Sometimes it’s tempting for an IT lawyer – or rather an academic IT lawyer – to feel that things are moving essentially in the right direction, that the subject is getting more mainstream, more understandable – and more importantly, more understood. In some ways, of course, that’s true – but in others, we need to remember that things are far from positive, and that in many ways the ‘establishment’ – the legal system, the politicians, even the public – still don’t really ‘get it’ at all. Perhaps the most important of these is the legal system. To a significant extent it seems as though the legal system – and the law – is just completely out of kilter with the reality of the IT world, and in particular the internet.
A couple of things in recent weeks have driven that home to me. Neither was surprising, but both were disappointing, particularly to those of us interested in privacy and autonomy. First of all, there was the announcement that there won’t be any prosecutions arising from the Phorm secret trials, something which has been greeted with dismay by privacy advocates. Secondly, and most recently, was the failure of the judicial review to overturn the Digital Economy Act.
In both cases, it’s easy to see how the results came about – and indeed to argue that from a precise legal standpoint the results might have been technically correct. In both – and in the case of the Digital Economy Act in particular – it shows that the legal system really doesn’t understand what’s going on in the internet, and how our online world functions. The Digital Economy Act – in its provisions concerning the policing of illegal downloading – is so clearly inappropriate that it’s hard to find an academic lawyer in the field who believes it’s appropriate or proportionate, or even who believes that it stands any real chance of being effective. Precisely the opposite. It won’t work. It misses the point. It will victimise the innocent. It shows a fundamental misunderstanding of both the nature of the internet and the habits of most of those who use it. It’s such a bad law it just makes many of us shake our heads in disbelief.
The Phorm story is a little less dramatic, but demonstrates some similar features. The CPS have decided not to prosecute – and they may be right that there might not be much chance of a result. That, however, just reveals that our legal system doesn’t have the teeth or the capability to deal with the reality of the internet – for what Phorm and BT did was something that the law should have been able to deal with. It was a serious invasion of privacy on a very serious scale – secretly tracking the entire internet activities of 30,000 people without their knowledge or consent – and yet the law seems to be incapable of dealing with it, incapable of providing people with the kind of protection that people need. The kind of protection that people have a right to expect. The law should do this – and in its current form it doesn’t.
In the grand scheme of things, neither of these two incidents are likely to matter in the end. Despite the failures of the law, Phorm still failed, brought down by a combination of the privacy advocacy of such excellent groups as the Open Rights Group and the Foundation for Information Policy Research, interventions by the European Commission, and the belated intelligence of businesses like BT who withdrew their support as they began to understand how things really work. Similarly, the Digital Economy Act is likely to end up an irrelevance, as the people who it is intended to catch find ways to sidestep it, as further legal challenges arise, and as embarrassing prosecutions fail – and something that gets closer to understanding the reality of the situation is brought in to replace it.
It feels, though, as if the legal system needs to be dragged kicking and screaming into the modern world. That’s the challenge for IT lawyers. People are thinking and writing interesting, informative and insightful things about the nature of the internet – but right now, it isn’t being sufficiently read or understood, and certainly isn’t finding its way into the mindsets of those creating or enforcing the law. It needs to be – for though other forces will (and have, in the case of Phorm) stop many of the worst things from happening, without the law being ‘fit for purpose’ everything is a struggle, and many people suffer along the way.