Cate, Fred H

Kuner, Christopher

Millard, Christopher

Svantesson, Dan Jerker B.

English

Indiana University Bloomington Maurer School of Law

Maurer School of Law: Indiana University Digital Repository @ Maurer Law Articles by Maurer Faculty Faculty Scholarship 2014 The (Data Privacy) Law Hasn't Even Checked in When Technology Takes Off Fred H. Cate Indiana University Maurer School of Law, fcate@indiana.edu Christopher Kuner Brussels Privacy Hub Christopher Millard Cloud Legal Project Dan Jerker B. Svantesson Bond University Follow this and additional works at: https://www.repository.law.indiana.edu/facpub  Part of the Information Security Commons, Privacy Law Commons, and the Science and Technology Law Commons Recommended Citation Cate, Fred H.; Kuner, Christopher; Millard, Christopher; and Svantesson, Dan Jerker B., "The (Data Privacy) Law Hasn't Even Checked in When Technology Takes Off" (2014). Articles by Maurer Faculty. 2624. https://www.repository.law.indiana.edu/facpub/2624 This Editorial is brought to you for free and open access by the Faculty Scholarship at Digital Repository @ Maurer Law. It has been accepted for inclusion in Articles by Maurer Faculty by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact rvaughan@indiana.edu. EditorialThe (data privacy) law hasn’t even checkedin when technology takes offChristopher Kuner*, Fred H. Cate**, Christopher Millard**,and Dan Jerker B. Svantesson***Consider the following opening paragraphs from aSwedish law journal article:The creation of advanced computer technology has resultedin jurists having to face a range of new and awkward pro-blems. . . . Through interlinking, copying and other auto-mated data processing, modern technology has made itpossible to, collect, compare, and combine enormousamounts of data about every person. Also data that in and ofitself is not secret can, through its currency, quantity and in-ternal correlation place the individual under the magnifyingglass and expose much of his private life . . . 1 (our translation)Anyone reading law journal articles within the field ofdata privacy law, or indeed Internet law, would havecome across numerous articles with opening paragraphssuch as that quoted above. What makes the quote inter-esting is that it was written more than 35 years ago!The article in question was written by ProfessorMichael Bogdan of Lund University (then docent) andwas published in 1978 in Svensk Juristtidning. It addressesthe world’s first national data privacy law, that of Sweden.More specifically, the article grapples with private inter-national law issues stemming from the complexities sur-rounding dataflykt (‘data drain’ or ‘data flight’).There is no doubt that we can learn many things fromProfessor Bogdan’s interesting 1978 article. Here, we merelyuse it to highlight that (1) many of the key problems thatneed to be addressed in the modern data privacy lawreforms around the world have been debated by academicsfor a long period, and (2) law reform is a slow processindeed.Technology developments have been the driving forcebehind the evolution of data privacy law from the latter’sinfancy. In their now classic 1890 article, ‘The right toprivacy’, Warren and Brandeis’ introduced a call for aprivacy rights in light of the technological developmentat the time:Recent inventions and business methods call attention tothe next step which must be taken for the protection of theperson, and for securing to the individual what JudgeCooley calls the right ‘to be let alone.’ Instantaneous photo-graphs and newspaper enterprise have invaded the sacredprecincts of private and domestic life; and numerous mech-anical devices threaten to make good the prediction that‘what is whispered in the closet shall be proclaimed from thehouse-tops.’ (footnotes omitted)2There is no difficulty in transplanting this observation tomodern day technologies such as Internet surveillance,3facial recognition,4 and Google GLASS.5 Technology stillis, and will continue to be, the preeminent driving forcebehind legal developments in the field of data privacy.Law will never keep up with the speed of technology.This point is so widely accepted that debating it mayseem pointless. And examples proving this observationcorrect abound. In Australia, for example, on 30 January2006, the Attorney-General asked the Australian LawReform Commission (ALRC) to conduct an inquiry intothe extent to which the Privacy Act 1988 (Cth) andrelated laws continue to provide an effective frameworkfor the protection of privacy in Australia. The result ofthis work only took effect in March 2014 when thePrivacy Act 1988 (Cth) was amended to address some ofthe concerns. However, despite the eight years since thework was initiated, it is still ongoing, and at time of* Editor-in-Chief.** Editor.*** Managing Editor.1 Michael Bogdan, ‘Dataflykt over gränserna och den svenskadatalagstiftningen’, 1978 Svensk Juristtidning 1–26, at 1.2 Louis Brandeis and Samuel Warren, ‘The right to privacy’ (1890)4 Harvard Law Review 193, at 195.3 See our Special Issues on Systematic Government Access to Private-SectorData, volumes 2(4) and 4(1) of International Data Privacy Law.4 Discussed in Christopher Kuner, Fred H. Cate, Christopher Millard, andDan Svantesson, ‘Editorial: Face-to-data—another developing privacythreat’ (2013) 3/1 International Data Privacy Law 1–2.5 Discussed in Arye Schreiber, ‘Through the looking GLLSS: Google GlassTM,privacy, and opacity, with an Israeli law twist’ (2014) 4/1 InternationalData Privacy Law 69–82.International Data Privacy Law, 2014, Vol. 4, No. 3 EDITORIAL 175# The Author 2014. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.comwriting, a new 236 page Discussion Paper has recentlybeen released by the ALRC.6Of course, this concern is not specific to data privacylaw. Remaining focused on Australian law for a moment,we can, for example, observe that, while technology hasmoved on to a stage of ‘software as a service’ (SaaS),Australian law is still grappling with the question of whetherdownloaded software is to be classed as ‘goods’ or not.7Concerns about the slow speed of legal developmentsare not limited to domestic law. In fact, the slow pacewith which international law moves makes the situa-tion internationally even more concerning. Consider, forexample, the preparatory work on a new and ambitiousconvention initiated by the Hague Conference on PrivateInternational Law in 1992.The previously proposed Convention, which was an ini-tiative of the US government, was called the Hague Con-vention on Jurisdiction and Foreign Judgments in Civiland Commercial Matters, but was commonly referred to asthe ‘judgments project’.Due to a range of factors, the wide scope and greatambitions of the ‘judgment project’ proved impossibleat the time, and despite the hard work of the Hague Con-ference, in late 2003, the ‘judgments project’ was replacedby a much more narrow convention proposal—the Con-vention on Choice of Court Agreements.It is interesting to reflect on the status the Internethad when work on the ‘judgments project’ commencedin 1992. In 1992, Internet activities were largely focusedon e-mails and so-called bulletin board systems (BBS),and the US National Science Foundation Network(NSFNET) had just a year earlier withdrawn its restric-tion on commercial use of the Internet, and the phrase“surfing the Internet” had just been coined.Viewing the Convention on Choice of Court Agree-ments as a result of the ‘judgments project’, we can notehow, in the 13 years it took for the Convention to befinalized, e-commerce and Internet usage went frominfancy to a boom, resulting in the blossoming andmultifaceted communications medium we have today.Expressed in numbers, the development is simplystaggering. In 1992, there were approximately 1,000,000Internet hosts, compared with 400,000,000 in 2005. Fur-thermore, there were only about 50 websites on the Inter-net in 1992, compared with over 100,000,000 in 2005.Assuming we have to accept that the law never willkeep up with the pace of technological developments, wemust still ask how far behind can we accept the law to be?In the end, perhaps we need to articulate more clearlywhat exactly we mean when we say that the law cannotkeep up with the pace of technology. Perhaps we need todistinguish ‘legal thinking and knowledge’ on the onehand, and ‘legal principles and rules’ on the other? Profes-sor Bogdan’s 1978 article referred to above shows that aca-demic commentary on the relevant legal issues was alreadyat an advanced stage 35 years ago. And looking at amodern technology such as Google GLASS, it is striking inhow much detail the legal issues involved have been dis-cussed, analysed, and debated both by academics and othercommentators. This highlights that legal thinking andknowledge, as such, is not necessarily always the tortoisewhile technology is the hare disappearing into the horizon.The key question is how we can speed up the conver-sion of legal thinking and knowledge into appropriatelegal principles and rules. Here much work is needed.doi:10.1093/idpl/ipu013Advance Access Publication 11 June 20146 Australian Law Reform Commission, Discussion Paper 80 Serious Invasionsof Privacy in the Digital Era (March 2014).7 See eg: Gammasonics Institute for Medical Research Pty Ltd v ComradMedical Sysytems Pty Ltd [2010] NSWSC 267.International Data Privacy Law, 2014, Vol. 4, No. 3176 EDITORIAL

The (Data Privacy) Law Hasn\u27t Even Checked in When Technology Takes Off

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The (Data Privacy) Law Hasn\u27t Even Checked in When Technology Takes Off

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