The importance of a conceptual reform in the regulation of emerging technologies

by Manuel Resende Monteiro Protásio (LL.M Law & Technology, Tilburg University)

Whenever a different situation or circumstance emerges in society, we, as a group of individuals, instinctively react by trying to comprehend it. The first individual and social construction that we build to understand reality in a consensual way is language itself.

Although our thoughts and concerns on how we perceive society may differ, as language, legal concepts try to establish a consensus between Law and almost every aspect of human life. If we add a new element to our human interactions, like technology, one should ask the question if this new element in our reality requires new language to understand it, or new legal concepts to regulate it.

The need to conceptualize the way we interact with our environment is inherent to our nature. In fact, Language and Law are the most established and sophisticated social constructions that people designed to control their interpersonal relations as well as the environment around them. Both are models of interpretation of our reality and tools that we created to control what we perceive. If we consider the impact of emerging and disruptive technologies in our society, we must assume that the need for a new conceptual approach to regulate technologies is undeniable.

To assess the different sociological aspects and effects of a new technology in society, one should first consider the conceptual baggage of the technology itself. To do so, especially from a regulatory point of view, we must address these new realities by changing the language of Law in accordance with its complexity and intricacies. This ontological perspective of Law has always played a very important role not only in hard law but also in jurisprudence. New situations in life capable of triggering any kind of legal effect always called for the creation of specific legal regimes. These regimes were often built on already existing concepts that were adapted to address the legal relevance of a specific new reality or, sometimes, new concepts were created only for the purpose of such new reality. Nonetheless, whether those concepts were adapted or newly made, the truth is that most legal concepts, when static or exhaustive, often create loopholes and deficiencies in how the Law might be applied to a specific reality or in how a judge may decide over a new reality that now assumes a legal relevance. 

Technologies that are entering that stage of their life cycle of being broadly used, often come with a very specific and complex conceptual baggage, that regulators, policy makers, judges, lawyers and even scholars overlook most of the times. Language and terminology can and should be seen as a new way to approach the pacing problem of regulating emerging technologies. It is undoubtedly a very relevant part of Law and Society and recent case law has shown the importance of accurate and coherent concepts for new technologies, to avoid a disconnection between the Conceptual – what society agrees on what they perceive as reality and the Normative Reality – when the Conceptual Reality is legally institutionalized.

In State v. Smith (Ohio 2009) the Court realized that it was not possible to find a right analogy or metaphor to cell phones sending the problem to the conceptual realm. The Court recognized the importance of giving an accurate and coherent classification or characterization to the phone. In the case of the City of Ontario v. Quon (2010), the Court assumed extreme difficulty in interpreting the use of a technology and made a reference to landmark case Olmstead v. USA to state the dangers of addressing new technologies without knowing its effects in society in a clear perspective.

Often disregarded in terms of impact, this conceptual framework can create trends in the development of the technology by accelerating or slowing down its pace in an unreasonable way. For instance, liability loopholes or excessive liability caused by the lack of judicial competence to assess in full extent the effects of a technology are usually some of the reasons for a manufacturer to delay the release of a technology to the market. The technical competence argument is not the only one that proves that the judiciary is not sufficient to create the required framework for new technologies. The lack of knowledge and understanding of disruptive technologies, the conflicting cases in different jurisdictions and the ex-ante approach of the judiciary, contribute in the argumentation against resting the adaptation of the law in the current societal needs solely to the courts. 

Whenever a new technology is introduced in society, it is up to the courts to define the liability and sometimes even fill legal vacuums or solve conceptual loopholes. Moreover, when new technologies enter society, the functionality of a technology is usually the only dimension to bear in mind when assessing the possible legal consequences or level of liability of the individual using it

Instead of relying solely on the courts, the necessary terms and concepts should be introduced in the legal framework to create certainty and safety for the actors who interact ex ante with these technologies and to facilitate the judiciary when a situation triggers its intervention.

Tort Law can be used as an example to outline the necessity for a new regulatory approach. Tort Law follows a reactionary approach. Liability rises as a reaction to a certain behavior or situation. It is not preemptive. However, it is up to legal theorists and regulators to add preemptive elements in Tort Law, when it comes to disruptive technologies. Such additions, made by other legal actors, can help the courts’ reasoning in these special circumstances. This is where legal terminology can be proved as an effective tool to regulate emerging technologies, while a conceptual reform or a detailed analogical reasoning might be the solution that can facilitate the judiciary in liability cases to reach coherent and consistent decisions. 

Although seemingly theoretical, an ontological approach to regulation has immense practical effects. In fact, despite the redundancy, language is the only universal element of legal systems, meaning that any concept that stems from it should always be considered as potential means to address the regulation of a new reality.

For a legal theorist, the greatest task is to understand the terms in which the subject matter, i.e., technology, is to be described. That kind of work cannot fall entirely under the judges’ purview. Doing so would create a great level of arbitrariness when regulating new technologies, since it allows the possibility of manipulation of Normative Reality. This can result on the manipulation of expectations by the manufactured of a certain technology, when determining the level of liability. This discord between the Conceptual Reality and the Normative Reality occurs due to the uncertainty created by courts regarding what society deemed as desirable and undesirable. In other words, the courts decide that something is permissible or forbidden but that decision does not resonate with society’s perception of what is desirable or undesirable regarding a new reality like an emerging technology. Thus, an incoherent resonance in the way society understands and adapts to the technology might manifest. This incoherence often leads to conceptual loopholes within the legal systems, creating the never-ending cycle of the pacing problem between Law and technologies.

The processes leading to Conceptual and Normative Reality, take place before disruptive realities enter the courtroom. On the contrary, letting these processes being developed solely by the judiciary will subsequently lead to the manipulation of the process of legally contextualizing these new realities. Additionally, as it has been stated, this process should be done in advance in the form of guidelines for jurisprudence and introducing the new necessary terminology, facilitated by legal scholars and other legal actors to assist the regulator and policy makers when facing emerging technologies. 

If a certain technology is designed based on a certain level of liability that exists for specific technological features, changing the level of liability for that technology solely due to a functional reasoning led by the court will lead to a post hoc manipulation of the technology manufacturer’s expectations. For instance, this can happen when the court only considers the information that a technology can aggregate and not its efficiency. A good example of how this might play out can be seen with the potential use of augmented and virtual reality in consumer engagement techniques, like advertising. According to Article 38 of the Charter of Fundamental Rights of the European Union, the necessary update in the current regulatory framework that addresses the potential problems related with consumer engagement techniques, specifically advertising, requires the development of appropriate safeguards towards the potential negative effects of these technologies in consumer behavior. If we consider the potential misuse of these technologies in advertising, we can easily foresee how can they become a new form of misleading advertising. The problem is related to how the concept of misleading advertising stands today in the Directive 2006/114/EC, specifically on its recitals and Articles 2(a) and (b). Without a conceptual reform of this concept, the potential misuse of these technologies harming consumers will not be covered by the current legal system.

There are several cases where courts lack the proper legal concepts regarding technologies, usually leading to incoherent and inaccurate results in their attempt to regulate the technology. The more metaphors and analogies a court uses, the more legal uncertainty and un-foreseeability surrounds these technologies. In fact, the analogical process, when excessively used, reflects the conceptual uncertainty regarding the technology itself.

Conceptual uncertainty in the process of legal contextualization of new normative realities can be tackled by unfolding the coherent perception of reality into legal terms and concepts. That process should be the starting point of discussion and a tool for the courts when facing cases with emerging and disruptive technologies. If there is more debate and more competence in the conceptual level regarding new technologies, the appropriate conditions to improve the legal reasoning led by courts will be met, which will subsequently lead to better policy making and more coherent frameworks. For that purpose, terminology, whether through conceptual or analogical constructions, can provide techniques capable of offering new solutions to new problems.

The pivotal role of language and terminology as a tool for policymaking has been neglected and disregarded, although many scholars stress out its importance to help regulating new technologies. In the last few years, whether through theories concerning the analogical reasoning led by the courts or by giving relevance to the power of metaphors to state different policy views regarding a specific technology, the importance of language in Law has increased. This new focus in academia can be correlated with the new emerging technological phenomena.  

Language, in different stages of regulation, should be treated as a dynamic tool, either by adapting the existing concepts or by creating new ones, capable of addressing the new realities that enter society by setting the ground for a coherent, effective, and foreseeable regulatory framework.  

Considering this, it is clear that whether through an ontological creation of new legal concepts or the update of old legal standards or through the application of new analogical reasoning in courts, the importance of language as a tool in regulating emerging technologies is pivotal. Time has shown and will keep showing that language can ascertain a coherent and efficient regulatory response to the upcoming technological challenges. It is up to the legal actors to understand it and to use it.  

Pictures credits: keyboard by geralt .

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