There is something about law and technological development that seems vaguely incompatible. One is reminded of references to the inability of law to ‘keep up’ with changes in technology. Such claims are usually made in the absence of any meaningful definition of what it means for law to ‘keep up’ withchange.1 Most technological developments do not even generate a need to ‘catch up.’ All conduct, including conduct aided by technology, is subject to law. It is murder to kill whether one uses bare hands or a newly-designed high technologydevice. The latest model of Holden is still subject to ordinary rules of the road. In most instances, there is little ‘catching up’ to do.
Before further examining the notion of ‘catching up’ or ‘adaptation’,2 it is necessary to understand what is meant by technological change. The concept is elusive and, while not attempting a universal definition, terms such as ‘technological change’ and ‘new technology’ will be used here to describe a new product or process that makes possible new forms of conduct. For example, technological change occurs with the invention of the automobile (making possible, among other things, speedy travel) or the first use of the technique of artificial insemination (making possible conception in the absence of sexual intercourse). Generally, a new product or process creates multiple new possibilities.In vitro fertilisation, for example, makes possible a range of conductincluding the storage, use or destruction of an embryoex utero, discrimination inthe provision ofin vitro fertilisation services, granting ‘custody’ to one ‘parent’ of an embryo contrary to the wishes of the other, and providing insurance coverage for in vitro fertilisation services.
It is the interaction between the law and new forms of conduct that generate concern that the law has failed to ‘keep up’ with technological change. Existing rules may no longer achieve their purposes due to the changed nature of the world in which they operate. New ambiguities may arise because it is unclear whether new forms of conduct fall within the scope of existing laws. Even where this is clear, the inclusion or exclusion of new forms of conduct might be inappropriate. In addition, the law that does apply may be inadequate to meet legitimate concerns arising out of the new conduct. It is the rate at which the lawis clarified or amended to overcome such hurdles that might be thought of as its rate of ‘adaptation’.
There are two ways in which Australian law is usually changed. The most obvious is the enactment of a statute (which may operate directly or by authorising delegated legislation). Another forum in which law is changed is the courts. The common law (using the term throughout this article to refer to all non-statutory law) evolves over time in response to matters brought before the courts for judgment. Although Parliament always has the choice of remaining passive, the courts operate as a default forum. Where the law is unclear and the ambiguity is not resolved by statute, the courts cannot respond to a case in which the ambiguity arises by refusing to consider the issue. Similarly when an argument is made that existing rules ought to be extended to include new forms of conduct, the court is forced to make a choice. Thus the common law constantly adapts to technological change. Although slow, piecemeal and unableto reach an optimal solution to every problem on its own, the common law offersremarkable flexibility and is, in some circumstances, a superior alternative to legislation.
In this article, I will consider the roles played by different lawmakers in ensuring that the law ‘keeps up’ with technological change. There are circumstances in which common law reform offers advantages over statutory lawreform and, in such cases, legislators ought to consider adopting a more passive role. The general description offered here is not intended to dictate the appropriate legal response to a particular technology in particular circumstances. Frequently, the specifics will provide reasons that outweigh the considerations laid out here. However, the conclusions presented should at least give reason forpause before assuming, as is often done, that legislation offers the best solution to all social problems.3
II THE NEED TO ADAPT
Whether or not ‘[n]early all technological developments pose challenges for law and government’,4 it is at least possible to think of occasions on which the law seems designed for a world shaped by outmoded technology. Technological change can make law become unclear and it can make law that was previously unobjectionable become subject to criticism. The law may also be considered too slow to control ‘undesirable’ or ‘harmful’ technologies and existing laws might become increasingly difficult to enforce. Technological change is neither a sufficient nor necessary condition for the existence of uncertain, ineffective and ‘bad’ laws; yet it is often the occasion for them. When it is, one might sensibly use concepts such as ‘catching up’ and ‘adapting’ to describe the process by which problems arising as a result of technological change are resolved.
A Indeterminacy and Technological Change
The relationship between the indeterminacy of law and technological change isonly partial. Not all indeterminacy results from new technologies and not all new technologies give rise to new uncertainties. The relationship may be more complex: some new technologies reveal latent ambiguities in the law. Consider the invention of the computer. Even from the start, there was little doubt that stealing a computer constituted theft and that misrepresenting its features in a sale transaction could found a case for negligent misrepresentation.5 Yet the same invention lead to uncertainties in other contexts, such as copyright law.6
Generally speaking, uncertainties arise where new technology or new forms of conduct do not fit easily into existing conceptual and legal categories. Prior to Computer Edge Pty Ltd v Apple Computer Inc,7it was not clear whether sourceand object versions of computer code fitted within the legal category of ‘literaryworks’. Of course, the term ‘literary work’ is inherently ambiguous and disputes as to its meaning had arisen prior to the computer code issue.8 The problem of classifying computer code was similar to that arising in circumstances not involving any technological change. In other circumstances, the ambiguity in legal and conceptual categories may remain latent until a rule involving that category is applied to new technology or conduct. For example, while ‘literary work’ is inherently ambiguous, the concept of ‘motherhood’ was well‑understood prior to the use of reproductive technologies. Yet the term harboured latent ambiguity which was revealed and resolved in some jurisdictions in cases involving surrogacy and in vitro fertilisation.9
Problems of ambiguous language can render both common law and statutory rules uncertain. Another potential source of uncertainty, peculiar to the common law, arises out of the reliance on stare decisis in determining the content of common law rules. Common law rules are formulated through a process of comparing fact situations and are only strictly binding where the material facts inthe precedent cases and the instant case are shared. The essence ofstare decisis isthus reasoning by example and analogy.10 A judge will reach the same conclusion in one case as was reached in a previous case whenever they share some characteristics and either (1) the differences between the two cases are irrelevant by virtue of other precedents that foreclose certain possible grounds for distinction, or (2) the differences between them cannot in principle justify distinguishing them.11 Where technological change makes possible new forms ofconduct, there will automatically be a difference between the first case involving new conduct and all previous cases. Determining whether the new conduct in question is ‘like’ existing forms of conduct so that differences are not material will often be difficult. Relying on a precedent judge’s own description of the material facts will often prove futile. That judge’s conception of the appropriate legal rule is unlikely to clarify the status of conduct that was not possible at the time.
This does not mean that the outcome in every case involving the application of a common law rule to new conduct will be uncertain. In many cases, the immateriality of some facts is obvious. For example, liability for negligent misstatement is independent of the object of the transaction and thus a case of negligent misstatement regarding the sale of a computer raised no difficult issues.12 At the opposite extreme, there might be a perception (whether later proved true or false) that no existing rules apply to new forms of conduct merelybecause they are new. This tendency was evident in some of the earlier literature on law and the Internet.13 More common are the situations between these extremes, where the applicability of at least some old common law rules to new forms of conduct is in question.
Consider the following dilemma confronting a court in 1955.14 Past cases indicated that the acceptance of a contract by telephone occurred at the time and place that the communication was received. A different rule applied where the acceptance was communicated by post. For the first time, a court was forced to classify acceptance by telex into one or other category. Communication by telexis ‘like’ communication in person or by telephone in that both are instantaneous but it is also ‘like’ communication by post in that both are written rather than oral. The court decided that the former analogy was more appropriate, but one can hardly pretend that a good argument could not have been made for going the other way. Prior to the decision in Entores Ltd v Miles Far East Corporation,15most lawyers would have advised, correctly, that the law on the issue was unclear. There was no case that had considered conduct that would inevitably be held to be ‘like’ accepting an offer by telex.
B Technological Change Undermining Existing Rules
As well as increasing uncertainty, new technologies might also alter the facts that justify existing common law and statutory rules.16 This can be illustrated byusing the terminology in Frederick Schauer’s useful explanation of the nature of rules.17 All prescriptive rules are based on some justification, even if it is not universally accepted. The relationship between a rule and its justification is often probabilistic.18 For example, suppose the owner of a restaurant wishes to ensure that customers are not harassed. In designing a rule such as ‘no dogs allowed,’ the restaurant owner might have in mind the probability that an entity in the category ‘dog’ will harass the restaurant’s patrons if allowed inside.19 The rule is thus propagated because it lowers the probability that undesirable conduct will occur.
A rule that is justified based on the likelihood that it will reduce undesirable conduct can become subject to criticism if technological change alters the relationship between the rule and its justification.20 Consider the example of government licensing of radio spectrum. The Radiocommunications Act 1992 (Cth) restricts radio emissions out of a desire, inter alia, to ‘maximise by ensuring the efficient allocation and use of the spectrum, the overall public benefit derived from using the radio frequency spectrum.’21 It is easy to see how the rules set out in the Act are related to this justification: without a regime of spectrum allocation, interference between signals would mean that no clear radio channel could exist. But the argument is itself based on a technological assumption, namely that radio signals at the same frequency will interfere. It is possible that this assumption will prove false following the development of spectrum-sharing technologies. Pondering these possibilities, Professor Lessig has argued that the allocation of spectrum by government is no longer appropriate.22 Professor Lessig’s argument rests on the fact that the development of spectrum-sharing technologies reduces the probability relationship between the rule providing for government allocation of spectrum and its underlying justification. Whether or not Lessig’s argument itself persuades, changes in technology that reduce the probability that a rule will further its own purposes provide an occasion for at least considering amendment or repeal.23
Often the justification for a legal rule is less explicit than the justification for spectrum control. Consider the old rule that land was ownedusque ad coelum (up to the heavens). Prior to balloons, airplanes and satellites, this rule would have seemed natural since only the owner of land could have any use for the airspace above it. Of course, the impossibility of air travel was never explicitly mentioned as part of the rule’s justification. Yet it was reflection on the possibilities of air travel that led to the restriction of the doctrine. In Pickering v Rudd,24the court held that no action in trespass was available on the basis of a board overhanging the plaintiff’s garden lest it follow that ‘an aeronaut is liable to an action of trespassquare clausum fregit at the suit of the occupier of every field over which his balloon passes in the course of his voyage’.25 Thus even seemingly uncontroversial rules that are not explicitly based on technological assumptions can become outmoded by technological change.
Where the justification for a rule is not challenged, technology may nonetheless create an impetus for reform by altering the costs of violating and enforcing that rule. Consider the many commentaries on the digitalisation of material subject to copyright. The difficulty of policing copyright infringement has led, on the one hand, to calls for protection of technological enforcement measures26 and, on the other, to suggestions that copyright be replaced by alternative methods of compensating authors.27 Technological change thus resulted, in this instance, in both proposals to amend existing law to strengthen copyright protection and proposals to remove it entirely.
As well as directly undermining the rationales for and effectiveness of existing rules, new technologies can alter social attitudes that in turn create pressure to reform the law. Well known examples include the availability of time-saving technologies that contributed to the liberation of women and social shifts caused by the development of faster means of transportation. On a general level, doing new things gives rise to the possibility of new forms of economic, political and social organisation and the adaptation of existing forms of organisation.28 The response of law to social change (whether or not caused by technological change) is, however, beyond the scope of this article.
C The Over- and Under-Inclusiveness of Rules
Technological change can also challenge rules in more subtle ways, by raisingquestions as to the scope of their application. A rule may include within its scope conduct to which it is not appropriate, in that there is a poorer correlation between the rule and its justification when applied to that conduct than otherwise.Conversely, it may be worded so as to exclude conduct to which it seems suitable. This problem is not necessarily tied to technological change; a rule excluding dogs from a restaurant designed to prevent customers being annoyed includes obedient dogs and excludes screaming children.29 But, where a rule is over- or under-inclusive in the absence of technological change, the rule’s creator had the opportunity to design a different rule. The restaurant owner could have drafted a rule that was neither over- nor under-inclusive with respect to its primary function. For example, ‘no dogs allowed’ might be changed to ‘no entities that annoy patrons are allowed.’ Such a rule might not be chosen, even though it is more precise, due to difficulties in enforcing it. Nevertheless, at least the rule’s designer had the opportunity to balance its clarity, precision and ease of application.30
The drafter in this example did have one significant handicap, being the inability to foresee the future. For the world in which the rule was expected to operate, we might assume that a competent drafter would reach an acceptable (ifcontroversial) balance between clarity, precision and ease of application. But therule may also apply to conduct outside what could have been foreseen at the time of its creation. A genetically engineered dog or new breed might be easily identifiable and perfectly behaved. Had such ‘dogs’ been within the contemplation of the restaurant owner, he or she might have felt that a better balance could be obtained by excluding them from the rule. The change in technology has shifted the balance originally reached, potentially creating pressure to change the rule to restore that balance. If the owners of genetically engineered dogs were to bring the rule’s over-inclusiveness to the restaurant owner’s attention, they might persuade him or her to change the rule.
There might also be pressure to change a rule to ensure that it includes conduct not initially within its scope. For example, ‘computer programs’ were added to the definition of a ‘literary work’ in theCopyright Amendment Act 1984 (Cth) so as to grant them the same protection as that already given to more traditional ‘literary works’ in the Copyright Act 1968 (Cth). The amendment was presumably made because Parliament felt that the rationale underlying the grantof copyright protection applied to a new entity, computer programs. The existingrules were modified to include within their scope a new form of conduct (dealing with a computer program in particular ways without the copyright owner’s consent).
D The Desire for New Rules
Thus far, I have considered situations that might create a need to ‘adapt’ the law to new technology by clarifying, repealing or amending existing rules. Latent ambiguities and dearth of relevant precedent might create a need to clarify the law. Repeal might be appropriate where a rule’s justification has been undermined or where it is no longer easily enforceable; and a rule may inappropriately include or exclude new forms of conduct. It may also be necessary to create new rules.
In the absence of relevant existing rules, new rules might be appropriate because there is a reason why new forms of conduct ought to be encouraged or discouraged. Where the government wishes to encourage new forms of conduct and existing incentive systems are either too narrow or insufficient, it can set up anew government subsidy or monopoly. It might be thought prudent to discouragesome new forms of conduct because they constitute risks to health, safety or the environment or threaten values such as community, privacy or human dignity. For example, the enactment of a rule requiring those providing in vitro fertilisation services to be licensed might be justified by a desire to ensure the procedure is carried out safely; and a rule mandating discrimination in the provision of in vitro fertilisation services might be thought by some to promote the values of family and child welfare.31 These enactments were not by way of clarification, repeal or tailoring of existing law, but created entirely new rules designed to regulate new forms of conduct.