Techlaw, which studies how law and technology interact, needs an overarching framework that can address the common challenges posed by novel technologies. Generative artificial intelligence seems to be a novel technology that introduces a plethora of legal uncertainties. This chapter excerpt and paper examines lawmakers, legislators, and legal actors legal response options to techlaw uncertainties and inspires a structured approach to creating an overarching framework.
tl;dr
By creating new items, empowering new actors, and enabling new activities or rendering them newly easy, technological development upends legal assumptions and raises a host of questions. How do legal systems resolve them? This chapter reviews the two main approaches to resolving techlaw uncertainties. The first is looking back and using analogy to stretch existing law to new situations; the second is looking forward and crafting new laws or reassessing the regulatory regime.
Make sure to read the full paper titled Legal Responses to Techlaw Uncertainties by Rebecca Crootof and BJ Ard at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4545013
New technologies often expand human interactions and transactions beyond previously codified regimes. This creates dissonance between historic legal decision-making and present or future adjudication of conflict. The authors argue that technology challenges laws in three distinct ways: (1) application of laws, (2) normative, i.e. creating an undesired result or legal loophole, and (3) institutional, i.e. which body should regulate and oversee a specific technology. To illustrate with a simplified, practical example: OpenAI released with ChatGPT a program that creates content based on the depth of access to training data and level of quality control. Does the act of creating content from training data which originates from thousands of human creators constitute a copyright violation? Is copyright law applicable? If so, does a judicial order contradict the purpose of intellectual property rights? Or, perhaps to take it a step further should property rights be applicable to artificial intelligence in the first place?
The authors offer a two-pronged approach to overcome these challenges by (1) adopting a “looking back” and (2) a “looking forward” mindset when interpreting and resolving legal uncertainties. They discuss these approaches as binary to emphasize the distinctions between them, but they exist on a continuum. Looking back is using analogies to extend existing law to new situations. Looking forward is creating new laws or reevaluating the regulatory framework. They argue that technology law needs a shared methodology and overarching framework that can address the common challenges posed by novel technologies. Without diving into a backwards approach, which is commonly taught in law school, let’s skip to future proofing new laws. Lawmakers represent an eclipse of society with all its traditional and modern challenges. They have to balance between ease of amending a law and its scope. For a number of reasons, they often prefer stability over flexibility and flexibility over precision. Actual decision-making comes down to passing tech-neutral laws or tech-specific laws. Tech-neutrality implies a broad and adaptable set of regulations applicable to various technologies, offering flexibility and reducing the need for frequent updates when new tech emerges. However, they can be vague and overly inclusive, potentially interfering with desirable behaviors and enforcement. Tech-specific laws, on the other hand, are commonly clear in language and tailored to specific issues, making compliance easier while still promoting innovation. Yet, they may become outdated and create legal loopholes or greyareas if not regularly updated, and crafting them requires technical expertise. Technical expertise in particular is hard to convey to an ever-aging body of political representatives and lawmakers.
Structuring technology law seems to prefer a high-level of flexibility and adaptability over system stability. However, the nuances and intricacies of technology and its impact on society can’t be quantified or summarized in a brief chapter. This original excerpt builds upon content Crootof and Ard originally published in 2021. You can read the full paper titled “Structuring Techlaw” at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3664124 to gain full perspective of lawmakers’ legal response options to techlaw uncertainties.