When the law is stupid, how do we make it smarter?

Governments tend to be pretty abstract until they interfere directly in one’s life (e.g., war, taxes, tickets, etc.).  Some recent government intervention on behalf of San Francisco’s finest got me thinking about how difficult it is for government regulation to keep up with the ever-increasing speed of technological development.

I first started using Google Maps on my Blackberry Curve about 3 years ago. I graduated to the iPhone 3G about two years ago, and bought a cradle for my car’s dashboard the first time I took a road-trip.  I’ve never been lost since.  As I drive, I watch my virtual blue dot self progress through the 2-D world of Google Maps right along with me as I drive through the 3D world.  95% of the time, this system works well (5% of the time Google thinks I’m in a lake).  It never occurred to me that I might be breaking a law.

One sunny afternoon in November, I programmed my destination into Google Maps, pulled out of my spot, and was off on my way across town.  Shortly before I got to my destination, I found myself waiting at a long line of cars inching through a stop sign, so I pulled the iPhone out of the cradle to get a better look at the last turn on the map.  Upon doing this, a policewoman on motorcycle rode up to my open window and told me to pull over.  Mystified, I asked what I had done.  She told me I was texting while driving.  I showed her the map, she noted on the ticket that I was “texting (map)” and told me to have a nice day.

I stopped her and asked, “would you have pulled me over had I been looking at a paper map?”

“No.”

“Did it seem dangerous that I was looking at my iPhone while stopped in traffic?”

“No.  Look, it’s a screwy law.  I’m just telling everyone to fight it.”

“Huh?”

Today, three months later, I went in front of a judge (your tax dollars at work) to fight this thing.  Promptly at 3pm, a rag-tag bunch of people filed in to traffic court B.  Ten minutes of droning rules later, the first item of business is: me.  They call my name, tell me I’m dismissed, to see the clerk and I’m out.  Wham, bam, no fine, no argument, no case, and no explanation why.  I can only assume I’m not the only one who thinks the law isn’t keeping up with reality.

Now that it’s on my mind, I’m suddenly seeing examples of this trend everywhere.  Flipping through wired.com this afternoon I came across a story about how RealNetworks is giving up on an attempt to keep software that copies DVDs legal. Here are the good bits:
1. “Copying DVDs amounts to “theft,” the MPAA’s general counsel, Daniel Mandil, said Wednesday.”
2. “It’s OK to copy music from CDs, for example, and place it in an iPod. Yet, it’s illegal to do the same with a DVD. When it comes to the DVD, there’s not even a question of fair use allowed under copyright law.”
3. Judge Patel, in her ruling in the RealNetworks case, said “while it may well be fair use for an individual consumer to store a backup copy of a personally owned DVD on that individual’s computer, a federal law has nonetheless made it illegal to manufacture or traffic in a device or tool that permits a consumer to make such copies.”

To be fair, both sides have totally valid points.  The law says that fair use is ok.  I can legally create a back-up copy for myself of media I purchase. However, it is illegal to write software or manufacture a product that is actually able to create a DVD copy, because media companies are afraid digital copies will lead to piracy.  So, to recap, it’s completely legal to have DVD copies, as long as you don’t actually attempt to copy a DVD.  Huh?

Intellectual and physical property needs to be protected from theft and carelessness.  I don’t want teenagers texting while driving any more than I want media companies to go out of business (at least not the ones I work for).  However, the combinations of bits of intellectual property, atoms of media devices, and user actions that create an illegal or careless act are too often confused by law-makers.  It’s legitimately confusing how easily bits, atoms, and actions can be combined and reconfigured in any number of permutations; some legal some not.

Is it possible that the law itself must adapt?  Law itself tends to be so binary–this is right, this is wrong–that it’s unable to handle complexity.  We see so many instances where academic disciplines combine forces to create entirely new cross-disciplinary methods of handling complex problems much better than any isolated school of thought could do on its own.  Perhaps it’s time for a cross-disciplinary team of mathematicians, scientists, and lawyers to get together and come up with a new kind of adaptive law.

Imagine a machine that calculates your fine for speeding using an algorithm that weights dozens of factors simultaneously…  Person A, going 60 mph in a 30 mph zone in the middle of the night with no other traffic = $5 fine.  Person B, going 90 in a 30 during the day with children present = $300 fine.  Person B, going 45 in a 30 while taking an injured friend to the hospital without causing injury to others = $10 rebate.  I could go on…

I suppose this may be wishful thinking, but I honestly believe that at some point the complexity of law will have to catch up with the complexity of reality.  The alternative will simply be a lot of wasted time and and a retardation of progress.  Who’s going to build the flying car of the future if it’s illegal to fly it?  On the other hand, do we really want teenagers texting while flying?  Yikes.