Model T laws in a Tesla-driven world

How long did it take before "traffic" laws caught up to the combustion engine? How did regulation transition from a "horse-and-buggy" world to an economy running on Model Ts? And how long should we expect it to take for laws and regulations to evolve from a world of mechanical-based automobiles to one in which mobile computing platforms "own" the roads? Eventually, those mobile computing platforms will also take their occupants from place to place as those occupants read, watch TV, nap or otherwise pay no attention to the roadway ahead. What will that mean?

As technology advances, in many cases it outpaces the law's ability to foresee issues. Legal norms and paradigms become stale. How society regulates newer, ever changing, technologies, how courts assess laws and regulations enacted before those technologies were either imagined or introduced, and how lawmakers, end users and the legal system itself bridge the chasm between technology and policy affects social norms and economic development.

Some of these issues have already surfaced. The recent litigation between Apple and the FBI provides insight. In that case, the FBI sought to use a 19th century law, the All Writs Act of 1789 (which authorizes U.S. federal courts to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law"), to compel Apple to create new software for purposes of unlocking an iPhone used by a domestic terrorist. Despite the fact that the case fortuitously resolved itself, there's clearly little logic to reliance on a centuries-old, inapposite law to address 21st century encryption issues. And even less logic perhaps, independent of the moral concerns underlying the need to decrypt the phone in this instance, to use an archaic law to force a commercial enterprise to create new products from whole cloth. That incident offers but a minor harbinger of events to come, a likely tsunami of issues that the law either inadequately addresses, fails to address or awkwardly addresses. And, these issues will extend far and wide.

The "Internet of Things" ? where "devices," "things" and "objects" talk and interact with each other ? will continue to gain momentum, especially as the costs of making things "smarter," "connected" and "active" continue to decline. Hardware costs, including the costs of semiconductors embedded in these devices, will decline precipitously, paralleling the historical pricing experience in the PC and broader electronics industry. Software solutions will evolve to mesh these diverse pieces of hardware. Fusing the hardware and software will (hopefully) enable the development of coherent, easy-to-use platforms that users can integrate into daily life. Many analysts have already predicted that these smart, connected devices and "things" will become ubiquitous. Health-focused wearables sense, collect and send physiological information to doctors, hospitals and patients. Automobiles have begun rapidly adopting driver assisted systems that can provide safety warnings, take over braking and eventually enable fully driverless cars. Sensors are being integrated into electric and power networks, allowing immediate, localized knowledge of problems or malfunctions. Heating, cooling, lighting and other household functions will permit off-premises control. Situational awareness will become prevalent.

As this functionality and "awareness" becomes pervasive, it will require, and demand, policy initiatives undertaken by savvy civic participants, versed in the capabilities and limitations of the underlying technologies. And, they will also require the legal profession, and legal educators, to engage more pro-actively with these issues and to think through, and offer solutions, for them as they arise. The ways in which they are, or may be, addressed will likely have broad-based macroeconomic effects, intended or otherwise.

The issues extend beyond the obvious. They will extend beyond the privacy and security issues, and consumer data breaches, that today seemingly attract daily attention. Those concerns will grow exponentially as data is collected from more and more things, as that information is disseminated to, and through, more and more platforms and as that data is stored in more and more far flung locations. Consider simply the "intelligent" home. Doors opened by smartphone. Lights turned on and off from afar. Heat increased or decreased without human intervention. Electricity usage managed off site. Each of these transactions creates a data point. These data points are then "moved" and collected through some form of computing platform for storage and potential analysis "somewhere."

In addition to the fundamental privacy and security questions, what happens if the doors don't open or lock? What happens if they unlock in the middle of the night? What happens when the heat is turned off unknowingly? Or lights fail to turn on and off while on vacation, signaling a vacant home? How should product warranties work with these types of devices? For how many years are they expected to function with embedded computing devices? And how far should liability for computing errors or malfunctions within any of those products extend? Should it extend solely to the "product manufacturer," to the retailer, to the developer of the embedded circuit that fails? When devices or things were "dumb," these questions were less complicated. That world is quickly changing, and the pace of that change will continue to accelerate. As it continues to accelerate, does the historical liability paradigm remain appropriate?

Issues of improved durability in many of these "things" force further discussion. Cars, for example, now remain on the road for a decade or more. Do these long lived cars demand some form of extended warranty coverage or safety framework? Are automotive parts, especially those embedded electronic parts that make critical driving decisions, designed or expected to last a decade without any degradation in function? Are they expected never to rust? If not, at what point in a product's life cycle does responsibility to the end user terminate, if ever?

Driverless cars will crystallize further issues. As may pilotless drones or airplanes. How ought risks be allocated within society? Ought the car manufacturer remain principally liable for all harms, retaining full responsibility to sort through any questions of loss contribution within its own supply chain? What if the autonomous software developed by a third party vendor fails? Questions like these, in the auto and other industries, go beyond simple issues of data privacy. They will extend to questions implicating security, encryption, health, safety and environmental, product warranty, consumer protection and other laws that need to be revisited by legislators, lawyers, legal educators, courts and policy makers. They will need to be revised, remade or newly-crafted for an interconnected, technologically driven world. The failure to do so will lead to many social and economic inefficiencies or worse over time if left unaddressed. Indeed, at some point in the not too distant future, the search for the prototypical "Supreme Court nominee" may perhaps focus more on questions of technological familiarity, facility and competencies than on mundane questions of civil procedure.

Scott M. Wornow is former general counsel of Atmel Corporation.