21 Feb Another Warbot Metaphor: Nanobot Swarms and Regulatory Challenges
Here’s what national security analyst John Robb had to say about the tactical benefits of a battlefield drone swarm:
•It cuts the enemy target off from supply and communications.
•It adversely impacts the morale of the target.
•It makes a coordinated defense extremely difficult (resource allocation is intensely difficult).
•It radically increases the potential of surprise
Things start to get really interesting when the confluence of two technologies cause even more radical changes. Take, for example, how fabrication technology and micro-drone tech may one day allow new drones to essentially be printed out by fabbing machines. Not there yet, but perhaps someday.
The underlying issue is that technology is changing so fast, it may be thwarting legal regulation from adequately responding to the implications of technological change. I italicized “may” because I am not certain that this is the case.
Law (and perhaps especially the common law) is propelled by metaphors. Its timely adaptation to a new technology partially relies on whether an apt metaphor can first orient the regulatory perspective, providing a basic frame for the problem, so that a combination of legislation and judicial interpretation can then fill-in more precise details.
For example, there were the arguments in the 1990’s (and still today…) over whether the internet is more like a broadcast medium, a mail service, or phone service. In part, the regulation of activiities on the internet has been based on applying various metaphors to different fact patterns, trying to apply old rules and, with some new legislation and interpretation, make them do new tricks. Perhaps this is all that is needed and technology has not left law in the dust.
If that is the case, while battlefield robots may present some new risks, do they actually overturn IHL as we know it? (Similarly do some of the other topics mentioned in the links, such as the implications of DNA hacking, raze pre-existing rules?) Are these actually areas where many whole new areas of substantive rules are needed, or are these examples of areas where regulatory enforcement just got alot harder?
At least regarding IHL, is technological change affecting primarily the substance of law or the enforceability of law, or both equally? I look forward to any comments from others in the Opinio Juris community…