From Theory to Method

In this, my final post, I would like to move from theory to method.

So far I have argued for the following propositions.

• This forum has set out Law, Technology and Society Studies (LTSS) an interdisciplinary project that uses social scientific material to generate some specific generalizations about law and technology. The approach has been inductive, moving from ‘facts’ to ‘theory.’ This is important and needed research capable of generating the type of material that can guide technology policy and law making.
• However, LTSS is not necessary a project of Law and Technology Theory (LaTT). LaTT, I suggest, is deductive, it asks theoretical questions of LTSS (and doctrinal law and technology scholarship) aiming to undercover the presupposed assumptions that animate those two practical projects.
• To this end I offered a start on LaTT. My starting point was suggesting that LTSS articulated a theory of technology and law. Technology is conceived as external to human society and amoral, requiring law to control and guide it; and in this instrumental law, law is revealed as technology.
• I then examined “Law as Technology” from two theoretical traditions. From legal theory the reduction of law to technology discloses reconsideration of sovereignty and the need to appreciate that sovereignty ultimately is illiberal, and rests on the potential destruction of the human body. From the perspective of law and technology what this reveals is a discourse grounded on law as technology brings no residual, resistive values, through which to restrain law. Such values need to be brought in from outside.
• I then suggested that the possibility of an ‘outside’ is limited if the statement law as technology is considered from technological theory. Heidegger’s founding questioning of technology locates technology as the core structure of modern existence, meaning that to be human in this epoch is to be fundamentally technological. This means that human thought and action orders humanity and the world into “standing reserve” capable of being dissected, ordered and rearranged. Heidegger’s ontological approach to technology has been highly influential in technology studies where key thinkers share his ontological approach to technology and ultimately a pessimistic orientation towards whether technology can be “overcome” in favor, or in a return to, more authentic human being. The point was that law as technology seemingly closes the possibility for a non-technological supplement to control law as technology sovereign violence.
• However, I suggested that there is an alternative strand within technology studies, one that accepts Heidegger’s fundamental propositions, but constructs an alternative account of what it might mean to live within a technologically structured ontology. I argued that Haraway’s polemics of cyborgs and informatics of domination might assist with development of LTSS that avoids the theoretical limitations of law as technology.

Haraway’s concern is with charting the complex relations of culture, nature, knowledge and power of the here-and-now, as the basis for political engagement and ethical conduct. Haraway’s project suggests two methods for doing this.

The first draws upon Haraway’s desire that “[a]ny interesting being in technoscience, such as a textbook, molecule, equation…can – often should – be teased open to show the sticky economic, technical, political, organic, historical, mythic and textual threads that make up its tissues.” (Haraway Modest Witness 1997: 68). While Haraway criticizes him, this seems similar to the type of sociological and historical studies by Bruno Latour, in which complex relations between “agents” - scientists, engineers, corporate leaders, government officers, political, social and cultural events and concerns of the time, and the very machines that scientists and engineers use -interrelate in any technoscientific endeavor. This body of research suggests an approach to law and technology that undertakes detailed examinations of the networks at play behind, not just technological change, but legal responses to technological change.

Peter suggested that historical study of law and technology was critical. My suggestion augments this by arguing that such research needs to engage in the minute details and interactions between technologies and law. This might mean that the lawyer scholar needs to undertake primary research, as existing research often overlooks the complexities of law-technology relations. In my study of the making of a pre-WWI Australian motor vehicle Act, I found that existing research failed to acknowledge the sophistication of the legislation, nor the complex interactions that led to its passing in 1909. In returning to the primary sources (correspondence held by the automobile club, correspondence held in the government archives, parliamentary debates, case law, and newspaper and magazines from the period) I found that the law was not as a simplistic reaction to the motor vehicle as cultural historians thought, but was the outcome of public anxiety about motoring, the personality of specific politicians, consideration of the effectiveness of English laws, lobbying by the motoring club, and also was a manifestation of a public culture that celebrated technology as progress, dreamed of mass automotive transportation and regarded regulative legislation as the best, most modern form of governing (This research has been published in (2005) 29 Melbourne University Law Review 843 and is available through Hein-Online). My suggesting is that close historical analysis will lead to greater sophistication regarding how law and technology interact within the West avoiding some of the pitfalls of just regarding law as a technology.

My second suggestion is to look at the everyday of law and technology. Rarely does technology impose itself as Heidegger’s “Enframing”, and rarely does law impose itself as abstract rules. Instead, technology and law are experienced, often in the mundane and everyday. Drawing upon Latour’s later work it can be said that technological objects and humans jointly form a culture which structures particular forms of relationships (between objects and objects, objects and humans, humans and humans), and within which some relationships possess particular characteristics that allow them to be regarded as profane, ethical or legal. My suggesting is that LTSS should examine the contours of contemporary culture. Implicit in this approach is the realization that in the messy complexities of everyday life in the West there is a more sophisticated “theorizing” of technology then the ontological strand within technology studies recognizes.

Within technology studies this respect for contemporary culture is recognized in the link it forges with science fiction studies. Haraway’s adoption of the cyborg is a key moment in the cross-fertilization of these two disciplines. This has a direct legal parallel in the rapidly expanding field of law and literature which is increasingly concerned with the “culture of legality” manifest in popular texts. Part of this has been the discovery of science fiction by legal scholars. What remains to be explored is science fiction as a discourse on law and technology. As identified in the circulation of the Frankenstein myth within law and technology scholarship, metaphors with fictitious origins structure legal accounts of technology. Also many law and technology authors refer to popular science fiction texts when trying to establish the particular technological anxiety that motivates their writing. Witness the continual reference to Brave New World, Frankenstein, Boys from Brazil, Jurassic Park in scholarship on human cloning. In taking science fiction seriously law and technology acts reflexively on its own discursive practices, and in doing so can access a wider repertoire of metaphors and narratives through which to think about law and technology.

This is an approach to studying law and technology that I have attempted to do in my paper forthcoming in (2007) 19(1) Law and Literature (due any day now). In it I argued that a specific science fiction text, the new Battlestar Galactic television series not only offers a reflection on the culture of legality post 9/11 or a reconsideration of the question of biology for progressive legal projects, but ultimate exposes the limits of the Heideggerian legacy concerning the metaphysics of technology in critical theory, and in doing so exposes legal theory’s failure to adequately engage with the technical.

My suggestion in offering these two methods to LTSS is to suggest that LaTT, through exposing the unacknowledged assumptions concerning much law and technology research, can lead to specific, engaged projects that present findings that can develop understanding of law and technology.

That is my final post. I would like to reiterate my thanks to Gaia, Frank and Jim for the opportunity to contribute. I would also like to thank the other contributors to this forum for their sharing of their ideas. I think important ground has been made in the development of more sophisticated legal accounts of technology, technological change and technology and society, and I look forward to the further development and discussions.

Sovereignty, Heidegger, Haraway

In the last post I concluded with the observation that LTSS embodies an understanding of law as technology. In this post I want to interrogate this claim from within two theoretical traditions; legal theory and technology theory. I want to emphasis that my purpose is not to trash LTSS in a 1970s CLS style. This is about exposing unacknowledged assumptions and in so doing suggesting direction about how to study law and technology better.

In the last post the image was Frankenstein. In this post the image is the Weimar Republic. Weimar is absolutely fundamental to thinking about LaTT. Weimar marks a particularly vivid moment when the questions of technology, society, law, order, change and humanity were to the front of the intellectual and social life. Fritz Lang’s seminal sci-fi movie Metropolis (1927) can be read as a summary of the dynamics and anxieties of the time. Weimar is the location for three theorists whose work I wish to draw upon, Carl Schmitt, Martin Heidegger and Walter Benjamin. Further, that Weimar was the cultural incubator of Nazism reveals the fundamental violence and stakes involved when mixing the heady combination of law and technology.

Within theoretical thinking about law, seeing law as technology is somewhat illicit. One of the strengths of the CLS was the critique that legal scholarship, notwithstanding claims to be apolitical, was deeply political and that politics was liberalism. Without revisiting much, liberalism postulates the limits of authority. That law fulfils a somewhat paradoxical function as the authorizer of authority and as authority’s limit. However, what lies at the heart of liberalism as a modern discourse on the state, is not the individual, but the individual’s direct opposite – Leviathan.

Claims that law is a technology to be deployed to achieve policy outcomes amounts to a particularly nomology that locates law in sovereignty. Law is conceived as a plastic power, a tool of sovereignty, indeed for some like John Austin, the relations of sovereignty to changeable law is used as the definition of sovereignty. Law lost any preexisting form that it might have possessed within legal accounts of the late middle ages. Further, the notion of the sovereign is irrational, hinted at by Hobbes’s bestial title. The sovereign’s role was to preserve, using law to do so, any rationality would amount to a limit undermining the sovereign.

These observations were made forcefully by Weimar and later Nazi legal theorists Carl Schmitt. Schmitt defined the sovereign as the entity that could declare an exception; suspending or abolishing the existing order, and decides on whatever measures to address the exception. He perceived positive law of liberal legislatures as just naked power transmuted into whatever ends. He was similarly critical of liberalism itself because it could not distinguish between values – between ends that will defend and sustain the nation, and ends that give the nation over to its enemies. In this inability to distinguish values, modern law and liberalism both manifest the “economical-technical apparatus” which was indifferent between “a silk blouse and poison gas” and characterized the age.

Schmitt’s sovereign authoritarianism is not concerned with the violence of the sovereign and plastic law. And we still living with the horrors of Nazism can not forget that talk of sovereign power through law registers on human bodies. For legal theory articulating this unacknowledged register has come through the reception of another Weimar intellectual, a corresponded with Schmitt but from a radically different political and religious tradition – Walter Benjamin. Benjamin in a short 1921 essay argued that the legal order is grounded on two violences; a violence that founds and a violence that preserves the law. The commonality of these two violences is the need for blood, and the two become indistinguishable in the modern apparatus of the police state. Giorgio Agamben has recently drew upon Schmitt, Benjamin and the Nazi concentration camp, to argue that the camp was not just an evil but rather its manifestation was the “perfection” of the tensions of law and sovereignty in the West. The camp makes explicit that the ultimate fact of sovereignty is violent power over bare life, the very physical bodies of subjects.

So law as technology discloses the sovereign in its bloody violence. Notwithstanding, talk of blood and bodies, and reflecting on Nazism, this “juridical-political” reading of law and technology does not provide much guidance for researching law and technology. It tells us what the Frankenstein image already does: that law as technology has monstrous potential. It suggests that a site of values, beyond the instrumental law is needed to give guidance to how law regulates and controls technology. What is absent, ironically, is the lived dimension; what does it mean to live within a world structured this way and where, and what is the content, of the saving site of values? These questions suggest Heidegger’s thinking on technology and the reception of his thinking within “technology theory.”

Heidegger’s writings on technology should be considered from within his wider concerns with the impoverishment of ontology, and the need for a revitalized ontology to structure critical questions about modern existence. For Heidegger the Western metaphysical tradition forgot the question of Being. That is, the ontological task of thinking about being an entity disclosed to its own existence had been passed over in favor of “pragmatic” abstractions. Technology is important to Heidegger, not because of its monstrous violence, but because in its holding sway the forgetting of Being is absolute. Heidegger’s account of technology, or in his terms, the essence of technology is fourfold.

First, that technology is not machines, but a fundamental way of revealing the world as is. It reveals the world as standing reserved, as items stockpiles ready-at-hand to be used. Second, to be human means to be “thrown” into the world and our fate is to come to a dwelling in this finite totality. Third, that our “thrown-ness” means that Being is responsible to become aware of the world, to be open to its “truth.” Fourth, in saying that technology is a way of revealing, technology becomes located deeply and fundamentally in what it means to be human and to engage in the world.

This gives an ontological frame to law as technology. The ascendance of technology in Being means that law itself is seen as an object, in standing-reserved, ready to be deployed.

Heidegger’s account of technology is total and depressing. Technology is the mode of Being in the modern West, and in that mode of Being all existence, including law and humans, are conceived as objects in the stockpile to the exclusion of more “original,” “truthful” and authentic ways of Being-in the world. Heidegger influence on technology studies can be seen in the metaphysical and existential orientation of many of the seminal writers. Indeed, Marcuse, Ellul and more recently Borgmann and Fukuyama have grounded their critiques of technology on the basis that it is polluting the very being of humanity. There is a tragic aura surrounding this tradition. The totality of technology means that it is difficult to theorize strategies for overcoming. This can be seen in the juridical-political account of law as technology that revealed the need for some external value to limit law. Yet acceptance of Heidegger’s thesis means that there is very little left in humanity external to technology on which to ground non-technical values.

For Heidegger the “saving power” lay with technology’s ancient sibling, art. He thought that art remained authentically open to the world as is, not imposing stockpiled order on it. His turning to art has not been without its critics. Benjamin saw that art was also about techniques and imposing order on the world Benjamin can be seen as pointing towards an alternative direction from Heidegger and a metaphysical orientation. In technology studies this post-Heideggerian strand can be identified in Donna Haraway.

Haraway rejects metaphysical approaches to thinking about technology. Her appropriation of science fiction’s cyborg is without tragedy or romance. The cyborg is a materialist account of what it means to be human at the particular moment when technology has undermined the past certainties of existence. Haraway, notwithstanding these radical differences does basically articulate Heideggerian starting points; that humans are thrown into the world and must make sense of it and that for contemporary beings that making sense of occurs where technology has imposed itself over the very way that the world is revealed. Haraway argues for an approach to the study of technology that does not seek metaphysical totalities, and does not tries to save humanity from technology. The cyborg image declares that such an enterprise, if not fundamentally flawed, lacks meaning in the modern West. To live in the modern West means to be thoroughly technological and the task should be to come to terms with the messy “informatics of domination.” It is this task, I will argue in my next and final post, that should inform law and technology.

In summary, LTSS embodied law as technology. Legal theory shows that to hold law as technology is to see law tied to sovereignty, violence and death. Heidegger shows that law as technology discloses the totality of technology for Western Being. This could lead to depressing destinations; however, I suggest that post-Heideggerian technology writers like Haraway offer an alternative basis for the study of law and technology.

FRANKENSTEIN AND LAW AS TECHNOLOGY

In my last entry I finished on three points.

First the contributions to this symposium seemed to be establishing a field of “Law, Technology and Society Studies” (LTSS), but not providing a theoretical account of law and technology (LaTT).

Second, while LTSS is a significant, worthwhile project which I strongly support, it is characterized by two absences. (1) No articulation of the underlying theory of law. (2) Technology has an absent future.

Three, that moving from LTSS to LaTT involves a reconsideration of Frankenstein.

Before I do so I want to deal with the perfunctory why bother? What is the point of LaTT? My personal response is aesthetic (and probably a poorly articulated Platonism) that theory possesses an intrinsically powerful attraction on the human soul so that humans are drawn towards speculation and the general. In other words we diminish ourselves if we deny the urge to seek glimpses of the substance casting the shadows of the everyday.

In addition, and much more pragmatically I would like to adopt Frank’s response to Mike Madison (who I made a star of in my earlier blog). In response to Mike’s “why theorize ?”, Frank suggested:

But I think it’s also good to try to get one’s theoretical presuppositions on
the table, and exposed to critique from a group of scholars who think
of themselves as trying to understand a common set of phenomena.

In other words LaTT is needed as the critical counterpoint to LTSS that provides a forum for questioning the assumptions that guide the LTSS’s research, helping it refine, develop and renew.

Just before I begin Frankenstein I wish to note that the argument presented in the remainder of this entry, and the next two is more fully elaborated in my paper forthcoming in the Minnesota Journal of Law, Technology and Science. I am working on SSRN post. In the meantime I am happy to circulate the paper via email.

Let us return to the two absences in LTSS, no account of law and no account of technology’s future. These two absences become linked when looking at Frankenstein.

Frankenstein is the quintessential text on technology and humanity of the modern West. As the dilemma of the modern West is technology and humanity, it is not an extreme position to regard Frankenstein as an Ur-text of modernity. Its foundational position within science technology studies and within popular representations of technology attests to its significance. My
suggestion is that LTSS is conceptually structured on a specific legal manifestation of Frankenstein.

Frankenstein provides a series of interlinked characterizations and associations concerning scientists, technology and human society. In this Victor Frankenstein epitomizes the rational scientist too preoccupied with his techniques to consider the wider context of his illicit creation. As a metaphor for technology the monster is ambiguous. It has the potential for good (rescuing the child, appreciating Goethe, Plutarch and Milton) and the potential for evil (murdering Elizabeth). It is at once a thing to be pitied and a thing to be feared, and most readers are quick to see that Victor, with his ego and petty revulsion, as the true monster. But the monster’s “thing-ness”, its status as external to humanity, is repeatedly emphasized through its exclusion from human society and its desire for a mate of its own kind. The monster as technology presents technology as amoral and non-human. The monster is outside of history. Frankenstein also shows the vulnerability of human society to the, often bloody, products of science. Society passively lets the scientist concoct and it seems impotent against the monster’s depravities. Absent from the myth is any institutional counterforce. There is no Inquisition or Royal Society to control the scientist and creation.

So far, so good. The absence of technology’s future in LTSS can be located in LTSS’s grounding in the Frankenstein narrative. The point has been made by contributors that technology is monstrous (potential for great good and also great harm), and that scientists (or more sophisticatedly technoscientific institutions of late capitalism) are structurally blind to the wider contexts and implications of their creations. This means that if society is not to remain passive to technological changes (if it is to harness the monster for good not harm) then society requires a champion. It is here that I argue LTSS introduces a supplement into the Frankenstein myth. It brings in that institutional counterforce that was so lacking in the novel – law is affirmed as a saving power.

However, as I note in my paper this supplement is ironic. LTSS’s championing of law is as a technical discourse. The assessment of law becomes a comparison of techniques. This is LTSS great strength over the banal (and hysterical) doctrinal law and technology literature. While that literature assesses the technical competencies of law from within a narrow legal frame of analogies, LTSS as I noted in the last entry, places this assessment into a social scientific frame of empirical evidence and assessment. Given the priority of social science in pragmatics of policy formation, LTSS therefore, takes it technical role of advising public policy seriously. LTSS wants to advise on technology’s “regulation.” Art in his post, and earlier papers, has suggested, tantalizingly, that “law is technology.” I would like to suggest that he is more right then he imagines, for the guiding reason behind LTSS (and doctrinal law and technology scholarship) is affirmation that law is a technique for public policy outcomes.

In other words my cheeky suggestion that the contributors had not articulated their concept of law was a ruse. Like scientists in a lab who do not articulate their account of science but, instead their conceptions of science emerge from their doing science, LTSS did not articulate its account of law, for the simple reason that it was clear that in the doing of LTSS the conception of law on show was law as technology.

This, I hope can be appreciate, is thoroughly ironic. The invocation of law to save society involves the re-inscription of Frankenstein with the lawyer analyst as technician and the law as the monster. In doing so it is suggested that the lawyer analyst is blind to social context of her creation and the creation possesses monstrous ambiguity.

I can readily appreciate two responses to this ironic realization. The first response is again the “so what?” In which I want to sidestep through reminding of Frank’s justification for theory as revealing unacknowledged assumptions. The second response might be to criticize my hyperbole in that my suggestion that law is technology, and possibly subject to the same anxieties that surround technology, is extreme categorization that obliterates questions of degree. That if law is technology, then it is a beast that has long been domesticated, and like the motor vehicle, is familiar. This ignores a salient truth; just because the motor vehicle is familiar it should not be excused from constantly killing and maiming us humans; and just because the techniques of law are familiar it does not exempt a questioning theory of law and technology to ask the question what it might mean that law is technology?

In the following post I wish to present a working through of law as technology, and in so doing reinvest assessments of legal techniques with monstrous violence.

Image. A cartoon regarding "A Galvanised Corpse" from 1832, from Library of Congress, Prints & Photographs Division. Galvanising refers to the research from the 1790s by Italian physician Luigi Galvani examining the effect of electricity on frogs legs. Mary Shelley claimed Galvani's work inspired Frankenstein.

Theory or Theorizing

Law and Technology Theory

I would like to extend a warm thank-you to Gaia for her introduction and also to Gaia, Frank and Jim for organising this forum. I would also like to thank my virtual colleagues who have contributed. In preparing for my posts I have had the pleasure reviewing earlier contributions and have again been struck with the thoughtfulness and thought provoking nature of what has gone before.

Like Lyria I apologise for the delay in posting. Australia rather inconveniently likes to be a whole day ahead of the North.

Concluding carries certain responsibilities regarding summary and pointing to the future. I hope in what I plan to say in the next few posts goes some way towards discharging these duties.
I want to begin by returning to Gaia’s opening post that posed two meta-issues: “Should there be a general theory of law and technology?” and “What form should such a general theory take?” As a democracy it seems that we, the contributors, have voted in-favour of the first proposition. The second proposition’s, due to its open texture, has understandably received different answers. I was particularly struck by the comments of interlocutor Mike Madison who challenged contributors to define more precisely the field of enquiry and questioned the possibility and potentiality of theory. Challenging lawyers to define is like challenging the sun to rise and I note that the art of defining has been well evidenced. It is the second challenge, concerning theory, that I wish to thematise over the next few entries. In particular I wish to offer a criticism, and a modest rectifying contribution, that there has yet to be an articulation of law and technology theory. As I am a lawyer I’ll start with definition.

“Theory” is a wonderfully malleable word, caught up with notions of scholarship and white towers. It has a disconnected, otherworldliness aura, especially in relation to another wonderfully malleable word “practice” with its suggestions of solidity, engagement and reality. And as legal scholars we would all be aware that “theory,” or “too theoretical” is the ultimate criticism of our class or course by students (Pat William’s depressing yet delightful account of her revolting (in both senses) students in The Alchemy of Race and Rights springs to mind). So my emphasis of theory needs some clarification.

What has occurred has been significant theorization. There have been two dimensions to this.

The first has been the constructing of a common discourse about law and society. I note that Art justified law and technology theory (which I would like to contribute to by offering the abbreviation LaTT) as helping to make sense of law and technology themes and help develop legal analysis. This has been that definitional enterprise that has been forthcoming with solar regularity. I do not want to disparage this activity, one does not need Stanely Fish to appreciate that development of a common language is fundamental to establishing a scholarly community.

The second has been social scientific theorizing about law and technology. Peter made this very clear when he suggested “theory should be about law, technology and society.” What I mean is there has been the clear beginning of a research field called law, technology and society studies that draws upon social scientific evidence – studies of technological diffusion, studies of the relationship between technological change and social structure, developmental psychology and legal and social history – to generate some propositions about the social impact of law and technology. The premise seems to be one of “practice,” that is to provide for better laws, better regulation and better policy outcomes in the future. I call this social scientific for the social has been turned into a series of empirical claims from which theorization into workable hypothesis can be undertaken. Now I do not wish to be seen to be rejecting such a project. I have contributed to it in my historical study of motor vehicle legislation and in my current research into the cultural background of the 2002 Australian human cloning and embryonic stem cell laws. Further, I am managing editor of a journal whose brief it is to publish just this kind of scholarship. This is important work, and immeasurably more sophisticated then the “legal hysteria” of much doctrinal based law and technology writing (ie technology has changed means law irrelevant/outdated, means policy and social goods secured by law at threat/destroyed, means Warning! Warning! Danger Will Robinson!) As Law, Technology and Society Studies (LTSS) this research has significant potential to (a) construct an archive of past law and technology interactions, (b) develop a significant literatures analysing that archive, (c) able to credibly advise policy and lawmakers about legal responses to emergent technology/technological change/changing social uses of technology.

But LTSS is not, I submit, LaTT. And it is not because of two, related, absences. The first is that in the galaxy of definitions opening before us, law remains surprising undefined. What theory of law animates this discourse? And the second relates to technology’s definition. I gracefully acknowledge that definitions of technology, or at least identifying elements of the technical, have been made. A commonality has been the claim that technology has an absent future. By this I mean there is an assumption that technology’s future is unknowable – the preferred expression was uncertain – and that law (and hence LTSS) needs to stand ready and vigilant to respond to technology’s potentially radical changes.

In my next post I want to take these two absences as a starting point for demarking a theory of law and technology. I do so through remembering the ur-text for the modern West’s thinking on technology – Frankenstein.

Introducing Kieran Tranter

First, I would like to extend many thanks to Peter Yu for his interesting posts and for instigating a great discussion.

It is now my pleasure to introduce Kieran Tranter who is a Senior Lecturer at Griffith Law School in Australia. Kieran worked in museums and poverty law practice, before beginning teaching at the College of Law, University of Notre Dame Australia as a Lecturer and Social Justice Coordinator. He has since moved to Griffith Law School, Gold Coast, Australia as a Senior Lecturer. He currently is managing editor of the Griffith Law Review: A Journal of Social and Critical Legal Studies and academic editor of the Social Security Reporter.

Kieran's current teaching areas are jurisprudence and law and culture. He has published on culture, law and technology and the legal history of the motor vehicle in Australian journals. In addition, Kieran has two articles on science fiction, technology and law, which are forthcoming in the journals of Law, Culture and the Humanities and Law and Literature in the United States. Finally, Kieran is completing two research projects funded by the Socio-Legal Research Centre at Griffith Law School. The first on culture, law and cloning/stem cells in Australia and the second on science fiction as popular jurisprudence. Welcome Kieran!

Three Observations on a General Theory of Law and Technology

This final post will offer some of my thoughts about what a general theory of law and technology should (and should not) be about. "Taking the technology out" seems to be a point that the symposium participants have raised repeatedly in both their posts and comments. For example, Greg noted in one of his guidelines that decisionmakers should not be "blinded" by a particular technology; instead, they "must look through the technology involved in a dispute to focus on the legal issues in question." So, let me start with what a general theory of law and technology should not be about and then move on to what that theory should be about.

Although a general theory of law and technology is obviously about technology, it is not about any particular technology or its technical contents, design characteristics or intrinsic properties. Simply put, a general theory of law and technology cannot be technology-specific. While it may be interesting to explore whether a particular technology deserves protection or regulation, that exploration is not particularly helpful to our project. In fact, treating technological developments as sui generis would ultimately defeat the purpose of having a general theory in the first place.

From the standpoint of technological development, this technology-generic approach makes a lot of sense. The dual use nature of technologies has made predictions virtually impossible, and the non-omniscient we do not know machines well enough. Consider the following examples. Thomas Edison did not design phonographs to provide entertainment. Instead, he intended them to be devices for recording and distributing thoughts. Thoughts, not music!

Likewise, Alexander Graham Bell did not invent the telephone for the purpose we use it for today (assuming you still have a landline phone at home or remember what it looked like). Rather, he intended it be a device to pipe music into private homes from distant concert halls. Interestingly, he had the foresight to note that people would find it intrusive for strangers to telephone you (even though I sincerely doubt that he had been "harassed" by a long-distance carrier or a telemarketer).

The most entertaining, yet insightful observation was perhaps the one made by Langdon Winner and others about today’s television. As he wrote, "None of those who worked to perfect the technology of television in its early years and few of those who brought television sets into their homes ever intended the device to be employed as the universal babysitter." An effective babysitter, indeed!

(Unpredictability is not limited to technological inventions; interests in creations are unpredictable, too. If the SuperBowl® or the Bud Lite ads, rather than law and technology, are still on your mind, you can easily wonder whether the creator of this "Big Game on Sunday" had ever imagined that some audience members would find the commercials more entertaining than the game itself!)

One therefore has to wonder what the Internet is, or what computers are. Are they gadgets to record and distribute thoughts? Are they devices for piping music into your home from faraway concert halls, or worse from CD factories? Or are they simply digital babysitting machines? The answer seems to be our college favorite, "All of the above."

The future use of computers has been particularly difficult to predict. Unlike toasters or stereos, computers are general-purpose machines that are capable of a wide variety of uses in our daily life. To be certain, fireplaces had served both intended and unintended purposes. However, there is no doubt that computers have had many more possible uses. How these machines will be used ultimately will depend on who control them, what types of hardware or software have been installed on them, and--in the future--how artificially intelligent they will be.

Given the unpredictability of technological developments, one may wonder whether any Internet-related or technology-specific research is futile. In the law school context, we may also question whether it makes sense to teach cyberlaw--or what Judge Easterbrook has famously described as "the Law of the Horse."

The answer to both questions is an easy yes. We can study general and technology-specific legal theories at the same time. It is not an either-or choice, and our students certainly have enough course credits to do both. In fact, it makes a lot of sense to study "the Law of the Horse" if horses are "popping up" in all different places to affect our daily life and socio-legal order. But I digress. Whether we should study cyberlaw or the Internet is not the focus here. Our discussion here is what a general theory of law and technology should be about if we do not focus on technological contents.

In my view, that theory should be about the interplay between law, technology and society--or, if you wish, law, horses and society. In the study of this interplay, we draw insights from other disciplines, and we explore the interaction between the past, the present and the future. While we may not be able to predict the future evolution of a particular technology, our study is likely to provide useful clues to finding our future path. For legal scholars, knowing what our future path can or should be is likely to be more important than finding out exactly what the path will be.

This brings me to my second observation: A general theory of law and technology should be about the triangular relationship between law, technology and society. In an earlier post, Andrea made a very insightful point about how the theory should concern "the interactions of technologies with the humans who use them." I cannot agree with her more. Human users--or, more broadly, society--should be somewhere in the theory. After all, law and politics always appear in Science and Technology Studies literature (even though law and politics are not mentioned by name in the discipline). Perhaps it might make sense to expand the theory to a general theory of law, technology and society.

The first layer of this triangular relationship between law, technology and society is simple. It goes as follows. Each element, broadly defined, is interdependent on each other, and together they form a complex relationship. Law affects technology and society; technology affects law and society; and society affects law and technology. Art has an interesting piece on law and technology theory. Lyria has a comparative article discussing how legal and political institutions in different countries adapt to technological change. And Gaia, as I mentioned earlier, explored at length the socio-legal acceptance of new technologies. Instead of rehashing what they have already said, let me move on to the second and more complex layer of the triangular relationship, i.e., how a combination of two elements can affect the third.

For example, sociolegal factors can affect technology. Together, law and society can determine which technology will succeed and which one will fail. It is common for us to focus only on the success stories while ignoring failures. However, technologies do not develop in a linear fashion, and our research will benefit considerably if we explore both successful and unsuccessful technologies (to draw on Wiebe Bijker's insight). We should ask not only about what we could learn from the comparison of the development of these technologies, but also why those particular technologies were selected for comparison in the first place.

Similarly, sociotechnical factors affect what the law is. Although I stay away from the technological deterministic view that technology always determines the law, or that technology is unregulable, I think technology and society can play major roles in shaping the law. As Joe Nye and Bob Keohane reminded us, "information does not flow in a vacuum, but in political space that is already occupied." At some point, politics and social developments will influence the legal treatment of new technologies; they will determine whether the law treats them as promises or as threats.

Finally, technolegal factors can affect society. We know that "code is law" and law can regulate code, but we often overlook how law and code are used in combination to shape our life. When law is inadequate, code lends its helping hand; when technology is incompetent, or too expensive, the law provides a supporting mandate.

In the context of the Digital Millennium Copyright Act and anticircumvention protection, I have discussed how law and code can interact with each other to help preserve the important limitations and exceptions in existing copyright law. In a recent book chapter, I also talked about how encryption and genetic use restriction technologies have been used to supplement protection rights holders obtain in the intellectual property system. As the use of computing technology becomes more widespread, technolegal developments are likely to play a bigger role than either law or technology itself.

My final observation about a general theory of law and technology--or, to be more consistent, a general theory of law, technology and society--is that the theory needs to help us understand better about change and continuity--not just technological change, but also legal and social change. The theory needs to provide insight into our use and treatment of history, as the theory is likely to be built partly upon comparisons between laws, technologies and social events at different times.

When we make historical comparisons, we tend to pick the notable earlier successful technologies—in my case, the Gutenberg press and, here, motion pictures (which were selected because of its historical contrast with the print media). (Kieran has made a very interesting comment about the choices we make in technological comparison and how different theories can affect what we select. I’d recommend you read his post.)

What makes historical treatment in scholarship particularly challenging is that history is not always static (although this point concededly remains contested among historians). We collect or re-discover historical facts only after a certain event, and how we perceive a particular issue today often colors our treatment of the past. In The Invention of Tradition, Eric Hobsbawn and Terence Ranger collected a provocative set of essays showing how many of what we consider ancient traditions were only invented comparatively recently. Before we start making technological comparisons, we therefore need to question our historical assumptions.

In the legal context, we face similar issues (as far as the interpretation of prior case law is concerned). As Monroe Price pointed out, in Reno v. ACLU, Justice Stevens revised the way Red Lion Broadcasting Co. v. FCC had been cited in the communications law context. In the past, Red Lion stood for the proposition that "broadcasting was more readily subject to regulation because scarcity of available frequencies made some form of rationing necessary and that necessity allowed the imposition of public interest standards." Although scholars have questioned the technology-based premises, courts seemed not to have been bothered by their queries.

In Reno, however, Justice Stevens used Red Lion to justify the different treatment of the Internet from other media. As Professor Price pointed out, Red Lion in Reno "seems to stand for the proposition that the status of broadcasting as a more regulable medium is historically contingent, rather than solely technologically based." After Reno, one therefore has to wonder how to interpret the Red Lion decision. Does the precedent stand for the proposition that government regulation may be technologically based? Or does it stand for the proposition that media regulation is historically contingent?

The above are just some of my initial observations about a general theory of law and technology. Among all of my three posts, this one is the longest and probably the most ambitious. The conclusions here are also the most tentative. So, please provide me with your comments and feedback. If I have enough comments, I will post my final thoughts and my forthcoming article in this blog after we hear from Shay and Kieran.

In closing, let me thank Gaia and Frank again for bringing all of us together, Jim for hosting us, and all fellow bloggers for their past and future insightful posts and comments. I learned a lot even though I've been a Read-Only Member until this week.

Why Was the Internet Different?

In this second post, I will discuss why the Court treated the Internet differently from motion pictures? As Michael Risch pointed out, there are at least two responses. First, the Internet is a "different animal." Second, the First Amendment landscape in the mid-1990s was very different from what it was at the turn of the twentieth century. This post will first address these two responses (which I describe in my forthcoming article as technological determinism and path dependence) and then add a third explanation (historical contingency).

When new technologies emerge, there is a tendency to have high hopes, inflated dreams, or even "irrational exuberance." For example, when wireless radio technology was introduced, people suggested that world peace would be "only a turn of the dial away." (I wish it were that simple!) Likewise, when the Internet was first developed, its advocates described how the new technology could help the poor and the disadvantaged to realize their full social, economic, political, educational and career potential. Commentators also have noted the Internet's ability to erode the gap between the rich and the poor while strengthening democracy and free speech in authoritarian countries.

Although judges may agree with these prognoses, they cannot just extend protection to the new technology based on its newness or potential benefits. Rather, they have to explain through analogical reasoning why the technology is different in a legal or constitutional sense from existing technologies (such as newspapers, broadcasting, cable or satellite). Is the Internet different because computing technology is less invasive and more interactive? Is the Internet different because Cyberspace is "malleable," to use Justice O'Connor's term? Is the Internet different because market entry is easy, inexpensive and nondiscriminatory? Or is the Internet different because it is less susceptible to domestic regulation?

Even if judges are able to find some "peculiar characteristics" to justify varying treatment, the logic "if new, then protection" does not automatically follow. Instead, they have to explain why those characteristics warrant protection, rather than regulation. After all, the opposite of the logic "If new, then protection" is "If new, then regulation." As much irrational exuberance one can find in a new technology, that technology also has brought with it many irrational fears (as shown in the history of movie censorship in the early twentieth century).

Unfortunately, because most new technologies have a dual capacity for both good and evil, the technological nature itself usually does not offer sufficient guidance on our normative choices. Courts therefore have to look elsewhere to determine whether the technology deserves protection or regulation.

The second response concerns the changing First Amendment landscape. Although the First Amendment was ratified in 1791, its history, as Dan Farber pointed out, is rather short. Indeed, the First Amendment jurisprudence has changed radically in the past few decades. If James Madison were brought back to life today, he might be shocked by what he saw!

As First Amendment jurisprudence evolves, one naturally expects the Internet to receive at least the same free speech and free press protections its technological counterparts have received. Indeed, one could make a strong claim that such protections are path-dependent. What type of protection a new technology will get ultimately depends on what type of protection other once-new technologies now get.

This perspective, however, focuses too much on the gradual expansion of First Amendment protection--to the point that it ignores the increasing regulation of electronic media. In fact, the path dependence argument will hurt rather than help if one focuses on the more restrictive treatment of broadcasting technologies. Such restriction was so alarming that the late Ithiel de Sola Pool underscored the need to preserve free speech in electronic media in his classic 1983 book Technologies of Freedom.

In light of the incompleteness of both responses, let me offer a third response, which I hope will provide a missing clue. (It is only a clue because it will not provide a complete picture.) This missing clue is what I call historical contingency, and this point will reinforce my earlier point about path dependence.

As Gaia Bernstein, the architect of this symposium, has shown elsewhere about artificial insemination, the socio-legal acceptance of a new technology is a long process in which non-technological factors often come into play. (Lyria, thanks for the pointer.) In the current context, it sometimes may be helpful to look beyond the technology to understand why courts and commentators perceived the technology differently.

My former colleague, Justin Hughes, has wondered how different the "path of cyberlaw" would have been had international and comparative law scholars arrived at the debate first. Indeed, when one traveled back to early cyberia, one would find among its "early settlers" a mixed and odd group of American constitutional, criminal, commercial and copyright law scholars.

It is self-explanatory why American scholars arrived there first--and, for that matter, copyright, commercial and criminal law scholars. However, it is somewhat odd to find constitutional law scholars there. No offense, but pioneers as they might be, they were not usually known for their fascination for cutting-edge technologies. So, what happened? Perhaps, their arrival had to do with the time when the Internet first became popular.

Although the Internet can be traced back to the 1960s, the World Wide Web was not invented until 1989. Graphic browsers were launched years later, and the rest is now history. In retrospect, the invention of the Web was a major world event that transformed our daily life. However, 1989 was usually remembered for a different world event: the fall of the Berlin Wall (and the subsequent collapse of the Soviet Union).

The latter event, no doubt, has colored the legal commentary in the early days of the Internet. Consider, for example, Larry Lessig’s well-cited book, Code and Other Laws of Cyberspace. Although the book is often cited today for its technology-related propositions, it cannot be ignored that the book has a strong constitutional foundation--to be more precise, a strong American constitutional foundation. The first sentence of the opening chapter cannot be more revealing: "A Decade ago, in the spring of 1989, Communism in Europe died--collapsed, as a tent would fall if its main post were removed."

To many constitutional law scholars, the cyberspace seems to be an appealing alternative forum--or, even better, a domestic forum--for them to put into practice what they preached, or sought to preach, outside the country. Instead of dealing with the historical baggage of prior constitutional cases or the unappealing post-Soviet environment, they had the freedom and opportunity to develop their "ideal libertarian society." As this scholarship slowly found its way to courts, their approach certainly has influenced the courts’ perception and treatment of the Internet.

Obviously, the fall of the Berlin Wall and developments in Eastern and Central Europe were not the only major developments in the late 1980s that had affected early cyberlaw scholarship. One could note the increasing emphasis on intellectual property rights and the trade in information goods, as was evident in the creation of the Federal Circuit and the negotiation of the TRIPs Agreement of the WTO. There are also other examples.

I highlight the fall of the Berlin Wall here not to suggest a causal link between the event and the Court's pro-Internet stance, but rather to show that the perception and treatment of a new technology are historically contingent. To a great extent, the perception of a new technology is a prisoner of its time. The protection a particular technology gets often reflects the zeitgeist of its contemporary era. After all, who in the right mind would have mistaken a battery-powered cartoon-promoting device as a bomb had it not been for the traumatic events of September 11?!

The discussion here offers three explanations why the Internet was treated differently from its technological counterparts. In the next post, I will explain how these explanatory accounts can help us understand better the interplay of law, technology and society and what a general theory of law and technology should (and should not) be about. As usual, comments and feedback are welcome; they certainly will affect whether you will get to read the ending of this piece (a la Stephen King and my favorite never-ending novel, The Plant).

New Media at the Turn of the Century

Thank you, Frank, for the very kind introduction, and Gaia, for inviting me to participate in this symposium. In an earlier article, I discussed how the encounter of the Church, medieval scribes and Venetian printers with the Gutenberg press had provided interesting insights into our current response to the "digital dilemma" created by the Internet and new media technologies. In this week's entries, I will use a similar approach and offer my thoughts on what a general theory of law and technology would, or should, look like.

My first entry focuses on a new media technology at the turn of the century--the turn of the last century, that is. Motion picture. When the motion picture first emerged, it was the "new, new thing." Except for a few technology enthusiasts, the public rarely saw motion pictures and had limited interest in this new technology. Indeed, when Chief Justice Edward Douglass White and his colleagues were asked to view the oft-banned film The Birth of a Nation, the Chief Justice responded: "Moving picture! It's absurd, Sir. I never saw one in my life and I haven't the slightest curiosity to see one."

By the turn of the twentieth century, however, motion pictures had received a lot of interest and attention. While movies were popular among low-income households, in particular immigrants and new urban migrants, they also became a major concern of social reformers, who considered them a "new kind of urban vice" and called for tougher regulation.

To protect public morality, many states and municipalities enacted censorship laws to regulate the operation and exhibition of motion pictures. In 1907, the Chicago City Council enacted the nation's first motion picture censorship law, which prohibited "immoral or obscene" pictures while requiring exhibitors of motion pictures to first obtain permits from the police department. The States of Pennsylvania, Ohio, Kansas and Maryland soon followed suit by establishing statewide censorship boards, while major cities, like Birmingham, Detroit, Kansas City, Los Angeles, Louisville, St. Louis, San Francisco, Trenton and Washington, introduced local legislation or censorship boards.

The first challenge to film censorship laws as an abridgement of freedom of the press came in the 1915 Supreme Court case of Mutual Film Corp. v. Industrial Commission. There, a motion picture distributor challenged the constitutionality of the Ohio censorship law, asserting that the statute violated the freedom of speech and press guarantees of the Ohio Constitution. (The distributor relied on the Ohio Constitution, because the Supreme Court, at that time, had yet to include freedom of speech and press among the fundamental rights and liberties protected by the Due Process Clause of the Fourteenth Amendment.)

Although the Mutual Film Court recognized that motion pictures might be used for worthy purposes, it underscored the technology's capacity for evil and potential to corrupt the public--children, in particular. Writing for a unanimous court, Justice McKenna distinguished motion pictures from other mediums of expression and found that the exhibition of motion pictures was "a business pure and simple, originated and conducted for profit." The Court therefore held that motion pictures were not part of the press and did not warrant protection under the Ohio Constitution.

The Mutual Film decision was initially well received by the legal community, but its desirability and rationale was soon attacked by commentators and in academic literature. The debate became even more intense when the Supreme Court of Tennessee upheld a ban by the Memphis censorship board on a movie showing a desegregation school class on the ground that "the south [did] not permit negroes in white school nor recognize social equality between the races even in children."

Meanwhile, the technological medium had evolved, partly as a result of the emergence of "talkies" in the late 1920s and partly in response to the industry's self-regulation efforts. By the late 1930s, motion pictures had become a dominant communication medium in American culture. During the Great Depression and the Second World War, movies provided Americans not only with a shared visual experience, but also with a "common bond of language" that helped unify the country.

Moreover, newer media technologies, like radio, television and the sound truck, had emerged since the 1915 decision. As more technologies were developed, motion pictures were no longer considered a "new, new threat" as the Mutual Film Court had found. The subject matter of motion pictures also gradually moved away from the early focus of sex and scandal to the later discussion of racial, social and political matters. As movie content became more serious, the medium was viewed with greater respectability and fostered a closer connection to civil liberties that usually justify First Amendment protection.

Against this background, the Supreme Court began to reconsider its earlier treatment of motion pictures. Shortly after the Second World War, the Court noted in dicta in an antitrust case that motion pictures, along with newspapers and radio, are part of the press as defined by the First Amendment. In another case a year later, three Supreme Court justices again aligned motion pictures with other mediums of communication.

In 1952, the Court finally overruled the unpopular Mutual Film decision in Joseph Burstyn, Inc. v. Wilson. There, a film distributor challenged a New York statute that had permitted Roberto Rossellini's The Miracle to be banned on the ground that the movie was "sacrilegious." This time, the distributor won. Unlike the Mutual Film Court, the Burstyn Court found that the exhibition of motion pictures was no longer "a business pure and simple." Rather, the medium fell squarely within the free speech and free press guarantees of the First and Fourteenth Amendments.

After 35 years, a Great Depression, and two World Wars, the Court finally extended free speech and free press protections to this once-new technology. So, what lessons can we learn from this historical account? Why did the Court treat the Internet differently from its earlier treatment of the motion picture (at least in Reno v. ACLU and other early Internet cases)? Could the comparison between the two contribute to our discussion of a general theory of law and technology? I have some ideas but don't know exactly where I will be going. Comments and feedback will certainly help me find my way forward.

Introducing Peter Yu

Thanks very much for those fascinating posts, Arthur. I look forward to offering some comments once the infamous "March window" of American law review publication passes.

This week, I'm honored to welcome Peter K. Yu (余家明) to Law and Technology Theory. Prof. Yu is the founding director of the nationally-ranked Intellectual Property & Communications Law Program at Michigan State University College of Law. He holds appointments in the Asian Studies Center and the Department of Telecommunication, Information Studies and Media at Michigan State University. He is also a research fellow of the Center for Studies of Intellectual Property Rights at Zhongnan University of Economics and Law in Wuhan, China and a member of the affiliated faculty of the Working Group on Property, Citizenship, and Social Entrepreneurism at Syracuse University College of Law.

Born and raised in Hong Kong, Professor Yu is a leading expert in international intellectual property and communications law. He also writes and lectures extensively on international trade, international and comparative law, and the transition of the legal systems in China and Hong Kong. An editor or coeditor of three books, Professor Yu has spoken at events organized by the ITU, UNCTAD, WIPO and the U.S. and Hong Kong governments and at leading research institutions from around the world. His lectures and presentations have spanned more than ten countries on four continents, and he is a frequent commentator in the national and international media. His publications are available at his website.

One last note: congratulations to Prof. Yu on the recent publication of the magnum opus, Intellectual Property and Information Wealth: Issues and Practices in the Digital Age. Just glance at the table of contents of this four-volume set and you'll be impressed by the comprehensiveness and importance of this work.

A Synthetic Theory of Law and Technology

I’d like to start my last post by thanking Gaia, Frank and Jim for putting this blog together. I also now see my link to ‘digital biosphere’ in yesterday's post was wrong, should be okay now.

Today’s post will discuss a forthcoming co-authored work (with Jason Pridmore) ‘A Synthetic Theory of Law and Technology, Minnesota Journal of Science and Technology (forthcoming 2007)’ where we discuss how a synthetic theory of law and technology could inform law and tech analysis—I don’t have a copy posted anywhere but I’d be happy to email you a copy of the draft, if interested.

The theory draws from existing literature, mainly developed by sociologists. I suppose it might be possible to develop a theory from scratch, examining issues such as the definition of technology, but it may make more sense to draw from a mature body of literature. Other disciplines, such as economists' theories of economic diffusion, might also serve to ground a law and tech theory.

First off, why a synthetic theory? Why not say polyester or perhaps a nice cotton blend? The synthetic theory is a synthesis of two broad theories of technology: instrumental theories and substantive theories. Instrumental theories (probably more like social perspectives than outright theory) tend to treat technology as a neutral tool without examining its broader social/cultural impact. In contrast, substantive theories emphasize the ways that technological systems can exert ‘control’ over individuals, often without their knowledge that this process is taking place.

From our perspective, each theory, standing alone, has disadvantages that reduce their utility with respect to legal analysis. Instrumental theories suffer from the fact that they do not take into full account the contextual complexities that could inform legal analysis in search of optimal policy solutions in an environment of tech change. Substantive theories, on the other hand, appear to over-emphasize the need to address the social impact of technological structures, at the expense of a fuller consideration of human agency and examination of each case on its particular facts and circumstances. We tried to draw out and integrate the most helpful elements of both theories to create the synthetic theory.

It may be helpful to offer an example of the ways that technologies can have a substantive impact (whether political, social, cultural or some other way) on society so that, according to the substantive theories, they should not be viewed as merely neutral tools. In Do Artifacts Have Politics, Langdon Winner takes it as a given that technologies are interwoven into modern politics and in fact embody specific forms of power and authority. To sustain this point, Winner uses the examples of low highway overpasses and mechanical iron molding machines. The overpass bridges were built low to deliberately prevent low-income transportation (e.g., buses) from travelling out of New York towards the homes of the wealthy on Long Island. The iron moulds did not work as well, or as cheaply as skilled iron workers, although they were implemented to effectively prevent iron workers from unionizing, as the steel mill owners now had an alternative, if needed. To Winner, it is obvious that technologies stack the deck in favour of certain social or political interests and, as such, the technologies have a substantive impact on society that exists outside of their intended use.

For a more modern example, consider cell phones: they were developed to enable wireless communications but an unintended use is that they reveal the geographic location of the user, potentially for state investigatory purposes at some later date. So many of us now carry around a state tracking device without a second thought. Substantive theorists—including critical theorists, and folks like Max Weber, Jacques Ellul—worry that technology is embedded within social structures such as capitalism (or Ellul’s technique) that render the actions of human agents insignificant—we no longer seem to mind carrying around tracking devices, which may help to change or ‘determine’ individual and social expectations about privacy in the context of state searches.

We propose a synthetic theory that tries to balance the potentials for restrictive and beneficial forms of social structure against the limitations and potentials of human agency. The synthetic theory could then be directed at the analysis of the three broad themes or general principles at the intersection of law and technology discussed in the last post: (a) the analysis needs to try to account for the complex and interdependent relationship between law and tech; (b) the analysis needs to explore how the regulation of tech could indirectly protect legal interests; and (c) the analysis should explore whether tech change is subverting traditional legal interest and, if so, deploy creative analysis that is less deferential to traditional doctrine in order to preserve these interests.

Consider briefly the deployment of new surveillance technologies and enhanced sharing of personal information among governments in the post-9/11 environment coupled with legal changes in many countries that reduce traditional protections against unreasonable state searches. If a judge is presented with a case involving state searches of terrorist suspects, by drawing from substantive perspectives of technology she could gain a more accurate assessment of the risks associated with reducing legal protections in an era of enhanced surveillance technologies. Under the substantive view, legal analysis should recognize the ‘public’ or ‘social’ aspect of privacy, which is society’s interest in preserving privacy apart from a particular individual’s interest.

Priscilla Regan, for instance, argues that privacy serves purposes beyond those that it performs for a particular individual: she notes that one aspect of the social value of privacy is that it sets boundaries that the state’s exercise of power should not transgress to preserve, for example, freedom of speech and association within a democratic political system (See Priscilla Regan, Legislating Privacy: Technology, Social Values, and Public Policy (1995)). Under this view, even if privacy becomes less important to certain individuals, it continues to serve other critical interests in a free and democratic state (e.g., the need to protect political dissent) beyond those that it performs for a particular person. As such, the preservation of the social value of privacy can be portrayed as consistent with the promotion of long-term security interests.

Consistent with this view, research by sociologists, political scientists and others discusses how surveillance technological advances heighten the risk of unanticipated adverse social consequences. These outcomes include repression of political dissent as surveillance technologies are used to target identifiable groups such as Muslims despite no evidence of individual wrongdoing: this sort of profiling also tends to lead to social alienation of the targeted group who increasingly take on an ‘us’ versur ‘them’ mentality. Our research team, the Queen’s Surveillance Project, discusses some of these issues in the context of a recent public enquiry involving a Canadian citizen who was sent by U.S. authorities to Syria where he was tortured for over a year, in part as a result of inaccurate information provided by Canadian police agencies. We are trying to reform Canadian law to exert more public oversight over Canadian agencies and their sharing of information about Canadians with foreign agencies.

Promoting Conversations among Different Tech Law Analysts

Can the regulation of cars tell us something about proposed Internet laws? Can the approval process for new biotech drugs help us to understand copyright law? Does legal analysis share common attributes when faced with situations involving technological change? Is it worth studying technology change and its broad interplay with law? If a tree falls in the forest does it make a sound? The hope is that working toward a law and technology theory could help us to answer at least some of these questions (although the last one is tricky).

As mentioned in my last post, it is possible to identify the three following themes in scholarly works that deal with law and technology matters: (1) an understanding of the complex and non-linear relationship between law and technology; (2) an exploration of the ways that laws could shape technological developments to protect legal interests; and (3) an awareness of different ways that law could respond to technology change that threatens legal interests. I also said that a critical examination of these matters might bear fruit in the sense that it will encourage a fuller exploration of the legal interests at stake to promote more sound policy outcomes. Today’s post will try to show how this categorization process could help scholars in different technology law areas enter into a conversation with each other to provoke a deeper understanding of their own fields of research.

I’d like to take up these themes in the context of technology change and tax policy (a strange obsession of mine for which I am considering seeking counseling). More specifically, I’ll focus the discussion on challenges to traditional tax law jurisdiction by enhanced cross-border consumer sales promoted over the Internet.

Here is the basic issue: The last few decades have witnessed increased amounts of cross-border consumer sales of goods and services in part as a result of tech developments like enhanced mail-order sales. The policy issue became more pressing since the mid-1990s as a result of an increase in cross-border consumer sales over the Internet (e.g., book sales via Amazon.com to foreign consumers). The problem is that many subnational governments (i.e., state, provincial or local governments) as well federal governments have a tough time enforcing their tax systems outside of their borders. I’ll address the problem by discussing the three themes noted previously.

Complex relationship: Technology scholars often assert that there is generally not a linear relationship between legal and technological developments—Marshall McCluhan, for instance, proposed four ‘laws’ to help understand how media and technologies interact with culture (He asked: What does the technology extend? What does it make obsolete? What is retrieved? What does the technology reverse into if it is over-extended?). As an explanatory device, I’ve analogized the Internet with a digital biosphere to help show how the law, network, real world values, cyberspace values all interact in a dynamic and interdependent, almost organic, relationship. The Internet promotes cross-border sales but a likely unintended use of the medium is it would also permit automated tax collection that could help tax authorities collect taxes from international transactions. Such automated tracking and tax collection, that could identify the Internet consumer’s geographic location and purchasing habits, runs up against privacy concerns. Could the automated collection system be used by the state in the war on terror and inhibit freedom of expression as folks won’t purchases certain books if records were kept? The lesson here is to tread carefully where laws and policies surrounding technology could have a substantive impact on society apart from the technology’s intended use.

Technology is Law: Under the technology is law approach, governments should consider regulating the development of technology to promote other goals such as their ability to collect taxes. Consistent with this view (aka 'code is law'), some governments are seeking to extend their tax jurisdiction over remote sales with the help from an automatic online tax collection system. For example, U.S. state tax authorities are worried that they are losing roughly $15 billion a year because they can’t collect sales (and use) taxes on sales to consumers living outside of their state borders. As a result, they are sponsoring something called the Streamlined Sales Tax Project whereby they have agreed to adopt a common tax base for sales and use taxes for state and, gulp, over 7,000 local governments (this is actually a radical reconception of U.S. fiscal federalism as many state governments have agreed to give up significant fiscal sovereignty because they used to be able to design their state sales tax systems as they saw fit). To promote tax compliance, the state tax authorities are immunizing businesses from liability for uncollected sales taxes—as long as these businesses ‘voluntarily’ sign on to the new regime. Privacy protections are also being built into the design of the online collection system. Some of the researchers who write in this area, like Walter Hellerstein and Charles McLure Jr., suggest the states have reacted properly by designing laws to preserve existing values (i.e., their ability to collect taxes on consumer sales). In this case, a radical legal change is thought to be needed to confront the challenges posed by technology change—state governments were prepared to sacrifice one set of values (fiscal sovereignty) to salvage another (the desire to inhibit tax revenue losses) via a technology is law approach.

Law is Technology: Under the law is technology approach, an attempt is made to see what legal response, if any, is necessary to address tech change that subverts legal interests. In contrast to the U.S. state tax authorities, governments have done a poor job at addressing the international income tax jurisdiction challenges promoted by the Internet. After years of deliberation, governments with the Organization for Co-operation and Development (OECD) have agreed that they won’t tax profits from foreign Internet businesses unless these businesses sell goods or services through a computer server (i.e., a computer that has been networked to the Internet) located in the consumer’s country (more technically, the OECD model tax treaty Commentaries were amended to reflect this new rule). This was, to put it charitably, an unhelpful policy change as it will promote aggressive tax planning and, more importantly, not ensure a fair sharing of tax revenues between countries—there are now tens of millions of servers around the world that could serve as nexus for international income tax purposes. In most other tax areas, the OECD did a good job, but this experience shows that, when a legal response is needed, regulators need to take care not to over-reach or develop rules that will not effectively protect existing values.

So really all I’ve done above is to group the interests into three categories that, it was claimed, are broadly shared with other law and technology analysis: the categories are fuzzy and fairly obvious (self-evident?) so that their usage could permit a conversation among lawyers and researchers in different tech law field; a tax lawyer could learn from a patent lawyer and vice versa (Gaia’s posts discussed some of the problems associated with this approach). I’ve also said that law and technology analysts should try to take a more critical examination of the legal issues within the three categories. In my last post this week, I’ll discuss how a ‘synthetic theory’ that combines instrumental and substantive theories of technology could inform this analysis. Not exactly a cliffhanger ending, I know . . . .

On The Potential for a Law and Technology Theory

Thanks for the kind introduction Gaia. I thought I’d start off with a boosterish post on the potential for a law and technology theory.

What could such a theory accomplish? Could it ensure world peace? Solve ongoing scientific attempts to generate a unified field theory? Provide every hungry child with a bowl of steaming porridge? Well, maybe or maybe not …

Here’s the real potential: law and technology theory could help us to organize and make sense of the various areas of law with law and technology themes (copyright, biotech, cyberlaw, new media, etc.) to promote more fully-informed legal analysis. To assist with this organization, a law and technology theory could help us to generate common themes or general principles that run through these seemingly disparate areas of tech law. Once these general principles have been discerned, a law and technology theory could reflect back on the different areas of tech law: the theory would act as one more tool within a scholar’s methodological toolbox to promote legal analysis that strives to determine optimal social policy. At the end of the day, a law and technology theory could counter Judge Easterbrook’s view that studying technology in compartmentalized areas like cyberlaw is like studying the ‘law of the horse’ (see Frank H. Easterbrook, Cyberspace and the Law of the Horse, 11 U. Chi. Legal F. 207 (1996)). The broader perspective could help to shed insight into the whole law (or in Easterbrook’s words, “illuminate the entire law.”).

So the trick then will be to generate general principles applicable to different areas of technology law. Lyria Bennett-Moses, Greg Mandel and others have discussed these matters in different posts, and I’ll briefly touch on one possible approach. For a symposium issue on 'What is legal knowledge?', I wrote an article on Towards a Law and Technology Theory, 30 Man. L.J. 383 (2004), where I tried to set out common themes or general principles at the intersection of law and technology analysis:
First, the relationship between law and technology is complex and non-linear.
Second, the regulation of technology itself can indirectly promote interests and values (also known as ‘technology is law’, which is really just Lessig's ‘code is law’ writ large).
Third, law seeks to address technological developments that destabilize traditional interests and values protected by law (or ‘law is technology’).

In the article, I made the claim that the better analytical approach at the intersection of law and technology is to critically examine these three principles (I called this approach the ‘liberal approach’, a confusing term as it gives rise to assumptions about the political philosophy of liberalism, but I digress …). The other ‘conservative’ form of analysis—less sensitive to the ways that technology and law interact—is less helpful. I then went on to claim that the liberal and conservative approaches both get integrated into the law in different ways. The liberal approach destabilizes the law as novel or creative ways of preserving traditional interests in light of tech change become integrated in other areas of law that have not witnessed similar tech change (for example, a more flexible interpretation of offer and acceptance for shrinkwrap contracting purposes will eventually become integrated into other areas of contract law). As such, the liberal approach undermines the common law principle of stare decisis because old decisions may be less helpful as precedents for present or future cases, making it more difficult for lawyers to predict the outcome of a case when they advise clients.

But the conservative approach leads to even more instability due to the need for a later and greater ‘correction’ to attempt to recapture or preserve traditional values. By way of example, consider wiretap searches and U.S. constitutional protections against unreasonable state searches. In its first review of this issue (Olmstead in 1928), the U.S. Supreme Court ruled that wiretap searches did not involve a physical search of the home and thus did not implicate the Fourth Amendment's protection against unreasonable state searches. Justice Brandeis, in his well-known dissent, deployed more forward-looking and flexible analysis to show how a wiretap search invades privacy and potentially enables abusive state actions that, at least in the long run, would make the public less secure. For forty years, there was significant instability in this area of law until the Supreme Court reversed itself and adopted Brandeis’ views (Katz in 1967). In other words, the initial ‘conservative’ form of analysis led to significant instability until the correction took place in Katz. If this vision of the transformation of the law is accurate, it serves as evidence that the liberal analytical approach is the preferred one.

The hope is that this transformative process will help provide insight into the ways the law reacts to technological change. Because tech change can differ from other forms of social change (as Lyria discussed in a previous post), I was trying to set out a few thoughts on a law and technology theory rather than a general theory about how the law works.

If you are still with me at this point, here's my plan for the rest of the week. My next post will address the three themes identified above with respect to tax policy developments. Then I’ll follow with a post on our more recent work in this area where Jason Pridmore and I discuss how a ‘Synthetic Theory of Law and Technology’ builds on the view that we need to incorporate more critical analysis of the ways that technology change can undermine legal interests.

Introducing Arthur Cockfield

Thank you to Greg Mandel for a week of very interesting posts! It is my great pleasure to introduce Arthur Cockfield. Art is Associate Dean and Associate Professor at Queen’s University Faculty of Law in Canada. He received his J.S.D. and J.S.M. from Stanford Law School, his LL.M. from Queens University and his B.A. from the University of Western Ontario.

Art writes in the areas of law and technology, privacy and and tax. Among his recent and forthcoming publications are a book titled; Technology, Privacy and Justice (co-edited with Lisa Austin) (forthcoming Montreal: Editorial Themis 2007); Protecting the Social Value of Privacy in the Context of State Investigations Using New Technologies, University of British Columbia Law Review (forthcoming 2007) and Towards a Law and Technology Theory, 30 Manitoba Law Journal 383 (2004). Art has also authored a novel titled: The End.

Seeing Art’s article Toward a Law and Technology Theory on SSRN about a year and a half ago made me realize that there are several of us in different countries who are writing and thinking about these issues and that it would be helpful to open a dialogue between this emerging group of scholars. Art was one of the participants in the Law & Society panel from which this symposium originated. This week, he is going to discuss his paper: A Synthetic Theory of Law and Technology, which he is co-authoring with Jason Pridmore. I am sure this will prove to be a very interesting week.

Guideline III: The Types of New Technology Disputes are Unforeseeable

The final guideline that I offer here for a general theory of law and technology is that decision-makers must remain cognizant of the limits of their knowledge about new technology and the unforeseeability of what new issues will arise in the future. Particularly in initial stages of technological development, it is inevitable that legal disputes cnncerning a new technology will be handled under preexisting legal schemes. In early stages, there often will not be enough information and knowledge about nascent technologies to develop or modify appropriate legal rules, or there may not have been enough time to establish new laws or regulations for managing the technology. There also often is an inclination to handle new technology disputes under existing rules; this is usually the easiest response both administratively and psychologically. Not surprisingly, however, preexisting legal structure may prove a poor match for new technology.

The regulation of biotechnology serves as a one example (among many). As the biotechnology industry developed in the early 1980s, the federal government determined that bioengineered products generally would be regulated under the already-existing statutory and regulatory structure. The basis for this decision was a determination that the process of biotechnology was not inherently risky, and therefore that only the products of biotechnology, not the process itself, required oversight. This decision has proven to be at least questionable. As a result of this decision, biotechnology products are regulated under a dozen statutes and by five different agencies and services. Experience has revealed gaps in biotechnology regulation; inefficient overlaps in regulation; inconsistencies among agencies in their regulation of similarly situated biotechnology products; and instances of agencies acting outside of their areas of expertise. I will not go into the specific problems in this post; they are discussed comprehensively in an earlier article.

The admonition to be aware of what you do not know and to recognize the limits of foresight is clearly a difficult one to follow. This guideline highlights the need for legal regimes governing new technologies to be flexible and reveals that it should be anticipated that preexisting legal regimes may run into problems when being used to govern technology that did not exist when the regimes were created. A leading current candidate for application of these understandings is the management of nanotechnology.

I will conclude my posts by responding to a potential critique of these guidelines generally: that the guidelines describe a general legal theory, one not limited to law and technology. The suggestion to consider the legal basis for existing doctrine before extending it to new application, for instance, is appropriate for all manner of legal decisions. There are two broad reasons why the theory offered here is one particular for law and technology. First, certain of the guidelines are only applicable to law and technology issues—for example, that legal decision-makers should not let their amazement with new technology overrun their legal analysis, or that legal regimes developed prior to the advent of a technology often reveal gaps and other problems when applied to future technology issues. Second, for the guidelines that do have significant general application, the interaction of technological development and the legal system renders the guidelines particularly apposite for resolving new technological disputes. Determining the basis for legal constructs before extending them does apply in many situations, but the nature of technological advance means that this consideration is a ubiquitous concern for handling new legal disputes caused by technological advance.

Guideline II: Do Not be Blinded by the Technology

A second guideline for law and technology is that decision-makers must look through the technology involved in a dispute to focus on the legal issues in question. Sometimes decision-makers have a tendency to be blinded by spectacular technological achievement. I’ll again offer examples from historic and modern technological advances.

At the beginning of the 20th Century, courts for the first time confronted the admission of fingerprint evidence to prove identity. In several murder cases, courts admitted fingerprint identification testimony—evidence that was often critical to conviction—without any concrete evidence of the accuracy or reliability of fingerprint identification. Rather, courts simply relied on the testimony of law enforcement officials who worked with fingerprints. These officials, however, did not testify to the reliability of the fingerprint identification method, but rather to there being resemblance between a defendant's prints and the prints found at a crime scene. Reading the early opinions, one is left with the impression that courts were simply very impressed with the concept of fingerprint identification. Fingerprinting was perceived to be an exciting new schentific ability and crime-fighting tool. The opinions are rife with substantial description of the fingerprint identification method and the experts’ qualifications, but lack analysis of fingerprint identification reliability or recognition that the experts testifying had a significant self-interest in having their new line of work justified by judicial approval.

At the end of the 20th Century, courts confronted the admission of DNA evidence to prove identity. Despite a century of scientific advance, courts were prone to strikingly similar errors. Oregon v. Lyons, for instance, concerned the admissibility of a new method of DNA identification, the “PCR replicant method,” a process for determining the probability of a match between a defendant’s DNA and DNA from a crime scene. As in the earlier fingerprint cases, the Lyons court admitted the DNA evidence relying on the expert’s own testimony that the method was reliable and that there were no errors in his method or analysis. Also similarly, the DNA identification testimony was admitted without evidence concerning the reliability of the method under crime scene conditions and without analysis of the expert's self interest in the admission of the evidence (an even greater conflict here, as it was a private company that conducted the test). Like the fingerprint cases, the court appears amazed by the technology—the opinion includes not only a lengthy description of the PCR replicant method process, but also an extended discussion of DNA, all irrelevant to the issue of reliability.

Lest the above discussion be dismissed as nit-picking critique, it is worth noting that both fingerprint and DNA identification evidence came under later scrutiny concerning reliability. A number of significant problems were identified concerning methods of DNA identification, and courts in some instances held DNA evidence inadmissible. Eventually, new procedures were instituted and standardized, and sufficient data was gathered such that courts now generally routinely admit DNA evidence. Intriguingly, the challenges to DNA identification methods led to challenges to fingerprint identification evidence. Despite its long use and mythical status in crime-solving lore, at the end of the 20th Century fingerprint identification methods still lacked established criteria for requirements for a fingerprint match, data on how likely it is for different individuals’ prints to match, or data on how likely it is for an expert err in identification. In 2002, a district court held fingerprint identification evidence inadmissible as unreliable. Following an uproar and a hearing at which multiple FBI agents testified, the court reversed its decision.

In sum, decision-makers must not be blinded by the wonder or promise of technology when judging the new legal issues created by impressive technological advance. It is a lesson that is easy to state, but more difficult to apply, particularly when a decision-maker is confronted with a new technology for the first time and a cadre of experts testifies to its spectacular abilities.