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.

Big Data & Justice at War

We are confronted almost daily with braggadocio on the topic of war. Mastery of big data, we are told, is a safeguard against destruction of our civilization, a nuclear deterrent in microchip form, some say—no need for missile silos and lasers when computer denial and attack are unsheathed. Others argue that big data innovations lead us down a different path, beyond human control, and that we are being marched double-time into another stone age. New age or stone age, who knows?

What we do know is that now or later, we are destined to consider and judge more than the technologic tools of war. There will come a day when we again judge the corpus of war leaders, both winners and losers. How are we to judge the faces of war, the deciders, in the era of big data? And who among us, that remains, will sit to judge the accused?

Face of WarIn a future when those blamed are on public trial for unleashing the rabid dogs of war, will civilized people honor something like the Sixth Amendment criminal defendant’s right to “public trial?” If so, then what of the devilish detail—the jury­­?  In America, we do have a Constitution to consider after all; Article III prescribes that the trial of all crimes “shall be by Jury…. ”

To date, no public jury has held the reigns of post-war justice. We had the Nuremberg Tribunal (eight judges, four prosecutors, and a slew of defense attorneys) for the elite criminal gang in WWII. America now has the Military Commissions Act to try “alien unlawful enemy combatants,” true, but the Act does not define due process for state-sponsored warfare. And the future of the International Criminal Court is said to be in question, and that’s “bad news for women.” The future of justice for “lawful” state-sponsored ringleaders, then, is unknown.

How then will the Tribunals of future warfare apply Big Data to impose public justice?  What process will be followed? What questions will be asked? Will War Tribunals be limited to judges who decide law and fact, or will there be a public jury panel? If a jury is to decide, then armed with big data should the decision-pool be limited to twelve jurors, twelve-times-twelve, or beyond counting, to an infinite on-line audience, the mob?

Nuremberg Justice Case.jpgAs counterpoint to this future dilemma, we may reflect back on the old-world challenges faced by the Nuremburg Tribunal.  At its inception, the Tribunal’s proof could be ticked off on a stack of three-by-five cards. Eventually, just 1,900 documents would prove key elements of the case. (See, Conot, Robert E., Justice at Nuremberg, pp. 24, 38 (1983)).  The entire body of evidence, trial testimony, and decades-long struggle to render justice for Holocaust atrocities, might today be stored on a lone thumb drive.

When the guns of a future war cease, the mountains of virtual-evidence from every side will quickly exceed herculean proportions. Thumb drives will have been replaced by invisible fists squeezing out gobs of big data. Are we to presume that a small group of judges and prosecutors will sort through these oceans of big data archives as one would finger through index cards?

Now is the time for us to have the discussion. The Court of Public Opinion has already co-opted a vast swath of the judicial function—Multiple Social Media platforms dole out collateral justice, unrestrained consequences, in the blink of a lie.

Our culture is tweaked like a refresh button almost daily by decades-old social media posts. Employers hire and fire based upon silly on-line selfies. We fear future consequences from the virtual breadcrumb trail to those little mistakes of our long-forgotten past.

Is it to be expected that a socially synchronized public beaten and torn by the ravages of war will regress and allow a covey of judges and lawyers to decide the fate of war criminals?

Sooner than later, it may be judicious for us to deliberate like a jury of old, with an eye toward reaching agreement, just how to evaluate and decide future Justice at War.

What questions would you ask in a future War Tribunal?

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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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