The Technology Canon
Technology evolves quickly but statutes do not. Congress passed laws that govern computer hacking, electronic surveillance, and intermediary liability for online platforms at a time when most of its members did not have access to the Internet. As these statutes remain frozen in time, courts struggle to determine their meaning as applied to technology that did not exist when they were enacted.
Traditional tools used by purposivists and textualists do not adequately account for this disconnect. For purposivists, imagining what the legislature would have thought about something it could not conceive requires an additional layer of hypothesis. Meanwhile, textualists’ reliance on ordinary meaning at the time of enactment is incomplete because contemporaneous meaning does not fully capture innovations that did not yet exist. These methodological gaps expand judicial discretion, lead to unpredictable results, and ultimately hinder innovation.
To address these practical and methodological problems, and recognizing the current importance of canons of construction, this Note proposes a “technology canon”: Where a technology fairly falls within the scope of a statute but is materially different from the state of the art at the time the statute was enacted, the statute should be interpreted in light of the mischief that it was enacted to address. Mischief exists outside of the legislature and can be identified from a variety of extra-legislative sources, making it potentially more objective than legislative purpose or intent. It asks not how the enacting legislature would have received a new technology but what technological functions it chose to govern through its choice of words. Mischief thus respects the primacy of the text while allowing the interpreter to focus more on the function rather than the form of the technology being governed.
To illustrate the technology canon, this Note investigates the mischief behind several important statutes governing technology, including the Computer Fraud and Abuse Act, the Copyright Act, and Section 230 of the Communications Decency Act.
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