Law in an Era of Smart Technology

Law in an Era of “Smart” Technology This page intentionally left blank Law in an Era of “Smart” Technology By Susan W. Brenner 1 1 Oxford University Press, Inc., publishes works that further Oxford University’s objective of excel- lence in research, scholarship, and education. Copyright © 2007 by Oxford University Press, Inc. Published by Oxford University Press, Inc. 198 Madison Avenue, New York, New York 10016 Oxford is a registered trademark of Oxford University Press Oceana is a registered trademark of Oxford University Press, Inc. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of Oxford University Press, Inc. Library of Congress Cataloging-in-Publication Data Brenner, Susan W., 1947- Law in an era of “smart” technology / By Susan W. Brenner. p. cm. Includes bibliographical references and index. ISBN 978-0-19-533348-0 (clothbound : alk. paper) 1. Technology and law. 2. Justice, Administration of—Technological innovations. 3. Technological innovations—Law and legislation. 4. Computers—Law and legislation 5. High technology industries—Law and legislation. I. Title. K487.T4B74 2007 344′.095—dc22 2007023638 Note to Readers: Th is publication is designed to provide accurate and authoritative information in regard to the sub- ject matter covered. It is based upon sources believed to be accurate and reliable and is intended to be current as of the time it was written. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Also, to confi rm that the information has not been aff ected or changed by recent developments, traditional legal research techniques should be used, including checking primary sources where appropriate. (Based on the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.) You may order this or any other Oxford University Press publication by visiting the Oxford University Press web site at www.oup.com Contents Chapter : Introduction . Chapter : Law and Technology: An Overview . Chapter : Law and Tool Technology . Chapter : Law and Machine Technology . Chapter : Law and Consumer Technology . Chapter : “Smart” Technology . Chapter : Law and “Smart” Technologies . Chapter : Implications . Index . This page intentionally left blank CHAPTER 1 Introduction In the twenty-fi rst century the technology revolution will move into the everyday, the small and the invisible. Th e impact of technology will increase ten-fold as it is imbedded in the fabric of everyday life.1 Phase Shift Somewhen, in the not-too-distant future, Anne comes home from work. As she turns into the driveway of the family home, the garage door opens automatically, the home having anticipated her arrival. She gets out of the car and walks through a door that has been unlocked for her and into the kitchen. As she enters, she calls out, “any messages”? Th e communication system that is an integral part of intelligent technology installed in the home responds: “Richard will be at least half an hour late, and Jennie is having dinner at her friend Sharon’s house.” Anne goes upstairs, to the bedroom she shares with her husband (Richard). Th e house has turned on lights so she can see her way, and has a hot shower waiting for her in the bathroom she and Richard share. She showers, dresses and comes down to set the table for the dinner she and Richard will share. Th e house has cooked the main dish—a casserole she left before she went to work. As Ann sets the table, the house reminds her that she and Richard are expected at a dinner party the following evening. Another somewhen, in the same not-too-distant future: Richard leaves home and drives to his offi ce. As he nears the parking garage, the gate opens for him to enter; his assigned parking place is empty and as he walks toward the elevator he will take to his offi ce, it arrives, ready to take him to his fl oor. Like the home he shares with Anne, the parking garage is equipped with embedded, intelligent technology 1 Alexandru Tugui, “Calm Technologies in a Multimedia World,” Ubiquity (March 23, 2004): 5, http:// www.acm.org/ubiquity/views/v5i4_tugui.html (quoting Mark Weiser). Law in an Era of “Smart” Technology 1 Chapter : Introduction that anticipates his arrival based on signals from sensors embedded in his vehicle. Intelligent technology in his offi ce receives those signals and advises the co- workers with whom Richard will be meeting that he has arrived and will be in his offi ce within a few minutes. Same somewhen: Richard walks into his offi ce and has a conversation with its intelligent technology. He asks about the meeting, and is told everyone is present and will be assembling in the meeting room in fi ft een minutes. Th e communication system in his offi ce tells him he has received four voicemails and twenty-fi ve emails; in response to Richard’s asking for details, it tells him whom each message is from and summarizes the content. Richard instructs the system to send a customized response to each message, telling each person he will respond in detail later. He also asks about, and is updated on, the status of several pending matters. A diff erent somewhen, in the rather-more-distant future: Anne leaves home on her way to work. She gets into her automated motor vehicle and instructs it to take her to an offi ce building on the far side of town, where she has an early meeting. As the vehicle complies, Anne uses the interactive technology installed in the vehicle to check her voicemails and emails and to communicate with her own, artifi cially intelligent offi ce. By the time the vehicle drops her off at the front of the building where her meeting will be held, she has dealt with several work- related matters, spoken to her daughter’s teacher and made the fi nal arrangements for a vacation she, Richard and their daughter will take the following month. An even more diff erent somewhen, in the probably-fairly-distant future: Richard gets up, breakfasts, interacts with the home technology on several domestic matters, showers, and dresses in comfortable clothes, aft er which he goes into the room he and Anne use as a home offi ce. Th ey each have a physical offi ce in a remote building they can use if their actual presence is required there, for some reason. For the most part, though, Anne and Richard, like most people whose work does not involve interacting with the physical environment, use their home offi ce if, indeed, that term is appropriate. In this somewhen, Anne and Richard, like most everyone, have a computer interface embedded in their brains.2 Th is interface allows them to communicate 2 For a detailed description of what this might involve, see Ramez Naam, More Th an Human (New York: Broadway Books, 2005), 202–207. 2 Law in an Era of “Smart” Technology Chapter : Introduction directly with anyone who has a similar implant; those with implants can communicate verbally, using words, and they can also transmit images, sounds, emotions, and even abstract ideas to each other.3 Th eir neural interfaces also allow them to communicate directly with computer systems that facilitate their interac- tions with other human beings by providing data, capturing the essence of what is communicated, and storing that information for future reference. Th e interfaces eliminate the need for face-to-face meetings, for the most part. Richard can sit in his home offi ce and interact with anyone, anywhere in the world, as long as they have a compatible interface. Indeed, Richard could sit anywhere he liked and do this, but he tends to prefer using a dedicated space that lets him concentrate on the business matters at hand. Anne feels the same way. A very, very diff erent somewhen, in the presumably much-moredistant future: Humans have, in varying degrees, become cyborgs—a fusion of human biology and machine technology.4 Th e “Enhanced,” which is what those who have taken this route call themselves,5 are stronger, smarter and more attractive (in an evolved way) than the few, stubborn “Naturals” who refuse machine enhancements.6 Th e Enhanced are also functionally immortal.7 Th ey, though, are not the only intelligent citizens of this alien future; these fundamentally biological intelligences share this world with pure machine intelligences, conscious, self-aware nonbiological entities that are, for all intents and purposes, the equal of Enhanced humans in intelligence, creativity and emotional capacity.8 Th e Singularity—the point at which technology irreversibly alters human life—has arrived.9 We can reasonably assume that some variants of these not-too-distant and rather- more-distant futures will come to pass based on technologies already in existence and those in development. No one knows if, or when, the Singularity will arrive; no one knows what the future of machine intelligence, and our relationship with it, will be. 3 See id. 4 See Joel Garreau, Radical Evolution (New York: Doubleday, 2004), 63. “Cyborg” is a human body that has been “altered and augmented” with machine technology. 5 See id. at 7–8. 6 See id. at 7–8. 7 See Ray Kurzweil, Th e Singularity Is Near (New York: Viking, 2005), 324–325.

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