Professor Chris Marsden thinks there will be a mini-cyberlaw boom as we adjust to the post-Brexit era.
Predictions for 2020 are surprisingly simple compared to previous years. Brexit will happen in January 2020, the rest of the year will be a secretive psychodrama as the British government realizes that the European Union holds all the trade negotiation cards. For service industries like law firms, near-panic and a rush to Dublin and Amsterdam will follow in 2021 if not complete by end-2020.
In digital law, the UK will stumble towards an EU declaration that its Data Protection Act 2018 does not offer adequate protection to EU citizens’ data, given the enormously powerful GCHQ surveillance of traffic including the highly sensitive TAT14 cable (made famous in the 2013 Edward Snowden revelations). Some kind of ‘duty of care’ for online platforms will be introduced by recently retired and unretired Baroness Morgan in the House of Lords and stagger into law by the end of the legislative session. Yet for the most part, British and European businesses will hold their breath to see whether a free trade deal can be achieved, even though this will not touch on legal or other online services.
Prediction: a trade deal will be achieved on almost all the terms the European Union dictates, so weak and desperate will the UK be. 2021 will be the year of the US trade deal negotiation beginning, whether with Trump or a Democrat President. It will not be concluded before 2025.
The ‘Sliding Doors’ moment was 19 October 2019. Brexit had “not been done”, in fact Boris Johnson and Dominic Cummings’ government could neither win a vote in the House of Commons nor achieve a General Election. Corbyn’s ultras could also not get support to form a government, but a retiring senior Labour member (for instance former Foreign Secretary Dame Margaret Beckett) could have led a Government of National Unity to carry through a referendum on Brexit and then move to a General Election in March 2020. All it needed was the support of both Corbyn and French President Macron. In London, a million people marched for the ‘Peoples Vote’, reflecting what all polling had confirmed: there was no majority for Brexit. Labour senior frontbenchers Thornberry, McDonnell and Starmer all spoke at the rally that followed. The following day, Starmer announced he could support Johnson’s Withdrawal Act if it included the ‘confirmatory referendum’. The nation and the entire continent awaited decisive leadership by Corbyn. A week later, Brexit was postponed into January 2020, and the LibDem’s Jo Swinson had bounced Corbyn into a disastrous General Election that was bound to see a gigantic Johnson Conservative victory. Two months later, it is as if GNU was never an option, Brexit will happen and there is a guaranteed Conservative-Cummings majority until the end of 2024.
So much for predictions. But my work since 2018 has focussed on cyber security and electoral systems, especially algorithmic disinformation and its regulation. Can anything be done in 2020? I reported for the European Parliament and Commonwealth in 2019 on co-regulation as a partial solution, and can predict that much more activity will take place in 2020, especially in the United States given its general election in November 2020. But election law is written by winners, and the US Federal Election Commission has been deliberately left non-quorate, so no law can be reformed given the stalemate between Houses of Congress, just as no law can be passed in the UK given the stalemate that meaningful reform would face between Lords and Commons. We face a prolonged period of uncertainty and stasis in the single most important element of Anglo-American democracy: the electoral process itself.
What else can be predicted? Leveson 2 will never be undertaken, to examine the relationship of corruption between law-makers and newspaper barons. Had the opposition parties won the 2019 election, Tom Watson would have carried this into process but he is retired to instruct gym users. Disinformation offline, as online, is not to be regulated by the victors in a First Past The Post electoral system in London or Washington DC. I will be running seminars in both cities as well as Brussels to examine the evidence base in case policymakers are interested.
Algorithmic regulation has had its ethics washing called out, but in 2020 only in Germany will significant legislative action be undertaken, though competition and communications regulators in Australia, the UK, and elsewhere will rattle sabres and Commissioner Vestager will be active in Brussels. Expect the real action on interoperability as a solution to AI dominance to take place in 2021, as the importance of Machine Learning survives the “Artificial Intelligence” hype cycle being burst.
Internet regulation in the UK will become messier and harder in 2020, and especially 2021. Brexit will actually create a mini-cyberlaw boom for those of us giving the grim news of Brexit’s damage to clients from the United States and European continent. There is always work for undertakers.
Professor Chris Marsden, University of Sussex