The legal impact of technology suggests that focus should be on how the current information revolution is affecting the tenets of the law. In addition to transforming the approach of experts to legal information, e.g. the development of fields such as AI and the law, technology has brought on new types of lawsuits, or modified existing ones. Consider new offences such as computer crimes (e.g. identity theft) that would be unconceivable once deprived of the technology upon which they depend. In accordance with the clause of criminal immunity summed up, in continental Europe, with the formula of the principle of legality, i.e. “no crime, nor punishment without a criminal law” (nullum crimen nulla poena sine lege), this is why international lawmakers decided to intervene with the Budapest Convention on cybercrime in November 2001. Moreover, reflect on traditional rights such as copyright and privacy, both turned into a matter of access to, and control and protection over, information in digital environments. By examining the legal challenges of technology, we thus have to specify those concepts and principles of legal reasoning that are at stake. Then can we begin to determine whether the information revolution: (a) affects such concepts and principles; (b) creates new principles and concepts; or, (c) does not concern them at all, the latter being the view of traditional legal scholars.
The law conceived as a meta-technology has to do with the old, Kelsenian account of the law as a social technique of a coercive order enforced through the menace of physical sanctions: “if A, then B.” To be sure, law can be considered as a form of meta-technology without buying any of Kelsen’s ontological commitments. Rather, we should pay attention to the impact of technology on the formalisms of the law, much as how legal systems deal with the process of technological innovation, through such a complex network of concepts, as agency, accountability, liability, burdens of proofs, clauses of immunity, or unjust damages. In this latter case, the aim of the law to govern the field of technological innovation comprises several different approaches. Some distinguish among main legislative purposes, such as: (a) the achievement of particular effects; (b) functional equivalence between online and offline activities; (c) non-discrimination between technologies with equivalent effects; and, (d) future-proofing of the law that should neither hinder the advance of technology, nor require over-frequent revision to tackle such a progress. Others propose to differentiate between (a) technological indifference, i.e. legal regulations which apply in identical ways, whatever the technology, such as the right to authorize communication of a work to the public in the field of copyright law; (b) implementation neutrality, according to which regulations are by definition specific to that technology and yet, they do not favour one or more of its possible implementations, e.g. the signature of e-documents; and, (c) potential neutrality of the law that sets up a particular attribute of a technology, although lawmakers can draft the legal requirement in such a way that even non-compliant implementations can be modified to become compliant.
The field of techno-regulation, or legal regulation by design, concerns how current advancements of technology have obliged legislators and policy makers to forge more sophisticated ways to think about legal enforcement. Although some of these architectural measures are not necessarily digital, e.g. the installation of speed bumps in roads as a means to reduce the velocity of cars, the new scenarios of the information revolution have suggested national and international lawmakers complementing the traditional hard tools of the law through the mechanisms of design, codes, and IT architectures. Many impasses of today’s legal and political systems can indeed be tackled, by embedding normative constraints and constitutional safeguards into ICTs. Whereas some describe even 101 ways in which products can influence the behaviour of their users, suffice it to dwell here on three different aims that design may have: (a) to encourage the change of social behaviour through incentives based on trust (e.g. reputation mechanisms), trade (e.g. services in return), etc.; (b) to decrease the impact of harm-generating behaviour through security measures, user-friendly interfaces, default settings, and the like; and, (c) to prevent harm-generating behaviour from occurring via the use of self-enforcing technologies. The latter appears the most critical aim of design, since people’s behaviour would unilaterally be determined on the basis of technology, rather than by choices of the relevant political institutions and moreover, the normative side of the law would be transferred from the traditional “ought to” of legal systems to what actually is determined by technical instructions. Leaving aside China’s “Great Firewall” and the systems of filters and re-routers, detours and dead-ends, which aim to keep internet users on the state-approved online path, it is noteworthy that the repressive side of this design policy has shown up in Western democracies as well. Two challenges to the rule of law are particularly striking. On the one hand, the use of allegedly perfect self-enforcing technologies raises serious threats of paternalism and, even, of authoritarianism, because such techniques as DRMs, automatic versions of the principle of privacy by design, three-strikes approaches to copyright enforcement, or systems of filters in order to control the flow of information on the internet, end up with the modelling of individual conduct. On the other hand, the aim of both lawmakers and private companies to increasingly tackle the challenges of the information era through the means of design, code, and IT architectures, that is, by embedding legal safeguards into information technology, often leads to the illegitimate condition where states claim to regulate unilaterally extraterritorial conduct by imposing norms on individuals who have no say in the decisions affecting them.
In accordance with this tripartite differentiation on law and technology, the intent of this project is to further our understanding of the interplay between the legal impact of today’s information revolution and the regulatory aims of the law, in light of some relevant practical cases for analysis, such as Bit Coin, Uber and sharing economy business models, e-voting, virtual goods, ISP liability, copyright and data protection, the internet of everything, security and online trust. These cases suggest that we should draw attention to whether, or to what extent, technology is impacting basic tenets, principles, or concepts of the law and, vice versa, how the law intends to govern such fields. Should we endorse the criterion of functional equivalence between off-line and ICT-driven activities, or rather the principle of implementation neutrality vis-à-vis that of non-discrimination? Are there further approaches at hand? Is the choice of this meta-technological policy mostly context-dependent, or there is room for some kind of generalization? Should the legal regulation of technology be conceived as an end in itself or should focus be on the social and economical outputs of people adopting a certain technology? How about the alternative between law as meta-technology and techno-regulation? Does the latter inexorably affect the corollaries of the rule of law?
Let us roll up our sleeves and start with the technicalities of the different cases under scrutiny: the layers and architecture of the internet of things (the subject of our workshop in Turin in November 2015), the new dimensions of group privacy (at CPDP in Bruxelles, January 2016), or the different topics to be addressed in the Erasmus Mundus LAST-JD “Law, Science and technology” lectures of the second semester 2016: Robot Autonomy, Information Infrastructures, Algorithms and Black Boxes, Artificial Reproductive Technologies, Online Trust, Big Data, Liability of Software Agents, and more. Some expertise seems necessary, so as to fully appreciate the interplay between law and technology.