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Laws and Ethics Can’t Keep Pace with Technology

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It boggles the mind trying to keep up:

Employers can get into legal trouble if they ask interviewees about their religion, sexual preference, or political affiliation. Yet they can use social media to filter out job applicants based on their beliefs, looks, and habits. Laws forbid lenders from discriminating on the basis of race, gender, and sexuality. Yet they can refuse to give a loan to people whose Facebook friends have bad payment histories, if their work histories on LinkedIn don’t match their bios on Facebook, or if a computer algorithm judges them to be socially undesirable.

These regulatory gaps exist because laws have not kept up with advances in technology. The gaps are getting wider as technology advances ever more rapidly. And it’s not just in employment and lending—the same is happening in every domain that technology touches.

“That is how it must be, because law is, at its best and most legitimate—in the words of Gandhi—‘codified ethics,’ ” says Preeta Bansal, a former general counsel in the White House. She explains that effective laws and standards of ethics are guidelines accepted by members of a society, and that these require the development of a social consensus.

Take the development of copyright laws, which followed the creation of the printing press. When first introduced in the 1400s, the printing press was disruptive to political and religious elites because it allowed knowledge to spread and experiments to be shared. It helped spur the decline of the Holy Roman Empire, through the spread of Protestant writings; the rise of nationalism and nation-states, due to rising cultural self-awareness; and eventually the Renaissance. Debates about the ownership of ideas raged for about 300 years before the first statutes were enacted by Great Britain.

Similarly, the steam engine, the mass production of steel, and the building of railroads in the 18th and 19th centuries led to the development of intangible property rights and contract law. These were based on cases involving property over track, tort liability for damage to cattle and employees, and eminent domain (the power of the state to forcibly acquire land for public utility).

Our laws and ethical practices have evolved over centuries. Today, technology is on an exponential curve and is touching practically everyone—everywhere. Changes of a magnitude that once took centuries now happen in decades, sometimes in years. Not long ago, Facebook was a dorm-room dating site, mobile phones were for the ultra-rich, drones were multimillion-dollar war machines, and supercomputers were for secret government research. Today, hobbyists can build drones and poor villagers in India access Facebook accounts on smartphones that have more computing power than the Cray 2—a supercomputer that in 1985 cost $17.5 million and weighed 2,500 kilograms. A full human genome sequence, which cost $100 million in 2002, today can be done for $1,000—and might cost less than a cup of coffee by 2020.

We haven’t come to grips with what is ethical, let alone with what the laws should be, in relation to technologies such as social media. Consider the question of privacy. Our laws date back to the late 19th century, when newspapers first started publishing personal information and Boston lawyer Samuel Warren objected to social gossip published about his family. This led his law partner, future U.S. Supreme Court Justice Louis Brandeis, to write the law review article “The Right of Privacy.” Their idea that there exists a right to be left alone, as there is a right to private property, became, arguably, the most famous law review article ever and laid the foundation of American privacy law.

The gaps in privacy laws have grown exponentially since then.

There is a public outcry today—as there should be—about NSA surveillance, but the breadth of that surveillance pales in comparison to the data that Google, Apple, Facebook, and legions of app developers are collecting. Our smartphones track our movements and habits. Our Web searches reveal our thoughts. With the wearable devices and medical sensors that are being connected to our smartphones, information about our physiology and health is also coming into the public domain. Where do we draw the line on what is legal—and ethical?

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