Regulation, and all that…

July 15, 2015

As always, the recent Technology Law Futures Conference was thought-provoking on the future of TechLaw. As organiser and Chair, Simon Deane-Johns brought together an eclectic range of speakers. They examined both the risk and regulatory aspects of a variety of technological developments. It is a shame that the audience was not more numerous: the debate at the event is always first class and it’s a great way to pick up on the latest thinking from a range of high-class practitioners, academics and public administrators active in the field.

For me, the key ‘take-away’ from the event was the need for TechLaw practitioners to get more involved in the regulatory developments in our field. Many of us who are practising lawyers can tend to regard the law as a given – something that we interpret and advise on, maybe complain about when it doesn’t suit a particular Tech circumstance, but we don’t often think about or get involved in the development of the law relating to our field.

To a certain extent, for Tech law (as opposed to Comms law), much of the law that we deal with was not developed with the Tech environment in mind. Communication lawyers have been much more attuned to dealing with a regulatory environment right from the start of telecoms. Ecommerce brought many Tech lawyers in contact with sector-specific regulatory environments for the first time. Now Tech is right at the front line of business, most of the projects that we deal with have some sort of sector-specific regulation that needs to be considered and complied with.

As Tech moves into new fields, the regulatory environment needs to be developed for each field. The Tech might be drones, mobile-payments, bitcoins, driverless cars – the list seems practically endless. Each new development needs to have an appropriate regulatory regime, either through the evolution of an existing regime or the development of a new regime. In the early days of the Internet I used to argue that the common-law regime could be expanded to deal with the ecommerce regulatory requirements. I still think that there are considerable risks in premature regulation. The experience of the Database Directive shows that once a regulatory regime is in place, it is hard to amend it, even when it has little relevance or applicability to the changed Tech environment.

We ought to be contributing to this debate. There is certainly an appetite for input from Tech lawyers in this field. At the TechLaw Futures event, Rob Buckingham from the Atomic Energy Authority was very clear that there is scope for lawyers to be involved in the development of the regulatory regime for autonomous vehicles. Neil Brown provided a very eloquent argument for the need for lawyers to think more broadly and take account of the wider consequences of technology. He argues for a Luddite approach to Tech regulation, which is not – in his view – anti-technology, but takes into account the human aspects of Tech innovation. Maybe there is a role for human impact assessments in new Tech regulation, as a more general development of privacy impact assessments in the privacy context. Neil’s article is now available on the SCL website and will be in the next edition of Computers & Law. It is thought-provoking reading.

This takes me back to an earlier Chair’s Blog when I reported on a {discussion between Tim Berners-Lee and Richard Susskind:}. Tim’s WebWeWant initiative seeks to keep the Internet open from dominance by large companies and States. It is a parallel theme and SCL ought to be involved in these processes. One of the key themes of the IFCLA Conference in London next year will be Tech in a Regulated Environment. It is important that we understand and contribute to the debate in these areas.

In the meantime, as I am on my way to a summer break, I hope you have a great summer and manage to take some time off. We have a great programme of events and other initiatives coming up in the Autumn. I look forward to seeing many of you then.