Guideline I: Examine the Basis for Legal Constructs

The first guideline for a general theory of law and technology I propose is that one must examine the basis for preexisting existing legal categories before extending them to new technology issues. Examples of the invention of the telegraph 150 years ago and the development of the Internet today help to elucidate this point.

The advent of the telegraph led to disputes over telegraph company liability for miscommunicated telegraph messages. Two different courts confronted this same issue in Parks v. Alta California Telegraph Co. and Breese v. U.S. Telegraph Co. Both courts concluded that the outcome hinged on whether a telegraph company was a common carrier. Common carriers, such as companies that transported goods, were automatically insurers of the delivery of the gonds. The Parks court concluded that telegraph companies were common carriers, and therefore liable for the loss caused by miscommunicated messages; after all, telegraph companies delivered messages just like companies that delivered physical goods also delivered messages (letters). The Breese court concluded that telegraph companies were not common carriers, reasoning that the law of contract should govern, and therefore that telegraph companies were liable for no more than the cost of the telegraph in the case of a miscommunicated message.

The problem with each courts’ analysis lies in comparing the function of the new technology to the function of the prior technology as a basis for deciding whether to handle a new legal dispute under pre-existing legal rules and categories. A decision-maker, rather, should consider the rationale for the existing legal categories in the first instance, and then determine whether that rationale applies to the new technology. In the case of the telegraph, for example, the rationale for common carrier liability may have been to institute a least-cost avoider regime and reduce transactions costs (among other reasons). This rationale may not apply to telegraphs because they offered a new, easy, cheap method of self-insurance—having the message returned to the sender to check its accuracy.

The same problems can be seen in issues concerning how to resolve disputes brought about by modern advances in communication. Students of internet law are familiar with cases in which courts prohibited the sending of unsolicited email (spam) pursuant to the ancient common law doctrine of trespass to chattels. Courts got around the requirements of physical contact with the chattel, dispossession, and impairment by considering the electronic signals to be physical, band-width to have been dispossessed, and the computer to have been impaired. While one can understand a desire to limit spam, these holdings present the same problem discussed above. In extending a doctrine developed for dispossession of a physical chattel, courts failed to realize the implications of their decisions. The holdings, for instance, would render all unsolicited email, physical mail (junk mail), telephone calls, and even advertisements on broadcast television trespass to chattels.

Preexisting legal categories may be applicable in some cases, but the only way to determine this is to examine the basis for the categories in the first instance, and whether that basis is satisfied by extension of the doctrine. Legal categories (such as common carrier) are only that—legal constructs. Such constructs may need to be revised in the face of technological change.