A Synthetic Theory of Law and Technology
39 Pages Posted: 14 Oct 2007
This Article outlines a synthetic theory of law and technology that could contribute to the development of legal analysis at the intersection of law and technology. The theory is "synthetic" as it is based upon a synthesis of instrumental and substantive theories of technology. Generally speaking, instrumental theories tend to treat technology as a neutral tool without examining its broader social, cultural, and political impacts. In contrast, substantive theories emphasize the ways in which technological systems can exert "control" over individuals, often without their knowledge, as well as the ways that technologies can have a substantive social, political, economic or other impact on society apart from a technology's initial intended use. A synthesis is necessary because each theory, standing alone, has disadvantages that reduce its potential for interfacing with legal analysis. Yet both theories and their accompanying bodies of literature have much to offer legal analysis in situations where technological change appears to threaten legally protected values and interests. Together, the two visions can be combined into a synthetic theory that presents a new view of the relationship between law and technology. Part I of this Article provides an overview of the literature associated with instrumental and substantive theories of technology.
Part II focuses on a discussion of how instrumental and substantive theories could help to generate a general theory of law and technology and their interaction. Part II also elaborates on the proposed synthetic theory of law and technology and illustrates how this theory would inform law and technology analysis by examining new surveillance technologies and post-September 11th legal changes involving state searches and privacy interests.
Keywords: law and technology, Internet law, privacy law, legal theory
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