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EVENT REPORT: The New Technology Lawyer – The SCL Annual Conference 2019

October 8, 2019

Last week’s SCL Annual Conference, curated by SCL Trustees Sue McLean and Toby Crick, was one of the most wide-ranging we have ever put together. The vast sweep of the day encompassed 5G, smarter contracting and competition law, all the way through to the role of lawyers in shaping the ethics of the evolving AI world.

But just what unites such disparate legal disciplines as tax, competition law and freedom of speech? And why did the delegates on the day take it all in their stride?

In my view, a view cemented on the day, it is because tech lawyers understand how the use of data extends their remit far beyond pure data protection advice because data and its effects are transforming business processes, personal lives and even wider society.  

Sometimes this process it clearly recognisable, as exemplified by Otto Godwin’s flash talk on using data to help reduce debtor days. Take the data you have, analyse it, then use the patterns revealed to improve your practice.

Two other excellent sessions also featured data in their title, giving the game away. Emily Barwell’s flash talk on the increasingly talked about concept of data trusts, in which she introduced the challenges and possible options for what structures to use, sparked a good deal of interest (and discussion over tea). Such interest highlights the need to find an effective means to manage all this data, and the relationships it creates, for lawful re-use and we’re not just talking personal data, but any data that could be usefully shared perhaps for the public good.

The other overtly data-based session tackled the rise of data’s importance in M&A activity. Olivia Whitcroft, who runs her own legal practice, and Tamara Quinn, of Osborne Clarke, gave a highly practical run through of some of the data issues now popping up in many M&A deals. Due diligence is the most obvious example, as exemplified by the proposed Marriott fine of £93m arising out of their purchase of a business whose servers had been hacked. But the heightened awareness over data means that other issues need to be investigated from the start of any deal. For example, where are the consents that allow the data to be transferred? What is the value of a dataset used to train an algorithm? And could transfer and merger of datasets remove anonymity from the merged data? There are many more such questions, especially for many corporates now, data is their business. 

A discussion on 5G, chaired by Yohannah Walford Blythe of Three, laid bare the continuing expansion of data spawned by the Internet of Things. Vadim Doronin, a consultant at Access Partnership, regaled us with some facts and figures including the startling projection that there will 20bn such IoT devices by 2025. Add that to the rapid building of the small cell network necessary for 5G (there will be a cell in every lamp post if we want truly safe autonomous vehicles) and it really does hit home just how big, Big Data will become. Professor Ian Walden, of QMUL, sounded a welcome note of practicality though: no matter how we connect, the network still needs to built-in the physical world with all its existing barriers and competing interests. Tech lawyers may even need to get to grips with the General Permitted Development Order to make sure their client can install the hardware in the bus shelter at Acacia Avenue. Once again, we are witnessing how the virtual world of data makes itself felt in hard format. 

Competition law is another such sector evolving under the weight of the ones and zeros. The session on how the law should tackle Big Tech centred on the use of competition law principles and how the traditional approaches based on market size and revenue are unsuited to the new environment. As Natasha Tardif of Reed Smith pointed out, where a start-up business has little revenue but huge amounts of data from a free product, how do you assess whether it has a dominant market position? Apparently, Germany is looking at total post-merger revenue as a possible measure while France is considering an after the event approach so that the acquisition may become monopolistic in hindsight. Both approaches reveal how regulation is being forced to adapt under the threat of data monopolies. Professor Chris Marsden suggested another approach for tackling the data giants (though admitting it is no silver bullet): interoperability. Where dominance is found, interoperability would force those platforms to allow others to access to their data and algorithms through APIs and similar tools, mirroring the approach adopted for broadcast media over the past two decades. The pre-eminent role that the Big Tech giants have in AI research requires that they are not allowed to become data dominant for the good of society. 

Time and again the theme was that data is the driver for innovation. 

In a session on the current state of law tech, Nimrod Aharon of LitiGate eased audience fears by proclaiming that the robots are not coming to replace lawyers (well at least not for the foreseeable) but that they can easily do the boring data processing functions, functions that probably did not exist twenty years ago.

Aside from the rather startling conclusion from Helen Anderson of Accenture that sometimes there’s no point in a contract at all (they can never hope to reflect the complexities of some projects), the digital contracting session also touched on how data can be used to improve contracting. Sarah Ellington of DLA Piper spoke up for a modular approach to smart contracts, starting in small manageable chunks as we are still 5 to 10 years from large scale automation. She also noted wryly that the hardest part when adopting a smart contract is in getting the parties to agree the data source in the first place. Helen also spoke of Accenture’s use of data analytics to spot where contracts go wrong, though Terence Bergin QC, speaking from the litigator’s view, maintained that by the time the problem gets to him it’s not the contract that’s gone wrong, it’s the people.

A flash talk on digital services tax initiatives (a tax talk at a techlaw conference!) from Oliver Pendred of Baker McKenzie illustrated how the liberation of digital businesses from their physical home (Amazon in Luxembourg for example) has spurred governments into action. The UK’s Digital Services Tax in operation from 2020 is only a temporary measure: the longer term will be shaped by an OECD Base Earnings Protection Scheme that involves 130 countries and will attempt to extract at least the minimum amount of tax from the tech multinationals. 

All of which led us to the more pervasive effects of the data revolution, shaping not just our traditional legal environment but the discourse of civil society itself, with the two high-level sessions that bookended the day. 

Graham Smith of Bird & Bird opened the day by asking whether the Internet is Broken or About to be Broken? Graham was looking at the question from the viewpoint of free speech, arguing that the technology was itself not to blame: the inventor of the quill pen is not vilified for the vitriol such a pen has written so why should the social networks be in the firing line? The central paradox of with censorship is that you do not know what you have lost as you do not get to see what you have missed. With that in mind, he proceeded to dismantle the Online Harms White Paper and other attempts to crack down on online behaviour, (his views echoed by Laura Wright of 4 Pump Court in a later flash talk “10 Things I hate About the Online Harms White Paper”). Not only is the so-called duty of care set out in the paper no such thing (direct cause of action is being proposed), there is deliberately no definition of harm, the scope and meaning of which is being outsourced to the proposed new regulator. His slightly depressing conclusion is not that the internet is broken, but that we are. 

The final session of the day featured Trish Shaw, a new SCL Trustee, in discussion with leading privacy advocate, Ivana Bartoletti of Gemserv, on the ethics of data & AI. Trust, discrimination the potential adverse effects of automated decision making loomed large. As Ivana says, we need to build systems of trust – perhaps by way of certification schemes that look at how the algorithm was created – so that we can rely on the data and algorithms that make decisions on, say, our insurance premiums. Just how awry automated decision making can go was illustrated by US phenomenon of ‘real automated poverty’ which has seen people ending up on the streets after being rejected by the welfare system software. Yet the real demonstration that data has transformed the role of the New Technology Lawyer was Trish’s clarion call that the urgent need to regulate AI, and to ensure that the data underpinning it is used properly, means that lawyers should look to move beyond compliance and get involved in the lifecycle of a project from start to finish.

What could be more New Technology Lawyer than that?

David Chaplin is the SCL Editor and can be contacted with ideas for content and any feedback at david.chaplin@scl.org

The SCL Annual Conference took place on 2nd October 2019. 

Articles inspired by some of the sessions have been published on the site and can be read via the links below: