Dec 022011

Back when I was in college I took a course on the “Sociology of Law.”  The lesson of this course, which now seems obvious in retrospect, is that law does not come from a vacuum.  There is no universal, objective measure of what is, or should be, legal and what is, or should be, illegal.  On the contrary, law is an expression and reflection of a society and how it perceives its needs at the time.  Such law can necessarily vary from society to society, and can even vary within a society, depending on how those needs change.  The example that really stuck with me was the law on vagrancy.  Someone had researched the history of how English law had punished begging through the ages and noticed how, in times when there was greater unemployment, the law treated it more mercifully.  But in times when labor was scarce, it was punished harshly.  The same behavior, even in basically the same general society informed by the same traditional cultural principles, could nonetheless be treated differently by the same society’s law.

Which is an important lesson, especially in a democracy where the people get to choose the law that governs them.  Too often people seem content with the notion that something may be legal or illegal, simply because someone — usually with a vested interest in the result — tells them that something is right or wrong.  When the truth is, it depends.  And it can depend entirely on what we want what’s right and wrong to be.

Figuring that out, though, can be tricky, especially when, as in the case of technology, everything is changing so quickly.  Change is scary, especially when what’s changing is how much power technology can have over our lives.  It’s very easy to want to pass any law that would make it slow down to a less scary pace.

But that’s not the way innovation works, and trying to apply the brakes can cause important things to themselves break.  Which is not to say that there is no place for law in technology; indeed complete lawlessness often comes with its own downsides.  Society has legitimate needs it wants to protect and it uses law to do it.  But it should do so carefully, with nuance and understanding of exactly what interest is to be vindicated by law and at what cost.  Because too often the cost of law as it relates to technology is damage to civil liberties and further innovation, neither of which — as most would surely agree — is actually in society’s interest overall.

Certainly not a society, like that of the United States, for instance, where there are enshrined Constitutional values for free speech and privacy against the state.  And a long, proud, tradition of technological innovation.  Surely law be only sound when it is consistent with these principles.

But too often that has not been happening.  Too often developers and users of technology have been facing state sanctions for how they have been wielding technology that run afoul of these principles and at great cost to them (and often the rest of society).  And that is why this project exists.

It exists first to help push back against unsound legal attacks taking place through damaging regulations and prosecutions.  These attacks can be defended against, but only by knowing what they are and then properly equipping a defense.  Sometimes, as in the case of prosecutions, that defense requires the capable assistance of legal counsel, and this project aims to support the criminal defense bar in identifying and then constructively dealing with the technology law issues they may confront as they defend their clients.  And sometimes that defense is needed in the regulatory setting, to defend against damaging technology law from getting on the books in the first place.

Which is also why this project exists, to help policymakers, and the people who elect them, develop more sensible law, law that advances carefully articulated interests without causing damage to others that society values even more.

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