The rapid push for new technology has revived an age-old gap in our social contract, that between technology interests and governing law. Who will decide the limits of Chinese 5G devices and the reach of AI enabled detection and tracking technology in America?
Political decision-makers at local and national levels are frequently unqualified to comprehend the technology they are supposed to regulate. In 2017, only eight of the 541 members of the 115th U.S. Congress were engineers, one a physicist, one a microbiologist and one a chemist.[i]
When legislators have no clear vision of the technology bills they vote on, they have no clear picture of the laws they create. As a result, the joysticks of technology regulation are abandoned to corporate lobbyists. In 2018, five of the largest U.S. tech companies, Google, Amazon, Facebook, Microsoft, and Apple poured a combined $64.2 million into federal lobbying efforts. Their “increased influence is also a reflection of the former high-profile policymakers and regulators who many technology companies have hired in recent years. According to Jeff Chester, the executive director for Center for Digital Democracy, there has been a ‘revolving door’ between both Republican and Democratic administrations and the technology industry lobby.”[ii]
This is not the first generation during which technology has raced ahead of lawmakers. The American automobile was invented in the early 1890s. In short order, loud, fast moving cars and skiddish horses and nimble pedestrians were on a collision course.
Yet, It wasn’t till 1901 that the first speed limits were enacted, in Connecticut—12 mph for urban and 15 mph for rural roads. Lawmakers were nearly ten years behind the technology curve. By 1930, cars were pervasive yet many states still had no speed limits and over half of the states did not mandate driver’s licenses.[iii]
During the horse-to-car revolution, it was the common law of American courts and the daily wisdom of jurors that bridged the gap between technology and social standards. And importantly, the common law provided both room for geographic differences and common standards, allowing for Americans to retain their maximum liberty.
The first court decision in a lawsuit involving an automobile was issued in 1901.[iv] “Most early automobile cases involved claims that the sight or sound of a motor carriage caused a horse to take fright, resulting in injury either to the horse’s rider, the occupants of a carriage or wagon the horse had been towing, or the horse itself.”[v] “Opinions issued by judges in earlier cases and records of jury verdicts help lawsuit participants anticipate the resolution of disputes.”[vi]
Results varied by the issues and states: in New England, cars eventually yielded to pedestrians; in Texas, fences yielded for the most part to free-range. The upshot of these early decisions is that the courts empowered ordinary people, like technology users of today, to apply and influence legal standards.
The common law is an earthy sort of creature that understands the feel of mud on tires, hears the beat of hoofs, and in present terms jurors understand the pinch of lost privacy.
One American counterweight to stealth lobbyist influence over technology is the open courtroom and transparent justice.
A revival of common law standards, invigorating expert testimony and honoring the judgment of jurors in technology disputes will put technology to work by the people, for the people. Yet, now, with COVID-19 related suspension of jury trials, what becomes of juror influence over technology?
The long-term challenge is for leading jurists to articulate new models for expedited handling of technology cases, to revise jury instructions with a sharp edge toward tort liability for applied technology misuse whether for invasions of privacy or outright covert theft of personal preferences, and to ensure jury trials continue in some form that meets the Constitutional mandate despite periodic health and economic challenges.
For the public’s part, the decision is whether to pay: to fund expedited technology courts, expert testimony, model rules, and continue to enlist jurors to instill grass-roots standards, or surrender our remaining influence over technology to others, leaving the pedestrians of America to suffer the cost of lost liberty.
And for those of you interested in how World Justice may be implemented in the future, Justícia 2095 reveals online justice using big-data–bringing the court of public opinion comes to Order on the world stage. Public jury trials are conducted from the comfort of home and office, in real-time. A “Ready Player One” for the courts. But the freewheeling Justícia is fed by its own set of tolls. Wyrand Stark, historian and Justícia Counselor, finds himself caught in its rapidly spinning gears and must race to save himself by proving the difference between law… and justice.
[i] The John Hopkins Newsletter, Dec. 7 2017.
[ii] Washington Post, Cat Zakrzewski, January 2019.
[iii] History, Nov 13, 2009.
[iv] Mason v. West, 31 Misc. 583, 65 N.Y.S. 651 (C.C.N.Y. 1900), rev’d, 70 N.Y.S. 478 (N.Y.A.D.1901).
[v] 52 Santa Clara L. Rev. 1241, 1246.
[vi] National Cooperative Highway Research Program, Feb 2016.