Australian High Court Judge Recognizes That Technology Outpaces The Law

from the recognizing-the-obvious dept

One of the key themes around here for a while has been that technology has a way of making certain laws either obsolete or antithetical to their intended purposes. Often, however, lawyers, judges and politicians have a difficult time recognizing this. That’s why it’s at least somewhat encouraging to see Australian High Court Judge Justice Kirby publicly recognizing that computer code tends to make laws obsolete or meaningless. “It was a good moral and ethical principle to keep people’s control over the usage that was made of the information… And then along came Google and Yahoo. And when the new technology came, there was a massive capacity to range through vast amounts of information. The notion that you could control this was a conundrum.” However, while he does realize that technology can make laws obsolete, his solution is still to push for more laws: “To do nothing is to make a decision to let others go and take technology where they will. There are even more acute questions arising in biotechnology and informatics, such as the hybridization of the human species and other species. Points of no return can be reached.” It’s an interesting point — though, he doesn’t exactly explain what those points of no return are (at least not in the article that quotes him), and why the law would do a better job preventing those points from being reached than technology itself. In some ways, this is merely echoing Larry Lessig’s concept that “code is law,” though Lessig better recognized that trying to regulate technology with regulations was likely to be a lot less effective than regulating technology with technology.

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Comments on “Australian High Court Judge Recognizes That Technology Outpaces The Law”

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14 Comments
Overcast says:

Old ladies with walkers, walking through quicksand move faster than ‘the law’.

Unless… it’s working to take away your rights, protect corporate rights or politician rights, then it moves like a jet.

his solution is still to push for more laws:

How very draconian of him… just what we need, more laws! Problem is… only so many can be enforced. I guess.. at least for now, eh~

Scorpiaux says:

The Fox and the Henhouse

“regulating technology with technology.” – Mike

Just like having the fox guard the hen house, huh? Brilliant, Mike.

And forget treaties which try to limit the spread of nuclear weapons. Let every nation have access to the knowledge of how to make all atomic weapons as well as the materials to make them. That way, according to your theory, no one will ever again have to be afraid of seeing mushroom clouds. Atomic bomb usage will be regulated by atomic bombs in the hands of every nation. And don’t forget weaponized anthrax. Every student taking biology and chemistry should be able to create it in personalized labs. That way, anthrax as a weapon could be regulated by anthrax. Wonder why no one else has thought of this brilliant idea suggested by Mike? He should be awarded the Nobel Pizza Prize.

Scorpiaux says:

Off-topic question for Mike

Do you already have a retort drafted for use within minutes of the decision to be handed down on March 5, 2008 on the Atlantic Recording Corporation et al v Pamela and Jeffrey Howell case?

One thing you and your groupies can do is to create a fund to pay for the Howells’ defense. And don’t stop there. Pay for the defense of all those others who face off with those suing them over copyright infringement. Revolutions are not cheap and to be successful, someone has to pay the price. And you will need a groundswell of public support. Remember or have you read about the Chicago 8? Signs and marchers were everywhere. “Free Bobby Seale!” they shouted. How about marches on Washington with signs and shouting the slogan, “Free music now!” I promise I won’t try and trademark the slogan so you are free to use it. To make it reverberate across the land, you can be in the lead shouting, “What do we want?” The marchers can shout, “Free music!” Then you can shout, “When do we want it?” And the happy marchers can shout back, “Now!” And if you do this, you can probably get interviewed by the Today Show and Fox and Friends and maybe Chris Matthews on Hardball. You might even land on C-Span testifying before Congress.

Go get ’em, Tiger.

Tom says:

"his solution is still to push for more laws"

and “regulating technology with technology” – Mike Masnick

what’s wrong with laws to govern the use of technology? do we yet have a way to technologically prevent a hunting rifle from shooting a human? wouldn’t this be a great way to regulate techology with technology? but 644 years after the invention of the firearm and we still have no such technology. instead, we have laws that regulate the use of firearms. information technology isn’t any different, there is a need to regulate it with laws. sorry to break this to you, but programmers will not rule the technological world, society in general will, through our legal system.

R. Paul Waddington says:

Re: "his solution is still to push for more laws"

In the main of course you are correct. But using laws to control technology is probably taking the ‘bull by the horns’. I think consumers need to take more control of their destiny were technology is concerned and the law should ensure they can do this effectively. Simplistically put I have great concerns about the EULA and data mining, using Trojans, done by CAD software developers and I continue to work in bring this stupidity and its dangers to users notices.
Now we could try and enact laws for the courts to control this behaviour and watch lawyers tie the knots or we could simply have laws that ensured users could prevent the loading of Trojans, control, view and independently validate all data the developers are already gathering.
Those same laws guaranteeing transpareyc should carry huge penalties for any developer who attempts to gather any data, of any type, without prior approval; and those penalties should be increased for any any and all software developers that do not co-operate with user in the validation process.
Then the user can decide based on his/her own cermastance just whether it is important to use these capabilties or not.

Mike (profile) says:

Re: "his solution is still to push for more laws"

what’s wrong with laws to govern the use of technology?

Simple. It almost never works. Read Lessig’s book to understand why.

do we yet have a way to technologically prevent a hunting rifle from shooting a human? wouldn’t this be a great way to regulate techology with technology? but 644 years after the invention of the firearm and we still have no such technology.

Wait, do you mean to tell me that laws have made it impossible for a rifle to shoot a human? No?

See?

The aren’t all that effective either.

Reed says:

My solution

My solution would be to remove decisions about technology oriented laws from the traditional courts altogether. We cannot stand idly by while judges who don’t even own computers make decisions about our digital future.

Currently judges lack the training and experience to deliberate on this matter. The honorable thing to do would be to admit they have no friggin’ idea what is going on and to create a new law body to deal with technology. Technology deserves it own specialized judges not just the tech savy lawyers that we have now.

Currently judges are putty in the hands of expert witnesses that twist the facts of the technological revolution to favor big business and big money. If this trend continues technology will undoubtedly be used to enslave us to the pocket books of those who would tell us what we can and what we cannot do with the greatest gift mankind possesses.

The answer is NOT to let ill-informed and e-tarded Judges make new laws that they do not understand.

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