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Tucker, Greg --- "Some Legal Issues Relating to Digital Cash on the Information Highway" [1997] JlLawInfoSci 3; (1997) 8(1) Journal of Law, Information and Science 46

* Department of Tax and Business Regulation, Monash University.

[1] This usually detailed in the written agreement, see for example the Mark Twain Bank agreement cl.13 at http://www.marktwain.com/legal.html

[2] http://www.cybercash.com

[3] http://nii-server.isi.edu/info/NetCheque/

[4] Reserve Bank Act section 36(1). This means that the tender of a specific amount is all that the offeror is required to do to meet the particular obligations.

[5] In general, details of operational material are not available on these systems for proprietary and security reasons.

[6] See generally, Reed A Legal Comparison of Digital Cash and Traditional EFTs (1995) 47 ABT Bulletin 5.

[7] The legal characterisation of the precise communication may vary between payment systems, for example, between the Visa smart card and the Digicash systems.

[8] See Part V of the Reserve Bank Act 1959 (C’th). Amongst other things the digital cash is not issued in accordance with the definition in section 32. Section 43 goes on to state that the Reserve Bank is prohibited from issuing other notes or bills for circulation as money.

[9] [1957] 1 VLR 542.

[10] At p.544.

[11] See http://www.digicash.com/

[12] See http://www.marktwain.com/ as it has a virtual shopping mall linked to its digicash payment system.

[13] See generally, Tyree Banking Law in Australia 2d Butterworths, 1995 pp 253-4.

[14] This is true of instruments such as cheques and bills of exchange but note the exception with payment orders which had negotiability bestowed on them when they were created under the Cheques and Payment Orders Act 1986 (C’lth) see ss 40 and 49.

[15] Tyree Virtual Cash - Part II JBFLP 139, 140.

[16] See Momm v Barclays Bank International Ltd [1977] QB 790 and Delbrueck & Co v Manufacturers Hanover Trust Co 609 F 2d (1979).

[17] The Mondex brochure used in the 1995 Swindon, UK, trial states of lost or stolen Mondex cards “Unfortunately, if it is not returned or insured you will lose the cash on it.” Clause 13 of the Mark Twain Bank Ecash Agreement states “any ‘account’ set up in the Ecash system is not a deposit with Bank but represents cash held by Customer in its personal computer under the Ecash system” see http://www.marktwain.com/legal.html.

[18] Crimes (Currency) Act 1981 s3.

[19] Id.

[20] In relation to the criminal law in Australia, the laws of counterfeiting do not apply; see section 6 of the Crimes (Currency) Act 1981 (C’lth). However forging digital cash may constitute a computer crime under the Crimes Act 1914 (C’lth) section 76D and the relevant computer crime legislation in the states and territories.

[21] [1987] Ch 150 and affirmed in [1989] 1 Ch 497.

[22] Commonwealth of Australia, AGPS, March 1997.

[23] Ibid recommendation 72, p402.

[24] Ibid recommendations 91 & 92, p501.

[25] Nelson, US Delegation to the OECD, see Report of the Ad Hoc Meeting of Experts on Information Infrastructures OECD/GD/(96)74, Paris, 1996, p25.

[26] See the Closing Statement of the Chairman at the G-7 Summit on the Information Society, European Commission, Brussels, 26-7 Feb., 1995 and the APEC Ministerial Meeting on Telecommunications and Information Industry, Declaration for the Asia Pacific Information Infrastructure, Ministry of Information and Communication, Republic of Korea, Seoul, May 1995. Also see OECD, Report of Ad Hoc Meeting of Experts on Information Infrastructures, Issues Related to Security of Information Systems and Protection of Personal Data and Privacy OECD/GD (96) 74, Paris, 1996.

[27] Judge Cooley A Treatise on the Law of Torts 2ed. (1888).

[28] Organisation for Economic Co-operation and Development, Paris, 1992.

[29] See Part IV.

[30] Private Sector Leadership: Policy Foundations for a National Information Infrastructure, Washington, July, 1994 p9.

[31] Note that the Australian Privacy Charter, drafted by the Australian Privacy Charter Group in 1995, includes a principle of transactional privacy (principle 10) which states that people should have the option of not having to identify themselves when entering into a transaction.

[32] [1924] 1 KB 461.

[33] See generally Tucker Vale Tournier Salve Privacy Act (1993) 21 ABLR 290

[34] Australian Consumer and Competition Commission, Canberra.

[35] European Union, Document no.95/46/EEC, Brussels.

[36] Ibid arts 25 and 26.

[37] For example, the EFT Code of Conduct 1991.

[38] For example, this has been done in the Netherlands, New Zealand and the EU data protection directive.

[39] For example PGP is available at http://rschp2.anu.edu.au:8080/crypt.html#how

[40] See http://www.mondex.com/index.html

[41] See http://www.digicash.com/

[42] See generally Furche and Wrightson Computer Money Dpunkt, Germany, 1996 pp 84 - 87.

[43] For a summary of the characteristics of electronic payment systems see Furche and Wrightson Computer Money - A Systematic Overview of Electronic Payment Systems Dpunkt, Heidelberg, Germany, 1996.

[44] See generally Lynch and Lundquist Digital Money - The Era of Internet Commerce John Wiley & Sons, New York, 1996, ch 3.

[45] American Bar Association Digital Signature Guidelines Chicago, August 1996, para.1.11.

[46] See generally Schneier Applied Cryptography John Wiley & Sons, New York, 2ed., 1996,34-44 and Chaum “Achieving Electronic Privacy” Scientific American August 1992..

[47] OECD, Cryptography Policy Guidelines 27 March 1997 at http://oecd.org/dsti/iccp/crypto_e.html.

[48] [1984] 3 All ER 565.

[49] Will the existence of a unique password for this person be sufficient evidence?

[50] For example, in Australia the Financial Transaction Reports Act 1988 requires the reporting of cash transactions of $AUD10,000 or more, suspect transactions, international transfers of currency of $AUD5,000 or more, and international funds transfer instructions for any amount. These categories do not seem to catch domestic use of digital cash unless it is suspicious. It would not catch international transfers of digital cash out of Australia where the transferor is not a cash dealer under the Act (ss3 and 17B).

[51] It also raises the related question of whether the computer evidence would be admissible in court in the relevant jurisdiction.

[52] See Financial Transactions Reports Act s15.

[53] Mutual assistance treaties may be useful in some instances to expedite this process but these treaties do not exist in every jurisdiction.

[54] See ss76D and E.

[55] This provides the constitutional basis for the provision, ie the communications power.

[56] Telstra is scheduled to be privatised during 1997. Also cf US legislation see the Computer Fraud and Abuse Act 18 USC 1030, 1030 (a) (4).

[57] For example see Crimes Act 1900 (NSW) Part 6 and Summary Offences Act 1966 (Vic) s9A.

[58] For a summary of the provisions see Tucker Information Privacy Law in Australia Longman Cheshire, 1992 ch 5.

[59] See DPP v Murdoch [1993] VicRp 30; [1993] 1 VR 406.

[60] For example, see Crimes Act 1900 (NSW) ss 299-307 and Crimes Act 1958 (Vic) s83A.

[61] Australia’s Move Towards Electronic Commerce: Some Implications for Law Enforcement Research Series No. 2/95, Canberra, 1995.

[62] This scenario is set out in Wahlert, Some Implications for Law Enforcement in Proceedings of OSCA seminar “Australia’s Move to a Cashless Society: Some Implications for Law Enforcement”, 18 August 1995, CSIRO Conference Centre, Canberra.

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