IT Law

Authors:
Marmolejo Diaz Maria del Carmen
Flowers Sticker Paola Wendolyn
Resendiz Alvarez Maria Rubi
Team 8.
Research Fundamentals
Professor: Juan Jose Lopez Lopez

SUMMARY
All human activities are governed by law. From before birth, at the moment of conception,
he is protected by law. And when a person dies, his or her decisions have transcendence
beyond his or her existence, through the rights and obligations that he or she inherits to
his or her successors. Let us think of any external activity of man and we will see that it is
governed by Law. In Nietzsche's manner, "nothing human is alien to him." Of course, in
this age of technological advances, information technology, cybernetics, computing and
systems are not subjects foreign to legal science. The use of ATMs, online shopping,
surfing the web, hiring to access the internet, chat, online child pornography, software
piracy, information piracy (consisting of accessing databases without authorization, an
activity commonly known as hacking or cyber pirates), bank fraud, copyright on material
published on the internet, tax returns, use of credit cards in terminals, asset declarations
of public servants, online casinos, email, and the contamination and destruction of
information found on computer equipment (by sending viruses) are some of the activities
and events regulated by Computer Law or where Computer Science is applied to Law.

INDEX
ABSTRACT…………………………………………………………………………………….2
INTRODUCTION……………………………………………………………………………….....
4
1.1 PROBLEM…………………………………………………………………….....5
1.2 APPROACH………………………………………………………………....6
1.3 OBJECTIVES…………………………………………………………………………..7
1.4 HYPOTHESIS…………………………………………………………………………8
1.5 JUSTIFICATION…………………………………………………………………..10
THEORETICAL
FRAMEWORK……………………………………………………………………...13

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2.1 BACKGROUND…………………………………………………………………….13
2.2.1. COMPUTERIZATION OF LAW……………………………………….15
2.2.2 CHARACTERISTICS…………………………………………………………16
2.2.3. RELATIONSHIP OF COMPUTER LAW WITH OTHER BRANCHES OF
LAW…………………………………………………………………………………….16
2.2.4. LEGAL COMPUTING…………………………………………………………17
2.2.5. FORMALITY PROBLEMS OF ELECTRONIC
“DATA”………………………………………………………………………………18
2.2.6. WHAT IS CURRENTLY USUALLY REGULATED…………………………21
2.3. CONCEPTUAL MAP………………………………………………......22
METHODOLOGY……………………………………………………………………………..23
3.1. POPULATION SAMPLE………………………………………………………...23
3.2. TYPE OF STUDY……………………………………………………………………23
3.3. DESCRIPTION OF THE INSTRUMENT …………………………………………….26
3.4. COLLECTION PROCEDURE…………………………………………26
3.5. STATISTICAL INFORMATION MANAGEMENT
PROCEDURE………………………………………………………………………………………
………26
4. RESULTS…………………………………………………………………………28
5. CONCLUSIONS………………………………………………………………………..32
6. BIBLIOGRAPHIC REFERENCES…………………………………………………33
7. ANNEXES………………………………………………………………………………34
7.1SCHEDULE………………………………………………………………………….35
7.2 SURVEYS…………………………………………………………………………….37

INTRODUCTION

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The growing use of information and communication technologies in the field of public
administration forces us to go beyond the concept of the electronic document that
identifies it with the complete record of a coherent discourse. Pressing “enter” or clicking
on any icon leaves a record, and these are acts that, even though they have the character
of issuing or recording an isolated piece of data, are recognizable as documented facts,
which – by being recorded – can generate legal consequences. This work is structured
from a theoretical construction that leads to the analysis of a complex reality to conclude
with a series of considerations of wide repercussion in the daily exercise of public
function.

1. PROBLEM: NEED FOR REGULATION TO PROVIDE ELECTRONIC DOCUMENTS,

FACTS AND ACTS WITH SUFFICIENT LEGAL FORMALITIES TO BE USED AS
EVIDENCE IN A TRIAL.

After an analysis of the existing regulatory situation compared to the regulations existing
in other areas, it became evident that there were no provisions regulating the following
aspects:

to. The definition of the electronic document;

b. The specific technical rules for the formation, conservation, duplication,

reproduction, transmission and validation (even temporary) of electronic documents;

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 c. The technical, organizational and management measures that guarantee the
integrity, availability and confidentiality (or secrecy, where appropriate) for access to
and consultation of the information contained;

d. The different electronic records that form part of the automated processes of public
administration;

and. The different electronic administrative documents generated in the automated

processes;

F. The operational requirements for the formation and validity of administrative and
private documents;

g. Automated and secure management of document flow; and

h. The types of data that constitute electronic documents that make their processing
possible.

And among the technical rules that stand out for the absence of minimal regulation, are
those related to the following aspects:

a) The definition of “computer evidence” and “time stamp”;

b) The characteristics of the operational and management manuals;

c) The specific obligations of administrators and internal and external users of the
systems comprising the automated processes of public administration;

d) The definition of the characteristics of each type of system;

e) The security guidelines and requirements for the operation of the systems;

f) The rules for different types of record control in systems for process automation;

g) The requirements for competence and necessary experience of the staff;

h) The mandatory frequency for the review of technical rules:

(i) The determination of the auditing and verification bodies of public administration
systems; and

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 j) The determination of the functions of the bodies responsible for the different types
of controls, among others.

1.2. APPROACH

The approaches and questions that were generated to determine the possible “risk
factors” were:

1. Where do the different types of information recorded in electronic files come from?
2. How and where is the information contained in electronic files stored?
3. Under what conditions is the information contained in electronic files stored?
4. What processing is given to the different types of information contained in
electronic files?
5. Under what conditions is the information contained in electronic files processed?
6. What information contained in electronic files is processed after it is recorded, and
what is transmitted within and outside the court?
7. Under what conditions is information contained in electronic files transmitted?
8. How is information contained in electronic files transmitted?
9. Who among the parties or members of the court staff can access electronic files?
10. When can parties or court staff access electronic files?

And as any computer security specialist will be able to observe, these are the basic
questions for establishing “discretionary access policies” for a system, strategies that also
require the implementation of an acceptance test sequence that addresses the
effectiveness of the various components of the system.

1.3. OBJECTIVES: WHAT CAN BE DONE IN MEXICO?

• Un gobierno digital;
• Un gobierno con mejora regulatoria;
bjetivos

• Un gobierno que cueste menos.

• Mayor control del ciberespacio en el entorno nacional;
• Determinar consecuencias jurídicas específicas a todos
6 aquellos actos, documentos y hechos electrónicos de
índole privado y úblico, y
1.4. HYPOTHESIS: CERTAIN EFFECTS ON E-GOVERNMENT ARE INTENDED FROM
A PROCESS OF LEGALIZATION OF THAT WHICH LACKS REGULATION.

Obviously, the task proposed here requires order, from the normative and
organizational point of view, and the organizations that stand out most on the national
scene for their attributes to achieve such objectives are the CIDGES for its capacity
and experience in the development of regulations in the area of technological
applications and the CIAPEM (Committee on Information Technology of the State and
Municipal Public Administration), in the development and implementation of public
policies in the area of information technology. And although the scope of some is
federal (CIDGE) and that of others is state and municipal. Joint action by both is
possible, as both are engaged in the tasks of developing e-government. Now, to the
extent possible, those aspects of electronic documents that are already regulated
(formation, accessibility, integrity, conservation, inalterability) should be addressed,
but given that the objective of their regulation is diverse, the efforts that produce this
regulatory advance should be focused on the objectives of so-called “open-
government”. That is, we are saying “Yes” to improving the efficiency of the state’s
work, to service delivery.

Greater attention is proposed to cutting-edge requirements such as:

• Electronic services must focus on citizens, that is, designing services from the
demand and not from the supply. • Rely on the design and development of modern
technological architectures: public services are now acquiring services (often in
subscription-type contracting modalities) instead of acquiring infrastructure, etc.

• Complement existing web tools, that is, visit sites such as: YouTube, Facebook,
Twitter as tools to support the digital development of the State. • That they comply with
the principles of open data. The citizen not only wants to carry out a procedure in "x"
department, but also wants to access information and public data, so that he can
process them and use them in subsequent documents.

• Instead of public and private work, in schemes based on mutual distrust, work in
collaboration schemes so as not to have to move from distrust to collaboration.

• Among other requirements that without a fine legal-technical structure it will never be
possible to establish them. In fact, the conceptualization of the Electronic Document in

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 the United Nations Organization is described by Argentine university professors in the
following way: "(...) it is worth highlighting the attitude adopted by the United Nations
(through UNCITRAL) who, recognizing the difficulties of reaching an international
agreement on the matter through negotiation, has opted in favor of a rapid adaptation
of the legislation of each country as a more pragmatic measure. It is worth noting that
this body has issued a valuable document, entitled Legal Value of Computer Records,
which states that the norms or rules concerning evidence relating to electronic
documents (although it says computer records) should not constitute an obstacle to
the use of emerging technologies both domestically and internationally. He also points
out that the rules drawn up by some countries must overcome the problems caused by
the language used, which incorporates cultural references that still represent a
hindrance to development. There is much to discuss about the topic of e-government,
however, we will limit ourselves to what has been said, as we only intend to
demonstrate the importance of the topic addressed on this occasion.

As can be seen, the absence of all these regulations (technical and legal)
compromises the evidentiary effectiveness of these electronic documents; moreover,
there is no such effectiveness, because even if it is intended to establish rights or
obligations, as long as they are not regulated, they do not legally bind anyone and do
not produce legal effects, leaving anyone who intends to present allegations of non-
authenticity in the preparation and presentation of electronic documents in a complete
state of defenselessness. See what happens when, in a jurisdictional process, a
computer system is left to verify the validity of the advanced electronic signature that is
attached to any promotion made in court. Such verification, even when a record of it is
kept in the system log, if the creation, use and destination of the data and/or
information loaded in said log are not regulated, its use may be challenged in court.
And if the affected party or parties are finally subjected to the process because they
have previously agreed to submit to the process in accordance with its rules, what will
happen when the affected party is the administration of justice itself? It is well known
among computer security experts that 95% of attacks on systems originate from
personnel who have already handled and are familiar with the system's strengths and
weaknesses. And in many cases, it does not require extensive computer knowledge to
make a mistake in the system that delays the process or to alter a text that favors one
of the parties. In short, rather than attempting to make evident a “manifest desire” to
threaten the reliability of public administration systems, the regulation of these records
should be oriented towards efficiency in public service. This is a regulation for the
correct use and/or timely correction of errors during the use of systems that have

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 automated work processes specific to public administration. Security policies are
codes of conduct for the use of the tangible and intangible elements of a system or the
systems of an organization; and without reducing all these regulations to these types
of technical guidelines, it is necessary to give them a legal value and location.

Typically, IT security policies specify:

• Activities that are allowed and those that are not allowed;

• The steps to be followed by users to protect their data;

• How users can access other users' files;

• The rights of system administrators; and also

• Penalties and sanctions in case of violation of safety regulations.

1.5. JUSTIFICATION: CURRENT SITUATION IN MEXICO

The situation at the national level is not different, as we have also taken care to address
the regulation of electronic documents with the same solutions provided for paper
documents, and we could say that it is taking root. In a quick analysis of the legal
framework under which the main agencies of the federal public administration operate,
seven stand out, in which ordinances have been issued that, by their title, show that they
are dedicated to the regulation of the management of data and official documentation
(others that, although they possibly contain provisions that also regulate this
management, there is nothing in their title that indicates this were not considered); these
are:

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 Dependencias de la Administración
pública
1. Secretaría de la Función Pública;
2. Secretaría de Hacienda y Crédito Público;
3. Secretaría de Economía;

4. Secretaría de Comunicaciones y Transportes;

5. Secretaría de Relaciones Exteriores;

6. Instituto de Seguridad para las Fuerzas Armadas de México; e

7. Instituto Mexicano del Seguro Social.

This is a total of 149 regulations located in the database of the General Directorate of
National Legal Order of the Ministry of the Interior (www.ordenjuridiconacional.gob.mx),
which regulate the management of data and official documentation. Of that total, 92
regulations (61%) contain provisions referring to the electronic processing of data and
documentation within the Federal Public Administration.

The highest concentration of regulations related to said electronic processing is found in

the Circulars of the National Commission of the Retirement Savings System (a total of 84,
which is equal to 90% of the 92 mentioned); as well as in the “Extracts” prepared by the
Ministry of Communications and Transport, for the concession of the Public
Telecommunications Network, for its installation, operation and exploitation by private
individuals (12 extracts of 367 prepared); and in other regulations of various institutions.
From the above we can draw the following conclusions:

a) The number of regulations related to the management of data and official

documentation is increasing; and

b) It would seem that the main existing stimulus to regulate the management of data and
official documentation is that electronic processing of such documentation has been
required.

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 Therefore, regardless of the fact that it is necessary to regulate this phenomenon of the
production, management and issuance of electronic data and documents, it is necessary
for the public administration to go beyond making a simple transposition of what is
regulated for paper documents and consider

♦ That the immateriality of electronic documents does not necessarily require the
complete recording of coherent speech with or without a specific legal meaning; and

♦ That now the simplest action such as pressing "enter" or clicking on any icon, during the
management of systems with information and communication technology, leaves a
record, actions that even having the character of issuing or recording an isolated piece of
data, are recognizable as documented facts, which by being recorded can generate legal
consequences.

THEORETICAL FRAMEWORK

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COMPUTER LAW
Computer Law consists of the set of rules and principles that regulate the legal effects
arising from computer science and information and communication technologies (ICT).
Thus, Legal Sciences analyze the impacts of information technology in all areas of society
and study the changes and transformations it produces in order to regulate them
appropriately.

The law must evolve with the new needs and customs of human beings in order to
adequately regulate the new relationships that arise. Thus, IT Law is considered to be a
turning point in Law, since all its areas of study have been affected by the emergence of
the so-called Information Society, thus changing social processes and, therefore, political
and legal processes.

Due to this degree of technological evolution and its impact on all human activities, it has
become a branch of law where its specialists investigate each legal implication in the use
and application of computer science and information technologies (ICT).

2.1. BACKGROUND
If we had to pinpoint a precise date for the birth of legal computing, we would have to say
that it was in the year 1949.

The use of computers in the legal world began to be discussed in the years when Norbert
Wiener's cybernetics was born; that is, 1948. The references given in this work probably
influenced an article published a year later by Lee Loevinger in which he speaks for the
first time about jurimetrics; that is, the use of computers in law.

Later, in 1963, Hans Baade published the work Jurimetrics: the methodology of legal
inquiry, in which he specified that three different types of research should be applied to
develop this subject.

First, apply logical models to legal norms established according to traditional criteria.

Second, apply the computer to legal activity, and

Third, to be able to predict future judgements.

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Dissatisfaction with the concrete results offered by jurimetrics and the presence of
attractive theoretical instruments, such as those offered by theoretical cybernetics, meant
that in Europe purely empirical studies of the Loevingerian type were combined with
studies of a purely theoretical nature, with the result that, between 1966 and 1969, the
term “cybernetics and law” was used to designate, for example, both judicial statistics
surveys that used computers and studies of formal logic applied to law: both purely
computational works that in some way had to do with legal norms, and research into the
philosophy of law that used theoretical schemes from cybernetics or information theory.

In 1968, after having studied the scientific phenomena represented by the use of
computers in the field of law, Mario Losano proposed replacing the term “jurimetrics” with
“iuscybernetics” and, in light of this change, abandoning the scheme of jurimetrics and
subdividing iuscybernetics into four sectors corresponding to four different ways of
approaching the relationships between law and cybernetics.

1. The first mode or approach corresponds to the field of social philosophy and
consists of considering Law as a subsystem with respect to the social system.

2. Losano's second approach consists in identifying law as a true system that has an
autonomous life, insofar as it is generated, applied and annulled by bodies
regulated by law itself; thus, law can be interpreted as a self-regulating system.
Thus, considered isolated from the rest of society, it is interpreted as a cybernetic
system with feedback.

3. The third cybernetic approach led Losano to a sector already handled by

Loevinger's jurimetrics; that is, the application of logic and other formalization
techniques to law, in order to arrive at a specific use of the computer.

4. The fourth approach refers to the use of computers in the field of law; that is, to the
acquisition of the necessary techniques to be able to use it in the legal sector.

The first two approaches constitute what Losano called “legal modelling”, in the sense
that the studies carried out in these two sectors serve to build formalized models through
a theoretical scheme; while the last two modes or approaches, this author called them
“legal informatics”; that is, the techniques used to allow the memorization of legal
information and its recovery through the use of the computer; that is, the realization of
practical areas in the explanation and structuring of legal information.

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In conclusion, legal informatics is a new science that, as time goes by, its scope of
application is growing, the points or aspects that this science studies are established
more clearly, which implies a more in-depth study by scholars of law and informatics.

2.2.1 Computerization of Law

Computer science, as one of the most significant phenomena of recent times, makes its
unstoppable influence felt in practically all areas of human knowledge, within which Law
cannot be the exception, giving rise to the interdisciplinary field of Computer Law, as a
branch of legal sciences that considers computer science as an instrument and as an
object of study.

Computer law plays an important role in preventing undesirable situations for users of
new information technologies and when certain circumstances arise that affect them, it
facilitates the incorporation of new legal institutions that allow creating confidence in the
people and institutions that carry out such operations, thus allowing the solution of those
problems generated by the use of electronic media in society.

Computer Law is gaining great importance and significance due to the development of an
increasing number of computer, electronic, optical and similar elements, which make life
easier for man, but at the same time, generate serious difficulties in his interaction with
other human beings, thus giving rise to a series of circumstances that allow the
development, strengthening and improvement of Computer Law and its legal institutions.

2.2.2. Characteristics
It is a modern law, compared to other traditional branches of law, which has its origins in
the problems generated by the implementation of the computer in society. It will be
remembered that the impetus and subsequent development of computers dates back to
the https://www.ecured.cu/19501950s.

It is a Law closely influenced by technologies in general, because these have allowed a

sustained development of the computer and its environment, for example, currently there
are a series of legal problems generated by the use of the Internet in the various activities
of people.

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It is a law that is linked to the process of globalization, so the jurist is obliged to resolve
the problem of the competent judge, who must hear and provide a solution to a specific
case, and must also analyze everything that is related to the law applicable to each
particular situation.

It is a right that must necessarily be legislated in special laws, because its object of study,
as well as its forms of regulation, are very dynamic.

It is an autonomous law, with its own institutions, which is responsible for providing legal
solutions to problems posed by scientific progress within its area of competence. It is
important to note that as time goes by, new legal difficulties arise that were not foreseen
by the jurist, the legislator or the judge, but which computer law allows to be solved, a fact
that reinforces and supports the characteristic in question.

2.2.3. Relationship with other branches of

law
With Criminal Law

At this point, a close relationship between Computer Law and Criminal Law is noted,
because Criminal Law regulates the sanctions for certain acts that constitute a violation of
the rules of law and in this case Computer Law, in the area of cybercrime or computer
crime, then we could begin to talk about Computer Criminal Law.

With Human Rights

Human rights are essential to defend the fundamental rights of man, such as the right to
life, equality, moral respect, private life and intimacy, which lead man to be worthy and
therefore to have dignity, which allows people to be classified as integral, living in an
environment of respect, freedom and making truly civilized societies possible.

This relationship is so extensive that it would be the subject of countless books and
monographs; however, very simply and briefly, one can mention the possibility that
through Information Technology Law there exists a legal regulation that supports the
proper functioning of the jurisdictional bodies, just to give a simple example; it is easy to
imagine the effectiveness and efficiency with which the laws would be managed, which

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would contribute to a high degree to the procedural speed, an indispensable point to
defend the human rights of the people who are in national prisons, declared at an
international level as centers that violate human rights. Therefore, by acting quickly, it will
be possible to avoid overcrowding in prisons, a factor that has influenced the constant
violation of these Rights, by producing overcrowding, a shortage of food for inmates, as
well as a lack of the minimum necessary sanitary and hygiene means.

Other relations addressed in the field of human rights, such as privacy and intimacy, can
also be mentioned, which could be circumvented by the illicit use of computer media.

2.2.4. Legal Informatics

Computer Law constitutes the set of norms, applications, processes, and legal
relationships that arise as a consequence of the application and development of computer
science. That is to say, computing in general from this point of view is an object regulated
by law.

Now, legal informatics is a science that is part of the field of information technology, thus
demonstrating that information technology has penetrated into countless systems,
institutions, etc.; and proof of this is that it has penetrated the legal field to serve as an aid
and source. Therefore, legal informatics can be considered as a source of law.

Legal informatics studies the automated processing of sources of legal knowledge

through legislative, jurisprudential and doctrinal documentation systems (documentary
legal informatics); the sources of legal production, through the computerized elaboration
of the logical-formal factors that occur in the legislative process and in the judicial decision
(decisional legal informatics); and the processes of organization of the infrastructure or
instrumental means with which the Law is managed (management legal informatics).

Computer Law, as a new branch of law, is responsible for providing legal solutions to the
major problems generated by the use of technology in society. Therefore, specialists in
this new branch of law are constantly faced with the dilemma of providing coherent and
harmonious responses so that legal operators are in a position to propose the most
appropriate solutions for each specific case.

In order to provide adequate protection to the information that circulates through

interconnected networks, whether these are open networks such as the Internet or closed
networks such as Intranets or internal networks installed in institutions, Information

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Technology Law includes technical institutions and incorporates them into the Law,
granting them adequate legal value. For example, encryption techniques can be cited,
that is, those security elements that allow information to be hidden, preventing people
outside the binding relationships that generate rights between the parties from accessing
it to damage it, alter it or market it.

2.2.5. Formality Problems in Electronic

“Data”.
Data is a known fact, circumstance or detail. From the field of Computer Science, and
more precisely, in the field of “software engineering”, in Programming, data is
conceptualized as “the minimum part of the information” or as a “general expression that
describes the characteristics of the entities on which an algorithm operates”. Likewise, in
the field of information sciences and library science, a piece of data is considered to be a
minimal expression of content on a topic.” However, as already stated in another work:
“Data by itself has no value, because only after it has been contextualized can it have
value, that is, only if related to other data, it acquires the character of useful information to
initiate actions or solve a problem: “This is paraphrasing what is expressed in Wikipedia,
data by itself does not constitute information, it is the processing of the data that provides
us with information. The value of data comes from its appropriate treatment (processing),
because only when we have a set of data that is conveniently structured and organized
do we have what we call information. Consequently, only when that element of knowledge
is capable of being represented by conventional signs or symbols and, consequently,
capable of being preserved, processed or communicated, can documents be generated.
Therefore, the document (in general) is the testimony of data, facts or acts, carried out or
known by the human being. The basic classifications for identifying the different types of
documents are based on three parameters: the type of data or information stored in them,
the type of medium used to record and preserve said information, and the informative
nature (or level of credibility) attributed to their content.

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 1. Por el tipo de datos o información asentada en él:

Textual, gráfica, audio, video, holográfica o kinestésica (dispuesta

para generar la percepción del movimiento);

2. Por el tipo de soporte usado para asentar su

contenido:
Pictografías, tablillas cuneiformes, pergamino, lienzos, papel, tablas
braille, fotografías, películas, cintas, diskettes, discos y registros
electro-magnéticos en general;

3 Por el carácter informativo de su contenido:

Documentos
Documentos de carácter “científicos”, “de divulgación”, “de opinión”
y/o “informativos

But in addition, regardless of the classification that corresponds to them, all

electromagnetic representations or records of information can also be classified into
Original or Primary Documents and Processed or Secondary Documents. The originals
are the result of the first record of that element known to the author and have not
undergone any kind of treatment; the processed documents are the result of applying
some treatment to the primary documents. In both cases, we are talking about the
electronic document, a category whose definition we arrive at by recapitulating what was
said previously: If the document is the representation that gives testimony of data, acts or
facts known or carried out by the human being, the electronic document is a document
(testimony of data, acts or facts), which independently of the type of information
established in it and the informative nature that it has, is always inscribed in some type of
electronic (or electromagnetic) device and whose content is recorded by means of some
type of digital code that can be read or reproduced with the aid of electro-magnetization
detectors. (Electromagnetic, optical or similar technological media) Likewise, we have
taken care to specify the categories “Document” and “Electronic document”, and not the
category of “Legal data” because, given that its description reduces it to a mere cognitive
element, this cannot be an object of regulation by the Law given that this, even when it
deals with facts or actions, as immaterial knowledge, can be an idea, opinion, reflection or
reasoning, but the Law is never concerned with regulating thoughts. Only when the data
has been objectified by humans through its recording on some type of medium, can we
deal with its regulation. For all these reasons, before discussing the “Legal Document” of
which there are already many definitions, we must talk about the fact and/or the legal act

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that give meaning to the legal data. Thus, when defining a legal document as one that
meets all the legal requirements for the act it bears witness to, reference is made to those
"Legal Acts" that the legislator has determined as acts that create, transmit, modify and
extinguish rights and obligations; and not to those actions or omissions that naturally and
involuntarily generate legal consequences - action or omission that is known as a "legal
fact" (regardless of whether or not they are reflected in a document). For this reason,
sometimes the document in which a "legal act" is specified is also known as an
"instrument".

Therefore, not every document, not every representation, is a legal document (regardless
of the medium used to record its content) even when they continue to be the
representation of actions or facts capable of producing legal consequences. Regardless
of those cases in which the document does not meet the legal requirements to be able to
bear witness to a legal act and therefore, have the character of a legal document, not all
documents that bear witness (or could bear witness) to facts that could produce legal
consequences can be considered legal documents, since these have not been duly
regulated. And in the immaterial world of electronic documents the same thing happens
as in the physical world: there are a large number of records that are not properly
regulated (on paper, photographs, films, tapes, diskettes, discs, etc.), even more so when
in computer systems, any keystroke generates a data record that can be compared to the
creation of a document. This is the case for many electronic documents in public
administration and in the social sphere: their recording on magnetic media bears witness
to facts that may have legal consequences and are not properly regulated. A
circumstance that, while in the private and business spheres it causes innumerable
effects in the personal and productive spheres, in the judicial sphere it also has
repercussions on the levels of legality and legal security that, in principle, all public
administration is obliged to provide.

2.2.6. What is currently usually regulated

When the jurist deals with the recognition of the legal validity of the electronic document,
the problem is generally addressed (as in many other parts of the world) by adapting to
each possible situation of electronic documents the same solutions that civil legislation
provides for paper documents and for the formation of contracts. As if it were enough to
establish a provision that said: “The acts, data and documents prepared, transmitted and

19
kept with instruments of information and communication technologies, by people and by
public administration bodies, as well as those issued by individuals, are valid and relevant
for all legal purposes.” Thus, ignoring the fact that technological instruments create an
infinite number of electronic documents that attest to many other types of facts that can
also produce legal consequences, they are left without the proper regulation.

And to strengthen and preserve such aspects of electronic documentation, the following
are already regulated in almost all countries in the Western world:

♦La firma digital (o “electrónica

avanzada” -como se le conoce en
Situaciones México-);
electrónicas ♦La certificación de la firma
digital; y
previamente
♦Parcialmente, la eficacia
reguladas probatoria de los documentos
electrónicos.

But what is happening with the electronic documentation that is the subject of this
investigation? Before trying to give an answer, we will try to ground this discourse in our
reality.

20
CONCEPT MAP:

METHODOLOGY

The research process began with readings to determine the theoretical options; the first
readings required a decision on the recording of information from the sources that would
contribute to the theoretical bases of the research. We also contacted two researchers
from the Department of Law at the Autonomous University. This search showed the need
to make another decision regarding the type of text to be analyzed. It was decided that
the development would consist of publications that were research products such as
articles, books, jurisprudential theses on the subject, sentences and regulations. Two
types of questionnaires were also carried out to allow us to know:

 The real possibilities of achieving legal innovation within public administration that
effectively regulates the nature of electronic documents, facts and acts.
 The needs of users of electronic media who have been affected through such
media and who wish to have the legal consequences of such events considered.

3.1 Population sample

21
  First questionnaire: Litigation lawyers in any branch of public and private law.
Lawyers, professors and law researchers.
 Second questionnaire: Actors and defendants in claims for public and private law
actions.

3.2 Type of study

NOT EXPERIMENTAL

An analysis of a particular case was carried out. Here is an extract from the judgment
studied:

“DOCUMENTS AND EMAILS. ITS VALUATION IN COMMERCIAL MATTERS.

The doctrine explains that in contemporary times, when we talk about documentary
evidence, we cannot think only of paper or other support that reflects writings that
are visible to the naked eye, without the aid of technical means; we must also
include multimedia documents, that is, supports that allow these documents to be
viewed on a computer, a mobile phone, a camera, etc. In several legal systems,
multimedia or computer documents have been fully equated for valuation purposes.
This equivalence is, basically, with private documents, and their admission and
assessment is subject to requirements, especially technical ones, such as electronic
signature, due to the reliability problems of such documents, including emails, since
it is possible to falsify and intercept them, which requires caution in their
assessment, but without dismissing them only because of this feasibility. To avoid
an IT expert opinion that would prove the reliability of the electronic document but
complicate its agile procedural reception, the judge may consult the technical data
revealing any modification indicated in the document, although if these do not
exist, he will consider the possibility of alteration and will resort to the expert
opinion, since the electronic document may remain in the RAM memory or on the
hard drive, and copies may be issued, so to verify the original, documents assisted
by experts must be exhibited for reading. That's right, since the printout of an

22
electronic document is only a copy of its original. The document that has an
electronic signature deserves greater reliability, although within this type of
signature there is a gradation from the simplest to the one with the greatest
technical guarantees, and its reliability, ergo, its probative value, follows the same
scale. Thus, the advanced electronic signature prevails over the simple electronic
signature, since the production requirements of the former make it more secure
than the latter, and are derived from the Model Law of the United Nations
Commission on International Trade Law on Electronic Signatures. This proposed
regulation, like the various Model Law on Electronic Commerce, was adopted in the
Commercial Code, which follows the criterion of functional equivalence that seeks to
equate electronic documents with traditional documents prepared on paper, by
satisfying requirements that revolve around reliability and transcend the probative
force of data messages. Therefore, in accordance with the interpretation of articles
89 to 94, 97 and 1298-A of the Commercial Code, if electronic documents meet the
legally established reliability requirements, including the existence of an advanced
electronic signature, the criterion of functional equivalent may be applied to
documents that are on paper, so that their probative value will be equivalent to
that of the latter. If the signature is lacking and its authenticity has been
challenged, they cannot be granted similar value, although their value as evidence
will increase if the content of the electronic documents contains sufficient technical
elements, in the opinion of the judge, to consider their authenticity and
unalterability highly probable, or if they are complemented with other evidence,
such as expert evidence in computer science, which demonstrates such reliability.
On the contrary, its probative value will decrease to circumstantial quality if it is a
paper printout of the electronic document, which, as a copy of the original, will
receive the procedural treatment of this type of simple document, and will be
assessed together with the remaining evidence submitted to the trial in order to,
based on the specific circumstances, determine its demonstrative scope."

23
Through the investigation of the specific case established in Direct Amparo 512/2012.
From the company Litobel, SA de CV whose sentence was issued on September 13,
2012 by the Fourth Collegiate Court in Civil Matters of the First Circuit, we note the
reliable application of the problem to be investigated and the path in which the
Court seeks to create in its own way a solution to the matters subsequent to this
one, however the casuistry of the present trial will prevent the sentence from being
applicable to the generality, partially filling the legal vacuum.

In addition to the above, we took on the task of practicing conducting interviews

with certain population groups that are of vital importance in our research.

3.3 Description of the instrument

We used a 10-question questionnaire for legal professionals with the appropriate
legal vocabulary and a 10-question questionnaire with simple colloquial language
for greater understanding since the second questionnaire was applied to ordinary
people, both questionnaires did not have response options but instead the
possibility was given for participants to give a broad answer; in addition to
highlighting that a couple of these questionnaires were applied simultaneously,
since the client-lawyer relationship seemed quite interesting and important to our
research, in addition to the fact that at that moment a dialectic was carried out
between both from which we were able to abstract enriching points of view that
we had not come to contemplate. If the research reaches a second phase, we
would like to subsequently conduct both questionnaires in similar situations.

3.4 Collection procedure

1. Both questionnaires were applied via the Internet, through a Google application.

24
2. It was decided to interview two research teachers in person.
3. We conducted a couple of face-to-face surveys at the Palace of Justice.
4. The collected responses were first accumulated with respect to the type of
questionnaire, then the surveys were compared.
5. From the responses obtained, we began to direct our research towards where it would
be most useful to the community.

3.5 Statistical information management

procedure
1. Each survey was recorded under the different aspects of the subjects.
2. Once the information was accumulated, the topics with the greatest preponderance by
type of questionnaire were determined.
3. Once the problems with the greatest participation were located, questionnaires were
compared.
4. Graphs were created to visualize the information obtained from the sample.
5. Data such as age were requested to determine the generational impact.

Encuesta 1
7
BÚSQUEDA DE LITERATURA JURÍDICA AL RESPECTO. 2
15
ACEPTACIÓN POR PARTE DEL ORGANO JUDICIAL DE MEDIOS
0
ELECTRÓNICOS COMO LEGALES
preguntas

2
CONOCIMIENTO DE JURISPRUDENCIA APLICABLE A LA MATERIA DE
3
DERECHO INFORMÁTICO
15
USO DE MEDIOS D PRUEBA ELECTRÓNICOS DENTRO DE UN JUICIO 1
5
CONOCIMIENTO DE LEGISLACIÓNES QUE INTERVIENE EN EL DERECHO
1
INFORMÁTICO
0 2 4 6 8 10 12 14 16
participantes

SURVEY 1 represents the sample of Lawyers and the aspects in which they said they
participated.
In all cases, the majority demonstrates an emerging need to regulate those aspects that
have to do with technology and legal consequences.

25
 Encuesta 2
2
CONOCE LAS RESTRICCIONES EN EL CONTENIDO EN INTERNET 2
12
PREGUNTAS HA SIDO VISTIMA DE ALGÚN DELITO INFORMÁTICO 1
13
CONSIDERA QUE MÉXICO NECESITA MAYOR CONTROL EN SU ESPACO CIBERNÉTICO 7
5
LOS AVISOS DE PRIVACIDAD DEBERÍA TENER VERDADERAS CONSECUENCIAS JURÍDICAS 10
1
CONOCIMIENTO DE LA EXISTENCIA DE LA MATERIA DE DERECHO INFORMÁTICO 2
0 2 4 6 8 10 12 14

PARTICIPANTES

SURVEY 2 represents the sample of ordinary people and the aspects in which they said
they participated.
In all cases, the majority demonstrate a lack of knowledge of the legal implications and
protection of different regulations in electronic media.

RESULTS

4.1 Discussion

According to the results of the research carried out, the main aspects that need to be
regulated in terms of IT Law are:

Legal regulation of informational assets. Information is related to freedom of

expression and constitutes, in turn, a right, the right to be informed. Information is an
element capable of being transmitted by a combination of signs, or it can also be
considered as a physical-mechanical process of data transmission, making reference to a
fact. When we talk about a data set we are talking about information. This information,
regulated by Law, can also be related to systems, understanding that these are, following
the definition of Ernesto Grün, in his work A systemic and cybernetic vision of Law,
autonomous entities endowed with a certain permanence and constituted by interrelated

26
elements, which are transformed within limits of stability, thanks to internal relationships
that allow them to adapt to the variations of their specific environment.

Legal protection of personal data. In our legislation there are different databases,
managed by various agencies and entities of the Federal Public Administration, the States
and the Municipalities, which integrate information elements regarding people. The
collection, integration, use, modification and dissemination of all such information is
subject to law. It follows different regulations than paper files and documents, despite
containing, in many cases, the same information and being equally legally valid.

Legal protection of computer programs. Understood as a product of the intellect and as

a cultural asset, computer programs are subject to the protection granted by copyright
legislation. The widespread use of computers and the complex creation of programs has
led to the main development of the computer industry being oriented not so much towards
the hardware or physical components of the devices, but towards the logical support or
software. Generally speaking, it can be said that computer programs are the procedures
that integrate the hardware software and allow information to be processed.

Computer contracts. A contract is the agreement of two or more wills to create or

transmit rights and obligations. An agreement is the agreement of two or more wills to
create, transmit, modify or extinguish rights and obligations. When the object of these
rights and obligations affects giving, doing or not doing some of the types of computer
goods or services, we can speak of computer contracts or agreements. It is true that the
general rules of contracts, whether civil or commercial, apply to them, and it is difficult to
talk about specific rules that should be applied specifically to this matter. The following
contractual agreements are discussed: material or system contracts; equipment and
software compatibility; services and spare parts supply; program-product contracts;
program acquisition; program use license; program development; data analysis and
processing; maintenance contract; consulting contract; and training and capacity building
contract. In turn, some participants mentioned the following contracts: Internet access
provider; Internet system operator; information supply; Internet publishing; rental of online
space and related services; online advertising; online brokerage; for the rental of online
advertising space; development of online multimedia products; online market surveys;
online distribution; development and maintenance of a Web page; online research; online
lobbying and marketing; participants in an online forum; for access to online databases;
master retail sales contract; e-commerce contract between professionals; authority
certification contract; and acceptable use policy.

27
 Computer crimes. A generic notion of computer crime is that given by Antonio Enrique
Pérez Luño, in Essays on Legal Informatics, when he states that it is the “set of criminal
conduct that is carried out through an electronic computer, or that affects the functioning
of computer systems”. It is well known that what is a computer for us, is a computer for
the Spanish. Our Federal Criminal Code provides, in its articles 211 bis 1 to 211 bis 7, the
conduct classified as illegal access to computer systems and equipment. These crimes,
understood in relation to the provisions of article 50, section I of the Organic Law of the
Judicial Branch of the Federation, which establishes what federal crimes are, are the
responsibility of the Attorney General's Office and, in due course, of the District Courts
and the Circuit Courts. In local matters, the case of computer crimes, provided for under
this name in article 217 of the Penal Code for the State of Sinaloa, can be mentioned. On
the other hand, some participants in the lawyers' questionnaire mentioned that, regardless
of the conduct provided for in Mexican criminal legislation (local and federal), the following
are considered very specific computer crimes or illicit acts: cracking; cyber gangs; cyber
graffiti; web hacks; cyber stalking; cyber terrorism; domain name service hacks; hacking;
hacktivism (hacking and activism); ID theft (identity theft); phreaking or phreaks
(telephone hacking or cracking); social engineering; and warez (piracy).

Computer ergonomics. It is the set of statements applicable to computing in the

workplace, according to Téllez Valdez, who goes on to say that “it is the set of normative
labor implications caused by the use of computing.” These implications are: job
mobilization and unemployment; working conditions (working hours, vacations and days
off, salary); rights and obligations of employers and workers; contractual category; and
work risks.

Evidentiary value of computer media. In cases where there is no specific regulation, the
general principles regarding evidence must be followed, i.e. that the computer medium is
a private document. In the case of express regulation, the specific law must of course be
taken into account over the general law, so we will apply the specific regulation. It is worth
highlighting, for example, the recent reforms in the area of electronic commerce,
published in the Official Gazette of the Federation on August 29, 2003, through which
articles 89 to 114 of the Commercial Code were reformed or added. As long as computer
law is not systematized in an ordered body of rules, it cannot be considered an
independent branch of legal science. As it is provided for in different branches, it is
subject to different principles, which may contradict each other. The jurist must, as has
been said, analyze this broad panorama and propose appropriate measures to provide
order and coherence to computer regulations. The jurist ventures into areas that he does

28
not know, but which are his own because it is Law. Regardless of the legal concept of
information technology, we can consider it as the means of compiling, processing, storing
and transmitting information. This computing activity is always carried out around
information, in the following way: it is obtained or collected; it is stored or conserved; it is
processed, through aggregation and selection; and it is transmitted, through use,
communication, destruction or modification. The activities mentioned above, which consist
of the use of technology for the management of information through automated
processes, are carried out through computers, which have the following basic functions:
to store data in memory; to combine data and create new data; and to operate at high
speed, faster than other means.

Legal management computing, also known as Office Automation, is made up of advances

aimed at automating routine tasks carried out in any office and, therefore, in our particular
case, in legal offices or law firms; they are computer or telematic supports for operations
intended to receive and transmit communications of any kind, to read and write texts, to
form, organize and update files and records, to demand and receive payments, and to
stipulate terms and conditions and control their compliance. In turn, and following the
opinion of the aforementioned Spanish author, decisional legal computing, also called
metadocumentary computing, is made up of procedures aimed at replacing or
reproducing the jurist's activities, providing him with decisions and opinions, that is,
offering him conflict solutions and not just simple information.

CONCLUSION

Computer Law is the set of legal rules that regulate the technology necessary for the
systematic and rational treatment of information through electronic data processing. It is
necessary to unify and systematize Computer Law in an orderly body of rules, in order to
give it independence and autonomy as a branch of legal science.

29
Mexico is one of the countries with the highest population growth, therefore Internet use is
expected to increase in the coming years. One of the challenges facing the Mexican
government is to use policies and strategies that help reduce the digital divide between
citizens with access to the Internet and those without. Mainly in schools from basic
education to higher education. Achieve excellent coordination between the three levels of
government: federal, state and municipal with information technology service provider
companies and the academic community.

Do not forget security and the prevention of crimes involved in the use of these
technologies, such as pornography, pimping, pedophilia, illegal access to computer
systems and equipment, disclosure of secrets, hatred, harassment, crime in general that
would have catastrophic results in Mexican society.

In this regard, the need to establish obligations for domain name holders, by keeping strict
records of them, as well as for service providers, is once again highlighted.

In broad terms, the general panorama of the legal framework regarding information
technology in Mexico is described, and we can conclude that to date, we have made
progress in certain areas, just as there are others in which there is still a long way to go,
so we have pointed out what we consider most important to add or change in our
legislation. Of course, a thorough analysis is necessary, as well as specific initiatives that
will be presented to the Congress of the Union once their ideal design is completed. We
are always faced with the challenge of the rapid advance of information technologies, and
the need for scholars of Law and Cybernetic Engineering to work together to ensure that
the Law is not overtaken by reality is becoming increasingly evident.

LITERATURE

Source: ESTAVILLO Rios, Juan Jose. [Online]. Law and IT in Mexico. Legal informatics
and computer law. [Consultation date: November 29, 2017].

Thesis: I.4o.C.19 C (10a.) Judicial Weekly of the Federation and its Gazette Tenth
Era 2002142 . Circuit Collegiate Courts Book XIV, November 2012, Volume 3
P. 1856 Isolated Thesis (Civil)

GRÜN, Ernesto, A systemic and cybernetic vision of Law. Buenos Aires, Abeledo-Perrot,
1995, 122 pp

30
HANCE, Olivier, Law and Business on the Internet (Trans. by Yazmin Juarez Parra).
Mexico, McGraw Hill, 1996, 371 pp

MEJAN, Luis Manuel C., The Right to Privacy and Information Technology. 2nd ed.,
Mexico, Porrúa, 1996, XXII-146 pp

Arguelles Arellano, M. of C. & Avila Mendez, C. (2014). Current laws in Mexico for
computer programs, databases and their documentation. Computing and Systems, vol.
18, no. 2, pp. 417–423.

Chamber of Deputies of the H. Congress of the Union. General Secretariat. Secretariat of

Parliamentary Services. General Directorate of Documentation, Information and Analysis
Services. (2016).

Tellez-Valdez, J. (2009). Computer Law, Mexico.

31
ANNEXES

7.1 SCHEDULE
TEAM NAME 8
ACTION PLAN FOR COMPUTER LAW RESEARCH

STRATEGIC ACTIVITIES / DATE

PHASE
OBJECTIVE STRATEGIES Start End.
Search on the
information to

the research
structuring

Internet,
enough
Gather

begin

libraries,
17/11/2017 20/11/2017
doctoral theses,
etc. Determine
problems
PLANNING

Summary of
17/11/2017 18/11/2017
information
Information
18/11/2017 20/11/2017
Organization
survey
22/11/2017 26/11/2017
integration
Analysis of
26/11/2017 26/112017
survey data

empty obtained
20/11/2017 24/11/2017
EXECUTION

information
empty survey
information in 24/11/2017 24/11/2017
graphs
graph analysis 24/11/2017 26/11/2017
 Analysis of data
obtained
according to 26/11/2017 26/11/2017
previous
information
Full information
27/11/2017 27/11/2017
review

33
7.2 SURVEY CONDUCTED
SURVEY 1

1. ARE YOU AWARE OF THE EXISTENCE OF THE SUBJECT OF COMPUTER

LAW?
2. ARE YOU AWARE OF LEGISLATION THAT INTERVENES IN COMPUTER LAW?
3. HAVE YOU USED ELECTRONIC EVIDENCE IN A TRIAL?
4. DO YOU THINK THAT PERSONAL DATA PROTECTION IS NEEDED TO BE
LEGITIMIZED?
5. DO YOU HAVE KNOWLEDGE OF JURISPRUDENCE APPLICABLE TO THE
SUBJECT OF COMPUTER LAW?
6. HAVE YOU PARTICIPATED IN ANY TRIAL INVOLVING ANY TYPE OF
COMPUTER CRIME?
7. CONSIDER THAT THERE IS ACCEPTANCE BY THE JUDICIAL BODY OF
ELECTRONIC MEANS AS LEGAL AND PROBATIVE
8. ARE YOU INTERESTED IN THE REGULATION OF ELECTRONIC
DOCUMENTS, ACTS AND FACTS AND THEIR LEGAL CONSEQUENCES?
9. HAVE YOU CONDUCTED A SEARCH FOR LEGAL LITERATURE ON THIS
SUBJECT?
10. HAVE YOU PARTICIPATED IN CASES IN WHICH YOU HAVE BEEN AFFECTED
BY LEGAL LOOPS REGARDING THE INTERPRETATION OF ELECTRONIC
DOCUMENTS, ELECTRONIC SIGNATURE, VALIDATIONS, ETC.?

SURVEY 2

1. ARE YOU AWARE OF THE EXISTENCE OF THE SUBJECT OF COMPUTER

LAW?
2. READ THE PRIVACY NOTICES BEFORE ACCEPTING "I AGREE TO THE
TERMS AND CONDITIONS"
3. DO YOU THINK THAT PRIVACY NOTICES SHOULD HAVE REAL LEGAL
CONSEQUENCES?
4. PREFERS GREATER ONLINE SECURITY, SACRIFICING INTERNET PRIVACY.
5. CONSIDERS THAT MEXICO NEEDS GREATER CONTROL IN ITS
CYBERSPACE
 6. DO YOU BELIEVE THAT ALL THOSE DOCUMETS (PHOTOS, PUBLICATIONS,
MESSAGES, EMAIL, ETC.) OF AN ELECTRONIC NATURE SHOULD BE USED
AS EVIDENCE IN A TRIAL?
7. HAVE YOU BEEN VICTIMED OF ANY COMPUTER CRIME?
8. DO YOU THINK THAT THE USE OF SOCIAL NETWORKS REQUIRES
GREATER REGULATION?
9. ARE YOU AWARE OF THE RESTRICTIONS ON INTERNET CONTENT?
10. DO YOU KNOW ABOUT COMPUTER CRIMES?

35