From Graham Smith, Partner at Bird & Bird. His Cyberleagle blog is at www.cyberleagle.com.
1. ‘The really dangerous things are the search engines.’ So said Max Mosley in his evidence to the Leveson Inquiry. He was speaking in the context of his own particular privacy concerns. But to judge by the enthusiastic queue of assorted governments, politicians and agendistas around the world lining up to take potshots at search engines in all manner of contexts, many see search engines as dangerous. Another view is that the really dangerous thing is to shoot the messenger.
The Party in Orwell’s 1984 propagandised that ‘Ignorance is Strength’. Will 2013 see a resurgence of belief in the value of knowledge for its own sake? Or will it be more of ‘Seek, and ye shall find only that which we think it good for you to know’? We can perhaps hope for a start to the end of the notion that it is the state’s business to confine us to finding polite, deferential, sanitised, safe, responsible or officially approved knowledge on the Internet.
As for 2023 and 2053, whether we still have the Internet or (more likely) a successor or variety of successors to the Internet, control over access to knowledge will be asserted (and resisted) as long as there are states and those who compete in trying to bend the coercive power of the state to their own ends. I wouldn’t bet on that changing any time soon.
Back to 2013:
2. Section 127 Communications Act will be repealed (we can live in hope).
3. We will have a debate about the internet and the law without anyone mentioning the Wild West (no hope).
From Callum Sinclair, Partner, DLA Piper UK LLP: www.dlapiper.com
In 2013, the global technology sourcing market will continue to contract, particularly in troubled EU economies. Organisations will bring more work back in-house to maintain control and rationalise their contract/vendor management functions. Legislatures will push territorial job creation/preservation agendas, impacting offshore and farshore deals. Where deals do happen, we will see some return to the single prime supplier ‘mega-source’ deal, as multi-source ‘best of breed’ vendor deals become too expensive to procure and govern. Factors like service provision through cloud and social media, corporate responsibility, and alternate energy use will feature more prominently. Africa and South America will gain ground as wage pressures continue to push Chinese and Indian cost competitiveness.
For 2023, the way we work will have begun its transformation, with a technology-enabled ‘total mobility’ model involving home and mobile working as standard, and employer-neutral service centres whenever the need to gather in specific locations or access specialist facilities arises. Focus in outsourcing will shift entirely away from location (whether as a determinant of convenience, cost or culture) towards service offering and quality.
By 2053, we’ll have taken matters to the next level, with our species’ new understanding of quantum information processing allowing for instantaneous reliable teleportation between Earth-based locations. The prospect of immediate on-site customer service will give new definition to competitiveness. We might even be ‘3D-printing’ copies of ourselves so that we can be in more than one place at once…
From Toby Headdon, Senior Associate at Berwin Leighton Paisner LLP
Beyond social media and behind the ever-growing cloud, a perhaps more silent war is being waged over the control – and, typically, monetisation – of content over the Internet.
In February 2013, the UK Supreme Court hears the appeal in NLA & Others v Meltwater & Others – this concerns the extent to which the law permits temporary copies of copyright-protected content to be made within a computer and on a computer screen in the course of certain browsing activities. No doubt the search engines will have their eye on this one.
In Europe, only last month a Swedish Court in Nils Svensson & Others v Retreiver Sverige AB put questions to the CJEU, asking whether the provision of hyperlinks to copyright-protected works is a ‘communication to the public’ which the copyright owner is entitled to control. The same case also asks whether it matters that access to that copyright-protected content is restricted – this would typically be through either technical controls (such as pay walls) or legal controls (such as web site terms and conditions). Not long before that, an Austrian Court in UPC Telekable Wien sought clarity from the CJEU on whether injunctions are available against Internet access providers requiring them to prevent streaming of films made available without the right holder’s consent (on which see my predictions for 2012). This debate about the parameters of legal control of content and its dissemination online is still, surprisingly given its importance, a rather nascent one in the EU. I think that we are likely to see this debate advance quite a bit in 2013.
As for 2023 and beyond, perhaps by then Skynet will have replaced the Internet, the machines will have risen, SCL will have been replaced by the Society for Humans & Law and we will have to revive Arnold Schwarzenegger from a cryogenic state to save us all from the Apocryphal future we face.
From Richard Graham, Partner, Technology, Media & Telecommunications, Edwards Wildman Palmer UK LLP
2013, the Second ‘Screen’ World War. 2013 will see a new global battle commence as tablet manufacturers, app developers, content providers and broadcasters look set to compete for control of our second screens. These platforms have been developed to allow viewers to interact with traditional broadcast content using their mobile devices or tablets. There is no doubt that the successful second screen platforms will be able to command significant revenue from advertisers as the ‘Big Data’ derived from the platforms provide further insight into user purchasing behaviour. Not only will there be contractual and intellectual property issues arising out of these relatively new platforms, technology lawyers will face regulatory challenges as they grapple with data protection and privacy issues, advertising law, competition law and broadcast rules and regulations.
From Chris Watson, Partner, and Bailey Ingram, Associate – TMT team, CMS Cameron McKenna LLP
2013: Our ambitious prediction for 2013 is the development of ‘cloud jurisdiction’. Legal systems are faced with the pressing requirement to adapt to activity on the internet and in the cloud that transcends geographical national jurisdictions. The delocalisation of human activity to remote data servers requires a principle of delocalisation of the law across a wide range of legal fields including libel, copyright protection, data privacy and content broadcasting.
2023: In a related development, by 2023 out of necessity the Internet will have forged a harmonisation between the European and American notions of freedom of speech. The two sit uneasily as enshrined in the First Amendment (an absolute prohibition on laws abridging freedom of speech) and the European Convention on Human Rights (a right of privacy and respect for family life as well as to freedom of expression with corresponding duties and responsibilities, and which may be restricted as necessary in a democratic society). The situation will become untenable in the shared environment of the Internet which demands governance on a great number of knotty problems, from libelous statements on social media sites to net neutrality, all underpinned by the permitted scope and limitations of freedom of expression. Driven in the first instance by online governance, it may be that agreement on this fundamental human right is brokered ultimately by the WTO or other international organisation.
By 2023 our use of data will have changed dramatically. As it becomes easier to acquire very personal data, particularly medical data, through devices and applications a ‘data donor card’ will enable us to consent to the commoditisation of personal data for a wide variety of purposes. The potential uses of medical data include the doctor-patient relationship and medical studies that we know today but also advertising, say of medicine based on a diagnosis of allergies or indigestion, and insurance. This poses serious challenges for discrimination law and in particular the prohibition on Type B discrimination treating two objectively different things in an equal way, as an increasing number of those differences are exposed through personal data. For example, will it be considered discriminatory for an insurance company not to offer a person with a healthy heart a more favourable insurance cover than a person with a merely ordinary heart?
Of course the data donor card will not be a physical card; by 2023 neither will any other card we now keep in our wallets. Access to money, transport, buildings, brand loyalty, government services will be via the cloud. We can forget chip and pin and mobile apps; the passwords to unlock the cloud will be fingerprints and biometrics.
2053: In 2053 we will be living after the end of hand-held devices. Merely by thinking we will be able to instruct machines to carry out actions in remote locations, when they are not busy talking to each other. Even in an acutely smart world, however, humans will continue to excel at a different type of intelligence: in heuristic thinking, making connections in a way that appears to be beyond the capability of technology.
From Marion Oswald, Solicitor and Senior Lecturer, Centre for Information Rights, University of Winchester: marion.oswald@winchester.ac.uk
In the light of the Winterbourne View and child sex abuse scandals, there will be pressure to re-think the way that personal data is shared. Law and policy should reinforce sharing for the public good, and avoid ‘lock down’ of information resources. Of course, it’s all very well sharing, but if no-one makes effective use of the data, then there’s little point. Connections have to be made to ensure that the vulnerable are protected, and intelligent IT can underpin this.
Questions will be raised about proactive release of anonymised datasets under the government’s Open Data agenda. What if the ‘wrong’ field is anonymised? If a request is made for the same dataset with the previously anonymised field disclosed (for research purposes for instance), then the re-identification risk created may make a subsequent release impossible.
From Simon Deane-Johns, consultant solicitor with Keystone Law, specialising in retail financial services, e-commerce and IT, and Chair of the SCL Media Board
2013
The suppliers of energy, mobile phones, current accounts and credit cards will provide each of their consumer and small business customers with the records of what they bought, where and for how much. That transaction data will be released in computer-readable format to enable it to be analysed, either by the customer or the customer’s authorised service provider. This will help prevent those suppliers from gaining an unfair pricing advantage over consumers, and make it easier for individual customers to figure out the products that are right for them personally.
2023
There will be a simple set of common licences from which consumers can choose to govern the use of their personal data in any given context. Those licences will correlate to detailed statutory and contractual rights and duties. A ‘personal data mark-up language’ will enable anyone holding personal data to tag it with the permissions flowing from the licence given by the consumer.
2053
Wave upon wave of technological development and data sharing on a vast scale will have fully democratised the means of producing our goods and services. As a result, we will have evolved beyond an obsession with our ‘rights’ and the resulting entitlement culture in which we cast ourselves as victims of our institutions. We will have realised that each of us bears responsibility for the wellbeing of everyone else and that the success or failure of our society depends on how each of us behaves personally. We will be conscious of the duties and obligations that each of us must perform to help ensure everyone else’s welfare. We will trust that performing those obligations is the best way to help ensure our own personal welfare. We will not expect the state or anyone else to perform these personal responsibilities for us, but merely to act as one of many facilitators for our endeavours. We will call this dynamic private and public network the ‘Personal State’.
From Jane Seager, Counsel, Hogan Lovells: jane.seager@hoganlovells.com
2013
Last year I predicted that the first round application window for new generic Top Level Domains (gTLDs) would be extended past the closing date of 12 April 2012 due to sheer demand by companies wishing to acquire .generic, .brand or .city TLDs. The closing date was in fact extended to 30 May 2012, but only as a result of an unfortunate data leakage problem. Nevertheless demand was high and my prediction that over 1,000 applications would be made certainly came true – in fact there were 1,930. However, the idea that the first new gTLDs would be in use by early 2013 proved rather too optimistic – the last quarter of 2013 is now looking more likely. How many new gTLDs will in fact be in use by the end of 2013? I would say at least 500, meaning the beginning of the end for the traditional dominance of .com on the internet and a radical shake up of the domain name world as we know it.
2023
The rise of Internationalised domain names written entirely in non Latin script will mean that the Internet will have become a whole lot easier for non English speakers to navigate. However, the fact that English will no longer be necessary (even after the dot, as TLDs such as .com will have been replaced by their local script equivalents) means that there will no longer be an overarching common Internet language. Paradoxically, this may lead to increased separation amongst the various Internet communities.
2053
The ‘global’ Internet will have disappeared as ICANN’s unique but precarious historical position as the co-ordinator of the worldwide internet will have become unsustainable. One by one countries will break away and use alternative root servers, the end result being that the same web address may resolve to different web sites depending upon where the user is located. This will result in fragmentation, and the global Internet certainty that we now simply take for granted will be over.
From James Besley, Associate – TMT team, CMS Cameron McKenna LLP
One of the key drivers behind IT developments in the next ten years will be the ownership of key assets, including data. As more and more personal data is generated through the use of 3 and 4G enabled devices and the internet, ownership and privacy issues are going to come to the fore. There are already numerous aggregators in the market – including Facebook and Google – that are going to be increasingly looking at ways to commercially exploit the data they have collected in recent years. Lawyers will be called upon to protect both the aggregators and those affected by the aggregation.
From Hazel Randall, Associate, DLA Piper UK LLP: www.dlapiper.com
When Facebook and other social media arrived it had its flurry with employment law as disgruntled employees posted things they shouldn’t about their employers. Social media has moved on a great deal since those pioneer days with the ability for a more tailored approach to privacy depending on the posting, including ‘author only’ postings. The current generation of middle-aged workers are thus the first generation to have protracted use of the more discriminating social media and, as a result, have become incessant diarists with a dedication that would rival any tragic Victorian heroine. I therefore predict a rise in employment claims with employees being able to evidence by time and date every slight employer infraction for a number of years.
From Dr Monica Horten, Visiting Fellow at the London School of Economics & Political Science and author of The Copyright Enforcement Enigma – Internet Politics and the ‘Telecoms Package: http://www.iptegrity.com
2013
Copyright stalls four EU directives. That is, four directives, three of which have absolutely nothing to do with copyright, are stalled because of copyright issues. We can look forward to fun and games in Brussels as the political bunfights over the IPR enforcement directive and the E-commerce directive heat up. Next in line is copyright in the cloud – the forthcoming directive on cloud computing – which, rumour has it, is being serenaded by some not-so-sweet music. Lastly, there’s a new proposal to legislate on deep packet inspection. It’s an easy pick that music will be heard there too.
2023
There will be an ongoing argument about copyright enforcement. After MegaUpload, expect a raft of high-profile cases indifferent jurisdictions. Watch legislators continue to struggle with this, as the increased public awareness limits their ability to act. Expect Google to fall into line with copyright industry expectations, and the openness of the Internet to shrink in line with Google’s new business model.
2053
We will still be arguing about copyright. It will be almost 500 years since Queen Mary’s original charter, granting exclusive printing and distribution rights to the London Stationers Company and the ‘right to the copy’ was born. Ever since then, the history of copyright is littered with political battles and litigation, so why should we expect it to stop in the 21st century? If I am correct, many rock classics will be coming out of copyright under current law, and their original authors/performers will be dead. Cue lobbying for increased copyright term, and some serious challenges to the incumbents.
Other outcomes are also possible. Either the Internet will have killed all notion of copyright, forcing the poor authors to seek patronage as there is no other way to pay for creativity. Or, it will have been turned into a glorified television service with an upload facility and a link to the Inland Revenue.
From David Taylor, Partner, Hogan Lovells: www.hoganlovells.com
2013 –The Year the Internet changed, a tipping point with hundreds of new gTLDs starting to enter into the root. Time to see whether all the efforts with Right Protection Mechanisms will help to have a clean space or not.
2023 – Confusion over domain names as addresses finally lead to new super search engines that will enable us to find all that is genuine and avoid the rest which will become noise. The Internet will be the dominant communication medium.
2053 – The Internet as we know it will have been replaced as the primary form of communication and people will be connected directly to each other via thought communication.
From Joanne Wheeler, Partner, and Hannah Suthren, Trainee – TMT team, CMS Cameron McKenna LLP
40 years on
Prediction 1 – Beaming, control of avatar via brain waves
This is the process of inserting a chip into a human brain. The human can control their avatar via brain waves. There is no need for the human to physically do anything or indeed to process anything – they merely need to think of an action, which will be picked up by the chip and ‘beamed’ to the avatar which will carry out the action. See http://www.bbc.co.uk/news/world-europe-17905533.
Prediction 2 – Stratolite
High Altitude Platforms (HAPs) are candidates to host payload for the provision of communications services over large regions, playing the role of very small satellites almost stationary and near to the ground with respect to low Earth orbit spacecrafts. There is the possibility of having a HAP over a city, controlling smart metering, GPS and the like. See http://www.ion.org/search/view_abstract.cfm?jp=p&idno=2033.
10 years on
Prediction 3 – GPS inside buildings/tunnels and areas where GPS is currently unavailable
In hazardous situations this can improve command effectiveness and increase personnel safety, and ultimately save lives. For example, it could be used to track miners or soldiers via their boots. From a development angle, it allows an indoor location to be delivered when a developer does not own/have access to a building and when maps/plans are unreliable. An indication of the developing area is that Motorola Solutions Venture Capital have just invested in TRX Systems.
Prediction 4 – Spaceport in Scotland
The UK currently has no launch facilities of its own – a striking gap when considering the UK’s presence in the space industry (and increasingly so). The development of a launch base at RAF Lossiemouth is possible. It has been recognised by leading figures in UK aerospace as ideally placed for polar orbit satellite launch and for space tourism, and that confidence has been backed by the UK government. The fast-jet facilities at Lossiemouth are exactly what is needed for the new rocket planes, for take-off and landing. An operational spaceport would provide the whole of the UK, and indeed European neighbors as well, with a key piece of infrastructure for the aerospace industry. See http://www.spaceportscotland.org/.
