All (Or Most) Lawyers are Tech Lawyers

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By Olumide Babalola

Lawyers working within the “tech space” these days are quick to exclusively introduce themselves as “Tech Lawyers.” As catchy and interesting as the title appears, its multi-faceted dimension is often ignored or confused for the creation of a new practice area or a specie of new breed of lawyers.

Surprisingly, this often-bandied contemporary appellation has not enjoyed sufficient analytical (and even academic) attention in spite of its dynamic and robust ramifications. Consequently, when ‘tech law’ is discussed, there is an undue usual fixation on legal services provided on issues concerning robotics, machines and AI at the expense of other areas of the law. This is rather contrary to meaning of technology itself which simply connotes ‘an easier way of achieving certain tasks’.

What is Tech Law?

An inquisition into what Tech Lawyers do must logically commence with an understanding of what ‘tech law’ is. Whether one refers to it as ‘tech law’ or ‘technology law’, its catchment areas are unimaginable wider than its connotative use especially among a certain generation of creative lawyers.

The word ‘technology’ itself is derived from “Techre” – a Greek word which means “art.” Professor A. Zvorikine of the U.S.S.R Academy of Sciences Institute of Philosophy notes that, technology has been defined as the ‘aggregate of techniques diverted towards the attainment of some purpose; specifically, the aggregate of techniques diverted against the forces of nature and towards the modification of materials’ (See A. Zvorikine, ‘Ideas of Technology. Technology and Culture, 443-458).

The erudite professor however observed that the definition as offered by other scholars does not properly capture the material and organic aspect of technology, hence he defines it as “the means of work, the means of human activity developing within a system of social production and social life.”

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From the foregoing definitions of technology, then tech law can be simply defined as the body of laws that regulates the deployment of technology. In other words, tech law is the branch of law that regulated the means with which human activities develop within a system. This practice area governs both private and public deployment of technology for certain objectives.

Technology law is (in)explicably wide and complex as it accommodates several other areas of the law to wit; privacy and data protection, information communication technology (ICT), cybercrime, cyber law, artificial intelligence (AI), consumer protection, cyber security, intellectual property, digital rights, digital law, information technology law, fintech, private equity, venture capital, private equity, real estate contracts, contractual transactions, commercial transactions, entertainment, digital assets, cryptocurrency, patent, software licensing, mergers and acquisition, etc the list is open-ended.

What do Tech Lawyers do?

Since we already have an idea of the ambit of tech law, a simplistic and direct answer to what tech lawyers do, would be that: tech lawyers provide legal support/services to technology-related transactions or disputes.

Because of the complex nature of tech law, most commentators are understandably fixated on information technology divide of tech law, hence various commentators on what tech lawyers do have approached the issue from a rather narrow perspective. For example, Angus Finnegan (a partner who heads the International Technology and Telecom group in Reed Smith LLP- a global Law Firm head quartered in United States), argue that tech lawyers assist clients with solving ‘complex technology matters such as software licensing arguments and telecoms contracts? (See ‘Technology law: area of practice’ accessible at <https://targetjobs.co.uk/careers-advice/law/technology-law-area-practice>)

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However, Katherine Bishop (another American lawyer) agrees that, from the definition of tech law, tech lawyers function across the broad range of practice area covered by technology law. She argues that a tech lawyer could even function in a financial company advising in regulatory compliance or externally revising the regulatory or contractual implications of technology solutions. Ultimately, she concludes that any lawyer who has advised a client on privacy policy/notice, intellectual property, fintech, even employment contracts is a tech lawyers. Bishop’s position quite rightly captures the organic nature of technology as the means of human productivity within a system. (See ‘What does a tech lawyer do?’ accessible at < https://attorneyatlawmagazine.com/what-does-a-tech-lawyer-do#:~:text=A%20tech%20lawyer%20can%20help,clients%20on%20employee%20classification%20issues.>)

In another rather restrictive article titled ‘The role of a technology lawyer’, Nicholas A. Kees notes that, any lawyer who provides services in relation to protection of ideas, productive and marketing of same, qualifies as a tech lawyer. He recognizes the ‘major’ areas of tech law as intellectual property, competition law, communications and privacy. (accessible at < https://www.gklaw.com/Resources/Documents/KeesEdit3AInsidetheMindsChapterforAspatoreBooks.pdf?)

Interestingly, in June 2021 Bloomberg conducted a survey on ‘Who are tech lawyers? (accessible at < https://news.bloomberglaw.com/bloomberg-law-analysis/analysis-who-are-tech-lawyers-we-asked-them-directly>). The survey did not only reveal that tech law spans almost if not all the law practice areas there is, but that majority of lawyers who have drafted or reviewed (technology-related) contracts would ascribe that appellation to themselves. The survey further revealed that, the regular technology-related matters are privacy, intellectual property, mergers and acquisition, manufacturing and supply agreements, litigation and settlement, employment matters, corporate law matters etc.

Conclusion

From the all-encompassing definition of technology law to the versatility of tech lawyers, it appears all lawyers would have, at one point or another, acted as tech lawyers for their clients. Hence, in my opinion, any lawyer who has drafted or reviewed a contract at any time for his/her career qualifies as a tech lawyer irrespective of the subject matter provided is simplifies the client’s task. Litigation lawyers on the other hand also qualify as tech lawyers since litigation is a pot pouri of many practice areas.

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It must be understood at all times that, technology law begins with contracts, hence every lawyer who drafts or reviews a contractual document plays the role of a tech lawyer. Kevin Davis (Professor of Business Law, New York University, school of Law) succinctly put it that:

“If technology means ‘useful knowledge about how to produce things at low cost’, then contracts should qualify. Just as mechanical technologies are embodied in blueprints, technologies of contracting are embodied in contractual documents that serve as blueprint for collaborations.’ (See Kevin E. Davis, ‘Contracts as technology’ (2013) 88(83) New York University Law Review, 83)

Conclusively, if tech law is not exclusive to any practice area, then the description of tech lawyer is not necessarily a separate garment worn by any lawyer acting within the precincts of some limited practice areas erroneously contemplated as constituting technology law. The definition of tech law is too wide and flexible for the exclusive preserve of a sect of lawyers who provide professional services in a hand-picked practice areas.

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