Predictions 2011 – First Course

December 1, 2010

{b}From Chris Marsden, Director, Internet Law LL.M. Program at University of Essex School of Law and member of the SCL Media Board{/b}

This will be the year that the ‘Three Wise Monkeys’ of ISP liability ( have their eyes well and truly opened by co-regulation – as copyright and porn policemen, and as gatekeepers of higher-speed Internet access. Search and social networks may be dragged backwards into the debate by privacy concerns, especially amongst US Tea Party Republicans – the Republicans control of the House of Representatives means that privacy replaces competition or free expression as the Beltway ‘hot button’ communications issue.
For a public lawyer, it is difficult to see far beyond the Digital Economy Act 2010 and its judicial review in March/April. Will the judge admit that ss 9 to 18 are extra-constitutional, on technical grounds via proportionality and human rights – particularly given the Charter of Fundamental Rights? I suspect it will be kicked ‘upstairs’ to the ECJ, which already has a tricky Swedish case to work on (Perfect Communications AB).
Commissioner Kroes will throw some bombs at national regulators to enforce greater transparency and competition in our connectivity, especially in international data roaming.
Last year, I was wrong about our economy’s ability to bounce back a bit, and the Obama administration’s (in)competence in achieving anything. But I was right about the wide-ranging net neutrality debates, and I now predict that these will become intimately entwined in the E-Commerce Directive’s revision, as well as the Consumer Acquis reform. Tim Berners Lee will still disagree with Ed Vaizey about net neutrality and the open Internet – Tim helped design it, Ed wants to allow it to be eroded.
Most important, however, is that 300 million people joined the Internet in 2010 and 400 million more will in 2011. The Internet is increasingly multilingual, multi-platform, non-Roman script and Asian, which will cause significant fragmentation of standards.

{b}From John Yates, Fellow and past Chair of SCL who now runs his own consulting business v-lex:{/b}

In 2011, the public sector motto will be ‘make do and mend’ as there will be no money for new procurements. Some public authorities will face irresistible pressure to extend existing contracts, running the risk of breaching EU procurement rules. After the boom years, lawyers face lean pickings in the public sector market. The canny ones are already reinventing themselves as financial services lawyers, and the ones who remain in the market will face continued downward pressure on fees. 2011 – we’ll be glad when it’s over.

{b}From Peter Sommer, a Visiting Professor at the London School of Economics and an expert witness{/b}

E-disclosure is now important in much relatively low-key litigation and the many solicitors outside the big firms and specialist boutiques will spend 2011 struggling to change their practices to cope with PD 31B and the new questionnaire which commenced on October 1. Increasingly e-disclosure has to include informal as well as formal records. The demographics of computer ownership are changing – approximately 75% of UK homes have at least one PC connected by broadband to the Internet, there are 120 cellphone contracts per 100 of the population and 28% of all cellphones are ‘smart’, holding extensive data and using e-mail and the web. Moreover, as costs of data storage continue to fall, everyone generates and keeps more data – data which turn will have to be assessed for evidence and reviewed for disclosure. But there’s still not much stability in the market for affordable document management and analysis tools that might assist the medium-sized firm.

The quantities of digital data to be examined present challenges for the police as well and they will continue to seek ways to make selection by triage work. Will they miss important potential evidence, or will defendants argue that police have failed to preserve material which might have assisted them at trial?

Also on the criminal front we appear to be in for yet more re-organisation of the structure of high-tech crime policing. SOCA is to become the National Crime Agency and will have an e-crime unit. Although cybersecurity is a ‘tier one’ priority in the Government’s Strategic Defence and Security Review (SDSR) with real new money of £650m, the roles of the National Crime Agency, the Police Central E-Crime Unit, the National Fraud Authority and National Fraud Intelligence Bureau potentially overlap. Will they be consolidated, if only to save money?

{b}From Stewart James, Partner & Group Head of Public Sector, DLA Piper:{/b}

I think 2011 is the year that we will start to see Richard Susskind’s predictions coming true. The combination of austerity measures, both in the public and the private sectors, and the adoption of standardised contract models, such as the Model IT Services Agreement, have encouraged some firms to develop automated tools and increase the commoditisation of the ICT sector. Those businesses that have recognised and developed offerings to deal with this will retain market share, but those that haven’t will lose it and will be increasingly squeezed out of the sector. Automated tools will also help those working at the quality end of the market to work more efficiently, which will improve the opportunity to win work whilst pressure on costs continues. However, automation reduces cost and does not increase profit per se, which means that firms will have to look again at the spectrum of the market they wish to service. I also think that we will see a law firm developing a mobile application (ie an iPhone ‘app’) that delivers a genuine product as opposed to brochure-ware.

{b}From Simon Briskman, Partner, Field Fisher Waterhouse LLP:{/b}

Last year I made three predictions: The cloud, the cloud, the cloud. This year, I think it’s the cloud. As I predicted, sizeable organisations have moved into the cloud, like Rentokil and the Daily Telegraph. Even the government ran pilot schemes. The evolution of IT has been in five steps: Mainframes, personal computing, the internet, the web and now the cloud. 2011 will be about virtualised infrastructure. Agile application development, universal remote access and other benefits will follow. I also look forward to more babies in 2011. (There is a correlation between babies and economic growth.)

{b}From Lilian Edwards, Professor of Internet Law at the University of Sheffield with, perhaps, ‘less frivolous’ predictions to follow (though the Editor suspects that at least two of these ‘frivolous’ predictions may prove accurate){/b}

1. France will pass a law forbidding French companies from using cloud computing companies based anywhere other than France. Germany will ban cloud computing as unfair competition with German companies. Ireland will consider putting its banking in the cloud, but realise there’s no point as they have no money left.
2. A Google off-shore water-cooled server farm will be kidnapped by Somali pirates, towed to international waters, repurposed as encrypted BitTorrent client and take over 95% of the world’s traffic in infringing file-sharing (with substantial advertising revenue, of course) (thanks to Chris Millard for this one). (Meanwhile the Irish will attempt to nationalise all the Google servers they still host on shore to pay for bailing out the banks.)
3. TalkTalk will lose their judicial review case against the Digital Economy Act, but the coalition will find some very good reason to delay bringing in the Initial Obligations code, and the technical measures stage will quietly wither on the vine, as rights-holders realise it will cost them more to pay for it than they will gain in royalties.
4. 120% of people of the world including unborn children, all except my mother, will join Facebook. Mark Zuckerberg will buy Ireland and turn it into a Farmville theme park, with extra potatoes.
5. 4chan allied with Anonymous will hack Prince William’s e-mail inbox on the eve of the Royal Wedding, revealing he is secretly in love with an older, plainer and less marriageable woman than Kate Middleton (possibly Irish), and also illicitly downloads Lady Gaga songs. In retaliation, the coalition passes emergency legislation imposing life imprisonment as the maximum penalty for DDOS attacks, and repeals the Digital Economy Act.

{b}From Mike Taylor, Director, i-Lit Ltd:{/b}

My e-disclosure predictions for 2011:
1. An increase in claims for wasted costs (under CPR Part 48 and its Practice Direction) by clients whose solicitors have negligently failed to properly take the CPR Part 31 and its Practice Direction into account, particularly following applications to the court for further directions on disclosure by well prepared parties who are contending with intransigent, ill prepared, adversaries.
2. Late 2010 has seen a certain amount of consolidation in the disclosure service provider market, this trend may well continue in the short term as US service providers without a UK presence buy smaller UK operations. They are, of course, drawn by the ability to charge approximately six times what they do in the states, for the same service. Counter intuitively this will increase the number of service providers (as some decide to open their own offices without buying) and lower the cost of data processing.
3. Someone will trip up on the DPA by ‘transferring’ data outside the EEA when conducting a document review.
4. A disclosure service provider will start to give away the hosting of data for review.
5. A bank (or perhaps many) will bring e-disclosure completely in-house as regulators around the world continue to bite.
6. The Twitterati will have their wings clipped by firms not wishing to be drawn into litigation surrounding employees calling for the burning of airports or the stoning of opinion forming journalists.
7. Litigation support managers will start to be valued by the firms they work for.
8. US disclosure service providers in the UK will continue to annoy me by referring to disclosure as discovery and Chris Dale will continue to be annoyed by our use of the word disclosure when everyone else says discovery!
9. These words will haunt me.

{b}From Jan Durant, Director of IT & Operations at Lewis Silkin LLP:{/b}

2011 is going to be all about the Cloud. We’ve all been getting there with browser based apps – the SharePoint document management system was our final frontier. Who will win the lion’s share of the market though? I’m putting my money on Google for home users and Microsoft BPOS for business. And as far as the Legal Services Act is concerned, I don’t see it making much difference to law firms in the short term.

{b}From Stephen Mason, Barister and leading writer on electronic evidence and electronic signatures:{/b}

For seasoned observers, the use of cloud computing is neither a surprise nor worthy of a great deal of jumping up and down. Many millions of people already use a cloud computing service of one sort or another. E-mail and social networking sites are the most common. Without going into detail, the term cloud computing describes the provision of services (including the storage of digital data) by a third party on hardware other than your computer or computer network. The IT Committee of the Council of Bars and Law Societies of Europe has recently discussed this matter, and concluded that they ought to issue a paper on the topic to lawyers. During discussions, it emerged that the German Bar prohibits its members from using cloud computing services, although it is debatable whether all lawyers in Germany actually know what cloud computing is and, where they are not aware of what it comprises, whether they are (as in the UK) using a form of cloud computing services in any event.
I predict:
1. That more lawyers will take up some of form of cloud computing service, but will probably never read the terms and conditions first.
2. Digital evidence from cloud computing applications will continue to be used in legal proceedings, although until the world decides to make suitable arrangements to enable investigating authorities to request evidence between jurisdictions at a faster pace, prosecuting authorities will continue to experience difficulties obtaining evidence from other jurisdictions.
3. There will come a day when data held on a cloud computing platform might not be available (perhaps because a party has gone bankrupt), and a judge will have to decide whether to order the cloud computing provider to deliver up the data to the other side. Then costs will have to be discussed.
4. Finally, I further predict that universities and the profession will continue to certify lawyers as fit to practice without any knowledge of digital evidence, even though digital evidence is now the most prevalent form of evidence across all types of law.

{b}From Shireen Smith, Principal at Azrights Solicitors:{/b}

In 2011 legal process outsourcing in the UK as an alternative to off-shoring to far flung places like India will take off. We have an ever growing pool of talented law graduates looking for training contracts and opportunities to get relevant work experience. This availability of a well qualified, motivated labour force, combined with the affordable access to IT efficiencies that Software as a Service provides, will enable UK based businesses to offer attractive outsourcing solutions to law firms and others looking to create efficiencies in their legal work.

{b}From Bryan King, Legal e-billing consultant{/b}

2011 will be a year of significant change in the areas of the management of costs and the billing of legal services. We are seeing an upturn in the interest in e-billing between the corporate legal departments and their external advisors – not just in the UK but within the wider EU. The introduction of Alternative Fee Arrangements (AFAs) will gain more momentum as law firms and clients look at different charging models for legal work. I also believe that we will see the beginnings of major changes in the way that costs are managed in civil litigation proceedings following Lord Justice Jackson’s report.

{b}From Joe Reevy, Director of Words4Business:{/b}

I’d like to say I think 2011 will be the year when firms start to realise that there is a huge variation in the use of technology on the web and that the sensible approach is a studied one, not one driven by the latest fads. In particular:
• understanding of the risks as well as the potential rewards of social networking (loss of control of brand values etc);
• the realisation that for most firms SEO probably won’t be an effective use of money; and
• understanding that there actually some very effective ways of marketing on the web that are not getting the publicity they should.
However, I doubt that that will be the case. Firms will continue to be driven by factors other than solid business decision making. In our specialist area of marketing, I think many firms will continue to use ineffective (but more comfortable and often seemingly ‘modern’) solutions to the issue of finding profitable work and client retention instead of more intelligent and effective ones. It will come, but is 2011 the year? I doubt it.

{b}From Dean Gonsowski, VP of E-Discovery Services, Clearwell Systems:{/b}

E-disclosure has become increasingly established as a core business process, with more organisations taking a proactive approach of bringing e-disclosure in-house. With the seemingly unstoppable migration of corporate data to the cloud and the proliferation of social media, practitioners will continue struggling to stay above water as they attempt to preserve, collect, search and process electronically stored information from sources that aren’t traditionally managed behind the firewall.

{b}From Nick Holmes, infolaw ltd:{/b}

I predict that the monkeys will miss the dart board


At [the] Web 2.0 Summit in San Francisco, Vinod Khosla, founder of
Khosla Ventures, took the stage to discuss the difference between
innovation and punditry. He started off by mentioning a 1986 study that
forecasted that by the year 2000, there would be just under one million
cell phones. They were off by 10,000%. There were 109 milllion cell
phones in the year 2000. AT&T spent $1 million and then ended up
scrapping its whole cell phone business based on this forecast. Why?
Because the 1980 ‘mobile phone’ was the size of a cinder block.

He then moved on to a Berkeley study that followed 80,000 forecasts over
the course of 20 years and found that ‘experts have about the same
accuracy [as] dart-throwing monkeys.’