Our laws are based on people, places and things. But technology and the Internet aren’t. The Internet is not a place. It’s everywhere and nowhere in particular. Digital information is not a thing. It flows in tiny packets and exists in multiple copies just to be seen and used. And people are becoming great files of data as companies track everywhere we go online, how long we stay, what we look at and buy, where we go in the world, who our friends are and how we interact with them.
Technology and the ways we use it will change the role of law and lawyers.
Courts and legislatures are struggling to keep up with the fast pace of technology. New laws and cases are quickly outdated. For example in 2007, the Ninth Circuit issued Perfect 10 v. Google, a copyright case with a cutting-edge description of how the Internet works. That description is now wrong and so is most of the basis for the holding.
Recently, a jury awarded Apple $1billion in a patent infringement case. The complaint was filed in April 2011. Since then, Apple has released new versions of the Macbook Pro, iMac, Macbook Air, iPad, iPhone, and at least two operating systems.
State legislatures have rushed bills into law to protect employees and job applicants from having to give employers their social media passwords. But even that took months. Neither Congress nor legislatures are capable of keeping up with how fast technology is moving. Most pending bills are older than the original iPad.
Here are some of the ways that technology is changing law.
Motor Vehicle Accidents- Soon car manufacturers and insurers will install a black box in your car that tracks how you drive, where you go and when. There will be video of any accident including precise data on speed, driver actions and timing. Software will determine fault. (This is currently being challenged by the ACLU under California’s right to privacy.) But car wreck lawsuits will be a thing of the past.
Privacy—There will be a huge push to try to figure out technology companies’ and governments’ interests in data about you. The US and Europe have very different laws and views about an individual’s interest in privacy. In Europe, there is a right to be forgotten. In the US, sometimes companies are required to let you know how they collect and use your data. But as soon as a laws are written, technology will just route around them. The way to deal with technology is with technology. Privacy won’t be a legal right. It will be an app.
Crimes/Accidents- Everyone is a videographer and surveillance cameras are everywhere. So getting eyewitness technology will be easy. So is changing it. Digital images are easily manipulated and inherently unreliable evidence. So trials will become about the manipulation of proof rather than what happened.
Business Relationships—Contracts are entered, performed and breached in multiple places at the same instant. Employees work in different states and countries. Transactions are global. And any time the Internet is involved, the data moves through servers all over the world including under the ocean. How do you enforce a contract that is potentially governed by many different laws? Courts are currently struggling with jurisdiction issues. Forum shopping based on the laws most favorable to the case is already common. Where can and should lawsuits be filed? Will it be malpractice if attorneys don’t consider the foreign jurisdiction that would benefit the client?
Intellectual Property- Should individuals have rights to their digital likeness? Who owns the data about you? How do you enforce copyright in a digital world where unlimited copies are possible, and multiple copies are required for any copy to function? Will patent law create monopolies that violate other laws?
Damages- Law is generally based on physical injury and quantifiable loss. What are the damages for digital injuries—cyberbullying where no one gets touched, copyright violations where there are unlimited copies and no way to prove that having one less copy caused any harm?
Companies and their attorneys need to start thinking about how to make a difference in a digital and data driven world. Chances are it will be through contracts and licenses rather then courts and legislatures.