How Cyberlaw can inform the legal discussions on Robotics

Last year, Ryan Calo wrote on the inherent problem of law always having to play catch up with technology. He takes the example of how over the past two decades we have seen jurisprudence evolve to understand and address the legal questions that the Internet and cyberspace posed. Most issues continue to remain unresolved in our legal imagination but we have formulated structured and clear principles about how one may approach them.  Calo however laments that in the time that took law to formulate these principles about the Internet, we are now faced with what he calls the next transformative technology, Robotics. He raises some interesting points, particularly on how the approaches in cyberlaw will be useful in addressing the various legal issues that are likely to arise from increased use of robotics technology in the future.

Calo draws an interesting parallel between the advent of cyberspace and that of Robotics. The debate on whether technology in robots should be open allowing anyone to tinker with it as opposed to being closed and proprietary, mirrors the concerns raised by Jonathan Zittrain in his book, ‘The Future of the Internet and how to stop it’ about how the generative nature of the Internet was being threatened by a trend towards technologies that cannot be easily modified by anyone except its proprietors. Much like the early days of the Internet, it is the hackers, hobbyists and artists whose imagination robotics has captured. Similarly, some of the legal challenges we are faced with or contemplate, with respect to robotics seem like an extension of those faced with the rise of the Internet. An increasing dimension to the already pervasive privacy issues is being added by artificially intelligent technologies like drones and surveillance will only get easier in the coming decades. Further, one of the trenchant ways in which jurists have viewed cyberspace has been through stretching the ‘space’ metaphor. Dan Hunter wrote a paper decrying the fact that ‘space’ metaphor about how we think of cyberspace had informed the normative question of how we should regulate cyberspace. Calo wonders whether in future we will use a similar line of reasoning to think about regulating social technology the same way we treat persons.

The significant and transformative way in which Robotics technologies differ from the already exiting technologies of cyberspace is through its embodied and physical element. Robots combine, in Calo’s words, the generative promiscuity of the data with the capacity to do physical harm. When we speak of product liability law, we usually speak of products which are tangible in nature. So far the law has struck a fine balance protecting proprietors of digital products via the economic loss rule, which excludes damages under tort law. Further, Third party internet intermediaries are afforded a safe harbour protection under many jurisdictions across the world. These protections, so far, have been viewed as necessary to facilitate innovation. However, as the physical element is added to the mix by driverless cars and robotic surgical systems, this delicate balance will likely unravel in the near future.

In his paper, Robotics and the Lessons of Cyberlaw, Calo emphasises on the experience of how the law has interacted with Internet over the past twenty years. Jurisprudence on cyberlaw is built largely around finding the appropriate metaphor. More often than not, the law and jurists seek assistance from regulations which already exist governing activities which can be most likened to the digital activity in question. Central to the legal philosophy governing the Internet is Lawrence Lessig’s statement that ‘code is law’ and works as regulatory tool by altering its architecture to influence human behaviour much like law. Lessig demonstrated how transformative technologies like the Internet alter the range of human experience so as to diminish the extent of control the law can exert on its own, and Calo argues that Robotics is the next transformative technology to which the law will need to align itself. He hypothesises that an extension of Lessig’s view on the importance of control through code, and continued reliance on metaphors and analogies as a legal tool to address new experiences that we come across through technology, will be significant lessons from cyberlaw as we start addressing legal issues arising from increased use of robotics.

The other important experience from cyberlaw that Calo touches upon is the culture of interdisciplinary collaboration that it has been characterised by. It has spurred lawyers and technologists alike to take pains to understand the disciplines of the other. As opposed to most examples of interdisciplinary studies which are motivated by an exercise in intellectual curiosity and comparative theory, here the interaction has been brought upon through a practical desire to solve actual problems. The engagement of technology and the impact on social theory by Robotics may be more profound than that brought about by the Internet. The spirit of interdisciplinary pragmatism, Calo believes, will be essential to how the law reacts to robotics.

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