Technology continues to transform the practices of every organization in the world.
But if we look specifically at the legal profession, these digital transformations can lead to unforeseen legal and ethical risks. In-house legal departments were seen as a sacred black box, and although it was not clear what they did, their decisions were highly valued.
In recent years, in-house lawyers have expanded into new areas of business, such as environmental, social and governance, where they have a greater role in designing and influencing the rest of their company.
General counsels now spend more time on strategic highlights and less time on day-to-day business.
As Janet Taylor-Hall, CEO of legal services provider Cognia Law puts it, in-house lawyers engage with the sales team or procurement department, sitting down with them to develop templates, contracts or negotiation rules.
Most importantly, there is a sea change in the adoption of technology by in-house legal departments to collect data. Analyzing this data can identify emerging trends and provide early warning of larger problems – such as an increase in the number of new lawsuits.
A 2021 report by the Corporate Legal Operations Consortium (CLOC) shows that more than half of respondents—about 66 percent—respond that their organization views the legal department as fully integrated into their strategy and business.
According to only three percent of respondents, the in-house legal department provides only legal advice.
THE GROWING CYBER RISK AND PRIVACY IN AUSTRALIA
Australian businesses are already at significantly higher risk of cyber attacks due to their reliance on web-based applications. But when it comes to responding to cyber threats, only 54 percent of companies have a comprehensive cyber threat response strategy that includes their legal departments.
Cyber breaches can lead not only to significant financial losses, but also to reputational damage. So the intervention of a competent legal team can mitigate these risks.
As an example of one of these privacy violations, Human Rights Watch (HRW) accused the Adobe Connect app and Minecraft: Education Edition of violating their privacy policies and collecting children’s personal data for non-educational purposes.
This underscores the need for in-house lawyers with a broad understanding of technology who are able to predict potential legal violations and guide their employers through the early stages of new technology development.
Australia’s privacy law, currently under review, is outdated in the digital age.
While legislators try to amend and supplement relevant legislation to become more adaptable to technological changes, lawyers continue to face legal challenges related to the evolving digitalization, and it is difficult to say whether these adaptations of the law really go far enough .
BIOMETRIC DATA AND PRIVACY
Consumer group CHOICE recently investigated whether Australian retailers Kmart, Bunnings and The Good Guys were breaching the Privacy Act by using facial recognition technology to capture and collect the ‘facial print’ of customers who entered selected stores.
About 76 percent of consumers were unaware that businesses use video cameras for this purpose. Stores using facial recognition technology in this way is akin to “collecting your fingerprints or DNA every time you shop.”
Under the Privacy Act, biometric data collected by facial recognition technology is considered sensitive personal data. Clearly, existing laws are lacking when it comes to protecting against potentially harmful facial recognition technology.
In these cases, it’s unclear whether the decision to deploy this technology didn’t get past the legal teams in their respective organizations, whether the legal teams underestimated the potential public backlash, or didn’t have enough understanding of the nuances of facial recognition to realize the potential risks—or perhaps some combination of the three.
In any case, the closer involvement of a better-informed legal team may have raised concerns earlier or led to these organizations informing their clients in a more transparent manner.
It is very important to understand and explore how in-house lawyers are involved in the provision, design, implementation and oversight of emerging digital technologies in their firms and how they mitigate the risks associated with emerging technologies.
What is not clear is whether current legal education and training is sufficient for lawyers providing advice on emerging technologies.
First, for many new applications of emerging technologies there may be several applicable areas of existing law, but most of them are designed without these technological advances in mind.
Second, there is often no precedent for many issues related to emerging technologies. And that puts lawyers in a position of needing to understand the implications of emerging technologies and provide legal and ethical advice without clear law and precedent.
Only after lawyers and law students understand the underlying legal and technical frameworks of emerging digital technologies and are well prepared to respond to technology-related issues will they be able to mitigate the legal risks associated with them.
The Center for AI and Digital Ethics (CAIDE) started a new project for ensures that lawyers understand the basic legal and technical frameworks of emerging digital technologies. The a four-year project New Legal Thinking for Emerging Technologies is funded by on Menzies Foundation under Ninian Stephen Law Program.
The first phase is to understand how lawyers currently deal with these issues. If you are an in-house attorney who has provided legal or ethics advice on technology, we invite you to a one-hour online interview. Please contact Dr. Fahimeh Abedi [email protected] if you are interested and available for an interview before 28 July 2022.
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