Current Issues in Technology and the Law
The law, correctly and purposefully, moves at a deliberate pace building on the past and evolving core principles. Technology is not like that. It hurriedly, at times seemingly spontaneously, reinvents itself and replaces not only existing technology implementations, but also the entire paradigms on which they are based. Harmonization between law and technology is not always easy; in many cases it is hard to even determine what is ethical, let alone what the law is or should be.
Technology today, whether it be in the fields of information technology, computer science, consumer electronics, digital communication, biotechnology, or one of hundreds of other specialized areas, is remaking how governments, business, and consumers function and interact. Today in Saskatchewan, thousands of people generate more than one billion dollars in the information and communications technology sector alone. This not only brings new opportunities, but an avalanche of new challenges for legislators, businesses, and consumers. As such it has implications for almost every aspect of the law, with specific emphasis on areas such as privacy law, intellectual property and patent law, contract law, international law, ethics, health law, environmental law, entertainment law, and governmental regulation.
Even though the law and technology intersect in many ways and at many levels it may be helpful to provide a simple framework based on the fundamental elements that form the underpinnings of most of the technological advances today:
- Data and Information – These are the life blood of most technology today. The collection, analysis, storage, and manipulation of increasingly larger amounts of data, which is distilled into critical information on nearly all aspects of our lives, directly intersect with a range of legal issues. Privacy and confidentiality, content and information ownership, international and constitutional law, regulatory compliance, and security are just some of the areas being confronted by massive changes in data capabilities.
- Processing (software and algorithms) – These are the elements that bring logic and intelligence to our technology solutions and often directly affect existing legislation and practices, continuously testing IP and patent law. Mobile applications, machine learning, AI, natural language interfaces, robotics, cloud based processing, and a myriad more solutions are literally redefining behaviours, processes, and interactions. As a result, existing laws and legislation need to be continuously interpreted, reexamined and reevaluated.
- Communication – These are the technologies that make data, information and processing instantly available on a global basis and today include items such as social media, email, messaging, content streaming, e-commerce transactions, network governance and online surveillance. Whether it be cyber-safety, anti-spam legislation, telecom and spectrum regulation or e-commerce legislation, the law deeply crosscuts with a growing range of communication related matters.
- Devices – These are the wide range of ever more capable digital devices that provide processing power, and facilitate communication with, and access to, data and information. These are directly tied to legal issues pertaining to tracking and tracing, content possession, searching, and patent and IP infringement.
Keeping apace is essential, as is the need for broadly understanding the relationship of the law and technology as it relates to informed policy, meaningful legislation, and successful business strategies. Below is a brief list of some of the legal issues involved in major technology trends that will continue to dominate in the upcoming decade.
Big Data and The Law – “Big Data” describes deep analysis of complex data sets that are collected in a variety of ways including elementary sensors, mobile devices, cameras, microphones, software logs, mobile payments, RFID readers and internet transactions. Legal issues abound: using/disclosing data for a purpose it was not originally collected for, the use and protection of genomic data, privacy of data in mergers and acquisitions, securing asset values through proper legal protection, ensuring information disclosure is coupled with adequate contractual confidentiality provisions, and liabilities related to errors in data analytics from poorly sourced data.
Cloud Computing and The Law – “Cloud computing” describes the remote use and storage of software and data over the internet. The software and data are often provided via services to businesses and consumers. The remote use of software and data, and the outsourcing of assets and work to third parties, present any number of legal issues to those involved. Information security, privacy laws, contractual obligations, law enforcement access to data in the cloud, international law, and regulation regarding remote data storage, access, and ownership, all come into play.
IoT (Internet of Things) and the Law – IoT is a concept that focuses on the proliferation of digital versions of commonplace physical objects, each being able to uniquely identify itself, being connected via the internet. The growth of IoT will bring a raft of legal issues related to unlawful access, data collection, privacy, security and profiling.
Virtual Reality/Augmented Reality and the Law – Both augmented reality (superimposing the digital on the real) and virtual reality (creating or recreating what seems real) solutions are poised for explosive growth in the next few years. These technologies will challenge IP, patent, and consumer law and will present legal issues concerning consent, liability and safety, and augment the way law enforcement is conducted.
3D Printing and the Law – The unabated growth of 3D printing is now starting to impact copyright, trademark and patent law.
Other evolving areas in technology and the law include robotics, automated vehicles, telecommunications and mobility, e-commerce evolutions, open source, natural language interfaces and further security issues.
About the author:
Connor is a student at law practicing in the Regina office.
About McKercher LLP:
McKercher LLP is one of Saskatchewan’s oldest, largest law firms with offices in Saskatoon and Regina. Our deep roots and client-first philosophy have made us a top ranked firm by Canadian Lawyer magazine (2011, 2013). Expertise, experience and capacity provide innovative solutions for our clients’ diverse legal issues and complex business transactions.
This post is for information purposes only and should not be taken as legal opinions on any specific facts or circumstances. Counsel should be consulted concerning your own situation and any specific legal questions you may have.