The Case for "Technology Law"

This blog post supplements Tech Refactored episodes 4 and 5, titled "What is Law and Technology". Listen to the discussion here.

It is past time to acknowledge “Technology Law” as a distinct field of legal study focused on how law and technology foster, restrict, and otherwise shape each other’s evolution.^[1] 

While any particular device or innovation might pose interesting legal questions, there is much to learn from taking a drone’s-eye view of the ongoing and iterative relationship between law and technology. This more expansive perspective highlights recurring questions that arise regardless of the time, technology, or legal context.^[2]

Recognizing Technology Law as a distinct field will promote more thoughtful scholarship and more effective policy decisions, and studying the subject will better prepare students to grapple with emerging legal challenges.

1. Distinguishing Technology Law

Like other legal subjects, Technology Law faces theoretical disagreements regarding its goals, methods, and boundaries.^[3] But those working on techlaw issues share several core concepts:

• Technology often regulates through its “architecture” insofar as it constrains or enables human conduct.^[4] It is self-executing^[5] and self-enforcing,^[6] which means that it may operate invisibly,^[7] may easily become entrenched,^[8] and empowers the architect or designer^[9] while simultaneously shifting responsibility away from these remote decisionmakers.^[10]
• Meanwhile, laws are often bolstered by markets, norms, architectures, and other practical constraints.^[11] Technological developments may erode these supports, rendering once-impractical or even impossible conduct newly easy. (Indeed, sometimes we may not realize the constraint exists until it disappears.^[12]) Some describe this as a shifting equilibrium,^[13] while others would characterize it as a change in affordances;^[14] still others would use economics terminology and describe this as lowering transaction costs.^[15] Regardless, recognizing technological development’s varied impacts on the relationship among the regulatory modalities is a core techlaw insight.
• The increased frequency or impact of once-rare conduct may raise the question of whether a difference in degree creates a difference in kind. This is often the first step of evaluating the relevance and fit of existing law, especially when technological developments scale familiar but formerly infrequent activities or grant new entities capabilities once reserved to a more limited and easily regulated set of actors.^[16]
• Technology regularly creates new types of relationships, which then need to be situated within the relevant legal regimes.^[17]
• There is something important about the speed of technological development and diffusion. Techlaw folks have varied assessments of precisely what is important about speed, however, and may argue that (1) law is often insufficiently flexible to address technological change,^[18] (2) legal institutions are often insufficiently flexible to address technological change,^[19] or (3) we must assess a technology’s rate of diffusion to best evaluate when regulatory intervention will be possible or most beneficial.^[20]
• The risk potential of technology raises particular regulatory concerns.^[21] Much of the discourse around technological regulation focuses on the difficulty of regulating in the face of uncertainty and known unknowns.
• Technological developments may consolidate formerly-separate items; this technological convergence or “hybridity” blurs established legal categories and raises distinctive regulatory convergence issues.^[22]
• Technological developments can democratize capabilities; simultaneously, they can further entrench structural power dynamics. The intersection of these issues requires a nuanced and multi-layered analysis.^[23]

In addition to these core concepts and associated substantive questions, there are a number of recurring structural techlaw questions, which arise in different time periods, with regard to different technologies, and within different legal subjects. We describe these as (1) application uncertainties, which raise the question of whether and how extant law applies; (2) normative uncertainties, which arise when the law is arguably unable to accomplish its aims; and (3) institutional uncertainties, which exist when there are questions about different regulatory entities’ relative authority, competence, and legitimacy to apply and update the law.^[24]

Technology Law is still in the process of developing a shared methodology for resolving these substantive and structural questions.^[25] But almost every framework entails working through a common set of responsive strategies:

• Can we apply extant law to new technologies, tech-enabled actors, or tech-enabled conduct? Do difficulties arise because the law is unclear, because it doesn’t anticipate a particular scenario, or because the result is normatively problematic? Do we have useful analogies, or are they all misleading?
• Do we need new law to resolve these uncertainties? If so, what form should it take? Should it be more tech-neutral or tech-specific? Focused on items or conduct?
• Who should make these regulatory decisions? Courts, looking back at what has already happened? Legislatures and agencies, looking forward? Should it be one or some combination of existing domestic or international organizations? When do we need a new institution?

Additionally, Technology Law is plagued by a number of problematic assumptions that are seldom explicitly acknowledged, much less adequately scrutinized. These include the ideas that law cannot keep up with technological change (so we might as well give up), that law cannot prevent technological change (so we might as well give in), and that technological development is either neutral (so we should regulate actions instead of items) or inherently desirable (so we shouldn’t be trying to regulate technology in the first place). These overbroad assumptions require critical assessment. Technology is neither neutral nor inevitable, and legal actors are not doomed to a reactive posture or complete irrelevance; in fact, legal actors frequently have the agency and ability to purposefully shape the evolution of both law and technology.^[26]

Of course, as with other legal fields, there are different factions within Technology Law. Some argue that we should focus on “exceptional technologies”—those which require systematic legal change—and identify their essential qualities to evaluate how to craft an appropriate governance regime;^[27] others critique the exceptionalist approach for not sufficiently considering the social and legal frameworks that make particular features of a technology salient.^[28] Indeed, some in the latter camp may dispute whether Technology Law is a distinct field or instead better understood as part of the study of law and social change more generally. Meanwhile, while we resist labeling particular technologies as exceptional, we argue that techlaw questions are distinctive.^[29] (One might even call us “Techlaw exceptionalists.”) As we have argued elsewhere, we believe the fundamental challenge of Technology Law is not how to best regulate novel technologies, but rather how to best address familiar forms of legal uncertainty in new sociolegal contexts.^[30] 

2. Addressing Critiques

There are two main arguments against recognizing Technology Law as a distinct field, both of which boil down to the idea that there is nothing particularly special about tech-fostered legal change.

One variant with surprising staying power is Judge Frank Easterbrook’s “Law of the Horse” critique, which maintains that extant legal subjects can adequately address technological change.^[31] Why discuss the harms created by Internet of Things devices from a techlaw perspective when we already have Torts? Why evaluate gig economy questions as techlaw questions when we already have Employment Law? 

We agree with Easterbrook that there is no need to create a “Law of [X]” every time there is a furor about a particular new technology. We also agree with Lawrence Lessig’s response to Easterbook, which was that cyberlaw was worthy of study in part because it illuminates how law as a whole regulates behavior.^[32] But in debating whether Cyberlaw was a distinctive subject, both Easterbrook and Lessig missed the middle ground: Technology Law. Rather than studying the law of one technology—be it horses or the Internet—there is much to be learned from studying the relationship between technologies and law more generally.^[33]

For example, the Easterbrook critique assumes that technological shifts can be addressed within traditional subjects, but this fosters a different kind of detrimental compartmentalization.^[34] New technologies are challenging established legal paradigms across the board, and adaptive interpretations frequently render classic doctrinal standards unclear or laughably ineffective. But those attempting to resolve these recurring uncertainties within a siloed subject are doomed to start at square one with each new analysis. In contrast, recognizing Technology Law would foster the development and diffusion of common strategies for understanding and resolving such uncertainties.

Technology Law comfortably sits alongside other legal fields that deserve individualized study despite straddling conventional blackletter subjects, like Business Law, Health Law, and Environmental Law.^[35] As with these courses, considering different types of tech-fostered changes in conversation yields productive results, as we can see patterns that we might not otherwise. Comparing “horseless carriages” and “driverless cars,” for example, highlights how techlaw analogies are used to simultaneously make a new technology comprehensible and advance a regulatory narrative^[36]—an insight that is useful in understanding, say, jurisprudence regarding new communications technologies and First Amendment rights.^[37] A techlaw training will be useful to all law school graduates, as familiarity with the common questions and responsive strategies will be relevant to every legal subject that is shaped by technological developments—which is to say, all of law.

The second argument against Technology Law being recognized as a distinct legal field is that technological change is merely one cause of social change. If new technology is but one of many sources of social change, and if social change is the real driver of legal evolution, shouldn’t we instead be studying the interaction of law and social change?

This is a stronger claim, and one that we cannot refute so much as agree to disagree with. While tech-fostered change is certainly a type of social change, we contend that its characteristics and seismic social impacts are sufficiently distinct to justify studying it in isolation.^[38] Many of the elements enumerated above—that technology upends practical constraints on conduct, changes relatively quickly, and is perceived as posing a greater risk potential—contribute to a sense that tech-fostered social changes pose idiosyncratic challenges. As a result, societies—and legal actors within societies—often treat tech-fostered social changes differently.^[39] And while other drivers of social change may pose related issues individually, they rarely do so collectively or as frequently. Moreover, many of the familiar strategies for resolving legal uncertainties—including using analogy to stretch extant law, creating new law, and reassessing the regulatory regime—have techlaw-specific pitfalls and considerations.^[40] Tech-fostered legal uncertainties are distinctive in nature and treatment, which invites a more circumscribed and focused analysis.

C. Wrapping Up

Technology Law is a distinct field of legal study, characterized by its own overarching questions, guiding principles, methodologies, and theoretical disagreements. While we cannot predict which specific techlaw questions will arise in the future, a techlaw perspective allows us to identify which types of questions to anticipate. Techlaw scholarship will promote more useful policy recommendations, and techlaw training will prepare students to engage with the substantive and structural techlaw questions they will inevitably face in their careers. Not only should every law school offer a Technology Law course, the smarter ones will require it.

Tags: Guest and Fellow Post