The Gap Between Technology and the Law

It is illegal for a potential employer to ask you about your religion, race, ethnicity or national origin while conducting a job interview. Discriminating against your application based on the results of those queries would be an absolute violation of your rights. However, there is nothing stopping a potential employer from looking you up on Facebook, Twitter, Instagram or other social media sites, determining your race, religion, ethnicity or national origin and then tossing your resume in the trash if they do not like what they see. Unfortunately, the legal code has a terrible track record of keeping up with technology.

While the world of technological innovation is an exciting, fast paced and incredibly energetic environment, the world of legislation is conversely sluggish with bureaucratic hurdles, political hand wringing and litigation. This foundation creates a deliberate, carefully plotted, trawling pace of advancement. Writing laws is a much lengthier process than writing, code. The legislation process involves drafts, readings, committees, hearings, riders, rewrites, revotes, backroom deals, vetoes, campaigns, filibusters, checks and balances. There is always the assumption of bad faith in the drafting of legislation, and legislatures generally operate in a reactive matter instead of a proactive mindset. This means that the slow, rumbling process won’t even initiate without a conflict or controversy haranguing lawmakers into action.

Furthermore, after legislation is passed and signed into law, it takes months, years or even decades for the courts to be presented with a case and process their interpretation of the legislation through the system. Since the courts are arbiters of disputes, they are intentionally and institutionally designed to be nothing but reactive. They cannot proactively go out and seek a case or conflict, they must wait for a conflict or dispute to arise, and be brought forth to the court in the form of a case. The adversarial nature of the American judicial system further means that the disputing parties will spend copious amounts of time, energy and resources trying to get their interpretation of the law accepted by the courts. This deliberative design, coupled with the reactive nature of legislating legal code means that there is a sizable and growing gap between technological advancements and modernization of the legal code.

This advancement gap creates room for enterprising actors to take advantage of the gray area and advance their fortunes and/or their worldview. For decades there were unresolved legal issues in the cyber security world where the authors of malware, and specifically ransomware, were not technically breaking any laws, or were forcing their victims to break existing laws by the nature of being susceptible to an attack. Effectively, they were free to abuse technology in order to illicitly profit without legal recourse. While the legal code has since caught up to malware hackers, one of the worst pacing issues with the legal code involves patenting of technological innovations.

Patents are designed to protect the rights to innovations for their innovators. With a legal history and case law dating back to the late medieval era,  patents have been the means by which intellectual rights owners and innovators have protected their innovations from being stolen by rivals. Since any case law adjudicated in the British empire before July 4th, 1776 is valid case law in the American common law system, this lengthy legal history of patents has a direct effect on the American legal code. However, the business environment and technological standards which were present when John of Utynam was granted the first English patent by King Henry VI in 1429 were vastly different from the business and technological climate of today.

The US patent office grants patents for innovations as mundane as individual lines of code. The draconian process of evaluating and approving a patent application takes 5-6 years, and with only about half a million patents completing the approval process each year along with an understaffed office and budgetary constraints, the patent office has a very significant backlog of applications, the vast majority of which are techies trying to patent their code or technical innovations. This backlog and staff shortage leaves too few resources for the patent office to investigate the validity of patent claims. Consequently, the system is ripe for abuse. There is a whole industry of patent trolls who build their business models off of purchasing existing patents or directly patenting common practices, open source code, or methods and products that have been designed by their innovators to be available to the public, often times because the original creators don’t have the resources, time, or experience necessary to file a patent. Frequently, patent trolls will hear about an innovation, then fast track a patent application with connections or resources in order to get their patent application approved before the innovator’s application, thus freezing out the original innovator.

Patent trolls do not actually use their patents to produce any goods or services, they instead keep a vigilant eye out for unsuspecting companies or individuals who may have accidentally or unknowingly infringed upon the patent. Patent trolls will then either demand the infringing party pay a licensing fee or else sue them for copyright infringement. Consequently, patent trolls are often times actively seeking unpatented common practices, coding methods, or lines of code that are versatile and are quite easily independently written in order to profit off of patent infringement lawsuits or licensing frees. This abusive system is one of the main consequences of a legal code that has not kept up with technology.

Profiteering is not the only way that the gap between technology and legal code is exploited. Ethics are often the victim of the gap as well. When there is technological advancement, and the legal code has not caught up, new innovations create ways for actors to get around the legal code in order to enforce their own ethics, morals, or religious beliefs upon others without legal consequence. Social media has enabled employers to discriminate against potential employees, and politicos to discriminate against classifiable groups they do not like, all while skirting around the edges of the law without technically violating it. Ethicists are concerned with the potential for the government to use the lag in legal code to disrupt and curtail the rights of American citizens and residents.

There is a well publicized (albeit under the radar) debate between Silicon Valley and the Trump administration over encryption technologies. In an effort to promote a strong, tough on crime image and policy, the Trump administration has decried secure encryption technologies as illegal. The administration has taken the view that when there is no backdoor access for law enforcement to encrypted devices, encryption technologies and their innovators are aiding and abetting criminality. Silicon Valley has countered with the argument that the right to privacy for the vast majority of law abiding public outweighs law enforcement concerns, and even when there is suspicion of a crime, encryption technology is constitutionally protected.

As technological innovations continue to outpace the law in development and advancement, the shaded gray area between technology and the law will continue to be a source of ethical, moral and legal conflict. There is a growing need for a healthy debate on how to reform the legal and legislative systems in order to minimize this developmental gap, otherwise the potential for abuse is inevitably going to exasperate an already polarized society.