Emerging technologies and the law—nano sensors and the Internet of Nano Things

Nano sensors and the ‘Internet of Nano Things’ (IoNT) have been named as one of the top ten emerging technologies of 2016 by the World Economic Forum. However, there are some key legal issues—including privacy and data collection—which will need to be addressed before this technology is widely adopted, as Emma Wright, commercial technology partner at Kemp Little LLP, explains.

What is the IoNT Things?

Nano technology has led to the development of the IoNT. The IoNT is a nano scale network of physical objects that can interact with each other by ‘Nano communication’. The IoNT is anticipated to operate through two broad areas of communication—electromagnetic nano-communications and molecular communications. An example of a molecular communication are nano machines that function as senders. These can encode information into information molecules (for example, proteins) that can be transmitted within a DNA component. This enables the creation of a nano communication system and networks, using biological components and processes that are found in nature. The implementation possibilities are tremendous, particularly for the healthcare sector.

The development of nano sensors means that the potential use cases for the broad ‘Internet of Things’ (IoT) (including nano things) increases exponentially with the ability to connect nano devices. In addition, the ‘big data’ produced by the IoT—that companies are only starting to scratch the surface of in relation to exploitation and manipulation—suddenly becomes ‘huge data’.

What are the key legal challenges associated with this emerging technology?

The key challenges associated with this emerging technology are:

Implementation

As with the IoT, there is a friction that exists between whether this technology should be developed using proprietary intellectual property (IP) (which allows a direct return on investment on research and development) where users are ‘tied’ to particular technology providers, or whether open standards and systems should be used to exploit the full potential that this opportunity presents. As with most emerging technologies, lawmakers are keen not to stifle the opportunity through over-zealous regulation and it will be interesting to witness what, if anything, is delivered through the adoption of industry standards or whether a proprietary system cements itself as the main provider in this area.

Adoption

Arguably the greatest potential for transforming the delivery of services is in the healthcare sector and therefore the data collected will be particularly sensitive so the privacy and security concerns will be significant. The general consensus is that in the race to connect all manner of devices, the privacy and security aspects of the device and the data collected are being overlooked. This is likely to stifle adoption. High-profile data breaches and the rise of ransomware are sobering thoughts when considering the adoption of connected devices that perform critical functions. Any health data collected by nano sensors (if it can identify a living person) is sensitive. It is the safeguarding of this data to ensure it is only used for the purposes it was collected and is kept secure that will be one of the greatest barriers to widespread use, particularly if some governments continue in pursuing the broadening of the state’s rights to access personal data in certain circumstances. Surveillance is on the increase—and the IoNT increases the opportunities to monitor individuals. An extension of this is that the data could be used in some way to socially sort based on genetics or to ‘tag’ certain sections of society. This sits uncomfortably with the protection of an individual’s human rights.

Product liability and consumer protection

As multiple companies each play a role in the behaviour of the device, the transmission of the data, and the data collection and storage, it is possible for gaps in liability to appear. In addition, particularly in the medical scenario, once ingested or inserted into the body there may not be a way for these devices to be removed, resulting in ‘sludge’. The ramifications of releasing the devices without recovering them are likely to remain unclear until these devices are used for a range of purposes and on a longer term basis.

Has there been any case law in this area?

As with any emerging theme, cases often take a while to develop and filter through. In the case of this technology, developments have also largely been regulated through self-regulatory mechanisms. The General Data Protection Regulation (EU) 2016/679 (GDPR) has been drafted to ensure that it is technology neutral and, with more onerous sanctions than under the current data protection regime, the ramifications of not securing the data collected or using it for purposes for which it was not collected will become even more significant when the GDPR comes into force.

What is the most relevant current legal framework? Is the current law capable of coping with this development? If not, what needs to change?

Technology neutrality—whereby legislation is drafted to ensure one form of technology is not promoted over another—has been a fairly longstanding principle. However, the laws relating to product liability are likely to need further consideration, as in the case of large scale automation and artificial intelligence (AI). Depending on its uses, a ‘nano-thing’ may also qualify as a medical device and the regulatory framework is likely to need further review.

How can lawyers best assist when navigating this field?

Lawyers can best assist by providing pragmatic steps in relation to how to protect and exploit any IP, taking a product to market and advising on current market practice and pitfalls. The value of any data generated by such devices remains unclear so commercial arrangements need to be clearly drafted on data ownership, protection and exploitation.

How does this technology fit with current UK government policy? What does the future hold for nano sensors and the IoNT in the UK?

In a report issued in December 2014 by the Government Office for Science on the Internet of Things, it was acknowledged that healthcare is one of the areas where the use of such technology could transform the delivery of the services. The report states ‘The potential for the Internet of Things to deliver benefits in healthcare is enormous, and much work is underway.’ Ofcom is also trying to support a thriving IoT economy.

The development of nano sensors and micro networks which would allow the continuous monitoring of small physiological changes can potentially provide significant improvements to the delivery of care and medicine, not only for chronic diseases but also to allow individuals to become engaged in their own preventative medicine. Bearing in mind that some of the larger ‘connected devices’ have been accused of being significantly unreliable it will be interesting to see the reliability and life span of the nano devices in relation to the data they produce. As with the IoT, individuals need assurance in relation to the privacy and security aspects of the data transmitted, collected and stored by the devices before there is wide scale adoption.

Interviewed by Jenny Rayner. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

Filed Under: Technology

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