Technology and Legislation

It has long been understood that the law and technology do not mix well. I mean this in the sense of legislation. You can bet that when government legislation explicitly dictates use and abuse of specifically-named technologies and technology-based products, it will be wrong. I was reminded of this recently by stories about new laws that target cell phones.

Have a look at this draft legislation before the US House of Representatives. If you follow the news you may have heard about this already: a law to have cameras in cell phones make an audible click sound when they snap a picture. The intention is to protect privacy in locations that are considered safe, like locker rooms, and abuse of that privacy that can cause harm to others. The intention is good. The problem is with the bill mentioning a very specific technology: camera phones.

Consider other picture-taking products, and especially cameras. If I have an old-style film camera with a quiet shutter, despite being mechanical, I can supposedly use it without violating this draft law. How about the camera in my laptop? Presumably that's also not prohibited. I can also imagine seeing cameras in more and unlikely devices in the near future, perhaps even in a pen or shirt button. Should those be prohibited as well? You might think so since it is within the spirit of the bill's objective, yet it is bound to miss products that are not yet on the market or widely available.

Here is the nub of the problem: legislation always lags technology. How could it be otherwise. Lawmakers have to see the technology before they can discuss it, and in particular they need to see it in use. It is not because they are idiots, but rather because few if any can correctly predict how products incorporating new technologies will get used once they are released into the wide, wild world we inhabit. Even technology futurists get it wrong all the time.

This particular law is in the same mold as the cell phone while driving bans that are sprouting up everywhere. Why, many ask, is this one distraction picked on by lawmakers rather than all the rest, including people who eat or rummage through a batch of CDs while navigating traffic. Are they targeting a technology because it is new, and anything new is looked on by many, especially the non-technologists that populate our parliaments and legislatures, as somewhat threatening from the perspective of their more conservative bent? This also comes up with video games and the supposed harm they cause to children. (Stories about all of these examples frequently come up on sites like Techdirt, so you can hunt there if you want examples.)

Despite all of the above, there is one good reason to name technology products in the law: enforcement.

It is easier to convict on the basis of use or presence of a named device rather than on the behaviour of the accused.

I talked about this last year regarding driving with a cell phone. A police officer can cite a motorist for using a phone while driving and have excellent prospects of a conviction. This is not so if the charge is careless driving or negligence unless there has been a disastrous outcome. The same can be said to be true of click-less camera phones versus proving in court that someone's privacy or expectation of privacy was violated. As for video games, better, the politician thinks, to ban or restrict those with violence or sex rather than attempt to prove there is real harm.

The same thinking often appears in telecommunications, which is where I have a more particular interest. One of the latest is the use of P2P. Lawmakers are all over the map on this one, with some thinking that banning P2P entirely is a good thing so that inappropriate use is reduced or prosecuted, despite the impact on appropriate use. Again, it's a matter of targeting technology rather than illegal use of the technology because it's easier to convict on possession than on inappropriate use.

Not all is muddled in the intersection of law and technology. I am familiar with laws in the telecommunications field and elsewhere that do work. Examine this extract from the US Telecommunications Act of 1996:

SEC. 251. (2) Interconnection.-- The duty to provide, for the facilities and equipment of any requesting telecommunications carrier, interconnection with the local exchange carrier, network--
(A) for the transmission and routing of telephone exchange service and exchange access;
(B) at any technically feasible point within the carrier's network;
(C) that is at least equal in quality to that provided by the local exchange carrier to itself or to any subsidiary, affiliate, or any other party to which the carrier provides interconnection; and
(D) on rates, terms, and conditions that are just, reasonable, and nondiscriminatory, in accordance with the terms and conditions of the agreement and requirements of the section and section 252.

Now that's how you write a law in regard to technology! Notice that there is no reference to technology at all, just a strong statement of relativism in regard to technologies that compare with what the carrier has and offers in a way that they cannot impair their competition. Imagine if they had named SS7, tin cups and string or anything else. We and the carriers would still be locked into the technology of the 1980s.

What is interesting is how Congress got this right when lawmakers, including the same Congress, often get it wrong. The difference between this case and the thundering dismay over cell phones is that there is a regulator, the FCC, that is largely competent in the technology and was in a position to direct the writing of the bills. Without that type of backing expertise the lawmakers are adrift in an unfamiliar world and so get buffeted by the loudest and most convincing voices. In Canada the CRTC is perhaps not in the same position as the FCC but they still manage to do moderately well much of the time.

The same approach can be taken with other technologies. In this time of global warming, the better way to reduce carbon emissions is when the laws phase in reduction targets in selected sectors and let companies and individuals figure out how to achieve those targets. Legislating specific technologies, whether it be catalytic converters, alternative fuels or industrial scrubbing, is sure to lag the march of technology and thus often prevent or delay the use of better choices.

The issue of legislation and technology will never go away. We can only try to make the right choices at the right time.