It is my pleasure to be sought out by law students on occasion wishing my advice on a great law journal note to write as part of their journey through law school. Last week, I was asked about the recent announcement of indictments against Chinese government employees for computer hacking. What were the tough issues that an aspiring digital lawyer could analyze?
In our exchange, we looked at various angles—international law, “minimum contacts” for criminal law enforcement, and sovereign immunity were just three. But then we confronted another question: what would be the evidence used to prove, beyond a reasonable doubt, the conduct that was the basis for the indictment?
It became quickly clear that the only evidence that was accessible was entirely digital—system logs, operation logs, intrusion attempts, password resets, file access logs, actions taken involving the duplication of data, the alteration of records, or the installation of malicious code. None of the evidence required any human testimony to describe intent, malice, or scienter—but for a technician’s dry testimony to authenticate the records, the evidence of any crime was entirely digital!
As is the case with law students and other inquiring minds, we then began to reflect on the rapid evolution of the law, and our shift toward reliance on the digital records to document and serve as evidence of the truth—GPS records, video cameras, computer logs, emission detectors on smokestacks and car exhausts—we are rapidly moving toward a point in history where other machines can better evaluate the digital record than any judge or jury.
So, just as a thought to ponder—when will our court systems end the use of live, oral testimony? When will our witness chairs be entirely replaced by digital records of depositions, computer logs of activity, and machine-based analytics of intent, motive, and conduct? What rules will we need to invent, author, revise, or replace to enable this reality to come into being?
In my new book, I explore these questions and introduce a provocative concept—the emergence of quantitative law. With quantitative law, compliance is measured, not judged. It is where we are now destined to evolve, and my book provides the building blocks, and identifies a few of the hidden traps that await the unwary.
Let me know if you want to review a preview copy of the book. Drop me a note at email@example.com.