“The problem with the law is that it doesn’t keep up with technology.” I hear this a lot. The person who announces this will often look accusingly at me as if I and all other lawyers are to blame. It’s fine – lawyer bashing goes with the territory. But it’s a lazy soundbite and there’s more going on here.
For a start, there’s the suggestion that the lawyers are somehow to blame for the weaknesses of the law. That’s a bit like blaming your waiter for the bad meal he served you. Maybe he is to blame because he spat in your food. It’s unlikely though. He probably served a dish that was poorly cooked. Or maybe it was cooked well but the recipe was poor. Or maybe you, as the diner, ordered curry but would have preferred a burger.
You see, maybe you’re to blame, not the lawyers. Not you personally, of course. On a micro level, you don’t get to pick which laws apply to you as an individual. On a macro level though, we as a society choose the laws that apply to us. If we, as a collective mind, don’t like the laws, we can change them. Issues pop up in society at different speeds and this can cause tensions until they are resolved. When an issue affects a large enough part of society, then society will no longer ignore it and will start the process to address it. The legislative wheel will start to turn. Sometimes that wheel turns quickly and we get new laws in a short time frame. But laws passed quickly might not address all the ramifications as there wasn’t enough time to work through all the factors. More often the wheel turns slowly. It takes time to anticipate the variables and nuances and then address them. So we get new laws of a higher standard, but we have to wait longer for them.
What people forget is that laws are there to uphold the rules or ethics of society. If we were to all abide by the same set of rules and these rules were to never change, we wouldn’t need laws. Or lawyers for that matter. But society doesn’t work like that. Back in the day, people settled disputes by killing their enemies. This didn’t make for a harmonious society so murder was outlawed. People used to copy authors’ literary works without permission so society passed copyright laws. Women faced discrimination because of their sex, so society outlawed discrimination. People’s data was being misused so society passed data protection laws.
Each of those laws is not without its problems. Sometimes the problems were always there and sometimes they’re new. For example, is it fair to kill someone in self-defence? Is it fair to copy inventions rather than literary works? Is it fair to discriminate against people not based on their sex but their race? Is it fair for Facebook, Google and Apple to use people’s data in ways we hadn’t thought of before?
In essence, society changes its laws to abide by its updated rules of ethics. By which time, we already have the next set of problems. Who should be responsible if an autonomous self-driving car runs over someone? Or how do you regulate blockchain when it’s decentralised? Who owns the data that AI gathers? There will always be people who misuse technology for their own advantage to the detriment of others. So, as they break society’s updated ethical standards, we pass laws to address these issues too. This all takes time so, as usual, the law doesn’t keep up with technology. Or more accurately, the law doesn’t keep up with society’s ever-changing ethical rules.
Also, don’t forget that other societies view these issues differently. Russia or China might be happy to encourage the manipulation of people’s data to affect the outcome of another country’s elections. Or they might advocate the development of a robot AI that doesn’t respect Asimov’s 3 rules. Or they might advocate the hacking of a country’s infrastructure to disrupt their power supplies. Those things run contrary to our society’s rules. But they might lawful in their societies.
So, I agree that law doesn’t keep up with technology. And it never will. Technology, ethics and law are always changing in society. They just change at different rates. When Skynet takes over, law will always be up-to-date with technology. However, I suspect humans will have more pressing concerns by then.