Zhao Jingwu
Associate Professor, School of Law, Beihang University
Controversy 1: Risk prediction or advanced reverie?
The response of jurisprudence to information technology can be broadly divided into three stages. The first phase (before 2015) was a parallel development of jurisprudence and technology governance. Although many scholars have put forward concepts such as "information law" and "science and technology law" before this, their research content is still mainly biased towards intellectual property management, such as the transformation of scientific and technological achievements and the recognition of patent rights, and the concepts of "information law" and "science and technology law" have not been recognized by the mainstream academic circles. Of course, during this period, some scholars have systematically and framed discussions on the paradigms of information law and other disciplines, and put forward concepts such as "general theory of personal information protection" and "information property rights". However, it should be noted that around 2015, due to the explosive innovation of information technology such as big data and cloud computing, the academic community began to pay attention to the theoretical value and practical significance of information law or data law. The second phase (2015-2018) is the cross-integration of law and technology governance. After the official launch of the landmark "Cybersecurity Law" legislative process in mainland China, the academic community has generally changed its research attitude towards data security and cybersecurity. In the past research activities, jurisprudence has not been able to provide direct solutions for cyber security and data security, and the realization of security goals is more dependent on reliable security information systems. In the process of "cybersecurity legislation", scholars have gradually discovered the basic path for legal participation in cyber governance: because absolute security cannot be realized, it is not only necessary to adopt security and credible standards at the technical level, but also to build a strict internal management mechanism and administrative supervision system at the legal system level to ensure that the obligated subject can fully perform its obligations with reasonable and prudent attitude in the prior stage. The third stage (2018-present) is the transformation stage of digital jurisprudence, and the scope of legal research is no longer simply limited to the realization of the goal of data security or cybersecurity, but extends to the research on risk prevention and governance of specific emerging technology applications. Among them, the most representative is blockchain technology and artificial intelligence. For example, blockchain has been noticed by some scholars in 2015, and the early research content mainly focuses on the technical characteristics of the technology, the types of application risks, and the way of institutional response. However, with the relative maturity of the application mode of this technology, the focus of research on blockchain technology has shifted to the fields of judicial preservation, smart contracts, NFT digital collection trading rules, etc., and the argumentation logic is generally based on technical principles such as decentralization and consensus mechanism, combined with the differences in data security assurance capabilities before and after the chain, and subdivides the obligation system of blockchain technology governance.
White Paper on Cyber Legislation (2022) by the China Academy of Information and Communications Technology
(The picture comes from the official website of the China Academy of Information and Communications Technology)
From the perspective of the above-mentioned evolution process of legal research, legal research does not form a clear understanding of the many social risks arising from the innovation and application of information technology from the beginning, but follows the different stages of development of information technology and presents a shift from the perspective of observation "from global risk to specific risk". Although there are controversies among domestic scholars about the risks that may arise from the popularization and application of advanced technology, it has to be admitted that no matter from what perspective jurisprudence discusses the regulatory path of technology application risks, its research perspective must never go beyond the scope of reasonable assumptions of the current technology application model. Just as there is an overemphasis on the risks of the application of "strong artificial intelligence" in the academic community, such claims seem to have gone beyond the boundaries of security risks envisaged by the objective development law of technology, after all, jurists are not science fiction writers, and reasonable risk predictions are not equal to rambling assumptions.
Controversy 2: Countermeasure Research or Theory Construction?
In the digital age, the second change in legal research is the increasing importance of countermeasure research in the field of cyberspace governance. In the field of traditional civil law, the "Pendecton-style" legal system with a complete system and integrated concepts advocated by the mainstream view has indeed promoted the transformation of mainland civil law from the "General Principles of Civil Law" to the "Civil Code". However, in the third information revolution, emerging social risks, like the previous two industrial revolutions, have had a transformative impact on existing legal systems and research methods. The result of the reform is not the creation of a new departmental law, but the extension of a research path that focuses on countermeasure research and institutional design. In typical legal doctrinal research activities, following rigorous legal reasoning methods such as syllogisms and taking the application of specific provisions as the research background, most of the problems in judicial practice can be solved. However, in the digital age, in the face of new social risks and completely different business practice models, it is difficult to continue to apply the previous theoretical paradigms, especially before the technology is mature, and the construction of systematic theoretical models may not be able to take into account the current and future governance needs at the same time. Therefore, in the face of rounds of technological innovation, legal scholars have begun to shift from holistic and overall research on the rule of law in science and technology to the design of governance schemes for specific technologies, no longer indulging in the instrumental value of traditional theoretical paradigms, but paying more attention to how to solve the regulatory problems of information technology applications such as big data, cloud computing, blockchain, and artificial intelligence at the theoretical and practical levels, and putting forward targeted institutional suggestions and governance countermeasures based on the basic principles of each technology and the current situation of the industry. However, controversy has arisen over whether legal research is countermeasure research or theoretical research, because too much attention to countermeasure research will lead the development trajectory of legal discipline to other disciplines and lose the independence of legal research. What's more, the creation of specific systems such as personal information protection and data security protection obligations is also inseparable from the support of theoretical research such as the "right to self-determination of personal information" in the early stage.
Personal Information Protection Law of the People's Republic of China
(The picture comes from Dangdang.com)
It should be clarified that whether it is countermeasure research, theoretical construction or institutional design, it is just a different form of legal research results. The rule of law system required by the digital society has always been directly aimed at promoting the development of the digital economy and social security and stability, so the research results of legal research should focus more on usability rather than the "gateway view" of the discipline. Admittedly, this tendency may be criticized as "utilitarianism", but it is clear that this tendency is needed in a law that is committed to settling disputes. Taking "data ownership" as an example, if scholars continue to apply the traditional concept system of ownership or property rights to the field of data rights and interests, the inherent characteristics of data such as low replication cost and no reduction in value will directly defeat the existing theoretical system. Further, what the digital economy needs more at this time is a set of transaction rules that can ensure the security of transactions and the attribution of interests, and the value judgment of legal research results should be whether the conclusion can help promote data flow and data transactions, rather than whether the relevant conclusions can make up for the shortcomings and loopholes of existing theories.
Controversy 3: Field research, or independent discipline?
After the concepts of digital law, computational law and other disciplines were proposed, major schools in China have also opened courses on network law or information law, and many comprehensive universities have also carried out discipline co-construction and cooperation with science and engineering departments such as the School of Computer Science and the School of Cyber Security, hoping to explore a new path of interdisciplinary and compound legal discipline construction. However, what is different from the past is that this upsurge of discipline construction exploration no longer seems to follow the old path of "law + technology", but chooses to rely on specific research fields and derives different forms of interdisciplinary construction. The first is the field of research with quantitative analysis as the core, which uses the technical advantages of artificial intelligence and deep learning algorithms to fill the lack of efficiency and perspective limitations of traditional empirical research at the data analysis level. The research contents of smart justice, trial of similar cases, and legal knowledge graph have touched on the "in-depth application of technology in the legal field", and the design and integration of legal intelligent products have been completed with the prior knowledge of legal workers. The second is the research in the field with the development of network information technology and the research and judgment of security risks as the core. This model is the most common, facing the business compliance needs of enterprises and the opinions of regulators, and the interdisciplinary construction of major universities pays more attention to whether law can solve practical problems, and the research objects are mainly cutting-edge technologies such as industrial Internet, digital twins, and metaverse. At the same time, the model also pays attention to the industrial development of information technology itself, and creates a guarantee system to promote technological development by completing digital infrastructure, adjusting market access thresholds, and building a systematic industrial supply chain security mechanism. The third is to use the basic core courses of "Computer Science and Technology" as a supplement to teach "dual-discipline" professional courses for law students. The biggest difficulty in the construction of this discipline model lies in how to break the disciplinary barriers between law and computer science, because basic courses such as data principles, discrete mathematics, compilation principles, and operating systems are indeed difficult for law students, and more importantly, these basic theoretical knowledge may not be fully applied in subsequent legal research.
The overall model framework of the DISC-LawLLM smart legal system
(Image source: arXiv: 2309.11325)
Comparing the above-mentioned three interdisciplinary construction models, it is not difficult to find that the approach of legal research in the digital age presents the basic characteristics of "field research". On the basis of summarizing the past experience of "law + technology" discipline construction, the focus of the interdisciplinary research of law and technology first needs to answer the basic question of "what is the main one". The research path of "law-based, technology-supplemented" determines that the development direction of the law discipline is based on countermeasure research and technical supervision, and through the comprehensive evaluation of technical principles, possible safety risks and industrial development trends, the industrial policy plan and regulatory framework of corresponding technologies are determined. The research path of "technology-based, law-supplemented" is mainly based on the research and development of specific technical products and services, and smart justice, intelligent trial, and judicial blockchain are the most typical representatives. In the face of this trend, similar questions have been raised in the academic circles, such as "will network law become an independent departmental law or an independent discipline in the future", from the perspective of the existing research scope, adjustment objects and research paradigms, the concepts of network law, data law and other disciplines have not substantially changed the existing departmental law system, and the theoretical paradigm and argumentation framework adopted are still based on the research results of traditional departmental law, lacking an independent basis as a new type of departmental law.
Conclusion: Possible Approaches to Legal Research in the Digital Age
Although it is difficult to reach a consensus on the aforementioned points of contention, the academic community has reached a consensus at least on the point that "information technology has changed the discipline and theoretical research of law". In the digital age, what needs to be wary of in the approach of legal research is academic bubbles and science fiction arguments. In fact, some scholars have bluntly pointed out that "there is anti-intellectualization research in artificial intelligence legal research, and the phenomenon of concept attachment is serious". In detail, although there are various security risks in the application of AI technology, the question of "the extent to which the application of AI technology has changed the existing structure of legal relations" is always omitted and omitted, resulting in the research conclusions becoming countermeasure reports without sufficient theoretical support. To make matters worse, the application of emerging technologies does not always create new security risks, or the security risks arising from the application of new technologies cannot always be resolved by law. This cognitive bias of exaggerating the security risks of technology application will lead to "technological pessimism" in legal research, and even transform into "risk regulation jurisprudence". In the digital age, the controversy over the implementation of legal research approaches boils down to "how to respond to technological risks", and preventing and avoiding security risks that cannot be solved at the technical level in advance is a new task of legal science in a risk society, but it is necessary to clarify the difference between hypothetical regulation and process risk prevention. The former takes risk prediction with certain subjective judgment as the starting point of research, and the security risks intended to be solved are also quite uncertain, while the latter emphasizes the synchronization of legal research and technological development, and adjusts the existing legal system at different stages of technological innovation, rather than covering all possible risks in the future at one time. Although law cannot predict the development trend of the digital economy and the network society, it does not prevent some application scenarios from being speculated and analyzed at the academic level. In the digital age, the approach of legal research is to complete the integration of methodologies in the process of exploring specific technology governance systems, and to establish the unique theoretical paradigm and research perspective of legal research in the digital age.
(This article was originally published in Law and Political Science, Vol. 2, 2022)
The topic of "Digital Rule of Law" is specially contributed by the Digital Law Research Association of Shanghai Law Society, and the topic is co-ordinated: Qin Qiansong.