October 26, 2011

Recent contacts with recruiters and IT lawyers have led me to think that, at a time of great uncertainty  for the legal professions and a broadly pessimistic outlook for the world economy, the future for IT lawyers looks bright. Recruiters are struggling to find suitably qualified lawyers for positions at all sorts of different levels, largely one suspects because every commercial organisation in the world has woken up to the need for real expertise in the areas hitherto dominated by IT law specialists. One recruiter described IT lawyers as ‘like gold dust’, a reflection that you might like to throw into the mix of any forthcoming discussions with employers or colleagues over remuneration.  

What surprises me a little is that the IT lawyers ‘reservation’, the areas of work acknowledged by others as exclusively theirs, has retained its boundaries. I would have expected some considerable encroachment by now. But, while there are certainly a few claiming expertise that they clearly lack and there may have been the odd incursion from a General Custer with his general commercial law cavalry, specialist IT lawyers have held firm – we can all think of a few candidates for the Crazy Horse and Sitting Bull roles. Indeed, while the borders may have shifted a little, the reservation seems to be extending its area overall. I was a little surprised to discover the extent to which IT lawyers are dragged into litigation just because e-disclosure or digital evidence issues arise when these should now be seen as workaday litigation issues. More valid extensions seem to have arisen in the area of e-commerce and because of the nature of compliance checks in a range of fields. But, again, it seems like a denial of the flow of commercial history to suggest that these compliance issues are for IT lawyers. My favourite example is the Bribery Act where the need to demonstrate the existence of an anti-corruption system has led to an e-disclosure bonanza and many references to IT law specialists when the connection is extremely tenuous – and often these references are from lawyers who are highly competent in IT applications. (But the suggestion at the SCL Conference that bashing someone over the head with a laptop came within the ACPO definition of cyber crime does comfortably trump this.) 

I cannot imagine that my readers are likely to complain about their well protected ‘reservation’. If there was a Western where the Sioux chief approached potential settlers, explained about the tide of history and invited them to take over his tribal lands then I missed it. But the suspicion of all things ‘cyber’ is evidenced in wider society too and that must surely concern everyone. Widespread adoption of technology has not led to an embrace of all of its aspects. The need for education to underpin that use, so that technology users can grasp the dangers and understand some of the precautions they can take to ensure safety and efficiency, is widely acknowledged. But advocates of education solutions may have to acknowledge that their message is doomed to meet a communal ‘whatever’ – a firm conviction that computer security and efficiency belong in the geek reservation and can stay there. Even where people are willing to try to understand more, the danger is that the area of their understanding is swept away by a fresh wave of innovation. To give a prosaic example, you do not have to look far (not beyond Chris Huhne) to see those who grasp e-mail dangers failing to recognise a social media risk. 

I suspect that the tide will turn, albeit slowly, and that the IT lawyers will eventually see some parts of their reservation settled. But the settlers will be technology itself – idiot-proof compliance systems and more sophisticated document creation tools will take away some of the specialist work. That will be a reflection of developments in the wider world that produce computers (and the like) which have in-built protection that is much harder for users to override. Then we can stop trying to educate those who do not want to learn (and the more ignorant you are, the safer you will be).