The Illusion of Newness: The Importance of History in Understanding the Law-Technology Interface

Despite law being a field known for its backward-looking focus on precedent, legal scholarship addressing issues associated with technology too often only looks forward. It is where legal scholarship focuses closely on a particular technology that the risk of ignoring history and the broader context is greatest. The problem, where it arises, is caused by undue focus on the newness of new technologies, and is not unique to law. There is a problematic tendency to exaggerate the newness of issues arising from technological developments. While some legal issues are truly new in that they arise for the first time as a result of a new technological activity or entity, others are simply new manifestations of issues that have arisen previously in other contexts. Even where particular issues are new in this sense, they are not necessarily limited to the particular technological context in which they first arise. Undue focus on socio-technical circumstances narrows the terms of debate. It is argued that the analysis of legal dilemmas associated with particular technologies requires a broad historical perspective that looks beyond the particular circumstances in which they arise. The paper explores three cases: social media, intellectual property, and reproductive technologies. Each case highlights the need for greater scepticism about which issues are truly new, and demonstrate some of the dangers of “over-hyping” the impact of new technologies on law.