By Julia Griffith
The law and technology are always going head-to-head. Technology seems to be advancing at a rate that the law simply cannot keep up with. It has been estimated that the law is at least five years behind developing a technology. This estimation probably does, and should, leave most people feeling uneasy. Though new technologies make life easier in many ways, many issues arise in the legal community in an attempt to keep up. There are several potential reasons for this reality, one of which is that it is difficult, and many times impossible, for lawyers and lawmakers to predict new technologies before they emerge. Thus, the law is forced to play catch up after the fact. Cases are decided and laws are passed at a rapid pace, and there is no way of knowing how long they will survive. For example, a definition of how the internet works as recent as 2007 in the case Perfect 20 v. Google is already completely out of date.
The legal community as a whole is, in many ways, outdated. Many large law firms still keep only hard copies of client files, versus the alternative of using a data management system. While storing confidential client information as data may be more secure than hard files, lawyers need to be aware of the dangers of data management systems as well. Perhaps even more concerning than the lawyers who are ignorant to technological advances are the individuals making our laws that are not familiar with some of the most basic recent advances in technology. Take the Congressional hearings of Facebook’s CEO Mark Zuckerberg. Many of the Senate and House of Representative members were confused about how Facebook works, particularly with the sale of data. Their lack of knowledge certainly hindered their ability to gain all the information they were looking for. This was a striking example of just how out of touch our elected representatives are on some of the most basic forms of technology.
A prime example of this issue can be found in the discovery process during litigation. In recent years, discovery has become more focused than ever on data collection. Because of this, search warrants are often issued that is far more broad than necessary and do not specify the exact evidence police are searching for. This clearly brings about Constitutional issues and the authorities may be able to obtain more information than they have a right to in a particular case. This is just one issue that may be solved by the legal community gaining more knowledge of new technological advancements. In addition to the discovery phase of litigation, the changing technology affects many other areas law such as intellectual property, our own personal privacy, how crimes are committed, and how confidential client data is stored.
One attempt to combat the lack of knowledge in the legal community has appeared in the ABA Rules. Model ABA Rule 1.1 requires lawyers to be “competent” in their representation of their clients. Comment 8 to this rule makes clear that lawyers, in maintaining the knowledge and skill of a lawyer, must be privy to changes in technology. The lawyer must have substantive knowledge of and to be able to competently use the technology that lawyers use in practice. In addition to not providing the best representation possible, being unaware of the technology in use by other attorneys may even result in malpractice. The rule is not asking attorneys to be experts in all areas of technology, but just to have a baseline understanding of the technology that is necessary for them to do their job. One way to rectify this in government may be to require something similar to members of Congress. How can Congress pass laws to the best of their ability, especially in areas heavily involving technology, if they are not aware of even the most basic technological advances?
If an attorney or member of Congress has been working in the area for decades and is planning to retire within the next 10 years, what is the motivation to learn new technology? Whether this inability to keep up with technology and its advancements is purposeful or accidental, something must be done. Technological advancements are unavoidable and those in the legal community must be responsible for keeping up.
Student Bio: Julia Griffith is a second-year student at Suffolk University Law School and a staff member on the Journal of High Technology Law. She graduated from Le Moyne College in 2015 with a B.A. in Political Science and a minor in Spanish.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.