The Fundamental Right to Technology
47 Hofstra Law Review 445 (2020)
University of Hong Kong Faculty of Law Research Paper No. 2020/042
37 Pages Posted: 14 Aug 2020 Last revised: 17 Aug 2020
Date Written: June 26, 2020
Waves of technological progress in recent decades have tremendously improved quality of life. Meanwhile, concerns about technology-driven injustices, such as unfair distribution of wealth and racial discrimination, have deepened. Experts have cautioned that new technologies could have potentially devastating effects, claiming for instance that artificial intelligence may lead to World War III. We are at a crossroads, and how we harness technology now will determine the future of humanity.
This Article presents a thought experiment, proposing that a new fundamental right to technology be recognized under the U.S. Constitution. Given that technology is of fundamental importance to human dignity and equality, this new constitutional right is designed to promote equitable distribution of technological benefits and to prevent harmful applications of technologies. This proposal is made with the hope that other countries may also recognize this fundamental right in constitutional law, ensuring global protection of the right to technology.
Based on an overview of fundamental rights protection under the U.S. Constitution, the Article first discusses how the U.S. Supreme Court has developed a liberal approach to identifying fundamental rights not enumerated by the Constitution. It then applies this liberal approach to a consideration of why the right to technology should be deemed an un-enumerated fundamental right. This Article further canvasses how this new fundamental right would protect collective interests in technological benefits. It also explores how to resolve the potential tension between the Intellectual Property Clause and protection of the right to technology.
Keywords: Fundamental Right, Technology, Justice, Intellectual Property
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