In 1993, Vincent Gautrais was studying law at Université de Montréal – specifically, business law as it related to electronic communications – and had decided his subject was going to be contracts sent by ... fax.
Well, like a lot of things in the digital world, that decision changed pretty quickly. "The Internet was only four years old, but the technology was changing rapidly, and I realized I'd chosen the wrong subject for my thesis," Gautrais recalled.
Already, e-mail was taking over as the vehicle for contracts that used to go by mail, then telex, then fax: Microsoft had Outlook, America Online made AOL a household name, and Hotmail and Yahoo! Mail soon followed. For browsers, Google didn't yet exist, but there was AltaVista.
Everything was happening online, and as a lawyer Gautrais had a front-row seat – and a hand in shaping – how all that Web activity came to be regulated.
Born and raised in France, he was educated at Université de Rennes and UdeM, culminating in a PhD here in 1998. After a brief stint at the University of Ottawa, he joined UdeM as a law professor in 2001. He held UdeM's Chair in eBusiness and Security Law from 2003 to 2015, and since then has held the L.R. Wilson Chair in Information Technology and E-Commerce Law.
From the start, Gautrais watched the rapid rise of information technology with awe and trepidation. “I've been lucky. In the very early years, I was in the extraordinary position of being able to witness, in real time, the transition from pre-digital to digital.”
But here's the twist: as he sees it, the law hasn't kept pace with all that change – not nearly.
"It's been 30 years now that I've been studying the digital revolution; I've grown up with it, but from my point of view as a legalist, we're still in a state of adolescence when it comes to how the technology is regulated," Gautrais said.
"We realize that we need laws, that we need tools to protect those who transact via the Web, which is just about everyone these days. We have charters and codes of conduct, strategies and guiding principles and best practices, which is fine.
“But really, all those actions lag way behind what's actually been developed. We don't seem to know how to define the tools we need, and what we're left with is coming up with amorphous standards that kind of sit in a void, doing nothing. ”
Masses of data being mined
Phone apps and gaming apps today collect masses of data on users, everything from their name and address to their daily online activity, he noted. E-commerce sites mine that data and often sell it for profit, even while claiming they don't.
"Legislators are in general reluctant to intervene until the damage is done," said Gautrais. "Their reflex is to let the big tech companies self-regulate, especially those in the U.S.. They show a high tolerance to let them develop according to their criteria, not society's.
"While we may no longer be able to make laws as we did in the past, from the top down, laws that merely prescribe, it is important to develop laws that incorporate other more widely applied standards.
"These can take of the form of technical standards, guidelines, codes of conduct and the link that are not solely the result of what industry wants but what society demands. Unfortunately, legal experts have shown little interest in embracing this normativity between law and tech.”
In the digital world – unlike, say, the automotive or pharmaceutical markets – technology tends to be released to consumers before serious questions about their potential negative effects are asked, he said, much like cigarettes were in the old days.
From mobile phones to iPads in schools to generative AI, “we're letting the Apples and the Samsungs and the Metas decide what's good for us, even when they know the downsides, that these products can make us dependent, do harm to our kids, to ourselves.”
To help remedy the problem, Gautrais has spent his professional life trying to establish regulatory models for these and other companies to live by. Recognized internationally as a pioneer in his field, he has made it his academic mission to bring some order to the chaos.
Besides teaching, he has written three books and countless articles and given conferences on a host of subjects: electronic business law, electronic contracts, cyber-consumption, network security, dispute resolution by and for the Internet, intellectual property and privacy.
Four areas of research
In his most recent research, since 2020 Gautrais has focused on four areas of what he calls “digital norms: laws, jurisprudence, technical norms, and internal policies and documentation that companies put in place.”
For example, he has an ongoing project with the Société québécoise d’information juridique to make jurisprudence available to consumers online so they can go to small claims court without a lawyer and argue their case.
Similarly, he is working with the Quebec organization Alloprof to come up with so-called "privacy impact assessments" to protect the personal data students provide when they sign up and use a chatbot to help them do research for class assignments.
It's a David-and-Goliath battle, trying to establish the legal ground rules that apply to digital activity while that activity is constantly evolving, "like building an airplane in mid-flight," as Gautrais put it. “How can we keep pace?”
He does his best, but observes that governments often don't.
"Last February, the federal government updated its official AI strategy in a little 19-page document," he noted. "It said there's a broad consensus in Canada that we need protections and safeguards and rules of governance, that we should do audits and such.
"That's all very well, but words like those are just pudding: it's all soft and vague and everything but solid," Gautrais said. “For something so important, I firmly believe it's laws we need, not verbiage.”
Asked whether he's optimistic or pessimistic for the future, he quoted a favourite French philosopher, the late Bernard Stiegler: “Neither. Je suis revendicatif (I'm demanding).”
He added: “Luckily, law is a science of reaction, and legal experts like me are conservative: we look to the past, to laws, to jurisprudence, and see where there have been gains and losses. And that form of enquiry results in a certain wisdom: the wisdom to see that a brake be put on progress, for humanity's sake.”
