Widening Gap Between Technology Advances and Legal System: Giving Rise to Absurdities–Thorny Legal Issues…

Gap Between Laws and Technology: Thorny legal issues are emerging between laws and regulations, and technologies that are evolves at breakneck speed… Anyone who owns a smart phone knows that just keeping up with advances in technology is insane.

What happens when technology moves faster than the law? Case(s) in point; drones, driverless cars, digital media ownership, gene therapy… People are being sued for– posting on social networking sites, privacy, defamation, intellectual property… all virtually unimaginable 25 years ago.

According to Milo Yiannopoulos; widening gap between technology advances and the justice system is giving rise to absurdities. What’s at stake? How about: Financial interests of inventors, researchers, users, artists… but, most important, innovation and creativity itself. Now there are only questions; answers will certainly come; but, will they come fast enough to keep pace with technology? According to Henry Perritt, Jr.; laws have always lag technology because the ‘common law’ tradition says that the law and legal system should not predetermine course of technology. 

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Traditionally, technology innovation was embraced by early adopters who were followed by the masses… Today, technology innovation is embraced by early adopters who are followed by lawyers… According to Larry Downes; technology innovators must improve by anticipating legal challenges at the heart of their innovations… Most challenges don’t come from the government but from competitors who use the legal system to slow or stop the progress of innovations that they find threatening…

Often the tendency for technology innovation to change the rules of industry is invariably faster than the industry wants to change: Laws are one of the principal weapons of resistance… Modern business law is remarkably complex even in just one country, but add globalization and complexity of laws is off the charts… According to  Ray Kurzweil: analysis of the history of technology shows that technology change is exponential, within few decades machine intelligence will surpass human intelligence, technology change is so rapid, profound it represents a rupture in the fabric of human history…

In the article Laws Must Keep-Up With Technology by Milo Yiannopoulos writes: There is a rapidly widening gap between the speed of technology innovation and the laws set-up to govern. Worse there’s an enormous cultural gulf between the general public and judiciary, whose job it is to interpret and apply those laws. Ignorant of the nuances of the Internet and mistrustful of the milieu from which social media types emerge, judges are simply not qualified to determine the appropriateness or effect of a tweet…

Increasingly, debate in the public square is being carried out online, on permanent and public social platforms. These platforms are fast-paced, aggressive worlds that encourage rapid-fire debate and quick thinking, and they are adversarial by nature… In other words, these platforms are changing the flavor of public discourse. The widening gap between technology advance, Internet culture and the law has already led to expensive, pointless absurdities being played out in courtrooms…

In the article Laws and Ethics Can’t Keep Pace with Technology by Vivek Wadhwa writes: Laws and ethical practices have evolved over centuries. Today technology is growing on an exponential curve touching practically everyone, everywhere… Changes of magnitude that once took centuries now happen in decades, even years, months… And, we haven’t come to grips with– what is ethical, let alone with– what laws should be, for technologies, such as; social media…

Consider for example; smartphones track your movements and habits, Internet searches reveal your thoughts, wearable devices and medical sensors are being connected to smartphones providing  information about a person’s physiology and health in the public domain… Where do you draw the line on– What is legal and ethical? There will be similar debates about– self-driving cars, drones, robots… These too will record everything you do, and will raise new legal and ethical issues.

What happens when a self-driving car has a software failure and hits a pedestrian, or a drone’s camera happens to catch someone skinny-dipping in a pool or taking a shower, or a robot kills a human in self-defense? Thomas Jefferson said in 1816; Laws and institutions must go hand in hand with progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions…

The Law (Legal System) and Change in Technology: This article is an adaptation of an article by Scott Brinker. There are two things that are true: 1. Technology is changing very rapidly and these changes seem to be accelerating… 2. Laws and the legal systems are also changing; they are changing– how they think and how they behave… but they are changing very slowly and not keeping pace with technology… Consider the chart (below) with– Y-axis representing  ‘change’, and X-axis representing  ‘time’. As disclaimer: this chart is an intuitive estimate of change and is not a rigorous scientific formulation…

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Technology advances exponentially as shown in the sharply rising ‘blue curve’, which is a generally accepted phenomenon, for example; Moore’s Law is the exponential growth of computing power… Metcalfe’s Law is exponential value of interconnections on expanding networks… and futurist Ray Kurzweil identified exponential technological progress on many fronts as part of a ‘Law of Accelerating Returns’… 

Of course, some kinds of technology changes are harder to quantity, for example; how should you measure how fast social media is changing? Very difficult; but it’s reasonable to suggest that the velocity of technology change can be characterized as something faster than– steady or linear growth.

Whereas laws, typically, ‘absorb’ change logarithmically— as shown in the chart with the much slower rising ‘red curve’– It takes the legal system much greater time  to understand, deliberate, execute… The legal system and its laws is a highly complex structure with– precedent, process, cultural, institutional resistance…

Hence, one of the great dilemma of the 21st century is the relationship between these two curves… The simple fact is that technology is changing much faster than laws can absorb change. That is crux of technology management: We cannot adopt all technology changes, but we can consciously choose some. Great technology management is choosing which changes to absorb into laws and how the laws will accommodate new technologies. 

It’s up to lawmakers to pass laws and courts to uphold them. In the absence of new legislation specifically addressing technology advances, courts must decide cases based on laws in place and cases already decided… Before businesses incorporating new technologies they must consider the legal traps that might be involved…

In the article Can Laws Keep-Up With Technology? by Manav Tanneeru writes: Legal experts say that it’s difficult for the law to keep pace with emerging technology, and there are several reasons why laws tends to play catch-up. The first is that it’s typically difficult to predict or anticipate technology innovations… Another reason is that it’s difficult to handle cases that deal with the Internet because it confronts a fundamental schism: Is the Internet a unique, separate space or is it really an extension of real space?

That concept might be a little bit abstract, but think of it this way: When a person dies, a house, property or car owned by that person can be passed on, relatively easily, to a family member or an identified heir… But what about online property like account profiles, passwords, digital content? We really haven’t thought about this much because there haven’t been many generations of users with copious digital assets to even trigger the need to think about what happens if they pass away… Another challenge for the law is the way the Internet crosses state and international borders.

For example; let’s say a Facebook user in UK sues another user in Australia for defamatory comments posted on a website. Who has jurisdiction over the case, which country’s laws should be applied: UK, Australia, U. S., where Facebook is based? One last hypothetical: Let’s look at a Facebook or Twitter network of 10 people. Half of them are co-workers; the other half are not. One co-worker is offended by something another co-worker says: Do harassment laws apply?

Does the company that employs some of the people have any liability? There’s an increasing breakdown of the traditional social boundaries between workplace, personal, public information… It’s a time of cultural shift and this is going to take a while to stabilize itself and shake out and, apparently, the process has begun…

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In the article Can Law Keep Up with Technology? by Heather Bussing writes: Laws are based on people, places, things… But technology and the Internet aren’t: The Internet is not a place, it’s everywhere and nowhere in particular… Digital information is not a thing: It flows in tiny packets and exists in multiple copies just to be seen and used… And, people are becoming great files of data as companies track everywhere you go online, how long you stay, what you look at and buy, where you go in the world, who your friends are, and how you interact with them…

Technology and the ways you use it is changing the role of law and lawyers. Companies and their attorneys need to start thinking about how to make a difference in digital and data driven world. Courts and legislatures are struggling to keep up with the fast pace of technology: New laws and cases are quickly outdated… State legislatures are rushing bills into law to protect employees, job applicants… But, neither Congress nor legislatures are capable of keeping up with how fast technology is moving…

Applying old existing laws to today’s digital landscape can be challenging for the legal system and risky for individuals and businesses… According to Markland Hanle; the legal community is not ready for the issues that emerging technologies bring… Ask most law firms what they know about biotechnology, nanotechnology, Internet, social media… and, in fact, for most technology advances and all you’ll get is a blank stare…

Sadly, most law firms are no more familiar with emerging technologies and scientific advances than the juries that they are trying to convince. As technology advance, the education of the legal community must advance as well… Advances in new technology demand new breed of lawyers, judges, juries– people who can understand the complexity of technology, and more important, its impact on business, society…