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.
Monday, January 22, 2007
Friday, January 19, 2007
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.
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.
Thursday, January 18, 2007
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.
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.
Wednesday, January 17, 2007
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.
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.
Tuesday, January 16, 2007
History Lessons for a General Theory of Law and Technology
Thank you for the introduction Frank, and thank you Gaia and Frank for organizing this discussion. I am excited to take part in it.
I want to elaborate on a theme that has been touched on in several posts and comments: whether certain legal issues that arise as a result of technological change are recurring. Stated another way, can we frame a general theory of law and technology by studying how prior law and technology issues have been handled, and developing a set of guidelines for how the legal system should respond to future law and technology issues as they arise.
I believe that examining historic responses to new legal issues brought about by technological advance reveals that we can develop such common guidelines. Considering historic responses will not provide a complete road map for responding to each new law and technology issue—such a goal is unachievable considering the wide variety of technological change and wide variety of legal disputes—but the history lessons can offer a number of useful guidelines for how to confront novel law and technology issues. In following posts I will discuss three lessons: (1) that preexisting legal categories may not apply to new technology issues, (2) that decision-makers should not be blinded by the wonders of a new technology in deciding how to handle disputes concerning the technology, and (3) that the types of new disputes created by technological advance are unforeseeable.
These three guidelines are only intended to be examples, not a comprehensive list. I welcome any other examples. Critically, I contend that these guidelines are applicable across a wide variety of disparate technologies, even technologies that we cannot conceive of presently. In this manner, the guidelines represent one form of a general theory of law and technology.
I want to elaborate on a theme that has been touched on in several posts and comments: whether certain legal issues that arise as a result of technological change are recurring. Stated another way, can we frame a general theory of law and technology by studying how prior law and technology issues have been handled, and developing a set of guidelines for how the legal system should respond to future law and technology issues as they arise.
I believe that examining historic responses to new legal issues brought about by technological advance reveals that we can develop such common guidelines. Considering historic responses will not provide a complete road map for responding to each new law and technology issue—such a goal is unachievable considering the wide variety of technological change and wide variety of legal disputes—but the history lessons can offer a number of useful guidelines for how to confront novel law and technology issues. In following posts I will discuss three lessons: (1) that preexisting legal categories may not apply to new technology issues, (2) that decision-makers should not be blinded by the wonders of a new technology in deciding how to handle disputes concerning the technology, and (3) that the types of new disputes created by technological advance are unforeseeable.
These three guidelines are only intended to be examples, not a comprehensive list. I welcome any other examples. Critically, I contend that these guidelines are applicable across a wide variety of disparate technologies, even technologies that we cannot conceive of presently. In this manner, the guidelines represent one form of a general theory of law and technology.
Welcome Gregory Mandel
It is my great pleasure to introduce Professor Gregory Mandel to Law & Technology Theory. I found Mandel's Technology Wars: The Failure of Democratic Discourse to be one of those rare monographs indispensable to understanding current technology policy. Mandel's empirical scholarship also made a stir in the IP field last year when it helped inspire a leading IP academic/practitioner to reverse course on one of the most important patent disputes to reach the Supreme Court in decades.
Prof. Mandel is Associate Dean for Research and Scholarship, and Professor of Law, at Albany Law School. He is currently on an American Bar Association task force briefing the Environmental Protection Agency on arising nanotechnology issues, on the Advisory Board of the Science and Technology Law Center, and on the Faculty of the Alden March Bioethics Institute.
Prof. Mandel specializes in the interface among technology, science and the law. He is the author of numerous publications, including articles on patent law, nanotechnology law, biotechnology law, and on how society should handle new technologies and technological risk. Prof. Mandel has presented his work internationally at over 20 law schools and other institutions, including for the United Nations. He has consulted with a variety of senators, representatives, administrative agencies, and private entities concerning technology legislation, regulation, and social and economic effects.
Prof. Mandel is Associate Dean for Research and Scholarship, and Professor of Law, at Albany Law School. He is currently on an American Bar Association task force briefing the Environmental Protection Agency on arising nanotechnology issues, on the Advisory Board of the Science and Technology Law Center, and on the Faculty of the Alden March Bioethics Institute.
Prof. Mandel specializes in the interface among technology, science and the law. He is the author of numerous publications, including articles on patent law, nanotechnology law, biotechnology law, and on how society should handle new technologies and technological risk. Prof. Mandel has presented his work internationally at over 20 law schools and other institutions, including for the United Nations. He has consulted with a variety of senators, representatives, administrative agencies, and private entities concerning technology legislation, regulation, and social and economic effects.
Many Thanks to Andrea Matwyshyn
Thanks very much to Andrea for a week of fascinating posts. I'm afraid I was in the midst of writing a technology self-study for my law school, so didn't have much time to comment at the time, but hope to later. One of the nice things about this format is that the opportunity for comment that disappears at the end of "real-space" conference panels is always available in cyberspace.
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