Talking Tech Law

SCL has been asking key figures from the tech law sector to answer five questions and posting their responses on its Facebook page. Their responses give an interesting insight into how they got their start and where they see the profession going and may provide some inspiration for those considering working in this area of law. In this, the first of a series that will appear in the magazine, we hear from Mark O'Conor, Sue McLean, Simon Deane-Johns and Neil Brown.

First up is Chair of the SCL Trustee Board, Mark O’Conor. Mark is a Partner & Chair of the London Client Group at DLA Piper UK LLP in London

What makes IT law different from other areas of law and why did you choose to work in this sector?

For me it’s the crossroads of essential contract law, dashes of competition law, knowing enough to be dangerous in IP, together with a changing and increasingly essential aspect of our lives; the way we use and deploy technology to function in life, business, and education. Plus I think we have a real responsibility to ensure that we demystify the issues, ensure that we are business enablers, and help to get the balance right between freedom and regulation.

Why did I choose to work in this? I found myself studying Law and Information Systems, and it coalesced in a thesis concerning software copyright and alternate ways of protecting software…next thing I knew I was applying for a training contract with firms who advised on tech, IP and telecoms, ending up at Bird & Bird (renowned at the time as the only law firm where associates each had a PC…but that was ’92).

How did you get your start in the sector?

Sneakily I decided to interview partners at the law firms I was applying for, to add their thoughts into my Uni thesis. I was then able to make a nuisance of myself by sending them copies, hoping to demonstrate a real interest in the sector. When I was about to qualify, I was taken for a drink by a really well-meaning corporate partner who asked me if I was really sure that I wanted to do ‘this computer stuff?’ saying that there was a risk that it would disappear in a few years. Ah well…

What is the single biggest issue facing IT law over the next 10 years and what is the most exciting tech law development on the horizon? Are they the same?

Tricky to focus on a single issue and data has to be part of any answer here; ownership of data, use of data, profiling, theft of data and so on will continue to exercise lawyers and business alike. However I am most interested in the developments in AI and machine learning and the legal, ethical, financial, social impacts as we move (to a greater or lesser extent) to what some are calling the ‘post-job era’.

You’re asked to reapply for your job. If you’re unconvincing, you’ll be replaced by a robot. What would you say?

I’d be delighted to see that I’d failed the Turing Test.

Who is your tech law hero and why?

Richard Stallman of MIT every time. I love the eternally recursive GNU’s Not Unix and the whole copyleft and free software foundation piece. I saw him speak passionately against a software patent in the 90s and was blown away.

Sue McLean, partner in the IT/Commercial Practice Group in Baker McKenzie's London office, gives us her answers.

What makes IT law different from other areas of law and why did you choose to work in this sector?

I love working in tech law because the law is always playing catch-up. New technology means new legal issues and challenges, which means that I’m always learning. When I started my career, the internet was new. Then we had to grapple with the emergence of cloud and social media. Five years ago, it was the internet of things, robotics. Today it’s blockchain and AI. There’s also a huge variety in my work. In the same week, I can be working on a multi-million pound IT outsourcing deal, advising a technology company on the legal implications of rolling out its new business model across Europe and advising a blockchain start-up on its licence terms.

How did you get your start in the sector?

I spent the last six months of my training contract at Pinsent Curtis in the IP/IT department. When I wasn't supporting a major patent trial and other contentious IP work, I was involved in negotiating a major outsourcing project with a government department and advising clients about this new-fangled thing called 'e-commerce'. I didn’t have a tech background but found the tech work fascinating and didn’t look back.

What is the single biggest issue facing IT law over the next 10 years and what is the most exciting tech law development on the horizon? Are they the same?

There are so many ethical, legal and policy issues with exciting new technology like blockchain and AI. I am fascinated to see how our legal frameworks flex to deal with these challenges and how the legal sector adapts. I'm not fatalistic; my instinct is that code will not replace law, and lawyers will not be replaced by AI, but I have no doubt our roles are going to change as the technology matures.

You’re asked to reapply for your job. If you’re unconvincing, you’ll be replaced by a robot. What would you say?

Smart contracts are not smart, nor contracts. I can tell you why.

Who is your tech law hero and why?

My colleague, Harry Small. Not only is he one of the founding fathers of tech law in the UK, he has been a tireless champion for LGBT+ rights in the legal sector and beyond. It was terrific to see him recognised last year when he was named Stonewall's Global Senior Champion.

Consultant Solicitor at Keystone Law and Chair of the SCL Editorial Advisory Board, Simon Deane-Johns addresses the questions

What makes IT law different from other areas of law and why did you choose to work in this sector?

I arrived in the sector with my first job in the UK, in the Reuters legal department in early 1995, and never left it. I think the difference with other sectors may be that following the technology and data can take you into the widest possible range of countries, industries, activities and scenarios. Other specialisms, such as insolvency or corporate, may have a similar exposure, but the focus in those cases, for example, will be more on the corporate entity itself rather than the operational aspects of its activities.

How did you get your start in the sector?

I arrived in London in late 1994 as a Sydney barrister of four years’ call but without a job here. A friend who was then a senior lawyer at Reuters suggested I try for a short-term consultancy in the Reuters legal department to help with overflow work, to tide me over while I looked around the market, and she introduced me to the UK legal director. I started on a one-month contract with a week’s notice period in February 1995, helping negotiate software and data licences for Reuters’ financial information services. By May 1996 I was employed in Reuters’ New York office negotiating Reuters’ agreements with investment banks and other customers (including a news deal with AOL). In July 1997, I landed a job as an Associate in the Communication & Technology group at DLA back in London where I was asked to focus on ‘information services’, which quickly became known as ‘e-commerce’.

What is the single biggest issue facing IT law over the next 10 years and what is the most exciting tech law development on the horizon? Are they the same?

How to make distributed ledgers work reliably and cost effectively.

You’re asked to reapply for your job. If you’re unconvincing, you’ll be replaced by a robot. What would you say?

I would emphasise all the discretionary elements of my role, which require, for example, engagement with humans and the assessment of human behaviour and potential sources of dissatisfaction amongst customers and suppliers, as well as decisions on how to pre-empt or resolve those behavioural issues - as opposed to aspects of my role that might rely more on data or the ability to engage with data or machines. I would also try to infuse every aspect of the re-hiring process itself with as much positive evidence of the human approach as possible. But I would also look for another role in parallel…

Who is your tech law hero and why?

Nicholas Negroponte, the founder and Chairman Emeritus of Massachusetts Institute of Technology's Media Lab. I was given his 1995 book Being Digital by the General Counsel of Reuters NY in 1996. His thinking inspired me to focus on IT and IT services that support people’s actual or desired activities, rather than technology or services that will only be adopted if people change their behaviour; and has driven countless decisions since then.

Managing Director of Decoded Legal and SCL Trustee, Neil Brown gives us his answers.

What makes IT law different from other areas of law and why did you choose to work in this sector?

It's dead simple: I love being close to the technology, and close to businesses doing interesting and exciting things.

When I look at a service which someone is using, or a product in someone's house or on someone's phone, and think ‘I had a hand in shaping that’, that's a great feeling.

‘IT law’ covers a multitude of sins, and I spend most of my time working on reasonably geeky Internet, telecoms and technology stuff — geeky from both legal and technical perspectives. I don't find working on contracts much fun, and I wouldn't want to be a litigator, but if someone wants a hand with their communications network or service, or is wondering about the legal implications of some exciting new product, or just wants some pragmatic, grounded advice on how to solve a business problem they've got, count me in.

I also love the breadth of issues to explore and learn and shape — I'm always finding that there's ‘something else’ to think about. The downside, of course, is that I feel perpetually ignorant, and that, the more I read and research, the more I realise I don’t know…

How did you get your start in the sector?

When I was at university, I was pretty sure that I wanted to be a family lawyer. I had done all my work experience in family law firms, and was writing my dissertation on a family law topic.

And, one evening, I had an epiphany and thought ‘this really isn't what I want to do for my career’.

I switched my dissertation to the liability of communications providers for content transmitted over what was then the nascent 3G cellular networks, and wrote to communication companies asking if they might offer me some work experience in their legal team.

Vodafone replied, interviewed me, and offered me a summer's work experience. Then work experience at Christmas. And then a training contract. And I stayed there for 10 very happy years, getting the most amazing grounding in tech law.

What is the single biggest issue facing IT law over the next 10 years and what is the most exciting tech law development on the horizon? Are they the same?

I've no idea! My general feeling, though, is that while the pace of technological change is rapid, the skills of an ‘IT lawyer’ are unlikely to change too much. Clearly, keeping up to date with the technology and its implications, and on the (more slowly) shifting legal environment, is a necessity but, beyond that, who knows…

I'm pretty cautious about knee-jerk reactions to technological change, and demands for new, technology-specific, laws — this tends to lead to legislation which is outdated very quickly and impedes innovation, and which is, at best, inconsistent with established legal principles. So, whatever changes might happen, step back, see how things pan out, and apply common sense and existing frameworks, rather than falling for the ‘something must be done’ fallacy.

You’re asked to reapply for your job. If you’re unconvincing, you’ll be replaced by a robot. What would you say?

‘Don't be stupid.’

There's plenty written about jobs being taken by robots but, in the foreseeable future at least, I see robots supporting lawyers, not replacing them.

Who is your tech law hero and why?

Far too many to list.

Caroline Wilson, whose IT law course at university started me down this track, and Ian Lloyd, Steve Saxby and David Mellor, from whom I've learned so much since. Lilian Edwards, too, for her numerous articles and insights, and fascinating conversations over the years.

Larry Lessig, without whom, I'd question whether we would have ‘computer law’ as we know it today. His writings on the need for copyright reform helped me appreciate that challenging the status quo is not just acceptable but is vital, and his discourse on ‘code as regulation’ — built on by Yochai Benkler and Andrew Murray (whose explanation of the concept of ‘regulatory pinch points’ remains the best available, in my opinion) — influenced my thinking about regulation, and the role of technology in society, massively.

James Boyle, for his clear elucidation of the public domain and the dangers of tacit acceptance of the barbed wire of ‘digital rights management’, and David Bollier on the concept of a ‘commons’. It is imperative that, in a time of increasing attacks on platforms, defending a space for innovation, expression and sharing of thoughts and ideas against the encroachment of private rights is fundamental.

There are plenty of practising lawyers, colleagues, and friends whom I admire greatly too, and there is always the risk that, in naming names, I inadvertently offend someone, so I'm not even going to try.


Published: 2018-04-23T14:20:00

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