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The role of legal advisors in bridging the divide between technology and policy development

By Hadassah Drukarch


Introduction

In today's legal practice, the convergence of legal expertise, policy formulation, and technological advancement stands as a pivotal focal point. While digital innovation advances, the policy ecosystem struggles to keep pace. In this scenario, legal advisors are at a crossroads — needing to balance technology governance and compliance with the interests of the organizations they represent. In this role, they could also serve as vital links between policymakers and tech developers, a role yet to be fully leveraged.


This article advocates for interdisciplinary collaboration between the policy and technology communities, suggesting a mixed top-down and bottom-up strategy. Central to this is the role of legal advisors as intermediaries, essential for harmonizing digital innovation with ethical, legal, and regulatory standards.


Mapping the disciplinary culture divide

Bridging the gap between policy and technology requires an understanding of their unique disciplinary cultures. This concept, crucial for legal advisors as potential intermediaries, involves the unique characteristics, beliefs, and practices defining professional fields. These cultural elements, shared within disciplinary communities, shape professionals' identities and methodologies. Despite some surface-level similarities, the policy and technology communities exhibit fundamental differences in their approaches, influenced by their specialized environments and purposes. Acknowledging these differences is essential for effective interdisciplinary collaboration.


Policymakers combine theoretical understanding with real-world application. Their process-driven approach addresses socio-economic complexities to create practical and politically viable policies. Their work, while broad but not deep in scope, requires strong engagement with stakeholders, negotiation, and consensus-building, balancing theory and practice. Policymaking focuses on inclusive and consensus-based processes that prevent dominance by any single group and facilitate compromise. Decisions are grounded in concrete evidence, like anecdotes, public opinion polls, and endorsements, ensuring policies reflect public interests. While this approach is deemed fair, it may inevitably result in less than optimal or delayed decision-making.


Technologists, on the other hand, prioritize outcome-focused innovation and problem-solving in a fast-evolving environment. Their culture, rooted in deep subject-matter expertise and insights into past work, is characterized by creativity, experimentation, and a forward-thinking attitude, which stands in contrast to policymakers' balanced and practical approach. Technologists base their arguments on consistently observed facts, precise terminology, and detailed analysis, often using language and concepts not easily understood outside their field. The best technological solutions are born from open debates on the merit of each idea. Originality is key, with ideas being developed and supported by robust evidence and peer review. Unlike the compromise-seeking nature of policymaking, technologists adhere to their conclusions, changing only if new facts or analyses emerge.


The divergent objectives of technologists and policymakers often lead them in opposite directions. Legal advisors, positioned between these cultures, operate within a framework that emphasizes a detailed understanding of law and legal practice, characterized by meticulous attention to detail and adherence to precedent balanced against the interests of those whom they serve. Their culture is shaped by the necessity to navigate complex legal systems and the high stakes involved in legal decision-making, often leading to a conservative and risk-averse approach. Legal advisors, with their deep legal insight, are crucial in connecting policymakers' strategic, process-oriented methods with technologists' dynamic, outcome-focused approach.


The value of collaboration for innovation

The significance of collaboration in innovation across the legal, policy, and technology sectors is immense and multifaceted. Interdisciplinary collaboration combines diverse perspectives which proves particularly useful in tackling complex problems that cannot be solved within the confines of a single discipline, as is the case with the opportunities and challenges surrounding digital innovation.


Collaboration among different disciplines allows for a more comprehensive approach to problem-solving, leveraging collective expertise and experience. In the context of this article, connecting legal, policy, and technology professionals helps uncover previously hidden problems and develop more effective and practical solutions. For instance, the development of Privacy Enhancing Technologies (PETs) showcases the benefits of interdisciplinary collaboration. PETs, developed by experts in data governance, cybersecurity, and software engineering, exemplify effective and trustworthy solutions born from such cross-disciplinary problem-solving. As noted in the UK Royal Society's work on PETs, in conjunction with the Alan Turing Institute, these tools have been developed to be multi-purpose, meaning that they serve to reinforce data governance choices, provide tools for data collaboration or enable greater accountability through audit. Consequently, these tools demonstrate how interdisciplinary collaboration leads to innovation in line with public interest objectives, in this case privacy and data protection policies.


A framework for building bridges through legal

The previous sections highlighted how legal advisors are key in promoting responsible digital innovation by linking the policy and technology sectors. A structured framework is essential to maximize their role in fostering interdisciplinary collaboration, emphasizing effective communication, mutual understanding, and a synergistic approach to innovation and policymaking.


To illustrate this framework, consider AI regulation and compliance. Globally, regulatory responses are emerging to AI advancements. The EU's AI Act, President Biden's Executive Order on AI safeguards, and the UK's AI Safety Summit at Bletchley Park are examples of proactive steps. However, AI regulation remains complex, requiring a deep understanding of its capabilities and risks. For instance, the EU AI Act, a comprehensive regulatory scheme for AI, aims to balance safety and innovation, but faces criticism over issues like terminological ambiguity and enforcement challenges. As this framework evolves, legal advisors will play a crucial role in navigating compliance complexities in the rapidly changing AI landscape.


Legal advisors are uniquely positioned to address the challenging intersection of policy and technology, turning it into an opportunity for effective problem-solving. This article proposes a preliminary framework for legal advisors to succeed in this role. It includes a combination of problem-first and design-thinking approaches, stakeholder engagement, solutions identification, and employing communication strategies and tools as a feedback loop.


Adopt a problem-first approach

Embracing the principle of focusing first on problems rather than solutions, legal advisors should identify legal challenges technologists face and present to them. Before we run, we must first learn to walk, and that is why legal advisors must first get to the bottom of any given issue by asking the hardest question of all: why? In the case of AI, this includes addressing the opacity of algorithms and their implications for accountability, as well as AI's role in decision-making, raising concerns about fairness and transparency.


To do so, however, legal advisors need a basic understanding of digital technologies, such as AI, including machine learning algorithms, data flows and interactions, and implications for privacy and other fundamental rights. This knowledge enables them to address issues like algorithmic bias in facial recognition, affecting privacy and civil liberties.


Employ a design-thinking way of working

Using visual tools, such as flow charts or diagrams, can clarify the connection between technology challenges and policy frameworks. In the case of AI, a flowchart illustrating data flows can reveal privacy and data protection issues and areas where legal guidance is still lacking. In doing so, legal advisors should seek feedback from stakeholders within an organization and, when possible, end-users. This input is vital for grasping the real-world impact of technology and ensuring the correct identification and understanding of governance and compliance challenges.


Given the rapid evolution of digital technologies, legal advisors must quickly adapt, maintaining stakeholder relationships to stay informed about ongoing developments. They need to be proactive in seeking early-stage assistance, staying current with new trends, and incorporating feedback to enhance processes and practices.


Ensure stakeholder involvement

It is essential for legal advisors to identify and engage with key roles within an organization to understand potential or existing governance and compliance issues for effective problem-solving as such engagement can uncover different viewpoints on challenges and solutions. At the same time, legal advisors are uniquely placed to highlight regulatory lacunas, advise on possible strategies for organizational innovation choices (abandonment, compliance, exploitation, strategic non-compliance or circumvention), and map any relevant regulatory authorities to pick up this conversation with.


Identify solutions for compliance

When aiming for compliance, legal advisors should offer solutions for identified problems, creating practical guidelines for clients, mitigating risks, and ensuring accountability. Their role is to convert theoretical concepts and requirements into implementable steps, both organizationally and technically. In the case of AI, this includes preventing biases in AI systems and setting up accountability mechanisms for AI in critical decision-making. If solutions prove impractical or ineffective, legal advisors should use this as an opportunity to bridge gaps — be it indirectly — between technology and policy communities.


Utilize communication as a feedback loop

Finally, in their efforts to align the policy and technology communities, legal advisors should use communication strategies and tools to share insights and lessons learned. Documenting compliance challenges and solutions and discussing these within the broader professional community — while respecting professional secrecy — can inform future policies and practices. An example is the online discussions about the definition of "AI" under the EU AI Act, which despite their informal nature are steering opinions and approaches. Additionally, other channels like publications, conferences, and involvement in public consultations or policy advisory groups are equally valuable. Creating this feedback loop is crucial for continuously refining tech policy frameworks to match real-world challenges and opportunities.


Conclusion

Mistakes are a natural part of progress and offer opportunities for improvement. In the realm of digital innovation and policymaking, the gap between the two disciplines and the complexity of their landscape often leads to conflict or divergence. While technological advancements bring significant benefits, setting standards for their responsible and sustainable development and use is crucial. Global efforts to establish these standards have seen varying degrees of success. Recognizing that mistakes are inevitable, there's a responsibility to learn from them for better future outcomes. Legal advisors, employing a hybrid top-down and bottom-up approach, can be the crucial link that bridges the technology-policy divide. By adopting this dynamic and reflective approach, they can promote resilience and innovation, effectively connecting the technology and policy communities.


If you have found this article interesting, please feel free to contact The Law of Tech team through LinkedIn or email at info@thelawoftech.com to share your ideas and feedback. We always welcome new insights and innovative ideas to create content and build tools to bridge the communication gap between legal, policy and technology professionals. Our goal is to promote a shared language between these disciplines to drive responsible and sustainable innovation, and we are actively looking for organizations that want to partner with us along this journey.


 

About the Author

Hadassah Drukarch, LL.M., is a dedicated specialist in technology policy and regulation. Her experience encompasses advising organizations on compliance, creating policy awareness and understanding across stakeholders, and guiding responsible technology development by design. She is the Founder and Executive Director of The Law of Tech, an information service group committed to bridging the communication gap between legal, policy, and tech professionals by promoting a shared language among key stakeholders, for instance, through knowledge-sharing, practical exercise, and events. Moreover, her extensive research in healthcare innovation and regulation, bolstered by impactful EU-funded projects and publications, underscores her commitment to responsible and sustainable innovation. Driven by a passion for effectively merging regulation with innovation, her mission is to drive stakeholder engagement to ensure effective innovation in line with public interest objectives. #HadassahDrukarch #innovation #digital #technology #policy #legal

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