The thrust of my Law 2050 class is to develop skills for navigating two forces of innovation in legal practice—innovation “within” the legal industry (technology, outsourcing, etc.) and innovation “outside” the law (new technologies, social issues, etc.). Students identify a trend in either category and write a paper on it in the form of a bar journal article. Their final papers were fantastic—a real pleasure to read. I’ve posted previously about two of the major themes represented in the papers: the sharing economy and the frontiers of new technology. The third major theme revolved around privacy.
You’d have to be a hermit not to be aware of, and subject to, the relentless erosion of personal privacy in the digital age. It is becoming increasingly difficult to participate in modern society and not feel the effects. A recent special issue of Science on The End of Privacy starts with the ominous line, “At birth, your data trail begins.” The articles highlight the technological arms race in the battle to regain control of privacy’s erosion. One set of articles covers facial recognition, drones, hacking pacemakers, and the ease with which your identity can be revealed from just a few credit card purchases. The other set of articles covers counter strategies such as apps that allow use of location-based apps without revealing your location and a browser app that injects decoy queries to throw off your true interests.
Law is no stranger to this engagement, with a string of statutory acronyms already firmly in place and more to come. Litigation is surging over issues from the effects of gargantuan hacks of financial records to control over one’s social media sites. Student papers covered an impressive span of these emerging legal issues:
- The controversy over Apple’s new encryption software for the iPhone 6
- Litigation against social media providers over inadequate disclosures about use of user searches, locations, and geotagging
- The implications of “predictive policing” – using machine learning to predict where crime will occur and intervening ahead of time
- The pushback Google Glass has experienced based on privacy concerns
- The implications of police forces wearing body cameras
- A new technology for detecting when drivers send text messages
- The implications of the increasing ease with which we can pay for things (1-Click, Google Wallet, Apple Pay, Snapcash, etc.)
- The increasing use of “connected cars” that are essentially smartphones on wheels, streaming data about your driving
- The health data privacy concerns posed by Apple’s Health and HealthKit apps for personal health monitoring
- HIPPA – the 800-pound gorilla of privacy law
- Trends in industry self-regulation to control privacy leaks and concerns
- Concerns lawyers face when using cloud-based storage of client files
These themes cover just the tip of the privacy iceberg that is coming to law. So, my advice to law students and young lawyers thinking about a niche to carve out? To paraphrase Mr. McGuire’s classic advice to Ben in The Graduate: I just want to say one word to you. Just one word. Are you listening? Privacy!