Monday, February 05, 2007

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.

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