In this episode of the Filevine Fireside, Dr. Cain Elliot sits down with Joshua A. T. Fairfield to discuss his new book, "Runaway Technology: Can Law Keep Up?" Discover how changing definitions, new and emerging markets, consumer trends, and the ever-escalating tide of technological progress are affecting the reality of law all over the world.
Joshua A. T. Fairfield is the William Donald Bain Family Professor of Law at Washington University School of Law as well as a critically acclaimed author. Learn more about his work at joshuafairfield.com.
Full Transcript
Dr. Cain Elliott: Okay, so welcome back to The Filevine Fireside. Today, I'm joined by Joshua A.T. Fairfield, the William D. Bain Professor of Law at Washington and Lee University School of Law. I'm Dr. Cain Elliott, and we're really excited today to have Professor Fairfield on, to have a conversation about his new book that I've just read, Runaway Technology: Can Law Keep Up? First of all, Dr. Fairfield, I want to say thank you for joining us and ask the most important question of this is, do you prefer Joshua or Josh? Dr. Joshua A.T. Fairfield: Thanks for having me on, Cain. Josh is great. Dr. Cain Elliott: Okay, great. Josh, I had this book on my Amazon wait list before it came out, which even speaks already to something about your book and the fact that it was on an Amazon list that was recommending it to me before it came out. The first thing I was thinking about when I got ahold of it was the fact that already, my interaction with your text was embodied or socialized through some kind of technological relationship that was built out between you and I, before you and I mediated that conversation. I was hoping, for listeners on our show who haven't read your book yet, but I hope they will go out and grab a copy or grab a digital edition and read it with as much enthusiasm as I did, but I was hoping you would give your summation as an author of what it is you think you're articulating in the book, what you were trying to capture, or maybe if you also want to speak to what was the initial impetus behind the book? Dr. Joshua A.T. Fairfield: Sure. The impetus behind the book goes way back. I've been interested in the relationship between law and technology for the better part of two decades now. Ever since, in the early '90s, a family concerned got together and we started a company that's now called Rosetta Stone, which essentially taught foreign languages by technological means, by immersing someone in that language. So my interest in law, in language, and in technology goes right back to those entrepreneurial beginnings. What I wanted to address in this book were two things that have been bothering me for a long time. The first is this constant refrain that we hear worldwide, but especially out of Silicon Valley, that law can't possibly keep up with technology, that law is slow, technology is fast, and I wanted to write a book that really challenged that. That said, "What does it mean when we talk about law being slow? What does it mean when we talk about law or technology having a speed?" One of the things that I noticed is that the claim that law can't keep up with technology is more or less propaganda. Dr. Joshua A.T. Fairfield: Because law, and this is the center of the book, law is technology. It's a specific kind of technology, linguistic technology. It's the way that we evolve our language in order to address the problems of the future. This is how humans have done things for tens of thousands of years. We upgrade our social software so if we meet a new challenge that we haven't been able to address before by how we're living together, we invent a new form of government. Say, for example, democracy. We come up with a new way of living together and the language that embodies that way of living together, that's law. Law is the business end of our human ability to cooperate. What I wanted to do in the book was have a conversation, and conversations like this are the business end of that project to help us work out language for dealing with the problems in the future. Because a lot of the time, and I'll borrow here from the author of The Age of Surveillance Capitalism, Shoshana Zuboff, a lot of the time we don't get past huge problems of law and technology by answering our questions. What we do is we move beyond those questions and we develop better language for dealing with better ones, and I'll give an example. She says, "What about the question, how many hours a week is it great for a 12 year old to work in a factory?" The answer to that question is, "Move past it." There's no number that's the right number there. The answer is to move past it, to come to a different conception of what it means to be a child in a culture that cares about children. In that same way, what I'm looking to do in this book is reinvigorate our process of conversation about the future so that we can develop language that lets us talk more clearly about the future and lets us build on the language of the past. Here's another example. If we look back to some of the foundational language that we used when the American experiment of democracy was really getting launched, we might draw on language like, "All men are created equal." Now, that statement already is likely to raise hackles on several fronts if we hear it with today's ears. Among other things, when it was stated, "All men are created equal," even among men, we held people in conditions of enslavement at that time. If that's the case, then what do we do with that language? Well, we iterated it. We made, "All men are created equal," to something like, "All people are equal under the rule of law." A linguistic conception that opened this up to everyone. We might even then iterate that further in language like "#metoo," that expresses some of the difficulties, some of the problems that women have systematically had in the workplace and onward with the cultural expectations and pressures that are brought to bear. That's how we evolve language. Once you see it, it's a fairly commonplace thing to hear it. Every generation's got its own language, every generation's got its own way of speaking, but what we need to do is come to this process intentionally, talk to each other and have a conversation about what kind of language is going to help us address the problems of the future cleanly, ask the right questions and permit us to talk cleanly about these problems. That's the core of the book. I've gone on for a bit there, but I think you've got the whole book in a nutshell right there. Dr. Cain Elliott: No, I think that's fantastic and I think we do. I have a couple of questions coming out of that and I want to pack this in a couple of different directions. I mean one is that obviously, I'm the VP of Industry Expansion of Filevine. We're a technology company. We're also a technology company that serves primarily attorneys and people operating in professional services, and so we interact in that space every day. I think it is interesting the way you speak to the divergent narratives of, "Tech is fast, law is slow." One of the areas where I thought you really started to hit on this was, and one of the areas that, in distinguishing so, I'll just say by way of background, that I was trained in the continental tradition and obviously my formative years was around the civil law tradition. One of the things that you point to is the difference in how things move and common law and civil law. I think that one of the parts that may be, I don't know if it's a PR problem or if it's just as you noted, it's the language in which the law and common law traditions, Anglo American tradition, at least here in the United States expresses itself. You mentioned the point of how adaptable and malleable that kind of law can be when you're talking about, for example, original disputes that came up in trespass with online spammers. I think it was CompuServe. Dr. Joshua A.T. Fairfield: Yep, exactly. Dr. Cain Elliott: I was thinking about the famous example that arose on the Supreme Court looking at surveillance and talking about people hanging under the carriage of a cart going down the street. I wonder if, when we're talking about this language of the law, also, is it not the case maybe that in contexts like that, the law itself is speaking without context that seems to matter to most people or in contexts that are as relevant, and in the same way that technology can be seen as leaping forward in the law tradition, that constant refrain of leaping backwards also has an effect of alienating potential participants from the movement of legal discourse. Dr. Joshua A.T. Fairfield: Yeah. I think all of that's just absolutely dead on, and you've raised a lot here. I'll try to go through it systematically. First, just to start with this idea that the technology is fast and law is slow, I love that you're focusing on people who've got practical access to the law. Because people who do the business of the law rather than see it as this abstract theoretical structure will realize immediately what we're talking about. If you ask somebody who's a practicing lawyer, "Will a court recognized Bitcoin as property, such that it will be passed down through a will or through intestate succession," your average practitioner will take a look at it for a couple of minutes and say, "Yes, absolutely. All theory aside, there's no question that this will be treated as property." And it takes me back to a question that I had with one of my kid brothers, who is one of the lead engineers for the Google autonomous cars project, Waymo. At the time, he was being recruited by Planetary Mining, I believe that's the name of the company, I could have gotten that wrong. They were trying to build asteroid mining robots and the question came up between us, "Hey, who's going to own, what's the law of owning, of taking possession of an asteroid? Who's going to establish a property interest in it?" The immediate answer for any first-year law student or anyone trained in the common law tradition is going to be, "Well, it's the law of first possession. It's the law of capture. The person who gets their hands on it first, it will be theirs." The point that I'm making here is that sometimes the oldest cases provide the answer to the newest technological problems. Here we've just had two cases where old, old law of property governed two of the bleeding edge cases of technology. So when people talk about technology being fast and law being slow, you have to wonder what they're imagining in their mind, because the way that law generally operates is law precedes by analogy and in many cases, law and rules are already there when the technology is developed. We're not going to have a question about whether or not it's a murder if I hack somebody's pacemaker and turn it off. It's murder just the way it is if I did it with a club or a sword or a gun. In the same way, law is often there, it's adaptable and it precedes by analogy, and this builds then into your point about the common and civil law traditions. The common law tradition has a real capability of getting to questions first, and quickly, because you're asking judges essentially, "Hey, we don't know what the answer to this question is. Please put on your common law judge hat, not your statutory judge, not your statute leading hat, but your common law judge hat and help us look through the stories, the narratives that we told before, and let's find the key analogies that resonate with us as humans." That resonate with the lawyers, that resonate with the judge, that resonate with panels of judges, that resonate with hierarchies of judges up through the courts of appeals into the Supreme Court, that resonate with juries. Once we come up with the narratives that really resonate with humans, saying, "Yes, this story is like that story," we can move really quickly to establish new principles. Now, sometimes those analogies do fall apart. Here, the analogy is to little tiny constables hanging underneath a car, and that example speaks to one of the core difficulties we have in adapting our old narratives of government surveillance to our new technological reality, which is there's an unspoken assumption there that if I can surveil you in a certain way, if I can have a police officer look at you while you're on the road, then somehow, and there's an ellipsis there... a miracle occurs, then somehow it's okay democratically, to do that to everyone all the time. Dr. Cain Elliott: Right and my thought there, if I could just interject, I mean what I was thinking there was, of course, the problem that creates for people I think when they're listening to that kind of language of the law is precisely that that would obscure the idea of someone looking at all of your metadata. Dr. Joshua A.T. Fairfield: Right. Dr. Cain Elliott: Because you're thinking about, "Well, that matters if I think they're listening to my phone call or not," and it helps obscure, actually, some of the analogous thinking that you're describing that could go on. Dr. Joshua A.T. Fairfield: Absolutely, it does and more than that, it implies a bunch of things that aren't true. The gray matter of a police officer discards all kinds of data. The question of whether or not the police officer has a reason to be watching in the first place, or are we going to watch everyone all the time, do full take surveillance and then send a neural net in to parse through the data and raise red flags after the fact? It obscures all kinds of fundamental questions and what that means though, and here's the important part, often we find that analogies used to pass law don't work. What do we make of that? Do we make of that then that law has somehow fundamentally failed in its ability to keep up with technology because one or the other analogy doesn't work? The answer to that is no, that's not a failure at all. That's like saying the fact that some species have gone extinct means somehow the process of differentiation and evolution doesn't happen. It's not true because the landscape is littered with laws that don't work. What we need to do is keep our eyes on the laws that continue to influence human behavior. A different analogy is needed, we need different language to talk about it. The relevant analogy is not a tiny constable who has reason to be watching you and is mostly going to forget everything that he sees in a couple of weeks' time. Rather the proper analogy is something closer to the panopticon or a system that watches everyone all the time, and all of the discomfort that that implies. The fact that we often find the wrong analogy doesn't mean that the process of legal analogy has somehow failed us. To your point about the civil and common law traditions, one of the fascinating things that I found when I was researching this book, I wrote more than half this book in a Plaza in Munich, in Germany under a visiting fellowship. Dr. Cain Elliott: You were at the Max Planck Institute, right? Dr. Joshua A.T. Fairfield: Mm-hmm (affirmative), with the Max Planck Institute for Innovation and Competition in Munich. Then also, under a Fernand Braudel grant with the European University Institute in Florence, Italy. During that year, one thing that I noticed was that the process for getting these analogies in place and for adapting them is different than the civil tradition, but it's still there. In that tradition, things work a little bit differently. Judges don't set precedent per se. What they do, however, do is they rely on these gathering of cases and stringing of cases together in narratives by academics, by experts in treatises, and those treatises then have enormous influence within the civil tradition. Dr. Cain Elliott: Yeah, and Josh, I... Yeah. I would say, as a point of narcissism, when I was reading over that in your book, I was thinking about, so I finished my doctorate at the [foreign language 00:16:34] at the Polish Academy of Sciences in Warsaw. I was a bit lamenting the fact that I used to have interactions on radio and in public media and other places where there was input for expertise in a different way. When I was reading that, I was lamenting the loss of feeling that kind of ability to move or shape things through... Dr. Joshua A.T. Fairfield: Absolutely. Dr. Cain Elliott: ... the input of expertise. Dr. Joshua A.T. Fairfield: Absolutely, and there is a culture of expertise in the civil tradition and that's how those analogies, that's how those narratives get onboarded. Dr. Cain Elliott: Yeah. I wanted to ask you another question, because one thing when I was reading your text, you speak, especially in the closing chapters to how the language of the law can evolve. From my position where I am right now, I was thinking about some of this, obviously in reverse and how some of the language of technology can evolve. I was reminded of another text I read recently, I don't know if you've seen it yet, but Adrian Daub wrote What Tech Calls Thinking. It was published in the fall, and one of the things he says in there is that the discourse and narrative that the technological community let's say, and that's certainly restricted to some members of the community, I don't think that's a narrative we try to pursue at Filevine, but there is a tendency towards a-historical presentation of one's ideas, placements, relevancy to what's going on. Dr. Cain Elliott: The idea that everything spawns out of the ether from nothingness and then radically transforms the world, and I was thinking about the fact that part of the turn that I thought that this book was pushing, maybe not as one of the main agendas, I think it was speaking to the language of the law, but the language of technology on the other side could say it's becoming a more historicized language, a more embedded language about how emergent technologies are coming from certain types of communities and not others, are speaking to certain interests and not others, and how we make that language more embedded in our social fabric and drop the pretense that it's coming out of nothingness. Dr. Joshua A.T. Fairfield: Also, recognizing some of the damage that a-historicism, I think that that lack of historicism brings to the table. There are two big changes in the language of technology that I think have to happen, and you've touched on both of them. The first is I'll say a lack of meta-narrative. Oftentimes, we'll hear the claim that technology is simply neutral, that it's what humans do with it that matters, and that sentence doesn't really hold. Technology is what humans are doing and it's pretty clear that, for example, nuclear weapons or Facebook, no matter what you think of those technologies, they're not neutral. They were constructed within a historical environment for a specific historical ends and that those moments have shaped the science. To turn aside from the situatedness, the context in which we do technology, the context in which we do science means that we lose a whole lot of what science and technology is. If I had to pick one philosophy of science book overall, it would be Thomas Kuhn's work on paradigm shift and there he explains... Dr. Cain Elliott: Sorry. Josh, can I interrupt? One thing, I'm very excited that you mentioned, that is the one book on the history of the sciences that I give out to Fileviners when they ask me for a read on philosophy of science. Dr. Joshua A.T. Fairfield: Absolutely. Dr. Cain Elliott: Yeah. Dr. Joshua A.T. Fairfield: Because the structure of scientific revolutions essentially uses the discipline of history to take science, to take normal science out behind the woodshed and say, "No. In fact, we don't do science one negative fact, one failure of the null-hypothesis at a time, the way Karl Popper would suggest." Instead, what happens is we develop a new model, a new language, a new way of thinking, and that new model, new language, new way of thinking attracts a bunch of usually young, hungry PhDs who can see that there's a lot of experimental work to be done under that and they begin talking in that way. That leads to the old quote, "Science progresses one funeral at a time." As the language shifts, as the paradigms that we're using to talk about it, the models, and we know perfectly well the models aren't reality. They just help us solve certain problems that we couldn't solve before. One of the things that I'm doing in the book is tying Kuhn's way of looking at science directly to law. Just as he points out that a valid scientific theory is one that's stood the adverse selection of experiment after experiment, it hasn't been falsified yet, in the same way an effective law is one that has the flexibility, the adaptability, the ability to plug into new analogies as technology moves forward to still give us answers about the future. I'll give an example there. One of the reasons why one of the most important laws in privacy is the Federal Trade Commission's Section 5 authority to deal with unfair and deceptive practices in trade. Nobody knew 20 years ago that that would become the dominant statute providing the authority to regulate privacy in the United States, but because the law was flexible, adaptable enough, and the processes around it were, it became then accepted that it is deceptive to tell people you'll use their data in one way and use it in a different way, and so the FTC was able to step into that role as privacy guru, as privacy director, and also then that it would be unfair to not use basic privacy protection measures. For example, storing your passwords in clear text. That's maybe a bit of a stretch to say that's an unfair business practice, but over time, our understanding of the words evolved and the place of the statute within the overall regulatory structure evolved, and that's what we've now got. This idea then that theories in science survive best when they survive the accumulation of experimental evidence and the similar idea is that a good law survives the accumulation of new test cases in technology. In both cases, the development of law and the development of technology must be historically situated. You can't talk about where you are without talking about the tools that got you to that place. If we talk about beginning with Ptolemaic geometry, moving through Copernican, then maybe we make a quick stop by Newton, and we then decide that Einstein is to surpass Newton and then the plunk moves past Einstein, in each of those cases, where we were provided the tools to generate the next narrative for where we are now. I think you just nailed it when you said that this new trend of saying everything's new, is in fact, the oldest trend there is, and it's one that simply leaves people adrift, making mistakes that we've made before. The old trope is, "Those who haven't read history are doomed to repeat it." That it, in a sense creates a fragility in our technological development, because we haven't learned the lessons of the past and we think that what we're coming up with is brand new. Dr. Cain Elliott: Yeah. Well, let me ask you this because I was curious, and I think this may be one of the toughest questions you posed and I would even say I think you're posing it to yourself. Because I think in the book, your book went in two different directions and they may not necessarily be opposed, but I'll just say it this way, is that the time in which the book was written and when it's come out, it's very apropos some of the items that you're talking about. But one of the things you open the book with is you have a quote out of the mouths of the so-called high priests of technology and it says, I'm going to quote you here, so, "We do whatever we want to just because we can, hidden behind the propaganda that technology is neutral." Okay and we talked about that, that false base of neutrality. But then, one of the other things you do in the text is you say that, "Look, the answer to this is not likely to be found in what you call political dogmatism or an ideological purism." Dr. Cain Elliott: I'm wondering, given the current context that we find ourselves in, what we see in terms of enhanced or intensifying polarization, and I think any of us who's living in the States right now, it would be impossible to not recognize that, I'm wondering what does the claim that scientific propositions, technological propositions, these other spaces that are considered within the domain of neutrality, opening that conversation up, what do you see as the risks there of how these things play out and don't feed immediately into the ideological opportunism that you state very clearly will not solve the situation? Dr. Joshua A.T. Fairfield: Well, I think that's a brilliant question, and let me just make the first part of it blunt. I think that the risk is saying things like, "Science and technology are historically situated," runs the risk of falling into the hands of, "It's just a theory," crowd. So it's just a theory that the earth is round, pick your scientific fact of choice. The fact that science itself seems to be profoundly in dispute is a major portion of the present polarization and for those who believe in science, it can be really hard to hear things like, "Science is as historically derived as any other human endeavor," because they want there to be Truth there, not truth that is constructed by scientific consensus. Even though when they talk about what is scientifically true, they immediately do things like, "Oh, well, scientific consensus," and we go right back to the conversation about science and different ways of talking about a scientific problem and some of which work better and some of which were worse, which was what we were just talking about. That's how science works. The danger is that this gets into the hands of people who say, "Oh, well, X, Y, or Z is just a theory," without any real grip on what a scientific theory or what a scientific law is and without any understanding that, yes, it is an approximation, a model, a way of thinking about the world. It is not the world, nobody thinks it is, but it's still the best we've got for solving a certain set of problems. your alternative hypothesis is that, let's say the earth is flat, does not stand up against the weight of the evidence and so it is not true that infinite alternative theories are okay here. The best we've got remains the best we've got, even when we understand that it's historically situated. I think that's the risk. The benefit of this is that there are many people who are concerned about science because they question its lack of honesty, they question scientists' and technologists' lack of honesty around their own context and motivations. We see this in medicine a lot where someone will say, "I will refuse a certain treatment because I don't trust the economic engine that has caused me to be brought to this crossroads." Or they say, "I don't trust that you have developed..." I'll give you one where I don't trust. I'm trying to think of the most recent one. Pretty much any time any company says, "We care about your privacy," it makes me immediately think, "Okay, you just lack all credibility." Now, why is that? It's absolutely possible that a company could care about privacy, but when I look at their business model, I'm like, "Okay, cool. Yeah, I can see you make money by monetizing my metadata. Don't tell me you care about my privacy. Don't call that document a privacy policy, call it a data use policy. You're lying to me. I don't trust you." Under those circumstances, the attempted claims, the protestations of neutrality of the technology is just technology really do fall on deaf ears and I think one thing that openly talking about how technology damages itself by claiming things like neutrality and then ducking behind it to do whatever it wants, that that can be very damaging to the credibility and to the convincing this. To the extent that I think we can reduce polarization, I think it's got to be by recreating some kind of consensus around the models that we rely on to live. Medical models, physics models, computer science models, artificial intelligence models. We need to be able to build consensus, not just because us all working together is some sort of kumbaya goal, but because our superpower as a species is talking together, getting diverse perspectives, having people come in from left field with answers that nobody else would have thought about, and generating answers that none of us alone would have come up with. That's how we think, that's that's our superpower, that's our tool for dealing with the future. If we cut off large sections of our ability to think by isolating the people who think differently than we do, then we're cutting off every single solution that comes from that direction. It's not just a matter of, we need consensus because we need social order because we need peace, and what's been happening in the United States is intolerable and is probably long-term, deeply corrosive to democracy. Rather, what we need is our ability to think as a group to be restored. Our ability to hear people who've got perspectives that we don't see restored so that we can go and look through those and see maybe if the answer's there. Dr. Cain Elliott: Absolutely. I want to close with one final question on that point that's of interest to me out of the book. Because in that sense and the way you're proposing things, one of the other questions that I had coming out of that was, does this not put an imperative on all of us to enhance literacy? Because it seems that one of the things that the kinds of movements that you're proposing and that you're putting forward require is an enhanced cultural literacy to have deeper conversations about these things, that seem to be one of the things that we're directly moving, maybe not against, but moving past as if it wasn't a necessary requisite to some of the conversations you're talking about? Dr. Joshua A.T. Fairfield: Yeah. I certainly do think that enhanced literacy is important and I'll move even past that, beyond literacy in philosophy of science, and, "Here's your reading list," at the end of this podcast. I don't know, anybody's free to come to my classes or what have you, we can spend all semester doing this. But it's more than, "Here's just a reading list," or, "You need to be reading the right people." I do think that literacy, especially cultural literacy has really leaped to the foreground. We're going to have to be able to understand the ways in which other people are talking, the languages that they're speaking and I think anybody who's been paying attention has noticed that our political, and our social, and our cultural discourse have drifted into very different languages where people use even the same words, things like the United States Constitution, that has begun to mean profoundly different things to different people. If we're going to be able to talk to each other and find out the ideas that people who don't think like us have, then an enhanced literacy is absolutely required. I do think that an understanding for technologists of the history of science is just non-optional. The amount of mistakes that can be avoided by just doing a bit of basic reading around the ideas around how science is generated. For technologists to make claims about law, then reading something like, I don't know, this book or other books. Brett Frischmann's and Evan Selinger's Re-Engineering Humanity would be a great one for people who are building this stuff. All of those do enhance people's ability to do their job, to do it well, and not to get blindsided by being told after the fact, "Oh, yeah. This product you just built, it completely transgresses against the social contract, against your social license to operate, and the pushback is going to cost you your business." I do think that there's a micro level education there that can really help people. But at the macro level, I think that the thing we're going to have to recognize is that cultural competence and cultural literacy is the way to hear what other people are saying, and that's necessary if we're going to try to get the solutions that they have. Dr. Cain Elliott: Maybe I could rephrase that at the very end here and say, I think what you're describing too is maybe not just culture of literacy, but culture of listening? Dr. Joshua A.T. Fairfield: Mm-hmm (affirmative), absolutely right. Absolutely right. Dr. Cain Elliott: Well, to all of our listeners, I really appreciate you for tuning in to The Filevine Fireside and to our guest this week, Dr. Joshua A.T. Fairfield, the William D. Bain Professor of Law at the Washington and Lee University School of Law, whose new book, Runaway Technology: Can Law Keep Up?, was published by Cambridge, highly, highly recommend it and fascinating conversation. I appreciate your time today, Josh. Dr. Joshua A.T. Fairfield: Thanks so much for having me on, Cain. It's a wonderful conversation and I look forward to doing it again.