The Technology of Law
One can discern the following relationships between the Law and
Technology:
1. Sometimes technology becomes an inseparable part of the law.
In extreme cases, technology itself becomes the law. The use of
polygraphs, faxes, telephones, video, audio and computers is an
integral part of many laws - etched into them. It is not an
artificial co-habitation: the technology is precisely defined in
the law and forms a CONDITION within it. In other words: the
very spirit and letter of the law is violated (the law is
broken) if a certain technology is not employed or not put to
correct use. Think about police laboratories, about the O.J.
Simpson case, the importance of DNA prints in everything from
determining fatherhood to exposing murderers. Think about the
admissibility of polygraph tests in a few countries. Think about
the polling of members of boards of directors by phone or fax
(explicitly required by law in many countries). Think about
assisted suicide by administering painkillers (medicines are by
far the most sizeable technology in terms of money). Think about
security screening by using advances technology (retina
imprints, voice recognition). In all these cases, the use of a
specific, well defined, technology is not arbitrarily left to
the judgement of law enforcement agents and courts. It is not a
set of options, a menu to choose from. It is an INTEGRAL,
crucial part of the law and, in many instances, it IS the law
itself.
2. Technology itself contains embedded laws of all kinds.
Consider internet protocols. These are laws which form part and
parcel of the process of decentralized data exchange so central
to the internet. Even the language used by the technicians
implies the legal origin of these protocols: "handshake",
"negotiating", "protocol", "agreement" are all legal terms.
Standards, protocols, behavioural codes - whether voluntarily
adopted or not - are all form of Law. Thus, internet addresses
are allocated by a central authority. Netiquette is enforced
universally. Special chips and software prevent render certain
content inaccessible. The scientific method (a codex) is part of
every technological advance. Microchips incorporate in silicone
agreements regarding standards. The law becomes a part of the
technology and can be deduced simply by studying it in a process
known as "reverse engineering". In stating this, I am making a
distinction between lex naturalis and lex populi. All
technologies obey the laws of nature - but we, in this
discussion, I believe, wish to discuss only the laws of Man.
3. Technology spurs on the law, spawns it, as it were, gives it
birth. The reverse process (technology invented to accommodate a
law or to facilitate its implementation) is more rare. There are
numerous examples. The invention of modern cryptography led to
the formation of a host of governmental institutions and to the
passing of numerous relevant laws. More recently, microchips
which censor certain web content led to proposed legislation (to
forcibly embed them in all computing appliances). Sophisticated
eavesdropping, wiring and tapping technologies led to laws
regulating these activities. Distance learning is transforming
the laws of accreditation of academic institutions. Air
transport forced health authorities all over the world to revamp
their quarantine and epidemiological policies (not to mention
the laws related to air travel and aviation). The list is
interminable.
Once a law is enacted - which reflects the state of the art
technology - the roles are reversed and the law gives a boost to
technology. Seat belts and airbags were invented first. The law
making seat belts (and, in some countries, airbags) mandatory
came (much) later. But once the law was enacted, it fostered the
formation of whole industries and technological improvements.
The Law, it would seem, legitimizes technologies, transforms
them into "mainstream" and, thus, into legitimate and immediate
concerns of capitalism and capitalists (big business). Again,
the list is dizzying: antibiotics, rocket technology, the
internet itself (first developed by the Pentagon),
telecommunications, medical computerized scanning - and numerous
other technologies - came into real, widespread being following
an interaction with the law. I am using the term "interaction"
judiciously because there are four types of such encounters
between technology and the law:
(a) A positive law which follows a technological advance (a law
regarding seat belts after seat belts were invented). Such
positive laws are intended either to disseminate the technology
or to stifle it.
(b) An intentional legal lacuna intended to encourage a certain
technology (for instance, very little legislation pertains to
the internet with the express aim of "letting it be").
Deregulation of the airlines industries is another example.
(c) Structural interventions of the law (or law enforcement
authorities) in a technology or its implementation. The best
examples are the breaking up of AT&T in 1984 and the current
anti-trust case against Microsoft. Such structural
transformations of monopolists release hitherto monopolized
information (for instance, the source codes of software) to the
public and increases competition - the mother of invention.
(d) The conscious encouragement, by law, of technological
research (research and development). This can be done directly
through government grants and consortia, Japan's MITI being the
finest example of this approach. It can also be done indirectly
- for instance, by freeing up the capital and labour markets
which often leads to the formation of risk or venture capital
invested in new technologies. The USA is the most prominent
(and, now, emulated) example of this path.
4. A Law that cannot be made known to the citizenry or that
cannot be effectively enforced is a "dead letter" - not a law in
the vitalist, dynamic sense of the word. For instance, the Laws
of Hammurabi (his codex) are still available (through the
internet) to all. Yet, do we consider them to be THE or even A
Law? We do not and this is because Hammurabi's codex is both
unknown to the citizenry and inapplicable. Hammurabi's Laws are
inapplicable not because they are anachronistic. Islamic law is
as anachronistic as Hammurabi's code - yet it IS applicable and
applied in many countries. Applicability is the result of
ENFORCEMENT. Laws are manifestations of asymmetries of power
between the state and its subjects. Laws are the enshrining of
violence applied for the "common good" (whatever that is - it is
a shifting, relative concept).
Technology plays an indispensable role in both the dissemination
of information and in enforcement efforts. In other words,
technology helps teach the citizens what are the laws and how
are they likely to be applied (for instance, through the courts,
their decisions and precedents). More importantly, technology
enhances the efficacy of law enforcement and, thus, renders the
law applicable. Police cars, court tape recorders, DNA imprints,
fingerprinting, phone tapping, electronic surveillance,
satellites - are all instruments of more effective law
enforcement. In a broader sense, ALL technology is at the
disposal of this or that law. Take defibrillators. They are used
to resuscitate patients suffering from severe cardiac
arrhythmia's. But such resuscitation is MANDATORY by LAW. So,
the defibrillator - a technological medical instrument - is, in
a way, a law enforcement device.