Law and Technology in the Dimension of Time

Abstract

The relationship between law and technology in the dimension of time is a popular theme in legal and policy circles, usually recurring as a critique of outdated laws. In these debates, law is most often portrayed as falling behind technology as both travel together along the dimension of time. While such images simplify the relationship between law and technological change, they reflect some insight into the challenge faced in ensuring law remains relevant, appropriate, comprehensive, well-adapted and clear in the face of an ever-evolving socio-legal-technical landscape. Law’s struggle in the face of socio-technical change has been referred to as the pacing problem or the challenge of regulatory connection. A phenomenon that receives much less attention in these popular debates is the temporal impact of attempts to embed the law and social values into technological design. There are a variety of terms that capture ideas around design-based regulation, each with different foci and associated literature. For example, ‘value sensitive design’ focuses on the design process, while ‘compliance by design’ focuses on extracting, modelling and implementing legal requirements but both are about using architecture and processes to achieve a particular effect (respecting values or ensuring compliance with law). The idea of embedding law, values or preferences into technical design choices and business processes is rarely subjected to similar time-inspired critiques despite the fact that technology and procedures can be designed around outdated understandings of legal requirements and policy goals. Whether technology design decisions are based on technical, commercial, legal or regulatory objectives and requirements (or combinations thereof), they may come to be seen as obsolete as those objectives and requirements evolve. Therefore, the challenge of staying up-to-date or continuing to fit in an evolving world is not only a legal challenge. Technology can also fail to meet evolving legal requirements or fail to adapt seamlessly to other technical elements within systems as the broader socio-legal environment evolves. In particular, law can impose particular demands on technology, so that it is called on to catch up.