Law and Technology Introduction PDF

SMU Classification: Restricted Law and Technology Introduction SMU Classification: Restricted  SMU Classification: Restricted What’s Technology’s Role Here? Wikimedia: McGeddon  SMU Classificat...

SMU Classification: Restricted Law and Technology Introduction SMU Classification: Restricted  SMU Classification: Restricted What’s Technology’s Role Here? Wikimedia: McGeddon  SMU Classification: Restricted In This Topic… The Law of Tech The Tech of Law Technology Regulation Computers Historical Case Studies Web 1.0 and 2.0 Platform Liability Blockchain AI and Law Artificial Intelligence  SMU Classification: Restricted Topic Objectives 1. Fine-tuning your legal senses towards detecting law and tech issues 2. Developing wisdom on key (law and) tech topics to impress your future clients and bosses  SMU Classification: Restricted Approaching this Topic Do the readings, then watch the lectures, then come to class If you haven’t done the readings, pause this video for now. Expectations and Exam Format  SMU Classification: Restricted In this Video 1. What is “law and technology”? 2. A general framework for approaching the field 3. Examples of law and tech questions  SMU Classification: Restricted What is Law and Tech?  SMU Classification: Restricted Law and Technology is about Law and also Technology  SMU Classification: Restricted As in, Regulate Govern How Can Why Will Law Influence Use Technology When Should Learn From … Each path describes one sub-field  SMU Classification: Restricted So, to understand L&T is to understand L, and also T. Most of your education so far is solely about L. In this course we shall look more closely at T.  SMU Classification: Restricted Technology /tekˈnɒl.ə.dʒi/ (the study and knowledge of) the practical, especially industrial, use of scientific discoveries // the methods for using scientific discoveries for practical purposes, esp. in industry  SMU Classification: Restricted The Economic View of Technology Essentially, anything which (a) increases production but (b) not itself a factor of production I.e., shifts the entire production possibility plane What counts? Econowiki  SMU Classification: Restricted Is Law a Kind of Technology? Holmes's common law is a system of artificial intelligence as surely as any computer program. The key feature that gives the common law the ability to learn about the environment is cybernetic feedback: legal logic generates first approximations, which have a better than random chance of being tolerable to the community because they are based on analogies to solutions accepted in the past; external experience then operates to modify those results which the community cannot accept, thereby trans-forming the law for the future.'' In much the same way, an artificial intelligence program learns about the environment, to guide searches, and then uses the results of its internal model of the environment. Had Holmes cared less for the felicity of a phrase, he could have written: "The life of the law is the cybernetic process by which experience modifies the available logic”. Elliot, 1984  SMU Classification: Restricted Ultimately, it depends on what we mean by ‘law’ and what we mean by ‘technology’.  SMU Classification: Restricted General Framework The big question: Is the issue with law, with technology, or both? An issue with the law (technology) is solved by changing or clarifying the law (technology) Law and Automated Vehicles: Do we understand accident law enough? What are the loopholes/false assumptions it makes? Do we understand how AVs work enough to judge the applicability and application of those laws? What problems, if any, arise from interacting uncertainties?  SMU Classification: Restricted Two ways of thinking about L&T Focus on the Law Focus on the Tech What are the legal principles? What’s unique/novel? What are the legal gaps? What are its implications? No “law of the horse” “What cyberlaw might teach”  SMU Classification: Restricted Frank H. Easterbrook BA (Econs & PolSci), 1970 JD, Chicago, 1973 Law Clerk, 1st Cir, CA Dy SocGen, US Chicago Law Professor, 1979 – 1985 Antitrust Law and Economics Corporate Judge, 7th Cir CA, 1985 – present 1996: “Cyberlaw and the Law of the Horse”  SMU Classification: Restricted The Law of the Horse? I am at risk of dilettantism, and I suspect that I am not alone. Beliefs lawyers hold about computers, and predictions they make about new technology, are highly likely to be false. This should make us hesitate to prescribe legal adaptations for cyberspace. The blind are not good trailblazers. … … the best way to learn the law applicable to specialized endeavors is to study general rules. Lots of cases deal with sales of horses; others deal with people kicked by horses; still more deal with the licensing and racing of horses, or with the care veterinarians give to horses, or with prizes at horse shows. Any effort to collect these strands into a course on "The Law of the Horse" is doomed to be shallow and to miss unifying principles … Only by putting the law of the horse in the context of broader rules about commercial endeavors could one really understand the law about horses. Develop a sound law of intellectual property, then apply it to computer networks. Problem: we do not know whether many features of existing law are optimal. … Until we have answers to these questions, we cannot issue prescriptions for applications to computer networks. Proposition I: Sound rules and understanding of legal principles is necessary in L&T. What is left unsaid?  SMU Classification: Restricted What about Technology? If we are so far behind in matching law to a well-understood technology such as photocopiers – if we have not even managed to create well-defined property rights so that people can adapt their own conduct to maximize total wealth – what chance do we have for a technology such as computers that is mutating faster than the virus in The Andromeda Strain? Well, then, what can we do? By and large, nothing. If you don't know what is best, let people make their own arrangements. Next after nothing is: keep doing what you have been doing. Most behavior in cyberspace is easy to classify under current property principles. What people freely make available is freely copyable. Proposition II: Since we don’t know tech, we should stick with law Consider: is something like the Law of Contracts susceptible to Easterbrook’s critique? Torts?  SMU Classification: Restricted What about Technology? A quick summary: Error in legislation is common, and never more so than when the technology is galloping forward. Let us not struggle to match an imperfect legal system to an evolving world that we understand poorly. Let us instead do what is essential to permit the participants in this evolving world to make their own decisions. That means three things: make rules clear; create property rights where now there are none; and facilitate the formation of bargaining institutions. Then let the world of cyberspace evolve as it will, and enjoy the benefits. Echoes standard calls for minimum government and free markets that characterizes Chicago School Economics  SMU Classification: Restricted Lawrence Lessig BA (Econs), BS (Mgmt), Penn Wharton MA (Phil), Cambridge, mid-1980s JD, Yale, 1989 Law Clerk, 7th Cir CA (Posner), USSC (Scalia) Chicago Law Professor, 1991 – 1997 Harvard Law, 1997 – 2000 What Cyberlaw Might Teach, 1998 Stanford Law, 2000 – 2009 Harvard Law, 2009 – present  SMU Classification: Restricted What CyberLaw Might Teach My suggestion is both that there is something new to think about there, and that what we learn there will teach us something about what we know from here. [Real space regulation: law, social norms, markets, architecture (including code).] That there is a highway and train tracks separating this neighborhood from that is a constraint on citizens to integrate. These constraints bind in away that regulates behavior. In this way, they regulate. In all of these examples, law is functioning in two very different ways. In one way, its operation is direct; in the other, indirect. When it is direct, it tells individuals how they out to behave. It threatens a punishment if they deviate from that directed behavior. … law also has a way of regulating that is more indirect. When law regulates indirectly, it aims at changing the constraints of one of these other structures of constraint … When we think of regulation in this more general way, we see things that a less complete account might miss. One thing that we might see is how one kind of constraint can be substituted for another. What is Lessig’s definition of “regulation” here?  SMU Classification: Restricted Code is Law? And finally an analog to real space code — code — regulates behavior in cyberspace. The code, or the software that makes cyberspace as it is, constitutes a set of constraints on how one can behave. The substance of these constraints vary, but they are all experienced as conditions on one’s access to cyberspace. … The code or software or architecture or protocols set these features; they are features selected by code writers; they constrain some behavior by making other behavior possible, or impossible. In this sense, they too are regulations, just as the architectures of real space code are regulations. AOL example: screen names and parental control Counsel Connect example: real names and professional selection Two different “normative universes” resulting To the extent that code can be made to regulate directly, because code is plastic, code can regulate more. Code in cyberspace can more easily substitute for law, or norms. Code can more subtly control and discipline behavior. Code is a richer alternative to these other forms of constraint, and hence it makes more real the sense in which the four constraints that I described can be traded off, one against the other.  SMU Classification: Restricted Code is Law? “My aim in the last two sections of this essay is to suggest … why, or how, that is, government can and will regulate cyberspace [and] that when we see the law in code, we see all the more reason why law must regulate code, if public values, in particular constitutional values, are to be preserved.” Key questions: - What, ultimately, is Lessig’s substantive reply to Easterbrook on the Law of the Horse? - What are the assumptions made? - What are the implications for studying L&T as a field in itself?  SMU Classification: Restricted The Law of the Horse - Takeaways Lessig’s essential answer was to suggest that cyberspace is special enough that specialised study is both useful and possible. Agree? L&T wasn’t (isn’t) always seen as a field Perennial tension between applying existing law to technology and treating technology as special What is really new/unique about tech as to warrant dedicated law/analysis? How do we know? More in next segments on when and why tech can be special  SMU Classification: Restricted Recall the Big Question Is it an issue with law, with technology, or both?  SMU Classification: Restricted Some Examples  SMU Classification: Restricted B2C2 v Quoine Q is a crypto-exchange with a proprietary “market-maker” algorithm Quoter, responsible for 98% of market-making trades Q allows margin trades (essentially, borrow to buy/sell) with forced automatic margin calls (close position to repay loan) To do this, monitors each account’s live P&L = q x (pbuy – E[psell]) If spread too big, forces trades at best available price to close positions What could possibly go wrong?  SMU Classification: Restricted Enter B2C2 B2C2 trades on Q with a Software that implements a chain of 2 trading strategies that essentially looks at prices of 20 best orders on Q, does quick maths, and decides an offer price to buy/sell But if