Technology and the law: dealing with the 'law lag'

The law often lags behind technological change.   Source: Herald Sun

A truism regularly used to describe the relationship of technology and the law is the notion of ‘law lag'.

That legal cultures always find themselves a number of steps behind scientific and technical change, struggling to understand the implications of new technology and failing to ‘keep up’.
These observations are particularly salient to considering many aspects of the new life sciences which may  fundamentally challenge basic concepts of ‘life itself’, or,  the internet , which has ill defined boundaries (both physically and socially), is rapidly changing, and involves multiple design inputs, spanning from the contributions of governments, private corporations, software specialists to hackers and mundane users.
These new areas of science and technology are taxing on law and regulation because they not only demand an appreciation of new techniques and forms of knowledge so existing legal principles can be properly applied, but also raise questions about the relevance of such principles to the contexts where they are being applied: For example is a mouse genetically designed for cancer research an invention, a living thing, a mixture of both, or something completely new? How can basic privacy principles be applied to internet search engines which help lubricate the internet but by their nature gather information automatically, often for future purposes unknown and without our consent?

Pre-occupations with ‘legal lag’ can be a positive thing from the vantage point of good public policy making when it reminds those working in legal cultures that if they are to remain relevant they need to continuously reflect on the relationship between law, science and technology and keep educated and abreast of changes in science and technology and public attitudes towards them. This awareness in turn suggests the importance of actively creating spaces for dialogue between professionals in scientific and technical fields, relevant social scientists, lawyers and regulators and the public, it also echoes the ongoing importance of the work of entities such as the Australian Law Reform Commission and the need to revitalize the creation of interdisciplinary organisations who can assist and advise in processes of formal technology assessment.
Uncritical uses of the idea of ‘law lag’ can nevertheless, become a negative influence on public policy formation in at least two contexts:
Firstly:  Whilst the idea may fit with some areas of science and technology such as those noted above (new life sciences and the internet) it may not fit with others. It is not a ‘one size fits all’ concept. In many cases something approaching the opposite situation occurs, that is, for technical cultures to fail to offer to society the most socially appropriate technological options. This problem of ‘technology lag’ can be seen in resistance and apathy in relation to developing environmentally sound technologies and in many areas involving technology and risk. To note just two of many possible examples: The story of the chequered development of renewable energy technology has been one of an endless battle against the inertia of large scale socio-technical systems based on fossil fuels. A similar story can be told in relation to the history of automobile safety where the lead for improvements in the design of automobiles was largely promoted by litigation and the advocacy of lawyers and consumer advocates not engineers.
Secondly: ‘Law lag’ can at times far too easily become an excuse to discourage serious discussion about the regulation of science and technology. It is for example regularly proposed that, “you can’t regulate the internet”, often this observation is underpinned by technological determinist assumptions that the internet is something that is evolving by itself and moves too quickly to be subject to law or regulation.
These statements and their underlying assumptions can discourage efforts to understand the processes that are involved in the ongoing socio –technical shaping of the internet. Understanding these processes is integral to making laws that will preserve the internet’s usefulness as a communication network. It is true that making laws and regulations in this contexts is intensely challenging but it doesn’t mean that it shouldn’t be attempted, trivialized, or engaged in half heartedly. Most of us would resist the notion that because it is difficult, that there shouldn’t be laws and regulations involved with driving.
Despite initial public resistance to them, laws stopping drink driving or making seat belt wearing mandatory, have become integral parts of the culture of driving and significantly improved the safety of our road transport systems. Regulators need to be responsive and open to scientific and technical advice and public interests, but not respond to the fear that the process may be a complex and an ongoing one as offering an excuse to disengage.
 In the  immediate future we will no doubt see many references to the problems of ‘law lag’ in response to things like government initiatives to curb ‘cyber bullying’, screening  internet content and in ongoing debates about where to set the limits in new biomedical research, it would be good to  see the inevitable  complaints  about law lagging behind science and technology to be used to promote dialogue and mutual learning  between the relevant stakeholders rather than be used to trivialize the importance of law and regulation in shaping science and technology.
David Mercer is Associate Professor and Convener of Science and Technology Studies at the University of Wollongong