Dealing with the Law Lag

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Table of Contents

• Privacy and Data Breaches
• Ownership of Data
• Playing Catch Up

A term that has been floating around the legal industry for a while is the ‘law lag’, the belief that the law and the practitioners in the industry are always falling years behind other industries. Rules and regulations are notoriously slow to change, however, with the speed at which technology is developing, it is time for those involved in the legal sector to face the problems arising from its failure to keep up.

Privacy and Data Breaches

One of the most important issues arising from the law lag is the problem of protecting individuals’ privacy and preventing data breaches affecting both consumers and businesses. Consumers are naturally worried about personal information that they disclose to businesses, e.g. inputting personal data when purchasing products online. There have been multiple examples of breaches in the last year, including those involving businesses such as Kmart, David Jones and Ashley Madison. Is data collection an intrusion of privacy? For example, Google will analyse your searches and show you targeted advertisements; should this be considered a privacy breach?

The Federal Government put forward the Privacy Amendment (Notification of Serious Data Breaches) Bill 2015 this year, proposing mandatory notification of serious data breaches for Australian Privacy Principles entities. While the Bill may provide better data security, further regulatory measures will be needed to encourage more vigilant practices in data security.

Ownership of Data

With the growing impact of the Internet of Things, understanding who owns what data is also a key issue arising from the law lag. Our smartphones and social media can track our every movement, and our Google searches now keep a history of every search we conduct. Who owns this data? What rights would the smartphone company have to the data?

On the flip side, using and mining data can be beneficial to the public. For example, the ruling that DNA can now be patented has raised concerns that the general public can no longer take advantage of the medical innovations that the patents produce.

More recently, the case of Apple v FBI has also highlighted the problem of balancing the competing interests of law enforcement agencies and technology companies. The case examined the rights of mobile phone owners and the data on their device and whether the company that created the mobile device should be able to access the information stored on it. As devices become increasingly interconnected; it is important for regulators to be able to provide a detailed framework to ascertain who owns the data that floats around the web.

Playing Catch Up

The Australian Privacy Principles addresses many of the key concerns surrounding technology, such as ownership, privacy and breaches. However, these are necessarily broad and may not be adequate to cover expected future developments in technology, such as the Internet of Law. The responsibility of technological failures is an issue that has yet to be solved – when a self-driving car hits a pedestrian, who is responsible for the failure in technology?

The law lag is not only reflected in slow legal developments but also in the unwillingness to change amongst the practitioners in the industry. Law firms and lawyers have repeatedly been criticised for failing to move with the times and take a more innovative approach to an archaic system.

One of the most popular examples are the practice of billable hours and the targets lawyers are expected to meet. As the young law graduates of this generation progress to being young lawyers, many will look for jobs with more flexibility which allow them to use the benefits of the technology at their fingertips. Being able to work from home is a luxury that is rarely afforded to lawyers but is a way in which technology can be used to maximise flexibility for those who need it, such as working mothers.

The legal sector and working within it are often depicted as behind the times and there is truth behind the stereotype. Gaps in the law relating to technology are startlingly clear when discussing privacy, data breaches, ownership and liability. The reluctant attitude that many lawyers and firms have towards progressing with technology may be a reason why the law has remained so behind. Both practitioners and lawmakers should aim to implement laws that address the future of technology and be proactive rather than reactive to filling gaps in the law.