Technology and the Law

You really don’t need watch carefully to recognize that technology is advancing at a rate that is far outpacing the ability of governments and the legal system to keep up.

However, while a few stories of Congress critters struggling to cope with social media and judges being stumped by digital recording systems might be funny in the moment, the legal stagnation when it comes to rapid digital changes has serious implications for the future of American society.

As The Guardian, the UK news organization that first published Edward Snowden’s revelations of how the NSA is monitoring everyone’s communications, accurately notes, “Technology law will soon be reshaped by people who don’t use email”.

There’s been much discussion – and derision – of the US supreme court’s recent forays into cellphones and the internet, but as more and more of these cases bubble up to the high chamber, including surveillance reform, we won’t be laughing for long: the future of technology and privacy law will undoubtedly be written over the next few years by nine individuals who haven’t “really ‘gotten to’ email” and find Facebook and Twitter “a challenge”.

And we certainly can’t count on Congress to address the issues.

This lack of basic understanding is alarming, because the supreme court is really the only branch of power poised to confront one of the great challenges of our time: catching up our laws to the pace of innovation, defending our privacy against the sprint of surveillance. The NSA is “training more cyberwarriors” as fast as it can, but our elected representatives move at a snail’s pace when it comes to the internet. The US Congress has proven itself unable to pass even the most uncontroversial proposals, let alone comprehensive NSA reforms: the legislative branch can’t even get its act together long enough to pass an update our primary email privacy law, which was written in 1986 – before the World Wide Web had been invented.

As the most recent edition of the Decode DC podcast illustrates, our legislators can’t even manage the flood of email and other messages they receive.

But while our “leaders” are bogged down with re-fighting political battles of the past, legislatures in other countries are looking forward.

By contrast, consider Finland. There, lawmakers are experimenting with a bold new way of reforming a law: crowdsourcing — meaning turning the legislative process over to the people.

Or consider Brazil, where there is now an experimental computer lab smack in the middle of the Parliament’s committee rooms. There, official staff hackers throw together apps and games and data visualizations to help Brazilians — and the members of Parliament — understand the legislative process.

So, any hope our politicians can get their act together and bring our laws into the 21st century? Probably not, especially when a third of their adult constituents (and too many of them) don’t even accept basic scientific concepts and believe in ghosts, UFOs and astrology.

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