Lawyers should think about data ethics

Lawyers are well aware of what ‘ethics’ means for the profession generally, having had the tenets of ethical practice drilled into them in their training. But they may be less aware of developments relating to ‘data ethics’, which stem from the need to protect the fundamental rights to privacy and data protection, and a recognition of the transformative and wider impacts which data has on society.

In addition to being a partner at BPE Solicitors, I am, and have been, a non-executive director of the Open Data Institute (ODI) since it was founded by Sir Tim Berners-Lee and Sir Nigel Shadbolt in 2012 to work with business and governments to build an open, trustworthy data ecosystem. Since its inception, the ODI has become a leading authority on data ethics and innovation, defining data ethics as ‘a branch of ethics that evaluates data practices with the potential to both create trustworthy and positive impacts, and also adversely impact on people and society – in all branches of data collection, sharing and use’.

As technologies such as 5G, quantum computers and the Internet of Things turbocharge big data analytics at an exponential rate, so the gap has increased between the utility and risks of harvesting and analysing such data. This has created an ever bigger need for the legal profession to ensure that responsible data practices are upheld.

Data analytics may be able to assist in the advancement of cancer treatment, yet may, simultaneously, disproportionately misdiagnose patients with darker skin. Technologies are only as strong as the individuals and organisations feeding into them. Thus, it is fundamental that society acts appropriately from the outset, as we press on into the Fourth Industrial Revolution. Thus, appropriate data assurance frameworks should be created and ethics committees established to monitor data use in organisations which use data on a large scale.

Regulators and lawyers often play cat and mouse with the tech industry, struggling to adapt and apply the law to technological developments. As such, lawyers on the ‘front line’ have an integral early role to play in shaping responsible data practices ahead of legislation, which can only ever be reactive. Only in this way can the trust and confidence of consumers be gained and maintained. When creating such data practices, relevant considerations for lawyers include:

• societal and environmental wellbeing, which lawyers can help to enable, and which data has the potential to transform eg, through Net Zero big data initiatives;
• diversity, non-discrimination and fairness, where lawyers will need to ensure mechanisms are in place to prevent biases, address issues with incomplete data or bad governance models;
• transparency, where clarity needs to be provided on how data is used to inform decisions that have an impact on society;
• privacy and data governance frameworks, incorporating data protection elements to ensure best practices are upheld including data anonymisation where necessary and appropriate anonymisation techniques have been implemented;
• technical robustness and safety, which lawyers can facilitate by integrating security-by-design mechanisms to ensure data is verifiably safe at every stage of a big data initiative; and
• accountability, which lawyers play an integral role in, by critiquing and asking the tough questions of their clients.

As individuals rush to push the ‘accept’ button at the foot of a 50-page agreement, fuelled by the anticipation of being able to try out the latest technologies, legal professionals should focus not just on consent but also on trust, a prerequisite to being able to establish and maintain appropriate data ethics. Ultimately, the reason the individual has rushed to click accept, is because the individual is trusting that any data shared is worthy of the new technology. Such trust is a foundational building block of any goodwill in a business, which will be key to its long term success. Lawyers must always be mindful of these considerations and those of another SRA tenet: that they are acting in their client’s best interests.

It is expected that the regulatory landscape relating to data will change substantially in the coming years. The UK government’s divergences from the EU with regards to data will be of particular interest, although it remains to be seen whether doomsayers’ predictions are correct that the UK will cut corners in a race to the bottom.

Lawyers may be minded to participate in relevant government consultations to provide perspectives from the ‘front line’, which will be vital in informing any future legislation. In this way, legal professionals can stay ahead of any regulatory developments, while continuing to build consumer trust and confidence.

Lawyers should seriously consider obtaining additional training on the technical and practical aspects of their advice. Only in this way can they be assured of understanding data science principles and analytics software sufficiently to advise adequately on data ethics risks. The ODI’s weekly digest on all things data, is a good starting point to enable lawyers to keep updated on the ever-changing and transformative world of data.

There has never been a more dynamic period of growth and change for data science lawyers. The input of specialist lawyers is fundamental to shaping data ethics. The considerations outlined here should help to identify a strategy to promote future positive data ethics practices.

Rob Bryan is a partner in BPE Solicitors LLP and a non-executive director of the Open Data Institute