Law + Technology

Law and technology are made of different materials: law is first and foremost a social constraint, technology is above all a technical constraint. These materials are complements, so one material must not erode the other.¹ The task assigned to lawyers under a “law + technology” approach is thus to regulate the negative ramifications of technology while preserving the positive ones. The approach requires policymakers and regulators to study and understand the technology’s positive ramifications before regulating it. Under “law and technology,” the risk of unintentionally reducing these positive ramifications is much higher.²

Technology can only play a role in “law + technology” if legal rules do not hamper it. Darwin’s work helps understand what preserving technology entails. In his book On the Origin of Species, the father of modern biology concludes that animal species and varieties can only survive if they have unique characteristics they can put to good use in their environment. It follows that the natural or brutal change in the environment causes species extinction.³ The same is true if man’s hand changes the characteristics of these species.⁴

Darwin’s work introduces what will later be called “complexity science.”⁵ Complexity science is interested in how systems react to the context they create. The relationships between agents create a dynamic that changes the environment in which they evolve. The new environment impacts its agents, which modify their relationships, etc.

Complexity science is not well explored in the “law & technology” literature, although its teachings are fundamental.⁶ The related literature body has two main lessons for regulators acting in the digital space. First, one must be careful not to remove—by legal rule—what distinguishes one technology from another, for example, not to force a single point of access in blockchain governance or constrain deep learning’s reliance on activation functions.⁷ The changed technology will disappear in favor of others otherwise.⁸ A technology appears and remains among others only because it creates value in a singular way. Removing the element(s) that differentiate the technology from others impacts that value and thus makes it disappear. Second, one shall be cautious when changing the (legal, technical, etc.) technology environment. The technology shall remain in a position to exploit its singularities.

Let’s take three examples. A blockchain smart contract is immutable. It cannot be deleted, stopped, or changed.⁹ Immutability constrains the creator of the smart contract and the regulator, which is problematic when the smart contract automates an illegal transaction. In reaction, the draft version of Data Act Article 30 proposes implementing a “mechanism (…) to terminate the continued execution of transactions.”¹⁰ It would put smart contract immutability in check, thus challenging technology’s survival.¹¹ Immutability indeed differentiates smart contracts from other contractual methods; it creates value. The characteristic creates trust between the parties by preventing unilateral non-execution. It also lowers transaction costs related to monitoring and enforcement.¹² And it helps combat corruption by blocking malicious changes after one puts the smart contract on the network, etc. Users are unlikely to want to use a “stoppable smart contract” rather than another transactional means. This singular characteristic must therefore be regulated, but maintained.¹³

Similarly, blockchain immutability is problematic when courts identify past transactions as illegal, when a user sends a token to the wrong address, etc. But immutability serves the probity of the information on the blockchain. For example, if an AI system—that runs on top of a blockchain—malfunctions, the company operating the system cannot delete entries from the database to hide the reasons explaining the misbehavior.¹⁴ Here again, the same feature is the source of both negative and positive ramifications.

Last, one sees the duality of technology at a more general level. A facial recognition system can discriminate against minorities poorly represented in the database used to train the system using deep learning.¹⁵ But law enforcement can use facial recognition to identify human trafficking victims, in which case AI imperfections—if AI performs better than humans—shall be tolerated.¹⁶ Researchers also use deep learning systems in medicine to discover new pathologies, improve diagnoses¹⁷ and treatments.¹⁸ The same goes for metaverses and virtual reality, also used in medicine.¹⁹ Regulators shall consider the impact on positive ramifications instead of simply looking at a way to address the risks. The Darwinian take on regulating technology preserves these positive ramifications and thus forms the cornerstone of “law + technology.”