Cyberlaw

2019

Consultation Pack

Context of Cyber Initiative

The legal industry is experiencing rapid

technological change in a global context. Lawyers

are finding it increasingly difficult to respond to

these challenges.

Emergent technologies (AI, quantum computing,

big data and cybersecurity processes)

are challenging traditional legal

structures and creating increasing complexities

for law practice.

The emergence of AI means that software

platforms will complete more data /

administrative tasks and lawyers will have to

focus on value adding skills to stay ahead of the

changing landscape.

Cyber is a multi-faceted system which impacts all

aspects of society, including political,

cultural and societal constructs.

The Menzies Foundation is seeking to support

legal responses to complex global legal

issues, specifically where lawyers and legislation

deal with the cyber resilience and risk management in a

transnational context

Consultation Practice

25 interviews conducted with top digital & cyber law practitioners from the major Australian legal, business and telecommunication firms.

Undertaken with the aim of answering the following:1. What do global cyber legal questions look like in

practice and how are lawyers responding to this challenge?

2. To what extent do lawyers acknowledge the importance of strategic, systems, computational and behavioural thinking in global legal contexts and what is the best way to build this capability?

3. What type of legal training will best enhance the Australian legal community capacity to grapple with the global complexity of cyber resilience and threat?

Overall Summary of Findings

There is limited legal professional development in cyber resilience and risk– the International Association of Privacy Professionals (IAPP) conferences are the main source of community consultation and education programs.

Professionals in the cyber regulation field would like to possess a deeper understanding of the technological foundations of cyber & to have more insight regarding transnational cyber contexts.

Lawyers lack confidence regarding the technical capabilities & awareness of cyber issues required to be able to deal effectively with cyber legal questions.

Strong support for an increased focus on professional development of cyber law in a global context.

Industry professionals would like to see a greater emphasis on the development of sovereign and international rules of cyber security law.

Funding Priorities and Innovation

Engage

• What body of law regulates cyber resilience and risk matters – criminal, human rights, constitutional etc?• What guides whether a cyber issues is considered as a torts/liability, commercial, human rights, armed conflict,

domestic security, international rule of force or criminal matter?• How is cyber law constructed and articulated with other rules of law?• How does international law and domestic jurisdictions approach requirements to enforce, implement and

provide meaningful oversight of cyber capabilities and consequences?

For practical impact in addressing both cyber security and the opportunities provided by the digital era, the standing of technology, law, policy and international cooperation needs to be understood.

- Dr Lesley Seebeck, CEO, ANU Cyber Institute

Funding Priorities and Innovation

Engage

“More sophisticated AI attacks that can learn and adapt and will be

increasingly more difficult to defend against. This requires new capabilities and different thinking

by lawyers to combat against.”

“The increasing interconnectedness of devices has enabled cyber-attacks to the point where cars are being remotely hacked through their

electronics. This is changing the nature in which cyber threats operate"

“A rise in state sponsored attacks is becoming particularly

worrisome. The more sophisticated nature of attacks

is requiring more global thinking by cyber lawyers”

“More information will be aggregated & this information will be more and more valuable and as such more prone to attacks. This will increase the

importance of all lawyers possessing strong enough capabilities and awareness of cyber

threats”

“A sharp increase in specific targeted attacks through email

phishing and other means is creating a greater need for cyber

awareness across sectors”

What are the skills that lawyers require?To grapple with cyber resilience, threat and risk legal questions it is important to have a deep understanding of how the technology functions and the social context in which is it operates.

• “Nowadays cyber awareness and background is a fundamental requirement for all lawyers, especially those working with data and information that is likely to be breached”

• “An ability to adapt and learn about new issues when they occur is a vital skill that lawyers possess and need to possess to excel in this space”

• “The ability to understand the client and understand cultural nuances differentiates lawyers”

Skills Thinking

Understanding the interconnectedness of cyber and the systems in which it operates

The extent that lawyers look beyond legal frameworks and understand the strategic contexts within which cyber issues emerge

The importance of cultural, ethical & technological thinking in cyber contexts

Understanding the complex technical aspects of cyber contexts

Systems Thinking

Strategic Thinking

Behavioural Thinking

Computational Thinking

Systems ThinkingCyber is an increasingly transnational issue that is completely borderless in its scope and must be considered in a global context.

• “Lawyers must have an understanding of the global nature of cyber”

• “The interrelatedness of different regulations around the world creates great difficulties for global firms to achieve a consistent approach to privacy across regions.”

• “Stricter enforcement and greater emphasis globally on privacy and cyber importance

Strategic ThinkingCyber Threats are occurring in entirely new and developing scenarios

This changing landscape makes it imperative for lawyers to understand and adapt to unfamiliar environments that are not encountered in traditional law settings

• “Cross-industry issue that requires multi-faceted solutions across all sectors”

• “Increasing inter-dependence of technological devices is creating new risks and threats”

• “Rapidly updating technology is creating previously unforeseen challenges

Behavioural ThinkingCyber issues go beyond the technical frameworks within which they originate.

There are several other frameworks that lawyers must be aware of when dealing with cyber such as; cultural, ethical & technological factors.

• “Different approaches and methods must be utilised ethically in advising clients from different cultures and technical expertise”

• “Different regions have clear technical differences but also a difference in emphasis on cyber security.”

• “The strictness of regulation in a society indicates the emphasis that culture places on cyber law”

• “Certain sectors and people will have greater technological capabilities than others which will change the approach required by lawyers”

Computational ThinkingTechnology is increasingly complex and cyber threats are becoming more sophisticated and difficult to prevent.

To effectively combat these threats lawyers require a relatively intricate technical understanding of the threats and how they occur.

• “Practitioners in the cyber space need to have a greater level of understanding than other lawyers”

• “Important to be aware of how technology is adapting and what future challenges may need regulating”

• “An ability to adapt and learn about new technology is a vital skill that lawyers need to possess to excel in this cyber space”

Industry Feedback“Would strongly recommend making it a compulsory module and not elective based”

“Have to be wary that a lot of lawyers are time poor and any development program should not be too onerous on these time constraints”

“There should be specified courses teaching this space in the legal and business world.”

“In terms of teaching cyber law, it is important to convey this idea that it is not only about understanding the intricacies of the law but also about the context in which the law operates”

Educational ModelThe current educational model puts an emphasis on traditional law degrees and any cyber-specific training is usually in the form of bespoke post-graduate studies or optional short courses.

A greater emphasis needs to be placed on university undergraduate and post-graduate courses prioritizing the development of the skill sets (systems, strategic, behavioral, computational) required to practice law in global cyber contexts.

These skills should be a key pillar of legal education courses rather than an optional extra.

Professional DevelopmentProfessional Development should anchor consideration of legal skill development in broader context of other skills sets required to practice law in global cyber contexts.

Any professional training must be engaging, succinct and focusing on real-world problems and navigating solutions in a transnational context.

Must be conscious of the time-sensitive nature of the legal profession to ensure maximum output in a short program.

Training in this space must be flexible and adaptable to predict and react to updating technological challenges.

Cyber Education Models