Legal Fictions: The More Things Change, the More Law Doesn’t

legal padI’ve said more than once in this series that law is inherently conservative. It relies heavily on precedent; in fact, U.S. law is built on European law – primarily English common law, but also French and Spanish systems – and occasionally harks back to decisions made hundreds of years ago.

It usually takes a long time to make significant changes in law, especially in the U.S., where we have 50 states, several territories, and the District of Columbia as well as the federal government. Those governments may pass a lot of laws, but real change still comes slowly. Countries with state religions – or even with a long history and heartfelt cultural ideas about themselves – rarely make sudden changes either.

Outside of a few radicals, the legal profession supports a glacial pace of change. It’s hard to come out of law school without some sense that it’s appropriate for laws to change slowly, even if you support legal efforts to attack obvious injustices like rampant racial discrimination.

But I’m starting to question the value of the conservative approach.

It’s not legal changes related to civil and human rights that are making me think law needs to change much faster. That’s partly because the underlying law for one of the key issues of the day – LGBT rights, including same-sex marriage – is changing at something resembling lightning speed for a legal issue. While I’d like to see that and other social justice issues change even more quickly, I’ve been both pleased and astonished to see how far we’ve come in a short period.

But I don’t think we’re doing nearly so well in adapting law to our rapidly changing technology. And our current legal systems worldwide are failing dramatically at addressing climate change.

This week we’ll look at technology.

  • Item: The New York Times had a “Bits” piece this week on what you agree to when you accept terms of service online. The news report cited a Georgia Tech study  in which researchers looked at the terms of service agreements for 30 popular social networking and similar sites. Among their findings: it would take an average adult reader 8 hours just to read all the terms in the agreements for those 30 sites. And reading that stuff doesn’t mean you understand it. Further, you have no option to change any of it if you do read it.
  • Item: The U.S. Supreme Court heard oral argument this week on whether a warrant is necessary to search an arrested person’s mobile phone.  Modern phones contain extensive amounts of data, including a lot of material once found only in paper records formerly kept in homes or offices. Warrants would be required for that.
  • Item: The Heartbleed bug, viruses, data theft, and so forth. Occasionally companies take responsibility for the problems that creep in through these flaws, but on the whole, customers bear the brunt of cleaning up these problems and receive no compensation.
  • Item: The terms in those click-through agreements give social media and other online companies the right to make money out of your data without giving you anything in return. They’d argue that free use of their platform is payment enough; I’d argue that I’d like a chance to negotiate terms. Maybe I’d be willing to pay for access to their platform if they’d pay me for my data. (See Jaron Lanier’s latest book, Who Owns the Future?)
  • Item: That mobile phone that does a lot more than phone calls, Google glass, Fitbit bands, and the wearable tech that’s coming down the road, not to mention 3-D printers, robots (see this earlier post), AI, and maybe even the singularity.

The world is changing in ways that most of us – even hardcore science fiction readers – never expected. Thirty years ago I got a Kaypro II and was thrilled that I could get 40 pages of double-spaced text on a floppy disk. It made writing so much easier. But compared with my smartphone it was just a fancied up typewriter that could do a couple of other things.

Up until about the turn of the Millennium, I could read fiction set in any decade from about 1920 onward and feel like I was reading a story about the world in which I live. Now, though, I find that even work set in the 1980s (and sometimes even the 1990s) feels like historical fiction. And I’m not young. The technological changes have affected our society that much.

The usual consensus is that the laws we have now will handle these changes, with maybe a little tweaking. But I question whether laws built around print documents and material objects really work well with the current model.

For example, should social media companies, wireless phone carriers, online software merchants and the like be allowed to create onerous contracts that users cannot modify? Given that the courts have upheld similar contracts that prohibited class actions by aggrieved consumers, I’m not sure the current laws give us any recourse whatsoever.

Who is entitled to see and use the data I create? Government searches are bad enough, but what about all the corporate use of my work? Is the only solution to not use the new tech?

I don’t want that to be the only solution. I love working on a computer. I love reading ebooks. Social media is important for letting people know about my work and staying in touch with some of my friends. My smartphone has come in very handy and I even occasionally make calls on it. My Fitbit has helped me up my exercise.

And I can’t deal with the issues new tech raises on my own. That’s where law comes in. We could have laws that limit the reach of online contracts. We could have laws that allow consumers to bring class actions. We could have laws that put into effect Jaron Lanier’s ideas that we pay for what we get online and get paid for the data and other things we give.

We won’t have these things unless we adopt laws that address our new technological reality, laws that take into account the way our world has changed. And laws that continue to change as we come up with new developments.

To bring this back to fiction: This is another place where science fiction writers can wax creative in inventing legal systems that deal with a changed world. In fact, it would be very good for lawyers and our legal system if they did.

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Legal Fictions: The More Things Change, the More Law Doesn’t — 4 Comments

  1. Something that astonishes me is how easily the younger folk are allowing total transparency of their lives. I get the feeling that those who want more privacy are either creating artificial persona online, or avoiding social media. And avoiding social media looks suspicious in multiple ways to future employers.

    • They aren’t aware that anything else is possible.

      One notes historically, we had a high tide-mark for privacy very recently. Take One Thousand and One Arabian Nights. In which the Sultan has no objections to the bride’s sister hanging out in their bedroom on their wedding night.

  2. Nice post, Nancy. Thanks for bringing up these issues. I used to not worry about this stuff, but times are sure changing quickly.

    • Doing this series is making me think about a lot of things that I’ve been pushing to the side, like how a legal system should work in in high tech and fast changing world. I didn’t realize I’d be going off in this direction when I started, but it fascinates me a lot, too.