Technology and Business Law

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By Sam Vaknin Author of "Malignant Self Love - Narcissism Revisited"

"The juvenile sea squirt wanders through the sea searching for a suitable rock or hunk of coral to cling to and make it its home for life. For this task, it has a rudimentary nervous system. When it finds its spot and takes root, it doesn't need its brain anymore, so it eats it. (its rather like getting tenure)." Daniel Dennet - Quoted in Paul Thagard's Mind - An Introduction to Cognitive Science

"Everything in nature, in the inanimate as well as the animate world, happens according to rules, although we do not always know these rules." Immanuel Kant, Logic

"The fuzzy principle states that everything is a matter of degree." Bart Kosko, Fuzzy Thinking: The New Science of Fuzzy Logic

"When one admits that nothing is certain one must, I think, also add that some things are more nearly certain than others." Bertrand Russell, "Am I an Atheist or an Agnostic?"

"Most of us can learn to live in perfect comfort on higher levels of power. Everyone knows that on any given day there are energies slumbering in him which the incitements of that day do not call forth. Compared with what we ought to be, we are only half awake. It is evident that our organism has stored-up reserves of energy that are ordinarily not called upon - deeper and deeper strata of explosible material, ready for use by anyone who probes so deep. The human individual usually lives far within his limits." William James

One can discern the following relationships between the Law and Technology:

1. Sometimes technology becomes an inseparable part of the law. In extreme cases, technology itself becomes the law. The use of polygraphs, faxes, telephones, video, audio and computers is an integral part of many laws - etched into them. It is not an artificial co-habitation: the technology is precisely defined in the law and forms a CONDITION within it. In other words: the very spirit and letter of the law is violated (the law is broken) if a certain technology is not employed or not put to correct use. Think about police laboratories, about the O.J. Simpson case, the importance of DNA prints in everything from determining fatherhood to exposing murderers. Think about the admissibility of polygraph tests in a few countries. Think about the polling of members of boards of directors by phone or fax (explicitly required by law in many countries). Think about assisted suicide by administering painkillers (medicines are by far the most sizeable technology in terms of money). Think about security screening by using advances technology (retina imprints, voice recognition). In all these cases, the use of a specific, well defined, technology is not arbitrarily left to the judgement of law enforcement agents and courts. It is not a set of options, a menu to choose from. It is an INTEGRAL, crucial part of the law and, in many instances, it IS the law itself.

2. Technology itself contains embedded laws of all kinds. Consider internet protocols. These are laws which form part and parcel of the process of decentralized data exchange so central to the internet. Even the language used by the technicians implies the legal origin of these protocols: "handshake", "negotiating", "protocol", "agreement" are all legal terms. Standards, protocols, behavioural codes - whether voluntarily adopted or not - are all form of Law. Thus, internet addresses are allocated by a central authority. Netiquette is enforced universally. Special chips and software prevent render certain content inaccessible. The scientific method (a codex) is part of every technological advance. Microchips incorporate in silicone agreements regarding standards. The law becomes a part of the technology and can be deduced simply by studying it in a process known as "reverse engineering". In stating this, I am making a distinction between lex naturalis and lex populi. All technologies obey the laws of nature - but we, in this discussion, I believe, wish to discuss only the laws of Man.

3. Technology spurs on the law, spawns it, as it were, gives it birth. The reverse process (technology invented to accommodate a law or to facilitate its implementation) is more rare. There are numerous examples. The invention of modern cryptography led to the formation of a host of governmental institutions and to the passing of numerous relevant laws. More recently, microchips which censor certain web content led to proposed legislation (to forcibly embed them in all computing appliances). Sophisticated eavesdropping, wiring and tapping technologies led to laws regulating these activities. Distance learning is transforming the laws of accreditation of academic institutions. Air transport forced health authorities all over the world to revamp their quarantine and epidemiological policies (not to mention the laws related to air travel and aviation). The list is interminable.

Once a law is enacted - which reflects the state of the art technology - the roles are reversed and the law gives a boost to technology. Seat belts and airbags were invented first. The law making seat belts (and, in some countries, airbags) mandatory came (much) later. But once the law was enacted, it fostered the formation of whole industries and technological improvements. The Law, it would seem, legitimizes technologies, transforms them into "mainstream" and, thus, into legitimate and immediate concerns of capitalism and capitalists (big business). Again, the list is dizzying: antibiotics, rocket technology, the internet itself (first developed by the Pentagon), telecommunications, medical computerized scanning - and numerous other technologies - came into real, widespread being following an interaction with the law. I am using the term "interaction" judiciously because there are four types of such encounters between technology and the law:

1.. A positive law which follows a technological advance (a law regarding seat belts after seat belts were invented). Such positive laws are intended either to disseminate the technology or to stifle it. 2.. An intentional legal lacuna intended to encourage a certain technology (for instance, very little legislation pertains to the internet with the express aim of "letting it be"). Deregulation of the airlines industries is another example. 3.. Structural interventions of the law (or law enforcement authorities) in a technology or its implementation. The best examples are the breaking up of AT&T in 1984 and the current anti- trust case against Microsoft. Such structural transformations of monopolists release hitherto monopolized information (for instance, the source codes of software) to the public and increases competition - the mother of invention. 4.. The conscious encouragement, by law, of technological research (research and development). This can be done directly through government grants and consortia, Japan's MITI being the finest example of this approach. It can also be done indirectly - for instance, by freeing up the capital and labour markets which often leads to the formation of risk or venture capital invested in new technologies. The USA is the most prominent (and, now, emulated) example of this path. 4. A Law that cannot be made known to the citizenry or that cannot be effectively enforced is a "dead letter" - not a law in the vitalist, dynamic sense of the word. For instance, the Laws of Hammurabi (his codex) are still available (through the internet) to all. Yet, do we consider them to be THE or even A Law? We do not and this is because Hammurabi's codex is both unknown to the citizenry and inapplicable. Hammurabi's Laws are inapplicable not because they are anachronistic. Islamic law is as anachronistic as Hammurabi's code - yet it IS applicable and applied in many countries. Applicability is the result of ENFORCEMENT. Laws are manifestations of asymmetries of power between the state and its subjects. Laws are the enshrining of violence applied for the "common good" (whatever that is - it is a shifting, relative concept).

Technology plays an indispensable role in both the dissemination of information and in enforcement efforts. In other words, technology helps teach the citizens what are the laws and how are they likely to be applied (for instance, through the courts, their decisions and precedents). More importantly, technology enhances the efficacy of law enforcement and, thus, renders the law applicable. Police cars, court tape recorders, DNA imprints, fingerprinting, phone tapping, electronic surveillance, satellites - are all instruments of more effective law enforcement. In a broader sense, ALL technology is at the disposal of this or that law. Take defibrillators. They are used to resuscitate patients suffering from severe cardiac arrhythmia's. But such resuscitation is MANDATORY by LAW. So, the defibrillator - a technological medical instrument - is, in a way, a law enforcement device.

But, all the above are superficial - phenomenological - observation (though empirical and pertinent). There is a much more profound affinity between technology and the Law. Technology is the material embodiment of the Laws of Nature and the Laws of Man (mainly the former). The very structure and dynamics of technology are identical to the structure and dynamics of the law - because they are one and the same. The Law is abstract - technology is corporeal. This, to my mind, is absolutely the only difference. Otherwise, Law and Technology are manifestation of the same underlying principles. To qualify as a "Law" (embedded in external hardware - technology - or in internal hardware - the brain), it must be:

1.. All-inclusive (anamnetic) - It must encompass, integrate and incorporate all the facts known about the subject. 2.. Coherent - It must be chronological, structured and causal. 3.. Consistent - Self-consistent (its parts cannot contradict one another or go against the grain of the main raison d'=EAtre) and consistent with the observed phenomena (both those related to the subject and those pertaining to the rest of the universe). 4.. Logically compatible - It must not violate the laws of logic both internally (the structure and process must abide by some internally imposed logic) and externally (the Aristotelian logic which is applicable to the observable world). 5.. Insightful - It must inspire a sense of awe and astonishment which is the result of seeing something familiar in a new light or the result of seeing a pattern emerging out of a big body of data. The insights must be the logical conclusion of the logic, the language and of the development of the subject. I know that we will have heated debate about this one. But, please, stop to think for a minute about the reactions of people to new technology or to new laws (and to the temples of these twin religions - the scientist's laboratory and the courts). They are awed, amazed, fascinated, stunned or incredulous. 6.. Aesthetic - The structure of the law and the processes embedded in it must be both plausible and "right", beautiful, not cumbersome, not awkward, not discontinuous, smooth and so on. 7.. Parsimonious - The structure and process must employ the minimum number of assumptions and entities in order to satisfy all the above conditions. 8.. Explanatory - The Law or technology must explain or incorporate the behaviour of other entities, knowledge, processes in the subject, the user's or citizen's decisions and behaviour and an history (why events developed the way that they did). Many technologies incorporate their own history. For instance: the distance between two rails in a modern railroad is identical to the width of Roman roads (equal to the backside of two horses). 9.. Predictive (prognostic) - The law or technology must possess the ability to predict future events, the future behaviour of entities and other inner or even emotional and cognitive dynamics. 10.. Transforming - With the power to induce change (whether it is for the better, is a matter of contemporary value judgements and fashions). 11.. Imposing - The law or technology must be regarded by the citizen or user as the preferable organizing principle some of his life's events and as a guiding principle. 12.. Elastic - The law or the technology must possess the intrinsic abilities to self organize, reorganize, give room to emerging order, accommodate new data comfortably, avoid rigidity in its modes of reaction to attacks from within and from without. Scientific theories should satisfy most of the same conditions because their subject matter is Laws (the laws of nature). The important elements of testability, verifiability, refutability, falsifiability, and repeatability - should all be upheld by technology.

But here is the first important difference between Law and technology. The former cannot be falsified, in the Popperian sense.

There are four reasons to account for this shortcoming:

1.. Ethical - Experiments would have to be conducted, involving humans. To achieve the necessary result, the subjects will have to be ignorant of the reasons for the experiments and their aims. Sometimes even the very performance of an experiment will have to remain a secret (double blind experiments). Some experiments may involve unpleasant experiences. This is ethically unacceptable. 2.. The Psychological Uncertainty Principle - The current position of a human subject can be fully known. But both treatment and experimentation influence the subject and void this knowledge. The very processes of measurement and observation influence the subject and change him. 3.. Uniqueness - Psychological experiments are, therefore, bound to be unique, unrepeatable, cannot be replicated elsewhere and at other times even if they deal with the SAME subjects. The subjects are never the same due to the psychological uncertainty principle. Repeating the experiments with other subjects adversely affects the scientific value of the results. 4.. The undergeneration of testable hypotheses - Laws deal with humans and with their psyches. Psychology does not generate a sufficient number of hypotheses, which can be subjected to scientific testing. This has to do with the fabulous (=3D=3Dstorytelling) nature of psychology. In a way, psychology has affinity with some private languages. It is a form of art and, as such, is self- sufficient. If structural, internal constraints and requirements are met - a statement is deemed true even if it does not satisfy external scientific requirements. Thus, I am forced to conclude that technology is the embodiment of the laws of nature is a rigorous manner subjected to the scientific method - while the law is the abstract construct of the laws of human and social psychology which cannot be tested scientifically. While the Law and technology are structurally and functionally similar and have many things in common (see the list above) - they diverge when it comes to the formation of hypotheses and their falsifiability.

Mankind is coming back a full circle - from ideograms through alphabet to ideograms. Consider computers. They started as pure alphabet beasts. I recall my programming days with ASSEMBLY, COBOL and PL/1 on a clunky IBM 360 and later, IBM 370. We used Hollerith punch cards. It was all very abstract and symbol-laden. The user interface was highly formal and the formalism was highly mathematical. Computers were a three-dimensional extension of formal logic which is the set of RULES that govern mathematics.

Then came the Macintosh and its emulation, the windows GUI (Graphics User Interface). I remember geeks and hackers sneering at the infantilism and amateurism of it all. Taming your computer by lashing DOS commands at it was still the thing to do. But, gradually, we were all converted. Today, the elite controls both the alphabet (machine and high level programming languages) and the ideograms (GUIs) - the masses have access only to the ideograms. But it seems that the more widespread the use of the ideograms (graphic interface operating systems and applications), the "wiser" (self- learning, self-diagnosing, self-correcting) they become - the less needed, indeed, the more obsolete the elite is. Finally, it will all be ideograms, the "alphabet" buried under hundreds of layers of graphics and imagery and accessible only to the machine itself.

It is then that we should begin to lose sleep. It is when ONLY the machine has access to its alphabet that we, humans, will find ourselves at the mercy of technology. Having access to one's alphabet is possessing self-consciousness and intelligence (in the Turing sense). Don't misunderstand me: self-awareness and intelligence can be perfectly mediated through images. But access to an alphabet and to the RULES of its meaningful manipulation is indispensable to survival, at least to the survival of intelligence. By "meaningful" I mean: generating a useful and immediately applicable representation of the world, of ourselves and of our knowledge about the world, ourselves and our interactions with the world. When no longer capable of generating such meaningful representations (because technology has hidden our alphabet - the RULES - from our sight) - that day, technology, philosophy and law- making will be one and the same and humans will have no place in such a world - at least, they will have no MEANINGFUL place in it.

It is false that science generates technology - the reverse has always been true. All the big and important technological advances, the Promethean breakthroughs - were achieved by ENGINEERS and technicians, not by scientists. Engineers manipulate the world - scientists manipulate rules, the laws of nature. What computers did is MERGE this two activities and make them indistinguishable. Writing a new software application is both composing rules and engaging in technology. This is because the substance upon which technological innovation is exercised is no longer MATERIAL. Both technology and laws deal with INFORMATION now. This is the convergence of the real and the abstract, the Platonic ideal and its inferior shadow, matter and energy. It is no less revolutionary than E=3D=3DMC2.

So, technology leads science. Both technology and science start with images. Kekula dreamt the structure of the Benzen molecule, Einstein envisioned the geometry of space and so on. But, in the past, technology ended up generating objects - while science ended up generating rules and embedding them or expressing them in formalisms. The big revolution of the second half of this passing century is that now both science and cutting age technology produce the same: rules, formalisms, abstract entities. In other words: information and its manipulation - RULES - have become the main product of modern society. Some of the output is hard to classify as rules. Is a television show a rule or a set of rules? The deconstructivists will say: definitely so and I will second that. a television show, a software application, a court procedure, a text - are all repositories and depositories of rules, thousands of them: social rules, cultural rules, physical laws of nature, narratives and codes and myriad other guidelines.

This leads us to cybernetics.

At first - during the 50s and 60s - an artificial distinction was drawn between cybernetic systems (such as biological ones) and programmable computers (or universal Turing machines). The former were considered limited by the rigidity of the repertoire of their responses to their feedback loops. Computers, on the other hand, were considered infinitely flexible by virtue of their programmability. This view was shattered by the unexpected enormous complexity of biological organisms and even automata. Gradually, cybernetics was subsumed under computing (rather, vice versa) and computers were considered to be a class of cybernetic systems. I recommend to you to read "Cybernetics and the Philosophy of Mind" by Sayre published in London in 1976).

They all contain information stored, a set of rules to regulate behaviour and feedback loops. Yet, few people - if any - noticed how politically subversive this model was. If the "center's" behaviour is potentially profoundly alterable by feedback from the "periphery" - then centre and periphery become equipotent. More accurately, the very notions of centre and periphery disintegrate and are replaced by a decentralized, loosely interacting system of information processing and information storage "nodes". The Internet, to regurgitate the obvious, is an example of such a decentralized system. The simultaneous emergence of mathematical theories (fractals, recursiveness) that de-emphasized centrality helped to give birth to the inevitably necessary formalism - the language of networks (neural, computers, social and other).

Decentralization removes the power of law-making from any particular node in the system. Each node is a law unto itself. The system, as a whole, as long as it wishes to remain a system and continue to function as such, reaches a "legislative equilibrium". It is a Prigogine type thermodynamic trajectory: it is dynamic, unstable, ever-changing, fluctuating but, by and large, it is identity- preserving and it is functional. The new systems are systems of INFORMAL law as opposed to the older systems which are mainly and mostly systems of FORMAL law.

The clash between these two models was and is unavoidable. The internet, for instance, regulates itself imposing a set of unwritten rules vaguely called the "Netiquette". Part mores and part habits, it is amorphic and always debatable. Yet it functions much better than drug-related laws in formal law systems (like modern states). With no effective enforcement mechanisms, no netiquette-enforcement agencies to speak of - the netiquette maintains an iron grip over netizens. There are other examples outside the internet: the self regulating financial industry in Britain has a better record of compliance that the heavily regulated, SEC-threatened financial community in the USA. Efforts top tax the Internet and to regulate the City are examples of turf wars between formal law systems and informal law systems.

Informal law system will win, there is no question in mind. Not only because they constitute a better organizational model but because they are more adept at processing the raw material of the next millennium, information. Thus, they are better positioned to guarantee the survival of our race.

But there is a price to pay and it is the ever growing fuzziness of our laws. The more complex the world, the more demanding the raw material, the more probabilistic the output - the fuzzier the logic, the less determinate the answers.

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Sam Vaknin ( samvak.tripod.com ) is the author of Malignant Self Love - Narcissism Revisited and After the Rain - How the West Lost the East. He served as a columnist for Central Europe Review, PopMatters, Bellaonline, and eBookWeb, a United Press International (UPI) Senior Business Correspondent, and the editor of mental health and Central East Europe categories in The Open Directory and Suite101.

Until recently, he served as the Economic Advisor to the Government of Macedonia.

Visit Sam's Web site at samvak.tripod.com