It's not news that our society is divided into technological haves and have-nots.  Much has been written about the advantages lost or gained - education, professional, and social - based upon the primacy and recency of one's technology.  Recently, I've become increasingly attuned to another place where technological caste matters -- legal standards. 

It's been clear to me for quite some time that the lawyer who resonates with technology can do more successful and faster legal research; propound vastly superior discovery requests; and produce substantially more incisive disclosures.  It's now becoming increasingly clear to me that the law itself is being skewed by those of us who live to keep up with the next big thing in technology.  Debates among lawyers rage in my email inbox about the differences in things like encryption technologies and metadata standards, with lots of cool techie references to things like ISO, NIST, Diffie, OASIS, and XACML.  

In the meantime, I was on the the Social Security Administration website the other day and they wanted me to use an eight digit alphanumeric password (case insensitive, no special characters) to upload W2 and other sensitive tax information.  My bank's brokerage affiliate is using the same outdated and readily hackable password technology  I still see commercial and bar association websites seeking personal and financial information without indicating that they're using SSL or some other baseline method of securing the information.  I still get requests from security professionals to email my Social Security Number.  If you're not particularly technical, trust me, none of these are good things.

The distance between these two realities has got me thinking about all the places that these two technological castes will be competing to set legal standards.  For example, does a "time is of the essence clause" apply the perception of time of a blackberry owner or a person without a laptop?   

As the new administration provides the first coordinated national focus on technology, I'd like to add this to the list.  Perhaps the new national CTO (yet to be appointed) could work with the American Bar Association and other leaders to identify a rational strategy for standards setting in such a technologically bifurcated society.

Train wreck caused by text messaging?  Multiple news reports have raised the possibility that the conductor of a Los Angeles train was sending text messages just before the train crashed and many were killed.  The questions under investigation are whether this is true and whether the conductor was distracted by it when he should have seen red light signals indicating the hazard ahead. 

This is the saddest outcome of an issue I, and others, have been raising for years.  The use of technology for non-work activities has pervaded the work environment to the extent that it is impacting work performance.  The obvious problem is lost revenue and reduced profits to the employer, but sometimes it correlates to increased liability.  If true in this case, it means lost lives. 

If the shopclerk with an mp3 player or cellphone in the ear is too distracted to answer  questions accurately or make correct change, what makes me think my car mechanic, stock broker, or doctor's lab technician isn't?  In 2006, eDiscovery companies were estimating that one quarter to one third of all emails flowing through a corporation were personal email. At the time, I wrote about the thousands of football and fantasy football gambling emails that had passed through Enron.  I also wrote about the dirty jokes, hook ups, and other sex emails there.

It's getting technically easier to discover that people aren't really working when they claim to be. This summer before lecturing at a state bar convenion, I stood in the back of the large hall and observed what people were doing.  I explained the ways I could prove that they had been using their  laptops, blackberries, and iphones to shop on the web, play video poker, and text friends and family.  I explained how, In the not-to-distant-future, these activities will probably void the professional certification credit they thought they were earning by being present but not paying attention.

This week's train wreck brings more attention to the debate about just how much people's attention is diverted and what the consequences can be.  At a New York panel discussion last fall, a group of senior financial industry compliance managers uniformly said they weren't concerned about personal web, email, and phone use at work.  Perhaps they ought to be.

Elsewhere on this site, I've mentioned receiving the wonderful honor of being the first chair of an exciting new committee of the American Bar Association, the national association of lawyers in the US. The committtee will address the legal issues of “Artificial Intelligence and Robotics.” We're going to have a listserv, some form of online publications, and plan to co-host webinars, teleconferences, and possibly a conference.

1) Law about AI and Robotics – will track changes in statute, regulation, and case law about, or which specifically affect parties engaged in, artificial intelligence and robotics.

For example, one case has addressed whether a person offering a particular piece of software was offering an AI tool or practicing law without a license. We expect there will be cases about who owns the results of machine learning – the maker or the buyer – in both cases of advancement and liability. Similar questions will be asked about robotic prostheses which combine robotics and wearer impulses. As AI and robotics becomes more prevalent, we expect law-making bodies to seek to regulate these activities – or their results. Just as “corporate law” is a lens on the combination of contracts, torts, employment, and other topics in law, “AI & Robotics” will necessarily draw from intellectual property, privacy, contracts, liability, etc.

2) Use of AI and Robotics in legal activities – will address advances such as automated contract drafting and interpretation, compliance monitoring, and even law enforcement.

Although the use of robots in government may sound far-fetched to the general public, there are many efforts taking place in this arena. Just this week, the IEEE Robotics and Automation Society in Boston is describing and demonstrating new robotics for inspecting marine structures. And, the same folks who make home vacuum cleaner robots are making bomb detection robots for the federal government.

As technology advances, the Committee will address the challenges posed by ever smarter and more-dexterous machines that can out-perform humans, or make decisions on behalf of humans. We expect that the committee will touch on areas related to privacy, medical treatment and healthcare, product liability, and perhaps more fleetingly, the question of ‘humanness’ in a

This Committee will provide assistance to those advising technology companies, incorporating new technologies into their practice, lawyers in technology roles, technologists building legal tools, cross-disciplinary professors, and those who just want to be ahead of the curve.

The homepage for the Committee is at:

http://www.abanet.org/dch/committee.cfm?com=ST248008&edit=1&CFID=70893211&CFTOKEN=909f3fff9d5522e2-8758D883-C2B1-9621-7E534952BC914531&jsessionid=1a30274d649d1630413dTR

You can subscribe to the listserv there (look for the small LISTSERV Lists box on the right side of the page below the Leadership box).