EXPLORING THE LAW AND TECHNOLOGY RELATIONSHIP

EXPLORING THE LAW AND TECHNOLOGY RELATIONSHIP

 

Law has often to deal with technologies, i.e. with human activities which, employing the attainments of science, bring into existence new media, tools, devices, systems which  improve the quality of life of human beings.

 

Some examples:

-  law and exploitation of natural resources (energies): energies can be exploited thanks to technologies. The law regulates the production, processing, distribution of energies and natural resources;

 

-  law and food: the food chain requires the regulation of technologies related to food in order to guarantee, for example, high quality standards;

 

-  law and biology: in order to provide a legal framework for medically assisted procreation or for cloning we have to deal with the technologies which allow to obtain gametes, stem cells, crossbreds, chimeras;

 

-  law and medicine: some choices related to the end-of-life issues which are legally significant are dependant on medical notions such as that of brain death. The same notion of therapeutic tenacity must be measured against the available technologies

 

- law and information technologies: IT has made available tools such as e-documents and e-signatures. The law must cope with these technologies to regulate them or to make them legally available.

 

The relation between law and technology has several implications. Let’s focus on three of them.

 

1.  LAW AND TECHNOLOGY: RECIPROCAL INFLUENCES

 

On the one hand law is used for the regulation of technology; on the other law employs technologies to pursue its own goals.

 

a)     Technology may change the contents of protected legal interests (as it is the case of the right to privacy, which has been transformed by the rise of IT from the right to be let alone to the right of controlling the information pertaining to the individual);

 

b)    the emergence of new technologies can transform well-established scenarios. For example the so called technology convergence in telecommunications swiped away the features which framed telecommunications as a natural monopoly, opening the market to a potential infinite number of operators, enhancing the free competition within of the sector. This is also true for the vanishing distinction between article 15 and article 21 of the Italian Constitution. Traditionally the former is enforced whenever, for example, the freedom and secrecy of personal correspondence is at play. The latter protects freedom of expression toward a public audience. Which of the two constitutional provisions must be applied for the regulation of phenomena such as pay-tv, chat lines, mailing lists and newsgroups?

 

c)     Law can employ new technologies to pursue goals which were pursued by other technologies in the past: this is the case of the e-document, the e-signature, the payment of obligations through e-money, the conclusion of contracts through Internet, and so on. In all these examples, new rules set the modalities of employment of digital technologies in order to attain this or that goal which was reached through other technologies in the past;

 

d)    the rules arising from technologies are shaped by the features characterizing such technologies: for example, one thing is to have rules concerning the matter (atoms), another is to have rules concerning the bits. In some cases this implies the need to re-frame concepts which traditionally refer to material things (such as ownership and possession) or to draw on new concepts (such as the ideas of title and legitimization in the case of dematerialized financial instruments);

 

e)     technologies create new commodities: this was true in the past for the new value prompted by the invention of printing, from which after a lengthy process the new right of copyright emerged. In more recent years this is happening with regard to data banks (of human tissues for example, but several other examples may be offered). The law is continuously confronted with the need of regulating new commodities which were unknown in the past;

 

f)     the change in technologies influences also the source and the structure of the rules. Sometimes legal systems prefer to regulate given phenomena by making recourse to international instruments or to regulatory patterns which are not imposed from outside (for example codes of conduct);

 

g)  technology sometimes may itself become the rule because: i) it imposes the operational rules (for example: the regulation of the digital signature); ii) it incorporates the rule (see art. 3 of the Italian Data protection code; see also Commission Recommendation of 12 May 2009 on the implementation of privacy and data protection principles in applications supported by radio-frequency identification; iii) it guarantees the enforcement (for example: Digital Rights Management);

 

h)    the norms which regulate the employment of new technologies for establishing  documentary evidence are characterized by high technological contents, as they are expressed by individuals who have specific competences.