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Fred Nesbitt

Senior Legal Counsel

Degree:
Common Law

Languages:
English

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Who he is

Ever since he was a young boy growing up in Northern Ontario, Fred Nesbit was drawn to the great wide open. “My father was an outdoors enthusiast, to say the least,” he recalls. The pair were snowshoeing one day and, having crested the top of a hill, the father pointed north and said to his son, “You know all those books you read about the North and how barren it can be? Well, there’s absolutely nothing between where we are standing and Russia.”

It’s the love of the outdoors that compelled Fred to move to Kelowna, where he’s based now. He moved there in 2019 after having spent much of his career in Waterloo running teams as a legal director at BlackBerry, teaching law and technology, and running his own information technology and cybersecurity law practice. Before becoming a lawyer, he served in the Armed Forces.

A creative and agile lawyer, Fred brings his calm presence, listening skills, pragmatism, and strategic insights to solving his clients’ legal problems. No matter how complex or burdensome the task, he is valued for his ability to get his clients’ products moving from idea to marketplace quickly. “You have to work to the client’s schedule,” he says. “My job is to avoid bringing things into play at the last minute that derail their plans, or cause them un-forecasted expense.”

Unsurprisingly, given his background, Fred is also a strong proponent of using technology designed for the legal profession.

How he got here

Raised in Onaping Falls in Northern Ontario, Fred was recruited right out of high school by the Armed Forces. For five years he would travel the country, and the world, serving as an infantry soldier and electronic warfare operator. He also became a specialist in electronic threat intelligence. After deciding to pursue law at the University of Western Ontario, Fred worked in the technology research and development arm of an oil and gas company. He then headed to RIM\BlackBerry to become director of legal operations for BlackBerry’s security group. After a few years of teaching law, he moved to Kelowna in 2019. Now as Senior Legal Counsel at Simplex Legal LLP, Fred brings his vast experience, and expertise in commercial and regulatory matters, IP, and security, to help clients navigate a quickly evolving global business environment. To relax, Fred follows his other passion, which is training border collies.

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Interview with
Fred Nesbitt

As a technology lawyer, give us your view on how the market has changed over the last decade.

It isn’t even recognizable from where it was five years ago. Five years ago, artificial intelligence was still something the futurists were writing about. We are now past the point that people were then predicting we’d be at 20 years in the future. Rapid acceleration and adoption of artificial intelligence that is driven by software, algorithms, and data collection is really the world that we live in right now. The AI revolution is arguably entering into its second phase already.

Legally, what should clients be thinking about?

Obviously, clients have to be aware of the risks and obligations that they are undertaking, as a corporation, and on behalf of individuals, as employees and directors. There are also now machines performing functions based on what the machine learned 24 hours earlier” But clients may not necessarily have full control over an issue until such time as they are made aware of what the machine has done, what it has learned from big data. And that depends on whether they have adequate monitoring in place.

Can you give us an example?

It sounds kind of trite right now, but the classic case would be Facebook and the APIs that it had been making available. Facebook knew they were making data available, and they were selling certain aspects of their data, and they had these rather benign end-user agreements for people, and for entities that were accessing the programmable interfaces to access data. But as the Cambridge Analytica scandal showed, they had no way to assert control, over what those entities were doing with that data. They found themselves in the position of being just as liable on multiple levels as the entities that were taking the data and using it for a purpose other than which it was intended.

And that will put the public at risk.

And it will put the business at risk. Let’s say you’ve bought heavy equipment, like a bulldozer, and it’s equipped with sensors that monitor every operation undertaken by the machine. And let’s say all of that data is recorded by computers and then uploaded as frequently the company needs it to be. Well, if the company is out doing some exploration for a gold mine or something, as part of some sort of confidential business undertaking, the equipment can be geolocated because it’s in the data stream somewhere. It wouldn’t be hard for a competitor to figure out what they’re up to if they wanted to.

So how does a business invested in that kind of tech protect itself?

First, understand that there’s a maxim that we use in computer security and cybersecurity: The best that can be achieved is adequate security. You’re never going to have perfect security. There’s always going to be some mathematical algorithm that can overtake another and get access to things that are encrypted. There’s always going to be a weak link – maybe a negligent, or an error in coding. So the most important people are the ones who are responsible for managing the operations. Ultimately, they retain the ability to shut it down or to re-program things, or to take other steps to protect the confidentiality and integrity of data and the authenticity of it. They also have the burden and the responsibility of making sure that adequate policies, from a legal and regulatory and operational and perspective, are put in place to ensure the safe use of the technology.

What is it that clients are not seeing that they should be concerned about?

I think clients understand the risks. But they want a solution because they understand that they have limited windows of opportunity to get new products into the market before their product cycle changes again. What keeps me up at night is making sure that they are making good progress on that front, and that the legal environment isn’t unnaturally interfering with the development of new inventions and the filing of patents and things like that. But too often I see, and you see this with start-ups, the company wants to make a product and go into a market with almost no legal forethought at all put into it. It’s why it’s important for me to be connected with them early on, like when they’re writing their object code. That’s when they should be engaging their legal advisors for the first time; not after it’s done when they’ve coded something that they may not be able to put into the market safely.

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