The Ethics of Legal Technology: Legal Implications of Technological Decisions

The Ethics of Legal Technology: Legal Implications of Technological Decisions

By Eleni O’Dwyer, SS Law

Introduction

Technological developments have had an overwhelming effect on the nature of the legal field, with lawmakers struggling to keep up with technological change in many respects. This is amplified by the fact that the problems presented by technological decisions are not limited to any one form of technology or legal area.

Broader Implications on the Legal Field

The rise of technology has had far-reaching implications on the legal world; diversifying work, creating new areas of practice, and broadening the scope of legal problems. However, there are distinct challenges posed by widespread technological advances.

Technological developments have the potential to undermine interests and values that the law seeks to protect. As a result, governments may be compelled to block or restrict the use of a form of technology to protect traditional values or settle moral arguments about the making of a technological decision.

As the scope of technological decisions is ever-growing, new realms of liability emerge.

In the context of modern technologies such as artificial intelligence, the question arises as to the ability of a legal institution or law firm to have liability imposed on it for work carried out by a machine. Consequently, it is not only the technological decisions of clients that are at issue, but also the internal decisions made in law firms with respect to technologies adopted. Law firms must ensure that they are sufficiently cautious around employing various forms of technology in terms of managing and protecting client data.

Legal Uncertainty as a result of Technological Advancements

New technology often generates uncertainty as to the application of existing law. Such legal uncertainty is notably prevalent in the context of technologies that enable new forms of conduct, as this type of technological decision is most likely to have a direct impact on the law. For example, this is the case in the context of technological decisions made in the context of medical technologies such as in vitro fertilisation, which made possible the existence of two ‘mothers’ of the embryo in question (a woman providing an ovum, as well as a woman carrying the embryo). In the event of a custody dispute, a law giving custody of said child to its ‘mother’ inevitably becomes uncertain.

Similarly, in the context of computer-generated works, the determination of an ‘author’ for legal purposes becomes uncertain. As such, the advancement of new technologies has the ability to render existing legal rules uncertain, while also requiring the development of new laws.

Further, technological change has the potential to render laws obsolete. The law should not be static in its attitude towards technology, since “law must be contemporary to be viable.” Failure on the part of lawmakers to act and advance with technological decisions can lead to the law falling behind the times, thus becoming

obsolete.

Implications of Technological Decisions on Privacy Laws

The technological transformation of the world has had overarching implications on the security of data. Privacy laws are a major consideration, as there has been a startling increase in the frequency and severity of cyberattacks against company data. These privacy law considerations are amplified by ransomware attacks such as that on DLA Piper, one of the world’s largest law firms, in 2017. High-profile cyber-attacks such as this provide cause for concern around the movement of sensitive documents and client data to cloud-based or otherwise remote systems, and as such, security measures adopted by a firm can be an important technological factor for a client in deciding which law firm to trust with their data.

The most notable recent attempt to control technological decisions is the European Union’s General Data Protection Regulation (GDPR), requiring Member States’ governments to tighten controls on privacy breaches and cyber-attacks. However, in this technological age, the legal sector as a whole is tested on a constant basis, requiring a balance to be sought between regulation and privacy on one hand, and freedom and access to information on the other.

Conclusions

On foot of the above, it is evident that as technological advances are made, the legal sector must race to keep up with technology or risk laws becoming obsolete. In order to remain relevant and effective in the twenty-first century, the law must adapt in conjunction with technological developments.

A paradigm shift in thinking is required on the part of the lawmakers—and states—as a whole, requiring extensive innovation to reconfigure the law in such a way that is compatible with technological developments. New frameworks must be created, bridging the gap between the fragmented legal policies towards advancements in technology, while also considering relevant ethical concerns. As such, law and technology must enter into symbiosis with one another, one constantly moving towards a common footing with the other.