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Law and technology: radio interview focuses on accelerating change

When we pray for "all sentient beings," does that include robots?

This is one of the fascinating questions I explored on a radio show--to be featured within a few weeks--on the interplay of law, medicine, ethics, and spirituality.

Here are my notes from the show.

LAW AND TECHNOLOGY

·         How has the law been changing in response to new technologies?

o       Let’s think about how the legal system changes. 

§         First, through legislation. New technology, new legislation. Think about cloning—and all the bills going trying to deal with cloning. 

§         Second, regulation by federal and state agencies. Think about all the regulations from Food and Drug Administration to deal with new medical devices. 

§         Third, and most common, through the courts. This is when judge decide cases, and apply existing legal rules to new situations. Think about privacy law, for example.

·         A few hundred years ago, about the only rule was that you couldn’t trespass on someone else’s property.

·         Along came the U.S. Constitution, which gave us the right to privacy, or as the Supreme Court put it, the “right to be let alone.”

·         Then we developed telephone wiretaps, electronic amplifiers for eaves-dropping, photographic and video surveillance, and computers to collect information. 

·         So courts have had to take the right to privacy and apply it to these different forms of intrusion through different cases.

·         Now, someone can capture on the street with their flip-phone. 

·         What are the major new technologies that have changed the law? In what ways?

o       Three areas:

§         The Internet. We literally have a different world than we had before the Internet, and the law has to change.

§         For example, people used to get upset about junk mail. Then with email, we suddenly had a problem with SPAM. In response, Congress passed the example, the federal anti-SPAM law. You may have noticed that after the law was passed, and started to get enforced, a lot of spam just dropped away.

o       A very important technology that is coming is artificial intelligence – Robots. There are a lot of questions that the law has not yet addressed. For example:

§         Do robots have rights?

§         Are robots conscious?

§         Can they carry weapons?

§         What if a robot changes its own programming and does damage? Who is responsible? The corporation that hired the programmer?

o       And then there is cloning. 

§         The question used to be, where does life begin?

§         Now, it’s: What do we do with our ability to manipulate life at its very inception?

§         Suppose despite the prohibition on therapeutic cloning, someone finds a way to make it happen. What are the rights of the cloned person

o       More and more, the law has to deal with new issues at the frontier of what it means to be human.

·         What are some examples of new laws due to the Internet?

o       The most obvious one that comes to mind is the federal anti-SPAM law. Companies that spam can face stiff penalties, and the Federal Trade Commission vigorously enforces the law.

§         The other obvious area is regulation of e-commerce. We have agreements at the bottom of every web page called Terms of Use, or Website Use Agreement. 

§         We have online Privacy Policies. And online disclaimers.

o       Sometimes existing law gets applied to very new situations that have arisen due to the Internet. For example, the 2009 lawsuit by a clothing designer based on a post on Twitter. The lawsuit was against Courtney Love for defamation, invasion of privacy and infliction of emotional distress. The designer claimed the Twitter post was "an extensive rant" on Twitter about how she was billed for custom clothing. Supposedly this was an “obsessive and delusional crusade to terrorize and destroy” someone through Tweets. The case is headed for discovery.

o       The “balloon boy” case is another example of using existing law to address injuries creating by new technology. The parents were charged with attempting to influence a public servant, and false reporting to the authorities. (Criminal mischief) There were also legal questions about abuse and neglect. The public cost was about $2 million, so there are also questions about being sued to pay back the city, the county.

o       The White House gate crashers – if they lied their way to get in, it could be false reporting to a federal official. (18 USC 1001 – punishable by fines or imprisonment up to 6 years).

·         How has privacy law changed as a result of all the new technologies that let us easily find out and distribute information about almost anyone?

o       We still have the 4th Amendment which protects us against unreasonable searches and seizures by the government.

o       But: we are subject to a lot of surveillance simply because of the prevalence of all the cameras out there. We have flip cams. You can Google anything and anybody. So there is law, but in another sense, we are seeing an almost complete erosion of privacy.

·         How have changes in medical technology, such as the ability to prolong life or do stem cell research, changed the law?

o       These kinds of developments raise profound legal and ethical questions. They provoke all sorts of writings from religious leaders, political groups, and thinkers. Legislators and courts often look to these other sources for guidance in moving the law forward.

o       For example, lawmakers have drawn a distinction between therapeutic cloning and reproductive cloning. 

§         Therapeutic cloning means using stem cells for research purposes. The law allows that under certain circumstances. 

§         Reproductive cloning means copying genetic material and putting it into an empty donor egg.

§         The UN tried to ban reproductive cloning of human beings, but what passed was a non-binding Declaration on Human Cloning that called for countries to ban forms of cloning that are contrary to human dignity. In the U.S., there is no federal law, and the law varies by state.

§         So law in this area is constantly evolving.

·         What kind of legal risks have affected doctors as a result of these new technologies to prolong lives or operate on injured patients that at one time wouldn’t have been possible?

o       The best example is physician-assisted suicide.

o       Technology can prolong life, but in many cases, also prolongs pain and a twilight zone between living and dying.

o       So we have had a lot of legal questions about who can ‘pull the plug,’ what are their rights and obligations, how do you find out what were the wishes of the person in the coma, who is responsible, and what are the legal implications if they get it wrong.

o       Dr Jack Kevorkian was known for advocating what he called the “right to die.” He would help terminally ill patients die peacefully, rather than suffering into their deaths.

§         Kevorkian maintained that what he was doing was compassionate.

§         Also, he had a device where the patients took the final step by pushing a button that delivered a deadly drug to them.

§         However, because he was actively involved in helping patients end their lives, he was charged with second-degree murder. He served 8 years and was released on parole in 2006.

·         What kind of legal changes have occurred as a result of new technologies that may provide benefits but bring other dangers, such as herbicides and pesticides?

o       Laws can be passed that prohibit new technologies, but this rarely works, because as we said, technology outpaces legislation.

o       Sometimes laws can be passed to make certain technologies prohibitively expensive, or to encourage safer technologies over more destructive ones.

§         Another way to regulate technology is to mandate open information for consumers. For example, the FDA is constantly going after companies that do not adhere to FDA labeling laws in their products.

§         In that case, it’s not just about making law, it’s also about enforcing laws already on the books.

·         What other technologies are likely to affect the law in the next five or ten years? How might they change it

o       I’ve already mentioned cloning and robotics. 

o       We will definitely be seeing laws regulating artificial intelligence as robots are considered more and more sentient. We already have the Verizon “android” and within a few years it will be considered very primitive. 

§         Plan on seeing robots involved in law-making too, by the way. We already use plenty of technology to forecast the probable results of different decisions.

o       Climate change is, of course, top of everyone’s list. Right now the world’s leaders are meeting in Copenhagen to see whether we can come up with a set of rules to help defuse the crisis.

·         What is the main way in which these laws get changed as a result of new technologies – by the legislature? By court cases and judges rulings? By community activists and political movements?

o       Sometimes law changes because forward-thinking people are looking to the future and creating new laws to deal with difficult situations that are about to emerge. 

o       More often, though, the law changes in response to crises or disasters that showcase how inadequate existing legal rules have been.

§         Climate change is a good example.

§         The problem is that technology changes too quickly for legal rules to catch up. We are now facing what is known as accelerating change—this means that the rate of technological change is itself increasing.

o       For people in the entertainment industry or any kind of business, the best practice is to have projects, programs, and especially agreements, reviewed by an attorney. That way they can have their intellectual property protected, and make sure their rights.


Michael H CohenMichael H Cohen
Founder
The Los Angeles / San Francisco / Bay Area-based Michael H Cohen Law Group provides healthcare legal and FDA legal & regulatory counsel to health & wellness practices and ventures, including health technology companies (medical devices to wearable health and nanotech), healthcare facilities (from medical centers to medical spas), and healthcare service providers (from physicians to psychologists).Our legal team offers expertise in corporate & transactional, healthcare regulatory & compliance, and healthcare litigation and dispute resolution, in cutting-edge areas such as anti-aging and functional medicine, telemedicine and m-health, and concierge medicine.Our Founder, attorney Michael H. Cohen, is an author, speaker on healthcare law and FDA law, and internationally-recognized thought leader in the trillion-dollar health & wellness industry.
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