Encounters between networked information technologies and law tend to be framed as examples of what happens when an irresistible force meets an immovable object. For example, some argue that networked information and communication technologies are technologies of freedom, able to help human civilizations solve all of our most pressing problems—if only the law will stop undermining technology’s potential and either get with the program or get out of the way. Others assert that it is information technology that fatally undermines the rule of law—that unbreakable encryption and untraceable alternative currencies will plunge society into chaos, or that unaccountable and fundamentally nonhuman artificial intelligences spell the end for antiquated models of social control and regulation.
Whether any of those inspiring or doom-laden predictions will come to pass is beyond our ability to know, but their premises are wrong. Networked information technologies inevitably will alter, and are already altering, the future of law but not because there is any single, irresistible arc of technological progress. The reason, rather, is very nearly the opposite: information technologies are highly configurable, and their configurability offers multiple points of entry for interested and well-resourced parties to shape their development. For similar reasons, law is not an immovable object. Legal institutions are not fixed, Archimedean points around which modes of economic development shift and cohere. They are arenas in which interested parties struggle to define what constitutes “normal” economic or government activity and what qualifies as actual or potential harm, and they are also human-created artifacts whose form and function are not preordained.