Two words – ‘technology’ and ‘lawyer’ – both of which have a common set of misconceptions attached to them. Many people tend to write themselves off as ‘not being a techie’ and others will be intimidated by preconceived ideas about what it means to be a lawyer. In reality, being a technology lawyer is probably not much like the way most people imagine it being in theory.
What is a technology lawyer?
A technology lawyer has a deep understanding of legal and technological concepts and, perhaps more importantly, the ability to connect both fields. A company’s Chief Technology Officer will understand the tech behind the digital solution but not the law. Lawyers understand the contract but often struggle with the technology aspect. A tech lawyer will understand both the tech and the contract and will be able to bring clarity to clients by advising on what their rights are and what risks are involved.
Tech lawyers are the bridge between legal, tech and commercial
Some technology lawyers may specialise in just a few areas of technology but a well-rounded technology lawyer will need a good understanding and experience of different types of technology. The last 20 years have brought about tremendous growth in technology and consequent change – be it the arrival of artificial intelligence and machine learning, deep fakes, blockchain, Fintech, smart phones or 5G.
Technology lawyers have had to learn, adapt and grow along with these changes. As technologies continue to evolve and new technologies are invented, we must be educated about their social and commercial implications so we can translate their meaning for our clients. It means keeping up to date with new technology and, most importantly, assessing the risks associated with the use of new technology solutions and ensuing new business models.
As an example, a technology lawyer may have started out as a telecoms lawyer working in the analogue world of voice telephony and ADSL and then on to mobile telephony. The conversion to digital would have brought experience with IP networks and the understanding of hardware. Networks would bring experience in software licensing. This process then evolved to managed services and outsourcing, when IT and telephony systems became too large or complex to manage internally. Nowadays, enterprise services hosted via the cloud have become the norm. These are all huge shifts in the way we do business and mean constant evolution for technology lawyers wanting to keep up to speed.
Being a technology lawyer means being able to learn and adapt rapidly
The current new phase of learning is around autonomous systems, intelligent agents and 5G and the proliferation of new business models that will explode onto the scene as a result of the convergence of these emerging technologies. And most importantly, how will all this change in technology, new business models and disruption of the status quo impact on the privacy and rights of individuals when their personal data is collected and processed?
This includes everything from software licensing agreements, hosting agreements, telecoms contracts and compliance through to data protection and intellectual property rights. As technology lawyers our role is to ensure that solutions are compliant from a legal and regulatory perspective but also to understand that the law is often slow to catch up with advancements in technology.
One effect of this is that governments and regulators tend to introduce new laws which only regulate the use of new technology, as opposed to the technology itself. This approach often creates a vacuum in the legal and regulatory framework which, of course, can create dangerous commercial uncertainty for your clients. That is why tech lawyers not only require deep technical knowledge but also an ability to be comfortable with innovative topics, such as robotics, the Internet of Things, distributed ledgers and artificial intelligence.
How can you specialise in technology law?
A lawyer specialises in technology law by building a profound understanding of the digital world - of its benefits as well as its risks. Technology law covers transactional and advisory work, usually for tech companies or companies looking into digital solutions. Most technology lawyers work in tech companies or in specialist teams in law firms and, although rare, there are also large corporates who have specialist technology legal teams.
From a personal perspective, there is no better place to learn about technology than working in a tech company. As a lawyer, you will already have a good grounding in the law but working in a tech company will hone other skills. You will learn how to work with engineers and software developers who speak another language. They design networks, develop software and work in code or with network diagrams. As a tech lawyer, you will have to work with them to turn diagrams into service descriptions, understand how the solution works to be able to document what obligations the company can commit to as well as the risks and how they should be mitigated.
You will also get a good grounding in the commercial issues. Solutions that are 100% can be built but implementing a solution that is 100% could be so cost prohibitive that no customer will buy it, so there has to be a balance between what is palatable to the customer from a price perspective whilst ensuring that it can be delivered.
As example of what we do on a day to day basis, we might be advising a client who runs a data centre. If you, as the client, would like your data centre to be running 24x7x365, you could have two data centres running simultaneously so there is no disruption to service in the event of one data centre going down. Think of the infrastructure and resource costs of running both all the time. Alternatively, you could have one data centre with two leased lines (one primary, one back-up) from one telephone exchange. But if both lines are routed through the same duct, damage to the duct will bring both lines down and the same will happen if the exchange goes down. A less risky option would be to have the primary and secondary lines routed to two different exchanges or to double-double, two lines to two exchanges.
In another example, we recently advised a company which was moving into cloud services. They had started off with a solution that was meant to improve internal efficiency that they then realised they could commercialise. The platform was made up of internally developed code and third-party applications. What the company didn’t do was assess the platform end-to-end and top-to-bottom. Each third-party supplier contract was entered into independently with no risk analysis done on viability of the supplier, how critical their application was, whether there was an alternative supplier in the event the first one failed and what contingency plans were in place in the event of failure. There was also no flow-through of terms to the customer contracts or flow up of risk to their suppliers. Lastly, they were so keen to sign up existing customers that they were intent on offering the service for free, having not agreed what the commercial model would look like or what usage metrics to use to gain revenue which was especially concerning when they still had suppliers to pay for use of the third party apps.
What we were asked to do was to draft the template terms and conditions for a cloud service but in actual fact what we ended up doing was a complete risk analysis of all supplier agreements and existing customer terms. We also advised on what terms needed renegotiating and advised on the different considerations when looking at the commercial and support models including time limiting free access. Finally, after all that, we were then able to draft the terms and conditions.
Practice what you Preach
As technology lawyers we not only advise others on the legal implications of the technology they devise or use but we also make a point of harnessing the benefits of technology in-house within our own day to day practice. This helps us to learn ‘hands on’ how to use new tools ourselves in our own lives but also to save money and time by making our working practices more efficient.
The future for technology lawyers is bright
Technology law is a growing field. And using agile methods of working has become ever more useful, if not essential, as we cope with the challenges of remote working during the current pandemic. Being aware of the legal risks and data privacy issues surrounding working from home is also a new challenge for many, if already familiar to us as a fully-fledged digital law firm.
All businesses today use multiple forms of technology, even if they are not technology companies. And the proliferation of new technologies which are being combined in unique ways is changing our perceptions of what a company actually is – what about a world in which a company is a decentralised autonomous organisation (DAO) run by so-called smart contracts running on a network of machines? Or think of attending a music concert hosted by a virtual reality platform in which you can purchase a digital skin or digital designer dress to make yourself look more attractive in an online world, while using cryptocurrency as the payment mechanism.
Some of these technologies are still at the early stage, but they are already being tried in the real-world and throwing up new liabilities and legal or regulatory concerns. Our role is to anticipate these changes and try to navigate a way through them, working closely with technical teams from an early stage all the way through the process.
The excitement of technology law is that it constantly throws up these new ideas, innovations and challenges to our conventional ways of thinking. Perhaps the best part of being a technology lawyer is being the one to bring clarity and assurances to those entrepreneurial thinkers who are building this exciting but uncertain new future and providing accessible explanations for those non-technical business minds that want to harness its commercial benefits.
Becoming a technology lawyer can be a point of differentiation for new lawyers looking to make their mark in the industry. There may be a misconception that you need to know how to code or be a technical whizz-kid to become a technology lawyer. In practice, while you need access to people who can explain the technology to you in an accessible way you don’t necessarily need to learn to code or be a direct user of the technology to provide good strategic legal advice. And, while many traditional roles such as legal secretaries might be replaced by technology in the future, new and emerging technologies also throw up a host of legal problems and questions which will make access to high-quality advice from technology lawyers more essential than ever before.
Tina Fernandez is Managing Partner at Orbital Law, a firm of solicitors specialising in all areas of IT and technology contracting, across multiple industries.