The law is always behind technology but given the sweeping changes heralded by new technologies, legislators need to get in front of the issue

Whether our online job applications are successful or not, whether our insurance policies are approved, even whether our products cost a higher or lower price, are often being determined by the ‘data detritus’ we leave behind.

Tracked by cookies that follow our interests and behaviours, this use of our data trails is only becoming more insidious as bigger data sets are being manipulated by increasingly sophisticated algorithms, resulting in what business academic Professor Shoshana Zuboff has called “surveillance capitalism”.

The trail of data that follows us is being commercially exploited, raising questions over consumer rights. Picture: Lorenzo Cafaro/Pixabay

In addition to concerns about civil liberties and human rights being undermined, democracy itself is being challenged by processes that tailor propaganda to individuals and aren’t subject to scrutiny.

The world as we know it is being changed by invisible computer programs, and the law is just not keeping up.

The “robodebt” scandal over the Australian government’s automated calculation of welfare debts is a high-profile example of what is going wrong – thousands of people were harassed and stressed by debt notices for money they didn’t owe.

People were offered little recourse or appeal, and the onus was on those receiving the letters to prove that there was no debt, often dating back years, rather than on the government to prove the debt was legitimate.

In November last year, the government halted the program – later conceding it was unlawful. It has since become evident that they had already been advised earlier that it was illegal.

The way that ‘robodebt’ collection has been conducted raises urgent questions about how the executive branch and Australian law is responding to the new capabilities of technology.

But don’t we already have laws that can simply be applied to new technology? After all, a crime is a crime whether it is committed by paper or computer, isn’t it?

Well, yes and no.

Certainly, there is a lot of law that already applies to consumers and citizens. Human rights, consumer rights, corporate rights (even arguably board responsibilities), tort and contract law, just to name a few, all protect us in certain ways.

But the technological advances we are living through present special challenges.

For example, given the length of the terms and conditions on each of the online contracts people have to consent to when they sign up for different apps, it is questionable whether the term ‘consent’ can even have any meaning in a digital age where people never take the time to read the contracts in the first place.

People, of course, can and are taking legal action to protect their rights, but this is a slow process using old law designed for another age.

International ride-share giant Uber is facing a class action from Australian taxi drivers, while another class action has been launched against the government over the robodebt scandal.

But when litigation is being brought, the onus is on the consumer or citizen to prove that there is a problem. This leaves an enormous gap for corporations and governments to act with potential impunity, or at least a lag between their poor behaviour and consumer rights being restored.

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