Who Is In The Driver's Seat?

Just recently, I was perusing the online world looking for commentary on the issues of law and technology. I happened to come across this blog, called "Law and Technology Theory," devoted to that exact topic. I must mention that at times some of the entries in this blog seem a little convoluted and full of impressive big words without a similarly impressive amount of substance. Nonetheless, they do touch upon some very interesting concepts.

One of those concepts was whether or not technology has come to control the direction of humanity or whether humanity remains autonomous. Even further, how does the answer to this question determine how we view the law?

Now, I am not going to even try posing an answer to this question because I'd like to avoid running into a chicken and the egg conundrum (e.g. Did man create technology or did technology find man? Take fire, for example... it existed long before humans did, so did we evolve because of a desire to harness this most primal technology, thus fire helped shape humanity today, or did we, as autonomous creatures invent technology, which just happened to allow us to harness fire? etc, etc, etc.). I'm more of the opinion that you can't really separate them out this way and that the imagination of humanity can shape technology in new ways, just as technology can shape the direction of our culture.

In any event, the issue, when it comes to the law, is one of great concern to all of us in the legal field whether we admit it or not. Our courtrooms are sorely behind the technological curve, while our society is racing out far ahead. How can our justice system purport to represent our societal interests when there is such a discrepancy? The simple answer is that eventually, it can't.

Does this mean that technology is re-shaping our views of justice? Does/Should technology control the direction of the legal system? The knee-jerk reaction is that of course it shouldn't. People and their societal ethics should determine what justice is and how to implement it, right? Right. The problem is then that if people don't make a conscious effort to make sure that we are updating the legal system, then it will soon control us without our knowledge.

Take photographs for example. When the first photograph was introduced into evidence, I'm sure some attorney somewhere had no idea how to defend against it and he (no offense to my sisters in the law, but it was a long time ago... it was probably a he) probably went nuts when a very smart judge said, "I'll allow it." The law probably had to play a very fast game of catch-up to make sure that justice wasn't being perverted by something no one yet understood. The same thing probably happened with videos when they first showed up, and again with computer simulations. Actually, there are still huge issues with authenticity/admissibility of computer simulations, computer generated images, and 3D models.

In an age where e-mails are the norm and cell phone bills can track our every movement, shouldn't the law have an up-to-date way of dealing with these issues? The legal community needs to test the waters. We need to pass legislation like the updates made to U.S. Copyright laws to deal with software. We need to challenge judges (that's right, I said it!) to make reasonable and accurate rulings about technology.

Either technology shapes the law or we, as the legal community, shape the law to deal with technology. I would much rather have laws and a legal system that people shaped to accommodate us, than a system that is struggling to accommodate a faceless technology at perhaps the expense of justice.