LEGAL LIMITATIONS OF THE

GROWING MEDIA
TECHNOLOGY (PART 1)
Introduction

Technology growing at fast rate

There are reasons why technology is accelerating rapidly. Our evolutionary

design both biological or technological results in a better next-generation species or
product. The product created through evolution is increasingly becoming more
effective, efficient, and capable. This product in turn will be used in developing the
next stage of evolutionary progress creating a positive feedback loop. Hence this
means that we are using better tools to design and build much better and efficient
tools. In biological evolution, advanced life forms are able to gather energy and
reproduce more effectively. These species outperform other species. The same is
true with the creation of technology. The rate of progress of an evolutionary process
increases exponentially over time, and the returns such as speed, efficiency, and
overall power also increase exponentially.1

With regard to technology’s evolutionary process, tools become more effective

and cost effective. Thus, greater resources are then produced and used toward
furthering the progress of that continuing process, which results in a second level of
exponential growth. This is the reason why the rate of exponential growth itself
grows exponentially. 2

Exponential growth in computation has existed for over a century, and has gone
through five different paradigms of exponential growth. This has been described by
Ray Kurzweil in his book entitled, The Singularity Is Near. There are actually five
paradigms described in the said book. The first is the emergence of
electromechanical computers, the second is the existence of relay-based computers,
the third relates to vacuum-tube based computers, the fourth is with regard to
transistor-based computers, and finally the fifth is with regard integrated circuits.

According to the observation by Gordon Moore in 1965, who is the co-founder of

Intel, the number of transistors per square inch on integrated circuits has doubled
every year since the invention of the integrated circuit. This is referred to as
Moore’s Law, and the prediction is that the trend will continue in the future. All of
the modern computing technology that we use today came from this insight which
has become the golden rule for electronics and technology. 3 Moore’s Law describes
the 5th paradigm of computation and is therefore included as a subset of a much
broader exponential principle as in the Law of Accelerating Returns.
1
Diamindis, P. (2016, January 10) Why Tech Is Accelerating. Huffington Post. Retrieved from
https://www.huffingtonpost.com/peter-diamandis/why-tech-is-accelerating_b_8951550.html
accessed 20 April 2018.
2
Diamindis, P. (2016, January 10) Why Tech Is Accelerating. Huffington Post. Retrieved from
https://www.huffingtonpost.com/peter-diamandis/why-tech-is-accelerating_b_8951550.html
accessed 20 April 2018.
3
50 Years of Moore’s Law. Fueling Innovation we love and depend on. Intel. Retrieved from
https://www.intel.sg/content/www/xa/en/silicon-innovations/moores-law-technology.html.
Accessed 20 April 2018.
 As more transistors fit into smaller spaces, the processing power of computers
also increases, energy efficiency is improved, and the cost is also decreased making
it affordable to consumers. This creates a domino effect as the economic impact of
an ever-increasing computing power translates to increased productivity and
efficiency. 4

50 years later, transistors have stopped shrinking, and Moore’s law appears to be
slowing down contrary to what is predicted. But did this mean that technological
growth is slowing down as well? No. This is because technology goes beyond
integrated circuits. According to Ray Kurzweil, “technology is a process of creating
ever more powerful technology using the tools from the previous round of
innovation.” 5The slowing down opened opportunities for open-hardware
ecosystems to flourish. Although the slowing down may be unfortunate for
technology companies invested on integrated circuits, it also creates new
opportunity for innovative open-hardware systems and cloud computing. Hence,
technology remains to be growing at a faster rate than ever albeit the slowing down
of Gordon’s prediction. 6

A brief summary on the history of Law

The origins of law can be traced back as far as 3000 BC in Ancient Egypt. Their
law can be compared to the modern English system as no legal code survived from
Ancient Egypt. Their legal system operated under decrees of the king which has the
forced or law, and the use of precedents from previous legal cases. 7 By 2200 BC, the
oldest law code was created in Sumeria, which is now modern day Iraq. 8 Four
centuries later, King Hammurabi in 18 th Century BC developed the Babylonian law
inscribed in stone, and copies in stone and wood were spread throughout their
kingdom for the public. In 800 years BC, is a significant milestone in the history of
law when Ancient Greeks established a society which supported inclusion of its
citizens, giving birth to democracy. About 1200 years later, a dynamic Roman law
was developed in the 5th and 6th century AD to adapt to the changing nature of
society. Roman law’s influence in English law can be seen in the latter’s adaptation

4
50 Years of Moore’s Law. Fueling Innovation we love and depend on. Intel. Retrieved from
https://www.intel.sg/content/www/xa/en/silicon-innovations/moores-law-technology.html
Accessed 20 April 2018.
5
Berman, A. and Dorrier, J. (2016) Technology Feels Like It’s Accelerating — Because It Actually Is.
Singularity Hub. Retrieved from https://singularityhub.com/2016/03/22/technology-feels-like-its-
accelerating-because-it-actually-is/#sm.0000098puyek59f49y6k44pcdtycv Accessed 20 April 2018.
6
Huang, A. (2015) The Death of Moore’s Law Will Spur Innovation. IEEE Spectrum. Retrieved from
https://spectrum.ieee.org/semiconductors/design/the-death-of-moores-law-will-spur-innovation
Accessed 20 April 2018.
7
“Law in ancient Egypt”. Retrieved from http://www.ucl.ac.uk/museums-
static/digitalegypt/administration/law.html Accessed 21 April 2018.
8
“Sumerian Civilization”. New World Encyclopedia. Retrieved from
http://www.newworldencyclopedia.org/entry/Sumerian_Civilization Accessed 20 April 2018
of Latin maxims.9 By 11th century AD, Royal courts developed common law in
Europe. On the same century, Europe has enacted a merchant law which allowed
merchants to trade under a common standard. A century or two later, the legal
profession returned to its prominence and both the state and the church started to
regulate it. The first law school was also established during the medieval ages
known as the University of Bologna. By 16 th century, the legal profession can already
be subdivided into two branches which are the barristers and the attorneys or
solicitors. Two hundred years later, the merchant law has already been
incorporated in other countries’ local laws. At present, the Germanic and Napoleonic
codes became the foundation of the majority of European laws today. The US legal
system on the other hand has become largely based on Europe’s common law
system. Different regulatory bodies have been developed by countries to regulate
the legal profession. 10 11 12

In a highly advancing and the quick evolution of technology, the law is trying
its best to catch up

According to Thomas Jefferson, “Laws and institutions must go hand in hand with
the progress of the human mind. As that becomes more developed, more
enlightened, as new discoveries are made, new truths disclosed, and manners and
opinions change with the change of circumstances, institutions must advance also,
and keep pace with the times.” (Jefferson, 1816).

Looking through the quick summary of the history of law, significant changes in
law took hundreds and even thousands of years to develop. On the other hand,
technology is on an exponential curve and is affecting everyone and everything.
Technology just like law developed at a phase that took centuries. But now these
changes happen in decades or even years. 13 This means that the law is unable to
catch up with the accelerating changes in technology, creating a widening gap as
technology advances. This affects every domain and aspect of our lives the

9
Hazard, J. et al. (2018) Roman Law. Encyclopedia Britannica. Retrieved from
https://www.britannica.com/topic/Roman-law Accessed 20 April 2018
10
Legal History. Retrieved from https://en.wikipedia.org/wiki/Legal_history. Accessed 20 April
2018
11
Patrick, G. H. (2000). Legal Traditions of the World. Oxford University Press
12
Timetable of World Legal History. Retrieved from
http://www.duhaime.org/LawMuseum/LawArticle-44/Duhaimes-Timetable-of-World-Legal-
History.aspx accessed 20 April 2018.
13
Wadhwa, V. Laws and Ethics Can’t Keep Pace with Technology. MIT Technology Review. Retrieved
from https://www.technologyreview.com/s/526401/laws-and-ethics-cant-keep-pace-with-
technology/ accessed 20 April 2018
technology touches, from medical science, privacy laws, intellectual property, and so
on. 14 15

According Andrea Matwyshyn, to a professor at University of Pennsylvania's

Wharton School, who tracks the intersection of law and technology, the law is five
years behind technology as it is developing. This is because the law finds it difficult
to predict or anticipate innovations in technology. Also, cases that involves that
internet still has an issue on whether the web should be treated as unique and
separate space from reality or as an extension of our reality. There is also the issue
on anonymity and immunity of users in the internet which makes it difficult to
identify who is liable in cyber-crimes committed. This directly intersects as well
with issues on privacy, which many users claim supports their right to anonymity. 16

Cases that have dealt with the expansion and growth of actual technology

An example of this would be that of the long-standing 8-year case between Oracle
and Google on the implementation of the Java Code in Android OS. On March 2018,
the federal appeals court ruled that Google violated Oracle’s copyrights. The case is
still subject to the appeal of Google to the Supreme Court. 17

The use of the Java platform by Google has allowed it to expand its growth on the
use of Android technology in mobile phones. Since the decision is still appealable
and has not reached its finality, the said decision won’t put a halt on the use and
development of the Android platform. However, the said case may now force many
software and platform companies to rewrite the codes of their products. 18

Data Privacy Laws. An example of legislation around the world in the

regulation of information and data

14
Wadhwa, V. Laws and Ethics Can’t Keep Pace with Technology. MIT Technology Review. Retrieved
from https://www.technologyreview.com/s/526401/laws-and-ethics-cant-keep-pace-with-
technology/ accessed 20 April 2018
15
Brill, L. (2017) When Will the Law Catch Up With Technology? Jaycee B. v. Superior Court of Orange
County: An
Urgent Cry for Legislation on Gestational Surrogacy. The Catholic Lawyer. Vol 39. No. 2. Retrieved
from https://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?article=2435&context=tcl Accessed
21 April 2018
16
Tanneeru, M. (2009) Can the law keep up with technology? CNN. Retrieved from
http://www.cnn.com/2009/TECH/11/17/law.technology/index.html Accessed 20 April 2018
17
McGinnis, R. (2018, March 27) The Case That Never Ends: Oracle Wins Latest Round Vs. Google.
Wired. Retrieved from https://www.wired.com/story/the-case-that-never-ends-oracle-wins-latest-
round-vs-google/ Accessed 20 April 2018
18
McGinnis, R. (2018, March 27) The Case That Never Ends: Oracle Wins Latest Round Vs. Google.
Wired. Retrieved from https://www.wired.com/story/the-case-that-never-ends-oracle-wins-latest-
round-vs-google/ Accessed 20 April 2018
 Legislation around the world on the regulation on the use of technology have
been in effect for more than a decade. This is true in particular with Data Privacy
laws which continues to evolve according to the changing technology and needs.
Europe is considered as the bulwark of data privacy laws, dubbed as such for their
most progressive laws on data protection. Canada also tend to lead the world
together with Europe in regulating the use of personal data. Other countries are
following suit, like Malaysia, Singapore, South Korea, and Turkey. The APEC Privacy
framework has also helped Asian countries to come up with a comprehensive
legislation in their respective jurisdiction. Their laws actually have similarities with
EU laws concerning data privacy.19

Laws on Emerging Technologies

With regard to laws related to regulation of emerging technologies, Canada’s

regulations on the use of recreational drones have been implemented March of last
year. Offenders can face a penalty up to $3,000 Canadian dollars. In China, tighter
drone laws have required users to get training and secure a license first before they
are authorized to operate a drone. 20

On the regulation of online media content, The Canadian Radio-Television and

Telecommunications Commission (CRTC) in Canada is the authority who regulates
radio, TV, and online broadcasts. They are also responsible for the protection of the
right to privacy of internet and email users, regulating senders with regard to the
sending of spam. The said administrative body is becoming unpopular with their
regulation of media content, wherein majority of Canadian’s feel like their freedom
of access to online entertainment is being curtailed. This is contrary to their claim
that broadcast from the internet does not need a license from them. 21 CRTC officials
on the other hand argues that the Internet is a basic service which falls within their
mandate to be regulated. An expert, Ian Lee however says that internet regulation
does not fall within CRTC jurisdiction. 22

Currently, the regulation of CRTC, albeit their claim, appears to include video and
music streaming. However, with regard to Virtual Reality or Augmented reality, no
law or implementing rules has yet been imposed as to its regulation. But since
augmented reality has also streaming and media capabilities, soon enough the use of
19
Carter, J. (2016, June 9) Beyond the Atlantic: Data privacy laws around the world. Techradar.
Retieved from https://www.techradar.com/news/world-of-tech/beyond-the-atlantic-data-privacy-
laws-around-the-world-1322682 Accessed 20 April 2018.
20
Wang, I and Thomas, N. (2017) China's tighter drone rules send new pilots flocking to school.
Reuters. Retrieved from https://www.reuters.com/article/us-china-drones-school/chinas-tighter-
drone-rules-send-new-pilots-flocking-to-school-idUSKCN1BG0AA accessed 20 April 2018
21
“TV Shows, Movies, Music and Other Content Online”. Canada Radio-television and
Telecommunications Commission. Retrieved from https://crtc.gc.ca/eng/internet/musi.htm
accessed 20 April 2018.
22
Brownlee, M. (2017) Internet regulation outside CRTC jurisdiction: expert. The Globe and Mail.
Retrieved from https://www.theglobeandmail.com/technology/internet-regulation-outside-crtc-
jurisdiction-expert/article1318537/ accessed 20 April 2018
this technology may be included. For many years, Virtual reality is under self-
regulation for voluntary compliance of the video game industry. 23

Future of how to regulate new technology

Just a few years ago, the law and regulation was just concerned on the potential
harm of the internet to privacy and liberty. However, interference from the
government felt more like a restriction than protection. 24 But with the recent
scandal from Facebook involving Cambridge Analytica, the government feels more
invigorated than ever to regulate how our data and information is being used. 25

The issue revolving network neutrality was also a concern a few years ago. This
issue was on whether the government should allow users who own their own
internet infrastructures to adopt practices that are going to allow or disallow uses of
data, applications, and content. The practice of regulating this concerns internet
advocates promotion of free use of the internet. 26
Regulation should no longer be confined as more non-governmental stakeholders
participate. The launch of Centre for Technology, Ethics, Law and Society (TELOS)
for example in 2008 has established a network of lawyers who are passionate in the
developments of technology to discuss the impact it has on laws and how regulation
should be implemented. The said conference aims to include more participants with
expertise on nuclear technology, environmental technology, and space exploration.

New legislations trying to catch up with the new issues posed by new technology
are not sufficient to answer the dynamic environment of technological
advancement. Experts with legal training are also finding it difficult to comprehend
these issues due to their lack of education and awareness in new technology.
Regulating technology requires our law makers to keep abreast with the rapid
changes in technological trends. 27

The law has been slow at developing surrounding technology, how can we
insure the law protects us against technology and its potential harms?
23
Gray, G. C. and Nikolakakos, T. (April 2007) The Self-Regulation of Virtual Reality: Issues of
Voluntary Compliance and Enforcement in the Video Game Industry. Canadian Journal of Law and
Society Vol 22. Issue 1. Pp 93-108 Retrieved from
https://www.cambridge.org/core/journals/canadian-journal-of-law-and-society-la-revue-
canadienne-droit-et-societe/article/selfregulation-of-virtual-reality-issues-of-voluntary-compliance-
and-enforcement-in-the-video-game-industry/D264D05278C5560574A8F0263790C9A9 Accessed
20 April 2018
24
Falzone, A. “REGULATION AND TECHNOLOGY”. Retrieved from http://www.harvard-jlpp.com/wp-
content/uploads/2013/01/36_1_105_Falzone.pdf accessed 20 April 2018
25
Ingram, D. Facebook says data leak hits 87 million users, widening privacy scandal. Reuters.
Retrieved from https://www.reuters.com/article/us-facebook-privacy/facebook-says-data-leak-
hits-87-million-users-widening-privacy-scandal-idUSKCN1HB2CM. Accessed 20 April 2018
26
Falzone, A. “REGULATION AND TECHNOLOGY”. Retrieved from http://www.harvard-jlpp.com/wp-
content/uploads/2013/01/36_1_105_Falzone.pdf accessed 20 April 2018
27
Chesterman, S. (2015) Law plays catch-up with technology. The Straits Times. Retrieved from
http://www.straitstimes.com/opinion/law-plays-catch-up-with-technology Accessed 20 April 2018
 So how should the law respond to the challenges posed by technology? In the
Technology Law Conference of 2015 on The Future of Money and Data which was
organized by the Singapore Academy of Law, it was suggested that legal experts and
regulators should closely coordinate with entrepreneurs and innovators to develop
a legal system that will address these gaps in law and technology. 28

The law is also rigid; hence legislature should pass more laws that are dynamic.
The law must be clear and broad enough that they do not micromanage activities to
allow flexibility. The law must also be current and not reactive. Legislators only tend
to pass new laws as a response to existing issues, and do not legislate laws in
anticipation of new issues. The last suggestion is with regard to globalization.
Technology has paved way to let us perform our activities without boundaries. The
law therefore must be open enough to recognize other jurisdictions and be
harmonized into a global and unified legal system. 29

CRTC or another government board to regulate the internet or technology –

pros and cons

The Canadian Radio-Television and Telecommunications Commission (CRTC) is

an administrative tribunal within the Government of Canada that is responsible for
regulating and supervising Canada’s communication system in the public interest.
The CRTC’s objective is supported by three pillars, namely: create, connect, and
protect. For purposes of discussion, let us highlight the third pillar, protect. This
pillar ensures that Canadians have access to information and services related to
their safety. Through this pillar, the administrative body also aims to enhance the
privacy and protection of Canadians through the promotion and enforcement of its
rules and regulations related to unsolicited commercial communications. 30

The CRTC has received some flak with regard its regulation the internet. An
example would that be its regulation of online media. This is in relation CRTC
requires broadcasters to ensure at least 50 per cent of their prime-time
programming, from 6:00 p.m. to midnight, is of Canadian origin. However,
Canadians do not feel that this is a great way of promoting cultural content of the
country. Rather, they see this not as a regulation on the online content providers but

28
Chesterman, S. (2015) Law plays catch-up with technology. The Straits Times. Retrieved from
http://www.straitstimes.com/opinion/law-plays-catch-up-with-technology Accessed 20 April 2018
29
Chesterman, S. (2015) Law plays catch-up with technology. The Straits Times. Retrieved from
http://www.straitstimes.com/opinion/law-plays-catch-up-with-technology Accessed 20 April 2018
30
CRTC Three-Year Plan 2017-2020. Canadian Radio-television and Telecommunications
Commission. Retrieved from https://crtc.gc.ca/eng/backgrnd/plan2017/plan2017.htm Accessed 20
April 2018.
as a limitation and restraint imposed by the CRTC on their liberty and freedom of
access to the internet.31 32

How CRTC worked with international entities to ensure data and technology is
safe and used for good.

In June of 2016, the CRTC announced that it will take part in the global initiative
to fight illegitimate online marketing activities. In its commitment to the said
initiative, on March 2018, the CRTC working with 10 agencies from six countries,
and the Unsolicited Communications Enforcement Network (UCENet) has identified
more than 200 websites that are suspected of performing unsolicited marketing
activities.
33

Note that under the anti-spam law of Canada, senders of commercial electronic
messages must ensure that they have secured the recipient's consent first prior to
sending the message. This includes proper identification information from the
sender and an option to unsubscribe from future messages.

Perhaps the CRTC may have been doing a great job in protecting Canadian
citizens from annoying spam, however, it appears that it is doing a bad job in
regulating online content providers at the expense of restraining the internet
freedom which Canadians enjoy. This is a classic example on how regulators should
legislate and implement laws affecting the use of technology. Legislation should
strike the right balance in protecting its users but at the same time not undermine
or curtail their citizens enjoyment of their right to freedom.

https://www.law.berkeley.edu/library/robbins/CommonLawCivilLawTraditions.html
Accessed 20 April 2018.

The CRTC collaborates with international partners to fight illegitimate online marketing
activities. (2018) Canadian Radio-television and Telecommunications Commission. Retrieved
from https://www.newswire.ca/news-releases/the-crtc-collaborates-with-international-

31
Craig, S. (2016) Majority of Canadians want the CRTC to stay away from imposing content
regulations on Netflix. Financial Post. http://business.financialpost.com/technology/majority-of-
canadians-want-the-crtc-to-stay-away-from-imposing-content-regulations-on-netflix accessed 20
April 2018.
32
Wong, J. CRTC licence renewals threaten Canadian programs, say critics. CBC. Retrieved from
http://www.cbc.ca/news/entertainment/crtc-pni-funding-1.4120348 Accessed 20 April 2018
33
The CRTC collaborates with international partners to fight illegitimate online marketing activities.
(2018) Canadian Radio-television and Telecommunications Commission. Retrieved from
https://www.newswire.ca/news-releases/the-crtc-collaborates-with-international-partners-to-
fight-illegitimate-online-marketing-activities-677519583.html Accessed 20 April 2018
partners-to-fight-illegitimate-online-marketing-activities-677519583.html Accessed 20 April
2018

Timetable of World Legal History. Retrieved from Wadhwa, V. Laws and Ethics Can’t Keep
Pace with Technology. MIT Technology Review. Retrieved from
https://www.technologyreview.com/s/526401/laws-and-ethics-cant-keep-pace-with-
technology/ accessed 20 April 2018

Urgent Cry for Legislation on Gestational Surrogacy. The Catholic Lawyer. Vol 39. No. 2.
Retrieved from https://scholarship.law.stjohns.edu/cgi/viewcontent.cgi?
article=2435&context=tcl Accessed 21 April 2018