What is Law and Technology?

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

I don’t work in a law school. Technology, not law, is the glue that binds the people and ideas that surround me. But when I think of earlier efforts to define a field around technology, I think of Science and Technology Studies (STS). The following is an aspirational and speculative playgiarization of Law and Technology based on the history of STS stolen from the Harvard “What is STS?” webpage:

Law & Technology (L&T) is a relatively new academic field, originally referred to as cyberlaw. Its roots lie in the early commercial internet era and continue into the start of “Big Tech,” when law scholars, social scientists, economists, philosophers, and computer scientists themselves, became interested in the relationship between law, computer systems, and society. The best known product of this interest was Lawrence Lessig’s classic 1999 study, Code and Other Laws of Cyberspace. This influential work helped crystallize a new approach to the relationship between law and technology, in which behavior is governed not only by law, but also by norms, markets, and computer code. Among the many ramifications of Lessig’s work was a systematic effort by law scholars to probe how law and legal institutions link up with advances in computer technologies.

L&T, as practiced in academia today, merges two broad streams of scholarship. The first descriptive genre approaches law and technology as social institutions possessing distinctive structures, commitments, practices, and discourses that vary across cultures and change over time. The second more normative stream concerns itself with the impacts and control of technology, with particular focus on the harms, risks, benefits and opportunities that technologies may pose to certain social values and the role the law plays in fostering or maintaining those ends.

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In order for L&T to establish something like the above history, I believe the field needs to expand.

Law may be many things, most commonly probably legislation, case opinions, regulations, ordinances. In Law & Technology, we often refer to “governance,” which attempts to capture a broad range of mechanisms that would impact behavior. This is probably due to works by founding figures in the field, namely Joel Reidenberg’s Lex Informatica and Lawrence Lessig’s “code is law.”  The law part of Law & Technology asks how behavior is or can be governed, including and far beyond contracts, criminal law, torts, and the rest of first year law school courses (and administrative law). Upon reflection, this strikes me as an unusually expansive but also very narrow undertaking.

Although the term cyberlaw has fallen out of fashion (I still like it), Law & Technology scholars continue to be defined by their study of computer technologies. L&T must be more than governance of/by computers.

Like many others, I understand technology as a sociotechnical system. Technology may be “society made durable” - it is certainly more than its materiality. A computer is just a hunk of junk without a power and communication infrastructure, people who know how and have a reason to use it, others who know how and have a reason to make it, etc. The technology part of Law & Technology is a system of things, people, and knowledge.

This is a delousing machine. It is certainly a technology.

Library of Congress, Prints & Photographs Division, American National Red Cross Collection, Reproduction number LC-DIG-anrc-04119.

Delousing machines were used to combat diseases like typhus and smallpox spread by lice and germs. Delousing stations were technologies built in the 1870s and 1880s at the behest of the United States incessant on “cleansed” immigrants. Ruth Oldenziel and Mikael Hård explain that this worldwide system locked railways, roads, and ocean liners into an immigration structure that passengers had to learn and navigate. It was then used by the Nazis during the Holocaust. Auschwitz was a delousing station.

A privacy scholar may read those details and think, as I did, about the census and the informational infrastructure used to locate Jews during the Holocaust. A telecommunications scholar may see the way the U.S. promoted a global system while maintaining a national political agenda. A media law scholar may be reminded that technological systems must be constructed and regulated with the worst actors in mind. My point is that the delousing system is a technology and should be put in conversation with Facebook.

Law & Technology scholars, I believe, are charged with:

1)     Recognizing a broad range of technologies as relevant sociotechnical systems AND

2)     Bringing the legal constructions of that technology into the forefront.

The internet is not new anymore, computers are everywhere. Does the field fizzle out and its scholars revert to their non-technical legal categories (e.g., privacy, intellectual property, contracts, administrative law, etc.)? Or can it expand beyond the internet to embrace the ways in which technology’s relationship to law is deserving of its study? In transitioning from cyberlaw to Law & Technology, I believe the field has already begun this process.

The future task most valuable to the sustainability of Law & Technology is the establishment of an event dedicated to this community. Oddly, cyberlaw never had its own conference that I’m aware of. Cyberlaw scholars were mostly working in telecommunications law, IP, and the growing discipline of privacy -- each with their own conferences and events. Law & Society, perhaps the most natural place for Law & Technology to have sprouted up as an offshoot of STS, has consistently had a small Collaborative Research Network for Law, Technology, & Society.

Law & Technology should not be a subfield (or a subsubfield). Like STS, Law & Technology should be an overarching interdisciplinary community. We will all be scholars who work elsewhere - in computers or environmental law or criminal justice or history or maritime law or infrastructure studies or international affairs - but we need a home where vibrant discussion of the relationship between any law and any technology is welcome.

Tags: Guest and Fellow Post