Opening Plenary: Emerging Technologies and the Future of Law

by Lee Ann Barnhardt

The opening plenary session, Emerging Technologies and the Future of Law, provided an overview of how a series of technological revolutions including genomics, nanotechnology, neuroscience, virtual reality, surveillance technologies, and enhancement technologies will fundamentally change our lives over the next decade, as well as the practice of law. Moreover, this session described pending technological revolutions and provided examples of cases where these technologies are already entering the courtroom.

The session was presented by Gary E. Marchant, PhD JD, Lincoln Professor of Emerging Technologies, Law and Ethics at the Sandra Day O’Connor College of Law and Executive Director, Center for Law, Science & Innovation and Professor, School of Life Sciences, both at Arizona State University.

Marchant begin by explaining how four technologies—the car, television, flight, and computers, which entered society over a period of 100 years— had implications on daily lives and the law. He said the technology revolution of the 21st century, including biotechnology and genetics, nanotechnology, communications technology and neurobiology, will have exponentially incredible effects on society and are just beginning to emerge as issues for the legal system.

“The legal system is at the front lines,” he said. “Someone has to make decisions on how technology can be used. Everything is in play.”

Marchant explained that there will be exponential growth in technology, citing the following from Ray Kurzweil: “An analysis of the history of technology shows that technological change is exponential, contrary to the common-sense ‘intuitive linear’ view. So we won’t experience 100 years of progress in the 21st century—it will be more like 20,000 years of progress (at today’s rate).”

His presentation was built around five technologies – nanotechnology, genetics, surveillance technologies, brain scanning, and virtual worlds.

Nanotechnology is the study, manipulation, and design of materials and technologies at the molecular scale. Marchant said there are over 1,000 nano products already on the market including stain resistant pants, odor-free socks and self-cleaning glass. One area of legal concern is the use of this technology in drug delivery devices. Marchant said this technology is not regulated and there are concerns about litigation around liability. He said several major law firms have established nanotech practice groups.

The following were listed as legal issues related to nanotechology:

  • Health and safety regulation
  • Environmental protection
  • Intellectual property
  • Liability issues
  • Privacy
  • Ethical and social issues

“Government is way too slow to react to these concerns,” said Marchant. “The courts will end up deciding, not the government.”

The genetics discussion centered primarily around the issue of genetic testing and how that will impact health care, physician liability, insurance, and criminal investigations. Areas discussed included personalized medicine, natural born killers, designer children, intelligence genes, and gene doping.

“There are legal and ethical issues related to genetics that are currently below the radar,” said Marchant.

Surveillance technologies include cameras, GPS systems, black boxes in cars, computer monitoring, and biometrics. He explained that location-based services available on most phones can and are being used for tracking people—employers tracking employees, parents tracking children, suspicious spouses tracking partners, and police tracking suspected criminals. Questions arising from such uses are what constitutes a search and does law enforcement need a warrant?

Other uses are road pricing (fees charged per miles you drive), insurance rating, speed limit enforcement, traffic monitoring, and GPS enabled firearms. There are also privacy concerns regarding information collected by GPS providers.

“Legal protection for privacy is a concern,” said Marchant.”Once the public’s expectation of privacy goes down, the protection tends to lessen. There are no polices in the United States. Companies are making decisions on their own.”

Brain scanning, which basically lets someone look into your brain and see what you are thinking, has several current applications. It is used for lie detection, crime scene recognition, drug and alcohol use, mental health vulnerabilities, and intelligence. Marchant said these uses pose evidentiary questions about the admissibility of this information in trial.

Marchant said some potential courtroom applications of brain scanning are as follows:

  • Voluntary or compelled testimony of criminal defendants
  • Introduction of brain scans to support veracity of testimony
  • Scanning jurors for statements on objectivity and bias
  • Issues of 4th amendment search protection and 5th amendment right against self-incrimination

The final topic area was law in virtual worlds. Marchant said there are on-line worlds such as Second Life, that people “live” in with real money, real crime, and real legal agreements. He said virtual worlds have become an obsession.

“There are lawyers now practicing at least part time in Second Life. There is a Second Life bar association and several dozen cases pending in the U.S. courts arising from activities within virtual worlds,” said Marchant.

Marchant said when crime occurs in a virtual world (such as fraud) or a virtual marriage ends, there are many legal questions to be answered. Where does the activity occur? Who has jurisdiction? Whose law do you carry out?

Legal and social questions Marchant raised about virtual worlds included

  • What will be the social, economic, political, and legal impacts of people spending more and more time in virtual reality?
  • Can enforceable rights (contractual, marital) be created in a virtual reality?
  • Should earnings in a virtual world be taxable?
  • Who has jurisdiction over second life disputes?
  • Is there unauthorized practice of law in virtual worlds?

Marchant said for almost all of these emerging technologies, Congress and regulatory agencies have been silent. He believes it will be courts that are forced to address them.

Editor’s note: A follow up to this presentation was presented on October 22nd by the Western Region and the NASJE Website and Technology Committee. It was very well attended.