Introduction: Technology and the Law

Thirty years ago, when the internet was still a wild frontier, it was hard to fathom how technology would help advance the delivery of legal services and at the same time threaten the fundamental right to privacy. This special issue titled “Technology and the Law” was created as a retrospective to assess the challenges and benefits that technology offers, especially as it relates to social justice and equality. What is clear more than ever is that, through collaboration, we can harness the power of technology and rein in potential abuses. The subjects covered in this issue are vast. And, as in many things, there is good news and there is bad news. 

Emily Bergeron writes about the continuing need to bridge the digital divide in rural America. She suggests that governments, policymakers, and private organizations must commit to digital inclusion so that no one is left behind in the ever-evolving digital landscape. Gary Rhoades describes how the technology used to screen tenants—including algorithms that mine data and make predictions—threatens to circumvent the Fair Housing Act’s protections against discrimination based on race, religion, and national origin. He proposes that we work collectively to find ways to combine the use of objective data with our common sense. Sanho Steele-Louchart, a blind attorney, describes the continued dearth of standards around making websites accessible for the disabled but notes that there is proposed legislation that promises to drastically improve access. H.R. 5813 and S. 2984, known collectively as the Websites and Software Applications Accessibility Act, would explicitly codify our right to digital accessibility into federal law.

Mayze Teitler and Carrie DeCell describe how commercial spyware gives attackers and repressive regimes access to private information, allowing them to surveil and intimidate dissidents, activists, and even journalists. They go on to examine how victims are suing commercial spyware companies to hold them accountable and how spyware companies have raised a litany of procedural defenses, from foreign sovereign immunity to a lack of personal jurisdiction. In a similar vein, Suzanne Bernstein describes tech’s threat to privacy in the realm of reproductive health care, especially considering the Dobbs decision. She worries that the tracking and data collection used to target advertising will be used by law enforcement to investigate women seeking health care and argues that it is critical for regulatory or legislative bodies to adopt strong data privacy protections.

Carrie Goldberg writes about the harmful reach of Big Tech and her firm’s representation of families who have lost children to suicide with a chemical sold online. Lucy L. Thomson and Troopers Sanders describe the rapid and widespread adoption of artificial intelligence (AI) and how the use of AI raises complex questions about its impact on fundamental rights. Thomson and Sanders are part of a new task force—made up of lawyers, judges, and technology experts across the ABA—that was launched last August to address the legal challenges of AI and its impact on the practice of law.

Patrick Toomey and Sara Robinson examine the recent reauthorization and expansion of the U.S. government’s surveillance powers under Section 702 of the Foreign Intelligence Surveillance Act. They say that Congress’s failure to enact essential reforms is disappointing given recent disclosures about how the FBI, NSA, and CIA use this law to surveil Americans, especially historically marginalized communities.

On the flip side, Alexa Koenig describes how technology has helped monitor and analyze human rights violations and bring perpetrators to justice. Gwendelyn A. Daniels, who has witnessed over the past 25 years how technology tools enhance the delivery of legal services and pro bono help, describes the success of her organization’s Get Legal Help platform. Amy Petkovsek recalls that in March 2020, when the world felt upside down and a shift to virtual court hearings at first seemed impossible, necessity became the mother of invention. She points out that the silver lining in COVID’s cloud is we now have some practice in supporting our clients virtually and are free to develop efficient procedures and safety mechanisms. She believes technology will continue to have huge implications for justice and help remove barriers to justice.

There is no question that technology is developing at a pace that challenges even those who wholeheartedly embrace the virtual realm. The threats to privacy are real. But the advances we have seen over the past three decades have helped level the playing field and brought new worlds of information to millions of people in need. And it is through the sharing of information that we unleash our collective potential.