Exploring the intersection of IT and the law

In the 30 years since the founding of the NSW Society for Computers and the Law, the technology landscape has undergone dramatic changes: Near ubiquitous use of computers, the central role of the Internet in many people's professional and personal lives and the growth of mobile computing.

Anne Petterd, the society's president and a solicitor at Baker & McKenzie, says that when the society was founded in November 1982, the organisation had two key objectives. Firstly, to examine what was then an emerging area of law: The legal implications of IT and issues such as the then novel field of cyber crime. "There seemed to be a lot of black holes about, well, 'We have this new technology but our current laws, particularly criminal laws, didn't seem to quite apply,'" Petterd says.

Secondly, the society helped lawyers understand the practical changes that computers and related technology could have on their practice. "They were at great pains in the first few issues of the journal to point out that it was typed up in Microsoft Word and laid out using a product called Ready, Set, Go! on an Apple Macintosh," Petterd says.

"In the early journal articles and early seminars there was much discussion about the use of computerisation in trust accounting which was a big thing for lawyers at the time and great concern ... about how this would regulated and concern about verifying data and putting proper data backups in place. Then there was also great excitement that there would be computerised precedents for legal documents that would make lawyers lives much easier."

As the use of computers in the workplace became ubiquitous, focus shifted away from this to the legal implications of new technology. "In the last probably 20 years of the society there have been fewer seminars and fewer articles published on the technology aspects for lawyers," Petterd says. "There were a few in the '90s about the use of this thing called the internet by law firms, but, particularly in the last 10 years or so, it hasn't been so much an issue."

Instead, the focus has been on issues such as the evolution of computer-related crime. In the 1980s, lawyers were faced with problems like explaining the use of computer evidence to a jury, members of which may well have had no experience using a PC, and data theft. "How the [then] current laws on theft, for example, deal with theft of data from a computer because the data is still there but someone's taken it," Petterd says.

"The laws in the 1980s didn't really cope with hijacking a computer and making use of a computer. There was some discussion of maybe that would be a theft of electricity; that was how they were trying to fit it into current laws."

Cyber crime is still an issue, but now lawyers, both commercial and criminal, also have to deal with entirely new areas of technology, such as cloud computing, with cloud services frequently crossing borders.

"My perception is that when people are dealing with cloud computing services and entering into a contract for cloud computing services, by and large the service provider and the customer seem to be developing a usual way of contracting and sort out their issues," Petterd says.

"So from a private law, commercial arrangements perspective, I think the services and the law, in terms of contract law, are working themselves out."

However, when it comes to the regulatory side, she says, "I think the government is still struggling to understand the legal implications; whether it might be someone concerned that if there is a server hosted in the US, there might be concerns that the US government might be able to access it under the Patriot Act.

"There are still a lot of misconceptions held by people about how the Patriot Act operates and what it means. Also in terms of, if the data is hosted in the cloud, then who's controlling that, who has access to it and what regulatory framework should be placed around that. In that sense it still concerns people and I think mainly because there's still not a huge level of understanding about how the technology works."

When it comes to enterprise IT and the law, in Petterd's experience there is still a mixed level of understanding when it comes to the possible legal implications of technology. "My experience is that it depends to a great extent on the level of technology that the customer uses in their day-to-day business," she says.

"So if you take a financial institution, they are used to dealing with the technology and have done so for a long time as part of how they operate. Whereas [in] other organisations that aren't so heavily dependent on technology in how they deliver their own products and services to their own customers, I find that their procurement decisions are more driven by their procurement department, and there are differing levels of understanding by the procurement people about what the technology does and its implications."

The is holding a cocktail party on Monday, 8 October, 6-9pm, to celebrate its 30th anniversary. It will be held at Clayton Utz, L15, 1 Bligh Street, Sydney, and will be addressed by the Hon. Michael Kirby AC.