Technological breakthroughs challenge core legal assumptions and generate regulatory debates. Practitioners and scholars usually tackle these questions by examining the impacts of a particular technology within conventional legal subjects — say, by considering how drones should be regulated under privacy law, property law, or the law of armed conflict. While individually useful, these siloed analyses mask the repetitive nature of the underlying questions and necessitate the regular reinvention of the regulatory wheel. An overarching framework — one which can be employed across technologies and across subjects — is needed.
The fundamental challenge of tech-law is not how to best regulate novel technologies, but rather how to best address familiar forms of uncertainty in new contexts. Accordingly, we construct a three-part framework, designed to encourage a more thoughtful resolution of tech-law questions. It:
(1) delineates the three types of tech-fostered legal uncertainty, which facilitates recognizing common issues;
(2) requires a considered selection between permissive and precautionary approaches to technological regulation, given their differing distributive consequences; and
(3) highlights tech-law-specific considerations when extending extant law, creating new law, or reassessing a legal regime.
This structure emphasizes the possibility of considered and purposeful intervention in the iterative and co-constructive relationship between law and technology. By making it easier to learn from the rich history of prior dilemmas and to anticipate future issues, this framework enables policymakers, judges, and other legal actors to make more just and effective regulatory decisions going forward.
Crootof, Rebecca and Ard, BJ, Structuring Techlaw (July 30, 2020). Harvard Journal of Law & Technology, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3664124 or http://dx.doi.org/10.2139/ssrn.3664124