The Pacing Problem: The Gap Between Emerging Technology and the Law
I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times.
Over 200 years ago, when Thomas Jefferson wrote those words in a letter to Samuel Kercheval, he wasn’t anticipating how fast technology would change and the struggles the legal system would face in attempting to keep up with constant advancements.
Today, technology grows at an exponential rate while laws adapt incrementally, leaving a gap between changes in society and legislation. The chasm between the two is known as the pacing problem and creates both advantages and disadvantages. The tech world can burgeon in a somewhat unregulated landscape. However, because policymakers can’t keep up with, or anticipate, social changes that come with advancing technology, they can’t develop laws fast enough to protect the rights and safety of citizens.
Laws Trying to Catch Up
Technological advancements in devices and software seem to come about every day, changing the way people interact with others. With various applications and social media platforms such as WhatsApp, Facebook, and Snapchat, individuals can instantly share photos and videos of their lives with people all over the world.
Although communicating with others has gotten easier, these interactions present legal challenges for lawmakers. How do they regulate communication and prevent people from using technology in ways that could harm others, and how quickly can they do it?
Looking at recent updates to state laws, changes seem to be happening at a snail’s pace (compared to updates in technology). For instance, camera phones and texting have been around since the early 2000s. For years, people have been using this technology to send private messages to one another, some of which might include explicit photos and/or videos. These days, with so many people owning cellphones, a person could randomly or accidentally text a number and send a nude image to someone who didn’t ask for it. And while this technology has been around for decades, it wasn’t until September of 2019 that Texas policymakers enacted a law that made it illegal for people to send unsolicited explicit photos and/or videos to others.
Challenges Faced by Lawmakers
The hurdles that present themselves to lawmakers are plenty. One is that they can’t anticipate where technology will take society next. What developers create is limited only by the imagination, and the imagination of users and developers is seemingly endless. In today’s world, it appears that if someone can dream it, someone else can create it, taking technology to unexpected places.
Another challenge lawmakers face is figuring out how to develop legislation without infringing on citizens’ constitutional rights. For instance, when an altered video surfaced on social media seemingly showing House Speaker Nancy Pelosi slurring her words as if she were drunk, officials asked those in charge of the platforms to take it down. The executives did not, citing the First Amendment protection of free speech. Rather than removing the video, they issued a warning to users about the possibility of doctored content making its way through the platform.
Similarly, many states have enacted revenge porn laws that prohibit people from disseminating explicit photos and/or videos of others to get the person in the images to comply with specific demands. Individuals charged and convicted under these statutes have challenged them as being unconstitutional and have taken their cases to appeals courts.
Come Back Next Week
As technology continues to build upon itself, bringing users the software and devices they’re demanding, the law may continue to struggle to keep pace. Recognizing the potential problems of failing to catch up with technology, state and federal governments are beginning to take measures to anticipate potential issues and develop committees and legislation to keep up with “the progress of the human mind.” Check out our blog next week to read about ways lawmakers are attempting to stay on top of one of the more recent technological advancements.