Ines Batherosse, LLB, Leicester Law School, University of Leicester.
Cite: Ines Batherosse, The Intersection of Law and New Technologies, Global South Network Blogs, 30 October 2023,https://globalsouthnetwork.com/the-intersection-of-law-and-new-technologies/
The rapid expansion of technology has ushered in an era of profound change, affecting every aspect of society. These innovations have raised questions about the ability of the law to keep pace with these new technologies. As early as 1965, Herbert Simon predicted a future in which machines could replicate the work of humans, a vision that has finally become a reality. Recent developments, such as the introduction of cameras in courtrooms in 2020, have marked a turning point in this ongoing evolution. This harmony between law and technology offers both opportunities and challenges.
New technologies redefined the way the law is learned and practice
The digital revolution is reshaping the legal realm and profoundly influencing how the next generation of legal practitioners will exercise their profession. E-learning and the digitalisation of textbooks changed radically the legal education. Students have access to a wide range of materials and opportunities such as virtual internships and conferences. Few law-schools have already integrated courses which tackle the implementation of new technologies in our society and the effect on pre-existing laws.
The advent of new technologies has also redefined the relationships between lawyers, their clients, and legal services. Legal Process Outsourcing is the process by which law firms seek external legal support from another company. The fragmentation of tasks supports the development of a culture of knowledge sharing. However, the decentralisation of legal practice raises questions in terms of data security and confidentiality.
While these innovations have changed the way the law is learned and practiced, it has spurred discussion regarding the potential “end of lawyers.” Richard Susskind argues that legal professionals must change the way they work by embracing new technologies to better fit the expectation. ROSS Intelligence’s use of IBM Watson for contract review illustrates the potential of AI to automate tasks traditionally performed by legal professionals. Further questions arise, such as “What if judges or lawyers are replaced with AI?”. Although it can seem far-fetched, it could offer cheaper, faster and more effective decision-making. However, AI is devoid of moral judgement, which is fundamental to the legal profession. Concerns have emerged about a potential reduction in the demand for certain legal services. Nonetheless, technology must be understood as way to enhance the role of lawyers, rather than entirely replace it.
Access to justice
New technologies are playing a significant role in improving access to justice by making legal services more accessible to individuals. The rise of legal websites has ushered in a new way of accessing legal aid and information.
You no longer need to spend years studying law or consult a lawyer to access legal information. The emergence of legal chatbots, which offer real-time assistance, is further democratising access to legal information by making it immediate and personalised.
David Friedman argues that technology is not only changing the cost of breaching and enforcing legal norms, but also has the potential to revolutionize how legal agreements are created using blockchain technology. Blockchain makes the justice system more transparent, efficient and affordable. However, it is crucial to ensure that these innovations benefit everyone and do not exacerbate existing inequalities.
With new technologies comes new challenges
A lack of knowledge combined with an over-reliance on these innovations can introduce new challenges. Many scholars such as Andrew Guthrie Ferguson fear an exacerbation of inequalities relating to the reliance on predictive policing. Predictive policing relies on historical crime data to make predictions about future criminal activity in specific areas. However, if the original data are biased certain communities can face disproportionate law enforcement which could enhance social disparities. Technological discrimination has the potential to undermine trust in the justice system and weaken the rule of law. When technology reproduces inequalities, it can jeopardise the fundamental principles of justice, which can lead to a loss of public confidence.ChatGPT raises new learning challenges around plagiarism in education. Educators and institutions must adapt to these new technologies by implementing robust plagiarism detection systems. Many universities have already adopted Turnitin, a detection software, to dissuade students from using artificial intelligence.
New technologies: the enemy of justice?
As previously observed, emerging technologies has revolutionized numerous areas of law but progress comes with its fair share of challenges. One of the most pressing issues regards the sustainability of our privacy laws. Indeed, data has become one of the most valuable assets on earth, and when mishandled, it can have serious consequences such as identity theft and manipulation of votes. In terms of democratic issues and misuse of personal data, the Cambridge Analytica scandal is the epitome on how improper use of personal data may have an influence on society. By using personal data from Facebook users without their consent, Cambridge Analytica exerted influence on voters’ behaviours. The scandal not only brought light onto Facebook’s unethical collection of data but also demonstrate a clear lack of adequate legislation. In the wake of this scandal, the European Union adopted some of the most stringent privacy legislation in the world, the General Data Protection Regulation (GDPR). These regulations establish a link between human rights and emerging technologies, and serves as a demonstration that the law is not too slow to adapt. Striking a balance between privacy protection and innovation remains a complex task.
Facial recognition itself represents a huge progress, particularly in its application to security and law enforcement. However, like many innovations, evolution will present challenges especially when it is used as a mean of surveillance. For years, the Chinese surveillance state used artificial intelligence and facial recognition as a mean for social order. This extensive surveillance regime has resulted in multiple human rights violations, most notably the internment of Uyghurs or during the COVID-19 pandemic. More recently, China releases a plan to restrict the use of facial recognition, acknowledging its potential encroachment upon personal freedoms.
Like millions of people in the UK, you might have found yourself considering your favourite series online, without the burden of a monthly subscription fee. So, you ventured onto one of those dodgy websites where content flows freely. Despite its apparent convenience, digital piracy is strictly regulated by law. In the UK, illegal downloading is punished by a potential £5000 fine and up to 5 years in prison. However, in practice, relatively few individuals were charged with such offences as the law struggles to track down anonymous and untraceable users.
The most impacted area remains the copyright law as new technologies made it easier to reproduce and share contents online. Although the law recognises the need to protect intellectual property, it fails to establish an effective means of regulating piracy.
Should We Capitalize on Existing Laws or Create New Ones
One of the key issues remains whether the law should rely on pre-existing legal frameworks or create entirely new laws designed to address the unique characteristics of emerging technologies. The example of intellectual property and copyright law illustrates how the current legislation struggle to adequately address the specificities of such innovations. The Bar council even argues that there is no pre-existing legal framework capable of regulating such technologies. The fundamental challenge lies in the pace of technological development. While technology moves forward, the law often falls behind, leading to situations where new laws can be outdated almost as soon as they are enacted. Mark Avsec further contends that “the technology leads and the law follows”.
The rapid development of technology justifies the call for flexible legislation. Many scholars and government enquiries promoted the promulgation of a set of principles and value-based statutes which can flexibly adapt to the emergence of new technologies. However, this approach is not without critics as relying solely on vague principles may be too abstract to provide clear guidance. The unpredictable nature of technological development has also sparked debate about the proactive nature of the law. Should it anticipate future technologies and pass laws in advance to regulate these changes, or should it take a more reactive approach?
Besides, emerging technologies often defy pre-existing classifications. Take, for example, the case of Uber, which was ruled by the Court of Justice of the European Union to be a transport services company rather than a mere online platform. As a result, Uber was required to comply with stricter regulations. This case illustrates the difficulties encountered in fitting new technologies into traditional legal standard. The intersection of law and technology requires innovative and flexible legal frameworks to keep pace with the ever-changing digital marketplace. While it is important to rely on existing legal principles, it is increasingly essential to create new laws or amend existing laws to ensure that the law remains relevant and effective.
Rapid advances in technology, particularly in areas such as artificial intelligence, require a greater degree of transparency. A UK Government inquiry has put forward the idea of a Public Register of Algorithms as an important step towards this accountability. However, we must also recognise that this solution is not without its problems. Exposing the complex system of algorithms to the public could inadvertently provide the knowledge necessary for malicious actors to manipulate them. In addition, accountability comes at a cost, both in terms of financial resources and the need to constantly update regulations to keep pace.
To regulate technology effectively, it is imperative that we first fully understand these innovations. It is only through this understanding that we can develop regulations that not only ensure accountability, but also promote innovation and protect the public interest.
Ines is a second-year law student at the University of Leicester. Her academic journey took an exciting turn in September 2022 when she enrolled on a unique dual French/English law degree programme offered in partnership with the University of Strasbourg. This decision reflects her keen interest in mastering two different legal systems. Originally from Strasbourg Ines has always been very attached to her home country. However, her studies have led her to cross borders and take an interest in the Common law. Ines wishes to specialise in the complex areas of property law and trusts.
Works Cited
Does Technology Require New Law? – David D. Friedman (January 1, 2001)
https://digitalcommons.law.scu.edu/facpubs/22/#:~:text=Technological%20change%20affects%20the%20law,existing%20legal%20concepts%20and%20categories accessed 28 October 2023
RegTech, LawTech and the Future of Lawyers – Henri Arslanian
Simon, H. A. (1956). “Prediction and Prescription: A Note on the Methodology of Scientific Model Building.” In M. C. White (Ed.), The Science of Art: The Cybernetics of Creativity (pp. 147-161). Gordon and Breach.
Susskind, R. (2008). The End of Lawyers?: Rethinking the Nature of Legal Services. Oxford University Press.
Technology Changes, The Law Follows – Mark Avsec
Technology rules? The advent of new technologies in the justice system – Justice and Home Affairs Committee (March 30, 2022)
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