One of the constant quips that people have about the law when it comes to the Internet is that it always seems to be behind the technology. That, before a bill has been passed, it’s already out of date.
Most of the time, that’s very true.
Even legislation that attempts to be forward-thinking, such as the DMCA, is often out of date before the ink has finished drying on the its signature.
People like to believe that this is because legislators and others in government are out of touch with technology and either don’t understand how the Internet works or, even worse, fear it. But while that’s certainly a problem and likely a factor in some of the worse bills, it’s not the larger issue.
The truth is that, even if legislators were the most tech-savvy people on the planet, the law would always be behind the cutting edge of tech and the problem is only going to get worse.
The problem, as it turns out, lies not with the legislators, but with the process that we write, pass, enact and enforce laws. It’s not a problem that voting alone can cure.
If there’s a way to fix it at all, the solution is going to require a major rethinking of the process by which laws come to pass and the way government is organized.
The Ideal Process
Ideally, laws don’t start out as laws, but as social norms.
Typically, before a government says that something is illegal, society, in large, decides that a certain behavior is not acceptable. This can be anything from larger crimes such as murder to smaller offenses such as jaywalking. From there, government decides that something is enough of a problem and enough people oppose it consider legislating it and they work to pass a law, that later takes effect.
The problem with this method is that it takes a great deal of time to deal with new technologies and developments. Developing social norms in and of itself takes time. Consider, for example, the developing social norms about texting and driving or using cell phones in public. Then taking those norms and turning them into laws can require many legislative sessions with a lot of debate and hang ups. From there, most likely, the laws that are passed aren’t implemented for months or even years in some cases.
Normally, this process works fine as the development and adoption of new technology is slow enough to give time for this change to take place. For example, Automobiles in the U.S. were introduced in the early 1900s but didn’t reach greater than 80% adoption until the 70s.
That’s more than enough time for a technology to be introduced, embraced, integrated and understood by a society and the laws that dealt with automobiles have historically reflected that, rapidly shifting and changing as public attitudes shift, a process that continues today with constant speed limit changes and other traffic law adjustments.
Where that process breaks down is when new technology is introduced at a rate faster than the process can keep up. As this chart of technology adoption shows, newer tech such as cell phones, microwaves and, more importantly, the Internet, have been adopted at a much faster rate than older ones, such as electricity, automobiles and telephones.
The reasons for this are many and are up for debate, but the impact is very clear: The pace of adoption of technology has completely outstripped our ability to develop social norms about its use, let alone legislate it effectively.
The Issue of Jurisdiction
The other challenge facing the legislation of new technology is the concept of jurisdiction.
For as long as governments have existed, they have worked on the concept of jurisdiction. Jurisdiction basically means that an organization, whether it’s a local, state or national one, has control and authority over a certain geographic space. This can be a country, a city or some other region.
But the other common theme that all modern technology has is that it’s made those border increasingly meaningless. What difference does geography mean on the Internet or with a cell phone? When an Australian man uses a U.S. server to commit a crime against someone in France, who has jurisdiction?
These are thorny issues that aren’t easy to answer. However, the impact has been that, increasingly, the laws in one place have had a major impact on business in another.
For example, if one country makes a type of website illegal, those sites can easily pack up and move to another country that hasn’t yet passed laws prohibiting them and continue operation unabated.
You see this routinely in everything from piracy, gambling and spam to more pressing matters such as child pornography and terrorism. One friendly jurisdiction is all an operation needs to operate globally with immunity.
This has been the cause for a greater push on multinationalism when it comes to legislation and an increased importance on organizations like the U.N. and its various sub-organizations. However, those efforts have been, at best, mixed.
To make matters worse, international treaties take much longer to negotiate, pass and enforce than domestic legislation. So even if there can be some effective way to legislate on a multinational front, the process will take much longer and exasperate the time problem greatly.
In short, even if we can solve the jurisdiction problem, it only makes the time issue much, much worse.
Finding a Solution
Fixing the problem means one of two things. The first option is to drastically alter the way we create and implement laws on a global scale to make the process centralized and fast enough to keep up with technology. This is a risky and impractical move that invites as many problems as it solves.
The second solution is to simply accept that our laws, for the foreseeable future, will be behind the technology it tries to govern. Legislators, governments and their advisers can try to be forward-thinking but will, most likely, fail as often as they succeed. This is through no fault of their own, but due to a handicap with the process.
However, that process is valuable as it protects us from even worse problems such as abuse of power and tragic mistakes. While it isn’t a perfect system, it’s better than the alternative.
In the end, giving any organization, government or otherwise, the power and resources needed to legislate and enforce law ahead of technology as it is paced today would be far more dangerous than having laws that are out of date.
However, with time, maybe technology can help improve the drafting of laws without the risk of a radical change in approach. This way, technology could, once again, be the solution to the problem it created.