How The Law Deals With Emerging Technology: Not Well

The intersection of law and emerging technology is at the crest of the wave of precedent and offers an area of the law that is anything but static. Let’s ride the wave together.

Ed. note: Please welcome Eric S. Crusius to Above the Law. His column will focus on the legal issues surrounding emerging technologies.

Imagine the judge deciding your divorce did not know what marriage was prior to hearing your case or the jury rendering a verdict on a car accident personal injury case you brought had never seen a car before. That is the reality many lawyers face (including me) when trying to explain emerging technologies (and even some more well established technologies) to judges and juries. This, of course, leads to inconsistent decisions around the country and a lack of legal certainty that court systems always strive to achieve. Can you buy a competitor’s trademark when buying Google AdWords? Perhaps. If you post an anonymous negative review on Yelp!, can the business owner find out who you are? Possibly. Can the police force you to unlock your iPhone with your fingerprint? Probably.

As technology evolves more quickly, it is inevitable that legal issues will continue to crop up that deal with these issues. My hope is that this column will not only bring some unique cases to the forefront, but also open up a healthy debate regarding the ramifications of these new technologies, educate those not familiar with them, and give attorneys practice tips in the process (this is where it would be wise for me to insert “anything I write in the future for ATL should not be taken as legal advice”). One such issue is an unintended consequence of the iPhone’s Touch ID in criminal cases.

I was recently on Fox News debating whether police should be able to force suspects to unlock their cell phones with their fingerprints. The debate came from a case decided in Virginia in which a defendant was not required to reveal his iPhone passcode, but was being forced to unlock it with his finger. Crim Law 101 dictates that as long as the police have a warrant, police should be allowed to do so because it is akin to drawing blood, whereas revealing a passcode is like giving testimony (or more specifically, using your brain to piece together thoughts) and that’s what the court held here. When viewing the issue more holistically in light of the new technology offered by the Touch ID, I think this a cramped and outdated view that reveals how short the law falls when Courts try to force new technology into tangentially related precedent. As I mentioned during the debate, a healthy argument can be advanced that choosing a particular finger and method as to how the finger is saved (did you use more of the middle of the finger or the side when saving the print to the phone?) could be akin to remembering and entering a passcode. Also, drawing blood and getting fingerprinted requires no effort or thought by a Defendant, whereas unlocking a phone with the correct part of the correct finger does. Had the court considered these issues, perhaps the ruling would have been different.

Another issue I have been watching closely is the myriad of privacy issues that come up when technology companies collect or hold onto information without telling their customers (or doing so in an inadequate fashion). Remember when it was revealed that Apple was keeping location data of iPhone customers? Since that time, The Washington Post revealed that Verizon and AT&T have been tracking their customers’ web browsing history with “super cookies.” Sadly these are not the types of cookies that would make the Cookie Monster feel gluttonous, but instead an efficient way for others to track your web behavior to more effectively sell you stuff with more targeted ads (or for more sinister reasons) that can’t be turned off. This type of tracking, which, at best, was done with insufficient warning, may be illegal. AT&T has since ended the practice and Verizon has backtracked a bit and is now allowing customers to opt-out. The question is how many customers will be educated enough about the issue and have the time to do so.

In the end, the intersection of law and emerging technology (and even older technology that is maturing) is at the crest of the wave of precedent and offers an area of the law that is anything but static (contrasting, for instance, contracts or personal injury for the most part). Let’s ride the wave together and see where it takes us (hopefully onto a warm sunny beach with an alcoholic beverage).


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Eric Crusius, a native New Yorker, is a Partner with Fed Nexus Law in Tysons Corner, Virginia, where he concentrates in government contracts, technology issues, and complex commercial litigation. He has appeared on radio and TV and is the author of numerous articles and blog posts, some of which can be found using “The Google.” He can be reached at EricCrusiusATL@gmail.com.

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