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The Charms of the Past
Welcome to another issue of AI, Law, and Otter Things! This time, I write a bit about Crusader Kings III before moving on to some thoughts about the role of history in tech law.
Since the last newsletter, I have spent quite a bit of my free time with Crusader Kings III. Even though I have played most of Paradox Interactive's grand strategy games over the last 10+ years, I am not a fan of medieval-themed narratives (fantasy or otherwise), so I thought I could skip this one without missing much.
Oh, dear, was I wrong.
The game follows the usual Paradox formula: you control a political entity over a historical period, leading its internal and external policies over generations, with some unique mechanics relevant to that period. For Crusader Kings III, this means that we have a rich set of gaming mechanics centred on dynastic succession. In doing so, the games provide seamless integration between a The Sims-like personal interaction simulator and a political game played at a larger scale, with engrossing results.
To make this proposal work, the game developers have not only incorporated various historical events into their game scripts but needed to develop a systematic view of the Middle Ages, which places feudalism as a central feature. Various scholarly works engage with aspects of that perspective — such as its portrayal of noble marriage dynamics, its reductionist view of the crusades, or its general model of feudalism —, which make explicit the cultural assumptions behind game development and the trade-offs between historical accuracy and gameplay dynamics.
Thinking about such assumptions and trade-offs was a useful reminder of how we treat history in technology law. As a discipline, technology law research is somewhat averse to a deep engagement with the past. This often appears as a lack of analysis of historical examples, focusing on the novelty of applications such as automated decision-making or mass biometrics (and I myself have been guilty of that). Perhaps more dangerously, we also tend to ignore past legal issues and solutions in favour of new, "disruptive" approaches to the shiny technology du jour: nowadays AI and gene editing, but previous hype waves include nanotechnology, currently a niche topic.
To be fair, many legal scholars use history as a powerful tool for understanding issues such as the origin and limits of data protection law and the platform economy. But these works, despite their clear value, feel somewhat like a welcome exception in a body of literature that speaks more of anticipation and future-proofing than of lessons learned from disciplinary experience.
But what do we miss by downplaying history in our work? The most immediate impact is that we often find ourselves reinventing the wheel. For example, in data protection law, foundational works in the 1960s and 1970s have proposed approaches to issues such as automated decision-making that are strikingly similar to the current state of the art. Looking at the past can also be useful to diagnose our own failures as a discipline, such as the excessive focus on nanotechnology in the 2000s or cases of technology lock-in, such as the South Korean legal requirements on ActiveX.
Historical engagement can also be useful for dealing with substantial issues raised by technological applications. First, historical analysis can help unveil the path dependencies that directed technological development towards some directions and away from others. Furthermore, a historical analysis may be useful in dealing with technological change itself. While the particulars of "disruptive" technologies seldom find analogues in previous issues, the experience of disruption is not new. In fact, there is a rich body of examples regarding how the law has dealt with new socio-technical conditions, especially if we look at technological change beyond the domain of ICT.
One area in particular that requires attention from law and policy-making is the management of technological infrastructure. Scientific computing still makes considerable use of Fortran, a programming language first introduced in the 1950s. Around the same time, many corporate and government applications used COBOL, another language formulated with business needs in mind. These technologies remain alive and adapted to modern times and still form a substantial part of the modern technological infrastructure. However, they are seen as ancestral in computing terms, and retirement and death have substantially reduced the number of proficient programmers that can maintain the systems built on top of these technologies.
Infrastructure failure poses immediate problems for the ICT sectors of companies and governments directly reliant on those technologies. But, given their widespread adoption and even broader indirect usage, failure to properly maintain "antediluvian" computing systems is likely to produce harm to third parties. In addressing these effects of failure, and maybe even in accounting from them, lawyers might benefit from previous examples of technological transition in other industries.
Technology law would benefit from an increased interface with the history of technology, both in terms of breadth and depth. Dear reader, I would love to hear your thoughts on the subject. I would also like to learn about any works (yours or by others!) of historically informed tech law. Please feel free to respond to this email or contact me through other channels if you would like to discuss these topics.
Finally, I would like to ask you for some help with scholarly references. Part of my thesis engages with the idea of "future-proof regulation", which is a term that I see being used a lot with no clear definition. Are you aware of any works that attempt to define, or at least outline, what it means to future-proof law?
Thank you for your time, and see you next week!