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Law and digital technology: what will the legal landscape look like in 2038?

04 May 2018 - By Benjamin Liu

In 1998, the internet speed was 56kb per second (today it is 1gb per second, a 20,000 times difference), two Stanford University PhD students had just incorporated a little-known company called Google, and iPhone was not released until 10 years later. It is amazing, in just 20 years, how much digital technology has improved, and how much our lives have changed as a result.

With many innovations already here or on the horizon, we are expecting a much more profound social transformation to come in the next 20 years. By 2038, most dangerous, repetitive or routine labour jobs will be done by robots; lawyers, accountants and doctors will work side by side with digital assistants; human decision-makers in businesses, governments and even battlefields will be assisted or replaced by algorithms based on artificial intelligence (AI) and machine learning. Without a doubt, these technologies and the resulting social and economic changes will have a profound impact on our laws and legal systems.

So how will the legal landscape look like in 2038? Here I offer four bold predictions.

Data protection law

First, data protection law will be elevated to a dominant (if not the dominant) position, thanks to the pervasiveness of data in our lives. In fact, to a large degree, this is already happening. With or without our knowledge or consent, massive amounts of personal data are being collected through electronic devices and then processed and fed into machine learning algorithms, generating further information and insights. If we do not put adequate laws and regulations in place, our privacy may be breached, our identities and financial information may be stolen, and even our political votes may be manipulated.

Today, over 100 countries have established designated data protection agencies, dealing with the increasing need for data protection. For example, the UK Information Commissioner’s Office employs more than 400 staff and handles over 20,000 complaints each year.

On the legislation front, the European General Data Protection Regulation (GDPR) will go into effect on 25 May 2018. The importance of GDPR cannot be overstated, as it will affect every organisation that deals with data. In fact, any New Zealand company conducting business online will have to ensure GDPR compliance.

AI law

Second, a new area of law, which I call “AI law” here, will emerge as a distinctive legal field. In 2038, we will live in a world where AI systems are used to make predictions, recommendations or even consequential decisions. This will give rise to many new and challenging questions, for which the current law does not have a clear answer. For example, what are the decisions that can be made by computers, and what are the decisions that must be made by human decision-makers? When a human makes a decision, to what extent can that person rely on recommendations made by a computer?

As to the decisions made by AI, what legal rights does the person who is subject to the decision have? And if the decision goes wrong, who should be held liable? Our current laws have been evolved with humans in mind. As such, they are not equipped to deal with cognitive machines which can make decisions and take actions by themselves. New legal principles and rules will need to be created.

Employment law

Third, employment law will need serious revamping. Currently, our employment laws divide workers into “employees” and “contractors”, each having different rights and responsibilities. In the future, however, more and more people will participate in the “gig” economy such as Uber and Airbnb. New laws and policies need to be made to offer appropriate protections to those workers.

Negligence diminishes

Finally, the importance of negligence will diminish, or even disappear. In the past, the law of negligence allowed consumers to seek legal redress directly from those who provided defective products or services. However, this has become increasingly ineffective and cost prohibitive in many cases. In the future, more and more goods and services will be based on digital technologies, making it difficult or impossible for an ordinary consumer to prove the existence of negligence. As such, we are likely to see an expansion of the strict liability approach in this field.

Obviously, the above predictions are far from certain. However, it does seem safe to say that the legal landscape in 2038 will look very different from today. It is vital that lawyers, governments, and academics tackle these matters today, given the speed of the development and introduction of new technologies. The forthcoming Legal Research Foundation Law & Technology Conference in June in Auckland will address a number of the above issues and will offer important insights to those who see the need to grapple with these revolutionary concepts sooner rather than later. As has been said, lawyers will not be replaced by robots in the near future, probably may never be. However, lawyers who do not understand and apply technologies will be replaced by those who do.

Dr Benjamin Liu is a senior lecturer at Auckland University where he teaches, among other things, the law and policy of artificial intelligence and financial markets law.

Last updated on the 4th May 2018