It’s now impossible to imagine a world without Zoom calls, QR codes or apps to access the latest information. Many of our everyday activities today would simply be impossible without a networked device.
However, our greater dependency on information technology also spells greater vulnerability as legal systems struggle to keep pace with complex data management and security issues.
In this new series of stories, titled This Does Not Compute, authors of a new book edited by UNE’s Professor Mark Perry* – Legal Issues in Information Technology – explore the law as it applies to new technologies.
“There has been a fundamental shift in the way people use communications,” says Mark. “I want people to think about what’s happening around them when they turn on their phone or iPad, or go online and look at Facebook.
“Think of fake news, how computer algorithms can influence election results and even shopping patterns. We have moved to a more nuanced and unpleasant use of technology to influence people in not always ethical ways. The law is not dealing adequately with many of these issues.”
We have moved to a more nuanced and unpleasant use of technology to influence people in not always ethical ways.
Where are the pressure points?
"Our dominant means of communication and sources of information are controlled or managed by a legal framework that was not designed to meet these needs. This requires flexible but principled approaches in the legal system to deal with such modern issues.
"There are the social aspects - such as massive information overloads for individuals, whether at work or shopping for a piece of cheese - and concerns around sustainability, such as how much energy is being used to search, send and save useless or redundant information.
"Then you’ve got platform and software biases, where the construction of software, even games, is inherently tilted towards the world view of the code creators.
"Whether these will be addressed within legal systems, or whether they will affect the way law is used online, remains to be seen, but this is a space that needs constant review and refresh."
So have we fully considered the legal implications of using IT?
"No. We’ve had this blind faith in the technology being, first of all, neutral - which it’s not; and, secondly, reliable - which it’s not.
"Having tech-specific laws doesn’t always help because by the time a law is enacted, the technology has moved on to something else. Legislation that is too specific can also be so granular that it excludes issues that arise online.
"If you have principle-based laws, which is what our laws are supposed to be, then hopefully they can be deployed where a similar moral or ethical issue or something that society abhors happens, whether it’s online or in the pub. Sticking in a bit of law for something specific may not cure the larger problem."
Of course the IT developers, the architects of this new universe, want as much freedom as possible.
"Yes, and in some cases that’s a good thing. You don’t necessarily want the state-writ-large controlling all aspects of communication – the horror of which is evident in other parts of the world. Imagine if one of our political parties controlled all communication in Australia, which happens in some countries, like Russia. Then there’s a huge distortion in what the populous believes because of the media-presented ‘facts’ they are fed all the time, which leads to the current distortion.
"Even before COVID most people were not that interested in thinking about what they were doing when they were signing up for access to X, Y or Z service. How many people read the licensing agreement attached to their software or the terms of use of a social media provider? Almost none. Privacy protection in Australia is very weak, in my mind.
How many people read the licensing agreement attached to their software or the terms of use of a social media provider? Almost none.
"The other issue is that the majority of software programmers can be seen as 'white, male geeks', to put it bluntly. In the USA, less than a quarter of the computer and info-tech jobs are held by women – and usually this means that women are disadvantaged when it comes to using code-based systems. Other groups of people, especially minorities, are similarly disadvantaged as the software often assumes the nature of its users."
Why have we not stopped to consider the legal issues in the past? Is it our haste to adopt the next greatest technology?
"Years ago, many people thought of technology as a panacea for all society’s ills; that the deployment of more technology would give people more free time and greater access to communications. But it hasn’t all turned out for the better.
"It’s interesting to look at the US, where free speech is very strongly respected. Although it has its fair share of crazies, there’s also a greater openness in the US to discuss the legal implications of IT – I think that’s a good thing. When you get discussions channelled because of constraints put on by the one party that runs government or one company that provides the technology, you tend to get more biases coming in than if it were a completely open opportunity for discussion.
"So there’s that difficult balance that needs struck. On the one hand you might think we have to restrict how people use the internet but, on the other, there is a need for open systems and expression. Mould doesn’t grow in a bright light."
* Professor Mark Perry is a lawyer and computer scientist with the UNE School of Law.
