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 scientific 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.


Anonymous Dean C. Rowan said...

Although I agree with the gist of both guidelines, I detect a tension between the two. Specifically, Guideline I suffers from the blindness identified in Guideline II. Take this comment from Prof. Mandel's responses to the early post:

"One problem with the spam decisions lies in their failure to recognize the difference between use of an (ethereal) email system and use of physical property."

Running an e-mail server or a network soon disabuses one of the notion that the "system" is "ethereal." The system is all too mundane and palpable, subject to all sorts of damage not unlike that which plagued ancient chattel. This realization doesn't per se argue for the application of greyed legal doctrine to new circumstances, not least because the analogy only extends so far. One can't steal away with an e-mail message in one's pocket, for example. Prof. Mandel's prescription for caution is prudent, but treating new telecommunications technologies as categorically different from older tools is itself an instance of falling for spectacular hype.

Take this distinction, for instance: "The apparently appropriate spam concerns are not primarily over the use of physical property (computers), but over inappropriate interference with business and customers." The question remains begged here, because the interference is directly a consequence of a physical occupation. This fact has to be acknowledged if the technology is to be understood.

1/18/2007 12:07 PM  

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