Is Technology Outpacing the Law?

Technology often outpaces the law because of statutory gaps in state laws and federal regulations. Legislative lags delay regulatory compliance for legal issues, including liability, intellectual property, consumer protection, cybersecurity standards, and data privacy. Other technology legal issues with regulatory delays include technology transactions, user data, trade secrets, digital assets, and smart contracts for software licensing. Talk to a technology lawyer about contractual obligations and compliance risk management strategies where there is no legal precedent.

Challenges of Determining Legal Jurisdiction

Legal jurisdiction refers to the authority of a court of law to hear legal matters between litigants and issue judgments. One way that a court gets jurisdiction is that an individual or company is located in its state or vicinity. There are complex legal tests for determining personal jurisdiction. It gets even more complicated in the case of websites, which don’t have an obvious location.

“The Internet created new problems, such as where is a website?” says Susan M. Kornfield, a partner of Bodman PLC in Ann Arbor who specializes in intellectual property and Internet law.

“There are issues as to who will be held accountable, how broad the damages will be, [the identity of the] author, and how to fashion an effective remedy.”

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Courts Have Gradually Met the Jurisdictional Challenge

Peter M. Falkenstein, who specializes in intellectual property, litigation, and cyberlaw, says, “The courts have slowly developed tests as to whether a Web site meets the degree of contacts needed to establish jurisdiction.”

Applying Existing Rules Instead of Inventing Totally New Ones

Rick Gaffin of Grand Law in Grand Rapids specializes in intellectual property and information technology and is a member of the ABA’s litigation and intellectual property sections.

He says, “I think it’s the right thing for courts to apply existing legal frameworks and that they don’t need to apply new laws and principles. For instance, basic trademark law can be applied to Internet domain names with a few modifications. We shouldn’t run to Congress for a new law before we try to apply existing laws.”

Technological Innovation Demands New Solutions from Policymakers

Technological developments didn’t stop with the Internet.

The proliferation of emerging technologies such as blockchain, artificial intelligence, machine learning, and the Internet of things (IoT) continually presents new challenges to lawmakers and regulators, who must create and implement laws addressing the impacts of new technology.

Find Legal Help

From new cybersecurity and data privacy laws to technology transactions involving intellectual property rights, the legal and regulatory environment is complex and dynamic. If you’re facing regulatory compliance questions or are concerned about protecting your IP in a business transaction, it’s best to contact a technology transaction lawyer to further understand the laws.

For more information on this area of law, see our overview of technology transactions and related content.