Juror Influence Over Dangerous Technology?

Who will decide the limits of Chinese 5G devices and the reach of AI enabled detection and tracking technology in America?

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]

Tech Bills

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]

New York Traffic

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.

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[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.

The Future of Fibbing

We live in an age when arranged marriages have, like seeking a grandparent’s advice, gone the way of eating leftovers—passé.  We meet our lifelong-partners by way of tongue-in-cheek (figuratively, of course) online dating. Our courtships consist of ordering flowers from phone touchscreens and selecting a pro-forma love note. We pull up curbside to retrieve online orders of coffee or pizza or, well, whatever; and our wedding ceremony is considered trendy and inclusive because it is conducted via Skype. So what comes next for the elderly, after children, grandchildren, menopause, andropause (yes, it is a word now), and hit-the-pause are no longer options, and the technology around us is flying by too fast to follow?


The word “technology” is derived from the Greek word for “art, craft” (techne) and the word for “Word, speech” (logos).  One might think, then, that technology would broaden rather than narrow that age-old art of speaking. The fib, for example, was big business in bygone days. We laced every form of commerce, fashion statement, and threat of war across international borders by first pressing a half-truth, fib, button. Then there are new words, added to our vocabulary at breakneck speed. Dozens of words beginning with “self-” for example, were added to the Oxford lexicon over the past year alone—think self-driving, self-checkout, self-massage, and you have the idea.

What will technology do with our friend, the familiar fib, which we welcome with a wink. We call our little fibs white-lies, little inventions to teach the young, fairy tales to ease the pain of life’s shots, and stretched in long-form we preserve these yarns like jam and pickled herring. Our elderly population, the sage silver-hairs of our vast country have become scholars of the innocent fib, and for good reason. They have much to teach closed minds, so on occasion they might embellish, extemporize, theorize, and prophesy. The fib is necessary because almost nobody believes the unvarnished truth. A little shine to the facts will ease the punch of harsh reality almost every time.

The word Fib which we connect with the tender thwarting of facts to help the young is, interestingly, a “third-person present” verb, an unimportant lie. But what of the third-person? Who exactly fills that role, or better yet, who will fill that role in the future? There was a time when the third person to Grandpa’s little fib was Grandma. “Don’t believe a word he says,” she would say with a grin and giggle, followed by a hug and cookie. We all know those days are few and far between now.

With Grandparents reduced in the esteem of so many, who will act as third-person and watch out for the elderly’s educational fib?

Fortunately, we already have an answer to the question. There is little doubt that in the very near future our elders will be cared for, and constrained with good intention by robots. This makes sense, given the misconception that old people who have already been “self-ing” it for the greater part of their lives don’t need a human handhold. Certainly, too, staff shortages justify the cost-saving emplacement of cute little bobbles of technology in elder care homes like those UK’s Express magazine on May 13, 2018.

We must remember, though, that like an old milk stool, it takes three legs to squeeze the teat—no, I’m not pulling your leg—and this is not a fib. So, what are the other two legs of technology that will finally put an end to elder-fibbing?

The second leg of technology will be built into the care-bots, that of lie detection. When lies are detected from eye movements and voice deviations, a capability easily added to these harmless little nursing home ‘bots, their presence will undoubtedly chill dangling blue toes and stifle the crumpled lips that launch fibs before they sprout their fairly-like wings.

The final third leg of that poor wooden stool is that of facial recognition.  We know that robots are already capable of facial recognition just as sensors around our great cities track our whereabouts from our faces alone.


In the end, it appears that the road to eliminate the age-old fib is paved with good intentions. The arts of speech (technology), of lie detection, and of facial recognition have well-intended applications, standing alone. They all begin as help-mates to some greater good. Technology began its ascent with the advent of fire, or maybe before if you count whittling spears. And the bigger sort of fib was disregarded long ago, “You Shall Not Bear False Witness Against Your Neighbor.”

The question remains, whether there is anything to be lost when we apply combined technologies to self-sacrificing individuals whose only hope is to love with a fib. When robots are appended to us by facial recognition, detect lies from our tears and voices, and speak with the universal language of tisk, tisk, tisk whenever they hear a lie, will we miss the true fib?

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