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Time to recognize technology as a constitutionally protected right

The Future Files
|Written By Ben Hanuka
Time to recognize technology as a constitutionally protected right

How fundamental is technology to the way we carry on our lives? Is it vital enough to be considered a constitutionally protected right or freedom?

Anyone would be hard pressed to identify a noteworthy, indeed any, area of life or commerce that has not been profoundly affected by technology. And that is just the beginning.

I submit that technology in a modern advanced society such as the one in which we live, should be recognized as a constitutionally protected right to “life, liberty and security of the person,” under s. 7 of the Charter of Rights and Freedoms. The modern concept of life and liberty, and perhaps even security of the person, must be interpreted to include technology.

If the deeply transformative impact technology has had on our lives in recent decades is not convincing, without attempting to even try to address any number of infinite areas of life on which technology has had an impact, the “2015 Gates Annual Letter” of the Bill & Melinda Gates Foundation projects that technology will profoundly affect, at the very least, the following core areas of life:

•    health (“child deaths will go down, and more diseases will be wiped out”);

•    farming (“Africa will be able to feed itself”);

•    banking (“mobile banking will help the poor to transform their lives”); and,

•    education (“better software will revolutionize leaning”).

Technology is also a factor of national sovereignty. Technological advances are often of national importance to productivity and international competitiveness. Cyber attacks are the new international espionage.

More practically to daily ordinary life, in an “ask me anything” session on Reddit less than two weeks ago, Bill Gates, the founder of Microsoft and co-chairman of the Bill & Melinda Gates Foundation, answered the following about what he thought technology would hold in the next 30 years:

“There will be more progress in the next 30 years than ever. Even in the next 10, problems like vision and speech understanding and translation will be very good. Mechanical robot tasks like picking fruit or moving a hospital patient will be solved. Once computers/robots get to a level of capability where seeing and moving is easy for them then they will be used very extensively.

“One project I am working on with Microsoft is the Personal Agent which will remember everything and help you go back and find things and help you pick what things to pay attention to. The idea that you have to find applications and pick them and they each are trying to tell you what is new is just not the efficient model — the agent will help solve this. It will work across all your devices.”

Aside from the incredible physical help we are projected to get from robots, according to Gates, a personal agent that will remember everything, help you get back, and find things and pick what things to pay attention to? Sounds like one of a lawyers’ core functions in the practice of law.

Can it be legitimately argued that life in a society such as ours may be tolerated without access to at least the most basic and rudimentary elements of technology, and arguably, reasonable levels of technology?

The interpretation of the meaning of our Constitution and its remedies is not static. It is capable of adapting and evolving with time in a manner analogous to the “living tree” metaphor, which “accommodates and addresses the realities of modern life.” Last Friday’s decision on physician-assisted suicide is a perfect example. In the same vein are the decisions in same-sex marriage reference, see para. 22 and para. 94 of Hislop v. Canada (Attorney General).

A right to access technology may mean different, evolving concepts to different segments of our society.

In the practice of law, on the most elementary and simplistic practice regulatory level, I submit that technology has an important interplay with lawyers’ rules of professional conduct as well as the overall statutes that govern lawyer regulation. (See my December article, “Rules highlight key role of tech in modern practice.”)

In the legal profession, a right to access technology must be recognized for its unprecedented impact to date on the practice of law, and likely even more profound impact in years to come. A right naturally corresponds to a duty to provide for, or accommodate, such a right. I submit that the profession — and its leadership — must act on it to enable lawyers to exercise this right in the broader public interest.

Such a purported right is more than merely having the freedom to acquire or engage in something, such as technology. In Fraser v. Ontario (Attorney General), Supreme Court of Canada Justice Marshall Rothstein described the difference between a right and freedom, where a right implies a claim on someone else “to be provided with the object of the right”:

“A person is free or at liberty when there is an absence of obstacles or impediments. Nothing further is required beyond this absence. However, to say that a person has a ‘right’ is to imply something further. It suggests that a claim can be made on someone else in order to be provided with the object of the right.”

But if I aim too high in suggesting that, in 2015, technology ought to be declared a constitutionally protected legal right under our Charter, and if such a right were to be reserved to, say 2050, by which time we are projected to be immersed in a life deeply intertwined with artificial technology, I submit that technology must be at least recognized as a constitutionally protected fundamental freedom: The freedom of expression, including the freedom of the press and other media of communication in s. 2(b), and the freedom of association in s. 2(d) of the Charter.

Is there serious doubt that social media — a form of “media of communication” expressly protected by s. 2(b) — has a profound impact in our modern world? From launching and co-ordinating national and international political revolts in oppressed countries, to protecting the public in our society, social media has been an influential force in our lives.  

While a freedom under the Charter does not expressly impose a right, it may imply certain rights. In Fraser, Rothstein acknowledged that freedoms may have “derivative rights” or a “necessary precondition” of guaranteed freedoms under the Charter.

To be sure, things are not all rosy in matters of technology. The future of artificial intelligence holds significant risks to humanity in just a few decades. In the Reddit AMA, Gates alluded to the existential threat of machine super intelligence:

“I am in the camp that is concerned about super intelligence. First the machines will do a lot of jobs for us and not be super intelligent. That should be positive if we manage it well. A few decades after that though the intelligence is strong enough to be a concern. I agree with Elon Musk and some others on this and don’t understand why some people are not concerned.”

Before him, renowned physicist Stephen Hawking and SpaceX CEO Elon Musk, issued similar warnings about the future dangers of artificial intelligence.

The sooner we come to grips with the constitutional status of technology in our modern society, the better we will tackle these fundamental needs and problems looming in our life, and more immediately, those impacting and forever altering our legal profession.


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