I used the catch-phrase "technology is legislation" in my novel Lady of Mazes, to express the idea that technology does an end-run around law.  Now, an Australian judge is saying just this, and more:  that technological objects will increasingly encapsulate deliberately-crafted legal structures in their very design.  He says:

"We are moving to a point in the world where more and more law will be expressed in its effective way, not in terms of statutes solidly enacted by the parliament...but in the technology itself--code."

He's nearly right; except for having it backward, that is.  What he's describing has similarities to my idea of the tech locks, which are socially-imposed limits on technology expressed in the technology itself, not in laws that surround it.  Judge Kirby is focusing on computer code here, but the principle is actually more general than that;  in the future, his idea implies we may have a legal system that operates not according to what's allowed, but according to what's possible.  If criminal use of a particular technology is simply not possible, then that's the same as having a law against that use. 

I think most people would prefer to live in a world where things are possible if not allowed, rather than the nightmare scenario of a world where many things simply can't be done.

However, Kirby is wrong about one crucial thing.  Laws will not be expressed in their effective form through code; code does and will continue to effectively create law--without reference to the legal system.  Groups like the record companies and the RIAA are finding out this out now.  Their people are trying to design devices that by design can only be used legally.  Digital Rights Management (DRM) is an example of this kind of pixie-dust sprinkled on technologies that are inherently a-legal.  Kirby is wrong when he imagines that law can be embodied in code, because code is inherently elastic; it's more like water than iron, because it partakes in a basic fact of nature:  that our definitions of things aren't the things themselves. 

Computer code relies on this fact.  Its identifications are all contingent, all temporary, all local.  As Brian Cantwell Smith points out in On the Origin of Objects, types ("can this kind of variable contain a text string or only integers?") are impossible to hard-code into a computer.  And if you can't even dictate that something is always and only an integer, how can you enforce any kind of higher-level legal structure in code?

Technology is legislation, but it can't be controlled on the level that Kirby is talking about.  Any attempt to do so can only result in Orwellian, and unintentionally hilarious, results (again, the entire current state of the music industry is both).

Thanks to Walter Derzko over at SmartEconomy for bringing this one to my attention.