech laws. n125 Furthermore, Singapore's common law of defamation exerts additional control over speech that extends to Internet publication. n126

Page 84 8 Pac. Rim L. & Pol'y 423, *438

The SBA extends purveyors of third-party content sufficient freedom to operate by reducing liability exposure for material beyond their control. n127 They are required to block access to online content only when directed to do so by the SBA, or when they discover prohibited material in the normal course of exercising editorial duties. n128 Because liability does not attach when ISPs or ICPs have used "best efforts" to monitor their services, n129 the revised Code provides them with reassurance and incentive to self-regulate. B. Liability of Internet Service Providers in the United States Through legislation and judicial decision, the United States has adopted a similar approach in assessing the responsibility and liability of an Internet Service Provider. Section 230 of the Communications Decency [*439] Act n130 and subsequent case law interpreting this provision, grants ISPs broad immunity from harm caused by third-party content or comments carried over their equipment. n131 In addition, this statute shields an ISP from liability for any action taken to filter potentially harmful content. n132 Section 230 adopted as federal law the emerging majority view that an ISP is neither directly nor vicariously liable for the content or comments carried over its equipment. n133 In Religious Technology Center v. Netcom, the defendant online service provided Internet connectivity to the operator of a Bulletin Board Service ("BBS") critical of the Church of Scientology. n134 After the BBS operator posted portions of writings by the late founder of the church, L. Ron Hubbard, the Religious Technology Center, as holder of the copyright to Hubbard's work, brought an action against Netcom for copyright infringement. n135 The court denied the plaintiffs' motion for a preliminary injunction, holding that an ISP was not liable for direct infringement where users made and stored unauthorized copies on its equipment. n136 The court found that Netcom, an ISP which "does not create or control the content of information available to its subscribers" took no affirmative steps that directly resulted in the infringing activity. n137 The [*440] Netcom court established that liability for content does not attach to an ISP where the provider acts only as a conduit for information, offering its customers unfiltered, unmonitored Internet access and connectivity. In a similar case, Cubby, Inc. v. Compuserve, Inc., the court relieved the defendant ISP of liability, holding that where an ISP is merely a distributor of information, it may be held liable only when it knew or had reason to know of defamatory statements carried over its service. n138 In this case, the plaintiff sued defendant Compuserve for allegedly defamatory statements made by a publication carried in Compuserve's electronic library. n139 The court found that Compuserve had no editorial control over the publication and acted as a distributor, similar to "a public library, bookstore, or newsstand." n140 Finding that the plaintiff failed to show that Compuserve knew or had reason to know of the statements, the court granted Compuserve's motion for summary judgment. n141 However, where an ISP has held itself out as "edited" or "clean," some courts were willing to impose a stricter standard of care prior to the CDA. n142 In Stratton Oakmont, Inc. v. Prodigy Services Company, the New York Supreme Court held that an ISP can be liable when it actively monitored and edited content. n143 In this case, the court found the defendant ISP, Prodigy, liable for defamation arising from comments made about the plaintiff on a moderated bulletin board hosted by Prodigy. The court distinguished this case from Compuserve, finding that Prodigy held itself out as "an on-line service that exercised editorial control over the content of messages posted on its bulletin board service." n144 The court held that Prodigy exposed itself to greater liability than those ISPs acting only as "distributors" by making a "conscious choice" to gain the commercial and competitive benefits of editorial control. n145 Under section 230 of the Communications Decency Act, Congress codified the basic approach of Netcom and Compuserve and rejected the policy of Prodigy, by granting ISPs immunity from tort liability, even where the provider attempted to exercise editorial discretion or restrict access to [*441] "objectionable" material. n146 In addition to providing a broad exemption from "publisher liability" for third-party content carried over an ISP's network, n147 the law explicitly superceded Prodigy, removing the specter of publisher liability when an ISP opts to self-regulate and screen out potentially offensive material. n148 Congress intended 47 U.S.C. 230(c)(3) to relieve ISPs from liability for third-party content n149 while removing all disincentives for ISPs to self-police. n150

Page 85 8 Pac. Rim L. & Pol'y 423, *441

Judicial interpretation of this provision has further defined an ISP's duty under the law, establishing broad immunity from civil claims. n151 In Blumenthal v. Drudge, a Federal District Court granted defendant America Online's ("AOL") motion for summary judgment in a defamation action even though the Service Provider had purchased and actively promoted the allegedly defaming work of cyber gossip columnist Matt Drudge. n152 Sidney Blumenthal, a former journalist and aide to President Clinton, filed suit against both Drudge and AOL, after the online service carried a column in which Drudge published unsubstantiated accusations of spousal abuse by Blumenthal. n153 The court found that in hiring and promoting Drudge, AOL had engaged in activities beyond that of a mere distributor. n154 Nevertheless, the court held that section 230 of the CDA protected AOL from liability, despite the fact that it stood to gain financially from its contractual relationship with Drudge. n155 As a result of these cases, an ISP faces substantially less liability exposure than traditional print media. n156 Relieved of responsibility for third-party content, an ISP is now free to amass and distribute vast amounts of [*442] information without danger of incurring direct liability. By holding that section 230 of the CDA exempts the ISP from liability as either a publisher or distributor, Blumenthal and Zeran provide ISPs the option of creating an unchecked, free speech zone. On the other hand, by explicitly superceding Prodigy, section 230 allows ISPs the freedom to moderate content and offer "sanitized" service without exposure to a heightened standard of care. n157 C. The Convergence of U.S. and Singapore Law: Limited Liability for Internet Service Providers The U.S. Congress and courts appear to have reached the same conclusion as the Singapore government, characterizing ISPs as disseminators of information, while relieving them from the threat of civil liability. Both the United States and Singapore have created a legal structure designed to enlist the help of private ISPs in monitoring Internet activity and filtering "objectionable" content. n158 Singapore offers ISPs incentives to help the agency meet its objective of creating a sanitized online environment by granting ISPs relief from its exacting standards. n159 Similarly, section 230 of the CDA and the emerging U.S. case law allow an ISP in the United States the freedom to self-regulate with impunity. n160 The law enables an ISP to build networks rich with proprietary content produced by third-parties and provides incentives to create and market filtered online alternatives. n161 This policy choice recognizes the reality that given the volume of information traveling over any given computer network, an ISP cannot efficiently transmit data while adequately monitoring content. n162 The SBA relieved Singapore's service providers from liability for third-party content because it was both impractical and unreasonable to hold the providers to such a high standard of care. n163 Furthermore, the U.S. cases demonstrate that imposing liability on Service Providers for the content on their networks creates strong disincentives for exercising even minimal editorial control. n164 Internet Service Providers offer a unique mix of services. While an ISP displays some characteristics of traditional broadcast media, it also [*443] functions in a manner more akin to a utility. An ISP has the potential to offer both proprietary content and provide a window to the unlimited array of resources housed in cyberspace. Although an ISP might occasionally play a role in promoting or developing third-party content (as in Blumenthal), often service providers assume a far more passive position, acting more like a "common carrier" moving "data from one computer to another with no regard for the information being transferred." n165 Consequently, Congress has provided ISPs statutory immunity with respect to third-party content, superceding duties arising under state tort law. n166 V. Singapore Internet Regulation In Practice: Enforcement In "Sleep Mode" A. Practical and Technical Limitations on Filtering Although Singapore passed ambitious regulatory programs for censoring cyberspace, actual enforcement of the law has lagged. One commentator described Singapore's enforcement as lapsing into "sleep mode." n167 The SBA's passive enforcement of its Code demonstrates the unique problems presented by the Internet as a medium and the limitations of filtering technology. Although server-level filtering via proxy server technology allows a modicum of control over the

Page 86 8 Pac. Rim L. & Pol'y 423, *443

flow of information, this approach is insufficient given the Internet's unprecedented scope and constantly evolving nature. n168 Despite the SBA's broad authority to censor Internet activity, the agency has adopted an approach it describes as a "light touch." n169 The Internet Code of Practice empowers the SBA to identify and block access to "objectionable" sites. However, the SBA has asserted this authority sparingly, limiting its "blacklist" to only one hundred "high-impact" pornography sites. n170 Recognizing the sprawling, fluid nature of cyberspace, [*444] the SBA urges individual users to practice self-regulation while as a "token gesture," it keeps the list of banned sites at an even one hundred. n171 Although political and religious sites are required to register under the Class Licence Notification, the SBA claims it does not intend either to censor or ban them. n172 Rather, the SBA asserts that it wants merely to hold individuals and organizations accountable for the views they promote and espouse. n173 Content filtering at the server level can only be as effective and comprehensive as the censors employed to evaluate and identify the myriad of sites on the Web. Although Singapore could address this problem by employing an army of censors to monitor constantly the Internet's vast terrain, it has opted instead to apply a more cooperative approach, stressing public education and industry self-regulation. n174 As part of the SBA's aggressive public education effort, the Agency has created a "Tips for Parents" page on its Web site, offering information on the strengths and dangers of the Internet, strategies for additional filtering and supervision, and a list of Web sites it considers appropriate for children. n175 In addition, the agency encourages parents to subscribe to "Family Service Networks" for additional network-level filtering. n176 B. Commercial Concerns Limit Vigilance of Enforcement Effort Relaxed enforcement of the SBA's regulations is partially related to broader concerns for Singapore's image in the international marketplace. n177 Although wary of the more pernicious side of the Net, Singapore's leadership has placed a high priority on Internet development and has made a concerted effort to become an important Asian hub for the information [*445] technology industry. n178 Singapore officials recognize that financial leadership in the "Information Age" requires a free flow of data, and that strict regulation can stifle innovation and hinder business development. n179 To attain regional leadership in the industry, Singapore has aggressively recruited infotech and e-commerce firms. n180 These efforts have been harmed by an international perception that Singapore was engaged in a program of widespread, draconian censorship. n181 This perception led Singapore's National Internet Advisory Committee to recommend that the SBA promulgate its rules with greater specificity n182 and better promote its positive goals for facilitating Internet development. n183 As a result, Singapore's initial regulatory zeal may have been tempered by pressure from the international business community. n184 C. The Symbolic Value of Regulation Despite its "light touch," n185 the Singapore Internet Code of Practice retains some potency, both as a symbol and as an instrument of control. In practice, Singapore's Internet censorship regulations are merely "symbolic acts, rather than a practical attempt to enforce its policy." n186 The fact that the Code remains in force allows the government a legitimate means for controlling Internet activity if and when it chooses to do so. To date, ISPs and ICPs have generally abided by the SBA's guidelines, and the SBA has not "taken action against anyone for objectionable content on the Internet." n187 Furthermore, the Agency has banned only a sliver of the Web [*446] sites it could potentially designate as "objectionable" under the Internet Code of Practice. n188 Nevertheless, the existence of a valid regulatory scheme provides the government with a statutory basis to exert state power on occasions it deems necessary. The value of a regulation may be measured beyond the scope of its effectiveness, especially when regulating cyberspace. According to Professor Lawrence Lessig, "A regulation need not be absolutely

Page 87 8 Pac. Rim L. & Pol'y 423, *446

effective to be sufficiently effective. It need not raise the cost of the prohibited activity to infinity in order to reduce the level of that activity quite substantially." n189 Although Singapore's regulatory apparatus cannot entirely block access to objectionable content, where "regulation increases the cost to this kind of information, it will reduce access to this information." n190 Singapore has minimally enforced the Code; nevertheless, the Code carries symbolic weight, defining the outer limits of the community's tolerance while serving notice of the government's desire to enforce these limits. VI. Modes of Enforcement: Models of Internet Regulation A regulatory scheme is at its core an exercise of state power, restricting individual liberty to further the state's policy objectives. However, the state may assert itself in a variety of ways, taking into account the legitimacy of the regulatory arrangement and the likelihood that the regulation will be effective. n191 Both Singapore and the United States have attempted to regulate Internet activity, and despite significant differences in culture and political systems, both nations' regulatory programs have been hampered by similar challenges. Although Singapore law permits certain forms of censorship, n192 the Internet's nonlinear, amorphous, and almost infinite scope makes comprehensive regulation nearly impossible. Despite the SBA's ambitious plan, its program of Internet regulation has had minimal practical effect. n193 In the United States, efforts to control cyberspace have been checked not only by technological limitations but also by constitutional constraints. n194 Yet, despite these challenges, government can play some role in helping shape its citizens' [*447] online environment. This section will explore various models of state action and evaluate each paradigm as to its applicability for regulating Internet content. A. Father Knows Best: The State as a Benevolent Parent With this paradigm, the State supplies a normative moral code, a filter through which information must pass before reaching the end user. Essentially, this is Singapore's original plan; require all access through heavily regulated proxy servers capable of filtering out objectionable content. n195 An advantage of this approach is that network-level filtering eliminates the jurisdictional problem of trying to regulate ICPs situated beyond a state's borders. n196 Rather than attempting to control the infinite array of ICPs that exist in cyberspace, regulatory efforts can be focused on a limited number of ISPs, situated squarely within the state's jurisdiction. In practice, however, the prophylactic value of such an approach is questionable, even in a community as small as Singapore. Assuming that proxy server technology advanced to the point where the servers could accommodate large national networks, comprehensive immunization from objectionable content would still require significant human resources, including a vast staff of censors, constantly monitoring the Web and updating the servers' cache. In addition, the proxy server's performance would exponentially decline as more sites were blocked, because the server must check each user request against the list of prohibited Web sites. n197 The fact that Singapore has chosen to ban only a symbolic list of one hundred pornographic sites n198 demonstrates the inherent difficulty in identifying, monitoring, and policing cyberspace. Although network-level filtering might prove useful in small, close-knit communities, this approach is unlikely to work effectively on a national level. B. Big Brother is Watching: The State as Enforcer of Moral Standards Although Singapore law permits the state to establish standards of morality, n199 enforcing such standards on the Internet has proven both [*448] impracticable and futile. Practical and technical considerations have minimized the state's ability to enforce its initially ambitious regulatory program vigorously. n200 Meanwhile, strict regulation has proven burdensome for local business, slowing connectivity while harming Singapore's image in the international marketplace. n201 Therefore, Singapore has backed away from its initial policies, relaxing civil liability for ISPs n202 while opting not to enforce its Code against private users. n203 Singapore's Internet Code of Practice remains legally operative, and the specter of enforcement carries some

Page 88 8 Pac. Rim L. & Pol'y 423, *448

symbolic weight, n204 leading Singapore based ICPs to comply generally with the regulations. n205 Nevertheless, a nation cannot legitimately legislate beyond its jurisdiction. n206 Singapore-based ICPs constitute only a mere ripple in a vast ocean, and full compliance with the Code would have marginal aggregate impact. Recognizing "a limit to what domestic legislation can achieve in the face of a global and borderless medium like the Internet," the SBA "strongly emphasises public education and industry self-regulation in addition to government regulation." n207 C. I'm OK, You're OK: Peer-Review and Industry Self Regulation Similar to the television and motion-picture industries, a government could encourage self-regulation by entrusting industry members and organizations to establish and enforce Internet standards more aggressively. Under this approach, ICPs and ISPs could establish industry standards for online content and institute their own methods for enforcement. Such an approach is already underway in Singapore, where the SBA has attempted to achieve its goal of "creating an environment in which self-regulation might flourish." n208 Similarly, in the United States, ratings systems developed by private parties are proliferating. n209 [*449] However, private ratings systems offer a far from perfect solution and even if a single system were to become standard, significant problems would remain. The breadth and democratic nature of the Internet ultimately limits the effectiveness of any ratings system, because blocking software works perfectly only when all sites are rated. n210 On the World Wide Web, virtually anyone possessing moderate computer literacy can set up a site and compete with mega-media conglomerates on a reasonably level playing field. As a result, it is unlikely that even the most comprehensive rating service could continuously monitor and rate the entire World Wide Web. n211 Furthermore, it is impossible to craft an objective, value-neutral system of censorship; all filtering and rating systems necessarily incorporate distinct value judgments, blocking speech based on the system's internal political and social biases. n212 Exclusive reliance on voluntary self-rating is unrealistic, as few content providers are likely to have sufficient incentives for participation. n213 Although compulsory self-rating might prove moderately effective in a small, tightly controlled nation such as Singapore, a nation can only regulate within its own jurisdiction. n214 Therefore, the international character of the Internet is likely to undermine this approach because it would be impossible to mandate use of any particular standard. Inevitably, any system designed to rate and filter Internet content will either be overinclusive or underinclusive. A system permitting access to un-rated material is ineffective, whereas a system that unilaterally blocks un-rated material will deny access to innocuous and potentially valuable speech. n215 As a result, content rating systems could end up stripping the Internet of the medium's most compelling characteristics, breadth and diversity, leading to a flat online environment composed only of commercially produced content. n216 Although rating systems offer a promising, less restrictive alternative to overt content regulation, where [*450] strictly implemented, these systems impose identifiable social costs, by sharply reducing access to valuable, idiosyncratic speech. n217 D. Toward a Market-Based Alternative: Empowering Communities and Individuals to Patrol the Net Although the Internet belies direct, heavy-handed regulation, government can nevertheless play an important role in helping communities and individuals create ideal online environments. Similar to traditional media, active parental supervision leads to the safest online environment. Although state action is unlikely to alter significantly the type of material available on the Internet, certain measures can empower parents to select and tailor Internet service to fit their values. In Singapore, at the direction of the SBA, all three ISPs now offer "Family Access Networks" that filter out additional pornographic and "undesirable" sites at the server level. n218 These services offer consumers a simple, network-level alternative to unrestricted access. n219 In the United States, impunity from civil liability has freed ISPs either to filter or not, depending on market

Page 89 8 Pac. Rim L. & Pol'y 423, *450

preferences. n220 By relieving ISPs from the haunting specter of civil liability, Congress is allowing the ISPs to create and provide the type of services the market most desires. n221 Given the variety of barriers to effective Internet filtering, a market-driven approach might prove to be the most promising long-term solution in both nations. Although this model requires substantial parental supervision, it allows each family to control the type of content it receives. In a market that allows private entities to self-regulate, a family may either subscribe to an online community with shared values or use filtering software to shape a personalized Internet environment tightly aligned with its own value preferences. Although Internet censorship by government authorities might be impractical or even pernicious, a marketplace populated by informed and equipped consumers could wield substantial clout. Market pressures could regulate Internet content by forcing consumers and ISPs to create clearly delineated zones of cyberspace where "content or conduct acceptable in one "area' of the Net may be banned in another." n222 [*451] VII. Conclusion The unique challenge presented by the Internet has led governments across the globe to embark on ambitious regulatory schemes. The experience with Internet regulation in both Singapore and the United States teaches valuable lessons about this new medium and the best way to harness its power within the law. Although both nations passed comprehensive legislative packages, the principal concern was limiting access to pornography. For different reasons, the regulations have failed in both nations. In Singapore, the SBA discovered that the Internet's vast, decentralized nature rendered comprehensive censorship virtually impossible to achieve. As a result, the SBA has retreated from its initial program and focused on more modest goals such as encouraging industry self-regulation and empowering families. n223 In the United States, congressional efforts to regulate the Internet have been stymied by First Amendment concerns. n224 Although constrained by different forces, the net result in both countries has been similar. Even where the law constitutes a legitimate exercise of state authority, broad regulations aiming to censor Internet content have proven impossible to enforce. n225 One approach to taming the Net is holding an ISP liable for the entire online environment it provides. However, in both Singapore and the United States this policy has been explicitly rejected, and ISPs in both countries face no direct liability for content carried and distributed over their services. n226 The explosive growth of Internet communication poses unique challenges for government regulators. The examples in this Comment suggest that although a state might be tempted to unleash its heavy artillery and enter the fray with a comprehensive regulatory program, perhaps a more limited response would prove most effective. No single entity, either public or private, can possibly canvas, rate, and monitor the entire World Wide Web. As a result, the best instrument of control might be the pressure of an open marketplace in which consumers may select the ISP or filtering software that best accommodates their values and preferences. [*452] A revolutionary technology, the Internet challenges our present conception of state intervention and regulation. However, as the state adjusts to previous advances in communications technology, existing institutions of governance will also adapt to this medium. n227 At this stage of the Internet's development, a government seeking to tame the wilds of cyberspace would be well served to recognize the powerful forces limiting effective government action. Nevertheless, as the examples of Singapore and the United States demonstrate, a state can contribute to the evolution of a healthy Internet environment. A practical approach consists of a partnership between the state, private purveyors, and end users, in which the state provides the education and tools necessary to empower individuals to control their own Internet access.

Page 90 8 Pac. Rim L. & Pol'y 423, *452

Legal Topics: For related research and practice materials, see the following legal topics: Communications LawInternet ServicesComputer & Internet LawCensorshipElectronic MediaComputer & Internet LawCensorshipFirst Amendment Protections FOOTNOTES:

n1. David R. Johnson & David Post, Law and Boarders - The Rise of Law in Cyberspace, 48 Stan. L. Rev. 1367, 1368-76 (1996). n2. Jim Erickson, www.Politics.com, Asiaweek, Oct. 2, 1998, at 42, available in LEXIS, Asiapc Library, Asiaweek File. n3. Id. Countries such as China, Mynamar, and Vietnam all restrict Internet access to varying degrees. Id. n4. Censorship on the "Net": The View from Overseas, Network World, Oct. 27, 1997, at 51, available in LEXIS, Busfin Library, Abi File. n5. A. Shukor Rahman, Another Bid to Regulate the Net, New Straits Times (Malaysia), Feb. 16, 1998, at 20, available in LEXIS, Asiapc Library, Nstrtt File. n6. Siti Rahil & Shuichi Nakamura, Internet Braves Singapore's Tight Censorship Rule, Japan Econ. Newswire, Aug. 24, 1996, available in LEXIS, Asiapc Library, JEN File. n7. Teo Pho Keng & Oon Yeoh, Neighbors Race to Become Asian IT Hub: Singapore, Malaysia, Plan Huge Internet Networks to Attract Investment, Nikkei Weekly, Nov. 17, 1997, at 21, available in LEXIS, Asiapc Library, Nikkei File. n8. Erickson, supra note 2. n9. Singapore Broadcast Authority, How We Began (visited Mar. 31, 1999) [hereinafter How We Began]. Following the privatization of Singapore's broadcasting industry, the SBA was established under the Singapore Broadcasting Authority Act, Statutes of the Rep. of Sing., Ch. 297 (1995) (Sing.), to regulate and promote broadcasting in Singapore. Id. n10. Singapore Broadcast Authority, SBA and the Internet (1999) (visited Mar. 31, 1999) [hereinafter SBA and the Internet]. n11. Teo Pho Keng & Oon Yeoh, supra note 7.

Page 91 8 Pac. Rim L. & Pol'y 423, *452

n12. Id. n13. Siti Rahil & Shuichi Nakamura, supra note 6. In addition, the SBA reports that with about 600,000 subscribers as of February 1999, Singapore has one of the highest Internet penetration rates in the world. Singapore Broadcast Authority, SBA's Approach to the Internet (1999) (visited Mar. 31, 1999) [hereinafter SBA's Approach]. n14. Teo Pho Keng & Oon Yeoh, supra, note 7. Since 1996, the number of Web sites in Singapore has grown from 900 to over 5500. The SBA has placed a priority on increasing this number. SBA's Approach, supra note 13. n15. SBA's Approach, supra note 13. On its Web site, the SBA notes that the Internet has "opened up a Pandora's box in terms of content which [sic] is unsuitable for children." Id. n16. SBA and the Internet, supra note 10. On its Web site, the SBA states that its goal is "to develop and harness the full potential of the Internet while at the same time, maintain social values, racial, and religious harmony in Singapore." Id. n17. Siti Rahil & Shuichi Nakamura, supra note 6. When the SBA introduced its regulatory program, George Yeo, Singapore's Minister for Information and the Arts, explained that the government would "regulate the Internet with a light hand... our objective is to promote it, not to impede its development." Id. See also SBA and the Internet, supra note 10. n18. Singapore Broadcast Authority, Industry Guidelines on the Singapore Broadcasting Authority's Internet Policy para. 3 (Oct. 22, 1997), available in SBA's Approach, (visited Mar. 31, 1999) [hereinafter Industry Guidelines]. n19. Id. para. 3.b. n20. See Communications Decency Act of 1996, Pub. L. 104-104, 110 Stat. 56 (1996) (codified in scattered sections of 47 U.S.C.); see also Child Online Protection Act, Pub. L. No. 105-277, Div. C, Title XIV, 1403, 112 Stat. 2681-736 (1998) (codified at 47 U.S.C.A. 231 (West Supp. 1999)). n21. See Reno v. A.C.L.U., 521 U.S. 844 (1997) (holding that by prohibiting transmission of "obscene or indecent" material to minors under age 18 the Communications Decency Act impermissibly abridged First Amendment freedoms); see also A.C.L.U. v. Reno, 31 F.Supp.2d 473 (E.D. Pa. 1999) (enjoining United States Department of Justice from enforcing the Child Online Protection Act). See discussion infra notes 95-108 and accompanying text. n22. Ray Heath, Lion Closes Net on Rogue Sites, S. China Morning Post, Sept. 20, 1996, at 35, available in LEXIS, Asiapc Library, Schina File. n23. Const. of the Rep. of Sing. art. 14 para. (1)(a).

Page 92 8 Pac. Rim L. & Pol'y 423, *452

n24. Id. art. 14 para. (2)(a). Article 14 para. (2)(a) provides that the Singapore Parliament may impose restrictions on the free speech rights conferred by the Constitution where "necessary or expedient in the interest of the security of Singapore or any part thereof, friendly relations with other countries, [and] public order or morality." Id. n25. Singapore Broadcasting Authority Act, Statutes of the Rep. of Sing., ch. 297 (1995) (Sing.). n26. Undesirable Publications Act, Statutes of the Rep. of Sing., ch. 338 (1985) (Sing.). n27. Maintenance of Religious Harmony Act, Statutes of the Rep. of Sing., ch. 167A (1991) (Sing.). n28. Sedition Act, Statutes of the Rep. of Sing., ch. 290 (1985) (Sing.). n29. The Singapore Broadcasting Authority (Class Licence) Notification 1996, available in SBA's Approach (visited Mar. 31, 1999) [hereinafter Class Licence Notification]. This regulation, in operation as of July 15, 1996, was issued by the SBA under the power vested by Section 21 of the Singapore Broadcasting Authority Act, Statutes of the Rep. of Sing., ch. 297 (1995) (Sing.). Id. para. 1. n30. The Internet Code of Practice, available in SBA's Approach (visited Mar. 31, 1999) [hereinafter Code]. This regulation, issued by the SBA under the power vested in it by Section 18 of the Singapore Broadcasting Authority Act, Statutes of the Rep. of Sing., ch. 297 (1995) (Sing.), took effect November 1, 1997. Id. para. 1. For discussion of the Code see generally infra notes 69-91 and accompanying text. n31. Class Licence Notification para. 2. This includes:

a. an Internet Access Service Provider licensed under Section 26 of the Telecommunication Authority of Singapore Act (Cap. 323); b. a localised Internet Service Reseller; or c. a Non-localised Internet Service reseller.

Id. Also, according to the SBA, an Internet Service Reseller is one who provides public access to the Internet through ISPs and includes such organizations as schools, public libraries, and cybercafes. Industry Guidelines, supra note 18, para. 7. Singapore is currently served by three local ISPs which provide primary access to the Internet: SingNet, Pacific Internet and CyberWay. Id. n32. Id. para. 2.

Page 93 8 Pac. Rim L. & Pol'y 423, *452

n33. Id. para. 4.2(1) (requiring all ISPs to register with the SBA within 14 days of providing service); para. 3(b) (requiring specified content providers to register within 14 days after the commencement of its service.). For a discussion of which ICPs are required to register with the SBA, see infra notes 64-68 and accompanying text. n34. Class Licence Notification para. 4.2(1)(c). n35. Id. para. 4.11-.12. n36. Tong Ming Chien, Device to Block Out Blacklisted Web Sites, Straits Times (Sing.), July 20, 1996, at 6, available in LEXIS, Asiapc Library, Strait File. n37. Id. Traditional filtering at the service provider level requires the ISP to install additional computers, called "routers," which check each request made by a user. Such an approach is both expensive and inefficient, slowing down access for all users. Id. n38. Id. n39. Id. n40. Id. n41. Lavinia Ng, Cyber Trade Taking Root in Singapore: Arguments Remain on How Internet Regulation Affects Online Commerce, Nikkei Weekly, July 13, 1998, at 18, available in LEXIS, Asiapc Library, Nikkei File. n42. Tong Ming Chien, supra note 36. n43. Lavinia Ng, supra note 41. According to Lee Lit Seang, SBA assistant director, "Although there are other ways of blocking out objectionable sites, using proxy servers helps ISPs control and censor Internet traffic better." Tong Ming Chien, supra note 36. n44. Naughty Sites Still Accessible: Device to Block Out Blacklisted Web Sites, Straits Times (Sing.), July 20, 1996, available in LEXIS, Asiapc Library, Strait File. Lee Lit Seang, SBA assistant director concedes that "parents are the first line of defence... the SBA censorship can only be the last resort." Id. n45. Singapore To Introduce Child-Safe Internet Service, Agence France Presse, Mar. 17, 1998, available in LEXIS, News Library, Afpfr File. n46. Id.. All three of Singapore's ISPs launched "Family Access" filtering services in 1998. SBA's Approach, supra note 13.

Page 94 8 Pac. Rim L. & Pol'y 423, *452

n47. Id. According to the SBA, "The optional service will filter out pornographic sites and provide an optional, hassle-free network-level solution to parents who are concerned with pornography on the Internet but are unfamiliar with the use of stand-alone filtering software such as CyberPatrol and NetNanny. This network-level filtering makes it more difficult for smart children to bypass or tamper with the filter settings." Singapore Broadcast Authority, Tips for Parents (visited Mar. 31, 1999) [hereinafter Tips for Parents]. n48. National Internet Advisory Committee, Report of the National Internet Advisory Committee 1996/1997, available in SBA and the Internet (visited Mar. 31, 1999) [hereinafter NIAC Report1996/97]. Appointed by the Ministry of Information and the Arts in August 1996, the NIAC, comprised of 19 members, advises the SBA on "the regulation of electronic information services and the development of the industry ... [and] assists SBA in the development of its regulatory framework for the Internet." Id. at para. 1. n49. National Internet Advisory Committee, Report of the National Internet Advisory Committee 1997/1998, at Annex B available in SBA and the Internet (visited Mar. 31, 1999) . In the United States, similar efforts to regulate Internet access in public space have failed to withstand Constitutional scrutiny. Mainstream Loudoun v. Bd. of Trustees of Loudoun County Library, 24 F.Supp.2d. 552, 567 (E.D. Va. 1998) (holding that a Virginia community's attempt to equip Internet terminals in its public library with filtering software violated the First Amendment by restricting "what adults may read to a level appropriate for children"). n50. Tong Ming Chien, supra note 36. The SBA recognizes that proxy servers only form a front line of defense and actively encourages parental supervision. Id. n51. Class Licence Notification para. 4.2. For discussion of the Code and an ISP's duty under the Code, see generally infra notes 69-91 and accompanying text. n52. Advisory Board in Singapore Calls for Clearer Internet Rules, Deutsche Presse-Agentur, Sept. 25, 1997, available in LEXIS, News Library, DPA File. n53. NIAC Report1996/97, supra note 48, para. 6. n54. Id. at paras. 8-9. n55. Id. at paras. 11-12. n56. Singapore Government to Revise Internet Regulatory Code, Deutsche Presse-Agentur, Oct. 20, 1997, available in LEXIS, News Library, DPA File. n57. Edmund Tee, Revised Internet Code Makes Taboo Areas Clear, Straits Times (Sing.), Oct. 23, 1997, at 3, available in LEXIS, Asiapc Library, Strait File.

Page 95 8 Pac. Rim L. & Pol'y 423, *452

n58. Code para. 3. n59. Id. at para. 3(1). n60. Id. at para. 3(2)(a-b). n61. Industry Guidelines, supra note 18, para. 16; see also Tee, supra note 57. n62. Industry Guidelines, supra note 18, para. 16. According to the SBA, its "purview covers the provision of material to the public. It is not concerned with what individuals receive, whether in the privacy of their own home or at their workplace." SBA's Approach, supra note 13. The SBA further states that private communication, either via electronic mail or Internet Rely Chat (IRC), falls outside the scope of the regulations. Id. n63. Code para. 3(5). n64. Class Licence Notification para. 2. According to the SBA, an ICP is defined as: any individual in Singapore who provides any programme, for business, political or religious purposes on the World Wide Web through the Internet; or any corporation, group of individuals (including any association, business, club company, society, organisation or partnership, whether registrable or incorporated under the laws of Singapore or not) who provides any programme on the World Wide Web through the Internet, and includes any web publisher and web server administrator. Id. n65. Id. para. 4.3-4. n66. Id. para. 4.4.a. n67. Industry Guidelines, supra note 18, para. 9. n68. Singapore Broadcast Authority, Myths and Facts about SBA and the Internet, available at SBA's Approach, supra note 13. Having experienced a series of race riots in the 1950s and 1960s Singapore is especially wary of the potential that the Internet could become a platform for "inflammatory and possibly insidious discussions which could incite religious and racial discord." Singapore Broadcast Authority, Frequently Asked Questions, available in SBA's Approach supra note 13. For further discussion of Singapore's regulation of Internet content and ICPs, see generally Sarah B. Hogan, To Net or Not to Net: Singapore's Regulation of the Internet, 51 Fed. Comm. L.J. 429, 436-40 (1999). n69. SBA's Approach, supra note 13. n70. Class Licence Notification paras. 4.11-12.

Page 96 8 Pac. Rim L. & Pol'y 423, *452

n71. Code para. 3(4). n72. Id. para. 3(3)(a). n73. Id. para. 3(3)(b). n74. Id. para. 3(3)(c). n75. Id. para. 4. n76. Singapore Government to Revise Internet Regulatory Code, supra note 56. n77. Tee, supra note 57. n78. Jason Tan, New Net Rules Show S'Pore is Ready to Become Info Hub, Straits Times (Sing.), Oct. 25, 1997, at 65, available in LEXIS, Asiapc Library, Strait File. n79. Industry Guidelines, supra note 18, at paras. 14-15. n80. Id. para. 15. n81. Id. para. 14. n82. Code para. 4(1). n83. Id. para. 4(2)(a). n84. Id. para. 4(2)(b). n85. Id. para. 4(2)(c). n86. Id. para. 4(2)(d). n87. Id. para. 4(2)(e). n88. Id. para. 4(2)(f). n89. Id. para. 4(2)(g).

Page 97 8 Pac. Rim L. & Pol'y 423, *452

n90. Id. para. 4(3). n91. Tee, supra note 57. n92. Communications Decency Act of 1996, Pub. L. 104-104, 110 Stat. 56 (1996) (codified in scattered sections of 47 U.S.C.). n93. 47 U.S.C. 223(a)(Supp. II 1996) (held unconstitutional in part by the United States Supreme Court in Reno v. A.C.L.U. 521 U.S. 844, 883 (1997)). Section 223(a)(B)(ii) prohibits an individual from transmitting "any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated the communication." 47 U.S.C. 223(a)(B)(ii)(emphasis added). n94. 47 U.S.C. 223(d) (held unconstitutional by the United States Supreme Court in Reno, 521 U.S. at 883). This provision prohibits use of an interactive computer service to either send or display, "any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by community standards, sexual or excretory activities or organs, regardless or whether the user of such service placed the call or initiated the communication." 47 U.S.C. 223(d)(1)(A)-(B)(emphasis added). n95. Reno, 521 U.S. at 879 (holding that the governmental interest to protect children from harmful materials does not justify an unnecessarily broad suppression of adult speech and that the CDA effectively suppresses a large amount of protected speech where less restrictive alternatives are available. The Court further notes that "the level of discourse reaching a mail box simply cannot be limited to that which would be suitable for a sandbox," (quoting Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 74-75 (1983)). n96. Reno, 521 U.S. at 874 (quoting Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989)). n97. Reno, 521 U.S. at 874-79. However, finding the ban on "obscene" transmissions in 47 U.S.C. 223(a)(1)(B)(ii) constitutional, the court utilized the Act's severing clause, 47 U.S.C. 608 (1994), striking the words "or indecent" 223(a)(B)(ii), while leaving the rest of 223(a) intact. Id. at 883. n98. Reno, 521 U.S. at 870-74. n99. Child Online Protection Act, 47 U.S.C.A. 231 (West Supp. 1999) (enforcement by United States Department of Justice enjoined in A.C.L.U. v. Reno, 31 Fd.Supp.2d. 473, 498 (E.D. Pa. 1999)). n100. 47 U.S.C.A. 231(a)(1). Under the statute, "a person shall be considered to make a communication for commercial purposes only if such person is engaged in the business of making such communications." 47 U.S.C.A. 231(e)(2)(A). COPA further defines "engaged in the business" to mean a person "who makes a communication, or offers to make a communication, by means of the World Wide Web, that includes any material that is harmful to minors, ... as a regular course of such person's trade or business, with the objective of earning a profit as a result of such activities ..." 47 U.S.C.A. 231(e)(2)(B).

Page 98 8 Pac. Rim L. & Pol'y 423, *452

n101. 47 U.S.C.A. 231(a)(1)-(3). Under COPA violators face up to six months imprisonment and fines of up to $ 50,000. In addition, the statute also allows for additional civil penalties and even more substantial fines where the violation is intentional. Id. n102. 47 U.S.C.A. 231(c). n103. 47 U.S.C.A. 231(e)(6) (emphasis added). n104. A.C.L.U. v. Reno, 31 F. Supp.2d 473 (E.D. Pa. 1999). n105. Id. at 495 (holding that the "uncontroverted evidence showed" there is no way to restrict the access of minors without pre-screening all users). n106. Id. at 497 (finding evidence that filtering software might, in practice, be more effective than COPA for protecting minors without imposing burdening constitutionally protected speech). n107. Id. at 498. n108. Id. n109. Reno v. A.C.L.U. 521 U.S. 844, 870 (1997) (reasoning that "our cases provide no basis for qualifying the level of First Amendment scrutiny that should apply to this medium."). n110. A.C.L.U. v. Reno, 31 F. Supp.2d at 498. For further discussion of the status of the law in the United States involving liability of ISPs for third party content, see infra notes 130-157 and accompanying text. n111. See supra notes 22-91 and accompanying text for discussion of the law in Singapore and supra notes 92-110 for discussion of the law in the United States. n112. Tang Liang Hong v. Lew Kuan Yew & Anor 1998-1 Sing. L. Rep. 97, 1997 SLR LEXIS 215 (Sing. C.A.) (applying Singapore's common law of defamation to statements published first in the Straits Times and later republished on the newspaper's World Wide Web site). Hong illustrates how private liability arising under the law of defamation constrains speech. Id. at para. 117. The Singapore Court of Appeal noted that freedom of speech is neither absolute nor totally unrestricted. Id. Rather, "freedom of expression is perfectly legitimate so long as it does not encroach upon the realm of defamation." Id. For discussion of how common law rules have shaped ISP liability in the United States see infra notes 134-157 and accompanying text. n113. David R. Sheridan, Zeran v. AOL and the Effect of Section 230 of the Communications Decency Act Upon Liability for Defamation on the Internet, 61 Alb. L. Rev. 147, 149 (1997). The revolutionary nature of Internet communication offers unprecedented opportunity for reckless individuals to harm others "by propagating false and defamatory statements around the world at the speed of light." Id. at 151. For discussion of how defamation claims have helped provide the basis for establishing liability for ISPs in the United States see infra notes 130-157 and accompanying text.

Page 99 8 Pac. Rim L. & Pol'y 423, *452

n114. New York Times v. Sullivan, 376 U.S. 254, 265 (1964) (holding that enforcement of state libel law by Alabama state courts constitutes state action, even in a civil lawsuit between private parties). Writing for the majority, Justice Brennan noted, "It matters not that the law has been applied in a civil action and that it is common law only... The test is not the form in which state power has been applied but, whatever the form, whether such power has in fact been exercised." Id. at 265. See also Ruzicka v. Conde Nast Publications, Inc., 733 F.Supp 1289, 1295-96 (D. Minn. 1990) (holding that state law placement of the burden of proof in a civil contract claim involving the publication of sensitive information constitutes state action in which speech is deterred through fear of liability). n115. Keith N. Hylton, Implications of Mill's Theory of Liberty for the Regulation of Hate Speech and Hate Crimes, 3 U. Chi. L. Sch. Roundtable 35, 38 (1996). Hylton notes that speech may be regulated either by "public officials [who] enforce command and control statutes that specify the range of lawful conduct," or by "liability rules that create incentives for private individuals to enforce constraints on ... conduct." Id. n116. Lingens v. Austria, 8 Eur. Ct. H.R. (ser. a) at 407, para. 46 (1986). In Lingens, the European Court of Human Rights held that Austrian law requiring proof of the truth of a defamatory opinion violated the convention's free speech provisions. Id. at para. 55. The court noted the chilling effect of civil liability, finding that Austria's law created a burden of proof regarding value judgements that is "impossible of fulfilment and it infringes the freedom itself." Id. at para. 46. n117. Andrew J. Slitt, The Anonymous Publisher: Defamation of the Internet After Reno v. American Civil Liberties Union and Zeran v. America Online, 31 Conn. L. Rev. 389, 390, 412-413 (1998). n118. Id. at 414. n119. See infra notes 158-166 and accompanying text. n120. Robert M. O'Neil, The Drudge Case: A Look at Issues in Cyberspace Defamation, 73 Wash L. Rev. 623, 634 (1998). n121. See supra notes 22-28, 75-91 and accompanying text. n122. O'Neil, supra note 120, at 634-35. n123. Code para. 3(3)-(5). n124. See also infra notes 167-176 and accompanying text. n125. See supra notes 75-91 and accompanying text for discussion of the Internet Code of Practice; supra notes 22-28 and accompanying text for discussion of speech laws under Singapore's Constitution and Statutes. n126. Lee Kuan Yew v. Jeyaretnam JB (No. 1) 1990 Sing. L. Rep. 688, 1990 SLR LEXIS 345, *53 (Sing. High Ct.) (holding that "freedom of speech is in terms of art. 14 [of the Constitution of the Republic of

Page 100 8 Pac. Rim L. & Pol'y 423, *452

Singapore] subject to or restricted by the law of defamation"). Rejecting the rule of New York Times v. Sullivan, 376 U.S. 254 (1964), Singapore's High Court noted that the framers of Singapore's Constitution, "had after all deliberate considerations chosen the policy of balancing freedom of speech and expression against certain other individual rights, including not least the protection of reputation." Id. at *53-*57. See also, Goh Chok Tong v. Tang Liang Hong, 1997-2 Sing. L. Rep. 641, 1997 SLR LEXIS 43, *58 (Sing. High Ct.). n127. Code para. 2-3. See also supra notes 57-63 and accompanying text. n128. Code para. 3. See also supra notes 57-63 and accompanying text. n129. Code para. 2-3. n130. 47 U.S.C. 230(c)(2) (Supp. II 1996). The statue provides that:

1) Treatment of publisher or speaker. No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider. 2) Civil liability. No provider or user of an interactive computer service shall be held liable on account of A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable, whether or not such material is constitutionally protected; or B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

Id. Although the Supreme Court struck down the "indecency" and "patently offensive" provisions of the Communications Decency Act in Reno v. A.C.L.U. 521 U.S. 844, 883 (1997), the Act included a severability clause, 47 U.S.C. 608 (1994), that allowed 230 to remain intact and in force after Reno. See generally Elizabeth deGrazia Blumenfeld, Publisher Liability in Cyberspace, in Cable Television Law 1998: Two Years After the 1996 Telecommunications Act 1998, at 763, 765 (PLI Pat., Copyrights, Trademarks, & Literary Prop. Course Handbook Series No. 509, 1998). n131. 47 U.S.C. 230(c)(1). See also Zeran v. American Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997) (unanimously upholding the federal district court's finding that "distributor" liability was merely a subspecies of "publisher" liability and that 230 of the CDA expressly immunized the defendant service provider, AOL); Blumenthal v. Drudge, 992 F.Supp. 44, 52 (D.C. Dist. 1998). n132. 47 U.S.C. 230(c)(2). n133. See generally Blumenfeld, supra note 130.

Page 101 8 Pac. Rim L. & Pol'y 423, *452

n134. Religious Technology Center v. Netcom, 907 F.Supp. 1361 (N.D. Cal. 1995). n135. Id. at 1365-66. n136. Id. at 1373. n137. Id. at 1368. n138. Cubby, Inc. v. Compuserve, Inc., 776 F.Supp. 135, 141 (S.D.N.Y. 1991). n139. Id. at 137. n140. Id. at 140. n141. Id. at 144. n142. Stratton Oakmont, Inc. v. Prodigy Services Company, 1995 N.Y. Misc. Lexis 229, *13 (N.Y. 1995) (holding that where Internet service provider held itself out as a service exercising editorial control, provider was exposed to tort liability). n143. Id. at *12. n144. Id. at *3, *10. n145. Id. at *13. n146. 47 U.S.C. 230(c)(2) (Supp. II 1996). n147. 47 U.S.C. 230(c)(1). n148. 47 U.S.C. 230(c)(2). The statute expressly states that "It is the policy of the United States ... to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children's access to objectionable or inappropriate online material." 47 U.S.C. 230(b)(4). See also H.R. Con. Rep. No. 104-458, at 194 (1996) ("One of the specific purposes of this section is to overrule Stratton-Oakmont v. Prodigy and any other similar decisions which have treated such providers and users as publishers or speakers of content that is not their own because they have restricted access to objectionable material."). n149. 47 U.S.C. 230(c)(1).

Page 102 8 Pac. Rim L. & Pol'y 423, *452

n150. 47 U.S.C. 230(b)(4). See also supra note 148 and accompanying text. n151. Zeran v. American Online, Inc., 129 F.3d 327 (4th Cir. 1997); see generally Blumenfeld, supra note 130. n152. Blumenthal v. Drudge, 992 F. Supp. 44, 51-52 (D.C. Dist. 1998). n153. Id. at 46. n154. Id. at 51 (noting that in the absence of 230, the plaintiff, Blumenthal, would likely have had a valid claim against AOL given AOL's affirmative promotion of Drudge and its contractual right to exercise limited editorial control). n155. Id. at 51-52 (holding that an ISP's immunity under 230 constitutes a policy choice by Congress that preempts "publisher liability" under the common law). n156. Sheridan, supra note 113, at 155, 179. n157. See supra notes 148-150 and accompanying text. n158. See supra notes 127-129, 156-157 and accompanying text. n159. See supra notes 127-129 and accompanying text. n160. See supra notes 130-131 and accompanying text. n161. See supra notes 156-157 and accompanying text. n162. David J. Loundy, Computer Information Systems Law and System Operator Liability, 21 Seattle U.L. Rev. 1075, 1091 (1998). n163. See infra notes 167-176 and accompanying text. n164. See supra notes 142-145 and accompanying text. n165. Loundy, supra note 162, at 1091. n166. See supra notes 154-157 and accompanying text. n167. Rahman, supra note 5.

Page 103 8 Pac. Rim L. & Pol'y 423, *452

n168. See supra note 44 and accompanying text. n169. SBA and the Internet, supra note 10. n170. Ng, supra note 41. According to the SBA, "The list, which contains such sites as www.Playboy.com, is updated several times per year." Id. However, the actual list is available only to authorized personnel at the ISPs, because the SBA has chosen to keep the information confidential under the Official Secrets Act of Singapore. Sintercom, The Singapore R(A) Url Hunt: Background (visited, March 31, 1999) . Sintercom, a group of Internet activists have posted a list of sites they have discovered to be blocked by the SBA. This list of twenty Web sites includes Web sites for U.S. adult magazines such as www.playboy.com and www.hustler.com, commercial pornographic sites such as www.pleasure.com and www.persiankitty.com, and adult verification services such as www.adultcheck.com, www.adultpass.com, and www.validate.com. Sintercom, The Singapore R(A) Url Hunt: Banlist (visited, March 31, 1999) . Sintercom discovered that the SBA also blocked a legitimate site, public.calweb.com that is merely a typical IRC chatroom. Id. n171. Ng, supra note 41. n172. Industry Guidelines, supra note 18, para. 9. See also supra notes 67-68 and accompanying text. n173. Industry Guidelines, supra note 18, para. 9. See also supra notes 67-68 and accompanying text. n174. SBA's Approach, supra note 13. n175. Tips for Parents, supra note 47. While recommending that parents take adequate measures to supervise their children's online time, the SBA remains a steadfast promoter of the Web's educational benefits. "The Internet is a vast resource pool for information with tremendous reach and impact. It is a veritable treasure chest of knowledge, all ready for the taking." Id. n176. See supra notes 46-47 and accompanying text. n177. Joshua Gordon, East Asia, too, is Giving up on Internet Censorship, Int'l Herald Trib., Nov. 30, 1998, at 8, available in LEXIS, News Library, IHT File. n178. Tan, supra note 78. n179. Peter Montagnon, Quest for a Way Through the Storm, Fin. Times (London), Mar. 31, 1998, available in LEXIS, Asiapc Library, Fintme File. n180. Erickson, supra note 2. n181. Steve Levy, The Hot New High Tech Cities, Newsweek, Nov. 9, 1998, at 45.

Page 104 8 Pac. Rim L. & Pol'y 423, *452

n182. NIAC Report 1996/97, supra note 48, para. 8. n183. Id. at para. 28. According to Associate Professor Bernard Tan, chairman of the Internet Advisory Committee, "Such ambiguity must be clarified so that Singapore's plan to become an internet hub is not hindered... We will need more than just technical expertise and a good infrastructure. We need creative talents to come up with exciting content, design interesting web-pages, graphics, etc... " Chua Chin Hon, Rules Have Not Hindered Internet, but Fine Tune Them Says Advisory Body, Straits Times (Sing.), Sept. 26, 1997, at 2, available in LEXIS, Asiapc Library, Strait File. However, some industry observers suspect that competition from Malaysia in the race to achieve high-tech primacy may have motivated the SBA to relax enforcement of its Internet regulations. Teo Pho Keng & Oon Yeoh, supra note 7. n184. Erickson supra note 2. According to Garry Rodan, senior research fellow at Murdoch University's Asia Research Center, "The very negative reaction from international business [to the original rules] [indicated] that this was not functional as a way to promote commercial aspects of their technology." Id. n185. See supra note 17 and accompanying text. n186. Ng, supra note 41. n187. SBA's Approach, supra note 13. However, in 1986 a Singaporean was fined the equivalent of $ 44,000 for possession of pornography, some of which he had downloaded from the Internet. The Cutting Edge; Testing the Boundaries; Countries Face Cyber Control in their Own Ways, L.A. Times, Jun. 30, 1997, available in LEXIS Asiapc Library, LAT File. n188. See supra notes 170-171 and accompanying text. n189. Lawrence Lessig, The Zones of Cyberspace, 48 Stan. L. Rev. 1403, 1405 (1996). n190. Id. n191. See supra notes 167-190 and accompanying text for discussion of how technical limitations, commercial concerns, and symbolic value have shaped enforcement of Singapore's Internet laws. n192. See supra notes 26-28 and accompanying text. n193. See supra notes 169-173 and accompanying text. n194. See supra notes 95-98, 104-108 and accompanying text. n195. See supra notes 36-43 and accompanying text.

Page 105 8 Pac. Rim L. & Pol'y 423, *452

n196. Johnson & Post, supra note 1, at 1374. A local authority asserting rights to regulate content accessed by its citizens is likely to be frustrated by companies operating in cyberspace from a physically remote location, beyond its jurisdictional reach. Id. n197. See generally Hogan, supra note 68, at 445-46. n198. See supra note 170 and accompanying text. n199. See supra note 192 and accompanying text. n200. See supra notes 167-168 and accompanying text. n201. Gordon, supra note 177. n202. See supra notes 57-63, 123-129 and accompanying text. n203. See supra note 62 and accompanying text. n204. See supra notes 185-190 and accompanying text. n205. SBA's Approach, supra note 13. According to the SBA's Web site, "service and content providers have generally abided by the guidelines." Id. n206. Johnson & Post, supra note 1. n207. SBA's Approach, supra note 13. n208. SBA's Approach, supra note 13. As part of its effort to encourage industry self-regulation, the SBA has actively embraced content classification under the Platform for Internet Content Selection ("PICS") system developed by the World Wide Web Consortium. The SBA "urges content providers in Singapore to support this effort by labeling their sites as part of industry self-regulation." Id. The SBA has led the way, affixing a seal to its own web site that indicates it has been self-rated under the RASCi system. SBA and the Internet, supra note 10. However, PICS do not provide substantive standards for Internet content. Rather, "PICS consists of technical specifications that provide Internet standards for rating formats... PICS is analogous to specifying the place on a package that a label should appear and the size of the label, with specifying what the label should say." Ari Staiman, Shielding Internet Users from Undesirable Content: The Advantages of a PICS Based Rating System, 20 Fordham Int'l L.J. 866, 882-83 (1997). n209. Johathan Weinberg, Rating the Net, 19 Hastings Comm. & Ent. L.J. 453, 454-55 (1997). n210. Id. at 470.

Page 106 8 Pac. Rim L. & Pol'y 423, *452

n211. Id. at 471. Weinberg further points out that "the sites most likely to be ephemeral are also among the most likely to carry sexually explicit material." Id. n212. Id. at 481. n213. Id. at 472. n214. Johnson & Post, supra note 1. n215. Id. at 470. n216. Id. at 476-77. n217. Id. at 483. n218. Singapore to Introduce Child-Safe Internet Service, supra note 46. n219. See supra notes 46-47 and accompanying text. n220. See supra notes 156-157, 160-161 and accompanying text. n221. See supra notes 156-157 and accompanying text. n222. Johnson & Post, supra note 1. n223. See supra notes 167-168, 174-176 and accompanying text. n224. See supra notes 95-98, 104-108 and accompanying text. n225. See supra notes 167-168 and accompanying text. n226. See supra notes 157-166 and accompanying text. n227. David G. Post, The Internet, the State, and the Consent of the Governed, 5 Ind. J. Global Legal Stud. 521, 522 (1998).