Stream Leads: Janet Chan and Danielle Hynes

Digital technology has brought about irreversible transformations in the way societies and organisations operate. One fundamental manifestation of this transformation is the digitalisation of information so that “data” has now become a valuable resource. With advances in computer technology that facilitate the collection, storage, processing, analysis and dissemination of data on a massive scale come the age of “Big Data” and the introduction of artificial intelligence (AI) for decision making. This research stream aims to investigate the consequences of these data-driven technological developments on the delivery of justice and identify ways of maximising positive and minimising negative consequences. For this research, “data technology” encompasses hardware, software and infrastructural developments that support the collection and use of all forms of digitalised information in different settings, while “justice” is broadly defined to include its substantive, procedural and distributive dimensions. Examples of technological developments that are relevant for this research stream include: use of data technology for committing crime or misconduct; for detecting, predicting, or preventing crime or recidivism; for automating legal decision making; for profiling suspects and anomalous behaviours; for disease prevention, and the development of health and welfare policies. Research under this stream may focus on (but is not restricted to) one or more of the following broad research questions:

• What are the potential risks or threats to justice underlying specific data technologies?

• Who would be most adversely affected by and who would benefit most from the use of these technologies?

• What existing or new methods can be effective in minimising negative consequences of these technologies?

Stream Leader: Ross Buckley

Technology creates incredible potential for the development of finance, including (i) disintermediation of traditional methods of delivery of financial services, (ii) lower barriers to entry, (iii) more efficient and affordable financial services, and (iv) delocalisation of financial products. Innovation in financial services is occurring at an increasing pace, and regulators are struggling to keep up.

Technological boom in finance creates both opportunities (eg financial inclusion in developing countries with large numbers of unbanked people and automation of routine processes, such as fraud detection and prevention) and challenges (eg absence of legal certainty as to how new developments fit within the existing regulatory framework, lack of understanding of the new technologies by consumers promoting uninformed decision-making, increased cybercrime risks, anonymity of transactions and resulting money laundering implications).

The FinTech Stream seeks to explore the impact of technological disruption on financial markets in Australia and across the globe, by analysing existing challenges, creating a discussion platform to exchange ideas among various stakeholders, and developing workable solutions. The research will examine the legal implications of a variety of technology-driven developments in finance, including (but not limited to):

  • Existing practices and regulation of Initial Coin Offerings (ICOs) – a financing model at the intersection of blockchain and crowdfunding;
  • Application of RegTech (ie use of technology for regulatory monitoring, reporting and compliance) in finance;
  • Evolution of decentralised virtual currencies and emergence of government or central bank backed cryptocurrencies;
  • Funds and financial technology;
  • Emergence of data-driven finance models;
  • Use of artificial intelligence and algorithmic decision-making models in finance.

Stream Leaders Katharine Kemp and Rob Nicholls
 

As data regarding transactions increasingly has value which is comparable to the transaction value, personal data has the potential to form the basis of market power. This is a particularly challenging issue where two-sided or multi-sided markets indicate the operation of a platform.

This creates the simple research question: “Can control of data create market power?”. If the answer to this question is “yes”, then this raises a number of other issues:

  • How should a competition regulator analyse data-driven market structures?
  • How are data flows, practices and advantages relevant to the assessment of market power?
  • When could data practices (including refusal to permit access to data and exploitative privacy terms) amount to a contravention of Australia's new misuse of market power law?
  • Could data exchange amount to a contravention of Australia's new concerted practices prohibition?
  • To what extent could data privacy terms be challenged under the unfair contract terms or unconscionable conduct legislation under the Australian Consumer Law?
  • How might obligations under the proposed Open Banking and broader Open Data regulations interact with these aspects of the competition and consumer legislation?

Stream Leader Bassina Farbenblum

This stream focuses on digital technology initiatives designed to prevent and remedy exploitation and improve recruitment and working conditions for migrant workers. These include, for example, platforms assisting workers to articulate and report exploitation within supply chains, rate and review recruiters and employers, access justice, or make secure recruitment or salary payments.

Stream Leader David Vaile

Data digitisation changes the potential for beneficial and harmful handling of information about people. This creates local and global challenges for the existing legal, regulatory, social and technological models designed to both protect individuals, communities and societies from new or amplified risks, and also support safe manipulation or exploitation of data derived from actions of potentially identifiable individuals (including ‘personal information’/‘PI’ in AU law).

Past conceptions about the ‘data protection’ interests at stake for individuals and organisations are challenged by rapidly diversifying and expanding technical capabilities, and by misunderstood or weakly enforced constraints on traditional functions of ‘collection, use, disclosure, retention and destruction’ of PI, esp. in commercial and social media realms. Newly viable applications such as mass psychographic profiling of online device users, or machine learning from data ‘lakes’ derived from the ‘digital exhaust’ of life online, raise questions about the adequacy of existing protections; and how to make the risks, trade-offs or potential protective responses comprehensible for data subjects, and for those developing, governing or regulating in this area. (Weak ‘consent’ or authorisation models often work against subjects.)

This stream seeks to investigate the nature and implications of developments in personal data informatics and analytics for the protection of individual, community, professional and public interests in data protection, privacy and confidentiality; how to make implications more comprehensible to individuals and organisations; and models to balance aspirations for awareness, autonomy and control of one’s data with demands of those seeking to exploit the new tools.

Stream Leader Bronwen Morgan

The emergence of sharing economy business models in recent years has generated much debate, including concern over their social effects. The systems and interfaces of digital platforms have substantially lowered the transaction costs of many kinds of economic interactions, but have often done so in under-regulated ways. Many negative impacts have been documented in connection with digitally-embedded sharing systems where support from venture capital investment drives rapid expansion toward monopolistic market domination. This stream explores a creative response to these issues that moves beyond a focus on regulating or constraining the sharing economy. Platform Cooperativism draws on entrepreneurial energies to respond, using shared ownership and control business models to build new economic and social opportunities. A cooperative platform economy aims to build and support a vision for a more participatory economy, where digital platforms enable place-based, collaborative and holistic economic development. 

Examples include FairBnB internationally and Bhive locally, a Bendigo-based cooperative that is devising “ a digital platform that allows Bendigo people to create, own and run sharing enterprises, providing access to shared local goods and services”.

A range of issues confront those at the forefront of platform cooperativism: What are emerging legal models for cooperatives use of digital platforms? How might digital platforms be designed to enable their use by cooperatives? What are the appropriate scales of operation for platform cooperatives? In what ways might they intersect productively with urban policy agenda, governance practices and aspirations? Answering these questions will help illuminate the legal, design and governance frameworks that would allow the sector to progress and advance its economic and socio-environmental potential to respond to the limitations of standard platform initiatives.

Stream Leader Marc De Leeuw

New technologies rapidly blur the distinction between people and things. This stream seeks to understand the changing role for legal and regulatory frameworks in response to shifts in legal personalities driven by 21st century technological, bioscientific and economic developments. In particular, it focuses on the emergence of robotic technologies and the challenges this brings to the question of legal personhood. Artificial intelligence, driverless cars, care robots, and synthetically created life forms increasingly undermine the standard binary of organic and inorganic life, giving rise to questions of legal responsibility, ownership over hybrid entities, and the beginning and end of human or artificial life forms. 

This stream tackles these issues and engages with the empirical and theoretical problems of disruption that cyber-physical systems bring to nation-states and their legal institutions.  

The stream is supported by Research Assistant Simon Taylor

Stream Leader Michael Handler

This stream involves using, and potentially developing, linked IP, business and judicial/administrative datasets, in order to facilitate novel empirical studies into IP law and innovation policy.

Stream Leader Monika Zalnieriute

Led by Dr. Monika Zalnieriute, ‘AI and Law’ Research Stream explores the relationship between various automation and interference techniques, popularly known as AI, and increasing technologisation of decision-making in governments, courts, corporations and society.

In this stream, Monika leads many cutting-edge projects, with direct relevance and impact on policy making in Australia and internationally. The first project of this stream is Monika’s Discovery Early Career Award ‘AI Decision-Making, Data Privacy and Discrimination Laws, funded by the Australian Research Council (2021-2024), which draws on mixed method research design to question the effectiveness discrimination and data privacy laws in preventing AI discrimination and further isolation of historically discriminated groups, such as LGBTI, women, and racialized communities. The stream is also working with researchers at the Law Institute of Lithuania on research project Government Use of Facial Recognition Technologies: Legal Challenges and Solutions’, funded by the Lithuanian Research Council, 2021 – 2023, $ 232,450 (EUR 150,000)). Collaborating with the project partners London School of Economics (UK) and Georgia Institute of Technology (USA), the project will look at the ways government are deploying automated facial recognition technologies to assist decision-making in Lithuania, USA, UK, Russia and Germany. The 'AI and Law' stream has also started working with the Australiasian Institute of Judicial Administration (AIJA) and, together with the Hub Director Lyria Bennett Moses and FLIP researchers Michael Legg and Felicity Bell, was awarded a research grant by AIJA ‘AI Decision-Making and the Courts’ to prepare a guide for AIJA members and judges in the Asia-Pacific region, which will set out the key challenges and opportunities that automated decision-making present for courts and judges. The ‘AI and Law’ Stream is part of the $71 million ARC Centre of Excellence for ‘Automated Decision-Making and Society’ ($31.8 million awarded by ARC, $39 committed by the partners), where Monika is an Associate Investigator. Launched in 2020, the Centre will run for 7 years to create the knowledge and strategies necessary for responsible, ethical, and inclusive automated decision-making.  The Centre combines social and technological disciplines in an international industry, research and civil society network that brings together experts from Australia, Europe, Asia and America. If you are interested in collaborating with ‘AI and Law Stream’, please get in touch with the Stream Lead Monika.

Stream Leader  Heejin Kim

Enhancing cyber security is not simply a technical question, it requires engagement across disciplines, including from legal scholars. Rather than being encapsulated in a single Cyber Security Act, the Australian legal framework is multi-faceted, including criminal law, directors’ duties, telecommunications regulation, and consumer law.

This research stream is developing a map of relevant Australian laws, from cybercrime laws to critical infrastructure security, law enforcement assistance requirements and corporate governance. This will become a public web resource for researchers, lawyers, policymakers and diplomats. We continue to argue for the importance of understanding the current legal framework in the context of the government’s new cyber security strategy.

The stream is investigating how states use and develop export control regimes to regulate the global transfer of cyber surveillance technology. Such regulation, based on the common Wassenaar framework, takes place amid complex policy debates about cyber security, global trade, human rights, and concern about large-scale exploitation of commercial cyber surveillance technology by repressive governments. The stream is also investigating the ability of conventional export restriction mechanisms to reflect and address new policy questions arising from technological development in cyber security.

Stream LeaderStream Leader Simone Degeling

This project concerns the ability of a financial advice provider, who interacts with their client via artificial intelligence, to obtain informed consent to a breach of fiduciary duty. 

Stream Leader Cameron Holley

Green technology (“green tech”) is a broad term describing the recent emergence of products that seek to protect and/or repair the environment and foster more sustainable relationships between nature and society. Examples include technologies for renewable energies, marine and terrestrial transport, waste recycling, building construction and management, water, air and soil purification, food production and natural resources conservation. The use of green technologies occurs across a wide range of diverse economic sectors (e.g. agriculture, fishing, energy, transportation, construction, water management, resource extraction, and industrial production), with each sector having differing regulatory environments, capacities, capital and investment needs. These conditions have accordingly produced a complex array of green tech applicable laws and regulations, embracing a mix of government intervention, self-regulation, and a range of related laws and policies that create supportive/unsupportive investment environments (e.g macroeconomic policies, and proposals for green new deals), or impose restrictions on the impacts and development of technologies. There is a need to better understand and map this web of green tech law and policy , examining  differences across sectors, while also identifying common features and ways in which externalities and social costs can be addressed, while allowing for learning, support and facilitation of the burgeoning green tech industry. This will be a focus of the green tech stream’s work.

Key questions will include:

  • What is meant by the term  “green tech” across different sectors (e.g. oceans, water, shipping, energy, city planning, conservation)?
  • What are the main legal and regulatory approaches across these sectors? Where and how do they interact?
  • What are common regulatory innovations and blind spots?
  • How can the regulation of green tech be improved to ensure more sustainable and just outcomes  for society?

The stream's preliminary work will be to map existing literature, drawing on interviews with members of the Allens Hub and the law school’s Environmental Law Group. The stream will be led by Professor Cameron Holley, and be a partnership between the Hub and the Environmental Law Group. In future years, the stream can draw on this preliminary work in more specific projects.

Stream Leader Matthew Kearnes

In recent years debate concerning the right to repair has emerged as a critical issue at the interface between law, technology and society.

The objective of this Allens Hub Stream is to consolidate an interdisciplinary grouping of UNSW researchers working in the field of ‘repair studies’ together with scholars working on the right to repair specifically. Stream activities will include targeted pilot research exploring the regulatory, legal and policy dimensions of the proposed enactment of right to repair provisions in Australian consumer, copyright and environmental law, with a view to developing a proposal for an application for external research support.

 

Objectives

The proposed stream will have the following five objectives and activities;   

  1. The formation of UNSW network in repair studies, bringing together an interdisciplinary grouping of scholars engaged in right to repair issues, and associated socio-legal concerns;
  2. Pilot analysis of regulatory and legal issues, together with wider policy concerns, associated with the implementation of right to repair provisions;
  3. Thematic analysis of public submissions to two recent Australian enquiries undertaken by the Australian Competition and Consumer Commission (2020) and the Productivity Commission (2020);
  4. Sectorial analysis of right to repair issues in renewable energy (Spear 2020; Spear, et al. 2020), precision agriculture (Roger 2017; Bronson 2018; Carolan 2018), personal electronic devices (Corwin 2017; Lepawsky 2020; Hielscher and Jaeger-Erben 2021); and
  5. Analysis of public activism around the emergent right to repair movement in Australia

 

Background

Current debate concerning the right to repair have largely focused on improving the repairability and interoperability of consumer electronic devices, agricultural machinery and renewable energy systems in the context of existing intellectual property regulations and provisions concerning data security and privacy (Bronson 2018; Hernandez, et al. 2020; Lepawsky 2020; Spear, et al. 2020). While noting that there is no internationally agreed definition of a ‘right to repair’, nor a unitary policy or regulatory change that would enable it, the Australian Productivity Commission (2020) defines the ‘right to repair’ as “the ability of consumers to have their products repaired at a competitive price by the repairer of their choice” and that “enabling a right to repair may involve various policies, such as a requirement for manufacturers to make repair information and tools available to third-party repairers, or to produce spare parts for a certain period” (p. 1).

While significant regulatory reform around product life cycles, waste management and stewardship has focused on recycling and reuse (together with the regulation of hazardous waste streams), repair by contrast focuses attention on the often-informal practices through which products are maintained, refurbished and restored; and on the unevenly regulated third-party repair market. Over the last decade the advent of the repair café or the public ‘fixit clinic’, where makerspaces are increasingly tuned toward practices of restoration, reuse and rebuilding – alongside the dissemination of online knowhow and tutorials in repair practices – has relocated ad hoc repair practices to public spaces, contributing to a broad social movement engaged in collaborative and cooperative repair practices. Rosner (2014), for example, suggests that as “fixing practices move from homes to libraries and museums, the practices of plaster spackling and hardware tinkering that once occupied back porches and home workshops inhabit new territory in the public attention” (p. 55). In this light repair “becomes an analytic tool with which to produce and sustain multiple political projects and with which to socially and structurally refigure society” (p. 55).

At the same time, the increasing technological sophistication of both consumer electronic devices, and industrial and agricultural machinery more generally, has been enabled by the increasingly ubiquitous integration of information and digital technologies. This sophistication has tended to limit the scope for informal and unauthorised repair of products and machinery in a number of ways:

  1. Restrictions on third party repairs enacted by ‘original equipment manufacturers’ (OEMs) and authorised repairers, and the use of warranties to void repairs undertaken by non-authorised repairers;
  2. Restrictions on the sharing of technical information necessary for third-party repair;
  3. The use of Technological Protection Measures (TPMs) to prevent infringement of copyright material;
  4. The use of End User Licence Agreements (EULAs) that limit users’ access to the digital infrastructure of products, and typically include clauses that terminate the licence for product misuse; and
  5. The use of propriety fittings, and limitations on the supply of necessary spare parts .

Agricultural machinery, for example, is increasingly equipped with sensor technologies that enable the integration of remote guidance systems and the generation of real-time farm monitoring data. In this sense the tractor is no longer simply a machine for earth movement, but is increasingly conceptualised as a digital technology, with the consequent creation of new value streams in farm real-time data and questions concerning data ownership and the capacities for agricultural producers to maintain farm equipment (Rose and Chilvers 2018; Rose, et al. 2021).

 

The Right to Repair Movement

For this reason, the right to repair might be understood as both an emergent social movement, advocating forms of social-legal change and an area of active legal and regulatory deliberation and reform.

For example, in the area of precision agriculture the Right to Repair Movement has emerged as a broad coalition of actors that aims to create legal and regulatory protections for agricultural producers to modify farm equipment software. Right to Repair proposals have been introduced in many US state legislatures, while in 2017 the American Farm Bureau proposed changes to the US Digital Millennium Copyright Act that would “require manufacturers to provide access to agricultural equipment diagnostic and repair information made available to the manufacturers' dealers” (Roger 2017). Similar regulatory interventions are currently being considered in Australia and the EU, with an emphasis on creating legal frameworks that challenge notions of ownership, intellectual property and data security (Kuch, et al. 2020).

Similarly, in the area of personal electronic devices a nascent right to repair movement has emerged, bringing together a community of activists and practitioners (and youtube personalities!) advocating legal and regulatory reform whilst precipitating a makeshift industry (see for example www.ifixit.com) in independent and do-it-yourself information and communication technology maintenance and repair (INDIY ICT M&R). Lepawsky’s (2020) analysis gives some sense of the scale of INDIY ICT M&R which “as measured by users of iFixit's repair manuals, involves over 4.1 million users around the world” (p. 13). At the same time, recent social science scholarship has highlighted that right to repair provisions – commonly enacted in the global north – may have the effect of overshadowing locally coordinated cultures of repair and reuse, common across the global south (Cowan 2019; Hielscher and Jaeger-Erben 2021).

 

Legal and Regulatory Issues

As a response to public activism, the right to repair has also become the focus of significant policy discussion, in advance of anticipated legal reform (particularly in the US and EU).

The Massachusetts legislature passed a law known as the ‘Right to Repair’ (H.4362) in 2012, which “required automakers to make available to vehicle owners and independent auto repair shops the same vehicle diagnostic and repair information made available to dealers and authorized repair shops. Previously, such information was not available to small, non-authorized repair shops, leaving them at a competitive disadvantage” (Kahane 2021, 1).

In Europe a range of EU directives have addressed issues concerning repairability in the context of EU environmental regulations, together with requirements that product manufacturers design household devices in ways that ensure they are reparable using commonly available tools, and provide consumers access to spare parts for specified time periods (commonly ten years).

In Australia, recent studies by the ACCC and Productivity Commission demonstrate the salience of the right to repair domestically and the scope of possible future reforms. Undertaken in the context of the Competition and Consumer Act 2010 (CCA), including the Australian Consumer Law (ACL), the ACCC (2020) study focused specifically on repair issues in agricultural machinery, finding that “access to independent agricultural machinery repairs is limited”, that “farmers may lack recourse in the event of a problem with their machinery”, that “agreements between manufacturers and dealers may limit access to repairs” and that “data ownership and management may raise privacy and competition issues” (p. 1).

Similarly, in a December 2020 discussion paper, that informs an ongoing enquiry, the Productivity Commission noted that:

A key issue in the debate about a right to repair is how to balance the benefits and costs to consumers, suppliers and manufacturers. Proponents say that a right to repair will lead to increased competition in repair markets, greater consumer choice, and improved environmental outcomes due to less resource use and waste. Manufacturers and some suppliers raise concerns about consumer safety, data security risks, the quality of repairs, and the protection of their intellectual property. (p. 1)

Stream Leader Kayleen Manwaring

The last three decades has seen substantial development and commercial and consumer use of previously unconventional forms of distributed information technologies, where sensors and microprocessors with internetworking capabilities are embedded in everyday objects and environments not previously computerised, such as cars, fridges, people and animals. The growth in the use of cyber-physical systems and Internet-enhanced objects has already brought about significant sociotechnical change, and this is unlikely to come to an end any time soon. Cyber-physical systems and connected devices have become essential in industries from manufacturing and healthcare to agriculture and environmental management, to smart homes and cities. This change brings with it some significant benefits for society, particular in the areas of: assisting those with disabilities live more independent lives; reducing traffic congestion; improving waste management, urban safety and bushfire control; increasing availability of remote healthcare and education; and supporting more efficient and sustainable infrastructure, transport, agriculture and industry.

However, while cyber-physical objects and systems may lead to benefits in our daily lives, they also expose individuals and societies to a number of risks, ranging from disclosure of private information, unwanted surveillance of adults and children by the state and by corporate interests, physical injury, harassment and stalking, safety and other defects, exacerbation of existing inequalities by a growing ‘digital divide’, discrimination and barriers to the right to freedom of expression. Alongside this sociotechnical change has come the potential for ‘regulatory disconnection’, that is, where existing regulatory frameworks become disconnected from societal expectations due to the new things, behaviours and relationships made possible by these technologies.

This stream is designed to investigate some of the potential areas of regulatory disconnection. This has now become a matter of some urgency in Australia and globally, as shown in the concern about legal and regulatory issues displayed in policy documents such as the World Economic Forum State of the Connected World report 2020, and the Chief Scientist-commissioned report by the Australian Council of Learned Academies on the Internet of Things, also published in late 2020.

The stream’s objective is to develop an Australian centre of excellence around legal challenges for cyber-physical systems and connected devices. While they share many issues with conventional information technologies, such as data protection, the ‘physical’ element brings into play additional issues. To solve issues of regulatory disconnection, we need to investigate areas of law not traditionally associated with information technology, such as tort, product liability, rights to repair, land law, personal property and insolvency.

Stream Leader Monika Zalnieriute

This stream explores the relationship and tension between one of the most iconic social values - the rule of law - and an increasing technologisation of government services and decision-making.