[d@DCC] Objectivity and technological neutrality

[mskala at ansuz.sooke.bc.ca]

It occurs to me that in some of the discussions of the past few days,
we've been groping around, without really recognizing, a tension between
objectivity and technological neutrality.  I think it might be worth
thinking about these two principles as a general trade-off that applies in
a number of situations:

Technological neutrality says that the rules ought not to involve
technological issues.  If there are two situations with similar
consequences for the human beings involved, then the legal questions and
answers in those situations should be the same even if the technology is
different.

Objectivity says that the rules ought to be well-defined.  Everyone should
be able to evaluate the rules and get the same answers; someone should be
able to know in advance what the legal consequences of their actions will
be; and two people following the same rules to evaluate the same situation
should agree on what the legal questions and answers are.

In order to achieve objectivity, it's tempting to put the answers to
specific questions about technology into the law - for instance,
"distribution has not occurred until a file is transferred".  But that
violates technological neutrality because it requires the law to know what
a "file" and a "transfer" are.  In order to achieve technological
neutrality, it's tempting to demand that a human must evaluate the
situation - for instance "whether describing the location of a document
written by someone else violates the author's rights depends on the intent
and effect of the describer's actions".  But that violates objectivity
because different judges will take different views on "intent" and
"effect", and it may be hard to predict how the law will be applied in
advance.

Where and how can we choose between these goals?  Is it even a genuinely
necessary tradeoff?  Is there some way we can avoid sacrificing either
principle for the other?

In general, I think technological neutrality needs more zealous promotion
than objectivity, but I'd prefer to be able to have both wherever
possible.
-- 
Matthew Skala
mskala at ansuz.sooke.bc.ca                    Embrace and defend.
http://ansuz.sooke.bc.ca/