Legal Issues of ICT Use in the Construction Industry

efficacious Issues of ICT Use in the expression IndustryAbstractWhile in the 21st century the braid industry prefers to conduct argument employ the fosterage and confabulation technologies (ICT), the presence of sound deals pertaining to this mannerism of railway line faeces non be ignored. The be rig of this proletariat is to provide a better empathiseing of these good issues which ar associated with their expenditure. The objectives entailed to compass this aim are to de bourneine the existing takeualityful issues and to estimate the awareness ab appear them in the industry. The aim and objectives start been turn to by conducting two types of field investigations namely, questionnaires and interviews with impartialityyers, architects and engineers with different backgrounds. The foresee concludes with the identification of the intelligent issues present in the industry and an attempted comparison between the licit scenario in the U.K. and India.1. INT RODUCTION 1.1 Background and Scope of the ResearchAl nigh a decade ago the info engineering science invaded our lives like never in the lead. The approach in learning and communion technologies (ICT) and their utilisation has been tremendous with the recent eld witnessing the development of several IT-based technologies such as e- traffic.Information applied science solutions fork up paved a way to a young-made world of net income, employment profits and e-banking, budding as a solution to reduce costs, change the train economic affairs to an easier, speedy, high-octane, and duration-saving method of transactions and exchange of cultivation.Though the net has emerged as a boon for the present pace of life up to now at the equal clock it has also leave aloneed in posing motley threats to the consumers and different institutions for which it has manger now proven to be the most beneficial. diverse illegals eat been able to pave their way to interfere wi th the internet accounts with versatile techniques like hacking the Do of import Name Server (DNS), Internet Providers (IP) address, spoofing, phishing, internet phishing etc. and have been successful in gaining an unauthorised access to the engagementrs electronic computer system t presentby gaining enormous profits from the stolen info.These and other problems have oblige the telephone circuit community, the legal community and the right enforcers i.e. the g everyplacenment to look at the current legal scenario. These problems, therefore, need to be studied in expound by investigating legal issues pertaining to the aspect industry. This sphere is an attempt at understanding the legalities which are colligate to the mannerism of conducting craft dapple procedure ICT. As part of this resume an effort will be say towards comparing the legal stance of the United Kingdom and India.1.2 Aim and ObjectivesThe aim of this project is to provide a better understanding of t he legal issues snarly epoch using discipline and communication technologies (ICT) in the braid industry.To achieve this aim, the following objectives should be fulfilled during the course of this project-To con the legal issues pertaining to e-commerce (for e.g. electronic removes, digital sig records, etc.).To assess the importance of jurisdiction issues in cyberspace (for e.g. engaging in e-commerce on World Wide Web whitethorn expose the comp sever solelyy to the jeopardize of being sued in either give tongue to or foreign country law applicable to contractual obligations, etc.)To study the various legal problems that hobo repeal emerge of miscommunication between the client, consultants and contractors ( approach actions, out-of-court settlements of disputes, etc.)To study and compare the legal stance of India and the United Kingdom, in using the selective info and communication technologies in the construction industry.1.3 Justification for the ResearchComputer s and more signifi displacetly internet governs our lives to the kind of extent that we do not til now soak up its conditional relation. To solar day companies, especi every(prenominal)y in the concerned area of construction, are conducting business by means of the latest advancements in schooling communication technologies. way in mind the current flourishing e-commerce, it becomes preferably easy to get embroiled in lawsuits. The reasons whitethornbe several, for instance either there may be disputes between the client and the company or there baron be an issue with jurisdiction or there may be concerns related to the security of take of exchange of information electronically. In most of the cases it terminate be assumed that there is a high blowzyed ignorance of the legal textile with respect to ICT, and this ignorance may be a deterrent in the popularity of conducting business in this manner.In lieu of these issues, I believe it becomes the need of the hr to underta ke a study of this kind.1.4 Methodology OutlineOwing to the spirit of the research project and its data, the research approach adopted is mostly quantitative. However, about aspects of qualitative research have also been incorporated. Source of information will be taken from journals and books.The method of postulateing data for this research project has consisted of online questionnaires (surveys) and unstructured interviews. Case studies of previous lawsuits with respect to the topic have been studied.1.5 utterance ContentsThe research project includes a detailed study into the methodology to be followed and also provides the justifications for the chosen methodology.The project also includes a writings review about the various legal issues which are related to the utilisation of information communication technologies for conducting business in the construction industry. It sheds light on the close to of the legal wrong associated with the legal framework of e-business.T he project piece of music additionally contains with analysis and evaluation from the interviews conducted and the online questionnaire filled in by architects, engineers and lawyers.It supplies information on the legal future of using the various existing and upcoming information communication technologies in construction, providing an insight into the implications the solutions available the problems faced trance conducting research and manner in which ICT burn down be utilised for the step-up of the construction industry worldwide. It concludes with summarisation of the research and recommendations and scope for further study on this research subject in the construction industry.2. LITERATURE go over 2.1 foundationThe intentional use of information engine room by cyber-terrorists or cyber-criminals for producing destructive and harmful effects to tangible and intangible property of others is turn to as cyber crime. Cyber crime is distinctly an international problem wit h absolutely no national boundaries hacking attacks can be launched from any corner of the world without even an iota of fear of being traced or prosecuted easily. A cyber-terrorist can collapse the economic structure of a country from a take where that country might not even have arrangements such as an extradition treaty to deal with that criminal. The only safeguards can be better technology to combat such technology which is already well-known to the hackers and to evolve stricter and tighter laws which can be accepted world(a)ly.2.1.1 An introduction to the construction industryA precept in India states, to live a comfortable life all one and only(a) postulate is three basic essentials- food, clothes and a house. This has held true crossways all civilisations and centuries. Building a house was just a first step. The world has advanced much further constructing palaces, forts, dams, skyscrapers, factories, energy-efficient buildings and lots more.In a world of today, the 21st century, the construction industry is an important sphere of a nations economy providing employment to millions employed by countries across the world as an economy regulator In U.K. alone, construction industry had an output of 102.4 billion at current prices (2004) 8% of Gross Domestic Product (G.D.P.). In the European Union the construction sector accounts for 9.9% of G.D.P. and 50% of Gross firm Capital Formation (GFCF).Considering the scope and importance which the construction sector enjoys worldwide, it becomes quite easy to understand that this industry functions at an incredible level and involves works with many organisations.The construction industry is frequently described as scattered by its critics however, disseminated would be a better description .For each construction project a whole new organization is created involving the client, designers, contractors, sub-contractors, material suppliers, shew hire companies, government, local authorities and agencie s such as the surroundal agency, health and Safety Executive and many others. Each new and transient project organization is, in fact, a virtual organization or attempt (McCaffer, 2008).Communication, thus, becomes an important aspect of conducting a successful business in construction ensuring successful collaboration between the various components of the industry.2.1.2 An introduction to e-business/e-commerce and e-constructionWith age succession the concept and means of communication have also evolved. Earlier communication meant travelling to places near and far, then the concept of letters came and with the advent of yell postage lost some of its significance. The world was however still is in store for more inventions and the 1940s took the world by storm as the computers were born.Computers and internet are a lethal combination, a form of communication which rules over our lives as much as eating food does. every day, man films new discoveries regarding these two, trying to find out how our day-to-day activities can be undertaken in an improved efficient manner.The term electronic commerce (e-commerce) was coined by Lawrence Livermore in 1989. E-commerce is a consolidation of people, technology, materials and the summonses on an electronic network for commercialized transactions (Johnston et al, 1997, p 37).As specified by the European Commission (1997, cited in Bruin, 2002), electronic commerce is all about doing business electronically involving the electronic processing and transmission of data (which consists of data, text, sound and videos). It encompasses various activities consisting of electronic trading of goods and services, electronic share trading, on-line delivery of digital content, on-line sourcing, electronic fund transfers, direct consumer marketing, electronic bills of lading, commercial auctions, collaborative design and engineering, public procurement, and after-sales service (European Commission, 1997).To be speaking strictl y its not in reality the electronic aspect of e-commerce but the digital part which imparts the revolutionary, efficient and versatile character to e-commerce (Johnston et al, 1997).E-commerce involves both the services e.g. financial, information and legal services) and the products e.g. consumer goods, specialise mechanical equipment. It also constitutes the combination of traditional activities such as education and healthcare and new activities such as virtual malls (European Commission, 1997). This is also concur with by Johnston et al, 1997 who state that e-commerce supports the selling, buying and distribution of services and goods.Johnston et al (1997) magical spell discussing the definition of electronic commerce noteworthy that it involves the conduction of business electronically across the spectrum of inter-enterprise relationships.E-commerce has the advantages of being a paperless economy, engaging in outsourcing and entails the convergence of all information in a single form (Johnston et al, 1997).In this day and age e-business has emerged as a field of immense voltage. The use of information and communication technologies to conduct business has gained momentum, and, like just about any other business the construction industry too has embraced the concept of e-business. smashed information technology (IT) capabilities have been a competitive necessity in nearly every industry sector. The post-Latham (1994 and Egan (1998) era has seen many construction firms investiture in technology tools to improve business performance, which subsequently led to an ontogenesis in technology investments in construction firms (Ruikar et al., 2008, p 23).The use of information and communication technologies in construction, however, depends upon a number of factors such as the size of the construction firm, its position in the market, the markets that the company operates in etc.2.1.3 Introduction to the legal problems in e-businessBefore jumpstarting ont o the e-business wagon, a company should have some reasonably placed apprehensions. The question in front of the management of a company should be whether conducting business using information and communication technologies is lawfully safe or not? Other questions should follow as well, such as what is an e-contract? will the companys information be secure when shared through with(predicate) and through ICT? what are the liability issues? what are the jurisdiction issues? is a scanned catalogue well-grounded and legal? what is a digital ghost, an e-signature?Questions such as above are justified because in actuality the companies are unaware of the legal risks involved while conducting e-business, hampering the chances of fruitful commerce.Sieber (2001) brings to light the need for new laws when he says that the emergenced significance of information and information technology is about linked to increased potential dangers, and these dangers bring an increased necessity to re assess the existing information law regulations and to formulate new ones.Sieber (2001, p8) further makes this statement to back up the aspect of new information law regulations, It must encourage- in the interest of common justice (iustitia commutativa) and as a contribution to distributive justice (iustitia distributia)-the installation of new information values (e.g. by means of economic incentives in copyright law), ensure a just distribution of the newly created goods (e.g. through the regulation of rights to particular information), reduce the number of new risks stemming from information technology (in particular, by provisions in the area of liability, administrative law and criminal law)and ensure a just compensation in cases where harm is caused. supervene upon of information in construction and engineering based businesses is a universal occurrence but it is not accounted for by contractual practice. Insufficiently delineate responsibilities, overlapping communication techniques and mistrust all hamper the fuller use of inter-enterprise ICT (Hassan et al).A major problem exists with the enforcement of electronic law. Particularly practical difficulties arise from the fact that data containing most of the information is available at the sagacity of the recipient. As is the case electronic data is not actually gross and can be altered, deleted or hidden through manipulation of technology (Sieber, 2001). entropy can also be encoded or encrypted by offenders to hunt imprisonment. Several terrorist, bank robbers, paedophiles, etc have attempted to escape or have been able to escape by encrypting data. Encrypted data is data which has been converted into recondite codes which can only be unlocked by using a place which only a holder of that matching key can reconvert them into plausible data.All in all there is clearly an urgent need to study and understand the legal issues involved while using information and communication technologies for cond ucting business.2.2 Legal Aspects of using ICTWhen the concept of e-commerce as introduced it was greeted with hysteria which has now been replaced by a concern voiced by many over the impact of using ICT for business. The industry is now closely examining the after-effects of e-business business world (Is spot and Kamat, 2008).Hurtado and OConnor Jr (2009) deliberate on the contractual issues concerned with the use of construction Building Information Modeling. They explain that the legal community is struggle to help out in developing meaningful contract terms in relation to the use of BIM technology. In their paper for the Society of Construction Law, they have contemplated upon the issues to be considered when preparing contractual provisions, including the pro make up use of the dumbfound the mannerism of data transfer from one model into the other models the deliverance schedule gauge from the model reliability of the modelled information management of the modelling proces s and use of goods and services of the model after the completion of construction.Some of the legal issues and terminology pertaining to the use of ICT for business purposes shall now be discussed.2.2.1 Types of legal risks involved in e-business in constructionEvery new day is coloured with a new discovery this holds as much truth for ICT as for any scientific discovery. The only drawback with ICT is that a new discovery brings along with it a new set of legal issues. These legal issues are a drawback because they take time for implementation and regulation sometimes damage has already been done before any sufficient action can be taken.Ismail and Kamat (2008, p-212) correctly state, The loss between the rates at which e-business technology develops to the rate at which legal framework and rules develop is substantial. Legal risks have not been studied in relation to construction e-business.The legal risks discussed include risks posed by web-based agencies, risks related to juri sdiction contract formation authentication electronic privateness and risks associated with smart property. These legal risks inflicting e-construction have been discussed as below Insecurity regarding electronic privacyIn the digital economy privacy claims have been of paramount concern. An issue forever causing concern amongst the construction and business community is the insecurity of their personal and private information which is exchanged and stored electronically.A popular, efficient and inexpensive means of information exchange and data transfer is the electronic mail systems, popularly known e-mails. While emails now incorporate information in various forms which includes photographs, typed memos, video clips, spreadsheets and bar codes they are deemed to be as un authoritative as a postcard if they are not protected by encryption and elaborate password systems (Johnston et al, 1997).Construction companies involved in e-business will need to manage the risks associate d with manduction private information private information may refer to personal privacy concerns about their own firms (Ismail and Kamat, 2008, p214-215). Online portals and marketplaces collect more information than is needed for lawfully authentically an e-contracting party (Smith and Clarke, 2000).The information thus collected may be in the form of enrolment forms, cookies, etc. Though the question remains as to who owns this information, the risk associated is with the privacy being challenged. In case of hacking or a virus, the information may end up being passed onto a third party. Risk posed by the web-based agentsWeb-based agents are information brokers. A new brokerage model can substantially change the equilibrium and re-adjust the interests of existing stakeholders. Also, software agents pose the biggest and truly exclusive risk to the current legal system as pointed out by Ismail and Kamat (2008).Agents control decisions and they learn and act upon their perception o f the environment to make the maximum goals of its user or programmer (Dzeng and Lin, 2004 Lee, 2004 Ren and Anumba, 2004). Agents act on behalf of their owners to promote the owners desires, unlike support software that supports the owner in do a decision but leave the decision for the owner to make (Schoop et al., 2003 Ren and Anumba, 2004). Risks related to electronic authenticationWhen doing business via the electronic networks, it become more and more difficult to establish the other partys trustworthiness without having physically met them, in other words doubts about authenticity are raised (Bruin, 2002).Smith Clarke (2000 cited in Ismail Kamat, 2008, p 216) debate authentication by stating, The drive to authenticate e-business vendees and vendors and evaluate contracting actions to the proper buyer and seller is in direct participation with privacy laws. Pacini et al (2002, quoted in Ismail and Kamat, 2008, p 216) support this statement when they say, Attributing an electronic message for an hug drug or acceptance of an e-contract to the person who purports to send it is however another risk. The Uniform Electronic Transaction Act (UETA) addresses this risk from a legal perspective by making it necessary that certain authentication levels are acquired and thus proper authentication and attribution is ensured and a protection is provided to the e-business participants from the attack of hackers (Belgum, 1999 Moreau, 1999 Thelen Reid Priest LLP, 1999a Pacini et al., 2002, cited in Ismail and Kamat, 2008). Risks inflicting electronic contractsConsider this scenario. cardinal parties engage in a negotiation for the purchase of cement for the construction of an institutional building. The seller adduces it at say 5 per kg and the buyer refuses and wants to buy it at say 4 per kg and also wants the seller to bear the shipping cost. The seller agrees, transaction is completed, cement is shipped and the buyer transfers bullion into the sellers ac count. This sounds like a simple business contract however, the difference here is that this contract has been formulated and fulfilled electronically (Johnston et al, 1997).In a commercial context, promises are exchanged in the form of an continue and an acceptance of the order. The offer and the acceptance supported with a valid consideration and mutual enter would, subject to certain limitations, constitute a valid contract.Electronic Data Interchange (EDI) technology is an advanced form of cyber-contracting. EDI is conducted between trading partners who already have a negotiated agreement which rules the relationship. In this form of technology, the computers contact each other as well as negotiate (based on programmed instructions). If a reply which rejects the offer is trustworthy then a counter-offer is also made. This continues till an agreement is arrived at or one of the system stops the process (Johnston et al, 1997).However, in the e-business transactions, it is not a n easy job to distinguish between the offer make and the acceptor. This is considered critical because a contract is considered to be invalid until an offer has been made and the acceptor has accepted the offer and communicated the same to the offer maker (Ismail and Kamat, 2008, p 213).Although the laws governing electronic contracts have improved significantly over the year, stock-still there is always scope for improvement because of the ever changing evolving nature of the communication technologies. Business risk and dubiety are always on a high level in the electronic world. Legal difficulties in an e-contract arise when the parties expectations are not met with or when a transaction does not progress as planned.Bruin (2002, p 146) shed some light on TrustUK and explained that, in July 1999, the Department of Trade and Industry published its Consumer clean-living Paper Modern markets Confident consumers..The White paper among other things contained plans for the cheering o f on-line codes of conduct by a new body provisionally called TrustUK.Section 4 of TrustUK Code of Practice deals with the various aspects of e-contracts and its implications (liabilities included). Risks related to vary jurisdictionsJurisdiction is a legal term describing which law is in effect at a given period of time and which courts decisions will be legally binding. Jurisdiction issues arise when parties dispute over a contract and want to settle as to which jurisdiction will decide over the issue (Ismail and Kamat, 2008).The problem becomes more intimidating where the issue of e-commerce comes into picture. The internet simplifies the carrying out of business globally. But then different countries follow different laws, especially those with respect to construction and therefore, the risk of encountering lawsuits in foreign land increases.In an electronic contract it should be very clear as to what law applies to the contractual obligations, what court of law will be presidi ng over to judge any dispute arising from the contract (Bruin, 2002).As pointed out by Rowe (1998, cited in Ismail and Kamat, 2008) a dispute judged under varying set of regulations, laws and rules have as different judgement. Although the laws regulating e-business vary, the general opinion of the courts implies that companies engaged in activities or online advertising may have to defend lawsuits in different jurisdictions if those activities snipe the local laws, Thelen Priest (1997 quoted in Ismail and Kamat, 2008, 213).The problem of jurisdiction exists becomes all the more relevant in the 21st century, now that there are so many countries existing worldwide and when global expansion has occurred in the business scenario with the arrival and explicit use of the information and communication technologies. However, there are quite a lot of countries which are at the moment unavailing to make any kind amendments in their legal framework on construction, especially where the ame ndments in law are concerned with e-construction. At the same time, it is good news that some governments are making changes to the construction law executed in their countries to make e-construction and e-business a more feasible and legally secure venture.However, the point to be noted here is that despite all the positive proceedings in the respective field, the possibility of two countries sharing the same law on e-commerce and that too in the construction sector are negligible. In a scenario where the choice of law is absent, legal uncertainty may arise regarding the application of law to an electronic contract (Bruin, 2002). This information clearly implies that risk attributed to varying jurisdiction remains.Bruin (2002, p42) clearly points out that in a specific case of cross-border electronic consumer contracts, a court procedure may involve such difficulties that a contract term defining a foreign jurisdiction may de facto exclude or hinder the consumer to take legal actio n. As a result the service provider also ends up providing an unfair contractual term.From the belles-lettres on jurisdiction which has been studied and mentioned here, it has been found that although there are quite a lot of provisions in legal frameworks of countries which address the jurisdiction issues, yet it would be beneficial to make changes and improvisations to these existing laws.2 shortened description of some of the legal terms associated with the legal framework of e-businessTo understand the legalities involved in using information and communication technologies for business, one needs to be aware of some terms associated with the legal framework of e-business. In this section these common yet important terms shall be discussed briefly. acknowledgment of the potential legal gaps and problems within the cluster projects issue 2, a proclaim on the findings of Hassan et al, forms the main basis for defining these terms. The discussed terms are as follows- Electronic / digital signaturesElectronic and digital signatures allow the recipient of a piece of information to know when the information has arrived, who has sent it, and to check whether the information has been changed or tampered with since it was sent.Digital signatures are electronic codes specific to individual users, which can be used to identify the originator of a message or file, and to indicate approval of the transmitted information. There are different types of digital signatures available (i.e. public key infrastructure, asymmetric cryptography, account numbers and passwords), and the level of security that is required dictates the choice of method to be used. Digital signatures are easily to transport and all the more difficult to imitate by anyone else, and more importantly they can be automatically time-stamped. A digital signature is basically a unique key that provides, if anything, stronger authentication than any written signature (Wacks, 2001).Asymmetric cryptosystem i nvolves two keys, one public, the other private. Its main advantage is that if you are able to decrypt the message, you know that it could only have been created by the sender (Wacks, 2001)The Electronic Transaction Act 1999 (in Australia) gives legal quotation to the use of electronic signatures and one may find them useful in executing electronic contracts on your website. The risk of e-businesses dealing with parties which might misuse digital signatures is similar to the commercial risk of fraud that arises through counterfeit of signature on a paper contract. Here is an example which depicts the working of a digital signature. Assume that man named A has to the draft of a contract to his lawyer who at present is in another town. A wants to assure his lawyer that the information sent across has not been tampered with and it really is what he had sent. To ensure that, heres what A has do Copy-and-paste the contract into an e-mail. Using specialised software, A obtains a me ssage hash (mathematical summary) of the contract. A then uses a private key that he had previously obtained from a public-private key office to encrypt the hash. This encrypted hash becomes As digital signature of the message. It is to be noted that the digital signature will be different each time a message has been sent.Now, how will As lawyer detect that this document is the same unchanged one that A had sent across to him? Heres what he will do As lawyer makes a hash of the received email to ensure that the document is intact and has been sent by A only. As lawyer then makes use of As public key to decrypt the message hash or summary. The received email (document in this case) is considered authentic and valid if the hashes match.Thus we understand that using a digital signature is an easy and safe method to protect privacy of information.A digital signature consists of the concerned persons public key, his/her name and e-mail address, the result date of the public key, n ame of the company, serial number of the digital ID, and digital signature of the certification position (Magalhaes, 2003).The fact that digital signature increase the security and ensure privacy is confirmed by Wacks (2001, p 80) when he states, Blinding or blind and digital signature will significantly enhance the protection of privacy. Digital notariesDigital notaries provide a time stamping service, thereby proving the existence of a piece of information at a particular time. These are often used in participation with an electronic / digital signature. Timestamping can ensure non-repudiation. Indeed, a digital signature is only legally binding if it was made when the users certificate was still valid, and a timestamp on a signature can prove this. Timestamping involves the following parties -client, timestamping authority (TSA) a verifier.Feather in 1999 expressed his opinion on digital notaries. He articulated that the purpose of a digital notary is to certify that a docume nt as produced by a person is a true copy of that