Monday, February 23, 2009

Technology bias

In her comment on my previous post, Gaia Bernstein asks an important question:

The question is should the autonomy of scholars be constrained and their efforts be directed to areas of law where their insights would be most effective?
Actually, I agree with Gaia, that the answer is "no." I am not attempting to cramp the autonomy of legal scholars to write about what they wish, only to encourage greater self-reflection.

No single article or author writing about virtual worlds is doing any wrong or harm. Having read 126 such articles, many of them are very interesting - as I have said previously, I love legal hypotheticals involving new technologies. I am not the only one - analysis of legal issues surrounding new technologies (from virtual worlds to genetics) can often be found in the mainstream media. And no-one is harmed by an exploration of how transactions concerning a moon platform or a virtual mace are classified from a legal perspective.

But there are concerns that result from legal scholars' interest in technology. The first is that raised by Beebe, it allows lawyers to pretend that law is still in control. We "domesticate" technological innovation by analysing it in legal terms.

Interest of this sort is usually short-lived, so that we still have cyberlaw (though much of this is being assimilated) and virtual law, but no longer railroad law. And we now expore property concepts by testing them against virtual objects rather than space platforms. If the point is to understand "property" better, why no longer space platforms?

The other concern is that legal scholars might focus on technological aspects of particular issues, while ignoring broader questions. It is one thing to say that the law can control technological monsters, but another to see only technological monsters.

For example, technology might be portrayed as a “monster” while analogous non-technological threats recede into the background. Consider Frank Pasquale’s discussion on this blog and in a previous article of the dangers of technologies that offer competitive advantage. As I said in my comment, I personally find the idea of neurocosmetics pretty horrific. But I have no trouble using parenting techniques to manipulate my childrens' personalities. In using such techniques, I am taking advantage of my children’s neuroplasticity to alter (to some extent at least) their future "selves." In this way, parenting can operate as an alternative path to the ends achieved by neurocosmetics. But parenting is not “scary,” not even if I know that it gives some children an “advantage” over children whose parents, perhaps due to socio-economic disadvantage, lack the resources to learn and utilise various parenting strategies. Which leads back to the question, if the concern is competitive advantage, is it reasonable to focus on the newest technological means of gaining a competitive advantage? Frank would say "yes" because

Technology is often far more sudden, effective, and commodifiable than social or cultural methods of accomplishing ends.
This suggests that technological means to achieving competitive advantage are of more concern than non-technological means. But it might be argued that a technological focus also deflects attention away from the (currently) greater social problem. I would perhaps justify a technological focus in a different way in this case - absent a rejection of capitalism in its current form, the only regulation likely is restrictions on technological means of gaining competitive advantage. Thus I am not saying that a technological focus might not be constructive nor that a particular article cannot choose to focus on technological aspects of a problem. But by focusing on the technological, we should not ignore the non-technological. In other words, it is important to consider the broader question about competitive advantage, in particular any other aspects of it that can realistically be limited. We should still consider, for example, whether students ought to be obliged to disclose the use of tutoring colleges when applying for university or jobs.

Even where the problem is not containing technological "monsters," but merely exploring uncertainties or filling legal gaps, it is important to justify a technological focus. I have tried to do this in Recurring Dilemmas and Why Have a Theory of Law and Technological Change. Others will judge my efforts. One interesting observation I made, though, was the tendency for lawmakers to use technological change as an excuse to change a law where that is not the real or only reason they wish to do so. We are used to the story of law falling behind technology and needing to be updated. While this narrative is sometimes pertinent, it is important to remain vigilant as to the bias it can cause. In some cases, portraying a new technology as the problematic element is used to advance a particular perspective. For example, digital copying and peer-to-peer technologies have been portrayed by organisations like the RIAA as requiring "updating" of copyright law (eg the DMCA). The narrative is one of an existing status quo, upset by technological change, requiring new laws to ensure reversion to the status quo. The DMCA may or may not be a good idea, but portraying technology as the disruptive element in need of a legal "fix" is not the only story to be told.

So, what lessons to draw? I am still unsure which aspects of virtual world scholarship can fairly be distinguished from golden age space law. But I think it is an important question to ask. Given our autonomy, why do we so often choose to explore legal issues surrounding new technologies? What justifications can we offer to counter any dangers of an overly technological focus?


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