The law must learn to keep up with technology

If an employer is known to exclude people from employment based on their religion, sexual preference, or political affiliation, sooner or later, they would be exposed and possibly sued. What many of us don’t realise however, is that this happens every day, with the help of technology.

Employers, many of whom nowadays use the social media to screen their candidates, can and do filter out job applicants based on their beliefs, looks, and habits.

Employers can refuse to employ people whose Facebook friends use bad language or post unpleasant messages, pictures or video on their social media space or if a computer algorithm judges them to be socially undesirable.

There is a disconnect, rapidly widening, between the speed of technological innovation and the laws set up to govern what goes on in cyberspace.

The gaps are getting wider as technology advances ever more rapidly. And it’s not just in employment — the same is happening in every domain that technology touches.

SURVEILLANCE

Today, technology is on an exponential curve and is touching practically everyone—everywhere. Changes of a magnitude that once took centuries now happen in decades, sometimes in years.

Not long ago, Facebook was a dorm-room dating site, mobile phones were for the ultra-rich, drones were multimillion-dollar war machines, and supercomputers were for secret government research.

Today, hobbyists can build drones and villagers in Hola access Facebook accounts on smartphones that have vast computing power.

There is a public outcry today — as there should be — about government surveillance, but the breadth of that surveillance pales in comparison to the data that Google, Apple, Facebook, and legions of app developers are collecting. Our smartphones track our movements and habits.

Our web searches reveal our thoughts. With the wearable devices and medical sensors that are being connected to our smartphones, information about our physiology and health is also coming into the public domain. Where do we draw the line on what is legal — and ethical?

We will have similar debates about self-driving cars, drones, and robots. These too will record everything we do and will raise new legal and ethical issues. What happens when a self-driving car has a software failure and hits a pedestrian, or a drone’s camera happens to catch someone taking a shower, or a robot kills a human in self-defense?

Another challenge for the law is the way the Web crosses international borders. Let’s say a Facebook user in Kenya sues another user in Uganda for defamatory comments posted on the site. Who has jurisdiction over the case, which country’s laws should be applied?

Increasingly, debate in the public square is being carried out online, on permanent and public social platforms. These platforms are fast-paced, aggressive worlds that encourage rapid-fire debate and quick thinking. They are adversarial by nature, and they show off much of the beauty and colour of the English language.

Sometimes however, these discussions rub some people the wrong way and they head to the courts, either fairly or unfairly depending on the context.

One would argue that as people become terrified of misspeaking online for fear of prosecution, public debate in the age of Twitter risks becoming flattened and stifled by humourlessness and fortified by offence-takers who may misrepresent innocent jokes.

It is even argued that a future is fast approaching in which billboards will call out pedestrians by name, displaying ads they’re likely to be interested in based on past purchases or other personal information available about them — and in the process endangering an individual’s ability to remain anonymous in public.

Right now, there are only questions. Answers will certainly come — but will they be fast enough to keep up with the technology?

Wambugu is is an Informatics Analyst. [email protected]