Digital Information Law - Meaning, Challenge, and Future
| Author | Professor G A Walker |
| Pages | 127-193 |
Digital Information Law – Meaning, Challenge,
and Future
P
ROFESSOR
G A W
ALKER
*
Introduction
Mankind has evolved substantially, especially in recent decades with the
construction of new digital
1
societies, as well as information,
2
data,
3
and
1. Digital is a complex, combination, or contestable term. On the meaning of digital, see,
e.g., Karl D¨orner & David Edelman, What “Digital” Really Means, M
C
K
INSEY
& C
O
. (July
2015), https://www.mckinsey.com/industries/technology-media-and-telecommunications/our-
insights/what-digital-really-means. Digital can be used in different ways and for the purposes
of this paper can be understood to refer, inter alia, to the use of binary counting systems, more
complex computer coding, other use applications, possible digital advantage, and digital impact
or effect. These can be summarised in terms of expression, equation, employment, expediency,
and effect. See also Data in the Computer, URI, https://homepage.cs.uri.edu/faculty/wolfe/book/
Readings/Reading02.htm (last visited Jan. 8, 2020). Binary counting (using 0 and 1) was
originally used by Gottfried Von Leibniz in Explication de l’Arithmetique Binaire in 1703. See
generally G
OTTFRIED
V
ON
L
EIBNIZ
, E
XPLICAITION DE L
’A
RITHMETIQUE
B
INAIRE
[E
XPLANATION OF
B
INARY
A
RITHMETIC
] (1703). Binary counting was later developed by the
English mathematician George Boole and later by the American mathematician Claude
Shannon. See generally G
EORGE
B
OOLE
, A
N
I
NVESTIGATION OF THE
L
AWS OF
T
HOUGHT ON
W
HICH
A
RE
F
OUNDED THE
M
ATHEMATICAL
T
HEORIES OF
L
OGIC AND
P
ROBABILITIES
(Cambridge University Press 1958) (1854); Claude Shannon, A Mathematical Theory of
Communication, 27 B
ELL
S
YS
. T
ECHNICAL
J. 379, 379 – 423 (1948). Computers generally use
bits (0 or 1), nibbles (4 bits), bytes (8 bits), and octets (16 bits) as counting systems and
hexadecimal (16-digit based) coding. See Data in the Computer, supra. Decimal systems may
then be constructed for various numeric and machine purposes and in different uses and
applications. Id. A number of advantages can also be understood specifically in terms of ease of
copying or reproduction, amplification, storage, transmission, and scaling and associated cost,
speed, and efficiency benefits. See generally id. The term digital can also be used more generally
to refer to the economic or social impact (or effect) of such digital systems and applications. See
Joseph Kennedy, Big Data’s Economic Impact, C
OMMITTEE FOR
E
CONOMIC
D
EVELOPMENT
,
https://www.ced.org/blog/entry/big-datas-economic-impact (last visited Jan. 8, 2020). These
meanings are then connected and polysemous rather than disconnected or homonymous. The
term digital may also be considered to constitute an essential contestable concept in social
science study. See Walter Bryce Gallie, Essentially Contestable Concepts, 56 P
ROCEEDINGS OF THE
A
RISTOTELIAN
S
OCIETY
167, 167 – 198 (1956). While its use is generally more technical than
evaluative, digital can still be used to include a value or judgment element. Id. On
contestability, see infra notes 26 – 28 and accompanying text.
2. For purposes of this paper, information is defined as any statement or point of fact,
opinion, or law. On the meaning of information, see infra Section I. The “information
economy” refers to a market system based on information products and services.
3. For purposes of this paper, data is defined as information collected or processed within
specific limits, guidelines, parameters, constraints, or conditions. See infra Section I. The so-
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128 THE INTERNATIONAL LAWYER [VOL. 53, NO. 2
knowledge
4
economies across the world. People have entered a new era of
mass information collection, processing, and dissemination, including
through new social communication and exchange. Modern markets,
government systems, and wider communities and societies are essentially
information- and information-exchange-based. Information has become an
increasingly valuable and essential feature within modern economies.
5
A
number of significant difficulties and uncertainties nevertheless arise in
terms of understanding and managing this in legal and regulatory terms.
Financial markets have undergone substantial change and development in
recent years. Much of this has been driven by new digital and technological
innovation. We are possibly at the beginning of a new financial landscape
and a new financial world. Unfortunately, more traditional legal
examination and analysis have not evolved with these other markets,
technological advances, and changes. It is time for a parallel revolution in
legal language, approach, and analysis.
Financial markets have most recently been disrupted by the sudden
explosion and growth in new Information Technology (InfoTech),
6
Data
Technology (DataTech),
7
Financial Technology (FinTech),
8
and Regulatory
called data economy has not been separately defined formally, although it can be understood to
refer to the management of processed data in personal, commercial, financial, and government
systems. For a discussion on the meaning of data, see infra Section 3. The Data Economy is
associated with the rise in modern electronic data management systems and more recently with
Big Data analytics and the Internet of Things (IoT). See, e.g., A
LBERT
O
PHER ET AL
., T
HE
R
ISE
OF THE
D
ATA
E
CONOMY
: D
RIVING
V
ALUE
T
HROUGH
I
NTERNET OF
T
HINGS
D
ATA
M
ONETISATION
2 (2016), https://www.ibm.com/downloads/cas/4JROLDQ7. The European
Commission has included the construction of a data economy as part of its larger European
Digital Single Market strategy. Building a European Data Economy, at 2, COM (2017) 9 final
(Jan. 10, 2017); Commission Staff Working Document on the Free Flow of Data and Emerging Issues
of the European Data Economy, at 5, COM (2017) 2 final (Oct. 1, 2017).
4. Knowledge is defined for the purposes of this paper as referring to understanding,
appreciation, or awareness. See infra Section I. The knowledge economy is concerned with the
use of knowledge or human capital to generate additional economic value. As an example, the
term was used by Peter Drucker in T
HE
A
GE OF
D
ISCONTINUITY
(Transaction Publishers, 9th
ed., 2011) (1969).
5. See C
ARL
S
HAPIRO
& H
AL
R. V
ARIAN
, I
NFORMATION
R
ULES
6 (1998).
6. See Margaret Rouse, Information Technology (IT), S
EARCH
D
ATA
C
TR
., https://
searchdatacenter.techtarget.com/definition/IT (last visited Jan. 8, 2020). Information
technology can be understood to refer to any device or process involving the transmission,
storage, or management of any information source. Id. While InfoTech would include any
form of historical communication, this has become of even more significance in recent decades
with the expansion of telecommunications and mobile telephony and with the massive
expansion in social media platforms in recent years. Id. For discussion on technological
development, see infra Section II.
7. The term DataTech is used in this paper to refer to any new technology involving the
collection, analysis, storage, retrieval, or transmission of processed data. Data refers to
information collected and processed within pre-determined and specific limits, guidelines, or
parameters. For more discussion on the meaning of information, knowledge, and data, see infra
Section III.
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2020] DIGITAL INFORMATION LAW 129
Technology (RegTech) markets and devices.
9
Reference may also be made to
the use of technology in the provision of government services (GovTech)
and in legal services (LawTech). All of this has developed against a
background of digitalisation, personalisation, socialisation, and
democratization and the globalisation and virtualisation of the Internet and
society. This has been supported by substantial developments in computing,
telephony and mobile telephony, the Internet, and social media with
InfoTech, DataTech, and most recently FinTech.
10
This is expected to result in major disruption to many traditional financial
sectors, business practices, and models.
11
Incumbent institutions are having
to deal with high maintenance or replacement costs of legacy systems and
processes while new start-up entities and platforms are bringing in
innovative new structures and programmes. All of this has created
significant new challenges with regard to legal response and reform.
Many of these new areas of innovation are based on digital data and large
volumes of aggregate or Big Data.
12
Data collection has grown massively in
recent years and is expected to grow further, especially with the construction
of the Internet of Things (IoT).
13
It is understood that a 175 zettabyte world
will be created by 2025.
14
Scientific and media attention has recently
8. See generally George Walker, Financial Technology Law – A New Beginning and a New Future,
50 I
NT
’
L
L
AW
. 137 (2017).
9. InfoTech, DataTech, and FinTech constitute forms of syllabic abbreviation used or
developed for the purpose of this paper. See generally Walker, supra note 8. See also George
Walker, Regulatory Technology (RegTech) – Construction of a New Regulatory Policy and Model,36
B
ANKING
& F
IN
. L. R
EV
. (forthcoming Dec. 2020) [hereinafter Walker on RegTech]; George
Walker, BigTech, StableTech and Libra Coin – New Dawn, New Challenges, New Solutions, 35
B
ANKING
& F
INANCE
L
AW
R
EVIEW
(forthcoming July 2020).
10. See Justine Cassell, By 2030, This Is What Computers Will Be Able To Do, W
ORLD
E
CONOMIC
F
ORUM
(Dec. 5, 2016), https://www.weforum.org/agenda/2016/12/by-2030-this-is-
what-computers-will-do/.
11. See Walker, supra note 8.
12. On aggregate or Big Data, see infra Section IV.D.
13. See Bernard Marr, How Much Data Do We Create Every Day? The Mind-Blowing Stats
Everyone Should Read, F
ORBES
(May 21, 2018), https://www.forbes.com/sites/bernardmarr/
2018/05/21/how-much-data-do-we-create-every-day-the-mind-blowing-stats-everyone-
should-read/#c241b1f60ba9.
14. See Andrew Cave, What Will We Do When The World’s Data Hits 163 Zettabytes in 2025?,
F
ORBES
(Apr. 13, 2017), https://www.forbes.com/sites/andrewcave/2017/04/13/what-will-we-
do-when-the-worlds-data-hits-163-zettabytes-in-2025/#3ee9f672349a.
The Global
Datasphere increased from 2.8 zettabytes (a trillion gigabytes) in 2012 to twenty-five zettabytes
in 2017 and thirty-three zettabytes in 2018. See generally John Burn-Murdoch, Study: Less Than
1% of the World’s Data is Analysed, Over 80% is Unprotected, T
HE
G
UARDIAN
(Dec. 19, 2012),
https://www.theguardian.com/news/datablog/2012/dec/19/big-data-study-digital-universe-
global-volume. It was estimated to grow to 175 zettabytes by 2015. See generally Charles
Arthur, What’s a Zettabyte? By 2015, the Internet Will Know, Says Cisco, T
HE
G
UARDIAN
(June 29,
2011), https://www.theguardian.com/technology/blog/2011/jun/29/zettabyte-data-internet-
cisco. Sixty percent of the world’s data is estimated to be generated by businesses in relation to
life critical applications, embedded systems, and the Internet of Things (IoT). See Cave, supra.
People will connect and interact with connected devices 4,900 times per day and every 18
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