The race to regulate can the law keep pace with technology innovation?

August 8, 2019

HARRIET BARLOW

The UK legal system is not built upon a single code of conduct, but rather has evolved to reflect changes in society’s culture and values.

Many of our laws remain in statute books, untouched since the day they were made. The right to ‘due legal process’ is found in clause 29 of the Magna Carter 1215 and was cited by a High Court judge as recently as 2007. Conversely, technology is advancing so rapidly that changes once taking centuries now happen in years. This sharp contrast bodes the question; can the law keep up with these rapid technological advances?

Facebook’s data privacy breaches have once again reminded the world about the dangers of unregulated technology. The recent involvement of Cambridge Analytica in the U.S. presidential election caused serious controversy; personal data from millions of Facebook profiles was harvested and used for political purposes. Despite the obvious threats to the democratic procedure, governments are yet to enact laws to combat interferences. This is despite the proposed Secure Elections Act (a piece of elections security legislation able to address cyber-interference) which sat nearly stagnant, awaiting review. It was not passed in time for the elections, allowing foreign technology to undermine the democratic process. Governments around the world are still struggling to fight these types of interference.

Aside from the threat to fair democracy, the Cambridge Analytica case also marked a turning point in public understanding of personal data. Facebook saw the largest single-day fall in market value of any company in history amid calls for tighter regulation on use of personal data. Data harvesting, by both companies and governments, threatens to infringe upon our right to privacy. More and more data are being generated from more devices. The number of mobile phone users is expected to pass the 5 billion mark this year. The average smartphone now has more computing power than the computers that sent astronauts to the moon. It is estimated that we are now generating quintillions (that’s 30 zeros) of bytes of data every day. This exponential rate of technological innovation is predicted to continue by Moore’s Law (the idea that computer processors will double in speed every 18 months). This does not give society time to accurately assess the problems new innovations may create.

It is difficult to find the balance between passing laws quickly to keep pace with new technology and waiting to gain a thorough understanding to create accurate legislation. When the law hastily tries to catch up, the consequences can be terrible and long-lasting. The public begin to think that doing something – anything – is better than nothing. A prime example of this is the U.S. Patriot Act 2001 which was hastily passed following the panic created by 9/11. It changed surveillance laws to prevent terrorism and was regarded as ahead of its time for considering emerging technology, allowing online surveillance through browsing history and emails. Due to an oversight in the difference between telephone and internet communication, government agencies can now legally collect internet data (such as browsing records) without consent or a warrant. This is a clear breach of privacy and the 4th amendment of the U.S. Constitution. When people express concerns about loss of privacy, they are often met with justifications that it is for their safety or accusations they must have something to hide. So, on that note, please refrain from closing the door when you go to the bathroom – it makes you look suspicious.

The fact that new laws are not being made each time fresh technology is invented does not make the law redundant. Although the law cannot develop at the same pace as technology, this is not strictly necessary if it is reviewed regularly and adjusted. In the UK, our legal system is better able to meet technological changes than civil law jurisdictions. This is because it is founded on common law and, to a degree, allows judges to interpret legislation case-by-case. This takes some of the pressure off Parliament and gives the opportunity to respond to current situations, but common law is reactive rather than proactive. Unlike Parliament, judges cannot amend the law as and when they please. They can only deal with cases which are brought before the court. This means that there may be outdated laws that require reform, but unless proceedings are initiated, these cannot be changed.

Nevertheless, with this system most technology could potentially still be covered under existing law. Perhaps a more pressing issue is the fact that technological advances are making it much more difficult to enforce these laws. If an employer were to ask interviewees questions about their sexual preferences, beliefs or political views they will likely fall foul of the law. On the other hand, it is difficult to prevent employers using social media to find out this exact information. Similarly, defamation law applies to users of social media in the same way that it applies to journalists. Although there has been an increase in defamation claims from online material, recent technology has made it near impossible to enforce the law at the same speed it is broken. It seems that no matter how fast the legislators act, if consequences cannot be enforced when rules are broken, the law will never keep up.

Even with efforts to regulate technology, the legislation may be out-dated before any meaningful progress is made. This is not always a bad thing. In fact, it is great for tech start-ups, especially for those aimed at disrupting stagnant industries, like Uber and Airbnb. Start-ups often do not experience the same regulatory involvement as their more well-established competitors, a huge advantage considering that compliance is extremely expensive. It is difficult to measure how significant changes can be if creative ideas are constantly checked and not given a chance to flourish. This is not to say that these companies are completely unregulated, far from it, but by the time regulators are involved it is too late to return things to how they were. In Britain, TfL announced in 2017 that it would not issue Uber a new private hire licence on the grounds of “public safety and security implications”. This was met by outcry and a petition of over 842,000 signatures demanding that their licence be renewed. TfL banned Uber to protect the public, but we cannot ignore the fact that the institution is not set up to deal with a disruptor.

Airbnb is no stranger to controversy either; supporters argue that it allows tourists to rent more affordable accommodation, whereas opponents say it is detrimental to housing supply and prices. Different cities have various approaches to the legality of the app, leaving the world in a confusing state. Santa Monica has the strictest regulations in the U.S and mandates that property owners live on the premises during guest occupancy, register for a license and collect a 14% tax from users to be paid to the city. On the other hand, cites like Amsterdam or London are much more supportive. In London, Parliament passed an amendment to the city’s housing legislation allowing homeowners to rent out their properties for up to 3 months.

The famous Silicon Valley mantra is ‘move fast and break things’, but how far does this go? Should it be applied even to the law? Some call this disruptive innovation, others label it regulatory evasion. Either way, markets are being revolutionised by the rising wave of start-ups operating outside the boundaries of traditional industries. Fostering innovation inevitably brings healthy competition and increased consumer choice, but at what cost? We should consider how beneficial it is to society to build the technology that consumers demand if it is to the sacrifice of our data, privacy and freedom. After all, “what will it profit a man if he gains the whole world, yet forfeits his soul?” (Matthew 16:26).

  1. https://www.weforum.org/agenda/2018/06/law-too-slow-for-new-tech-how-keep-up/
  2. https://www.theobserver-qiaa.org/race-to-regulate-the-challenges-of-keeping-legislation-up-to-date-with-technology/
  3. https://www.telegraph.co.uk/business/2017/09/26/regulation-must-keep-pace-technology-says-world-economic-forum/
  4. https://www.theguardian.com/technology/2018/may/19/uk-government-plans-new-laws-tackle-internet-wild-west
  5. https://www.ashfords.co.uk/news-and-events/general/does-the-law-need-to-develop-faster-to-keep-up-with-changes-in-technology
  6. https://www.dmhstallard.com/news/blog/law-2-0-is-the-law-struggling-to-keep-up-with-te
  7. https://www.washingtonpost.com/news/powerpost/paloma/the-cybersecurity-202/2018/08/31/the-cybersecurity-202-why-the-latest-election-security-bill-is-stalled-in-congress/5b8829fb1b326b3f31919eaa/?noredirect=on&utm_term=.00a5e7d03a60
  8. https://www.aclu.org/other/surveillance-under-usapatriot-act
  9. https://www.justice.gov/archive/ll/highlights.htm10.https://www.vox.com/2015/6/2/8701499/patriot-act-explain
  10. https://lawgovp
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