On 17 March Hogan Lovells hosted a live webinar where several of our Global TMT thought leaders interviewed a panel of academic experts from our Law and Technology Academic Advisory Council on the key legal and tech trends for 2017, including regulation of artificial intelligence, competition law and big data, global privacy and copyright trends, and the future of broadband privacy regulation. The panel was chaired by Hogan Lovells partner and former Commissioner of the US Federal Trade Commission, Julie Brill.

Richard Diffenthal, a partner in our London Tech Hub, interviewed Karen Yeung, a Professor at King’s College London, who specialises in compliance and law and technology. Karen’s view is that 2017 will see a boom in AI, with the emergence of algorithmic decision-making systems. Karen and Richard discussed the ways in which these powerful decision-making systems can offer companies enormous opportunities to improve their performance by harnessing data streams in order to gain insight on and predict consumer behaviour.

Trey Hanbury, a partner in our Communications Group in Washington DC, interviewed Joshua Gans, Professor of Economics at the University of Toronto and author of The Disruption Dilemma, which examines how companies deal with “disruptive technologies”. Joshua’s view is also that AI and machine learning will be the biggest issue for companies in 2017. Trey and Joshua discussed the opportunities presented by AI and ways in which companies will need to think more deeply about how they can reduce costs by using automation and predictive technology but Joshua also warned of the dangers of wasting time and money before a technology has been proved to be useful.

Chris Mammen, an IPMT partner in our San Francisco office, interviewed Seagull Song, Professor at Loyola Law School in Los Angeles and one of the world’s leading scholars on Chinese IP law. Seagull thinks that M&A trends, particularly in the media and entertainment space, will be a hot topic for China in 2017, including the regulatory challenges for cross-border investment in China and whether there will also be reverse difficulties for Chinese companies investing in the US or EU. Seagull also gave us an insight into the debate in China around the increase in creative content being produced by AI and whether and how that content might be protected by copyright.

Then Falk Schoening, one of our antitrust partners in Brussels, asked Joshua Gans what he thought about growing arguments that aggregating large amounts of data could confer market power and give rise to competition issues. Joshua’s view is that a large data set is not in itself problematic but rather it depends on the quality of the data, how useful it is and how long it will be useful for.

Also on the topic of competition law, Logan Breed, one of our antitrust partners in the Washington DC office, interviewed Phil Weiser, a former high level antitrust enforcement official at the Antitrust Division of the Department of Justice in the U.S., on his perspective. Phil talked about potential issues that might get the regulators’ attention, including consumers getting locked in to services where their data has been captured (and is not easily portable) and switching costs. He also thinks possible pricing co-ordination that might be enabled by the use of algorithms or data sharing will give the regulators cause for concern.

Julie Brill then gave her antitrust enforcement perspective, as a former FTC official. One of Julie’s concerns is that regulators tend to focus on consumer facing companies when they need to think about the other big players in the market that collect and sell data, such as data brokers. She also addressed the common concern that the regulatory process takes too long and doesn’t keep up with technological developments. From her experience, there is a level of accuracy and sophistication which is required and which unfortunately takes time. As a result, regulators need to keep up with market changes.

Michele Farquhar, Head of the Communications Group in Washington DC, Julie Brill and Phil Weiser then discussed the respective roles of the US regulators, the FCC and the FTC, regarding Internet issues and how those roles might evolve under the Trump administration. Julie commented that there has been considerable more focus on the more severe FCC broadband privacy regime recently created by the previous administration as compared to the FTC’s privacy approach, and that this may fall away under the Trump administration.

Phil Weiser addressed the different regulatory approaches that could be used in relation to emerging technologies, including AI, also pointing out that the success of any regulatory regime is dependent in part on the agency, its goals and strategies and how agile it is in influencing the market. Discussion then turned to prospective regulation related to the Internet of Things and connected devices, including how agencies will need to co-ordinate in order to avoid inconsistent rules across sectors.

Finally, Julie ended the session with her thoughts on the big issues in the privacy field for 2017. Julie believes that companies, particularly those in the AI and algorithmic decision-making space, will be focusing on becoming compliant with the new rules under the EU General Data Protection Regulation and the E-Privacy Directive, which come into effect in May 2018. She also addressed cross-border transfers of data to the US and whether the Privacy Shield will be maintained under the Trump administration.  Finally, she ended the session by noting Brexit and how it might impact UK privacy rules.

If you would like to listen to the discussion please click here.

Below are links to some of the articles, speeches and regulatory decisions referred to in the webinar:

DG Comp decision on the acquisition of LinkedIn by Microsoft: http://europa.eu/rapid/press-release_IP-16-4284_en.htm

Speech by Margrethe Vestager on algorithms and competition

On 16 March 2017, the European Commission published a speech by Margrethe Vestager, Competition Commissioner, on algorithms and competition. The Commissioner began by discussing the power of algorithms. For example, there are automated systems that monitor, and even adjust, prices automatically. Automated systems could be used to make price-fixing more effective, which could lead to more effective cartels. Automated systems can also be used to monitor resale price maintenance. The Commissioner stated that competition authorities need to be aware of this and able to respond.

Source: Speech by Margrethe Vestager “Algorithms and competition”, Bundeskartellamt 18th Conference on Competition, Berlin, 16 March 2017.

https://ec.europa.eu/commission/commissioners/2014-2019/vestager/announcements/bundeskartellamt-18th-conference-competition-berlin-16-march-2017_en

Speakers

Phil Weiser
Hatfield Professor of Law and Telecommunications, University of Colorado Boulder

Phil Weiser specializes in telecommunications law, internet law, antitrust law, intellectual property and constitutional law. He recently co-authored the book, ‘Digital Crossroads: American Telecommunications Policy in the Internet Age‘ (MIT Press 2013), with Jon Nuechterlein.

Karen Yeung
Professor, King’s College London

Karen Yeung has established an international reputation in technology and governance models and is Director of the King’s College London ‘Centre for Technology, Law, Ethics & Society (TELOS)’. Her upcoming paper examines algorithmic regulation and her most recent paper is entitled:  Hypernudge: Big Data as a mode of regulation by design.

Seagull Song
Associate Clinical Professor of Law, Loyola Law School, Los Angeles

Seagull Song specializes in US-China intellectual property law and entertainment law. She authored the book, ‘New Challenges of Chinese Copyright Law in the Digital Age-A Comparative Copyright Analysis of ISP Liability, Fair Use and Sports Telecasts‘ (Kluwer Law International 2012)as well as the leading treatise on “Entertainment Law” (The Commercial Press, 2014) in Chinese language.

Joshua Gans
Professor of Strategic Management, Rotman School of Management, University of Toronto

Joshua Gans specializes in understanding the economic drivers of innovation and scientific progress, and has core interests in digital strategy and antitrust policy. His book, ‘The Disruption Dilemma‘ (MIT Press 2016) identifies new ways to understand and manage ‘disruption.

Julie Brill
Partner, Hogan Lovells, Washington Julie Brill co-leads the Hogan Lovells Global Privacy and Cybersecurity Practice Group.

Prior to joining the firm, Julie served as Commissioner of the U.S. Federal Trade Commission (FTC) from 2010 to 2016. While serving as FTC Commissioner, Julie became one of the key U.S. regulators on privacy, cybersecurity, ad tech, native advertising and other cutting edge tech issues.  She was named “the Commission’s most important voice on Internet privacy and data security,” and one of the top government players “leading the data privacy debate”. Julie received National Law Journal’s 2016 Cybersecurity and Data Protection Trailblazer Award and IAPP’s 2015 Privacy Leader of the Year Award, among many other awards.