Professor of Legal Informatics 25.8.2014 Rauno Korhonen

Legal Informatics in Finland and in the Nordic Countries

International Summer School of Legal Informatics 2014 Arktikum, from 25 th to 29 th of August Honoring the Memory of Professor Jon Bing

Jon Bing 1944-2014 Celebrating Professor Saarenpää´s Career

Ahti Saarenpää Director of the Institute for Law and Informatics since 1991 Teaching and Research of Legal Informatics at the University of Lapland - Started in the middle of 1980´s - Professor of Private Law Ahti Saarenpää interested in Legal Informatics and he was willing to start teaching of the basics of Legal Informatics here. - Mr. Saarenpää was one of the first lawyers in Finland who really understood the importance and the future of legal informatics and the relationship between law and IT - and this was 30 years ago!!. - Legal Informatics became soon obligatory course for our basic, undergraduate law students in Lapland. - The obligatory course and voluntary courses have been given regularly since the end of 1980´s.

- Our students have had possibility to make pro-graduate work (written work of about 70-100 pages) in the field of Legal Informatics (grades from minimum 5 to maximum 10) (During the last 10 years about 60 gradus supervized by Korhonen)

- There are Lecturer, Assistant and Research-Assistant of Legal Informatics working at the Faculty of Law.

- The first professorship of Legal Informatics in Finland was founded in the autumn 2004 in our university. --- Professor Korhonen was nominated to the permanent professorship since 1.10.2008. The Legal Science is systematically divided to the several fields of law

- Traditionally the fields of law have been divided to the private law and to the public law. ---- Nowadays this separation is not so clear anymore…

- The new fields of law have been appeared……! - -- They are operating in the areas of several traditional law fields and they are using the concepts of traditional law fields like criminal law, tax law, family law and so on…..

- Beside the Legal Informatics we can find some other new fields of law like:

-- Women Law or Feminist Law, Medical Law, Sport Law, Communication Law, Attorney Law, Insolvence Law and Information Law….. Sami People Law, Law of the Elder People What is Legal informatics???? - It´s origin is in the development of electronic data processing (EDP) and the first computers after the World War II.

- It is possible to find many definitions about the legal informatics.

- Concepts like Computer and Law, Computers Law, IT- or ICT-Law are very near the Legal Informatics and these terms have similar kind of elements.

- The specialists generally admit that legal informatics has nowadays established itself as a recognised branch of legal science but it’s development is still going on…….!!! Professor Peter Seipel (paper: Legal informatics broad and narrow, p. 26):

”IT law and legal informatics are often described as two distinct subfields of the study of law and informatics having nothing or very little in common. However, there is also the opposite view, common in the Nordic countries, viz. That there are not only links between the two fields but also an interface area where issues of regulation (rules) and issues of use (tools) blend together and should usefully be approached as an integrated subject matter.” IT Law = Information Technology Law ICT Law = Information and Communication Technology Law (Peter Seipel: Legal informatics broad and narrow, p. 29.): - In Scandinavia and in German-speaking countries the word corresponding to the English ´legal informatics´ (retsinformatik, rettsinformatikk, rättsinformatik, Rechtsinformatik) is often given a broad meaning so that it encompasses studies of both regulatory and use aspects of information techology (IT).

- But, generally speaking, the English term ”legal informatics” appears to be construed narrowly, which means that it refers only to legal uses of IT and directly related methodological problems.

- A suitable terminology in English, therefore, appears to be let ´law and informatics` stand for the whole.

- `IT law´ is a well-established term for referring to regulatory aspects. - ´Legal informatics´ in the narrow sense can cover use aspects, if it is not preferred to use a more spesific term such as ´legal management of information systems´ in the style of the present anthology. One way to define the terms: The American Library Association defines Informatics as ”the study of the structure and properties of information, as well as the application of technology to the organisation, storage, retrieval and dissemination of information.” ” Legal informatics therefore, pertains to the application of informatics within the context of the legal environment and as such involves law-related organisations (e.g. law offices, courts, and law schools) and users of information and information technologies within these organisations.” Legal informatics could be said then, to encompass several conceptual areas:

1. information retrieval (both manual and automated systems such as artificial intelligence) 2. law and policy (issues such as privacy, copyright and security) 3. information access issues (such as making legal and government information more accessible to the public, both physically and intellectually, open data – big data) and 4. practice issues (applications which help lawyers in their day- to day operations).

(Erdelez, S., & O´Hare, S. (1997). Legal informatics: application of information technology in law. Annual Review of Information Science and Technology, 32, 367-402.) Professor Ahti Saarenpää (University of Lapland): ” Legal Informatics is a field of legal scientific research and teaching. It is interested in studying and teaching about the relationship between law and information and relationship between law and information technology in different forms. In this connection important are also several issues concerning the problems of lawmaking and legal intepretation.”

- This has been for years a startingpoint for the development of teaching of legal informatics at the faculty of law in the University of Lapland. The Role of Legal Informatics: - Legal Informatics has been seen as a ”new” and all the time changing science.

- Background for it’s development process is the change of service-society towards the information-society. - Legal Informatics has many connections to the interests of the other legal sciencies and fields of law: -- Legal Informatics is interested in copyright issues concerning computer software, same kind of issues which are typical for the Intellectual Property Law. -- Electronic Trade is one of our interests. It is also important in the fields of Property Law , Commercial or Trade Law and Tax Law. - - E-services in the public administration are also one part of the traditional Administrative Law. - - - For instance in Finland we have ”new” laws like: Act on Electronic Services and Communication in the Public Sector (13/2003) Act on Electronic Signatures (14/2003) (this is now replaced by the Act on Strong Electronic Identification and Electronic Signatures (617/2009) and also Act on the Protection of Privacy in Electronic Communications (516/2004) - - Personal Data Protection and Privacy are the essential research fields of Legal Informatics. They are also familiar in the Personality Law.

- - Publicity of Government Documents and Openness principle are traditionally part of the Public Law and Administrative Law, but nowadays they are very important in Legal Informatics.

-- Legal Informatics is also General Science of Law and in this context its roots are in Legal Theory.

- Typical for Legal Informatics is that it has dynamic, changing systematics with different point of views, its not static science.

LEGAL NETSOCIETY - The development of Legal Informatics is connected in wider context to the change from information society to net society and to the change from the tradionational patronizing state to the rule of law state where the indivual´s fundamental and human rights are in enhanced role.

We could say that Legal Net Society is a society, - where the informational usage of information technology and the changes of information infrastructure and information market will cause legal juridification of the society (all the time increasing amount of acts and norms!) - where the legal communication is rapidly changing to the electronic, digital communication Legal Net Society is also a society, - where the administration is changing to electronic or information government which is based to internet and other open and closed information-systems.

- where the use of basic fundamental and human rights are more and more dependent on information networks.

- where the use of information technology and datasystems enhances the central role of computers and netbased work in legal life and administration

- ALL THESE THINGS ARE CHANCING THE LEGAL CULTURE, LEGAL COMMUNICATION AND THE DEMANDS FOR THE LEGAL PROFESSIONAL SKILLS!!! - Legal Informatics is multilegal and the boundaries of legal fields breaking science, it is also multiscientific and interscientific science. - - It has very close connections to the information technology, data processing and in general to the information sciencies. - The professionals of legal informatics should also know something for example about the development of data technology, information sociology, cognition sciences, libraries and the function and practices of media!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! - Legal Informatics is also more and more international science because of the

1) internationalisation of legal sources (EU, EC, UN, OECD International conventions and aggreements…),

2) the international role of legal theory

And especially because of

3) the global information technology and networks.

- ALL THESE MAKE IT DEMANDING FIELD!! BUT! - We must realize that the development of computers and information technology are not the reasons enough for the changes of legal systematics or for the rise of new legal fields like Legal Informatics or Information Law. - It is still possible to solve legal promblems concerning the information technology by the means of traditional legal fields. ---- But in this case much better understanding about the information technology is necessary among the researchers!!!! The Need and Meaning of Legal Informatics can be found from the deeper change of society:

* the society is more dependent on information technology,

* the information infrastructure is changing,

* the amount of information is rising and

* information markets have bigger role in economy.

- LEGAL INFORMATICS GIVES POSSIBILITIES TO DIFFERENT KIND OF POINT OF VIEWS, WORKING METHODS AND THINKING CONSTRUCTIONS!!!! The First Experts of Informatics

Blaise Pascal Gottfried 1623-1662 Leibniz 1646-1716 Antikythera, over 2000 years old ”computer” from Greece. The Short History of Legal Informatics: Some cornerstones:

- Development of ADP (automated data processing) and computers in the 1940´s (Konrad Zuse in Germany)

- Jurimetrics in the USA after the World War II. -- Legal sciencies were the first areas where the possibilities to use computer’s counter-elements in legal life was paid attentention to.

-- An american Lee Loevinger´s articles about the jurimetrics. - The starting-point was a use of computer as a helpdesk or support for legal functions there where exact and defined information was needed.

- -- Jurimetrics has still an important role in North-American legal research ------(The Arizona State University).

Konrad Zuse Lee Loevinger

1910 - 1995 1913 - 2004 The Short History of Legal Informatics:

- - In the end of 1950´s the legal scientific society was more interested in the issues concerning theoretical questions, for instance the importance of legal language and the logical factors behind the legal decision-making.

- - Legal Cybernetics in Europe (especially in Italy and in the communist countries in East-Europe) at the 1950´s and 60´s in automatic decisionmaking.

- It was just the late 1960´s when the rapid progress in information technology and its new applications brought the legal informatics to the public discussion. The Short History of Legal Informatics

- More effective computers and automatic data processing brought concrete problems at the end of the 1960´s.

--The first large, nationwide basic registers including sensitive information about the citizens and automatic administration (personal data registers in taxation and population registration)?? -- Electronic Documents and the Copyright protection of computer software designers??

- Legal Informatics started to have a separate possession as a field of teaching and research in early 1970´s. The Short History of Legal Informatics

-- We were also taking the first steps towards the Information society, which was later called Legal Net Society (from the legal point of view).

- - Legal Informatics as a concept:

(Rechtsinformatik) was developed in West-Germany in the beginning of the 1970´s

(1934 – 2013) (prof. Wilhelm Steinmüller´s working group) Huge and global development of information and communication technology in the 1980`s and 1990`s –

- Personal Computers (PC), - Internet, - Mobile Phones (Cell Phones), - Satellites, - Convergence of Communication Technologies etc. increased an importance of Legal informatics as an area of legal studying and teaching.

Legal Informatics in the Nordic Countries

- Many lawyers and legal scientists in the USA, Great Britain, West- Germany, Sweden and Norway interested in the legal problems concerning the relationships between law, information and developing data technology during 1960´s. --- The first studies and reports concerning this field was published at the same time in the end of 1960´s in Sweden and Norway.

- The Norwegian Research Center for Computers and Law was founded in Oslo in 1970. Nowadays it is one of the best centers in the world. Also in Stocholm was founded smaller institute at the same time.

- The first nationwide data protection law (datalagen) was given in Sweden in 1973.

- Peter Seipel`s doctoral thesis Computing Law (1977) was the first one ………> in the world in the field of legal informatics. (1939 -> )

- Jon Bing`s doctoral thesis Rettslige kommunikasjonprosesser (Legal Communication Processes) was accepted in 1982 in Oslo.

- Peter Blume`s doctoral thesis Fra tale till data (From Speaking to Data) was the first doctoral thesis of legal informatics in Denmark in 1989.

Bing Blume Legal Informatics in the Nordic Countries: Since 1988 several doctoral thesesis have been written in Nordic countries in the field of legal informatics (or near it) by following persons: Sweden:

Peter Wahlgren: Automation of Legal Reasoning. A Study on Artificial Intelligence and Law. (1992)

Cecilia Magnusson-Sjöberg: Rättsautomation. Särskilt om statsförvaltningens datorisering (1992) (= Legal Automation. Focus on the computerisation of state administration)

?

Norway:

Dag Wiese Schartum: Rettssikkerhet og systemutvikling i offentlig forvaltning. (1993) (= Rule of law and Organisation Management in Public Administration)

Olav Torvund: Betalingsformidling – i et retsslig perspektiv. (1993) (= Payment Interchange – In the Legal Context.)

Lee Bygrave: Data Protection Law. Approaching Its Rationale, Logic and Limits. (Kluwer 2002)

Schartum Torvund Bygrave

Legal Informatics in the Nordic Countries:

Denmark:

- Mads Bryde Andersen: Edb og ansvar – Studier i edb-erstatningsrettens beskrivelseproblematik (1988). (= Electronic Data Processing and Liabiality)

Finland:

- Jorma Kuopus: Hallinnon lainalaisuus ja automatisoitu verohallinto. Oikeustieteellinen tutkimus kansalaisen oikeusturvasta teknistyvässä valtionhallinnossa (1988) (= The Legality of Governance and Automated Tax Administration)

- Tuomas Pöysti: Tehokkuus, informaatio ja eurooppalainen oikeusalue (1999) (= Efficiency, Information and the European Legal Environment)

- Rauno Korhonen: Perusrekisterit ja henkilötietojen suoja. Informaatio-oikeudellinen tutkimus yksityisyyden suojasta yhteiskunnan perusrekisteritietojen käsittelyssä (2003) (= The Basic State Registers and Personal Data Protection. The Study of Information Law concerning Privacy Protection in Processing of Basic State Registers` Data in Society.) Legal Informatics in the Nordic countries:

- Annamari Turunen: Innovations as Communication Processes. A Legal Architecture for Governing Ideas in Business. (2005)

- Jari Råman: Regulating Secure Software Development: Analysing the potential regulatory solutions for the lack of security in software. (2006)

- Tomi Voutilainen: ICT-oikeus sähköisessä hallinnossa. ( ICT-Law in eGovernment. (2009) (Voutilainen is the doctor of administrative sciencies)

- Johanna Tornberg: Edunvalvonta, itsemääräämisoikeus ja oikeudellinen laatu. (Guardianship Services, Self-determination and Legal Quality (2012)

- Some doctoral studies are under the working process……> Maija Turunen, Aleksander Wiatrowski, Juhani Korja, Anu Ojala-Rautio, Kisakisa Kiwara, Dino Girardi….

Professor of Civil Law (Personality, Family and Inheritance Law) Ahti Saarenpää has during the last 30 years written over 100 papers and studies in different areas of Legal Informatics. ---- He is internationally wellknown expert of legal informatics. - Mr. Saarenpää has been the tutor for most of the finnish doctors and doctorands of law who were mentioned above. - He is also one of the leading persons of Rotisseurs in Finland…… . Prof. Ahti Saarenpää LL.D Wolfgang Mincke, doctor of honor, professor, attorney

- A part-time professor of legal informatics in Lapland during the 1990s - Visited regularly in Lapland and has given lectures in fluent Finnish too! Nordic Co-operation in the Field of Legal Informatics:

- Annual Nordic Conferences of Legal Informatics have been organised in Sweden, Denmark, Norway and Finland since the beginning of 1980´s. - 2011 in Rovaniemi, 2012 in Stockholm, 2013 in Oslo and 2014 in Copenhagen! - Seminars for doctarands (not every year) - - There has not been many representatives from Iceland. - Some students and doctorands have visited Nordic Institutes of Legal Informatics (Stockholm and Oslo). -- Professor Korhonen worked in 1998 for 3 months in Oslo in Institut for Rettsinformatik (IRI). - We have similar basic understanding about the meaning and importance of the legal informatics (partly because of similar societys, same legal culture and high level of Information Technology) Annual Nordic Yearbook of Legal Informatics almost every year since 1980´s (The conference material in published form):

2009 Overvåking i en rettsstat/ Dag Wiese Schartum (red.) Bergen: Fagbokforlaget, 2010.

2006-2008 Vem reglerar informationssamhället?/Stanley Greenstein (red.). Stockholm: Jure, 2010.

2005 Elektronisk forvaltning in norden/ Dag Wiese Schartum (red.). Bergen: Fagbokforlaget, 2007.

2004 Rätten och säkerhet i IT-samhället/ Peter Seipel (red.). Stockholm: Jure. 2006.

2003 Media, innovationer och produktivitet: rättssäkerheten occh teknologin i omvandling/ Viveca Still (red.). Stockholme: Jure, 2004.

The yearbook of 2013:

Dan Jerker B. Svantesson & Stanley Greenstein (editors) Internationalisation of Law in the Digital Information Society. Nordic Yearbook of Law and Information 2010-2012

The Nordic Conference in 2015 will be held in Rovaniemi!--- Welcome!

LEGAL INFORMATICS from the Finnish viewpoint: GENERAL PART: SPECIAL PARTS: - LEGAL NET SOCIETY 1) LEGAL DATA PROCESSING

- INFORMATION 2) LEGAL INFORMATION INFRASTRUCTURE

- INFORMATIONAL WORK 3) INFORMATION LAW AND IT´S LEGAL BOUNDARIES 4) INFORMATION TECHNOLOGY LAW - LAWYERS` PROFESSIONAL (COMPUTER LAW, ICT -LAW) INFORMATIONAL SKILLS This theory from the Finnish point of view has been developed and modified mainly by prof. Ahti Saarenpää, Faculty of Law, University of Lapland General Part and Theory of Legal Informatics: - It is possible to divide Legal Informatics as a science to General and Special part (like other legal fields too) In the General Part of Legal Informatics are we interested in studing:

* - the juridification of net society (more acts and rules about more and more areas and phenomena in society) * the new information infrastructure * the importance and meaning of information in changing society * the demands in net society for the lawyers` skills and for legal profession * More and more things in society are ruled by the law - - juridification, the expansion of norms, citizens´ ability to understand legal information??

-- In Finland the citizen has duty to know the legislation and rules, he or she can´t say for instance that ”I didn´t know that it is not allowed to drive car under the influence of alcohol”

---- And this despite of the lack of legal education (this principal is - of course - common in all the western countries)

* the change of net society towards the control society (registers, authorities´ co-operation, camera surveillence, telephone and net control, rfid, dna-tests, smart-cards, profiling…..) * the multiform use of networks with new applications, for instance Electronic election, which was first time in use in Finland in the local elections of 2008. -- This was not succesfull test-election! * the change of working environment and equipments: ---- Lawyers and other specialists are nowadays working with personal computers and in the internet (for instance lawyer- and solicitor- services via net, telemedicin and phycisians in the net) . * The liberalisation of telefield in Europe, the technical convergence and more rules in the communication-field Convergence = Same kind of services via different technical systems, for instance telephone calls via traditional telecables and also IP-calls via internet , TV-broadcasts also to the mobilphones and so on….) - We could also say, that very many different kind of things can be done in the internet or by mobil phone: selling of products, marketing, communication, government eServices and so on • the growing importance of Data Security – Increasing demands for legislation (information systems are very vulnerable, so called Critical Infrastructure) - Payment transmissions, Energy, Trafic, Social- and Health Care * lawyers` and also citizens´ skills to use legal information sources, legal data bases…., a skill to read and use digital sources, eLiteracy?? * Legal informatics has been seen as general legal science, but during juridification process of net society legal informatics is working more and more with legal interpretation problems which are typical for the traditional fields of law. - Above mentioned elements can as well be linked to the general legal sciencies. They have connections to the legal theory and theoretical or practical legal dogmatics.

- Legal informatics is a bridge or link between theory and practice.

- The general part of legal informatics serves the special part of legal informatics and its subfields!!

- Lawyers must have methodic skills and knowlegde concerning the general legal principles and concepts. The Special Areas of Legal Informatics from the Finnish point of view: 1) Legal Data Processing 2) Legal Information 3) Information Law 4) Information Technology Law (IT-law) (or ICT-Law = Information and Communication Technology Law) - The difference between Information Law and Information Technology Law is internationally not so clear. - - In different countries you can find similar subjects and contents in both of these areas of legal informatics 1) LEGAL DATA PROCESSING - Legal data processing is in the USA traditionally called Computers and Law and in Germany EDV und Recht. What is it? - It is interested in studying the use and possibilities to use data technology in different kind of legal functions. - It studies especially the possibilities, use and importance of legal information systems in legal life. - The typical research subjects are expert-systems used in decision making and in the legislative processes and also the - development and effects of the information systems in the courts and in public administration. 2) LEGAL INFORMATION The main areas in studying legal information are the - legal information management, - maintenance of legal information sources and - how to mediate (communicate) legal information to the society. From the legal education´s point of view the information source theory as a theory of optimal content and use of information sources forms a very important educational entity. 3) INFORMATION LAW Information law is a field of law which studies legal regulation as well as the potentiality and need for regulation dealing with the production, processing, transmission, marketing, protection and preservation or deleating of information.

4) INFORMATION TECHNOLOGY LAW Information Technology law (IT-law) is the fourth special part of legal informatics. It is interested in studying the information technology and the legislative and interpretative issues concerning the use and application of the products and services of IT. Nowadays the communicative aspects are also more and more important within the IT-law. Therefore we can also talk about ICT-law (Information and Communication Technology law)

LEGAL INFORMATICS TODAY * Legal Informatics has changed fundamentally as a legal science * IT (Information Technology) is still the glue that binds the field and gives it its structure, but our research focuses ever more squarely on the human being. * We speak of the rights of the individual in the new information infrastructure that is part of the network society. * From the perspective of law, IT today is far more than just a new tool of the trade and administration.

CHANGE

* POST INDUSTRIAL SOCIETY * SERVICE SOCIETY * ADMINISTRATIVE STATE * INFORMATION SOCIETY * NETWORK SOCIETY * ADMINISTRATIVE WELLFARE STATE * UBIQUITOUS SOCIETY * KNOWLEDGE SOCIETY? * CONSTITUTIONAL * CONTROL SOCIETY STATE

THANK YOU!!!!