You have more than likely heard about the “Internet of Things” (IoT) – a term used to describe the complex network of internet enabled devices. Less well-known, however, but equally important, is the Internet of Law (IoL). In this article, we set out what the IoL is and what issues it presents.
What is the Internet of Law (IoL)?
The IoL is the term used to encompass the interconnectedness and enforcement of laws using IoT devices. Law enforcement agencies can also use the IoL to regulate reporting or collect evidence.
While seemingly futuristic, the IoL’s possibilities open up many doors for law enforcement agencies and court systems. Examples of IoL at work include:
- Built-in breathalyzer car ignition system, where the car won’t start if the driver fails the breathalyzer test;
- Automatic loan document generation, where data is gathered directly from the lender’s and borrower’s computers, calculations run, discrepancies flagged and compliance reports compiled without any interference from a human being (this is an example of a smart contract);
- Phone GPS speed monitoring whereby your phone records and stores your speed limit through your car; and
- Traffic light awareness systems where a phone app could connect to the nearest traffic light and prove that a car ran a red light.
While this has benefits for efficiency and for streamlining legal regulation, it also raises a number of issues that the legal sector must tackle as everyday objects and activities become increasingly connected.
Privacy & Breach
Given the sensitive and personal information that may be involved in circumstances dealing with the IoT, privacy and breach are a key concern. Privacy in Australia is governed by the Privacy Act 1988 (Cth) and the Australian Privacy Principles (APPs), which can be found in Schedule 1 of the Act. The APPs outline how APP entities (including some Australian businesses) should use and manage personal information. These entities include all the private sector and not-for-profit organisations with an annual turnover of more than $3 million, government agencies and private health service providers. Acting contrary to or inconsistently with an APP would amount to a breach of the Privacy Act under section 15.
APP 11 states that all entities which hold personal information must take reasonable steps to protect the information from misuse, interference and loss as well as from unauthorised access, modification or disclosure. With the increasing free-flow of information that will result from IoL enforcements, the importance of privacy rises alongside the risk of breach. As information becomes shared more rapidly across multiple platforms, it will become more difficult to determine where the responsibility and liability lies. While lawyers can potentially access real-time data instantly which may assist their clients, what about data storage, and who owns the data? How long can they keep it for? What happens if a data breach occurs? Are we truly comfortable that the data will be limited for the purpose it was collected for?
For example, a driver of a car with a built-in breathalyzer system may have all of his breathalyzer results collected and stored every time he turns the engine on to drive. This data is personal and should be private as the system is in place to protect the driver. What if this data is then taken and used in an entirely unrelated matter to which it was collected for, such as evidence in a family custody battle? What if the built-in breathalyzer is taken one step further and becomes interconnected to the nearest police station, where once the driver has blown over the limit 3 times it automatically sends a signal to the police and puts law enforcement on alert; is this a violation of privacy?
Letter of the Law
By condensing legal enforcement down to technology-driven apps, it arguably makes the law much more black and white than before. While this has benefits of efficiency and clarity, it also takes mitigating factors and potential human error out of the equation. One way that has been suggested to combat this potential problem is the integration of equity into decision-making processes, effectively combining technology and human skills together.
This also raises an adjoining concern on the development of legal precedents and regulations in this area of law. Black letter law has traditionally lagged behind, particularly in relation to new technologies. The question becomes whether the IoL will develop according to similar cases that precedes it.
To take the built-in breathalyzer example again, it will be interesting to see whether the judicial system approaches it the same way they have approached breathalyzer test cases in the past. In the 2006 case Police v Hall, the Court rejected Hall’s submission that the result of his breath analysis should be excluded, stating that there was no right to have a blood sample taken and that the lack of a viable blood sample did not make the trial unfair. However in 2015, the Court took a different view in Police v Dunstall, deeming it necessary to insert safeguards into the drunk driving legislation by allowing blood tests to increase the accuracy of breath tests. As Dunstall lost the opportunity to have his blood tested through no fault of his own, his trial would have been unfair and evidence of his breath test was excluded.
Following the trend, the implication is that the breathalyzer test alone is not accurate enough to prove drunk driving. This raises questions of how accurate a built-in breathalyzer system could be, whether the data collected from this system could be relied upon as admissible evidence, and who is liable in cases where the system malfunctioned through no fault of the driver.
Just like the IoT, the Internet of Law seems to be an inevitable reality. The legal industry should work to stay ahead of the technological developments in order to manage the IoL effectively in the future.