The government should not be shy of thinking out of the box and developing a privacy legislation that is appropriately responsive to technology
As I hurry to finish this article in time to meet my print deadline I am acutely aware that the keyboard I’m using is supremely unfit to capture my words as fast as possible. As with most modern computers, my laptop comes fitted with a QWERTY keyboard—a layout that was purposely designed to slow down typing.
Credit for inventing the typewriter is often attributed to Christopher Sholes, a newspaper editor from Wisconsin, who filed his patent for a mechanical writing machine in October 1867. In designing his early prototypes, Sholes laid out the keys in alphabetical order. He soon realized that this caused the type bars to jam whenever neighbouring keys were pressed at the same time or in rapid succession. The faster you typed, the worse the problem got.
It soon became evident that the only way to improve typing efficiency was to redesign the layout of the keys so that the physical effort of striking keys set further apart from each other automatically reduced the speed at which they could be pressed. Accordingly, he re-organized his keyboard based on the frequency with which the letters of the English alphabet are commonly used, placing the most commonly used letters (E, T and O) on the top row, the next most common (A and H) on the home row and the next following from that (N) on the bottom row.
This is the origin story of the QWERTY keyboard, a design that has become so deeply familiar to us that it has silently migrated from mechanical typewriters into modern technology—even though we no longer have type bars or face the mechanical risk of a simultaneous key press.
So deep is our commitment to this layout that even though August Dvorak developed a Simplified Keyboard layout designed to make typing more comfortable (and improve typing speeds by up to 40%), today, 40 years after his death, hardly anyone knows of its existence.
Despite the existence of strong evidence that shows that prolonged use of QWERTY keyboards causes acute muscle strain, instead of finding an alternative layout, we have chosen to treat carpal tunnel syndrome as an occupational hazard.
QWERTY is an example of the very human tendency for path dependence, a phenomenon that seeks to explain why we continue to be committed to inefficient constructs even though they are no longer useful. There are various instances of path dependence all around us—it is the reason why we ride on the left side of the road and why our day is still divided into 24 hours when the rest of our universe is decimal.
Of all our institutions, the legislative process displays the most unhealthy predilection towards path dependence. Many of our laws have made their way into the statute books as a consequence of our reluctance to stray from constructs we are committed to. The legislation that regulates our use of everything electronic— from mobile telephones to machine-to-machine communication and the internet of things—is the Indian Telegraph Act, a law that was enacted by the British in 1885, at a time when the most advanced forms of long-distance communications used Morse Code.
When called upon to regulate the ride-sharing industry, rather than developing fresh, purpose-based regulation to govern how app-based ride-hailing services should operate, our legislators chose to stick with the familiar and classified these services as radio taxi operators.
I’ve long held the view that legislators need to rid themselves of the curse of path dependence when enacting new laws. They need to make an effort to understand the context of the industry they are regulating, the specific risks they need to mitigate and the manner in which the regulations they enact will be enforced. If this requires them to break with convention and chart a new path, they should not be afraid to do so.
We are, by all accounts, currently on the threshold of enacting a new privacy law. Almost every country in the world uses consent to secure personal privacy and I can appreciate how our government might be under some pressure to follow this well-trodden path.
That said, there is scepticism (that I have elaborated on in previous columns) as to the continued efficacy of consent in the context of modern technologies. While it allows each individual the autonomy to determine his or her own personal boundaries for privacy, it is no longer possible for anyone, in the context of modern technologies, to fully appreciate the consequences of providing consent.
It is my view that the government should not be shy of thinking out of the box and developing a privacy legislation that is appropriately responsive to technology. If we can rid ourselves of our instinct to be path dependent, we have the unique opportunity in this country to develop a truly modern and purpose-based privacy law.
Rahul Matthan is a partner at Trilegal. Ex Machina is a column on technology, law and everything in between.
His Twitter handle is @matthan.
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