What Technology Regulation is about
Technological advancement is accelerating at record speed. And although legal regulations may initially appear to be pointless barriers, history has shown that regulation is in fact essential to enabling new technological breakthroughs. Whenever humankind has entered into a new domain, whether at sea, air or even outer space, legal rules have quickly developed ensuring the safe operation of these new technologies.
At the beginning of this century's "20s" the connection between technology and regulation became more pronounced than ever. To get digitalisation projects done successfully, legalities must be considered from inception. And more importantly, the comprehensive technologisation of our daily lives raises fundamental ethical concerns that must be considered with legal regulations. There are countless debates on, for example, ethical guidelines for AI, protection of citizens from unfair algorithms, transparency in the ad tech business, outer space law & waste management, cybersecurity etc., all of which show that legal discussions must take the role of technology into account. And tech must take legal and regulatory frameworks into account. Legal concepts have the power to stimulate technological changes and advancement. But: while "the law" often has the reputation of being boring it is actually a living, flexible system which needs to adapt frequently. Significant changes in technology sometimes lead to a significant disruption of the regulatory framework.
This is where our specialisation starts: Technology lawyers try to understand technological innovation and take a glimpse behind pure legal constraints. They must find the right balance between the call for new regulations and the application of old provisions. Frequently, the provisions in place turn out to be more flexible than expected. However, it is part of a tech-lawyer's job to be on track with new and upcoming changes in the law. Thus, we "turn and face the strange".
An arbitrary selection of recent developments
Some practical samples may provide an update on recent developments but may also provide insight into our playground:
- 5G - The development of the 5G ecosystem has involved rapid regulatory development. From a regulatory perspective 5G is the core strategy task of the Body of European Regulators for Electronic Communications (BEREC). BEREC has inter alia published a set of documents (i) the so-called "5G Radar" and (ii) accompanying draft guide to the 5G Radar. The aim is to assist in monitoring the regulatory aspects icw the 5G ecosystem in order to anticipate what regulatory changes might be needed to keep pace with the technical developments.
- DSA – In 2020, the European Commission announced the Digital Services Act (DSA) and a New Competition Tool (NCT) which address important regulatory issues to be considered when regulating digital platforms (DPs). The aim is to modernise the current legal framework for digital services since the current framework for digital services has been unchanged since the adoption of the e-Commerce Directive in the year 2000. The challenges are to find a regulatory approach to ensure a balance between flexibility, predictability and proportionality, given the increasing importance of DPs and their role in the economy and society at large, both now and in the years to come. The NCT addresses gaps in the current EU rules identified on the basis of the Commission’s experience with enforcing the EU competition rules in digital and other markets as well as the worldwide reflection process about the need for changes to the current competition rules to allow for enforcement action preserving the competitiveness of markets.
- DataStrategy - The European strategy for data aims at creating a single market for data that will ensure Europe's global competitiveness and data sovereignty. In other words, it addresses the need for data as a "public good". The aim is to create a single European data space and thus make it easier for businesses and public authorities to access high-quality data to boost growth and create value. Moreover, it should position the EU and "enable the EU to become the most attractive, most secure and most dynamic data-agile economy in the world". A common European data space shall be developed in strategic economic sectors and domains of public interest, such as the common European health data space. Access to data is also a prerequisite to ensuring the further development of Artificial Intelligence solutions in Europe.
- AI – The European Commission's White Paper on Artificial Intelligence aims at – as the title of the paper states – "a European approach to excellence and trust". It sets out policy options to promote the uptake of Artificial Intelligence and to address "the risks associated with certain uses of this new technology". To achieve those goals, the White Paper suggests a set of actions to foster the development and the adoption of AI and a new regulatory framework that would address concerns specific to AI that the current framework may not address. It stresses a "European approach to AI", grounded in EU values and fundamental rights and the consideration given to the need for compliance with the European data protection legislation – a balancing act to be continued…
- Autonomous Driving - Member States, industry and the European Commission are still collaborating to achieve the vision for connected and automated mobility. However, taking public authorities, citizens, cities and industry interests into consideration, slows down the process. Given the need to coordinate a holistic approach to regulations regarding digital technology, cybersecurity, liability, data use, privacy and radio spectrum/connectivity etc., it will still take some time to achieve those ambitious goals. Nonetheless, those fields of law are of increasing relevance to the transport sector and need to be tackled at a European level in order to ensure that a vehicle may remain connected when crossing borders.