The following opening paragraphs could be from any contemporary data privacy journal:
“The creation of advanced computer technology has resulted in jurists having to face a range of new and awkward problems. Through interlinking, copying and other automated data processing, modern technology has made it possible to, collect, compare, and combine enormous amounts of data about every person. Also data that in and of itself is not secret can, through its currency, quantity and internal correlation place the individual under the magnifying glass and expose much of his private life …”
What makes the quote unique, though, is that it was written back in 1978, well before the internet started impacting culture and commerce, by Professor Michael Bogdan of Lund University, and published in the Swedish law journal “Svensk Juristtidning”.
The article addresses the world’s first national data privacy law, that of Sweden, elaborating private international law issues stemming from the complexities surrounding dataflykt (‘data drain’ or ‘data flight’).
Since 1978 technological advancements in the field of data processing have been breathtaking, creating challenges that were previously contemplated only by sci-fi novelists. The legal discourse, however, has not managed to keep pace. The relevance of the article referred to above highlights, before anything, that the law will never manage to keep up with the pace of technological developments. How far behind, however, should we accept it to be?
In the end, perhaps, it would be more meaningful if we distinguished between “legal thinking and knowledge” on the one hand, and “legal principles” on the other. Professor Bogdan’s 1978 article shows that academic commentary on the relevant legal issues was already then at an advanced stage. Looking, however at modern technological applications such as facial recognition, or Internet of Things, it is striking in how much detail the legal issues arising therefrom are analyzed by the academia and the international legal community. By realizing this, we may arguably assume that legal thinking and knowledge, as such, is not necessarily always the tortoise while technology is the hare disappearing into the horizon.
The question here, as posed by Dr Christopher Kuner, Editor-in-Chief of the Journal International Data Privacy Law, in an editorial note he published back in 2014, is how we can speed up this conversion of legal thinking and knowledge into appropriate legal principles and rules. This key challenge remains to be addressed.