Ghost of Tech Law Past

November 16, 2016

On the way to the Tech Law Futures Conference, my wife forced me to express an interest in Christmas presents. I immediately morphed into Ebenezeer Scrooge (‘For God’s sake, it’s only November’ etc). It struck me then that my function was to be the Ghost of Tech Law past. Though many others have been involved with computer law, IT law and tech law for even longer than me, I did have a brief that required me to look back in time whereas everyone else was looking to grapple with the present or was engaged in predicting the future. As befits a ghost, I do have some, rather depressing, thoughts on the future for tech lawyers.

Some history

I first became involved with SCL in late 1993. SCL was then principally an organisation engaged in trying to persuade lawyers that computers might improve their efficiency. I don’t have a copy of that first issue but it probably had articles on Word, WordPerfect and desktop publishing – not quite ‘How to type your own letters’ but not far off. But, though the magazine had ignored it, computer law of a sort had been around for quite a while by then. Colin Tapper had written about Computer Law in 1973, the Data Protection Act was 1984, the Computer Misuse Act was 1990 – the latter arising out of the misuse of Prestel (ask your mother). Indeed Ian Lloyd’s book published in 1993 had already taken account of the term that we came to accept for 20 years – Information Technology Law. Still, it is worth noting that in June 1994 the Society for Computers & Law was joint host of the International Federation of Computer Law Association’s Conference in Bath, entitled ‘Computer Law and Business in the New Europe and Beyond’ and the 200 delegates to what the report of that event describes as ‘the most illustrious gathering of computer lawyers seen in the UK’ were handed a copy of the SCL magazine. Much to the embarrassment of Chris Millard, the incoming IFCLA Chair and soon to be SCL Chair, that issue contained zero IT law.

Many of the participants at that IFCLA Conference from the UK were academics – they did not outnumber the practitioners but were a very significant proportion of the UK attendees. That reflects something of the way in which IT law was seen. For example, IT specialists at the Bar were a very rare breed – I am not sure they existed at all. Back then, any barrister IT lawyers tended to be construction law specialists applying their expertise in a different context. (I like the story that this arose from a clerk’s misunderstanding when asked if chambers had any expertise in disputes over windows but I fear it is invented.) It probably arose from the fact that contracts in both fields are complicated and largely ignored in practice and all projects in construction and IT overrun.

It wasn’t long before the magazine was grappling with IT law issues. The Dec/Jan issue for 1994/5 had the ‘Internet Demystified’, which was mainly practical but included some legal analysis on convergence and the like, an article on the Database Directive, Rachel Burnett on outsourcing and a report on the then very recent case of St Albans v ICL.

Things moved on pretty rapidly. By 1999, the magazine had an ‘IT Law Masterclass’ with my editorial recanting the claim that ‘there’s no such thing as IT law’ – which, in my defence, was, once upon a time, a not entirely ludicrous position. By 2002 the magazine was dominated by IT law material with just the odd few articles about applications for lawyers. Shortly thereafter, SCL gave up its evangelical role, accepting that if there were lawyers out there still not convinced that computers improved efficiency then they were so thick that they were beyond help. I had rather reluctantly seen the way the wind was blowing – having little faith in the speed with which practising lawyers would see the advantages of IT – but accepted that situation eventually, and IT applications for lawyers make only the occasional guest appearance in the magazine now – like one of those film cameos you get from Christopher Walken but a lot less entertaining.

So now SCL members are almost all tech lawyers – unless you manage to call yourselves something more exciting. And the magazine has become a publication devoted to IT law exclusively. Indeed, as IT has escaped into the wild and influences every aspect of commerce and no decent commercial lawyer can operate without some understanding of IT law, mainstream publications now run articles that once could only have been published in the SCL magazine. Computers & Law magazine has become more niche and that reflects the fact that tech lawyers are increasingly specialising within the specialism.

Depressing insight

The summary of my bit of the session at the Tech Law Futures Conference, ‘Death and other uncertainties’, states that I will ‘look back at the development of tech law, seeing whether the past may offer any insight into the way in which tech law may develop’. The ‘insight’ I have to pass on, after a journey through many past issues of the magazine, is a slightly depressing one. The exercise in which I have been engaged has made me wonder how much has really changed for lawyers practising in this specialist field or for the mag in the last 20-odd years.

Sure, the terminology has changed out of all recognition – you cannot say ‘information superhighway’ unless you are taking the mickey. The millennium bug doesn’t seem to worry people much now. Nobody knew what an app was 20 years ago and snapchat was breakfast conversation with my wife etc. And the technology has changed massively. The 2016 IFCLA Conference was again hosted by SCL and the subject matter was at one level very different from that one back in 1994 – blockchain, fintech, cybersecurity, the Internet of Things. At the Conference in November, we had coverage of driverless cars, robolaw, drones. We had an issue of the mag recently dominated by algorithms and AI is constantly rearing its head.

Brave new world then. I could dwell on all the exciting topics in the Gartner hype cycle and the undeniably huge coming impact from the IoT. All very exciting.

But I want to roll back. The subject matter for that 1994 IFCLA Conference is enlightening. Software contracts, piracy, IP, the impact of EU law, jurisdictional clashes, data protection and the internet/’information superhighway’ were all covered and, according to the report, ‘salutary tales were recounted of customers entering into contracts without seeking qualified advice’. Sound familiar? It reflects more than 80% of the magazine’s content over the last 20 years.

When looking at old copies of the magazine, I expected to see a progression. And there is evidence of some progression, in some areas – jurisdiction for one and mobile for another. But it is mainly a progression in the technology. While keeping pace with those changes and understanding emerging technology is crucial in the practice of tech law – the best lawyers in the field often have hands-on experience in a niche area – the lawyers’ role has changed less and the magazine reflects that.

You may well see a future where your client manufactures robots for work or is mining asteroids rather than mining data. But it will be the data protection, IP and outsourcing issues surrounding robots that you’ll be involved in. You’ll be researching the jurisdictional issues relating to asteroids. And whether it is robots, asteroids, AI or smartdust, you and the magazine – even if it is by then delivered telepathically – will be recounting ‘salutary tales … of customers entering into contracts without seeking qualified advice’.

That sort of issue may be the tech lawyers’ past but, mutatis mutandis, I fear it is also the tech lawyers’ future.

Laurence Eastham is Editor of Computers & Law.