Any new technology that gains universal application changes the existing world. The reconfiguration occurs imperceptibly but thoroughly. But in this new reality, how should the rule of law, values essential to the civil society and human rights be protected?
A new economic reality functioning in cyberspace has arisen before our very eyes. Human activity, both positive and negative, is moving to the virtual arena that functions above and beyond state borders. Consequently we must develop the skill to adapt familiar legal institutions to this new reality.
The interdisciplinary New Technologies practice has functioned at our law firm for several years. The lawyers on the team share a passion for examining technical issues and their influence on the possibility of effectively protecting the rights of citizens and the civil society—and a belief that lawyers must raise their awareness of new technologies.
A time of technological revolution
Innovation is a keyword today organising social and economic life. Governments and enterprises create innovation strategies. Start-ups attract unprecedented attention. In the information buzz it is easy to lose sight of the deeper meaning of the ongoing transformation.
Technologies fundamentally change us. They are not socially, economically or culturally neutral. Considering the pace and scale of changes, reflection on new technologies remains inadequate. When we abandon deep reflection, we expose ourselves to the risk that many changes will pass us by unnoticed, depriving us of the opportunity of responding to them.
As lawyers, we regard it as particularly vital to properly grasp the interrelationship between law and technology. We know that in the years ahead, the law faces the huge challenges of regulating artificial intelligence, blockchain, and genetic engineering. This doesn’t mean the simple regulation of a new field of reality. Many new technologies can fundamentally alter the paradigms that form the foundation for contemporary legal systems. They can change the meaning of law, how it is created and enforced. How the legal profession is practised will also unavoidably change. Therefore we lawyers will also have to change.
Law constantly chasing reality
The interrelationship between law and technologies is often dismissed with the claim that the law cannot keep up with reality. But there is an essential truth lurking in this statement. More and more aspects of reality escape colonisation by the law.
We have grown accustomed to living in a world in which the great majority of our fields of activity are subject to rules sanctioned by traditional sources for creation of law. This may generate frustration but also provides a sense of certainty, stability and control over reality. By giving ground to new technologies, we begin to lose that control.
The point is not that there are no rules at all in new areas of reality. But the rules are created differently then we have grown used to. The most important rules for functioning of the internet, continuing to shape life online, were not created by any legislature in the traditional sense, holding democratic legitimacy for creating law. Nor were these rules the subject of any democratic public debate.
New areas of reality highlight the growing importance of technical standards and instruments of “soft law” like guidelines, recommendations and best practices. It appears to us crucial that lawyers become aware of this process and quickly begin to take an active part in alternative lawmaking processes.
Progressive complication of the system and internal contradictions
Technological progress is accompanied by the growing complexity of the legal system. Every new field will sooner or later become the subject of regulations, whether enacted traditionally or adopted through an alternative method of law creation. Thirty years ago there were no regulations governing the internet. Twenty years ago there were only rudimentary provisions governing electronic payment services—a field now controlled by dozens of acts and hundreds of provisions of law.
A consequence is a growing number of interdependencies as well as conflicts between individual elements of the legal system. Regulations drafted without regard for the broader context lead to internal inconsistencies within the system. No doubt such situations will only grow increasingly common.
A system riddled with internal inconsistencies cannot ensure a sense of legal certainty or justice. This makes legal services increasingly expensive and inefficient. Resolution of judicial disputes will be increasingly time-consuming and require more involvement of expensive experts. In the short term this situation seems attractive for lawyers. But over the longer term, it is highly disadvantageous for the society and the economy. More than ever, legal assistance may become accessible only for the few.
We thus face the question of the model for further development of the legal system. The existing model has generally led to creation of successive regulations in reaction to the development of new technologies. This leads to further expansion and complication of the legal system, making it increasingly dense and non-transparent. This threatens a loss of control over the totality of the system and an increase in social frustration generated by the lack of transparency in the system of laws.
This makes it urgent to take a creative effort toward developing alternative solutions. A departure from the existing paradigm under which the law must regulate in detail every new field of reality may come into play, as well as the development of tools (e.g. based on artificial intelligence) enabling more effective identification of inconsistencies within the system.
Challenge 1: blockchain
Blockchain has the potential to create a truly global space for exchange of goods and services with an architecture that prohibits the presence of a sovereign. This is because blockchain is a distributed register maintained by independent entities spread all over the globe, over which, as a rule, no one exerts control.
It may be said that what happens in blockchain occurs both everywhere and nowhere. We cannot point to any specific legal order governing particular actions or transactions playing out in this space. And there is more and more activity there. At the time we are writing this text, the total capitalisation of crypto-assets which are the subject of trading on public blockchains is estimated at about USD 100 billion. Admittedly, this is still not much compared to the value of assets traded within more traditional systems of economic exchange, but here the pace of growth counts more than the value alone. This applies to both the rate of growth in value of crypto-assets and the rate of growth of blockchain technology and its various applications.
In this context, the rapid growth of smart contracts must also be mentioned. This concept refers to legal relations governed not by a traditional contract drafted in natural language, but by a contract taking the form of computer code. Such a contract may be concluded and executed automatically. Solutions based on smart contracts are commonly used in blockchain.
Blockchain raises many challenges for the traditional legal system. Guarantees of safety and justice must be created in this “new jurisdiction” where code is law. Here lawyers have a vital role to play. But to rise to this challenge, they will have to cast aside many of their existing habits and acquire entirely new skills.
Challenge 2: autonomous algorithms
Algorithms are already involved in many decision-making processes. They process vast quantities of data and make decisions at a speed that cannot be matched by humans. Along with the growth of technology, they are increasing their degree of autonomy. And this is what generates the most challenges for the legal system.
The logic of decision-making by autonomous algorithms is often opaque or misunderstood by people. Nonetheless, because of the efficiency of these algorithms, we are willing to cede to them control over many areas of life. Algorithms are already evaluating creditworthiness and taking investment decisions. In the near future we will give them control over transportation, logistics services, and even healthcare.
As a new factor or agent contributing to creation of our reality, algorithms may become a kind of entity vested with rights and obligations. Their actions cannot be clearly ascribed to specific persons. Even the creators of autonomous algorithms are incapable of predicting their logic or behaviour.
Within the next few years, the legal system will have to address this phenomenon. It does not seem that the traditional approach involving identification of the human agent tied to an autonomous algorithm and bearing liability for its action will work. We must seek non-standard solutions that reflect the nature of new agents in our reality.
Challenge 3: cybercrime
Although we learn about new cyber offences nearly every day, we are still not wholly aware of the importance of this phenomenon. Cybercrime clearly reveals the impotence of the traditional legal system in the era of new technologies. The detection rate for cyber offences remains negligible. A huge percentage of investigations are discontinued because of failure to identify the perpetrators.
This is due to numerous factors. First, cybercrime is generally international in scope, requiring coordinated action by law enforcement authorities from multiple jurisdictions. But in many such cases the system of international legal assistance is highly inefficient, requiring victims of cyber offences to incur high legal costs with no guarantee of success. Second, the battle against cybercrime requires highly specialised knowledge and the supply of appropriate specialists is limited. This translates into high costs for preparing evidence and expert analyses and drags out the length of the proceedings.
The low detection rate for cyber offences and the growing number of helpless victims left to their own devices represents civilisational and legal regression. Here too there is an urgent need for paradigm change and a new way of acting, as traditional methods are failing and there are no prospects for improvement in the near future. Without a new approach, we are at risk of a growing sense of anarchy and even a retreat from the use of new technologies.
Challenge 4: lawyers in a new reality
We anticipate that automated solutions will provide support for us in legal practice to a much greater extent than is now the case. This will make it easier for us to identify the appropriate legal standard and properly apply it to the given state of facts. Perhaps this process will soon occur to a large degree without the involvement of lawyers. This will change the essence of our profession.
This will emphasise the key skill of decoding the deeper, humanistic meaning of reality. It is in this process that we perceive the essence of the legal profession in the future. It is only thanks to a humanistic perspective that we will be in a position to regulate new aspects of reality in a manner that preserves human dignity and justice. Only a humanistic perspective will enable us to take a holistic view of reality and identify the meaning and significance of increasingly complex legal norms.
Teaching these skills will undoubtedly require changes in legal education. Assimilation of law by rote memorisation will play a smaller and smaller role in the process, as it is a waste of energy when machines can identify the relevant regulations. We should place a greater stress on processes that teach lawyers to understand reality, stir intellectual curiosity, and foster a humanistic perspective on the world. The education process should also develop the knowledge and skills necessary to understand the technical aspects of the functioning of new technologies.
In the reality that surrounds us, it is our professional responsibility to foster and maintain our fundamental values, including human dignity and justice. We have traditionally assumed that the threats to these values emerge primarily from oppressive political systems. But dynamic growth of technology has generated an additional source of threats, which left to itself can lead to creation of a dehumanised reality.
That is why we as lawyers must pay increasing attention to new technologies. Meeting the challenges which technology poses for society, culture and policy requires collective effort by the legal community aimed at developing new skills among lawyers, and a new approach to practice of the legal profession.
Tomasz Wardyński, Krzysztof Wojdyło