The Perspective of Technology:

How is Technology Affecting Law?

Many think piece authors emphasise technological development as a main driver of legal change. Because of new technologies, rules sometimes be-come obsolete. But the impact of new technologies goes beyond rules and statutory legislation. Just as internationalisation raises some serious ques-tions regarding basic legal principles and basic legal concepts, new tech-nologies can render legal concepts that have been used for ages obsolete.

Jacqueline Lipton and Rolf H. Weber both see the need of restructuring

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cyberlaw. Jacqueline Lipton points out that on the Internet everything is dependent on the intermediaries at work. The ‘blackout protest’, of among others Wikipedia and Google, against the Stop Online Piracy Act in Janu-ary 2012, showed very clearly the power of online service providers, often missed in the discussions about the nature of cyber law. Therefore, there is the necessity of a law of the ‘intermediated information exchange’. Un-like the case of many physical world interactions, the victims of online wrongs are more immediately attracted to legal action against an interme-diary than against the primary wrongdoer (because of the anonymous global nature of the Internet and the interest of the intermediaries to be seen as safe). The cyber law of the future will therefore need to focus on the legal liability of online intermediaries. This has not been the case in past conceptions of cyber law. In the other think piece that deals with cyber law, that of Rolf H. Weber, informal law is presented as the best mode for regulation. An evolutionary approach should mainly encompass procedural models being better suited to comply with an uncertain future and allowing a reconciliation of conflicting interests. Key elements in this concept are organisation, governance, and dispute settlement. Thereby, civil society must be adequately positioned through a multi-stakeholder approach to determine what social impacts law should cause.

David Eagleman and Sarah Isgur Flores also find that a lot of work needs to be done to align law and policy with the current state of science – this time modern neuroscience. After showing how ineffective and inefficient current criminal justice policies are in terms of preventing new crimes, they propose a way to no longer base these policies on blameworthiness, but on biology. Currently, law does a very poor job in taking the genetics and the environment of the perpetrator into account, while these are exactly the reasons why someone committed the crime.

This is very hard to do right, anyway. So that is why Eagleman and Isgur urge to shift the emphasis away from blameworthiness to a more forward-looking approach, based on a better understanding of the brain. This ap-proach is the neuro-compatibility index, comprised of seven criteria to quantify how well a system of criminal law is compatible with the lessons of modern science.

While Eagleman and Isgur are making the case for bringing tested techniques of biology into the realm of law, Albert Lin discusses the largely untested method of geo-engineering. But there is good chance that it will materialise at some point, as it is gaining attention as a possible tool

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for ameliorating climate change. He uses the metaphor of a thermostat that will enable humans to fine-tune the Earth’s climate. This highlights the dilemma that comes with the nature of this form of engineering: who should be in charge of this thermostat? Only States, or also other actors?

How to incorporate the interests of future generations? And how to organ-ise the compliance mechanisms needed?

Autonomous robots are dealt with in Surya Deva’s think piece.

Robots are considered autonomous when they are capable of perceiving information delivered as language or, otherwise, are able to learn, reason and make decisions based on their experience, without direct human in-tervention or instruction. Deva zooms in on the implication of the pres-ence of such robots for human rights. He asserts that robots can be ‘hold-ers’ of human rights as much as human beings or corporations can be.

What then needs to be done when autonomous robots violate these rights?

This needs a new regulatory framework at international level in which (trustees of) robots should have a say as well. Deva concludes that robots should and could be hold accountable for their actions and that sanctions would be appropriate if they violate human rights. Robots could compen-sate their victims or pay fines, they could be confined, and ultimately be destroyed.

Madeleine de Cock Buning, Lucky Belder and Roeland de Bruin discuss a broader spectrum of legal consequences of the rise of autono-mous robots. In six scenarios, they introduce a whole array of problems that might arise in terms of intellectual property, legal capacity, liability, and privacy. But differently from Deva, these authors stress that it would be wise to demonstrate restraint in developing a specific legal framework regarding robots. Many of the potential legal issues are already addressed in existing legislation. For instance, regulations surrounding corporate en-tities, ICT systems, motor vehicles, or even domestic animals could be relevant to evaluating the legal status of autonomous robots.

Finally, Jim Dator’s think piece focuses on the impact of commu-nication (and commucommu-nication technology) on the nature of legal and gov-ernmental structures. Dator’s starting point is that in order to forecast al-ternative futures of law, lawyers, courts, and judges, it is necessary to un-derstand their alternative pasts and presents, and to determine what as-pects of the pasts and presents might continue to influence their futures, and what novelties might arise creating new conditions. Looking at the way judicial systems have been shaped by communication technologies in

Introduction

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the pasts and might be shaped by current and emerging communication technologies in the futures, this think piece takes us on a fascinating and visionary journey that starts thousands of years ago and ends decades (or more) into the future.