Managing Technology’s Challenges

DiffusionOfInnovationPrivacy and the Eroded Right to be Left Alone

In 1890, Samuel Warren and Louis Brandeis (later a U.S. Supreme Court Judge) wrote a Harvard Law Review article on the ‘right to be left alone’.

This foundation stone for privacy law seems more pertinent than ever. In recent years, Google has faced a number of ‘right to be forgotten cases’. And, in this Snowden and Wikileaks era, many are concerned about the way technology is eroding liberty.

Internet Era Failures

The creative minds who invented the Internet built some amazing software. Who contemplated we would be able to carry a PC in our pockets? Or that any information was just a quick search away. Remember the ‘fairly recent’ old days of having to drive to the library to put in a request for an inter-library loan or to be placed on the waiting list for when a certain book was returned. Information trickled very slowly in those days.

There have surely been many wonderful improvements. But it has also come at a huge cost. Privacy is hanging on by a thread. Revenge porn, cyber stalking, online bullying and other misuses of the technology have caused serious damage to individuals and, arguably, society as a whole.

There are also numerous flow-on impacts. Who would buy shares in a TV company now Netflix is available? Skipping ads and streaming high quality shows certainly has its appeal.

Online ‘disruption’ has also devastated the newspaper industry. The loss of job ads and real estate ads to online platforms dried up the much–touted rivers of gold. Hard times have hit the newspaper industry and the industry is threatened with an investigative journalism drought. Is it really a good thing that many major U.S. cities no longer have a city newspaper? How does that affect democracy? How does it affect the quality of news coverage? What important stories go untold? What key issues are ignored? As millions turn to social media for their news, could this decline have even contributed to the rise of populist politicians such as Mr Trump?

The Internet era was our first attempt at modifying and regulating technology’s impact. If we did not fail in that attempt, then we surely only deserve a fairly low mark.

Blockchains and Other Emerging Technologies

Now artificial intelligence, blockchains and smart contracts are about to wash ashore.

Will the developers, businesses, regulators, and law makers adjust better this time? Will the inventors take the extra time to build in privacy protections from the outset? Will our politicians focus on the real issues promptly enough and put laws in place to moderate any excesses? Will our court system be able to transition to an era of machine to machine contracting and blockchain registers?

It was recently revealed that one senior judge was email-challenged. Can our judicial system move as rapidly as is required? For that matter, will many minor judicial functions soon be replaced by machines? Robo-judge may soon be coming to a court house near you.

Imminent Major Disruption

Lawyers are also facing major disruption to their industry. In the U.K. a new robo-lawyer business (run by a 19 year old programmer) has reportedly already appealed over $6 million in parking fines. Such a task seems a fairly simple programming task, yet it has swiftly had a significant effect. Be watchful, hungry lawyers may soon be roaming the streets.

Staying updated on all areas of law long ago became impossible. Some calculate that we pass more pages of laws each year than were passed in the first 100 years of this nation’s history. Someone who did nothing, but read new laws, would struggle to keep up and retain the knowledge – yet, alone have time to practise law and make a living.

Driverless cars will soon be on our roads. The Castle Hill rail line will be driverless. Aircraft fly most of the journey on auto-pilot. Pilots are only in actual control of your plane for a few minutes in each flight.

There’s a joke you may have heard about the cockpit of the future being designed to only have two places. One position will be for a pilot and one for a dog. The pilot’s job will be to watch all the dials. The dog’s job will be to bite the pilot if the pilot tries to touch anything.

Still, it is nice to have someone with the right skills around when the completely unexpected happens. Ask Captain Sullenberger’s ‘Miracle on the Hudson’ passengers if they are glad he was at the controls.

The humble GP is also in peril. Various studies have shown how challenging it is for doctors to stay updated on every new medical treatment and development. Spare a thought for someone that has to confront a gamut of aches, pains and illnesses every day. Can any one person stay across all of the varied treatments and medications? But, a machine can. It can be programmed to ask all the right questions, accurately and comprehensively record all the answers (medical insurers will love that), and automatically detect pulse and temperature and other diagnostic procedures. Sure I would prefer to deal with a human, but is my kindly doctor going to continue to outperform Robo-Doc?

Google’s AI machine recently outplayed the world’s Go champion. The stunning development was that it was not following a program. The artificial intelligence ‘engine’ taught itself and rapidly learned from experience. It soon developed a capacity to think, plan and to out-wit humanity.

Social Implications

So, deep logic and analysis is now achievable. Would such a machine deliver better medical or legal (or even judicial) outcomes?

Now, there are many very valid, very compelling possibilities. Technology can and will continue to disrupt and transform. Let’s just hope we do a lot better job of developing the tools and managing the changes this time.

The poor design that went into Microsoft’s Tay artificial intelligence ‘chatbot’ is a salutary lesson. Within 24 hours, social media users had interacted with this supposedly smart technology and turned it into such a ranting racist that it had to be promptly taken offline.

An important technology ‘cane toad’ lesson?

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About Mark Toohey

Mark Toohey is an experienced commercial lawyer who has worked with both major law firms and as general counsel in the media, telecommunications, software and IT industries. He has been a lawyer, company director, marketing director, company secretary and entrepreneur. Mark's commercial experience extends way beyond the theoretical. He has helped launch a number of start-up businesses and his hands on experience was gained from negotiating and documenting deals for a wide variety of business initiatives.