Law in an Era of “Smart” Technology This page intentionally left blank Law in an Era of “Smart” Technology By Susan W. Brenner 1 1 Oxford University Press, Inc., publishes works that further Oxford University’s objective of excel- lence in research, scholarship, and education. Copyright © 2007 by Oxford University Press, Inc. Published by Oxford University Press, Inc.
198 Madison Avenue, New York, New York 10016 Oxford is a registered trademark of Oxford University Press Oceana is a registered trademark of Oxford University Press, Inc. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of Oxford University Press, Inc. Library of Congress Cataloging-in-Publication Data Brenner, Susan W., 1947- Law in an era of “smart” technology / By Susan W.
Includes bibliographical references and index. ISBN 978-0-19-533348-0 (clothbound : alk. Technology and law. Justice, Administration of—Technological innovations.
Technological innovations—Law and legislation. Computers—Law and legislation 5. High technology industries—Law and legislation.095—dc22 2007023638 Note to Readers: This publication is designed to provide accurate and authoritative information in regard to the sub- ject matter covered. It is based upon sources believed to be accurate and reliable and is intended to be current as of the time it was written.
It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Also, to confirm that the information has not been affected or changed by recent developments, traditional legal research techniques should be used, including checking primary sources where appropriate. (Based on the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.) You may order this or any other Oxford University Press publication by visiting the Oxford University Press web site at www.com Contents Chapter : Introduction.
Chapter : Law and Technology: An Overview. Chapter : Law and Tool Technology. Chapter : Law and Machine Technology. Chapter : Law and Consumer Technology.
Chapter : “Smart” Technology. Chapter : Law and “Smart” Technologies. This page intentionally left blank CHAPTER 1 Introduction In the twenty-first century the technology revolution will move into the everyday, the small and the invisible. The impact of technology will increase ten-fold as it is imbedded in the fabric of everyday life.1 Phase Shift Somewhen, in the not-too-distant future, Anne comes home from work.
As she turns into the driveway of the family home, the garage door opens automatically, the home having anticipated her arrival. She gets out of the car and walks through a door that has been unlocked for her and into the kitchen. As she enters, she calls out, “any messages”? The communication system that is an integral part of intel- ligent technology installed in the home responds: “Richard will be at least half an hour late, and Jennie is having dinner at her friend Sharon’s house.” Anne goes upstairs, to the bedroom she shares with her husband (Richard). The house has turned on lights so she can see her way, and has a hot shower waiting for her in the bathroom she and Richard share.
She showers, dresses and comes down to set the table for the dinner she and Richard will share. The house has cooked the main dish—a casserole she left before she went to work. As Ann sets the table, the house reminds her that she and Richard are expected at a dinner party the follow- ing evening. Another somewhen, in the same not-too-distant future: Richard leaves home and drives to his office.
As he nears the parking garage, the gate opens for him to enter; his assigned parking place is empty and as he walks toward the elevator he will take to his office, it arrives, ready to take him to his floor. Like the home he shares with Anne, the parking garage is equipped with embedded, intelligent technology 1 Alexandru Tugui, “Calm Technologies in a Multimedia World,” Ubiquity (March 23, 2004): 5, http:// www.org/ubiquity/views/v5i4_tugui. Law in an Era of “Smart” Technology 1 Chapter : Introduction that anticipates his arrival based on signals from sensors embedded in his vehicle. Intelligent technology in his office receives those signals and advises the co- workers with whom Richard will be meeting that he has arrived and will be in his office within a few minutes.
Same somewhen: Richard walks into his office and has a conversation with its intelligent technology. He asks about the meeting, and is told everyone is present and will be assembling in the meeting room in fifteen minutes. The communication system in his office tells him he has received four voicemails and twenty-five emails; in response to Richard’s asking for details, it tells him whom each message is from and summarizes the content. Richard instructs the system to send a customized response to each message, telling each person he will respond in detail later.
He also asks about, and is updated on, the status of several pending matters. A different somewhen, in the rather-more-distant future: Anne leaves home on her way to work. She gets into her automated motor vehicle and instructs it to take her to an office building on the far side of town, where she has an early meeting. As the vehicle complies, Anne uses the interactive technology installed in the vehicle to check her voicemails and emails and to communicate with her own, artificially intelligent office.
By the time the vehicle drops her off at the front of the building where her meeting will be held, she has dealt with several work- related matters, spoken to her daughter’s teacher and made the final arrangements for a vacation she, Richard and their daughter will take the following month. An even more different somewhen, in the probably-fairly-distant future: Richard gets up, breakfasts, interacts with the home technology on several domestic mat- ters, showers, and dresses in comfortable clothes, after which he goes into the room he and Anne use as a home office. They each have a physical office in a remote building they can use if their actual presence is required there, for some reason. For the most part, though, Anne and Richard, like most people whose work does not involve interacting with the physical environment, use their home office if, indeed, that term is appropriate.
In this somewhen, Anne and Richard, like most everyone, have a computer inter- face embedded in their brains.2 This interface allows them to communicate 2 For a detailed description of what this might involve, see Ramez Naam, More Than Human (New York: Broadway Books, 2005), 202–207. 2 Law in an Era of “Smart” Technology Chapter : Introduction directly with anyone who has a similar implant; those with implants can communicate verbally, using words, and they can also transmit images, sounds, emotions, and even abstract ideas to each other.3 Their neural interfaces also allow them to communicate directly with computer systems that facilitate their interac- tions with other human beings by providing data, capturing the essence of what is communicated, and storing that information for future reference. The interfaces eliminate the need for face-to-face meetings, for the most part. Richard can sit in his home office and interact with anyone, anywhere in the world, as long as they have a compatible interface.
Indeed, Richard could sit anywhere he liked and do this, but he tends to prefer using a dedicated space that lets him concentrate on the business matters at hand. Anne feels the same way. A very, very different somewhen, in the presumably much-moredistant future: Humans have, in varying degrees, become cyborgs—a fusion of human biology and machine technology.4 The “Enhanced,” which is what those who have taken this route call themselves,5 are stronger, smarter and more attractive (in an evolved way) than the few, stubborn “Naturals” who refuse machine enhancements.6 The Enhanced are also functionally immortal.7 They, though, are not the only intelli- gent citizens of this alien future; these fundamentally biological intelligences share this world with pure machine intelligences, conscious, self-aware nonbiological entities that are, for all intents and purposes, the equal of Enhanced humans in intelligence, creativity and emotional capacity.8 The Singularity—the point at which technology irreversibly alters human life—has arrived.9 We can reasonably assume that some variants of these not-too-distant and rather- more-distant futures will come to pass based on technologies already in existence and those in development. No one knows if, or when, the Singularity will arrive; no one knows what the future of machine intelligence, and our relationship with it, will be.
4 See Joel Garreau, Radical Evolution (New York: Doubleday, 2004), 63. “Cyborg” is a human body that has been “altered and augmented” with machine technology. 7 See Ray Kurzweil, The Singularity Is Near (New York: Viking, 2005), 324–325. 9 See Garreau, Radical Evolution, at 7.
Law in an Era of “Smart” Technology 3 Chapter : Introduction I am not a futurist and I lay no claim to being able to predict what the future has in store for us. For that, I rely on the insights of many talented people who are futurists and/or who understand where technology seems to be taking us. My goal is not to write about technology as such, but to explore how technology has, and will, affect law. The Book “Law and technology” is a common phrase, and many books (and articles) have been written on the topic.
You might wonder, then, why we need another book dealing with “law and technology.” This is not, exactly, a book about “law and technology.” It is about law, and it is about technology, so in that sense it is a book about “law and technology.” This book, however, is not concerned with parsing details of the relationship that has so far existed between the two concepts. It does examine that relationship as it has evolved over the last several millennia, but this examination is merely a preface, an empirical foundation for the issue with which we are really concerned. That issue is how the traditional relationship between law and technology must evolve to accommodate a fundamental shift in the nature of technology, one that has already begun. This shift will transform how we “use” technology; more pre- cisely, it will change our relationship with technology from “using” technology to “interacting” with technology.
As Chapter 6 explains, the shift will be the product of evolving ambient, or “smart,” technologies. Our history to date with technology has been one of “use”—an active, intelligent human being “uses” passive, “dumb” technology (a simple tool or mechanical device). Though many of these technologies are functionally complex, they oper- ate only at the will of a human being; cars do not drive themselves, iPods do not entertain themselves, and Roombas do not decide when floors need cleaning. Some of these “dumb” technologies are able to carry out a level of activity on their own, but they all ultimately depend on us for their implementation.
and their purpose. Unless we give these technologies “life” and goals by intentionally “using” them, they are nothing. Our laws assume this dynamic because it is all there has ever been. 4 Law in an Era of “Smart” Technology Chapter : Introduction Thanks to evolving computer technology, we are on the threshold of developing a new dynamic—one that will involve “interaction” rather than “use.” This dynamic is the product of new, “smart” technologies: “things that think,” as one expert put it.10 Like their “dumb” predecessors, these “smart” technologies will exist to help us, to serve us, to make our lives easier and more interesting.
(Assuming, of course, that the Terminator and other Franken-technology scenarios are indeed fantasy, not prophecy.