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.


 

2. THE DIALOGUE BETWEEN LAW AND THE OTHER BRANCHES OF KNOWLEDGE

 

Since technologies exploit the advancements of sciences, in order to study in depth the relationship between law and technologies it is unavoidable to establish a dialogue between law and the other branches of knowledge (biology, medicine, neurosciences, computer science, engineering, economics, philosophy, sociology, history).

 

Consequences:

 

a)     it is important to build up a common frame of references or, at least, to be aware of the specificities of the jargon or lexicon of the other sciences;

b)    it is impossible to study the relationship between law and technology if we do not grasp the logic and functioning mechanisms which lay behind the technology we are examining;

c)     it is crucial to imagine tools for the representation of knowledge designed in a way which enables experts of a given science to understand in a easy and quick way the outcomes of other sciences and vice versa;

d)    the teaching techniques of each discipline should encompass the mission to foster mindsets enabling students to master different and transversal branches of knowledge.

 

In this sense it is interesting the opinion expressed by the United District Court for the Southern District of New York, Association for Molecular Pathology et. Al. v. United States Patent and Trademark Office, et. Al., 09 Civ. 4515, march 29, 2010. The judge writes first as a biologist, then as an economist and eventually as a lawyer.


 

3. THE DIALOGUE BETWEEN DIFFERENT BRANCHES OF KNOWLEDGE AND THE ROLE OF THE LAWYER

 

In the last decades the branches of knowledge have incremented exponentially both from a quantitative and a qualitative point of view: new disciplines were borne, while traditional branches have remarkably enlarged their knowledge basis. The confluence among branches has also allowed the creation of more and more sophisticated technologies: for example, in the field of diagnostic medicine, the invention of machineries such the TAC or the ultrasound scanner has been favored by the joint research of doctors, physicists, engineers and computer scientists. More generally, we  must face complex, interrelated problems which are considered under the idea of global sustainability, such as:

 

a)   the protection of the environment;

b)   the demographic problem, coupled with the aging of the populations of certain areas of the world;

c)   the growing demand for energies and fuels;

d)   etc.

 

We cannot deal with such problems by making recourse to specific branches of knowledge. We must establish a dialogue between the different branches of knowledge. When tackling problems of this magnitude our skills should act like a zoom on an image: we must have an overall vision and, at the same time, the ability to go into the details. The problem is to understand how to set up the dialogue between the different branches.

 

Do law and lawyers play a special role in this process?

 

Branches of knowledge must learn how to speak to each other. The law should act as a connective element or a bridge between different branches of knowledge. In many respects lawyers are in the best position to prepare the ground for a dialogue between different fields of knowledge (for example biology and philosophy) as a prerequisite to facilitate the production of new knowledge. The problem of mastering the huge amount of knowledge which has been piled up over the time and the trend to the hyper-specialization make difficult to show how such knowledge can solve the daily problems and improve life. Lawyers can favor both the spreading of the results attained by the other branches of knowledge and the singling out of the effects of the different discoveries.


 

THE TRENTO LAW AND TECHNOLOGY RESEARCH GROUP

 

The Law and Technology Research Group at the Department of Legal Sciences of the University of Trento was created in order to study the issues mentioned above. The group is formed by professors and researchers who explore, from several years and from different starting points, the relationship between law and technology. Some members of our research team have recently obtained important achievements. Ours is an open group and we welcome any useful contribution from other single researchers or research teams from all over the world.


 

VISITING THE TRENTO LAW AND TECHNOLOGY CENTER

 

As a research group open to international collaborations we strongly encourage both young researchers and senior scholars from all over the world who are interested in our topics of research to spend a period in Trento visiting our Center.

 

Due to financial constraints, we cannot provide grants/scholarships/reimboursements, but we can provide for free access to our research facilities and to the library, as well as to the other facilities needed in order to carry on your research while here.

 

In order to explore the idea of setting up a period as visiting researchers or visiting scholars at our Center you are welcome to send us ( Questo indirizzo email è protetto dagli spambots. E' necessario abilitare JavaScript per vederlo. ) a motivation letter and a detailed CV at least 6 months before the starting time of your planned visit.

 

We look forward to meeting you in Trento!   


 

PAST VISITING PROFESSORS AT THE TRENTO LAW AND TECHNOLOGY CENTER

 

ERIC FELDMAN (2005, 2006)

 

RICHARD GOLD (2010)

 

LARA KHOURY (2008) 

 

DAVID LAMETTI (2007, 2010, 2011, 2012, 2013)

 

LAURENT MANDERIEUX (2009, 2010, 2011, 2012, 2013)

 

STEPHEN MUNZER (2010)

 

DONAL NOLAN (2009, 2010)

 

GIDEON PARCHOMOVSKY (2010)

 

TINA PIPER (2008)

 

DAVID WINICKOFF (2011)