Judges Become Historians and Technologists in New-Tech Cases, Lawyer Says
With questions arising about how principles of existing law apply to new technologies, judges are becoming historians and technologists by necessity, said Anne Voigts, Pillsbury Winthrop lawyer, on a SIIA podcast Wednesday.
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“It's like all the justices have become ... historians, and they aren't necessarily historians by training,” Voigts said. “They're also ultimately going to become technologists ... without necessarily having the training.”
This is where amicus briefs can be helpful, the lawyer argued, because they can present “a broader perspective on what some of these issues are” and the technology involved.
Voigts noted that the U.S. Supreme Court recently declined to take up two cases with questions about Section 230 of the Communications Decency Act. The cases questioned “how do courts think about algorithms?” which is related to First Amendment cases and technology or online platforms. The “courts ... have struggled with that.”
Courts often “misunderstand” that “algorithms are fundamentally tools,” created, supervised and reflected by humans, but still tools, nonetheless. Voigts predicted the high court will eventually revisit what it has said about these issues and address the lingering questions.
Questions also remain following the Supreme Court's June ruling in Free Speech Coalition v. Paxton (see 2506270041), and lower courts are still determining how to apply that precedent while still respecting the First Amendment. Voigts believes the justices were trying to “carve” out a “specific area of speech” where there is “a specific restriction with age verification.”
Voigts also mentioned a newer trend of legislatures starting to regulate by asking for transparency from tech companies, and then taking more aggressive approaches once they understand what the tech is actually doing.