As an academic writing in the area of law and technology I often find myself in meetings including both technological designers and lawyers. In these gatherings I have noticed an interesting phenomenon: The technologists in the group often put their faith in the power of legal solutions, while legal academics frequently demonstrate a strong preference for technological answers.
What is the cause of this reciprocal self-depreciation? Why does each group downplay its own tools? I have been thinking about this paradox in the context of a symposium piece I am finishing for a privacy symposium at Villanova. I cannot answer for the technologists in the group, but I would like to pose a hypothesis that may explain the lawyers’ reactions.
Application of technological means or legal regulation to shape the use of a new technology often comprises early intervention. It is early intervention in the sense that decisions and choices are made before the full potential and effects of the technology are realized. We are intuitively averse to early intervention as many of us share the belief that technology is synonymous to progress and well being. Yet, our aversion to early intervention seems to apply only when it takes the form legal regulation, and not when it is in the form of technological design. Linguistically, we refer to legal regulation of new technologies as “intervention” while we address technological measures as “design.” Legal measures are perceived to be cruder due to their visibility, while the technological design’s stealthy character appears as a natural shaping of the technology. I wonder if the technologists who do not reject legal measures do so because they comprehend the falsity of this dichotomy.
Posted by Gaia Bernstein on April 14, 2006 at 12:04 AM
Comments
I would say that the “technical solution” is often thought best because it is supposed to maximize autonomy. For example, we might not want a single solution to “privacy on the web,” and instead desire a technical method of calibrating everyone’s “privacy preferences.”
I think your work has exposed the problem with such solutions; people may not have the time or energy to set their preferences. Moreover (and more speculatively), by enabling the commodification of privacy, the spectrum of “technical solutions” allows those who don’t mind infringements on their privacy to gain commercial advantage over those who do. Markets will eventually favor the dominance of the former.
To generalize from this example: the technical solution is often thought by lawyers to be preferable because it appears to evade the imposition of one group’s values on another. BUt if the market + technology inexorably leads to the privileging of certain values, the “technical solution” is no more neutral than the legal solution.
Posted by: Frank | Apr 17, 2006 10:09:56 AM
> The technologists in the group often put their faith in the power of legal solutions, while legal academics frequently demonstrate a strong preference for technological answers.
In my experience I’ve found the opposite to be true, at least as far as technologists are concerned. While I think several years ago technologists may have more been of the belief that, the law being just, it would get out of the way, so to speak, and let technology develop. But I think many technologists are becoming increasingly scared of the law, having seen it too often be wielded as a club against technological development (see, e.g. the DMCA), and now doubt that it will be able to provide good solutions.
Or, if they do still believe in the law’s ability to provide solutions, what they actually believe is simply that the good law will win out over the bad. Which is a different thing than believing that the law will somehow provide overall solutions that technology can’t.
(And with regard to the lawyers, I run into many legal thinkers with minimal faith in the ability of technology to solve problems. On the contrary, there are many with an inherent distrust of technology, who feel they must use the law as a means to control it.)
Posted by: Cathy | Apr 14, 2006 4:02:37 PM
Insightful post.
I might add that the best solutions are generally those that thoughtfully *integrate* technological and legal mechanisms. So a possible partial explanation for the phenomenon you observe is that, at a conference or similar setting, each group of specialists is eagerly discussing and learning about the type of tool with which they are less familiar. A technologist may say, “yes, there is this code that will help, but I wonder what kind of legal back-up it would need?” and vice versa.
Posted by: William McGeveran | Apr 14, 2006 11:55:48 AM
I think the eplanation is much more simple. Technologists know that their solutions can be hacked, so they want legal backup. Practitioners know that enforcement costs are high, so they want self help.
Posted by: MR | Apr 14, 2006 10:46:44 AM