The Law of Technology 

Lately people have been getting whipped up into a frenzy over the latest threats by some FEC commissioners that they will be looking at whether blog content violates federal campaign contribution laws. This has got me to thinking about how the law treats technology... any technology... not just blogs. Often times I hear things like "the law hasn't caught up with the technology yet." But more and more I wonder whether it really has to. The issue is really two fold.

One is the knee-jerk reaction of lawmakers to need to control anything that's new. Take for instance several states which are attempting to pass laws banning alcohol vaporizors in bars. They're brand new. The small information available on the machines show that they don't impair people any worse than normally consumed alcohol does, and some evidence suggests that the impairment is less. So why the ban? It's new. It seems dangerous... so let's get rid of it before it becomes a problem? Cars were incredibly dangerous when they first came into existence in the early part of the 20th century. Imagine if Michigan had seen these awful contraptions which are capable of traveling dangerously faster than horses, and decided to ban them. Maybe we should just do that with all new technology now. Better the devil you know then the devil you don't right?

The second is that people in power take advantage of technological ignorance to either scare or mislead judges into misinterpreting current laws. Let's face it... technology can be very confusing. I know from experience that if you start getting too in depth into certain technical topics with a non-technical person, their eyes begin to glaze over. They begin nodding their head in understanding, when in reality they are trying to get you to hurry up and finish because you actually lost then 10 minutes ago. Take wire tapping laws for instance. Court decisions have held that a wire tap warrant is not needed for a federal officer to install a key logging device on a computer in order to intercept someone's password or email as they type it. However, if an agency wanted to intercept someone's email after it had left their computer on it's way to the server, then a warrant would be required.

Granted a key logging device is not a traditional phone tap, but intercepting email isn't a traditional wire tap either. So why the difference? One could argue that a judge looked at the particular case and decided to throw out the constitution given the crimes this person had committed. Could it be that some technologically ignorant judge was misled as the real purpose of this device? We'll use a lot of technical jargon, and try to explain away any perceived similarities between these two very different technologies. This way the judge feels like he's walking into uncharted territory, rather than applying current case and constitutional law to a very different technology with a very similar purpose.

If we come back to the FEC threats against blogging, you can make two arguments, and both are equally valid. One is that the entire concept of campaign finance reform is an unconstitutional ban on free speech rights. I'll give my money to whomever I damn well please to say whatever I want, whenever I want. "Congress shall make no law" after all. The other argument is that if we are going to have to live with this law, then it should apply to everyone equally. If there is an exception for the media, columnists and opinion writers, then that same exception ought to apply to bloggers. I may not consider myself to be a journalist, but I do consider myself a columnist. Blogging isn't some new different thing. It's a medium. Some columnists use newsprint and ink, some use a television screen, I use a blog. The purpose is the same, and so the law should apply just the same.