The Law Yet to Be Written

Yesterday, J (Han) Somsen of the University of Tilburg, who is known for his work with TILT or the Tilburg Institute for Law, Technology, and Society, which focuses on "ICT, biotechnology, and other technologies . . . in the contexts of important domains of the developing knowledge society, such as e-government, e-commerce, e-health, ICT regulation, biotechnology and nanotechnology, privacy, identity management, e-signatures, biometrics, cybercrime, security, intellectual property rights, citizenship and governance, globalisation, Europeanisation, and ethics." As the institute's website explains, such research features "the interaction between legal, public administration and ethics experts, between law, regulation, and governance, and between legal, technical, and social perspectives."

"Regulating Today for Tomorrow's New Technologies: The Challenge of Connecting Regulation to Technological Realities" discussed the challenges of attempting to create laws for technologies whose risks and benefits might be unknown. By following a liability model that makes uncertainty the chief metric to determine possible penalties, Somsen argued that even nanotechnologies could be regulated. As Somsen pointed out, it was important to anticipate the possibility that lawmaking might be widely ignored, as in the case of peer-to-peer file-sharing. Psychology professor Elizabeth Loftus asked why he thought the "name and shame" policies emphasized by transparency advocates would be ineffective. Somson argued that in an environment in which technologies could be whipped up in one's garage it was hard for stakeholders not to pursue their competitive advantage. Others in the audience who were fond of more libertarian models of collective governance also seemed unhappy with Somsen's insistance that scientific decision-making and administrative judgment might be more important to defend in situations where the uncertainty involved made it difficult for parties to reach a consensus.

Update: Ted Striphas has been following a similar line of thought over on Differences and Repetitions in a piece on "Where the Cylons will come from." Check it out!