Wed, 12/16/2020
This blog post supplements Tech Refactored episodes 4 and 5, titled "What is Law and Technology." Listen to the discussion here.
I consider myself a law and technology scholar. It wasn’t always so.
The year I started law school, two years into the new millennium, cyberlaw was a big deal. Pam Samuelson was teaching a course by that title at UC Berkeley, then as now an epicenter of law and technology. Lawrence Lessig was writing up a storm at Harvard. Daniel Solove, Orin Kerr, Julie Cohen, and 2019 MacArthur Fellow Danielle Keats Citron would all begin their illustrious careers around that time.
Personally I had no clue. I was busy stanning the legal realists. I did not learn a thing about cyberlaw until Lauren Gelman at the Stanford Center for Internet and Society made me read Code and The Future of the Internet back-to-back in the summer of 2008. I wrote nothing longer than a blog post about the topic until 2010, when I published a somewhat premature attempt to apply computers as social actors theory to privacy.
By the time I got my feet under me I felt like I had missed the parade. Courts had resolved some of the central legal issues presented by the internet. Debates raged on, and rage still, but participants had largely coalesced around a known set of arguments and positions. Today’s empirically-inflected work on responsibility for internet harms has breathed new life into the field. But twenty years in, the discourse around cyberlaw felt stale.
So I turned to robots and artificial intelligence. Long a subject of fascination (a few years ago my mother uncovered my middle-school science project on “drones”), I ventured that robotics presented a distinct set of puzzles for law. Around that time, large internet companies obligingly pivoted toward robotics, investing many millions in drones and driverless cars to breathless media coverage. With Michael Froomkin and the late, dear Ian Kerr, I founded the We Robot conference in 2011 and a new community arose to complement cyberlaw and privacy.
Yet even as I and others pivoted to robotics law and algorithmic accountability, it scarcely made sense to jettison cyberlaw. There is considerable theoretical and doctrinal overlap between cyberlaw and the law of robots. Both attend to technical novelty and both invite interdisciplinary investigation. So it felt only natural to draw from the nearly twenty-year “lessons” of cyberlaw (spanning, say, 1996-2014) as I outlined my research agenda for robot law.
Only in retrospect did I see a deeper move. At the time, it seemed plenty ambitious to try to refocus the attention of (some) cyberlaw scholars on a new technology like robots. But with the benefit of hindsight, I understand cyberlaw as more than the law of the internet. I now see cyberlaw as an example of an unarticulated approach to analyzing the interplay between technology and law—a significant if implicit break from the technology assessment paradigm of the 1970s.
Whether the object is the internet, robotics, or brain-machine interfaces, contemporary legal scholars tend to engage with technology in a particular way: roughly, by isolating technology’s affordances (the ways a technology alters human capacity); interrogating the assumptions of law and technology that no longer obtain; and identifying the legal and technical levers capable of restoring the status quo ex ante. This relatively narrow set of processes form the backbone of law and technology scholarship. Once you see the pattern, not every legal analysis of technology feels quite so sui generis. Though this be madness, yet there be method in it.
I myself have followed this basic approach with robots and artificial intelligence. The Tech Policy Lab at the University of Washington—an interdisciplinary research unit I co-founded six years ago that aims to help policymakers make wiser, more inclusive tech policy—has applied the same template to a wide variety of technologies, dating back to our 2014 whitepaper on augmented reality that later served as the framework for a hearing of the U.S. Senate Committee on Commerce, Science, and Transportation.
Increasingly, however, I get the feeling I’m bringing a knife to a gun fight. Nebraska Law’s online symposium on law and technology finds me well over a year into a book project, under contract with the patient Oxford University Press, to develop law and technology’s loose approach into a full throated methodology. Drawing from a decade of research and experience, my hope is to show that law and technology, properly understood, constitutes not only its own legal subfield on par with other “law ands,” but a standalone methodology in the tradition of Science and Technology Studies.
I have found this to be an immense undertaking, one that forces me to catalogue and reexamine my and colleagues’ assumptions about what technology is and the law’s role in channeling it toward human flourishing. I am trying to read widely, in many disciplines, to get a sense of how other scholars—including scholars whose voices have traditionally been marginalized—have struggled with the technology question. I am studying when and why new fields come to be—which is how I found myself at the leading Animal Law Conference in Portland, Oregon last year and why my office bookshelf looks like the history of information section of an undergraduate library.
I am keenly aware that no one scholar is in a position to define law and technology. I am deeply interested in what some of the leading lights and emerging voices of this burgeoning field have to say in these posts and podcasts. And I simply could not be more excited about the launch of this new center on technology governance at the Nebraska College of Law. Thank you for asking me to participate.
Tags: Guest and Fellow Post
