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Future of Fast-Changing Technologies? U FU How will law, regulation and ethics govern a FUT T future of fast-changing technologies? U R From current controversies over Internet content, privacy and U Black Mirror’ visions of the E RE L future, pervasive fears exist that technology inevitably outpaces law and social control – Future Law responds to these fears by exploring L how law and ethics can foresee and control new technologies that A challenge our societal norms and expectations. A W Bringing together cutting-edge authors from academia, legal practice W and the technology industry, this book explores and leverages the power of human imagination in understanding, critiquing and improving the legal responses to technological change. B u Key Features rk • d ethical h a structures to emergent technologies both now and in the future E rd • Covers crucial current issues such as big data ethics, ubiquitous d it surveillance and the Internet of Things, and disruptive technologies S ed such as autonomous vehicles, DIY genetics and robot agents c • Asks where law might go next and how to regulate new-phase h a b fe automated emotion recognition y Li • r a Instagram – including Disney Princesses and Star Wars – to bring l ia hypothetical examples to life n n d E Lilian Edwards is Chair of Law, Innovation and Society at Newcastle E University. d d w i na FUTURE Burkhard Schafer is Professor of Computational Legal Theory at the a University of Edinburgh, and co-founder and co-director of the Joseph r ds Bell Centre for Legal Reasoning and Forensic Statistics. H ar , Edina Harbinja is Senior Lecturer in Media/Privacy Law at Aston University. b LAW inj EMERGING TECHNOLOGY, a REGULATION AND ETHICS Cover image: © Getty Images Cover design: Stuart Dalziel Edited by Lilian Edwards, Burkhard Schafer and Edina Harbinja Future Law Series Editors Lilian Edwards, Professor of Law, Innovation and Society, Newcastle University Burkhard Schafer, Professor of Computational Legal Theory, University of Edinburgh Edina Harbinja, Senior Lecturer in Media/Privacy Law, Aston University Books in the series are critical and topic-led, reflecting the global jurisdiction of technology and culture interacting with law. Each title responds to cutting-edge debates in the field where technology interacts with culture to challenge the ability of law to react to frequently unprecedented scenarios. Available or forthcoming titles Buying Your Self on the Internet: Wrap Contracts and Personal Genomics Andelka M Phillips Future Law: Emerging Technology, Regulation and Ethics Lilian Edwards, Burkhard Schafer and Edina Harbinja (eds) Technology, Innovation and Access to Justice: Dialogues on the Future of Law Siddharth Peter de Souza and Maximilian Spohr (eds) edinburghuniversitypress.com/series/ful Future Law Emerging Technology, Regulation and Ethics Edited by Lilian Edwards, Burkhard Schafer and Edina Harbinja Edinburgh University Press is one of the leading university presses in the UK. We publish academic books and journals in our selected subject areas across the humanities and social sciences, combining cutting-edge scholarship with high editorial and production values to produce academic works of lasting importance. For more information visit our website: edinburghuniversitypress.com © editorial matter and organisation Lilian Edwards, Burkhard Schafer and Edina Harbinja, 2020 © the chapters their several authors, 2020 Edinburgh University Press Ltd The Tun – Holyrood Road 12 (2f) Jackson’s Entry Edinburgh EH8 8PJ Typeset in 11/13pt Adobe Garamond by Servis Filmsetting Ltd, Stockport, Cheshire, and printed and bound in Great Britain A CIP record for this book is available from the British Library ISBN 978 1 4744 1761 7 (hardback) ISBN 978 1 4744 1763 1 (webready PDF) ISBN 978 1 4744 1764 8 (epub) The right of the contributors to be identified as authors of this work has been asserted in accordance with the Copyright, Designs and Patents Act 1988 Contents List of Contributors vii List of Figures and Tables viii Table of Cases ix Table of Legislation xii 1 The Future’s Already Here: It’s Just Unevenly Edited 1 Lilian Edwards, Burkhard Schafer and Edina Harbinja Part I From Privacy and Princesses, to Security and Star Wars 2 Privacy and Identity through the Eyes of Disney Princesses 13 Paul Bernal 3 White Noise from the White Goods? Privacy by Design for Ambient Domestic Computing 41 Lachlan D Urquhart 4 Citizen-consumers in a Personalised Galaxy: Emotion-influenced Decision Making, a True Path to the Dark Side? 79 Damian Clifford 5 Big Data Ethics: Darth Vader and the Green Cross Man 131 Miranda Mowbray 6 Security Vulnerabilities, Backdoors, Exploits and the Marketplace for Each: The Return of Boba Fett – Bug Bounty Hunter in the New Republic 149 Alana Maurushat and Rob Hamper vi | contents Part II A Matter of (Future) Life and Death 7 Will My Genes Really Help Me Fit Into Those Jeans? Personal Genomics and Wrap Contracts 181 Andelka M Phillips 8 On Living and Undead Wills: ZombAIs, Technology and the Future of Inheritance Law 225 Burkhard Schafer 9 ‘Be Right Back’: What Rights Do We Have over Post-mortem Avatars of Ourselves? 262 Lilian Edwards and Edina Harbinja Part III Regulating Autonomous Technologies: Software Are Doing it for Themselves 10 Autonomous Intelligent Agents and the Roman Law of Slavery 295 Andrew Katz and Michaela MacDonald 11 Autonomous Vehicles: An Analysis of the Regulatory and Legal Landscape 313 Catherine Easton Part IV Textual Poaching: Copyright in a Remixed World 12 Living in a Remixed World: Comparative Analysis of Transformative Uses in Copyright Law 343 Andres Guadamuz 13 Repost This: Instagram and the Art of Re-photography 364 Melissa de Zwart Index 383 Contributors Paul Bernal Senior Lecturer, School of Law, University of East Anglia Damian CliffordPostdoctoral Research Fellow, Australian National Univ- ersity, College of Law; Associate Research Fellow, Information Law and Policy Centre, Institute of Advanced Legal Studies (University of London) Melissa de Zwart Dean of Law, Adelaide Law School, University of Adelaide Catherine Easton Reader in Law, University of Lancaster Lilian Edwards Professor of Law, Innovation and Society, Newcastle Law School, Newcastle University Andres Guadamuz Senior Lecturer in Intellectual Property Law, University of Sussex Rob Hamper PhD Candidate, University of New South Wales Edina Harbinja Senior Lecturer in Media/Privacy Law, Aston Law School, Aston University Andrew Katz Partner, Moorcrofts LLP, UK and Visiting Researcher, University of Skövde, Sweden Michaela MacDonald Lecturer, Queen Mary University, London Alana Maurushat Professor of Cybersecurity and Behaviour, Western Sydney University Miranda Mowbray University of Bristol Andelka M Phillips Senior Lecturer, Te Piringa (Faculty of Law), University of Waikato, and Research Associate, Centre for Health, Law and Emerging Technologies (HeLEX), University of Oxford Burkhard Schafer Professor of Computational Legal Theory, School of Law, University of Edinburgh Lachlan D Urquhart Lecturer in Technology Law, School of Law, University of Edinburgh and Visiting Research Fellow, Horizon Digital Economy Research Institute, School of Computer Science, University of Nottingham Figures and Tables Figures 1.1 Meme Campaigning against EU Copyright Directive 2019 3 6.1 GitHub Listing of Android Rat 163 6.2 Discussion of Andro-RAT Vulnerability on Hackerhound 163 6.3 The New Capabilities of the Exploit Derived from Andro-RAT 164 6.4 Sample Screenshots 164 Tables 3.1 Lawyers 71 3.2 Technicians 71 4.1 The Data Protection Principles 100 4.2 Conditions for Lawful Processing 103 4.3 Conditions Legitimising Profiling 109 Table of Cases UK Anacon v Environmental Research Technology [1994] FSR 659 ...................... 357 Antiquesportfolio.com Plc v Rodney Fitch & Co Ltd [2001] ECDR 5 .............. 269 Baigent and Leigh v The Random House Group Ltd (CA) [2007] EWCA Civ 247 ........................................................................................................... 347 Baker v Bolton (1808) 1 Camp 439, 170 ER 1033 ............................................ 279 Brigid Foley v Elliot [1982] RPC 433 ................................................................ 357 Cadell v Palmer (1833) 1 Cl & F 372 ................................................................ 256 Carlill v Carbolic Smokeball Co [1893] 1 QB 256 ............................................. 295 Designer Guild Ltd v Russell Williams (Textiles) Ltd [2001] FSR 113 .......... 354–5 Duke of Norfolk (1682) 3 Ch Cas 1, 22 Eng Rep 931 ....................................... 256 Express Newspapers Plc v News (UK) Ltd [1991] FSR 36 ................................. 269 Exxon Corp v Exxon Insurance Consultants International Ltd [1982] Ch 119 ........................................................................................................... 269 Fairstar Heavy Transport NV v Adkins [2012] EWHC (TCC) 2952 ................. 268 Francis Day & Hunter v Bron [1963] Ch 587 ................................................... 346 Interlego AG v Tyco Industries Inc & Ors (Hong Kong) [1988] 3 All ER 949, [1989] AC 217, [1988] UKPC 3 .......................................... 269, 348–9, 350 Jules Rimet Cup Ltd v Football Association Ltd [2008] FSR 10 ........................ 347 King Features Syndicate v Kleeman [1941] AC 417 ....................................... 356–7 LucasFilm Ltd & Ors v Ainsworth & Anor [2011] UKSC 39 ............................ 349 McCaig v University of Glasgow [1907] SC 231 ...............................................
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