Review: Tech Refactored Ep. 4 - What is Law and Tech? Pt. 1

Wed, 02/17/2021

This post is a summary of Episode 4 of The Nebraska Governance & Technology Center’s Podcast Series, Tech Refactored. Host Gus Hurwitz was joined by BJ Ard, Assistant Professor of Law at the University of Wisconsin Law School; Rebecca Crootof, Assistant Professor of Law at the University of Richmond School of Law; Ryan Calo, Professor of Law at the University of Washington School of Law; Joshua Fairfield,William Donald Bain Family Professor of Law at the Washington and Lee University School of Law; Meg Leta Jones, Associate Professor of Communication, Culture & Technology at Georgetown University; and Woodrow Hartzog, Professor of Law and Computer Science at Northeastern University School of Law.

At first blush the question of what is “law and technology” might seem to be an easy one; a new technology comes along, like self-driving cars or genetic engineering, and a body of law pops up to regulate it. But as our panelists discussed, the question is much more nuanced. And while it might seem like semantics to the casual outsider, the way we think about the relationship between law and technology informs the assumptions that are made by the public and the regulatory state in ways that have significant implications for society at large. 

In order to frame the question of “What is law and technology?” Fairfield suggested that we first “un-ask” that question, pulling the frame back to consider the nature of technology more generally. Quoting the Polish writer Stanisław Lem, Fairfield suggested that “technology is the domain of problems posed, and their solutions.” Thus, in Fairfield’s view, law is actually a type of technology, “a social technology to be sure, but it’s how humans can cooperate together to solve problems of living together and problems (posed by) future shifts in our technological capabilities.”

So what are the implications of thinking of law as a technology? For Fairfield, it demonstrates the falsity of the idea that technology is neutral in a way in which other areas of the law are not. “So when people say that technologists are just doing technology, that Facebook is just Facebook, that’s no more true than saying that the atom bomb was just the atom bomb.” Secondly, it also puts the lie to the myth that law can’t be developed at a speed commensurate with the growth in technological innovation. Instead, the problem is really one of political will. In demonstrating his point Fairfield cited the example of New Zealand in the wake of the Christchurch shootings, where in a matter of days new laws were in place that addressed the availability of firearms in the country.

If law is just another form of technology, what, if any, unique perspectives does the legal field have to contribute to a more general understanding of the interaction between humanity and technological innovation? One asset, according to Fairfield, is that law generally has a “comfort with analogy, a comfort with norm generation, and a comfort with saying ‘this is more important than that,’” whereas other fields are generally more focused on a different set of outputs.

Hartzog, on the other hand, sees “law and technology” as akin to “law and design,” in that design does two things: a) “it sends signals to people to show them how technology should work for themselves and how it is to be used by other people,” and b) it makes things easier or harder to do; essentially creating a set of shared incentives around how we use technology.

The panel agreed that there is a pervasive, incorrect view that technology is somehow so complicated, singular, or set apart from other areas that the law touches, that the creation of appropriate regulatory systems is a practicable impossibility. As Hartzog noted, “we’ll often hear, for example, about what a technology ‘truly is,’ as if that ought to drive the legal treatment of that technology.” Hartzog provided a great concrete example in the form of discussions surrounding Bitcoin. “We will hear that Bitcoin is ‘truly’ a database, as if that ought to have a specific legal result. No, if humans are using it as a currency, then it’s a currency. If they’re using it as a record of marriage registrations, then it’s that.” For Crootof, that is no accident, “this problematic, persistent, incorrect assumption” has historically been used “to achieve certain regulatory aims.” The challenge then, as articulated by Ard, is how do we develop legal/institutional structures that are equipped to deal with whatever challenges are posed by as-yet unforeseen technological developments, while also ensuring that these systems don’t inequitably privilege “those who are able to wield or design (technological systems) in ways that give them social, political, or economic power.”

Regardless of the particular paradigm through which we view law and technology, the panel agreed that it isn’t about narrowly figuring out the law around whatever new technology presents itself. Instead, it's about considering what is the nature of law and how should it manage the relationships between human beings and technological innovation. Building on that rubric, what role should institutions and methodologies play in informing law and technology? That is the very subject of the next episode of Tech Refactored; give it a listen and read my take in the next installment of The Record.

Also, be sure to check out the essays from each guest on this episode, also found on The Record.

Links to those essays:

The Case for "Technology Law" by BJ Ard and Rebecca Crootof.

Law and Design by Woodrow Hartzog.

What is Law and Technology? by Meg Leta Jones.

Law and Technology: A Work in Progress by Ryan Calo.

The Technology of Law by Joshua Fairfield.

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Tech Refactored Episode Review