Law 3.0

Rules, Regulation, and Technology

Roger Brownsword

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000081602
• Edition: 1
• Topic: Ciencia de la computación
• Subtopic: Ciencias computacionales general

Putting technology front and centre in our thinking about law, this book introduces Law 3.0: the future of the legal landscape.

Technology not only disrupts the traditional idea of what it is 'to think like a lawyer, ' as per Law 1.0; it presents major challenges to regulators who are reasoning in a Law 2.0 mode. As this book demonstrates, the latest developments in technology offer regulators the possibility of employing a technical fix rather than just relying on rules – thus, we are introducing Law 3.0. Law 3.0 represents, so to speak, the state we are in and the conversation that we now need to have, and this book identifies some of the key points for discussion in that conversation. Thinking like a lawyer might continue to be associated with Law 1.0, but from 2020 onward, Law 3.0 is the conversation that we all need to join. And, as this book argues, law and the evolution of legal reasoning cannot be adequately understood unless we grasp the significance of technology in shaping both legal doctrine and our regulatory thinking.

This is a book for those studying, or about to study, law – as well as others with interests in the legal, political, and social impact of technology.

Chapter 1
Introduction to Law 3.0

This book is an introduction to what I will call ‘Law 3.0.’ While Law 3.0 is a particular kind of conversation (and mindset), to be compared and contrasted with two other conversations (and mindsets), Law 1.0 and Law 2.0, it is also a shorthand for an extended field of legal interest – a field that features these three coexisting and interacting conversations (and mindsets).

To illustrate Law 3.0, recall the disruption at London Gatwick airport shortly before Christmas 2018, when an unauthorised drone was sighted in the vicinity of the airfield. As a precautionary measure, all flights were suspended, and for two days the airport was closed. With thousands of passengers stranded and inconvenienced, this was headline news, and if such bad news stories were to be avoided, it was clear that some action would need to be taken. But how should the law respond?

Representatives of the pilots’ association told television interviewers that they had been saying for some time that drones presented a real danger to aircraft and that the exclusion zones around airfields (set by the current legal rules) needed to be extended. In due course, the government responded by announcing that the police would be given new powers to tackle illegal drone use and that the drone no-fly zone would be extended to three miles around airports. By so doing, the government recognised that the existing rules were not fit for purpose (not fit to protect the safety of aircraft, their pilots, crew, and passengers) and that changes needed to be made.

At the same time, however, others responded rather differently. Instead of focusing on whether the legal rules were fit for purpose, they focused on the possibility of finding a technological solution, ideally one that rendered it impossible in practice for a drone to be flown near an airport (or, failing that, a technology for disabling and safely bringing down unauthorised drones). In other words, rather than relying on rules to manage the risks associated with air travel, they sought to improve the design and safety specification of drones and/or airfields.

In these two responses, focusing on both rule changes and technological solutions, we see the essential features of a Law 3.0 conversation. Legal rules need to be updated and revised so that they are fit to serve their intended purposes or policies – whether these purposes and policies relate to health and safety, or climate change, or protecting consumers, or controlling crime, or whatever. Moreover, the apparatus and resources that support these rules – the supervisory and enforcement agencies – need to be sustained and upgraded so that the rules are fit for purpose, not only on paper but also in practice. Alongside the use of rules, however, we should also seek out possible technical solutions. When we say ‘technical’ or ‘technological’ solutions, this covers a broad range of measures that might supplement or supplant the rules. The measures might be ‘architectural,’ so that buildings and spaces are designed to reduce the opportunities for crime, or accident and injury, or the unnecessary use of energy, and the like. They might also be incorporated in the design of products or processes (simply by automating a process, humans might be removed from potentially dangerous situations), and, in principle, the technical measures might be incorporated in wearables or even in humans themselves.

We find a similar two-pronged approach – rules fit for purpose plus technological solutions – in the government’s proposed strategy for dealing with the kind of online content that is clearly problematic. For example, what measures should be taken to tackle content that might compromise national security or encourage terrorist acts, or that threatens and endangers politicians, or that targets vulnerable parties, such as children, the elderly, the addicted, and so on? First, it is recognised that the legal rules need to be rendered fit for purpose in the digital age (notably by establishing a new statutory duty of care on Internet companies to take reasonable steps to keep their users safe and tackle illegal and harmful activity on their services), and second, it is proposed that effective technical measures should be explored, the aspiration being to make technology itself a part of the solution.

In this light, imagine a Law 3.0 response to the persistent problem of motorists who use their mobile phones while driving. On the one hand, the rules and the penalties need to be fit for purpose, and sufficient resources need to be committed to policing compliance with the rules. On the other hand, there are some technical options. One is to build hands-free mobile phone facilities into cars, but if motorists are distracted by using a phone, even a hands-free phone, this is not the complete answer. Possibly, there are ways of disabling phones while they are in vehicles, but if this means that passengers, even in an emergency, cannot use their phones, then again this is not the complete answer. Happily, with autonomous vehicles at an advanced stage of development, a technical solution is on the horizon: once automated vehicles relieve ‘drivers’ of their safety responsibilities, it seems that the problem will drop away – rules that penalise humans who use their mobile phones while driving will become redundant. Humans will simply be transported in vehicles, and the one-time problem of driving while phoning will no longer be an issue.

Of course, the conversation and mindset that is Law 3.0 did not come from nowhere: before Law 3.0, there was Law 2.0, and before Law 2.0, there was Law 1.0. However, it should not be thought that Law 3.0 meant the end of Law 2.0 or indeed the end of Law 1.0. Instead, new conversations emerged with new technologies but without wholly eclipsing earlier conversations. Law 3.0, as a distinctive conversation, coexists with Law 1.0 and Law 2.0, and Law 3.0, as the reconfigured field of legal interest, comprises these three coexistent conversations. What, then, do we understand by Law 1.0, and how did Law 1.0 evolve to provoke Law 2.0, which in time evolved to provoke Law 3.0?

Characteristically, the form of reasoning in Law 1.0 is the application of rules, standards, and general principles to particular fact situations. Some of the rules, standards, and principles will be fairly elastic – any legal provision that includes the word ‘reasonable’ is geared for flexibility – which means that Law 1.0 does have some capacity to make adjustments for novel situations and to make exceptions in response to those notorious hard cases where the application of the relevant rule simply does not seem fair in the circumstances. Indeed, in a recent statement aimed at clarifying the legal status of cryptoassets and smart contracts (giving guidance on whether, in principle, they can be treated respectively as ‘property’ and ‘contracts’), the UK Jurisdiction Taskforce (associated with the LawTech Delivery Panel) (2019: para 3) has claimed that the ‘great advantage of the English common law system is its inherent flexibility’; that ‘judges are able to apply and adapt by analogy existing principles to new situations as they arise’; and that ‘[t]ime and again over the years the common law has accommodated technological and business innovations, including many which, although now commonplace, were at the time no less novel and disruptive than those with which we are now concerned.’ Nevertheless, the greater the industrialisation of a society, the more that technologies are employed, the greater the strain on Law 1.0, because it is simply not geared to respond to the range of risks that now present themselves.

With Law 1.0 under stress, a natural way of expressing discontent with the prevailing rules is to say that they are not fit for purpose – specifically, that they are not fit for the purposes or policies that are being adopted for the further and better technological performance of society. At this point, Law 2.0 crystallises. Here, the form of reasoning is policy-directed and instrumental. The conversation is about what works. It is not a matter of recycling a body of traditional rules, standards, and principles; rather, it is a matter of articulating new rules and regulatory frameworks that directly serve the purposes which governments now adopt. If legal rules were like clothes, Law 2.0 would signal a whole new wardrobe.

In Law 2.0, the centre of gravity of law shifts from the courts and historic codes to the political arena where governments operate through the executive and the legislative assemblies. Accordingly, where new technologies, such as the aforementioned cryptoassets and smart contracts that rely on blockchain, need to be governed, in some legal systems the response will be a Law 2.0 conversation, but in others the conversation will start in Law 1.0 mode before moving to Law 2.0. As Sir Geffrey Vos (2019: para 5) put it when introducing the Jurisdiction Taskforce’s statement, the approach ‘has been to start from basic legal principles and work forward to regulation.… There is no point in introducing regulations until you properly understand the legal status of the asset class that you are regulating.’

The evolution from Law 2.0 to Law 3.0 builds on the instrumentalism of the former. However, it depends crucially on the perception that new technologies now present themselves as regulatory tools to be deployed alongside rules. To some extent, the idea that architecture and design can be used to defend person and property is as old as the pyramids and locks. However, the regulatory mindset in Law 3.0 is characterised by a sustained focus on the potential use of a range of technological instruments the density, sophistication, and variety of which distinguish our circumstances, quantitatively and qualitatively, from those of both pre-industrial and early industrial societies. Whether or not this amounts to a difference of kind or degree scarcely seems important; we live in different times, with a significantly different regulatory mindset and repertoire of technological instruments.

Consider one further example. In August 2019, at the start of the new premiership soccer season, there was much discussion about the use of VAR (video assistant referee) technology to assist on-field referees. In particular, the spotlight was on the use of VAR and the offside and handball rules. Most commentators thought that these rules were the real problem (that they were not fit for purpose) but it was agreed that VAR was exacerbating matters (by over-turning on-pitch decisions and ‘goals’ that had been celebrated in the stadium). In the interest of accurate application of the rules of the game – and people still debate whether the ball did fully cross the goal line for one of England’s goals in the 1966 World Cup Final – VAR has a role to play, but it comes at a price. Thus, in one of his columns in The Times, Matthew Syed suggests that

VAR was a car crash waiting to happen, a clear and obvious error, a technological innovation so obviously against the grain of the game that it is a wonder it was so widely touted. The only question now is: when are they going to bin it?

(Syed, 2019)

To which, the answer is that we will bin VAR if we decide that we are more distressed by frustrated or delayed goal celebrations than by inaccurate refereeing decisions.

Law, it is often said, is rather like a game; in both law and games, there are rules, and in some games there are officials, and so on. However, we now see that there is more to this similarity than the fact that we are dealing with rule-governed activities. Nowadays, we see that Law 3.0 has its analogue in Soccer 3.0; in both law and soccer, the conversation is about both the fitness of the rules and the possibility of technical fixes. Moreover, where smart machines, such as Watson and AlphaGo, beat the best human game players, we see another aspect of Law 3.0, namely, the possibility of machines taking over various activities and functions previously performed by humans. That said, law is not entirely comparable to a game. Typically, we think that convicting an innocent person of a criminal offence is not to be compared with mistakenly disallowing a goal because a player was incorrectly judged to be offside.

In the year 2020, the idea persists that training a person ‘to think like a lawyer’ is training them to reason as in Law 1.0. Of course, Law 1.0 is what solicitors do when they advise a client on the legal position, it is what barristers do when they draft an opinion for a client, and it is the form in which common law judges justify their decisions. As we have already noted, it is also the way in which the Jurisdiction Taskforce framed its inquiry and statement. Nevertheless, there are some awkward questions when Law 1.0 meets Law 2.0 – for example, questions about the relationship between principle (Law 1.0) and policy (Law 2.0) and about the line between law and politics. Similarly, when Law 1.0 meets Law 3.0, as it increasingly will, there is some awkwardness, but it is exacerbated by questions about the coexistence of legal principles with expanding technological possibilities. However, Law 3.0 is where we are; Law 3.0 is the conversation to be in; and Law 1.0, by largely ignoring technology as a solution to regulatory problems, is in danger of consigning itself to becoming little more than a sideshow.

Stated shortly, this book, as an introduction to Law 3.0, is about the disruption of law and legal reasoning by new technologies as a result of which, I suggest, there is a need to reimagine and then to reinvent law. It is about the disruptive impact of new technologies on the traditional content of legal rules, about the disruption and displacement of the way that those associated with the legal and regulatory enterprise reason, and about the increasing availability of technological instruments to support, or even supplant, legal rules.

The argument is that, in the wake of this disruption, there is a need to reimagine the field (the regulatory environment) of which legal rules are a part. Instead of thinking exclusively in terms of a certain set of rules and norms (representing ‘the law’), it is suggested that we should think of a set of tools that can be employed for regulatory purposes. While some of these tools (such as legal rules) are normative, others (employing, for example, the design of products or processes) are non-normative. While normative instruments always speak to what ‘ought’ to be done, non-normative instruments – at any rate, at the hard end of the spectrum – speak only to what ‘can’ and ‘cannot’ be done.

Having got our heads around the idea of Law 3.0, how are we to live with it? Who is to be invited to the Law 3.0 conversation, and what kind of conversation does it need to be? My argument is that, if law is to be reinvented, the renewal should be anchored to a new foundational understanding of regulatory responsibilities (and, concomitantly, a ‘triple licence’ for the use of technological instruments) on which we can then draw in order to shape our articulation of the Rule of Law, in order to revitalise ‘coherentist’ Law 1.0 thinking, and in order to refashion legal and regulatory institutions both locally and internationally.

My conclusion is not that, with law so reinvented, all will go well. In a world of dynamic technological change, maintaining the conditions that are essential for human social existence will always be a challenge, and discharging our regulatory responsibilities will inevitably be a work in progress. Nevertheless, I suggest that the chances of things going well are somewhat better if we do reimagine and then reinvent law rather than take no steps in this direction.

Finally, let me close these introductory remarks by saying two things about the way in which this book is written and presented. The first thing is that, in writing this book, I am departing from the usual scholarly conventions by eliminating footnotes, by keeping my references to an absolute minimum, and by trying to write short chapters. I want the text to speak for itself so that it can be read quickly, understood, and retained. I should also say that, although the law is no stranger to making use of fictions, readers should be prepared for some chapters (such as the next one) that indulge in pure fiction. For readers who want to follow up with a more traditional academic presentation of the main ideas in this book, they can find this in my earlier monograph, Law, Technology and Society (Brown-sword, 2019a). The same is true of what I say about legal education in Chapter 25 of the present book (see further Brownsword, 2019b). The second thing is that I would not want my presentation to mislead readers into supposing that the field of legal scholarship that we now recognise as that of ‘law, regulation, and technology’ (Brownsword and Yeung, 2008; Brownsword, Scotford, and Yeung, 2017; Guihot, 2019) is short of contributors and light on literature. To the contrary, there are many scholars worldwide contributing to both the breadth and the depth of what is a burgeoning literature. Accordingly, right at the end of the book, I make some short comments on the way in which the literature has grown over the last 30 years – writers first responding to developments in biotechnology, computing, and information and communications technology, then to developments in nano-technology and neurotechnology, and more recently to additive manufacturing, blockchain, and artificial intelligence and machine learning – after which I offer some suggestions for further reading.

Chapter 2
BookWorld

A short story about disruption

Imagine a (fictitious) local independent bookshop. We can call it BookWorld. The bookshop has a special place in the life of the local community. BookWorld is more than just a bookshop. On one occasion, when BookWorld was moving from its old store to new premises nearby, the community famously formed a human chain to remove the stock of books from one site to the other. At BookWorld, books are shelved in accordance with a classificatory scheme that has served it, and its community of book-lovers, well. The scheme starts with fiction and nonfiction, but then it employs various subclasses. Occasionally, there will need to be some discussion about the right place to shelve a particular book, but this is pretty exceptional. In general, staff and customers alike know where to find the titles in which they are interested.

However, with the explosion of books about new technologies – starting with books about biotechnologies and cybertechnologies, but now including books about neurotechnologies and nanotechnologies, about AI and machine learning, about virtual reality and autonomous vehicles, and about blockchain and 3D printing, and so on – the staff at BookWorld have found it difficult to know how to respond. Should these titles be shelved under ‘Popular Science,’ or ‘Medicine,’ or ‘Health,’ or ‘Economics,’ or ‘Law,’ or ‘Ethics,’ or ‘Smart Thinking,’ or even ‘Science Fiction’? While staff can advise customers whether or not they have a particular title in stock, they cannot always be sure where a particular book is shelved; for, quite literally, the titles on emerging technologies are ‘all over the shop.’ Moreover, staff realise that it is not possible to find a home for these burgeoning titles on technologies and their applications without stretching and distorting the classificatory indicators, or without creating ad hoc classes. There is a reluctance to revise the traditional classificatory scheme, but as the technology titles attest, the scheme is no longer fit for purpose.

Eventually, BookWorld yields to the inevitable: one room in the store is now dedicated to ‘emerging technologies’ within which titles are shelved in accordance with a brand-new classificatory scheme. However, this is not the end of the problems for BookWorld. The bookshop is experiencing a further, and more radical, disruption. Once upon a time, a book was a book, and a bookshop was a bookshop; but now the formats for books, and for selling books, are varied. Books are now supplied in digital formats, and ‘virtual’ bookstores have only an online presence.

As the owners of BookWorld realise all too well, many of the technologies about which the books are written are themselves exerting a disruptive influence on retailing generally and on bookstores in particular. In this context, sales at Book-World are down and, even though their customers are loyal, that loyalty is challenged when online sellers can deliver titles so quickly and at such competitive prices. Puttin...