Does Technology Drive Law? The Dilemma of Technological Exceptionalism in Cyberlaw
Journal of Law, Technology & Policy (Fall 2018)
37 Pages Posted: 8 Jun 2017 Last revised: 21 Oct 2018
Date Written: June 1, 2017
Seemingly plagued by newness, the law, it is often claimed, cannot keep up with new technology. Digital technologies have only reinforced the legitimacy of this now well-established idiom. The sentiment has gone unchecked for decades, even in light of social and historical research that reveals the cultural nature of technology. In the field of law and technology (cyberlaw), the theory of technological exceptionalism is used to measure whether new technologies are transformative enough to uproot existing legal foundations. This article is an attempt to disconfirm technological exceptionalism as a viable theory for cyberlaw research and policymaking by analyzing a number of information and communication technologies often labeled “exceptional,” including the printing press, the internet, photographic cameras, computers, and drones. If technologies can be exceptional - if their attributes drive social change and laws - the same linear pattern should appear across cultures where the technology is introduced: a technology enters society and allows for certain activities that place significant strains on social orders, existing law and legal concepts are applied but fall short, and necessary changes are made to account for the new technological capabilities. Because the theory of technological exceptionalism does not hold up - because the story of law and technological change is much more varied, messy, and political - it should be discarded and new theories of and approaches to law and technological change, such as the legal construction of technology, should be pursued.
Keywords: cyberlaw, emerging technology, technology policy
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