Gary Marchant is Regent’s Professor and the Lincoln Professor of Emerging Technologies, Law and Ethics at the Sandra Day O’Connor College of Law at Arizona State University. He is also Director of the Program on Governance of Emerging Technologies at the ASU Center for Law, Science and Innovation, Professor of Life Sciences, and Distinguished Sustainability Scientist in the Global Institute of Sustainability, all at ASU. Prior to joining the ASU faculty in 1999, he was a partner in the Washington, D.C. office of the law firm Kirkland & Ellis where his practice focused on regulatory and science-law matters.
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Gary Marchant has thought a lot about the technologies that have changed how we do things in the 21st century. As a researcher, he investigates the ways in which the technologies we use every day affect the courts. For most of history, Gary told our audience at ELM16, technology progressed gradually. Major developments like the automobile and the airplane were invented long before most people had access to them. As the population slowly began to integrate new technologies into their lives, the courts had time to adjust to the changes. Today, that’s no longer true.
We are now living in a period of unprecedented rapid technological change, Gary explains. When a new consumer technology is introduced, user adoption proceeds quickly. With many technologies, most of the population acquires them within a few months and they quickly become part of their regular routine. These products change the way we live our lives, interact, and conduct business.
As a result, the date captured and generated by these devices is frequently offered into evidence in court cases. This raises serious questions of admissibility, privacy, and even juror understanding. Courts are now frequently put in the position of generating rulings on privacy, security, and other aspects of technology, which amount to setting policy long before lawmakers have had a chance to discuss the ramifications or amend laws to account for the new challenges.
Because there is no comprehensive national policy in place to deal with these issues, each one must be argued on a case-by-case basis in each jurisdiction. Some examples of technological impact on the court system include:
GPS evidence – Location data can be used by police to track or reconstruct the whereabouts of suspects, raising issues around the legality of their access to this sensitive information. GPS records have also been introduced in divorce cases and anti-trust investigations to show that parties have had suspicious meetings that may indicate culpability.
Camera technology – Images captured by cameras reside in a legal gray area when they result from newly-adopted products. Police body cameras and high-altitude imaging of cities from airplanes, which allow authorities to see where, for example, a particular vehicle traveled over a period of time, have been contested on the basis of invasion of privacy. And as drones become more popular, the courts will need to address the legality of capturing images that show activity occurring on private property when it would not have been visible from the ground.
Biological and medical innovations – Functional MRI imaging is capable of showing brain activity that some say can indicate whether the subject is lying or telling the truth, or whether they have racist attitudes. Courts face questions of whether this information can be used as evidence in court cases. Similar questions arise out of advanced technology that can identify specific microbes in a person’s body, which can indicate whether they recently traveled to a particular location.
Near the end of his fascinating talk, Gary shared a favorite quote from Felix Frankfurter. “If facts are changing, law cannot be static.” In the face of such a rapid pace of change, a static way of training law students and running the courts will not suffice. We have to begin asking, and continue considering, how we can adjust for changing technology and take these issues into account before they come before the court.
Every industry is being transformed by rapid technological change. Legal will not be exempt.