The SCL Annual Conference 2017: A Sketch

David Chaplin, the SCL's Development Editor, offers some brief observations on last week's outstanding Annual Conference

By: David Chaplin

I'm afraid you had to there. 

Below are some of the take away messages and observations from this year's conference. However the scope and depth of the discussions and the expertise of the contributors mean that what's written below is a pale substitute for attending this riveting event. 

Luckily several contributions have been, or will be, published on scl.org so, taken together, I hope those who could not make it can get a flavour of what they missed. Of particular note is the infographic summary of the day, provided by Ryan Adams of Shulmans. Links are at the end.

Not all internet entrepreneurs are the same
I must confess. that, on reading Alex's speaker biography as founder of Hassle.com, a sharing economy cleaning business, I was expecting the usual self congratulation about empowering the consumer.

In the event, I was misguided. Alex did indeed recount her rumbustious tale of fund raising, cash burning, eventual success and the rest but then proceeded to give an honest account of the legal obstacles placed in her way: obstacles that had simply not occurred to her as she was building the business. 

The employment status of her cleaners, Terms and Conditions, the tax implications all reared their heads pretty quickly. This is the moment she also realised that her business was caught in the middle: too big not to be noticed but too small to fight the battles that Uber, AirBnB and others are fighting now.

This was not to say that she regarded these bureaucratic issues as designed to stifle business. She recognises the need to protect workers but many of these laws are the creation of another era and need to adapt to reflect the greater flexibility available to the modern workforce. She also raised alarm bells about the data monopolies that are being created by Google, Amazon and others that will stifle competition in this sector. 

Is privacy law too obscure?
Perhaps the most technical of all the discussion panels was that on trends in data retention. Graham Smith gave a masterly review of the ever extending powers of the Investigatory Powers Act 2016 (for example, is the time you sent an email content or metadata? It matters in the context of the Act). Eric Metcalfe updated us on the various post-Schrems privacy cases and their interplay with human rights. Timothy Hill & Carolina Gasparoli recounted the Law Society’s efforts (mostly in vain) to safeguard legal professional privilege from blanket retention and Rosemary Jay raised many interesting points about the IPA and how its existence may affect any future interpretation of ‘adequacy’ for the purposes of the GDPR. 

Yet, for a subject that is essentially about protection of individual rights, these frameworks and shifting relationships seemed baffling and uncertain even for the professionals and experts in that room. Of course it is a rapidly moving area of tech law, and not everything is meant to be easy, but I'd like to think that we can play a role in striving for greater clarity over the next few years.

You had better start looking for graphic designers
More positive moves to make the law understandable were aired in Better Contracts Initiative update.

A, literally, eye catching contribution to this debate was made by Wendy Lawson , of the IACCM, who showed us a comic book employment contract for fruit pickers in South Africa. This is the most graphic example of seeking to encapsulate legal requirements in a digestible form but of more immediate use and practical application were the examples of infographs used in more traditional IT contracts. These could be used, for example, to illustrate SLA benchmarks far more clearly in an outsourcing contract than an attached, wordy, schedule (though how a court might interpret them will be when the funs starts.) 

The panel also considered the idea of the standard contract, akin to those available in construction projects. While the majority thought that we do not have the data available to identify what works, as the sector is too young, I would make a small plea and ask members to view the issue through the eyes of the smaller organisation. I am sure there are plenty of app developers, software integrators and others who would welcome some basic templates and guidance as a starting point (perhaps a boilerplate agile development clause?) Let those whose pockets are deeper negotiate the bespoke deal.  

Fake News does not exist
At least not in an easily trapped form.

The Fake News session was given added piquancy because of a) the fact that a General Election was being held on the same day as the Conference and b) the presence of Chris Cook, Public Policy Editor of Newsnight on the panel speaking under some form of electoral purdah. He attempted to define the problem, which in UK journalist circles is ‘the intentional propagation of things that are false’ (in Trumpland that definition might not apply) but the problem is the content that could be termed as ‘hyper-partisan’. All of which means that the techies cannot really trap it as fake news as it might just be a very subjective, one-eyed opinion.

This view was generally agreed by the panel. Ashley Hurst of Osborne Clarke especially stressed that the social networks, such as Facebook, are now pretty good at removing illegal content but sheer volume means that removing hyper partisan posts is a different order, and that’s setting aside any accusations of censorship. The panel also agreed that regulation was not the answer. The social networks are well aware of the problem, want to be trusted and are willing to talk.

Want to stall AI? Don’t track changes
A central point of the discussion on AI was that, in legal practice, we are still early in the journey. Much of what is being touted as AI is nothing of the sort: chatbots using decision trees not natural language for example. Instead the ground is still being prepared with hand-built metadata which will train the  algorithms to read contracts and other legal documents effectively.

In a wry aside Gary Richardson, of KPMG, gave some practical hints on how to defeat the teams doing this work: don't track changes, don't save your work and don't annotate as this activity provides the raw data that will enable machine readers to work effectively.

Interestingly Peter Lee, of wavelength.law, saw this data as a source to be mined. He suggested that legal firms will soon see themselves as data businesses and has asked the SRA whether anonymous data from their database of contracts can be exploited. Unsurprisingly no answer has been received as of yet.

Last year’s April Fool is this year’s reality
The Conference was wrapped up with a mind boggling Keynote from Dr Andrea Matwyshyn on the inevitable advance of the Internet of Bodies, defined as humans increasingly reliant on the internet. Those who dismiss the idea were reminded that in 2013 a famous internet April Fool about a net connected toaster paved the way for genuine stories in 2017 about such toasters being hacked. 

Indeed the central message was that the, as yet, unlearnt lessons plaguing the Internet of Things will only be magnified in the Internet of Bodies as its use develops from optional, to voluntary and finally embedded ‘wetware’. The issues of security flaws, greater lock in, discrimination, ransomware need to be tackled, ideally before the event.

Further reading:
To fill in some of the gaps from the above follow the links below:

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