Judge: Computer code is more potent than the law

An Australian high court judge claims technology has outpaced the legal system's ability to regulate its use in matters of privacy and fair-use rights

Australian high court judge Justice Kirby has said computer code is more potent than the law, and legislators are powerless to do anything about it.

Technology has outpaced the legal system's ability to regulate its use in matters of privacy and fair-use rights, said Kirby, speaking at an Internet Industry Association (IIA) event on Thursday.

Kirby said the judicial system has faced difficulties in coping with changes brought about by the internet and computing.

While the soon-to-be-reviewed Privacy Act has incorporated key privacy principles such as "usage limitation" — which states that data collected on an individual cannot be used for other purposes, except by the approval of the law or the person's consent — Google and Yahoo have rendered that principle defunct, said Kirby.

"It was a good moral and ethical principle to keep people's control over the usage that was made of the information... And then along came Google and Yahoo," said Kirby.

"And when the new technology came, there was a massive capacity to range through vast amounts of information. The notion that you could control this was a conundrum," he said, adding because the technology is considered so useful that privacy concerns have been cast aside.

The challenges technology presents continue to beat even the best legal minds in the world, said Kirby. Yet despite this, lawmakers should attempt to implement checks and balances. Without them, corporations pose an even graver problem for humanity.

"To do nothing is to make a decision to let others go and take technology where they will. There are even more acute questions arising in biotechnology and informatics, such as the hybridisation of the human species and other species. Points of no return can be reached," Kirby said.

However, technology has already allowed corporations to beat the legal system, said Kirby, citing the case Sony brought against Australian businessman Eddy Stevens in 2005 for modifying Sony PlayStations.

Despite the high court ruling in favour of the businessman, the decision was later overturned, protecting Sony's right to restrict where consumers buy its software from.

"We are moving to a point in the world where more and more law will be expressed in its effective way, not in terms of statutes solidly enacted by the parliament… but in the technology itself — code," said Kirby.

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