Dragging Lawmakers into the Digital Age

This article was initially published in Doublethink magazine.

Lawmakers are desperately trying to catch up with the newest technologies, because existing laws are no longer adequate to cover how we interact and transact in our online communities. Privacy and copyright laws are lagging behind and courts have to settle disputes with no legal precedents. Keep in mind that in the virtual world, just like in the real one, what could be legal is not necessarily ethical. The Law’s struggle to evolve with technology is manifested regularly on the news with stories ranging from the absurd to the questionable. In March 2012, as a cure for the dangerous distractions of mobile phones, texting while walking was banned in a New Jersey town and police announced that they’ll issue $85 jaywalking tickets to those who’re caught.

Should teachers and students be Facebook friends? Could there be any academic benefits in them doing so? Not according to Missouri legislators who in 2011 passed a law (currently contested) that barred teachers from using websites where they can have “exclusive access” to students of 18 years old or younger, in order to rule out any opportunities for “sexual misconduct.”

Film Still from the Movie L’eclisse, 1962. (via IWDRM.)

If you face online defamation or cyber bullying, and your name is sullied on social networks, who do you turn to and what are your legal rights? When you die, should your Facebook profile be part of your digital property, to which your family and friends could have full access? How about your email account? A legislation has already been passed in Oklahoma to allow handing over social media accounts to the loved ones of the deceased, in light of similar situations to that of Karen Williams. She’s a heartbroken mother who, after her young son’s death, sued Facebook to grant her full access to his account so she’d learn more about her son from his posts, comments and “likes.” Facebook’s policy (once notified that someone has passed away) is to memorialize their account, so their loved ones can leave messages in remembrance, i.e. deny login access unless there’s a prior consent. One of the legislators who approved the legislation that requires Facebook to allow access, defended it as passing on “shoeboxes with photos.” So far other legislators have been slow to contemplate this issue.

Governments pulling archaic laws into the information age create embarrassing fiascos. In France, the so-called elections gag or elections silence law, in effect since 1977, orders a nationwide media blackout which theoretically includes social media websites. In other words, it’s illegal to transmit or broadcast any elections results ahead of the close of the polls. Those who break the law are threatened with a fine of 75,000 euros. Of course, in a world of social networking, an online world where there’re no national borders, it’s practically impossible to attempt to enforce such a law. Facebook members, tweeters and bloggers, who could be in France or elsewhere, on their smartphones and computers leaked Sarkozy vs. Hollande election results of 2012 before the official results were announced. Tweets and Facebook updates made a mockery of the elections gag law and playfully revealed the results with amusing nicknames for the French presidential hopefuls. Their jibes portrayed a competition between Gouda and Goulash. Hollande was referred to as Gouda, the famous Dutch cheese versus Goulash, a Hungarian meat stew dish from the country of origin of Sarkozy’s father.

The same law is also on the books in Canada and anyone accused of transgressing that law faces a fine of up to CA$25,000. The Supreme Court of Canada upheld the 1938 law as late as 2007. Elections Canada unsuccessfully tried to enforce the media blackout for many years. In defiance, during the 2011 Canadian Federal Elections, a concerted campaign, a “tweet-in,” to break the law was staged by Canadians. The country’s electoral agency found monitoring social media sites to be an impossible task. Finally in January 2012, it was announced that the outdated section of the Canada Elections Act was to be scrapped. Canadian minister Tim Uppal tweeted:

“Our government is committed to bringing Canadian elections into the 21st century by getting rid of this dated and unenforceable law.”

Most of us realize that in every era, technology prompts us to raise new questions. But as technology moves faster, it’s apparent that there’s a significantly growing time lag between society’s acquisition of the latest innovations and lawmakers inquiring about their legal ramifications. The current legal system is handling an avalanche of issues for which legal solutions of the twentieth century cannot be applied. On the technology adoption curve, rather than crossing the legal questions phase ahead or along with the introduction of new technologies or during engagement from early adopters, lawmakers’ questions are raised long after wide-scale adoption, often with a gap of several years.

This article is part of a series on the question whether technology is moving too fast for humans: