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2017 | Book

Disruptive Technologies Shaping the Law of the Future Read chapter Read first chapter

New Technology, Big Data and the Law

Editors: Prof. Marcelo Corrales, Prof. Mark Fenwick, Nikolaus Forgó

Publisher: Springer Singapore

Book Series : Perspectives in Law, Business and Innovation

Part of: Springer Professional "Wirtschaft+Technik" , Springer Professional "Technik" , Springer Professional "Wirtschaft"

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About this book

This edited collection brings together a series of interdisciplinary contributions in the field of Information Technology Law. The topics addressed in this book cover a wide range of theoretical and practical legal issues that have been created by cutting-edge Internet technologies, primarily Big Data, the Internet of Things, and Cloud computing. Consideration is also given to more recent technological breakthroughs that are now used to assist, and — at times — substitute for, human work, such as automation, robots, sensors, and algorithms.
The chapters presented in this edition address these issues from the perspective of different legal backgrounds. The first part of the book discusses some of the shortcomings that have prompted legislators to carry out reforms with regard to privacy, data protection, and data security. Notably, some of the complexities and salient points with regard to the new European General Data Protection Regulation (EU GDPR) and the new amendments to the Japan’s Personal Information Protection Act (PIPA) have been scrutinized.
The second part looks at the vital role of Internet intermediaries (or brokers) for the proper functioning of the globalized electronic market and innovation technologies in general. The third part examines an electronic approach to evidence with an evaluation of how these technologies affect civil and criminal investigations. The authors also explore issues that have emerged in e-commerce, such as Bitcoin and its blockchain network effects.
The book aims to explain, systemize and solve some of the lingering legal questions created by the disruptive technological change that characterizes the early twenty-first century.

Table of Contents

Frontmatter
Disruptive Technologies Shaping the Law of the Future
Abstract
Technology is transforming our lives and the way we perceive reality so quickly that we are often unaware of its effects on the relationship between law and society. As an emerging field, a key aim of IT Law is finding the best way of harnessing different cutting-edge technologies and at the same time reducing the ever-growing gap between new technology and various legal systems. Therefore, this chapter deals with introducing and describing several limiting legal issues that have been exacerbated by emerging technologies and the Internet’s fast growing and dynamic nature. It follows from this chapter that we could expect disruptive technology and innovation to be integral components to the analysis of law in the future.
Marcelo Corrales, Mark Fenwick, Nikolaus Forgó

Purpose and Limitation

Frontmatter
The Principle of Purpose Limitation and Big Data
Abstract
In recent years, Big Data has become a dominating trend in information technology. As a buzzword, Big Data refers to the analysis of large data sets in order to find new correlations—for example, to find business or political trends or to prevent crime—and to extract valuable information from large quantities of data. As much as Big Data may be useful for better decision-making and risk or cost reduction, it also creates some legal challenges. Especially where personal data is processed in Big Data applications such methods must be reconciled with data protection laws and principles. Those principles need some further analysis and refinement in the light of technical developments. Particularly challenging in that respect is the key principle of “purpose limitation.” It provides that personal data must be collected for specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes. This may be difficult to achieve in Big Data scenarios. At the time personal data is collected, it may still be unclear for what purpose it will later be used. However, the blunt statement that the data is collected for (any possible) Big Data analytics is not a sufficiently specified purpose. Therefore, this contribution seeks to offer a closer analysis of the principle of purpose limitation in European data protection law in the context of Big Data applications in order to reveal legal obstacles and lawful ways to handle such obstacles.
Nikolaus Forgó, Stefanie Hänold, Benjamin Schütze
Scientific Research and Academic e-Learning in Light of the EU’s Legal Framework for Data Protection
Abstract
Scientific research and academic education are major, long-standing activities in our society. Digitalization has become a fundamental aspect of development and sustainability in these sectors and many others. New technologies and associated networks mean that the stage is now global. Internationalization is therefore a core characteristic of science. Adding to the picture is the fact that what emanates from the research community serves as basis for many other disciplines. Education based on scientific findings, not merely on opinions etc., is just one example hereof. This, in turn, requires an infrastructure that allows for digitalization with regard to research in itself, but also for learning purposes. The topic covers a wide area and will here be narrowed down to a study of current legal developments with regard to data protection for privacy purposes in the context of scientific research and academic e-learning, bearing academic freedom in mind. The analysis will be carried out in light of the EU’s legal framework for data protection.
Cecilia Magnusson Sjöberg
Internet of Things: Right to Data from a European Perspective
Abstract
The amount of data collected and processed by smart objects has increased exponentially over the last few years. The use of this technology, known as the Internet of Things or IoT, leads to new challenges and applications of existing data protection laws. Data resulting from the use of such technology has wide-ranging consequences for individual privacy as a large amount of the data in question is often personal in nature. However, the Internet of Things has a wider impact and also creates questions within such fields as contract law and intellectual property law, due in part to the lack of a clear property right to data. In addition, issues of data security are of importance when such technology is used, particularly when considering liability for data loss. This chapter will deal with the legal issues connected to the Internet of Things from a European perspective, taking into account existing laws and in light of the new European Data Protection Regulation. The underlying theme of the chapter focuses on the existence of legal rights to data created through the use of the Internet of Things and the various stakeholders that may have an interest in the data, from the service provider and the individual user, to intermediaries and those involved in allowing smart objects to fulfill their potential. The question of whether the legal challenges identified in the chapter can be overcome will also be addressed, along with the future role of law in the use and development of the Internet of Things.
Christine Storr, Pam Storr
Right to be Forgotten: A New Privacy Right in the Era of Internet
Abstract
The right to be forgotten is a new right proposed in the context of information society. Reactions to this right vary from country to country because the concept and rationale are not clearly fixed yet. The absence of a consensus on this point has the potential to create uncertainty in an information society that is becoming borderless. Country-specific decisions are not enough for the smooth development of this concept and there is an urgent need to reach a consensus around core points. The starting point of the argumentation here is whether the right to be forgotten is a part of the right of privacy or a totally different right. In spite of some differences, the chapter argues that the right should be deemed an extension of privacy. However, because understandings on the concept of privacy itself are not harmonized, there is a confrontation between countries, specifically between European countries and the United States. The concept of privacy was born at the end of the nineteenth century and countries have developed it taking into account their own fundamental values. However, because of the borderless character of society today, the conflict between fundamental values, notably the privacy to protect the dignity of the individual versus the right to know to guarantee freedom of expression, comes to the surface. This conflict is one of the traditional issues related to privacy and is particularly serious when contemporary societal changes are not taken in consideration. This blocks the possibility of a consensus on the ideal concept of privacy today. An analysis on the right to be forgotten clarifies traditional questions on privacy and it may also be necessary to modify the general theory itself. At the end, the chapter focuses on the current situation of the right to be forgotten in Japan.
Yuriko Haga

Innovation Intermediaries

Frontmatter
Intermediaries and Mutual Trust: The Role of Social Capital in Facilitating Innovation and Creativity
Abstract
What are the key factors that facilitate innovation and creativity? This chapter begins by challenging the traditional emphasis on IP rights as an incentive to creators to innovate. While it is true, that IP rights provide for a much-needed tool to protect creative ideas, we argue that a much more important policy objective is to facilitate the dissemination of ideas in the society. Moreover, we submit that in the age of networked societies, dissemination of ideas could be facilitated by creating a trust-based ecosystem with different incentives for various kinds of intermediaries to emerge and compete with each other and making sure that users are actually able to choose through which intermediary information should be accessed or disseminated. We begin this chapter by offering a brief exposition of the notions of social capital and mutual trust. Mutual trust is a complex phenomenon involving multiple stages of cognitive decisions between a trustor and a trustee. The degree of trust evolves over time and is based on the experience between the communicating parties. Accumulation of trust between members of a society (a kind of social capital) significantly contributes to sharing of ideas and enhances cooperation. In more complex societies, trusting one’s neighbor (intermediary) is one of the major factors that minimizes risk and facilitates communication through neighbors (intermediaries). In designing a trust-based innovation ecosystem, it is first of all important to identify the relevant stakeholders and their main interests. Such stakeholders and their interests may vary depending on their geographical location or the market in which they are operating. We argue that innovation thrives in more flexible regulatory environments, which pose less restrictions and are able to swiftly adjust to the changing needs of technological evolution. Moreover, we suggest that regulators should aim to create ecosystems where more intermediaries could emerge and compete with each other. Having multiple intermediaries enables users to choose whom they believe to be able to provide higher quality products and services. Higher level of trust between various stakeholders of ecosystem contributes to sharing, collaboration, dissemination of information and innovation.
Shinto Teramoto, Paulius Jurčys
Nudging Cloud Providers: Improving Cloud Architectures Through Intermediary Services
Abstract
Two of the most important developments of this new century are the emergence of Cloud computing and Big Data. However, the uncertainties surrounding the failure of Cloud service providers to clearly assert “ownership” rights of data during Cloud computing transactions and Big Data services have been perceived as imposing transaction costs and slowing down the capacity of the Internet market to thrive. “Click-through” agreements drafted on a “take it or leave it” basis govern the current state of the art and they do not allow much room for negotiation. The novel contribution of this chapter proffers a new contractual model advocating the extension of the negotiation capabilities of Cloud customers, enabling thus an automated and machine-readable framework, orchestrated by a “Cloud broker.” Cloud computing and Big Data are constantly evolving and transforming into new paradigms where Cloud brokers are predicted to play a vital role as an intermediary adding extra value to the entire life cycle. This chapter situates the theories of behavioral law and economics (“Nudge Theory”) in the context of Cloud computing and Big Data, and takes “ownership” rights of data as a canonical example to represent the problem of collecting and sharing data at the global scale. It does this by highlighting the legal constraints concerning Japan’s Personal Information Protection Act (Act No. 57 of 2003, hereinafter “PIPA”) and proposes a solution outside the boundaries and limitations of the law. By allowing Cloud brokers to establish themselves in the market as entities coordinating and actively engaging in the negotiation of Service Level Agreements (SLAs), individual customers and Small and Medium-sized Enterprises (SMEs) could efficiently and effortlessly choose a Cloud provider that best suits their needs. This can yield radical new results for the development of the Cloud computing and Big Data market.
Marcelo Corrales, George Kousiouris
A Brokering Framework for Assessing Legal Risks in Big Data and the Cloud
Abstract
“Cloud computing” and “Big Data” are amongst the most hyped-up terms and buzzwords of the moment. After decades in which individuals and companies used to host their data and applications using their own IT infrastructure, the world has seen the stunning transformation of the Internet. Major shifts occurred when these infrastructures began to be outsourced to public Cloud providers to match commercial expectations. Storing, sharing and transferring data and databases over the Internet is convenient, yet legal risks cannot be eliminated. Legal risk is a fast-growing area of research and covers various aspects of law. Current studies and research on Cloud computing legal risk assessment have been, however, limited in scope and focused mainly on security and privacy aspects. There is little systematic research on the risks, threats and impact of the legal issues inherent to database rights and “ownership” rights of data. Database rights seem to be outdated and there is a significant gap in the scientific literature when it comes to the understanding of how to apply its provisions in the Big Data era. This means that we need a whole new framework for understanding, protecting and sharing data in the Cloud. The scheme we propose in this chapter is based on a risk assessment-brokering framework that works side by side with Service Level Agreements (SLAs). This proposed framework will provide better control for Cloud users and will go a long way to increase confidence and reinforce trust in Cloud computing transactions.
Marcelo Corrales, Karim Djemame
Internet Intermediaries and Copyright Enforcement in the EU: In Search of a Balanced Approach
Abstract
Ever since the commercialization of the Internet, the role of Internet intermediaries has been of vital importance for the functioning of the globalized electronic market and the innovation technologies of information dissemination in general. The importance of the role of the Internet intermediaries has been reflected in the basic legislative initiatives regarding the Internet worldwide. In Europe, following the example of the Communications Decency Act (CDA) and Digital Millennium Copyright Act (DMCA) in the United States, Articles 12–15 of the E-Commerce Directive aimed to create an immunity regime that would allow the Internet intermediaries to develop their activities without being hindered by the fear of complex liability issues connected with their sensitive role. At the same time, though, it became apparent that Internet intermediaries are playing a pivotal role in the protection of intellectual property rights in an online world, as they are in the best position to either prevent or bring intellectual property infringements to an end. This observation was also reflected in the EU legislation, as Articles 12, 13 and 14 of the E-Commerce Directive, Article 8 of the InfoSoc Directive and Article 9 and 11 of the Enforcement Directive provide for a series of interim measures that allow legal action against Internet intermediaries for alleged copyright infringements by third parties (even if the Internet intermediaries are not liable per se). This chapter will first try to highlight what are the current patterns dictated by the case law of the Court of Justice of the European Union (CJEU) regarding the role of Internet intermediaries in the enforcement of intellectual property rights and then attempt to assess whether these patterns correspond to the legislative motives and purposes behind the respective EU legislation.
Ioannis Revolidis

Digital Evidence

Frontmatter
The Collection of Electronic Evidence in Germany: A Spotlight on Recent Legal Developments and Court Rulings
Abstract
The radical change in telecommunications technologies over the last fifteen years has enabled new techniques to lawfully intercept telecommunications and to gather digital evidence. These include covert remote access to data storages and lawful interception prior to communication encryption by hidden software tools. The specific intrusiveness of these measures, specifically their impact on fundamental rights, have been reflected in the decisions of the German Federal Constitutional Court. In particular, the development of the new fundamental right to integrity and confidentiality of IT systems in the judgment of 27 February 2008 has provided modernized constitutional guarantees, leading to the amendment of the legal framework governing preventive measures. With the judgment of 16 April 2016 on the constitutionality of these new provisions, the Federal Constitutional Court has countered the expansion of investigative powers through laws or their extensive application, developing essential requirements for covert surveillance measures. The German legal system is characterized by a strict and fundamental distinction between preventive measures (such as crime prevention) and investigative measures (such as criminal investigation). The distinction results in different legal competences of (police) authorities and a distinct legal framework following an altered proportionality assessment. As a result, the safeguards, checks and balances for investigative measures need to be at least as high as those for preventive measures, requiring corresponding amendments of the Code of Criminal Procedure. It is therefore surprising to find that the Code of Criminal Procedure (governing investigative measures) has only undergone minor amendments, such as the introduction of § 100i StPO governing the use of International Mobile Subscriber Identity (IMSI) catchers. The use of covert software to intercept telecommunications prior to encryption, conversely, lacks specific rules, albeit the strict requirements laid down for preventive measures in § 20k BKAG a fortiori should apply on investigative measures of the same nature. Only regarding computer-assisted searches, the German Federal Supreme Court has ruled in 2007 that such a measure cannot be based upon the existing legal bases for the lack of adequate safeguards. This lack of modernization of the rules applicable to criminal investigation appears unfortunate, as the measures in question, in the view of the authors, should not be based upon the traditional rules designed for physical wire-tapping of telephone lines. Rather, the specific safeguards laid down in § 20l (2) BKAG, such as the requirement to automatically undo alterations imposed upon the infiltrated system, should be codified for investigative measures, as well as to maintain a comparable level of protection of fundamental rights. However, currently there are no signs that the legislator intends to take any steps to amend the corresponding legal framework for investigative measures.
Nikolaus Forgó, Christian Hawellek, Friederike Knoke, Jonathan Stoklas
LegalAIze: Tackling the Normative Challenges of Artificial Intelligence and Robotics Through the Secondary Rules of Law
Abstract
A considerable number of studies have been devoted over the past years, to stress risks, threats and challenges brought on by the breath-taking advancements of technology in the fields of artificial intelligence (AI), and robotics. The intent of this chapter is to address this set of risks, threats, and challenges, from a threefold legal perspective. First, the focus is on the aim of the law to govern the process of technological innovation, and the different ways or techniques to attain that aim. Second, attention is drawn to matters of legal responsibility, especially in the civilian sector, by taking into account methods of accident control that either cut back on the scale of the activity via, e.g., strict liability rules, or aim to prevent such activities through the precautionary principle. Third, the focus here is on the risk of legislation that may hinder research in AI and robotics. Since there are several applications that can provide services useful to the well-being of humans, the aim should be to prevent this threat of legislators making individuals think twice before using or producing AI and robots. The overall idea is to flesh out specific secondary legal rules that should allow us to understand what kind of primary legal rules we may need. More particularly, the creation of legally de-regulated, or special, zones for AI and robotics appears a smart way to overcome current deadlocks of the law and to further theoretical frameworks with which we should better appreciate the space of potential systems that avoid undesirable behavior.
Ugo Pagallo
In the Shadow of Banking: Oversight of Fintechs and Their Service Companies
Abstract
In the United States, the regulatory authority of government agencies over financial institutions’ third-party service providers varies depending on the type of financial institution. The Federal Depository Insurance Corporation (FDIC), the Board of Governors of the Federal Reserve System (FRB), and the Office of the Comptroller of the Currency (OCC) may extend their authority over service providers to their supervised institutions. Meanwhile, the National Credit Union Administration (NCUA) lacks this authority for credit unions. The federal and state agencies that oversee Money Service Businesses (MSBs) also lack this authority. The regulatory authority over MSBs service providers is particularly interesting because of the rise of virtual currency businesses providing an alternative payment rail outside of traditional institutions, allowing small fintech startups to enter into the payment space. This chapter examines federal and state authority over third-party service providers and justifications thereof. It goes on to examine some of the more unique aspects of fintech entrants to the payment space and how their service providers should be treated along with other MSBs. Ultimately, this chapter recommends that private contract law between MSBs and their service providers be used to mitigate the risks in their relationship. Limited resources and duplicative regulatory costs between federal and state agencies as well as the relatively small size of the industry makes it inefficient to directly supervise third-party service providers. However, this chapter does not reject the possibility of future extensions of government authority as the industry and its potential impact over the financial system grows.
Daniel Bunge
Backmatter
Metadata
Title
New Technology, Big Data and the Law
Editors
Prof. Marcelo Corrales
Prof. Mark Fenwick
Nikolaus Forgó
Copyright Year
2017
Publisher
Springer Singapore
Electronic ISBN
978-981-10-5038-1
Print ISBN
978-981-10-5037-4
DOI
https://doi.org/10.1007/978-981-10-5038-1